Roy Rogers v. Christopher Stem, 4th Cir. (2014)
Roy Rogers v. Christopher Stem, 4th Cir. (2014)
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:
Decided:
November 6, 2014
wrote
the
THE
COUNTY
ATTORNEY,
Hanover,
Virginia,
for
Appellant.
Bernadette Armand, VICTOR M. GLASBERG & ASSOCIATES, Alexandria,
Virginia, for Appellee.
Unit
in
denial
of
Hanover,
his
qualified immunity.
manager
of
Custom
Virginia,
motion
for
appeals
summary
the
district
judgment
based
on
Tobacco
Store
(Custom
Blends)
in
Stem
in
him
his
in
individual
violation
capacity,
of
the
alleging
Fourth
and
that
Stem
Fourteenth
cause
arrest. 1
The
to
support
district
the
court
warrant
found
that
issued
Officer
for
Rogerss
Stem
lacked
For
I.
A.
Rogers
was
the
manager
of
Custom
Blends
at
all
times
J.A.
468.
This
case
concerns
Custom
Blendss
herbal
synthetic
marijuana
or
Spice).
In
March
2011,
the
The statute
detectable
statute.
amount
renders
substance
subject
to
the
(2) with the specific intent to avoid the criminal penalties for
synthetic
marijuana,
(3)
to
mimic
the
effects
of
synthetic
various
containing
herbal
sample
incense
products
products.
The
as
well
sample
as
two
products--
and
were
not
being
offered
for
sale.
The
Virginia
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That the General Assembly later repealed the statute at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.
he
has
received
special
In this
training
in
the
Appellants Br. at 3.
On June 9,
Blaster
incense
and
Id.
at 6.
for
$37.99.
DFS
tested
the
of banned substances. 3
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.
Appellants Br. at 7.
or
substance.
any
other
HCSO
officer
contained
any
section
(A)
Appellants Br. at 8.
made
undercover
Blaster--from
Custom
purchases
of
Blends.
The
Spice--referring
affidavit
also
to
noted
Bayou
that
as
Spice illegal.
ma[king]
Spice
and
any
product
sold
as
J.A. 365.
records--including
toxicology
reports
accompanying
Rogers also
pointed out that the incense products sold by Custom Blends were
marked not for human consumption.
own
sworn
oral
statements
as
well
as
the
affidavit
the
arrest
warrant,
and
Rogers
was
he
had
The magistrate
arrested
for
The
charges
Hanover
against
County
Rogers
General
at
the
District
Court
preliminary
dismissed
hearing
stage
the
on
Fourteenth
Amendments
to
the
United
States
Constitution.
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
have
known
compounders
that
specific
he
did
intent,
not
and
have
without
evidence
of
evidence
of
the
that
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,
See Iko v. Shreve, 535 F.3d 225, 234 (4th Cir. 2008).
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
III.
That the two issues on appeal present questions of law also
determines the standard of review.
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).
11
to
cannabinoids.
evade
the
criminal
penalties
for
synthetic
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
Officer
Stem
argues
that
he
gathered
sufficient
that
Custom
Blendss
herbal
incense
products
were
Appellants
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
Custom
However,
he
Blendss
provided
herbal
no
incense
evidence
products
indicative
were
of
any
Spice.
private
13
the
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
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.
the
wholesaler,
Da
Scents
LLC,
Therefore,
even
suggested
intent
evade
specific
to
and
its
if
the
address,
products
criminal
names
penalties,
it
the
products
pricing
suggest
that
pricing
is
determinations
are
even
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
purchased Bayou Blaster in June 2011, section (A) did not cover
AM-2201.
Officer
Stem
urges
us
to
conclude
that
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
He does not.
Yet, it is plain
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
Rogers,
he
is
He argues that a
was
not
clearly
established
that
his
conduct
violated
that
Rogerss
established.
rights
under
Because
these
culpability
circumstances
under
section
were
(F)
Stem
compounders
lacked
intent,
any
a
information
reasonable
16
regarding
officer
in
the
Stems
private
position
qualified immunity.
In
qualified
immunity
cases,
we
must
identify
with
right
to
be
free
be
sufficiently
from
arrest
under
the
circumstances
clear
that
reasonable
official
would
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
knowledge
of
17
the
law.
[the
Officer Stem
See
Harlow
v.
the
fact
that
neutral
magistrate
In typical
issued
inquiry.
The
Supreme
Court
has
recognized
an
exception
as
supporting
Stems
the
warrant
basis
affidavit
for
application
the
provided
cited
suspected
only
the
offenses,
series
of
Virginia
but
the
conclusory
18
J.A. 36365.
It
without
providing
any
information
about
the
private
J.A.
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