UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1923

ROY ROGERS,
Plaintiff - Appellee,
and
DAWN LINDSAY,
Plaintiff,
v.
CHRISTOPHER STEM,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Anthony J. Trenga,
District Judge. (1:12-cv-00976-AJT-JFA)

Argued:

September 16, 2014

Decided:

November 6, 2014

Before DUNCAN, AGEE, and DIAZ, Circuit Judges.

Affirmed by unpublished opinion.

Judge Duncan
opinion, in which Judge Agee and Judge Diaz joined.

wrote

the

ARGUED: Robert A. Dybing, THOMPSON MCMULLAN PC, Richmond,

Virginia, for Appellant. Victor M. Glasberg, VICTOR M. GLASBERG
& ASSOCIATES, Alexandria, Virginia, for Appellee.
ON BRIEF:
Mark R. Colombell, THOMPSON MCMULLAN PC, Richmond, Virginia;
Yvonne S. Gibney, Senior Assistant County Attorney, OFFICE OF

THE
COUNTY
ATTORNEY,
Hanover,
Virginia,
for
Appellant.
Bernadette Armand, VICTOR M. GLASBERG & ASSOCIATES, Alexandria,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

DUNCAN, Circuit Judge:

Defendant-Appellant Christopher Stem (Officer Stem), an
investigator with the Hanover County Sheriffs Office (HCSO)
Narcotics
courts

Unit

in

denial

of

Hanover,
his

qualified immunity.
manager

of

Custom

Virginia,

motion

for

appeals

summary

the

district

judgment

based

on

Plaintiff-Appellee Roy Rogers (Rogers),

Blends

Tobacco

Store

(Custom

Blends)

in

Hanover, Virginia, brought a 42 U.S.C. 1983 action against

Officer
arrested

Stem

in

him

his

in

individual

violation

capacity,

of

the

alleging

Fourth

and

that

Stem

Fourteenth

Amendments to the United States Constitution because Stem lacked

probable

cause

arrest. 1

The

to

support

district

the

court

warrant

found

that

issued
Officer

for

Rogerss

Stem

lacked

probable cause and was not entitled to qualified immunity.

For

the reasons that follow, we affirm.

Dawn Lindsay, a store clerk at Custom Blends, was also

arrested with Rogers and charged with the same violations of
Virginia law.
Like the charges against Rogers, the charges
against Lindsay were dismissed at a preliminary hearing.
Lindsay also filed a 1983 claim against Officer Stem, but
voluntarily dismissed her claim on January 15, 2013.

I.
A.
Rogers

was

the

manager

pertinent to this appeal.

products.

of

Custom

Blends

at

all

times

The store sells tobacco and incense

The incense products include air freshener sprays,

car vent deodorizers, incense candles, incense sticks, incense

cones, and incense burners with aromatic oils, aromatic solids
or herbal incense to be heated therein.

Rogers v. Stem, No.

1:12-cv-976 (AJT), 2013 WL 3338651, at *1 (E.D. Va. July 2,

2013);

J.A.

468.

This

case

concerns

Custom

Blendss

herbal

incense products, particularly one called Bayou Blaster.

In early 2011, law enforcement agencies began recognizing
herbal incense as a source of synthetic cannabinoids (also known
as

synthetic

marijuana

or

Spice).

In

March

2011,

the

Virginia General Assembly enacted Va. Code Ann. 18.2-248.1:1

(the Virginia statute or the statute), which criminalizes
the possession, sale, distribution, and manufacture of synthetic
cannabinoids.

Id. 18.2-248.1:1 (B)(C), (E).

The statute

identifies substances containing synthetic cannabinoids in two

ways.

First, section (A) lists a number of chemical compounds

specifically banned by the statute--the inclusion of which in

any

detectable

statute.

amount

renders

substance

subject

to

the

Second, section (F) criminalizes substances that meet

certain criteria, but are not explicitly listed in section (A).

The full text of section (F) provides:
Any drug not listed in this section or the Drug
Control Act ( 54.1-3400 et seq.), which is privately
compounded, with the specific intent to circumvent the
criminal penalties for synthetic cannabinoids, to
emulate
or
simulate
the
effects
of
synthetic
cannabinoids through chemical changes such as the
addition, subtraction or rearranging of a radical or
the
addition,
subtraction
or
rearranging
of
a
substituent, shall be subject to the same criminal
penalties as for synthetic cannabinoids.
Va. Code Ann. 18.2-248.1:1(F) (2011). 2

In other words, section

(F) criminalizes substances that were (1) privately compounded,

2

The Virginia General Assembly amended the statute in 2012

to expand the list of chemical compounds in section (A).
See
Va. Code Ann. 18.2-248.1:1 (2012); J.A. 3031.
The General
Assembly repealed the statute in 2014 and added synthetic
cannabinoids
(now
termed
cannabimimetic
agents)
to
the
Virginia Codes list of banned Schedule I substances.
See Va.
Code Ann. 54.1-3446(7) (2014) (listing as Schedule I
substances the chemical compounds from the repealed statutes
section (A), id. 54.1-3446(7)(b), as well as substances that
fall within any of a number of structural classes, id. 54.13446(7)(a)).
Another section under the same chapter bans controlled
substance analog[s].
See id. 54.1-3456.
This section
appears intended to serve a function analogous to the function
that the General Assembly likely intended section (F) of the
repealed statute to serve. It bans substances not listed under
Schedule I that mimic Schedule I substances, with the following
language:
A controlled substance analog shall, to the extent
intended for human consumption, be treated, for the
purposes of any state law, as a controlled substance
in Schedule I or II.
A controlled substance analog
shall be considered to be listed on the same schedule
as the drug or class of drugs which it imitates.

(2) with the specific intent to avoid the criminal penalties for
synthetic

marijuana,

(3)

to

mimic

the

effects

of

synthetic

marijuana, (4) through chemical changes.

Following the passage of the Virginia statute, the HCSO
began visiting tobacco shopkeepers in the county to inform them
of the new law.

On April 13, 2011, two members of the HCSO, an

officer and an investigator, visited Custom Blends and spoke to

the store clerk.
confiscated
packets

During the visit, the officer and investigator

various

containing

herbal
sample

incense

products

products.

The

as

well

sample

as

two

products--

labeled K2 and Euphoria 5X--were found in the stores back

office

and

were

not

being

offered

for

sale.

The

Virginia

Department of Forensic Science (DFS) tested the confiscated

materials.

Both sample products tested positive for section (A)

substances, while the other items confiscated from the store

tested negative.

Rogers, 2013 WL 3338651, at *2 & n.8; J.A.

47071, 71 n.8.

(continued)
Id.
Unlike section (F), this catchall provision does not
require private compounding or a specific intent of the private
compounder.
That the General Assembly later repealed the statute at
issue need not alter our analysis. As will be discussed below,
Officer Stem was chargeable with knowledge of the law in place
at the time of the events leading to this case.

Officer Stem is an investigator for the HCSO.

capacity,

he

has

received

special

In this

training

in

the

identification, properties, and chemical composition of various

drugs, including synthetic cannabinoids.

Appellants Br. at 3.

Following the April 2011 visit, the HCSO began an undercover

investigation of Custom Blends, led by Officer Stem.

On June 9,

2011, Officer Stem purchased 1.5 grams of herbal incense labeled

Bayou

Blaster

incense

and

determined that it contained the chemical compound AM-2201.

Id.

at 6.

for

$37.99.

DFS

tested

the

In 2011, section (A) did not include AM-2201 in its list

of banned substances. 3

On subsequent visits to Custom Blends,

Officer Stem purchased an additional quantity of Bayou Blaster,

and

another

labeled

investigator

Hayze

Train

purchased

Wreck.

an

Both

herbal

officers

incense

product

purchased

glass

smoking pipes that were on display for sale near the herbal
incense products.

See Rogers, 2013 WL 3338651, at *3; J.A. 472;

Appellants Br. at 7.

Subsequent DFS lab tests confirmed that

none of the products purchased from Custom Blends by Officer

Stem

or

substance.

any

other

HCSO

officer

contained

any

section

(A)

Rogers, 2013 WL 3338651, at *3; J.A. 472.

The Virginia General Assembly added AM-2201 to the section

(A) list in 2012. See Va. Code 18.2-248.1:1 (2012); J.A. 30
31.
The
Virginia
Code
now
classifies
AM-2201
as
a
cannabimimetic agent banned under Schedule I.
Va. Code Ann.
54.1-3446(7)(b).

Officer Stem consulted with the Hanover County Commonwealth

Attorneys Office to review the evidence obtained from Custom
Blends and to receive guidance regarding the interpretation and
application of the Virginia statute.

Appellants Br. at 8.

Stem then prepared an affidavit to support a search warrant for

Custom Blends.
had

made

In the affidavit, Officer Stem asserted that he

undercover

Blaster--from

Custom

purchases

of

Blends.

The

Spice--referring
affidavit

also

to

noted

Bayou
that

Custom Blends had been notified of the Virginia statute, which

Stem described

as

Spice illegal.

ma[king]

Spice

and

any

product

sold

as

J.A. 365.

The magistrate issued the search warrant on September 8,

2011, and the HCSO conducted a search of Custom Blends the same
day.

During the search, Officer Stem spoke with Rogers, who

acknowledged that he was the manager of the store and that he

maintained

records--including

toxicology

reports

accompanying

some of the herbal incense products--in his office at the store.

See Rogers, 2013 WL 3338651, at *3; J.A. 473.

Rogers also

pointed out that the incense products sold by Custom Blends were
marked not for human consumption.

Rogers, 2013 WL 3338651, at

*3; J.A. 473.

Following the search, Officer Stem, again in consultation
with the Hanover County Commonwealth Attorneys Office, applied
for an arrest warrant for Rogers.
8

In support, Stem offered his

own

sworn

oral

statements

as

well

as

the

affidavit

submitted with the search warrant application.

issued

the

arrest

warrant,

and

Rogers

was

he

had

The magistrate
arrested

for

conspiracy and possession with intent to distribute synthetic

cannabinoids.

Id. at *4; J.A. 474.

B.

The
charges

Hanover
against

County
Rogers

February 17, 2012.

General
at

the

District

Court

preliminary

dismissed

hearing

stage

the
on

Roughly six months later, on August 30,

2012, Rogers filed a complaint under 42 U.S.C. 1983 against

Stem, alleging that Stem arrested him in violation of the Fourth
and

Fourteenth

Amendments

to

the

United

States

Constitution.

Officer Stem moved for summary judgment on the grounds that he

had probable cause to arrest Rogers--citing the evidence his
investigation

had

consultations

with

Office--and
qualified

in

produced
the

the

immunity

from

Hanover

County

alternative,
because

Custom

that

Blends

Commonwealth
he

reasonable

was
officer

and

his

Attorneys

entitled
in

to

Stems

position could have believed he or she had probable cause to

arrest Rogers.

See Mem. Supp. Def.s Mot. Summ. J., Rogers,

2013 WL 3338651 (No. 1:12-cv-976 (AJT)).

The district court denied Officer Stems motion for summary
judgment.

The court found that, because all of the lab tests of

products sold by Custom Blends came back negative for section

9

(A) substances, Rogerss arrest could have been based only on a

section (F) violation.

The court concluded that Officer Stem

lacked probable cause to arrest Rogers under section (F), and

that the arrest therefore violated the Fourth and Fourteenth
Amendments.

In addition, the court found that Officer Stem was

not entitled to qualified immunity.

The court reasoned that

section (F)s requirement of the compounders specific intent

was clear on its face, a reasonable officer in Stems position
would

have

known

compounders

that

specific

he

did

intent,

not

and

have

without

evidence

of

evidence

of

the
that

critical aspect of section (F), a reasonable officer could not

have believed he had probable cause to arrest Rogers under that
provision.

See Rogers, 2013 WL 3338651, at *9; J.A. 486.

This

appeal followed.

II.
Interlocutory
immunity,

are

qualified

immunity

orders,

typically

such

not

as

denials

appealable.

determination

presents

of

qualified

However,
a

question

when
of

law,

rather than a disputed question of fact, it may be immediately

appealed.

See Iko v. Shreve, 535 F.3d 225, 234 (4th Cir. 2008).

The two issues presented here are questions of law: whether

Officer
probable

Stem

established,

cause

to

believe

as

matter

of

that

Rogers

committed

10

law,

that
the

he

had

charged

offenses,

and

if

not,

qualified immunity.

whether

Officer

Stem

is

entitled

to

Therefore, our review of Officer Stems

interlocutory appeal is proper.

III.
That the two issues on appeal present questions of law also
determines the standard of review.

We review questions of law,

including probable cause and qualified immunity determinations,

de novo.

See United States v. Wilhelm, 80 F.3d 116, 118 (4th

Cir. 1996); Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003).
We also review de novo a district courts resolution of a
motion for summary judgment.
(4th Cir. 1994).

Shaw v. Stroud, 13 F.3d 791, 798

The standard requires that we view the facts

and draw reasonable inferences in the light most favorable to

the party opposing the summary judgment motion. 4

Iko, 535 F.3d

at 230 (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)).

Summary judgment is appropriate if there is no genuine issue as
to material fact and . . . the moving party is entitled to

Officer Stem argues that under the Eastern District of

Virginias Local Civil Rule 56(B), Rogers was required to
respond to Stems proffered facts with a list of disputed facts.
We note, as did the district court, that Rogers did not do so.
While, in many cases, a partys failure to comply with this
Local Rule could complicate the district courts factual
determinations, and thus affect the record on appeal, that is
not the case here, as we accept Stems proffered facts.

11

judgment as a matter of law.

Shaw, 13 F.3d at 798 (quoting

Fed. R. Civ. P. 56(c)) (internal quotation mark omitted).

We consider each of the two issues on appeal in turn.
A.
Officer Stem contends that he had probable cause to arrest
Rogers because he knew from his training and investigation of
Custom Blends that the store was selling Spice, and because
his investigation produced circumstantial evidence that Custom
Blendss herbal incense products were intended to be used as
Spice.

We hold that Officer Stem lacked probable cause to

arrest Rogers under section (F) 5 because he failed to produce any

evidence regarding a critical component of that provision--that
the private compounder of the substances at issue had a specific
intent

to

cannabinoids.

evade

the

criminal

penalties

for

synthetic

We note at the outset the difficulty posed by

requiring culpability to turn on the state of mind of a nonparty.

However, the statute created this difficulty, and we may

not rewrite the statute to avoid it. 6

The parties agree that the basis for Officer Stems arrest
of Rogers was an alleged section (F) violation. Indeed, as all
of the lab tests performed on Custom Blendss products for sale
came back negative for section (A) substances, Officer Stem
could have had probable cause only for a section (F) violation.
6

As we note above, the Virginia General Assembly repealed

the statute in 2014, included synthetic cannabinoids as banned
12

Officer

Stem

argues

that

he

gathered

sufficient

circumstantial evidence of the compounders specific intent to

conclude

that

Custom

Blendss

herbal

incense

products

formulated and marketed to smoke and get high.

Br. at 15.

were

Appellants

In particular, Officer Stem presents four bases for

asserting that such intent may be inferred: (1) the products

marketing; (2) the products pricing; (3) that one product for
sale contained AM-2201, a chemical compound that the Virginia
General Assembly later added to the list of substances banned
under

section

toxicology

(A);

reports

and
and

(4)

that

labels

the

marking

products
them

not

came

with

for

human

consumption.
Officer Stems arguments and his conflation of sections (A)
and (F) highlight the problem with the statute.

We do not

question Officer Stems probable cause to believe that several

of

Custom

However,

he

Blendss
provided

herbal
no

incense

evidence

products

indicative

were
of

any

Spice.
private

compounders specific intent.

First, as to marketing, Officer Stem points to the names of
the products, such as Bayou Blaster and Hayze Train Wreck,
which he argues connote getting high.
(continued)
Schedule I substances, and amended
provision. See supra note 2.

13

the

Appellants Br. at 18.

accompanying

catchall

The names may well be suggestive, but they do not suggest that
the

products

criminal
benign

compounder

prosecution.

and

legal

had

the

Rogers

products

points

are

high-end

fragrances

out

marketed

suggestive of abandoned behavior.

example,

specific

by

intent

that
with

many

to

avoid

types

alluring

names

Appellees Br. at 8.

well-respected

of

companies

For
Yves

Saint Laurent and Fresh are marketed with the names Opium and
Cannabis, respectively.
In addition, Custom Blendss herbal incense products appear
to have been labeled by the supplier or wholesaler, rather than
by the compounder.

See J.A. 351 (photograph of Bayou Blaster

label); Appellees Br. at 18 n.13 (containing the text of the

same Bayou Blaster label, including what appears to be the name
of

the

wholesaler,

Da

Scents

LLC,

[email protected]).

Therefore,

even

suggested

intent

evade

specific

to

and

its

if

the

email

address,

products

criminal

names

penalties,

it

would not appear to be attributable to the compounder.

Second,

the

products

pricing

further removed from the compounder.

to

suggest

that

pricing

is

determinations

are

even

Stem presents no evidence

anything

other

than

retail

determination.
Third, Officer Stem argues that Bayou Blaster would not
have contained the chemical compound AM-2201 if the compounder
meant it to be used as herbal incense.
14

However, when Stem

purchased Bayou Blaster in June 2011, section (A) did not cover
AM-2201.

See Appellants Br. at 6; J.A. 29 (containing the 2011

version of the statute).

The Virginia General Assembly added

AM-2201 to the section (A) list in 2012.

6; J.A. 3031.

See Appellants Br. at

Stem urges us to conclude that the presence of

that substance supports an inference that the private compounder

had a specific intent to evade the law.

Unlike the marketing

and the price, the ingredients of the product do evince choices

made by the compounder.

But the fact that a substance in the

product later became illegal under section (A) tells us nothing

about the specific intent of the private compounder, at some
indeterminate point in the past and wherever it may have been
located, to evade the law of Virginia.
Fourth,

Officer

Stem

urges

us

to

conclude

that

the

products labeling marking them not for human consumption and

the

toxicology

specific

intent

However,

as

accompanied
distributor.

reports
of

the

Officer
by
Id.

accompanying
compounder.

Stem

toxicology

notes,

them

demonstrate

Appellants

these

at

27.

products--labeled

and

reports--were

Br.

the

delivered

by

the

The distributors knowledge or intent would

be relevant under section (F) only if Officer Stem alleged that

the distributor was also the private compounder.

He does not.

We recognize that the Virginia statute was difficult to

enforce.

And we recognize that Officer Stem, whose job it was

15

to enforce that law, faced a challenging task.

Yet, it is plain

that Officer Stem provided no evidence of a private compounders

specific intent to circumvent the criminal penalties imposed by
the statute.

Though he had probable cause to believe that the

substances could emulate the effects of synthetic cannabinoids,

he lacked any reasonable belief about the compounders specific
intent, which was critical to culpability under the statute.

We

therefore agree with the district court that Officer Stem lacked
probable cause to arrest Rogers.
B.
Officer Stem next contends that, even if this court holds
that

he

lacked

probable

cause

to

arrest

nonetheless protected by qualified immunity.

Rogers,

he

is

He argues that a

reasonable officer with his training and experience could have

believed he or she had probable cause to arrest Rogers, and that
it

was

not

clearly

established

Rogerss constitutional rights.

that

his

conduct

violated

However, because section (F)s

requirements are clear, and because it is clear that Officer

Stem failed to gather evidence supporting violation of them, we
conclude
clearly

that

Rogerss

established.

rights

under

Because

these

culpability

circumstances
under

section

were
(F)

turns on the private compounders specific intent, and because

Officer

Stem

compounders

lacked
intent,

any
a

information

reasonable
16

regarding

officer

in

the

Stems

private
position

could not have believed he or she had probable cause to arrest

Rogers.

Thus, we conclude that Officer Stem is not entitled to

qualified immunity.
In

qualified

immunity

cases,

we

must

identify

with

particularity the right that the official is alleged to have

violated.

See Anderson v. Creighton, 483 U.S. 635, 640 (1987).

Rather than characterizing it as the general right to be free

from arrest without probable cause, the right at issue here is
the

right

to

be

free

presented in this case.

must

be

sufficiently

from

arrest

under

the

circumstances

See id. (The contours of the right

clear

that

reasonable

official

would

understand that what he is doing violates that right. (emphasis

added)).

In other words, Officer Stem loses the protection of

qualified immunity if it would have been clear to a reasonable

officer in his position that he or she lacked probable cause to
arrest Rogers for a section (F) violation.

See Pritchett v.

Alford, 973 F.2d 307, 31314 (4th Cir. 1992) ([T]he right in
issue was the right not to be arrested except upon probable
cause

to

believe

that

regulation at issue].).
is

chargeable

with

[the

plaintiff]

had

violated

That is the case here.

knowledge

of

17

the

law.

[the

Officer Stem

See

Harlow

v.

Fitzgerald, 457 U.S. 800, 81819 (1982). 7

The statute was clear

that section (F) required the compounders specific intent to

evade the penalties for synthetic cannabinoids, and Officer Stem
lacked any evidence supporting that requirement.
Officer Stem also argues that the magistrates issuance of
the search and arrest warrants shows that Stem acted reasonably
in interpreting and seeking to enforce the law.
cases,

the

fact

that

neutral

magistrate

In typical

issued

warrant is the clearest indication that the officers acted in an

objectively reasonable manner.
S. Ct. 1235, 1245 (2012).
the

inquiry.

The

Messerschmidt v. Millender, 132

However, it does not necessarily end

Supreme

Court

has

recognized

an

exception

where the warrant was based on an affidavit so lacking in

indicia of probable cause as to render official belief in its
existence entirely unreasonable.

Id. (quoting United States

v. Leon, 468 U.S. 897, 923 (1984)).

Officer
statute

as

supporting

Stems
the

warrant

basis

affidavit

for

application
the

provided

cited

suspected
only

the

offenses,

series

of

Virginia
but

the

conclusory

Officer Stem argues that the Virginia statutes lack of

judicial interpretation since enactment compels us to conclude
that the right was not clearly established. However, a statute
proscribing certain behavior as criminal may be clear, and the
rights underlying it clearly established, without adjudication.
See Pritchett, 973 F.2d at 314 (citing Anderson, 483 U.S. at
640).

18

references to Custom Blendss selling Spice.

J.A. 36365.

It

did not specify the statutory section--(A) or (F)--under which

Officer Stem sought the warrant.

Nor did it provide any basis

for a reasonable belief that Rogers had violated section (F).

It referred only to the products purchased as Spice, without
disclosing that lab results had shown the products lacked any
chemical compound identified by the General Assembly as Spice,
and

without

providing

any

information

compounder or its specific intent.

about

the

private

In addition, the affidavit

mischaracterized the statute itself, asserting that the statute

made Spice and any product sold as Spice illegal.
365.

J.A.

As the statute clearly requires the presence of certain

chemical compounds under section (A) or the specific intent of a

private compounder to evade the criminal penalties for synthetic
marijuana under section (F), it did not make any product sold
as Spice illegal.
Accordingly,

Officer

Stem

is

not

entitled

to

qualified

immunity.

IV.
For the foregoing reasons, the district courts denial of
Officer Stems motion for summary judgment is
AFFIRMED.

19