GEORGE WINGATE, Plаintiff - Appellant, v. SCOTT FULFORD; DIMAS PINZON, Defendants - Appellees, and S. A. FULFORD, Defendant.
No. 19-1700
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
February 4, 2021
Argued: December 8, 2020. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony John Trenga, District Judge. (1:18-cv-00937-AJT-IDD)
Before GREGORY, Chief Judge, NIEMEYER, and RICHARDSON, Circuit Judges.
Affirmed in part, reversed in part, vacated in part, and remanded with instructions by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Niemeyer and Judge Richardson joined. Judge Richardson wrote a concurring opinion.
ARGUED: Victor M. Glasberg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appellant. Alexander Francuzenko, COOK CRAIG & FRANCUZENKO, PLLC,
George Wingate III was driving down Jefferson Davis highway around 2 a.m. one morning when his check engine light came on. Mr. Wingate pulled his car over near a streetlight to look under the hood. A Stafford County deputy patrolling the area, Deputy Scott Fulford, saw Mr. Wingate‘s vehicle. Suspecting the car was disabled, Deputy Fulford pulled behind Wingate, hoping to help. But the officer‘s roadside assistance quickly transformed into an investigatory stop, then an arrest, after Mr. Wingate declined to comply with Deputy Fulford‘s request for identification.
This appeal arises out of Mr. Wingate‘s civil suit, under
I.
The parties do not dispute the material facts of this case.
In the early morning hours of April 25, 2017, Mr. Wingate was driving southbound on Jefferson Davis Highway in Stafford County, Virginia. At some point between 1 and 2 a.m., Wingate‘s check-engine light came on. He pulled his car off to the side of the road and parked it in front of the CarStar car dealership, under an illuminated streetlight. Mr. Wingate left his lights on, popped the hood, and began to investigate. As a former mechanic, he believed that he might be able to resolve the problem. Mr. Wingate circled around to the
Around this time, Deputy Fulford was driving northbound on the highway. The deputy saw Mr. Wingate‘s vehicle off to the side of the road. Deputy Fulford was concerned that the car was “disabled,” so he turned around, pulled behind Mr. Wingate, and began to get out of the car. Upon seeing the patrol vehicle, Mr. Wingate got out of his car and walked over to greet the officer. Deputy Fulford asked Mr. Wingate what was going on and where he was gоing. Mr. Wingate explained that he was driving to his girlfriend‘s house in Stafford but had experienced some car trouble along the way.
Deputy Fulford then requested Wingate‘s identification. After Mr. Wingate asked why he had to disclose his identity, Deputy Wingate activated his mic and requested backup. The two men then engaged in the following exchange:
Fulford: Well, in Stafford County —
Wingate: Have I committed a crime?
Fulford: — it‘s required.
Wingate: Have I committed a crime?
Fulford: No. I didn‘t say you did.
Wingate: All right then.
Fulford: You‘re still required to —
Wingate: Am I free to go?
Fulford: — identify yourself.
Wingate: Am I free to go?
Fulford: Not right now, no.
Wingate: Am I being detained?
Wingate: Am I free to go?
Fulford: No.
Wingate: Am I being detained? If I‘m not being detained, then I‘m free to go.
Fulford: You‘re not free to go until you identify yourself to me.
Dash Cam Video at 1:40:08–31.
Lt. Pinzon arrived at the scene shortly thereafter. Lt. Pinzon informed Mr. Wingate that there had been “a lot of catalytic converter thefts in [the] area,” and noted, “It‘s kind of weird, it‘s 2 o‘clock in the morning, and you‘re out here on the side of the road in the same area where the businesses have all been hit.” Id. at 1:43:32–45. Mr. Wingate responded, “Well, I haven‘t committed any crimes.” Id. at 1:43:45–49. Undeterred, the Officers again asked for Mr. Wingate‘s ID. Id. at 1:43:50–52, 1:44:11–13. Mr. Wingate again asked why he needed to identify himself. Id. at 1:44:13–1:45:05. Eventually, the Officers attempt to arrest him, citing Stafford County Ordinance § 17–7(c). Id. at 1:45:04–1:47:20. Section 17–7(c) makes it a crime to refuse an officer‘s request for identification “if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.” J.A. 322.
Mr. Wingate resisted the Officers’ attempts to place him in handcuffs. Eventually, he broke free from the Officers’ hold and began to flee, running across the streеt and out of the dash camera‘s frame. Id. 1:47:18. Mr. Wingate stopped when Lt. Pinzon drew his Taser and pointed it in his direction. Lt. Pinzon then grabbed Mr. Wingate by the shirt, ordered him to the ground, and “threw him to the ground with one arm when [Mr. Wingate] didn‘t comply.” J.A. 291. After a brief struggle, Lt. Pinzon and Deputy Fulford put Mr. Wingate in handcuffs and placed him in the back of the patrol car. The Officers searched
Mr. Wingate was criminally charged for failing to identify himself; intentionally preventing a lаw enforcement officer from lawfully arresting him; knowingly attempting to intimidate or impede a law-enforcement official; and possessing an open certificate of title.1 But on the date set for trial, the prosecuting attorney assigned to the case dropped all of the charges. The attorney informed Deputy Fulford that defense counsel “had brought up some case law that made [§ 17–7(c)] appear possibly unconstitutional.” J.A. 62. Deputy Fulford‘s understanding was that they dropped the charges because “they didn‘t want to risk losing [the ordinance].” J.A. 63.
Mr. Wingate filed this suit in July 2018, asserting claims against Deputy Fulford under
II.
We review a district court‘s grant of summary judgment de novo, using the same standard applied by the district court. Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011)
A.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures.”
That this standard requires less than probable cause does not render its burden illusory. “[A]n officer who stops and detains a person for investigative questioning ‘must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.‘” Id. (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). We have often emphasized that the Fourth Amendment
To be sure, Deputy Fulford did not trigger the Fourth Amendment‘s protections by merely driving up to Mr. Wingate to provide roadside аssistance. Officers may approach someone absent suspicion of criminal conduct and “generally ask questions of that individual,” Florida v. Bostick, 501 U.S. 429, 435 (1991), request cooperation in a criminal investigation, United States v. Weaver, 282 F.3d 302, 311–12 (4th Cir. 2002), or provide assistance, United States v. Monsivais, 848 F.3d 353, 356, 358 (5th Cir. 2017). And they routinely do.
But Deputy Fulford then told Mr. Wingate that he was not free to leave until he identified himself. This unambiguous restraint on Mr. Wingate‘s liberty converted the previously voluntary encounter into a compelled detention—an investigatory stop. See Santos v. Frederick Cnty Bd. of Com‘rs, 725 F.3d 451, 462 (4th Cir. 2013) (voluntary encounter became an investigatory stop when woman submitted to officer‘s unambiguous direction remain seated); Bostick, 501 U.S. at 434 (explaining that an encounter will “trigger Fourth Amendment scrutiny” when “it loses its consensual nature“); see also Dash Cam Video at 1:40:18–20.
We evaluate these considerations both separately and in the aggregate, recognizing that “factors ‘susceptible to innocent explanation’ individually may ‘suffice[] to form a particularized and objective basis’ when taken together.” Slocumb, 804 F.3d at 682 (quoting Arvizu, 534 U.S. at 277) (modification in original). Ultimately, we conclude that the innocuous circumstances of this encounter fall short of indicating that criminal activity was afoot.
First, Mr. Wingate‘s vehicle was parked with its hood up near the CarStar lot at roughly 1:39 a.m. Alone, this fact does little to suggest criminal activity. In fact—and as Fulford initially reasoned—it indicates a very specific, non-criminal enterprise: attempting to identify and remedy car problems.
Third, Mr. Wingate parked near CarStar cars “during a period of increased vehicular larcenies and in an area known for prevalent vehicular crimes.” J.A. 45. This factor, too, is insufficiently particular. Courts may consider whether a person is in a “high crime area,” but simply being in an area where crime is prevalent is minimally probative in the reasonable suspicion analysis. United States v. Curry, 965 F.3d 313, 331 (4th Cir. 2020) (“A person‘s presence in a high-crime arеa cannot alone create reasonable suspicion to justify a Terry stop.“); Black, 707 F.3d at 542 (denouncing the suggestion that “mere presence in a high crime area at night is sufficient justification for detention by law enforcement“); Williams, 808 F.3d at 248 (affording “very little weight” to the fact that individuals were driving down a highway known as “drug corridor“). This is all the more true when the “high-crime area” identified comprises an entire county. See J.A. 79 (“The
Fourth, Mr. Wingate exited his vehicle without prompting as Fulford exited his cruiser. At Fulford‘s deposition, he testified that this was a “red flag” for him. J.A. 72. From his experience, “when somebody exits their vehicle and begins to walk away from their vehicle, it‘s because they are [] trying to get the attention off of the vehicle if there‘s something in plain view that [an officer] might see.” J.A. 75. Deputy Fulford went on to say, “[G]enerally if somebody‘s broken down on the side of the road, they stay inside their vehicle. And when they get out, a lot of times that causes alarm.” J.A. 78. To be sure, if a person gets out of her vehiclе without prompting following a for-cause traffic stop, there may be cause for concern. But the notion that the driver of a broken-down vehicle creates suspicion of criminal activity by approaching the officer trying to render him aid, put candidly, defies reason. Although we generally defer to officers’ claimed training and experience, we withhold that deference when failing to do so would erode necessary safeguards against “arbitrary and boundless” police prejudgments. Black, 707 F.3d at 541. That is the case here.
Fifth, Mr. Wingate was wearing all-black clothing “similar to the suspects identified and apprehended during the recent increase in late-night vehicular larcenies.” Dark attire might bе necessary to successfully engage in larceny. But it is far from sufficient. Indeed,
Finally, Mr. Wingate said he was having engine trouble even though the car appeared to be properly idling. As any seasoned driver knows, a vehicle that runs is not always a vehicle that runs well. It is therefore unreasonable for an officer to assumе deceit from a person claiming car trouble simply because the vehicle appears functional at a glance. The record indicates that the only reason that Deputy Fulford found the properly idling car suspicious was because of his own mistaken prejudgment that it was “disabled.” J.A. 80. Mr. Wingate never told Fulford that his car was disabled. J.A. 212. Lt. Pinzon testified that, when he approached, “there was nothing obvious to say it was a disabled vehicle.” J.A. 321(b). And neither Deputy Fulford nor Lt. Pinzon testified that, based on their training and experience, people experiencing engine trouble do not pull off the road unless their cars are completely disabled. Deputy Fulford‘s assessment of Wingate‘s credibility was untethered to any objective criteria. It therefore had little value in suggesting that criminal activity was afoot. Black, 707 F.3d at 540 (declining to give weight to an officer‘s “irrational” observation).
These factors do not fare better when viewed together. We need look no further than Deputy Fulford‘s own words to conclude that the first three factors—even when viewed as a whole—indicated a car in distress, not criminal activity. In the dash cam video,
The insufficiency of Deputy Fulford‘s suspicion is apparent when we compare it to the type of suspicion found adequate in other cases. C.f. Illinois v. Wardlow, 528 U.S. 119, 124–25 (2000) (officer had particularized suspicion of criminal activity when person in area of heavy narcotics trafficking engaged in unprovoked flight upon seeing police); United States v. Bumpers, 705 F.3d 168, 175 (4th Cir. 2013) (officers had reasonable and particularized suspicion that someone was trespassing when seen loitering in a high-crime area of a shopping center, without shopping bags, in front of a sign that said “no trespassing“); United States v. Hernandez-Mendez, 626 F.3d 203, 206, 209–10 (4th Cir. 2010) (officer‘s surveillance, professional training, and extensive personal experience with a particular high school‘s gang activity created reasonable suspicion of criminal activity). One of the more striking points of comparison is our decision in Perkins, where we held that an officer‘s stop was supported by reasonable suspicion when, before stopping a red car outside 2740 Knox Avenue, the officer knew:
Knox Avenue was a high-crime, drug-ridden neighborhood in which children were commonly present; - he had taken part in four or five drug investigations on Knox Avenue;
- the duplex at 2740 Knox Avenue was a known drug house under investigation by the police‘s drug unit;
- Officer Burdette had personally arrested the residents of one of the units in that duplex on several occasions;
- an unnamed caller had reported observing two white males pointing rifles in various directions in the front yard of that duplex;
- these men reportedly arrived in a red car with a silver or white stripe;
- Mrs. Hayes, a resident who lived directly across the street from the duplex, normally reported this type of conduct to the police;
- Mrs. Hаyes had given reliable information about illegal activity in this area at least six to ten times before;
- shortly after the phone call to the police, there were indeed two white males in a red car bearing a silver or white stripe, parked next to another car right outside the duplex at 2740 Knox Avenue;
- the passenger in the car was Mark Freeman, a well-known drug purchaser who lived in the neighborhood; and
- the red car pulled away when the officers arrived.
United States v. Perkins, 363 F.3d 317, 321 (4th Cir. 2004).
Deputy Fulford, by contrast, first began to suspect criminal activity when a man that he intended to help approached him in dark clothing. That is not enough. As Mr. Wingate argues, the level of objective, reasonable, and particularized suspicion in this case is mоre akin to that which we found lacking in cases like Slocumb, 804 F.3d at 682–84, Black, 707 F.3d at 531, 539–42, Williams, 808 F.3d at 247–53, and Massenburg, 654 F.3d at 489–91. The district court therefore erred in finding Fulford‘s stop was supported by reasonable and particularized suspicion.3
Mr. Wingate‘s arrest was likewise unlawful. “[E]very arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause.” Michigan v. Summers, 452 U.S. 692, 700 (1981). J.A. 322. Deputy Fulford and Lt. Pinzon argue that they had probable cause to arrest Mr. Wingate after he failed to identify himself. But, guided by Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 187–88 (2004) and Brown v. Texas, 443 U.S. 47, 52 (1979), we hold that this ordinance is unconstitutional when applied outside the context of a valid investigatory stop.
Stafford County Ordinance § 17–7(c) makes it a crime “for any person at a public place or place open to the public to refuse to identify himself . . . at the request of a uniformed law-enforcement officer . . . if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.” J.A. 322. The Supreme Court‘s seminal cases on “stop and identify” statues such as § 17–7(c) are Hiibel, 542 U.S. at 187–88 and Brown, 443 U.S. at 49–52. Brown involved a Texas law that made it a criminal offense for someone to “intentionally refuse[] to report . . . his name and residence address” to an officer “who ha[d] lawfully stopped him and requested the information.” Id. at 49 n.1. Invoking this statute, the officers stopped Brown and asked that he identify himself. Id. at 49–50. Although Brown was walking in a “high crime” area and “lookеd suspicious,” the officers did not “suspect [him] of any specific misconduct.” Id. at 50. Upon failing to identify himself, Brown was arrested, charged, and ultimately convicted under the Texas statute—a conviction the Supreme Court reversed. Id. at 49–50, 52–53. Brown recognized that the Texas statute was “designed to
Hiibel then answered the question that Brown left open: whether a state may сompel someone to disclose her name during an otherwise valid Terry stop. 542 U.S. at 185–86; see also Brown, 443 U.S. at 53 n.3. The Supreme Court upheld the use of stop and identify statutes within this context “because it properly balance[d] the intrusion on the individual‘s interests with the promotion of legitimate government interests.” Id. at 186–88. Hiibel also found that, in many respects, the individual and government interests implicated by stop and identify statutes were coextensive with those implicated by Terry itself. Id. at 188. On the government-interest side of the ledger, “[t]he request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop” and “[t]he threat of criminal sanction helps ensure that the request for identity does not become a legal nullity.” Id. Moreover, the request rarely imposes additional burdens on individuals’ interests in being free from government intrusion. An identity request ordinarily “does not alter the nature of the stop itself: it does not change [the stop‘s] duration, [] or its location [].” Id. (citing United States v. Place, 462 U.S. 696, 709 (1983); Dunaway v. New York, 442 U.S. 200, 212 (1979)).
Read together, Brown and Hiibel illustrate that a valid investigatory stop, supported by Terry-level suspicion, is a constitutional prerequisite to enforcing stop and identify statutes.4 Necessarily so. The prevailing seizure jurisprudence flows from the idea that, short of an investigatory stop, a person is “free to disregard the police and go about his business.” Cf. California v. Hodari D., 499 U.S. 621, 628 (1991); Brendlin v. California, 551 U.S. 249, 254–55 (2007); I.N.S. v. Delgado, 466 U.S. 210, 216–17 (1984). To be sure, officers may always request someone‘s identification during a voluntary encounter. Bostick, 501 U.S. at 434–35; Delgado, 466 U.S. at 216–17. But they may not compel it by
As discussed, Deputy Fulford‘s initial stop was not justified at its inception. The Officers do not argue, nor does the record suggest, that they acquired constitutionally adequate suspicion of criminal activity between the deputy‘s initial stop and the Officers’ eventual arrest.5 Accordingly the Officers’ enforced Stafford County‘s stop and identify statute outside the context of a valid Terry stop, and arrested Mr. Wingate on that basis. The arrest was therefore unconstitutional. The district court erred in holding otherwise.
C.
The question remains whether Deрuty Fulford and Lt. Pinzon are entitled to qualified immunity for their violations of Mr. Wingate‘s Fourth Amendment rights. Qualified immunity “balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The doctrine shields government officials from
Deputy Fulford is not entitled to qualified immunity for his unconstitutional investigatory stop. As Mr. Wingate argues, the circumstances here are nearly indistinguishable from those in Slocumb, 804 F.3d at 682–84—a case where we found officers lacked the requisite suspicion to conduct an investigatory stop. The officers in Slocumb saw a man, woman, and two infant children near two cars in a parking lot known for illegal drug transactions. Id. at 679–80. The two adults were transferring a child‘s car seat from one car to another. Id. at 680. One of the officers approached the group and “noticed that the man appeared to be hurrying the woman.” Id. When asked, the mаn told the officer that his girlfriend‘s car had broken down and that he had come to pick her up. Id. During this seconds-long conversation, the officer concluded the man was “acting evasively” because he “did not make eye contact and gave mumbled responses to officer‘s questions,” and conducted an investigatory stop. Id. We found the officer lacked reasonable suspicion, explaining that the government failed to explain how Slocumb‘s innocent acts “were likely to be indicative of some more sinister activity,” id. at 684, and cautioning the government that it “must do more than simply label a behavior as suspicious to make it so.” Id. (internal quotation marks omitted). Slocumb put Deputy Fulford on
This conclusion is only bolstered by pre-Slocumb cases like Black and Massenburg. In Black, 707 F.3d 541–42, we explained that a person‘s presence “in a high crime area at night” is of little investigatory value and warned officers against making “irrational assumptions based on innocent facts.” Id. at 542. We also highlighted four of our previous decisions, where “we admonished against the Government‘s misuse of innocent facts as indicia of suspicious activity.” Id. at 539 (quoting United States v. Powell, 666 F.3d 180 (4th Cir. 2011); Massenburg, 654 F.3d at 480; United States v. Digiovanni, 650 F.3d 498 (4th Cir. 2011); and United States v. Foster, 634 F.3d 243 (4th Cir. 2011)). One of those cases was Massenburg. There, we held that an officer lacked reasonable suspicion to stop and frisk an individual who (1) was found in the vicinity of several gunshots, (2) responded nervously when approached by the police, and (3) was reluctant to cоnsent to a pat down. Massenburg, 654 F.3d at 489. We said in no uncertain terms: “[The government] cannot simply proffer whatever facts are present, no matter how innocent, as indicia of suspicious activity.” Id. (internal quotation marks omitted).
Deputy Fulford‘s suspicion of criminal activity in this case is on par with that which we found insufficient in Slocumb, and pales in comparison to that which we found lacking in Massenburg. Because these cases placed Deputy Fulford on notice that suspicion of criminal activity must arise from conduct that is more suggestive of criminal involvement than Mr. Wingate‘s was, he is not entitled to qualified immunity for his unlawful investigatory stop.
Deputy Fulford and Lt. Pinzon violated Mr. Wingate‘s Fourth Amendment rights by enforcing § 17–7(c) outside the context of a valid Terry stop. But because this right was not clearly established at the time of the arrest, the Officers are entitled to qualified immunity on this claim.
Finally, we review the district court‘s grant of summary judgment on Mr. Wingate‘s claims under the Virginia common law: false arrest and malicious prosecution. The district court found that these claims were derivative of Wingate‘s unlawful arrest claim—each required a showing that the Officers lacked probable cause to arrest Mr. Wingate and charge him with a crime. J.A. 48–49. Since the district court held Deputy Fulford and Lt. Pinzon‘s arrest was supported by probable cause, it granted the Officers summary judgment on the pendant common law claims as well. Id. We affirm the district court‘s grant of summary judgment on these claims. But because the court‘s ruling is rooted in an incorrect probable-cause determination, we affirm on separate grounds.
Under Virginia law, false imprisonment is defined as “the rеstraint of one‘s liberty without any sufficient legal excuse.” Lewis v. Kei, 708 S.E.2d 884, 890 (2011). That said, Virginia law provides a defense to officers who subjectively “believed[] in good faith, that [their] conduct was lawful” and whose subjective beliefs were objectively reasonable. DeChene v. Smallwood, 311 S.E.2d 749, 751 (1984) (quoting Bivens v. Six Unknown Named Agents of Fed. Bur. Of Narc., 456 F.2d 1339, 1347 (2d Cir. 1972)). Although there is limited guidance on the scope of this defense, DeChene‘s reliance on Bivens suggests that Virginia‘s good-faith exception is congruent with the federal qualified immunity defense. See id. We therefore hold that, because the Officers are entitled to qualified immunity on Mr. Wingate‘s unlawful arrest claim under federal law, they are also entitled to the good faith defense to Mr. Wingate‘s false arrest claim under Virginia law.
Albeit on separate grounds, we affirm the district court‘s grant of summary judgment for the Officers on Mr. Wingate‘s claims under the Virginia common law.
IV.
In sum, the district court erred in granting Deputy Fulford summary judgment on Mr. Wingate‘s claim that the deputy conducted an unconstitutional investigatory stop. We reverse and remand for further proceedings consistent with this opinion. We affirm the
AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS
I readily concur with the majority‘s resolution of this case. But I have one reservation. The majority holds that constitutionally enforcing Stafford County Ordinance § 17-7(c) requires “a valid investigatory stop, supported by Terry-level suspicion.” Majority Op. 17. And in the circumstances this case presents, I agree that enforcing the ordinance required Terry-level suspicion. But I would be clear that we address only this case and not the constitutionality of applying an ordinance like this one outside the context of investigatory stops.
Consider, for example, an officer requiring a driver‘s identification at a constitutionally proper, but suspiciоnless, sobriety checkpoint. Or an officer at a border crossing or secure facility who asks for identification from someone seeking entry. In those instances (and others), the encounter might constitutionally permit enforcing a law requiring identification. Those circumstances were not addressed in Brown v. Texas, 443 U.S. 47 (1979) or Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004). And I would make plain that we are not expanding their guidance here, where we are without briefing on those issues and those circumstances are not before us.