Tiffanie Hupp v. State Trooper Seth Cook

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1845
TIFFANIE HUPP; R.H., a minor, by and through his next friend, Tiffanie Hupp;
CLIFFORD MYERS,
Plaintiffs – Appellants,
v.
STATE TROOPER SETH COOK; COLONEL C.R. JAY SMITHERS,
Defendants – Appellees,
and
WEST VIRGINIA STATE POLICE,
Defendant.
Appeal from the United States District Court for the Southern District of West Virginia,
at Charleston. Thomas E. Johnston, Chief District Judge. (2:17–cv–00926)
Argued: April 2, 2019 Decided: July 25, 2019
Before GREGORY, Chief Judge, and KING, Circuit Judge. 1
Affirmed in part, reversed in part, and remanded by published opinion. Chief Judge
Gregory wrote the opinion, in which Judge King joined.
1
Judge Thacker was unable to participate in oral argument. The decision is filed
by a quorum of the panel pursuant to 28 U.S.C. § 46(d).
ARGUED: John Eric Campbell, CAMPBELL LAW, Denver, Colorado;
Justin F. Marceau, UNIVERSITY OF DENVER, Denver, Colorado, for Appellants.
Michael Deering Mullins, STEPTOE & JOHNSON PLLC, Charleston, West Virginia,
for Appellees. ON BRIEF: Alene Anello, ALDF, Cotati, California, for Appellants.
Robert L. Bailey, STEPTOE & JOHNSON PLLC, Charleston, West Virginia, for
Appellees.
2
GREGORY, Chief Judge:
Appellant Tiffanie Hupp was arrested for obstruction when she attempted to stop a
state trooper from shooting her family’s dog. After her husband video-recorded the
incident, the state trooper entered the family’s home, without consent and without a
warrant, and seized several of the family’s electronic devices. Hupp, her minor son, and
her father-in-law filed suit against the state trooper, asserting various violations of the
Fourth Amendment under 42 U.S.C. § 1983. The district court granted summary
judgment to the state trooper and denied Appellants’ motion for partial summary
judgment. Because issues of fact exist, we affirm the denial of Appellants’ partial
summary judgment motion but reverse the grant of summary judgment in Trooper Seth
Cook’s favor and remand for trial on each of Appellants’ claims.
I.
A.
Buddy, a 13-year-old husky-Akita mix, lives with his owner, Appellant Clifford
Myers, in Waverly, West Virginia. Buddy has been the source of contention between
Myers and his neighbor David Wayne, who lives across the street.
On May 9, 2015, the police were called out in response to a dispute earlier that day
between the two men over the dog. West Virginia State Troopers Seth Cook and Sean
Michael responded to the call. Trooper Cook was there to provide backup to Trooper
Michael. Upon their arrival, the troopers spoke with Myers, who was in his front yard
drinking a beer. The troopers then went across the street to speak with the Waynes. In
3
speaking with the Waynes, Trooper Cook was told of the “ongoing problem” with Myers
over Buddy, that Buddy was, in their mind, “vicious and had killed several of their cats
and had chased the children.” J.A. 302. Trooper Cook was also told that Buddy had
chased Wayne’s grandmother back into the house and that Wayne’s grandfather had to
take a stick with him when he checked the mail “to shoo the dog away.” Id. 2
At the time, Myers had another dog, a black Labrador, on a chain in his front yard;
Buddy was loose in the yard. According to Myers, Trooper Cook was aware that Buddy
was not on a leash. Trooper Cook testified, however, that he did not see Buddy when he
first went to speak with Myers. While the troopers spoke with the Waynes, Myers took
the Labrador off the chain and placed the chain on Buddy. Myers later explained that it
was mere happenstance that he switched the dogs; according to him, it was not because
“the black lab was the friendlier of the two dogs.” J.A. 82.
After speaking with the Waynes, the troopers returned to Myers’s house. Trooper
Michael asked Myers for his identification. Myers asked his daughter, Lindsey, to
retrieve it for him. As Lindsey headed back toward the house to retrieve the ID, Trooper
Cook followed her into Myers’s front yard. Trooper Cook testified that he followed
Lindsey “because of the people gathering in the door [of Myers’s home] and just a
general, again, situation awareness.” J.A. 208. At that point, Myers had six of his family
members at his house, and Trooper Cook wanted to “have a little bit of personal contact
with them to, again, determine their nature” and determine if “there were potential other
2
Myers maintained that Buddy had never harmed a person and simply chased
squirrels.
4
people that [he] needed to be paying closer attention to.” J.A. 56, 207–08. Trooper Cook
also testified that, due to the slope of Myers’s front yard, he wanted to “get closer to
where [he] could see better than from down at the road in the driveway looking up at a
position of tactical advantage over [him].” J.A. 208.
Video evidence captured much, but not all, of what happened next. 3 A dog barked
as Trooper Cook walked into Myers’s yard. J.A. 610 at 1:17–1:20. Trooper Cook, who
was trained to identify and “handle” aggressive dogs, took a few steps back after seeing
Buddy. J.A. 189, 610 at 1:20–1:22. He then pulled his gun out and, holding it with his
left hand, pointed it at Buddy. J.A. 610 at 1:23–1:26. Hupp, Myers’s 113-pound
daughter-in-law, ran down the front yard from near the house toward Trooper Cook. Id.
at 1:26–1:27. She stood with her left side next to Trooper Cook’s right side, her body
perpendicular to Trooper Cook. Buddy was at Hupp’s right. Hupp’s arms were at her
side and her hands were visibly empty. Id. at 1:26–1:28. Within seconds of Hupp’s
arrival, Trooper Cook grabbed Hupp’s left arm with his right hand. Id. at 1:29. A brief
struggle ensued during which Trooper Cook turned to his left, Hupp moved to her right
and directly facing Trooper Cook, all while the two struggled for two seconds with
Trooper Cook’s grasp on Hupp’s arm. Id. at 1:29–1:30. As Trooper Cook and Hupp
spun around, Hupp fell to the ground. Id. at 1:31. When Hupp stood up, Trooper Cook
3
To the extent the video depicts material facts of this case, we review those facts
as they are depicted in the video. Scott v. Harris, 550 U.S. 372, 380–81 (2007). Where,
however, the video “does not ‘clearly’ or ‘blatantly’ contradict” Hupp’s version of the
facts, we adopt her version in reviewing the grant of summary judgment to Trooper
Cook. Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 276–77 (4th Cir. 2011)
(quoting Scott, 550 U.S. at 378).
5
grabbed her arms from behind and walked her to the police car parked a few feet away.
Id. at 1:34–39. Bending Hupp over the hood of the police car, the troopers handcuffed
her. Id. at 1:40–2:05.
Though not depicted clearly in the video, Trooper Cook testified that after seeing
Buddy as he entered the yard, he yelled for someone to control the dog or to “get a hold
of your dog.” J.A. 201, 569–70. According to Trooper Cook, he did not at first notice
that Buddy was on a chain. Hupp testified that she ran toward Trooper Cook both in
response to Buddy’s barks but also in response to the trooper’s order to control the dog.
Also not clear from the video is what was said by Trooper Cook and Hupp in their
brief encounter. Trooper Cook testified that he told Hupp at least twice to back away and
that her response was that he could not tell her what to do on her property. Trooper Cook
also maintained that Hupp was “cursing” and “screaming profanities” at him. J.A. 210,
509. Hupp testified, on the other hand, that she did not hear any of Trooper Cook’s
orders and simply told him, “Whoa, whoa, don’t do that, stop.” J.A. 121.
Hupp’s husband, Ryan, recorded the incident with his cell phone from inside
Myers’s home. As Hupp was being arrested, she asked Ryan, “Did you get that on
video?” J.A. 86. Ryan answered, “Don’t worry, babe. I’ve got that shit.” J.A. 244.
Trooper Cook later testified that he understood that statement to mean that Ryan “was
glad he had” the video and “wouldn’t get rid of it for his—his possession of it.” J.A. 247.
Upon learning that a video had been recorded, Trooper Cook “stepped in” to
Myers’s home without a warrant and without consent. J.A. 237, 258. He seized four
electronic devices: a child’s tablet and three cell phones, including Ryan’s phone that
6
recorded the incident. J.A. 237, 572. 4 Trooper Cook explained in his deposition that it is
his practice to seize electronic recording devices without first obtaining a warrant if he
believes that someone has used the device to capture evidence. The State Police retained
the devices for a month before returning them.
B.
Hupp was charged with obstruction under West Virginia Code § 61-5-17(a). She
was arraigned, and after the magistrate judge concluded that probable cause existed for
her arrest, she was released on bond. Following a jury trial in the Wood County
magistrate court, Hupp was acquitted.
Appellants Hupp, Myers, and Hupp’s minor son—who witnessed his mother’s
arrest—filed suit against Trooper Cook, West Virginia State Police Colonel C.R. “Jay”
Smithers (the superintendent), and the West Virginia State Police. Appellants brought
several claims for violation of their constitutional rights under 42 U.S.C. § 1983 and
parallel state law claims. Appellants later amended their complaint, bringing claims
against the police officers in their individual and official capacities and against the West
Virginia State Police. The district court granted in part a motion to dismiss, dismissing
the claims against the West Virginia State Police and those brought against the police
officers in their official capacities. As a result, claims remained against only Trooper
Cook and Colonel Smithers in their individual capacities. The claims against Trooper
Cook included section 1983 claims for false arrest, excessive force, malicious
4
Trooper Cook testified that after he “took the phones,” Ryan and Tiffanie Hupp
gave him the passwords for the phones and signed a property receipt. J.A. 572–73.
7
prosecution, unlawful search of Myers’s house, unlawful seizure of the electronic
devices, and unlawful seizure of Buddy; and state law claims for malicious prosecution,
intentional infliction of emotional distress (outrage), and battery. A claim for supervisory
liability under section 1983 also remained against Colonel Smithers.
Trooper Cook and Colonel Smithers moved for summary judgment on all of the
remaining claims, and Appellants moved for partial summary judgment on the false
arrest, excessive force, and unlawful search and seizure claims. The district court granted
summary judgment to Trooper Cook and Colonel Smithers and denied summary
judgment to Appellants. The district court found that Trooper Cook is entitled to
qualified immunity on the false arrest, excessive force, and malicious prosecution claims
brought under section 1983 as well as on the common law malicious prosecution claim.
The district court granted summary judgment to Trooper Cook on the outrage and battery
claims as well. Because the court found that Trooper Cook did not violate Hupp’s
constitutional rights, it granted summary judgment to Colonel Smithers on the one
remaining claim of supervisory liability against him.
The district court also granted summary judgment to Trooper Cook on the
unlawful search and seizure claims. The court concluded that exigent circumstances
justified the search of Myers’s home and the seizure of the electronic devices because an
objectively reasonable officer would have believed that Myers’s family members would
destroy or conceal the video evidence before a warrant could be obtained. With respect
to the claim of unlawful seizure of Buddy, the court found that Trooper Cook’s actions
8
did not “meaningfully interfere[ ]” with Appellants’ “possessory interest in Buddy.” J.A.
636.
Appellants timely appealed the grant of summary judgment on the claims for false
arrest, excessive force, malicious prosecution, unlawful entry, and unlawful seizure of the
electronic devices. Appellants also appealed the denial of summary judgment in their
favor on the Fourth Amendment claims related to the entry of Myers’s home and seizure
of the electronic devices. Appellants did not appeal the grant of summary judgment on
the supervisory liability claim, claim for unlawful seizure of Buddy, or the state law
claims of outrage and battery.
The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and
1367, and we have jurisdiction under 28 U.S.C. § 1291.
II.
We review a district court’s grant of summary judgment de novo, “applying the
same legal standards as the district court, and viewing all facts and reasonable inferences
therefrom in the light most favorable to the nonmoving party.” Heyer v. U.S. Bureau of
Prisons, 849 F.3d 202, 208 (4th Cir. 2017) (quoting T-Mobile Ne., LLC v. City Council of
Newport News, 674 F.3d 380, 384–85 (4th Cir. 2012)). Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P.
56(a)). “A dispute is genuine if ‘a reasonable jury could return a verdict for the
nonmoving party.’” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013)
9
(quoting Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012)). “A fact
is material if it ‘might affect the outcome of the suit under the governing law.’” Id.
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
III.
A.
We first address the district court’s determination that Trooper Cook is entitled to
qualified immunity on the claims for false arrest, excessive force, and malicious
prosecution. “The doctrine of qualified immunity shields government officials from
liability for civil damages when their conduct does not violate clearly established
constitutional or other rights that a reasonable officer would have known.” Sims v.
Labowitz, 885 F.3d 254, 260 (4th Cir. 2018). The doctrine is intended to “balance[ ] 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.” Smith v. Ray, 781 F.3d 95, 100 (4th
Cir. 2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). It “gives
government officials breathing room to make reasonable but mistaken judgments, and
protects all but the plainly incompetent or those who knowingly violate the law.” Stanton
v. Sims, 571 U.S. 3, 5 (2013) (internal quotation marks and citation omitted).
An official is not entitled to qualified immunity if he or she deprived an individual
of a constitutional right and that right was clearly established at the time of the violation.
Pearson, 555 U.S. at 231. Our analysis is, therefore, two-fold. We must determine
10
whether the facts, viewed in the light most favorable to Appellants, show that Trooper
Cook violated Appellants’ constitutional or other rights and whether those rights were
clearly established at the time of Trooper Cook’s conduct such that a reasonable officer
would have known that the conduct was unconstitutional. Smith, 781 F.3d at 100. We
may consider either prong of the analysis first. Sims, 885 F.3d at 260. The question of
whether a right is clearly established is a question of law for the Court to decide.
Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992). The question of whether a
reasonable officer would have known that the conduct at issue violated that right, on the
other hand, cannot be decided on summary judgment if disputes of the historical facts
exist. Smith, 781 F.3d at 100. Thus, “while the purely legal question of whether the
constitutional right at issue was clearly established ‘is always capable of decision at the
summary judgment stage,’ a genuine question of material fact regarding ‘[w]hether the
conduct allegedly violative of the right actually occurred . . . must be reserved for trial.’”
Willingham v. Crooke, 412 F.3d 553, 559 (4th Cir. 2005) (alteration and omission in
original) (quoting Pritchett, 973 F.2d at 313).
1. False Arrest
We begin with Hupp’s false arrest claim. The Fourth Amendment protects “[t]he
right of the people to be secure in their persons . . . against unreasonable searches and
seizures.” U.S. Const. amend. IV. A seizure is unreasonable under the Fourth
Amendment if it is not based on probable cause. Dunaway v. New York, 442 U.S. 200,
213 (1979). Thus, “[i]f a person is arrested when no reasonable officer could believe . . .
that probable cause exists to arrest that person, a violation of a clearly established Fourth
11
Amendment right to be arrested only upon probable cause ensues.” Rogers v. Pendleton,
249 F.3d 279, 290 (4th Cir. 2001) (citation omitted).
The district court determined that a reasonable officer would have believed that
probable cause existed for Hupp’s arrest for obstruction. Appellants, on the other hand,
contend that the historical facts material to a probable cause finding are in dispute.
“Probable cause is determined by a ‘totality-of-the-circumstances’ approach.” Smith v.
Munday, 848 F.3d 248, 253 (4th Cir. 2017) (citing Illinois v. Gates, 462 U.S. 213, 230
(1983)). The inquiry “turns on two factors: ‘the suspect’s conduct as known to the
officer, and the contours of the offense thought to be committed by that conduct.’” Id.
(quoting Graham v. Gagnon, 831 F.3d 176, 184 (4th Cir. 2016)). While we look to the
information available to the officer on the scene at the time, we apply an objective test to
determine whether a reasonably prudent officer with that information would have thought
that probable cause existed for the arrest. Graham, 831 F.3d at 185. Evidence sufficient
to secure a conviction is not required, but probable cause exists only if there is sufficient
evidence on which a reasonable officer at the time could have believed that probable
cause existed for the arrest. Wong Sun v. United States, 371 U.S. 471, 479 (1963).
Because the probable cause inquiry is informed by the “contours of the offense” at
issue, we are guided by West Virginia law in determining the scope of the offense of
obstruction proscribed by West Virginia Code § 61-5-17(a)—the offense for which Hupp
was arrested. Rogers, 249 F.3d at 291; see Graham, 831 F.3d at 188 (Although “an
actual lack of probable cause is not dispositive for qualified immunity purposes[,] . . .
[t]he boundaries of the statute [allegedly violated by the plaintiff] are extremely relevant
12
to an assessment of whether [an officer’s] mistake was reasonable.”). The plain language
of the statute establishes that a person is guilty of obstruction when she, “by threats,
menaces, acts or otherwise forcibly or illegally hinders or obstructs or attempts to hinder
or obstruct a law-enforcement officer, probation officer or parole officer acting in his or
her official capacity.” W. Va. Code § 61-5-17(a).
Interpreting this statute, the Supreme Court of Appeals of West Virginia has held
that a person is guilty of obstruction when she “check[s] or hamper[s] the action of the
officer,” does “something which hinders or prevents or tends to prevent the performance
of [the officer’s] legal duty,” or acts in “direct or indirect opposition or resistance to the
lawful discharge of [the officer’s] official duty.” State v. Johnson, 59 S.E.2d 485, 487
(W. Va. 1950). As West Virginia’s high court has “succinct[ly]” explained, to secure a
conviction under section 61-5-17(a), the State must show “forcible or illegal conduct that
interferes with a police officer’s discharge of official duties.” State v. Davis, 735 S.E.2d
570, 573 (W. Va. 2012) (quoting State v. Carney, 663 S.E.2d 606, 611 (2008)). Because
conduct can obstruct an officer if it is either forcible or illegal, a person may be guilty of
obstruction “whether or not force be actually present.” Johnson, 59 S.E.2d at 487.
However, where “force is not involved to effect an obstruction,” the resulting obstruction
itself is insufficient to establish the illegality required by section 61-5-17. Carney, 663
S.E.2d at 611. That is, when force is not used, obstruction lies only where an illegal act
is performed. This is because “lawful conduct is not sufficient to establish the statutory
offense.” Id.
13
Of particular relevance to our inquiry here, West Virginia courts have held that
“when done in an orderly manner, merely questioning or remonstrating with an officer
while he or she is performing his or her duty, does not ordinarily constitute the offense of
obstructing an officer.” State v. Srnsky, 582 S.E.2d 859, 867 (W. Va. 2003) (quoting
State ex rel. Wilmoth v. Gustke, 373 S.E.2d 484, 486 (W. Va. 1988)). For example, the
Supreme Court of Appeals has found that no obstruction is committed when a property
owner asks a law enforcement officer, “without the use of fighting or insulting words or
other opprobrious language and without forcible or other illegal hindrance,” to leave her
property. Wilmoth, 373 S.E.2d at 487. This principle is based on the First Amendment
“right to question or challenge the authority of a police officer, provided that fighting
words or other opprobrious language is not used.” Id.; see Graham, 831 F.3d at 188
(“Peaceful verbal criticism of an officer who is making an arrest cannot be targeted under
a general obstruction of justice statute . . . without running afoul of the First
Amendment.” (citation omitted)).
On the other hand, certain “threats, language, and menacing demeanor” can
constitute obstruction. State v. Davis, 483 S.E.2d 84, 87 (W. Va. 1996). In Davis, for
example, a police officer responded to a call of shots fired and encountered an intoxicated
man who was fighting with his live-in girlfriend. Id. The man told the officer that he had
a loaded shotgun in the corner of the home, “gestured toward the gun, reminded the
officer in a threatening manner that it was loaded, and employed language indicative of
both his agitated state and his intention to discharge the gun at any time and any place he
chose.” Id. The police officer exited the home and was forced to call for backup. Id. at
14
86. The court concluded that the “verbal threats and behavior” “had the effect of
hindering the police investigation of shots [ ] fired.” Id. at 87.
With respect to conduct that involves more than mere verbal interactions with law
enforcement, obstruction may be found when a person refuses to comply with an officer’s
order. For example, the Supreme Court of Appeals of West Virginia upheld a conviction
for obstruction where the defendant was told that he was being placed under arrest and
then “struggled against arrest.” State v. Forsythe, 460 S.E.2d 742, 745–46 (W. Va.
1995). More recently, the court upheld a conviction for obstruction where the defendant
refused to obey a state trooper’s numerous orders to stand to be frisked, began a physical
altercation with the trooper, and ultimately grabbed the trooper’s baton and struck the
trooper twice on the head. State v. Lowery, No. 17-0210, 2018 WL 2193241, at *1, 5 (W.
Va. May 14, 2018) (unpublished).
Applying these principles here, we find that disputes of fact preclude a finding that
a reasonable officer in Trooper Cook’s position would have believed that probable cause
existed for Hupp’s arrest. Trooper Cook maintains that Hupp’s obstruction began when
she approached him in “an aggressive manner” and continued as she failed to comply
with his orders and “met [Trooper Cook’s order] with a verbal further noncompliance.”
J.A. 210. First, disputes of fact exist with respect to Hupp’s verbal interaction with
Trooper Cook. The video evidence shows Hupp running toward Trooper Cook, with her
arms to her side and her hands empty, after he pulled a gun on her father-in-law’s dog.
15
She testified that she said only “Whoa, whoa, don’t do that, stop.” J.A. 121–22. 5 Even if
Trooper Cook’s testimony is to be believed—that Hupp told him that he could not tell her
what to do on her property—such language is a challenge to the trooper’s authority and
does not constitute the type of menacing language found be to obstructionist in Davis.
The parties dispute, however, whether Hupp also cursed at Trooper Cook when she
approached him. Compare J.A. 210 (Trooper Cook’s testimony that Hupp was
“screaming profanities” at him) and J.A. 509 (criminal complaint describing Hupp as
“cursing”), with J.A. 122 (Hupp’s testimony that “[t]here was no cussing”) and J.A. 140
(Dalton’s testimony that Hupp was not cursing). While a reasonable jury could credit
Trooper Cook’s version of the interaction, it could instead believe Hupp that no “fighting
or insulting words or other opprobrious language” were used. Wilmoth, 373 S.E.2d at
487.
Disputes of fact also exist with respect to Hupp’s alleged failure to comply with
Trooper Cook’s order to step aside. See Lowery, 2018 WL 2193241, at *5. Trooper
Cook testified that he gave at least two orders to Hupp to step back, with which she
refused to comply. J.A. 570. Specifically, he testified that he told Hupp to “step back”;
that Hupp responded, “You can’t tell me to f-ing do that”; that he then told Hupp,
“Ma’am, I’m not asking you; I’m telling you. Step back”; and that Hupp was “coming
back with her opinions and why she’s not going to comply.” J.A. 215. The defense’s
5
The video does not contain clear audio of the incident. Therefore, we must look
to the parties’ respective deposition testimony and other evidence in the record regarding
what was said.
16
expert described three orders for Hupp to step back. J.A. 443. 6 Hupp, on the other hand,
testified that her only words to Trooper Cook were, “Whoa, whoa, don’t do that, stop”
and that she “didn’t get a chance to hear” any of Trooper Cook’s orders. J.A. 121–22.
Trooper Cook even acknowledged that Hupp had only “a split second to comply” with
his order before he grabbed her arm. J.A. 604. Clearly, there is a dispute as to whether
Hupp refused to comply with Trooper Cook’s orders or was even given the opportunity to
comply with them before she was arrested mere seconds later.
Indeed, there is evidence to suggest that, rather than defying Trooper Cook’s order
to step back, Hupp was actually acting to comply with his earlier order to restrain Buddy.
Hupp testified in deposition that she approached Trooper Cook and Buddy partly in
response to Trooper Cook’s undisputed command to “get control of the dog” or “get a
hold of your dog.” J.A. 121, 201, 569–70. Although Trooper Cook testified that Hupp
began to obstruct him when she approached him in an “aggressive manner,” J.A. 209–10,
Trooper Michael testified that Hupp’s “coming down the hill” toward Trooper Cook and
Buddy after Trooper Cook’s command to control Buddy “could be viewed as complying
with his request,” J.A. 316.
On this disputed evidence, we cannot conclude that a reasonable officer in Trooper
Cook’s position would have believed that probable cause existed for Hupp’s arrest. With
6
All of these orders, and Hupp’s responses and “opinions,” are alleged to have
been spoken in the incredibly short period of two seconds. Such a back-and-forth
exchange would seem to require more than two seconds. At this stage, however, like the
district court, we make no determination regarding the credibility of Trooper Cook’s
testimony.
17
the facts viewed in the light most favorable to Hupp, the record shows that she ran to
Trooper Cook to comply with his order to have Buddy controlled. Her arms were down
at her side and her hands visibly empty. She told Trooper Cook to stop but did not curse
at him. Yet a mere second or two later, before she heard any order to move, Trooper
Cook grabbed her arm and flung her to the ground. Such facts do not reasonably support
a charge of obstruction under West Virginia law. Accordingly, we reverse the grant of
summary judgment on the false arrest claim. 7
2. Excessive Force
Turning to Hupp’s excessive force claim, we also conclude that the district court
erred in granting summary judgment to Trooper Cook on qualified immunity grounds.
The Fourth Amendment prohibits police officers from “using excessive force to seize a
free citizen.” Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003); Graham v. Connor,
490 U.S. 386, 395 (1989). Rather, police officers are constitutionally permitted to use
only that force which is reasonable under the circumstances.
7
Appellants presented expert reports and deposition testimony from two expert
witnesses, an expert in canine behavior and an expert in police training. Appellants argue
that the expert testimony establishes the unreasonableness of Trooper Cook’s actions in
the way in which he approached Buddy and drew his gun. According to Appellants, the
district court’s failure to engage with any of their proffered expert testimony constitutes
reversible error in itself. As we have explained, the district court’s grant of qualified
immunity on the false arrest claim is reversed for reasons other than the court’s failure to
engage with the expert evidence. That being said, we note that the district court did not
address the expert testimony in its evaluation of the summary judgment motions. We
expect that upon remand, the expert testimony presented by the parties will be
appropriately addressed, including any objections to the admissibility of that testimony.
18
In determining whether excessive force was used, we consider the facts “from the
perspective of a reasonable officer on the scene,” without the “20/20 vision of hindsight.”
Graham, 490 U.S. at 397. Therefore, while we do not consider the officer’s “intent or
motivation,” Jones, 325 F.3d at 527 (quoting Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir.
1996)), we ask “whether a reasonable officer in the same circumstances would have
concluded that a threat existed justifying the particular use of force,” Elliott, 99 F.3d at
642 (citing Graham, 490 U.S. at 396–97). In answering this question, we consider
several factors, including “the severity of the crime at issue,” whether the “suspect
pose[d] an immediate threat to the safety of the officers or others,” and whether the
suspect was “actively resisting arrest or attempting to evade arrest by flight.” Graham,
490 U.S. at 396; Jones, 325 F.3d at 527. We also consider the extent of the plaintiff’s
injuries. Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994). Ultimately, we must
decide “whether the totality of the circumstances justifie[d] a particular sort of . . .
seizure.” Smith, 781 F.3d at 101 (omission in original) (quoting Tennessee v. Garner,
471 U.S. 1, 8–9 (1985)).
Here, Hupp alleges that Trooper Cook used unlawful force against her by
“grabbing and throwing” her to the ground and “pushing her against the police car.” J.A.
25. We first dispense with Hupp’s argument that because she was unlawfully arrested,
the use of any force was necessarily unconstitutional. Certainly, we may consider any
lack of probable cause for the arrest as we evaluate the reasonableness of the force used.
But we consider the crime that is alleged to have been committed in connection with our
overall analysis of all of the circumstances surrounding the use of force. See Graham,
19
490 U.S. at 396; Jones, 325 F.3d at 528–31 (explaining that the lack of any crime
committed by plaintiff weighed heavily in favor of plaintiff’s excessive force claim but
nonetheless evaluating remaining Graham factors).
Moreover, we do not make any determination as to whether Hupp’s arrest was
actually unlawful. Our finding that Trooper Cook is not entitled to qualified immunity on
the false arrest claim at this stage of litigation does not preclude a finding at a later stage
that he lawfully arrested Hupp; a trier of fact could resolve the factual disputes that
currently exist in Trooper Cook’s favor. Therefore, we cannot agree with Hupp that our
evaluation of the grant of qualified immunity on the excessive force claim turns entirely
on any lack of probable cause for her arrest. Instead, we evaluate the totality of the
circumstances surrounding the use of force against her.
In evaluating those circumstances, we note that the extent of Hupp’s injuries is
slight. The complaint alleges that Hupp suffered emotional trauma, including anxiety and
an inability to sleep, as well as physical injuries. According to her medical records, Hupp
suffered from middle and lower back pain and was diagnosed with a contusion and
lumbosacral strain two days after the incident with Trooper Cook. J.A. 543–44. The
record contains no additional evidence of injury. There is no evidence of serious or
permanent physical injuries. Cf. Rowland, 41 F.3d at 172, 174 (finding extent of injuries
significant where plaintiff suffered torn ligament in his leg, underwent two surgeries, and
remained permanently partially disabled).
Hupp’s minor injuries, however, are “but one ‘consideration in determining
whether force was excessive.’” E.W. by and through T.W. v. Dolgos, 884 F.3d 172, 185
20
(4th Cir. 2018) (quoting Jones, 325 F.3d at 530). Other factors call into question the
reasonableness of the use of force against Hupp. First, the severity of the crime for which
she was arrested is slight: obstruction is a misdemeanor. See W. Va. Code § 61-5-17(a).
When the offense is a “minor one,” we have found “that the first Graham factor weighed
in plaintiff’s favor.” Jones, 325 F.3d at 528 (citations omitted). We see no reason to find
otherwise here.
Second, the evidence suggests that Hupp did not “pose[ ] an immediate threat to
the safety of the officers or others.” Graham, 490 U.S. at 396; Jones, 325 F.3d at 528.
The district court found that this factor weighed in favor of qualified immunity, as Hupp
positioned herself between Trooper Cook and Buddy, “which could reasonably be
construed as hindering Cook’s ability to protect himself.” J.A. 620. A review of the
record, however, suggests otherwise. Hupp is a slender, short, 113-pound female.
Trooper Cook, on the other hand, weighs 200 pounds, is a trained police officer, and had
undergone training in how to identify and handle aggressive dogs months before Hupp’s
arrest. Trooper Cook was armed, had his gun drawn, and the video shows that Hupp
approached him with her arms down and hands visibly empty. Hupp stood perpendicular
to Trooper Cook, did not place herself directly in front of him or his drawn gun, and it
was only after Trooper Cook grabbed her arm that she moved in front of his weapon. In
light of these facts, we cannot agree with the district court that, as a matter of law, Hupp
posed a sufficient threat to tip the scale in Trooper Cook’s favor. See Smith, 781 F.3d at
102 (finding that second Graham factor weighed in favor of section 1983 plaintiff where
plaintiff was a “smaller woman,” officer was “a pretty good size man” as a “200-
21
something-pound man,” and officer had no reason to believe that the plaintiff was
armed); see also Rowland, 41 F.3d at 174 (finding “no threat to the officer or anyone
else” where plaintiff was not armed, officer did not suspect plaintiff was armed, and there
was no “real evidence that this relatively passive, retarded man was a danger to the
larger, trained police officer”).
Third, there is disputed evidence of Hupp’s resistance to arrest. The video depicts
a brief struggle between Hupp and Trooper Cook lasting mere seconds after he grabbed
her arm and before she fell to the ground. Trooper Cook grabbed Hupp’s arm mere
seconds after she approached him and, according to Hupp, before she had the opportunity
to hear any order that he may have given for her to move. She testified that her reaction
after having her arm seized was to try to put her arms up in surrender. J.A. 123. We
have held that a reasonable officer could not believe that the “initial act of pulling [one’s]
arm away” when an officer grabs a person “without warning or explanation” justifies the
officer’s decision to throw the person to the ground. Smith, 781 F.3d at 103.
Trooper Cook, on the other hand, testified that Hupp took a “fighting stance” with
him and that he “stiff armed” her in order to holster his weapon. J.A. 219, 571. Trooper
Cook also testified that immediately before Hupp fell to the ground, she grabbed his
clothing and cursed at him. 8 On these disputed versions of the facts, and in light of the
other Graham factors that are unfavorable to Trooper Cook, we cannot say that a
8
Hupp’s alleged grabbing of Trooper Cook is not captured in the video because
she allegedly did so when his back was turned to the camera and blocking the camera’s
view of Hupp.
22
reasonable officer would consider Trooper Cook’s use of force reasonable under the
circumstances. See Rowland, 41 F.3d at 174 (concluding that disputed versions of
plaintiff’s resistance combined with other “unfavorable” Graham factors precluded
qualified immunity on excessive force claim).
3. Malicious Prosecution
We next address Hupp’s section 1983 malicious prosecution claim. A malicious
prosecution claim brought under section 1983 “is properly understood as a Fourth
Amendment claim for unreasonable seizure which incorporates certain elements of the
common law tort.” Evans v. Chalmers, 703 F.3d 636, 646 (4th Cir. 2012) (quoting
Lambert v. Williams, 223 F.3d 257, 261 (4th Cir. 2000)); see Manuel v. City of Joliet, Ill.,
137 S. Ct. 911, 919 (2017) (“If the complaint is that a form of legal process resulted in
pretrial detention unsupported by probable cause, then the right allegedly infringed lies in
the Fourth Amendment.”). To prove such a claim, a plaintiff must show “that the
defendant (1) caused (2) a seizure of the plaintiff pursuant to legal process unsupported
by probable cause, and (3) criminal proceedings terminated in plaintiff’s favor.” Evans,
703 F.3d at 647.
There is no dispute here that Hupp was arrested, prosecuted, and acquitted. What
is disputed is whether probable cause existed for Hupp’s prosecution. On this point, the
district court determined that probable cause existed for Hupp’s arrest and that the
magistrate’s subsequent finding of probable cause rendered Hupp’s prosecution
reasonable. J.A. 624. To be sure, we have held that “[o]nce a pretrial seizure has been
rendered reasonable by virtue of a probable cause determination by a neutral and
23
detached magistrate, the continuing pretrial seizure of a criminal defendant—either by
detention or by bond restrictions—is reasonable.” Brooks v. City of Winston-Salem, N.C.,
85 F.3d 178, 184 (4th Cir. 1996). We later explained, though, that a finding of probable
cause by a neutral magistrate only “weigh[s] heavily toward a finding that [the
defendant] is immune” from suit. Merchant v. Bauer, 677 F.3d 656, 664 (4th Cir.)
(quoting Wadkins v. Arnold, 214 F.3d 535, 541 (4th Cir. 2000)), cert. denied, 568 U.S.
1068 (2012). Thus, where a police officer takes certain steps, such as first conferring
with a prosecutor about moving forward with a criminal prosecution, and a magistrate
judge later affirms the officer’s determination that probable cause exists for the
prosecution, those steps weigh in favor of a finding of qualified immunity. They do not
end the qualified immunity inquiry, however, as they “need only appropriately be taken
into account in assessing the reasonableness of [the officer’s] actions.” Id. (internal
quotation marks and citation omitted). A grant of qualified immunity still rests on our
determination that an officer acted reasonably under the circumstances.
Because a magistrate’s finding of probable cause is but a factor in our
consideration of the overall reasonableness of the officer’s actions, a defendant to a
malicious prosecution claim is not absolved from liability when the magistrate’s
probable-cause finding “is predicated solely on a police officer’s false statements.”
Manuel, 137 S. Ct. at 918. An officer who lies to secure a probable-cause determination
can hardly be called reasonable. Likewise, where an officer provides misleading
information to the prosecuting attorney or where probable cause is “plainly lacking,”
McKinney v. Richland Cty. Sheriff’s Dep’t, 431 F.3d 415, 419 (4th Cir. 2005), the
24
procedural steps taken by an officer no longer afford a shield against a Fourth
Amendment claim. This is because “[l]egal process has gone forward, but it has done
nothing to satisfy the Fourth Amendment’s probable-cause requirement.” Manuel, 137 S.
Ct. at 918–19.
Hupp contends that the magistrate’s finding of probable cause does not afford
Trooper Cook qualified immunity on her malicious prosecution claim because the
probable-cause finding rested on false statements made by Trooper Cook in the criminal
complaint against her. Specifically, Hupp asserts that the criminal complaint falsely
stated, inter alia, that she refused to comply with Trooper Cook’s orders to “step aside,”
began cursing at him, “raised her hands towards” him before he grabbed her arm, and
then grabbed at him and “began cursing” after he grabbed her arm. J.A. 509; Opening
Br. 18, 55.
We agree with Hupp that the district court’s finding of qualified immunity on this
claim was in error. As we have explained, disputes of fact preclude a finding at this stage
that a reasonable officer would have believed that probable cause existed for Hupp’s
arrest. Those disputes relate to many of the facts set forth in the criminal complaint on
which the magistrate relied. For example, there is a dispute as to whether Hupp refused
to comply with Trooper Cook’s orders for her to move or whether she was instead
attempting to obey his order to control Buddy. There is also a dispute as to whether
Hupp was cursing at Trooper Cook. Moreover, contrary to Trooper Cook’s statement in
the criminal complaint, the video clearly depicts Hupp’s hands down at her side during
25
the entirety of the few seconds before Trooper Cook grabbed her arm. It was only after
he grabbed her arm that she struggled, very briefly, with him.
If we excise the contested statements from the criminal complaint, the additional
facts available to the magistrate do not, as the district court found, provide “ample
evidence” for a probable-cause determination. J.A. 624. The district court emphasized
the fact that Hupp “stepped in between the dog and the undersigned officer,” which,
according to the district court, showed that Hupp stepped in between Buddy and Trooper
Cook as Trooper Cook was attempting to protect himself from the dog. J.A. 509, 624.
However, in the criminal complaint, Trooper Cook also clearly stated that Buddy had
“reached the end of the tether” and could not “reach” Trooper Cook. J.A. 509. Contrary
to showing that Hupp interfered with Trooper Cook’s ability to protect himself from
Buddy, the complaint established that Trooper Cook knew Buddy was no longer a danger
to him. No other basis for Hupp’s alleged obstruction of Trooper Cook is identified in
the complaint.
Given the disputes of the underlying historical facts, the supported assertion that
Trooper Cook’s statements in the criminal complaint were not entirely truthful, and the
lack of undisputed evidence that otherwise would support a probable-cause finding, we
cannot find that Trooper Cook is entitled to qualified immunity on Hupp’s malicious
prosecution claim under section 1983.
4. Common Law Malicious Prosecution
Trooper Cook’s entitlement to immunity on Hupp’s common law malicious
prosecution claim fares no better. Under West Virginia law, a plaintiff bringing a
26
malicious prosecution claim must show “(1) that the prosecution was set on foot and
conducted to its termination, resulting in plaintiff’s discharge; (2) that it was caused or
procured by defendant; (3) that it was without probable cause; and (4) that it was
malicious.” Goodwin v. City of Shepherdstown, 825 S.E.2d 363, 368 (W. Va. 2019)
(citation omitted). Where a “want of probable cause for [the] prosecution is shown by a
preponderance of the evidence,” malice may be inferred. Truman v. Fid. & Cas. Co. of
N.Y., 123 S.E.2d 59, 68 (W. Va. 1961); Morton v. Chesapeake & Ohio Ry. Co., 399
S.E.2d 464, 467 (W. Va. 1990).
The district court determined that, like with the section 1983 malicious
prosecution claim, Trooper Cook is entitled to qualified immunity on the common law
claim because probable cause existed for Hupp’s arrest. The qualified immunity
available against claims brought under section 1983 generally does not extend to
common law claims. Nonetheless, West Virginia affords immunity “from personal
liability for official acts if the involved conduct did not violate clearly established laws of
which a reasonable official would have known.” W. Va. Reg’l Jail & Corr. Facility Auth.
v. A.B., 766 S.E.2d 751, 762 (W. Va. 2014) (citation omitted). The state’s qualified
immunity doctrine borrows heavily from the analogous federal qualified immunity
jurisprudence but also requires an additional finding that the defendant’s alleged conduct
not be “fraudulent, malicious, or otherwise oppressive” to the plaintiff. Id.; Hutchison v.
City of Huntington, 479 S.E.2d 649, 659 (W. Va. 1996).
As discussed above, questions of fact exist that must first be resolved before a
court can determine that a reasonable officer in Trooper Cook’s position would have
27
believed that probable cause existed for Hupp’s arrest and prosecution. Therefore,
Trooper Cook is not entitled to immunity on Hupp’s common law malicious prosecution
claim, and the district court’s grant of summary judgment is reversed.
* * *
To summarize, qualified immunity is appropriate at this stage only if there are no
disputes of the historical facts underlying the false arrest, excessive force, and malicious
prosecution claims. As we have explained, disputes exist. Those disputes must be
submitted to a jury. The district court may then “reserve for itself the legal question of
whether [Trooper Cook] is entitled to qualified immunity on the facts found by the jury.”
Willingham, 412 F.3d at 560.
B.
We turn finally to Appellants’ claims that Trooper Cook unlawfully entered
Myers’s home and unlawfully seized electronic devices from within the home. Under the
Fourth Amendment, “searches and seizures inside a home without a warrant are
presumptively unreasonable” and, thus, presumptively unconstitutional. Payton v. New
York, 445 U.S. 573, 586 (1980); United States v. Yengel, 711 F.3d 392, 396 (4th Cir.
2013). This rule is subject to “narrow and well-delineated” exceptions, Yengel, 711 F.3d
at 396, one of which is when exigent circumstances justify the warrantless entry of a
home, Mincey v. Arizona, 437 U.S. 385, 392–94 (1978). Exigent circumstances that may
justify a warrantless entry include “the imminent destruction of evidence.” United States
v. Brown, 701 F.3d 120, 126 (4th Cir. 2012). That is, police officers may enter a home
without a warrant when they “(1) have probable cause to believe that evidence of illegal
28
activity is present and (2) reasonably believe that evidence may be destroyed or removed
before they could obtain a search warrant.” United States v. Cephas, 254 F.3d 488, 494–
95 (4th Cir. 2001) (citing United States v. Turner, 650 F.2d 526, 528 (4th Cir. 1981)).
Likewise, “[w]here law enforcement authorities have probable cause to believe that
[property] holds contraband or evidence of a crime,” warrantless seizure of the property
is permitted under the Fourth Amendment “if the exigencies of the circumstances demand
it.” United States v. Place, 462 U.S. 696, 701 (1983).
Factors to be considered in determining whether exigent circumstances justify a
warrantless entry include: “(1) the degree of urgency involved and the amount of time
necessary to obtain a warrant; (2) the officers’ reasonable belief that the contraband is
about to be removed or destroyed; (3) the possibility of danger to police guarding the site;
(4) information indicating the possessors of the contraband are aware that the police are
on their trail; and (5) the ready destructibility of the contraband.” Turner, 650 F.2d at
528. In evaluating these factors, courts consider “[t]he appearance of the scene of the
search in the circumstances presented as it would appear to reasonable and prudent men
standing in the shoes of the officers.” United States v. Reed, 935 F.2d 641, 643 (4th Cir.
1991) (alteration in original) (citations omitted).
This case does not present the usual case for exigency; it does not involve a
warrantless entry into a home to seize contraband that may be imminently destroyed. See
Cephas, 254 F.3d at 495–96 (finding exigency where officer had probable cause to
believe marijuana was inside apartment and would be destroyed if officer waited to
secure warrant); Brown, 701 F.3d at 126–27 (finding exigency where probable cause
29
existed to believe that defendant had evidence of child pornography on computers at
work that could be deleted before a warrant was obtained). Rather, this case involves a
warrantless entry into a home to seize evidence that the police officer understood would
not be destroyed. The video was taken by Hupp’s husband, and Trooper Cook conceded
that he believed Hupp’s husband was glad to have the evidence and would not want to
part with it. Ryan recorded the video as “[p]roof, if anything were to happen,” for his
wife’s benefit. J.A. 160. That is, he believed that the video could exonerate his wife, not
incriminate her. Thus, this case is unlike the “vast majority of cases in which evidence is
destroyed by persons who are engaged in illegal conduct, [where] the reason for the
destruction is fear that the evidence will fall into the hands of law enforcement.”
Kentucky v. King, 563 U.S. 452, 461 (2011).
1.
Appellants argue that the exigency test cannot be satisfied as a matter of law
because there is no evidence that Ryan Hupp intended to destroy or conceal the video.
Trooper Cook counters that there is evidence that Ryan intended to destroy or at least
conceal the video from the police before a warrant could issue. According to Trooper
Cook, Ryan was “glad to have” the video only before he realized that Trooper Cook
wanted it. Resp. Br. 39 n.150. Trooper Cook points to evidence that after he entered the
house and asked about the video, Ryan told him, “Don’t worry. I deleted it. It was on
this phone.” J.A. 258. Additionally, another of Ryan’s family members, Dalton, is heard
on the video telling Ryan not to let the troopers know that Ryan was recording them.
30
Thus, Trooper Cook asserts, it was reasonable for him to believe that if he did not enter
and seize the devices at that time, the evidence would be destroyed or concealed.
The evidence highlighted by Trooper Cook, however, is irrelevant to the exigency
analysis. This is because the “existence of exigent circumstances must be determined as
of the moment of the warrantless entry of the officers onto the premises.” Reed, 935 F.2d
at 643. Ryan’s comments to Trooper Cook about deleting the video footage were made
only after Trooper Cook had entered Myers’s home and seized three of the electronic
devices. According to Trooper Cook’s own testimony, he stepped across the threshold
into the home, asked Myers’s family members that were in the house about the location
of the video, received no response, began to seize electronic devices within sight, and
only then did Ryan “step[ ] forward from back up the hallway” and tell Trooper Cook
that he had deleted the video from his cell phone. J.A. 258–59. Similarly, Dalton’s
comments heard in the video were not made in Trooper Cook’s presence; an officer
would have heard those comments only after seizing the cell phone and watching the
video. Thus, before Trooper Cook entered the home and began seizing the devices, his
admitted understanding was that Ryan was happy to have the video footage and would
not want to destroy it. Of course, we must determine whether a reasonable person in
Trooper Cook’s position would have believed that Ryan intended to destroy the video.
On the facts presented to us, we see no reason to believe that an objective officer would
have believed any differently than Trooper Cook did—that Ryan had recorded his wife’s
arrest, was happy about having recorded it, and would not want to delete that recording.
31
Trooper Cook’s subjective understanding, however, is not the determinative
factor. Rather, we must determine whether a reasonable officer in Trooper Cook’s
position would have believed that Ryan—or another of Hupp’s family members present
at the time—was likely to destroy or conceal the video. See Reed, 935 F.2d at 643.
Based on the information available to an officer in Trooper Cook’s position at the
moment that he entered Myers’s home, we cannot say as a matter of law that no
reasonable officer would have believed that the video would be preserved while the
troopers obtained a warrant. Having heard Ryan yell to his wife not to worry because he
recorded her interaction with Trooper Cook, a reasonable officer could conclude, like
Trooper Cook initially did, that Ryan was glad to have the video and would not destroy it.
On the other hand, Hupp was believed to have committed a crime; the video documenting
that crime was recorded by Hupp’s husband; and a reasonable officer could have believed
that, as Hupp’s husband, Ryan would conceal or destroy the video evidence of her crime
before handing it over to the police. We are thus hesitant to find that, as a matter of law,
Trooper Cook unreasonably believed that the video was likely to be concealed before a
warrant could issue. Instead, the question of whether such a belief was reasonable under
the circumstances known to the officers at the time of Trooper Cook’s entry into Myers’s
home must be submitted to a factfinder.
Turning to the other exigency factors, we note that there is no evidence regarding
the time needed to secure a warrant. The record suggests, though, that there was little to
no possibility of danger to the troopers if they stood guard while a warrant was secured.
See Turner, 650 F.2d at 528. Trooper Cook testified that when he first approached
32
Myers’s house, he saw Hupp and Lindsey with a “pistol crossbow” but saw no arrows
and believed that Hupp and Lindsey “were playing with something with [sic] the creek”
next to the house. J.A. 565–66. Trooper Cook did nothing to secure the crossbow and
apparently did not consider it a threat; in fact, there is evidence that the crossbow was a
broken plastic toy that belonged to Hupp’s three-year-old son. J.A. 85, 128, 141. Buddy,
the dog believed to be vicious, was tethered at the time of Hupp’s arrest. And although
the two troopers were outnumbered by Myers’s family members, one of those family
members was a toddler, another was pregnant, and there is no evidence that any of them
were armed. Therefore, there does not appear to have been any danger to the troopers.
See Yengel, 711 F.3d at 398 (finding no exigency when officer was informed that there
was a grenade in house but other information available to officer indicated “stable nature
of the threat”); United States v. Whitehorn, 813 F.2d 646, 649 (4th Cir. 1987) (affirming
finding that exigency did not justify warrantless bomb sweep when there was no evidence
“that anyone was evacuated from the building or warned of the potential danger, or that
the agents had otherwise prepared for the risk of an exploding bomb”); cf. Reed, 935 F.2d
at 642–43 (finding exigency where police officers saw sawed-off shotgun eighteen inches
from man sleeping in a home where another man, known to carry firearms and with past
arrests for assault and brandishing weapons, resided).
Nor was the video the only corroborating evidence of Hupp’s alleged crime;
Trooper Michael was also a witness, as were several of Hupp’s family members. That
fact, coupled with the minor crime for which Hupp was arrested, suggest that the level of
urgency to obtain the video was not high. See Welsh v. Wisconsin, 466 U.S. 740, 750
33
(1984) (“Our hesitation in finding exigent circumstances . . . is particularly appropriate
when the underlying offense for which there is probable cause to arrest is relatively
minor.”).
While these other factors weigh against a finding of exigency, a jury could
nonetheless find that Trooper Cook reasonably believed that the video was at risk of
being deleted or concealed. Therefore, we decline Appellants’ invitation to find that
Trooper Cook’s entry into Myers’s home and his seizure of the electronic devices were
unreasonable as a matter of law. Instead, we remand for a trial to determine whether
Trooper Cook’s actions were reasonable. 9
2.
We also take a moment to address Trooper Cook’s view of the exigency exception
to the warrant requirement. In an era in which cell phones are increasingly used to
capture much of what happens in daily life, it is important to emphasize the limitations
that the Fourth Amendment continues to place on a state’s seizure of video evidence.
Trooper Cook testified that his regular practice is to seize any video recording that
he believes to contain evidence of a crime he is investigating. J.A. 237–39. But the
exigent-circumstances exception does not permit police officers to do what Trooper Cook
routinely does: seize video evidence without a warrant even when there is no reason to
9
Because we cannot say as a matter of law that an officer in Trooper Cook’s
position would reasonably have believed that the video evidence would be concealed or
destroyed before a warrant for the video’s seizure could be obtained, Trooper Cook is not
entitled to qualified immunity on the search and seizure claims. See Smith, 781 F.3d at
100.
34
believe that the evidence will likely be destroyed or concealed. Such a rule would allow
officers to seize as a matter of course video-recording devices from not just those
involved in an incident, but also from neighbors and other curious bystanders who
happen to record the events as they transpire. Under this view, police officers would
lawfully be permitted to enter the home of every person living nearby who stands in her
doorway or window recording an arrest, to seize her recording device, and to do so
without a warrant or her consent—simply because video evidence, by its nature, can be
easily deleted.
Such a view finds no support in our Fourth Amendment jurisprudence. While
video evidence contained in a cell phone can be easily deleted or concealed, it is not
merely the ease with which evidence may be destroyed or concealed that dictates
exigency. An officer must also have reason to believe that the evidence will be destroyed
or concealed. In short, adopting the broad definition of exigency urged by Trooper Cook
would remove the exigent-circumstances exception to the warrant requirement from the
class of “narrow and well-delineated” exceptions permissible under the Fourth
Amendment. Yengel, 711 F.3d at 396. It would convert exigency from an exception to
the rule.
IV.
For the foregoing reasons, we hold that the district court erred in granting
summary judgment to Trooper Cook on the false arrest, excessive force, malicious
prosecution, and unlawful entry and seizure claims. We also hold that the district court
35
properly denied Appellants summary judgment on the unlawful entry and seizure-of-
devices claims. Accordingly, the district court’s order denying Appellants’ partial
summary judgment motion on the search and seizure claims is affirmed and its order
granting summary judgment to Trooper Cook is reversed. This matter is remanded to the
district court for trial on each of Appellants’ claims.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
36