PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHERMAN O. PORTERFIELD,
Plaintiff-Appellee,

v.

LEON LOTT; FAYE ANTHONY; BERRY
BROWN,
Defendants-Appellants,
                                                                   No. 97-2254
and

RICHLAND COUNTY, a political
subdivision; RICHLAND COUNTY
SHERIFF'S DEPARTMENT; JOHN DOE;
RICHARD ROE; STATE OF SOUTH
CAROLINA,
Defendants.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew N. Perry, Jr., Senior District Judge.
(CA-95-2155-3-10)

Argued: April 7, 1998

Decided: September 22, 1998

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Niemeyer wrote
the opinion, in which Judge Murnaghan and Judge Motz joined.

_________________________________________________________________
COUNSEL

ARGUED: Andrew Frederick Lindemann, ELLIS, LAWHORNE,
DAVIDSON & SIMS, P.A., Columbia, South Carolina, for Appel-
lants. Thomas Keith Fowler, Jr., Columbia, South Carolina, for
Appellees. ON BRIEF: William H. Davidson, II, James M. Davis,
Jr., ELLIS, LAWHORNE, DAVIDSON & SIMS, P.A., Columbia,
South Carolina, for Appellants.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

After money laundering and drug trafficking charges were unsuc-
cessfully prosecuted by Richland County, South Carolina officials
against Sherman Porterfield, Porterfield sued three sheriff's deputies
under 42 U.S.C. § 1983 for arresting him and pressing the charges
against him without probable cause. The district court denied the dep-
uties' claims of qualified immunity, giving no reasons for its ruling.
For the reasons that follow, we reverse.

I

In 1990, the Internal Revenue Service became concerned that drug
dealers in Richland County, South Carolina, were buying automobiles
with drugs and cash, thereby laundering drug money and avoiding
federal income reporting requirements. In a joint investigation with
the Richland County Sheriff's Department, the officials began investi-
gating automobile dealerships through the use of informants known
to the Sheriff's Department. A number of tips indicated that drug
dealers were buying automobiles from a dealership known as
"Wright's on Main," which was owned by Larry Wright and was
located at 2521 Main Street in Columbia, South Carolina.

Shane Thompson, an informant used previously by the Sheriff's
Department, was arrested in early 1991 for unrelated cocaine traffick-
ing and, after his arrest, informed a Richland County deputy sheriff
that he had negotiated the purchase of an automobile at Wright's on

                    2
Main for cash and drugs. He indicated that he had agreed with Sher-
man Porterfield, a salesman at the dealership, to purchase a 1986
Mercedes Benz 190E automobile in exchange for $10,000 in cash and
four ounces of powder cocaine which had a value of approximately
$4,000 - $5,600. At the Sheriff's Department's request, Thompson
agreed to pursue the transaction while being "wired."

The Mercedes Benz under negotiation had been consigned to
Wright's on Main under an agreement by which the dealership prom-
ised to pay the consignor $12,300 if the car was sold. And if the
dealership was unable to sell the car, the consignor would pay the
dealership $300 for its "marketing services." The dealership listed the
car at retail for $16,995.

To consummate the purchase of the Mercedes Benz, Thompson
called Porterfield at Wright's on Main on February 14, 1991, record-
ing the conversation. During this conversation, Thompson told Porter-
field that he had been "paid by the insurance company," which was
apparently code for his possession of drug money, and that he wanted
to consummate the deal the following day. The following exchange
about the cocaine, referred to as "blow," then took place:

          THOMPSON: I got all my duckies together. But yo,
          this the move. I really don't, you know,
          I really don't want to talk over the
          phone to[o] much.

          PORTERFIELD: That's good.

          THOMPSON: But know, I want to come to with all the
          cash tomorrow, Sherman. Tomorrow
          after I get out of school. See what I'm
          saying. I'm going to bring it in a brown
          paper bag. But I'm not bringing no
          money in. I going to leave everything in
          the trunk of the car til you tell me to
          bring it in.

          PORTERFIELD: Got you covered.

                    3
          THOMPSON: Okay. Now thing I need to find out from
          you. Is that I'm going to bring ten in
          cash and I'm bring four thousand in
          blow. Do you want me to leave it in the
          car or do you want to bring it to you at
          the job? Or what you want me to do?
          Tell me now.

          PORTERFIELD: Cold, leave the blow out.

          THOMPSON: Okay, Okay. Alright.

          PORTERFIELD: Don't even do that.

          THOMPSON: Don't even do that. Okay, you just want
          me to bring you ten to you in cash.

          PORTERFIELD: Right.

On the next day, February 15, Thompson and an undercover nar-
cotics agent went to the dealership to consummate the transaction
with Porterfield. They drove one of the dealership's rental cars that
Porterfield had arranged for Thompson to drive. Thompson was again
"wired" with a recording device and carried $10,000 in cash. The four
ounces of powder cocaine were placed in the trunk of the car. During
his meeting with Porterfield, Thompson told Porterfield he wanted to
have the title to the car put in a family member's name so that it
would not be subject to criminal forfeiture, as had happened to
another drug dealer known as "JuJu." As Thompson explained to
Porterfield, "If I go down or if I get popped or I take a lick. That way
they can't touch my shit, cause it ain't in my name. You understand.
It's in somebody in my family, you understand, in their name."
Porterfield agreed, "I can do it like that." Porterfield then had Thomp-
son count the cash in front of him, and after Thompson counted out
$10,000, Porterfield stated, "You and I right." Thompson confirmed,
"You're on," and Porterfield added, "This is business." Before pro-
ceeding further with the transaction, however, Porterfield instructed
Thompson to remove his jacket to "let me see if you are straight."
Porterfield explained, "Nothing personal. We business partners now."

                    4
When Thompson removed his jacket, Porterfield noticed the record-
ing device which was taped to Thompson's shoulder and angrily ter-
minated the meeting, telling Thompson to leave. Although Thompson
later attempted to rehabilitate the transaction, Porterfield refused to
deal with him any further.

The sheriff's deputies, including the three defendants, held a meet-
ing and concluded that even though the transaction had not been con-
summated, they had probable cause to arrest Porterfield for money
laundering and cocaine trafficking. Nevertheless, they elected to pre-
sent their information to a magistrate who issued a warrant for Porter-
field's arrest. Porterfield was arrested at the dealership on February
22, 1991, and released on bond.

Several months later, a grand jury indicted Porterfield on one count
of drug trafficking and two counts of money laundering. Following
a trial, a state jury convicted Porterfield of one count of money laun-
dering in connection with the $10,000 transaction for the Mercedes
Benz and acquitted him on the other two counts. The trial judge sen-
tenced Porterfield to 20 years imprisonment, suspended to 5 years ser-
vice with 5 years probation. Porterfield appealed his conviction, and,
in a case of first impression, the South Carolina Court of Appeals
reversed the conviction, concluding that the state money laundering
statute required the transaction to include the actual proceeds of ille-
gal drugs. Since the $10,000 in this case came from the Sheriff's
Department's bank account, the statute had not been satisfied. See
State v. Porterfield, 454 S.E.2d 351, 352-53 (S.C. Ct. App. 1995).

Thereafter, Porterfield filed this action under 42 U.S.C. § 1983
contending that he was arrested and imprisoned without probable
cause. He asserted claims for (1) false arrest in violation of the Fourth
Amendment; (2) malicious prosecution in violation of the Fourth
Amendment; (3) illegal search and seizure in violation of the Fourth
Amendment; (4) infringement of his right of privacy in violation of
the Fourth Amendment; (5) conspiracy to violate his constitutional
rights in violation of 42 U.S.C. § 1985; and (6) several pendent state
law claims. Pursuant to a consent order and a motion for summary
judgment, the district court dismissed all of Porterfield's claims
except three claims asserted against the three Richland County sher-
iff's deputies in their individual capacities for false arrest, malicious

                     5
prosecution, and illegal search. The court also rejected the defen-
dants' claims for qualified immunity.

The sheriff's deputies noticed this interlocutory appeal from the
district court's order denying them qualified immunity. See Mitchell
v. Forsyth, 472 U.S. 511, 530 (1985).

II

To avoid "excessive disruption of government," a qualified immu-
nity is recognized to protect government officials performing discre-
tionary functions from civil damage suits "insofar as [the officials']
conduct does not violate clearly established rights of which a reason-
able person would have known." Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Officials lose the protection of the immunity if they vio-
late a constitutional or statutory right of the plaintiff and the right was
clearly established at the time of the alleged violation such that an
objectively reasonable official in the defendants' position would have
known of it. See id. We summarized these requirements in Pritchett
v. Alford, 973 F.2d 307, 312 (4th Cir. 1992):

          Ruling on a defense of qualified immunity therefore requires
          (1) identification of the specific right allegedly violated; (2)
          determining whether at the time of the alleged violation the
          right was clearly established; and (3) if so, then determining
          whether a reasonable person in the officer's position would
          have known that doing what he did would violate the right.

It is thus clear that the degree of knowledge of the law imputed to
government officials is that imputable generally to a reasonable offi-
cial. Accordingly, "all but the plainly incompetent or those who
knowingly violate the law" are protected. Malley v. Briggs, 475 U.S.
335, 341 (1986). And we have added, "officials are not liable for bad
guesses in gray areas; they are liable for transgressing bright lines."
Maciarello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). It also fol-
lows that if no right is transgressed, our inquiry ends, because govern-
ment officials cannot have known of a right that does not exist. See
Jackson v. Long, 102 F.3d 722, 728 (4th Cir. 1996).

                     6
The significant deference given to the judgment of government
officials acting in good faith is particularly appropriate in cases
involving law enforcement officials investigating serious crimes. The
police must have the ability to move swiftly to solve crimes or to
apprehend dangerous criminals before evidence is destroyed or
becomes stale, witnesses die or vanish, or a suspect has a chance to
escape or to repeat the crime. "The ability of police officers to protect
the public can be severely hampered . . . if their every decision is sub-
ject to second-guessing in a lawsuit." Torchinsky v. Siwinski, 942 F.2d
257, 261 (4th Cir. 1991). Qualified immunity thus provides a "safe-
harbor" from tort damages for police officers performing objectively
reasonable actions in furtherance of their duties. This is necessary
because even the fear of personal financial liability might inhibit them
from the conscientious discharge of their duties. Id. at 260-61.

With these principles in hand, we turn to address the question of
whether the three sheriff's deputies in this case violated clearly estab-
lished rights of Porterfield of which they should have known at the
time. In other words, we must determine whether the sheriff's depu-
ties were plainly incompetent or knowingly violated the Fourth
Amendment in seeking a warrant to arrest Porterfield, in arresting
him, and in conducting a search in connection with the arrest.

III

The sheriff's deputies contend that they could not have committed
a tort of false arrest in violation of the Fourth Amendment because
they were acting pursuant to a facially valid arrest warrant. We agree.

In Brooks v. City of Winston-Salem, 85 F.3d 178 (4th Cir. 1996),
we held that a public official cannot be charged with false arrest when
he arrests a defendant pursuant to a facially valid warrant. At most,
such an official can be pursued through a cause of action for mali-
cious prosecution. In Brooks, as in the case before us, the plaintiff
sued police officers on the grounds that his arrest was not supported
by probable cause and that his prosecution was pursued by officials
who knew of his innocence. Relying on Heck v. Humphrey, 512 U.S.
477, 483-84 (1994), we looked to the most analogous state-law torts
as a starting point for analyzing the claim:

                     7
          At common law, allegations that a warrantless arrest or
          imprisonment was not supported by probable cause
          advanced a claim of false arrest or imprisonment. . . . How-
          ever, allegations that an arrest made pursuant to a warrant
          was not supported by probable cause, or claims seeking
          damages for a period after legal process issued, are analo-
          gous to the common-law tort of malicious prosecution.

Id. at 181-82 (citations omitted). Thus, we recognized implicitly that
a claim for false arrest may be considered only when no arrest warrant
has been obtained.

Since the parties in this case do not dispute the fact that the sher-
iff's deputies obtained a facially valid arrest warrant from a magis-
trate prior to Porterfield's arrest, no "false arrest" of Porterfield could
have occurred. To the extent, therefore, that Porterfield avers that the
sheriff's deputies acted unlawfully in arresting him, the allegations
must be relevant only to his claim for malicious prosecution. And
since Porterfield's right to be free from false arrest was not violated,
he cannot allege that the sheriff's deputies violated a clearly estab-
lished right of which a reasonable person would have known.

IV

The sheriff's deputies also contend that the district court erred in
rejecting their claim of qualified immunity from Porterfield's allega-
tions that they maliciously prosecuted him without probable cause, on
fabricated evidence, and in violation of the Fourth Amendment. They
argue that their actions were objectively reasonable because there was
probable cause, as a matter of law, to arrest Porterfield and because
they acted in good faith in seeking the warrant used to arrest him. The
sheriff's deputies also argue that the objective reasonableness of their
actions was confirmed by the similar but independent decisions of (1)
the magistrate, who found probable cause and therefore decided to
issue the arrest warrant; (2) the prosecutor, who elected to prosecute
Porterfield; (3) the grand jury, which found probable cause that
Porterfield had committed a crime and therefore indicted him; (4) the
jury, which found beyond a reasonable doubt that Porterfield violated
the South Carolina money laundering statute; and (5) the state trial
judge, who, based on the evidence presented at trial, denied Porter-

                     8
field's motion for judgment of acquittal. These contentions raise ques-
tions of whether the deputies had probable cause to arrest Porterfield
and, if so, whether they accurately communicated that probable cause
to the magistrate.

Probable cause to justify an arrest arises when"facts and circum-
stances within the officer's knowledge . . . are sufficient to warrant
a prudent person, or one of reasonable caution, in believing, in the cir-
cumstances shown, that the suspect has committed, is committing, or
is about to commit an offense." Michigan v. DeFillippo, 443 U.S. 31,
37 (1979); see also Brinegar v. United States , 338 U.S. 160, 175-76
(1949); Taylor v. Waters, 81 F.3d 429, 434 (4th Cir. 1996); Wilkes v.
Young, 28 F.3d 1362, 1365 (4th Cir. 1994). Probable cause requires
more than "bare suspicion" but requires less than evidence necessary
to convict. United States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998).
"It is an objective standard of probability that reasonable and prudent
persons apply in everyday life." Id. And when it is considered in the
light of all of the surrounding circumstances, even"seemingly inno-
cent activity" may provide a basis for finding probable cause. Taylor,
81 F.3d at 434.

Considering all of the surrounding circumstances in this case, we
conclude that the sheriff's deputies were amply justified in believing
that Porterfield was engaging in criminal activity by attempting to sell
a Mercedes Benz for cash and drugs. First, there was evidence that
known drug dealers were buying cars at the dealership at which
Porterfield worked, paying cash and drugs for the vehicles. Second,
Thompson told the sheriff's deputies that he had negotiated an agree-
ment with Porterfield to buy a Mercedes Benz for $10,000 in cash
plus four ounces of powder cocaine. In furtherance of that alleged
agreement, Thompson returned to the dealership under police supervi-
sion and proceeded to finalize the transaction, which was not denied
or rejected by Porterfield until he searched Thompson and found a
"wire." Third, the sheriff's deputies overheard Thompson's conversa-
tion with Porterfield about whether to bring the cocaine to the dealer-
ship. While the conversation per se was unclear whether Porterfield
was telling Thompson to leave the cocaine in the trunk and out of the
dealership or to leave it out of the transaction altogether, Porterfield
agreed with Thompson that it was not good to talk over the telephone
too much. Moreover, Porterfield did not seem surprised that drugs

                    9
were being discussed as part of the transaction. Thus, even in light of
Porterfield's repeated assertions that his statement in the telephone
conversation, "cold, leave the blow out," was ambiguous, the sheriff's
deputies could reasonably have concluded that Porterfield simply
meant that Thompson should "leave the blow out[side in the car]."
Fourth, Porterfield's actions during the attempted completion of the
deal were highly suspicious. He agreed to place title in someone other
than Thompson so that the Mercedes Benz could not be taken from
Thompson in a forfeiture proceeding, as had actually happened to
"JuJu," a drug dealer who had previously bought a car from the
dealership. He also checked Thompson for a wire before completing
the transaction in order to determine if Thompson was "straight." In
sum, given the clientele to whom the dealership appeared to have
been catering, the lack of any reaction to or rejection by Porterfield
of the references to illegal activity, and Porterfield's search of
Thompson for a wire before he would go any further with the deal,
the deputies could have reasonably believed that Porterfield was par-
ticipating in a deal to sell a car for cash and drugs as asserted to them
by Thompson.

The deputies also could have reasonably believed that Porterfield
believed he was accepting $10,000 in drug proceeds. The deputies'
belief was supported by evidence that Porterfield was told that the
$10,000 payment was from the "insurance company" and that the dep-
uties understood this to be code for drug proceeds, that Thompson
told Porterfield he was bringing those proceeds to the dealership in
the form of cash, that Thompson was bringing the proceeds in a
brown paper bag, that Porterfield agreed to place title to the car in
someone other than Thompson to help Thompson avoid forfeiture (as
happened to a drug dealer named "JuJu," who was another customer
of the dealership), and that after Thompson counted out the $10,000,
Porterfield would not take the $10,000 until he had determined that
Thompson was "straight," i.e., not wired.

Rather than arrest Porterfield on the spot, however, the sheriff's
deputies took the additional procedural step of seeking an arrest war-
rant for Porterfield from a magistrate based on the information that
they had. Porterfield was thus arrested not upon what the sheriff's
deputies believed, but upon the warrant that the magistrate issued.
The Supreme Court has held that when a police officer acts pursuant

                     10
to a warrant, he is entitled to qualified immunity if he could have rea-
sonably believed that there was probable cause to support the applica-
tion. See Malley, 475 U.S. at 344-45 ("Only where the warrant
application is so lacking indicia of probable cause as to render official
belief in its existence unreasonable will the shield of immunity be
lost" (citation omitted)). Since there were sufficient indicia of proba-
ble cause to arrest Porterfield, as we have indicated already, it follows
that there were sufficient indicia of probable cause to seek a warrant.

Porterfield maintains that the warrant was invalid because it rested
upon falsehoods, particularly the sheriff's deputies' interpretation of
the statement "cold, leave the blow out," which, he contends, clearly
manifested his desire not to deal in drugs with Thompson. As we have
already noted, however, when this statement is viewed in light of the
surrounding circumstances of this case -- for example, Porterfield's
decision to proceed with the transaction, his willingness to manipulate
the title papers to avoid forfeiture, and his search of Thompson for a
wire -- this statement was not sufficient to convey to the sheriff's
deputies that Porterfield did not intend to sell the car in exchange for
drugs, as maintained by Thompson. And even if the statement clearly
communicated Porterfield's desire not to deal cocaine, it did nothing
to dispel the sheriff's deputies' belief that Porterfield believed he was
accepting and thereby laundering what he believed to be drug money.
Although the money laundering conviction was later reversed on
appeal as a technical matter of statutory construction, qualified immu-
nity jurisprudence, as well as common sense, forbids us from charg-
ing the sheriff's deputies with the foresight to anticipate that even
though the prosecutor, the judge, and the jury would all agree with
them that Porterfield had attempted to launder money, the South Car-
olina Court of Appeals would reverse this decision as a matter of law
in a case of first impression.

We should also note that in this case there are additional external
indicators that Porterfield was in fact engaged in illegal activity, indi-
cators that became known to the prosecutor, the grand jury, the judge,
and the jury. In addition to the facts that the sheriff's deputies had
before them at the time they applied for the arrest warrant, the con-
signment agreement for the Mercedes Benz, recovered in the search
of the dealership incident to Porterfield's arrest, revealed that if
Porterfield had sold the car for only $10,000, the dealership would

                     11
have realized a $2,300 loss, but that if he had not sold the car at all,
the dealership would have realized a $300 gain. In other words, there
was no economic reason for Porterfield to have sold the automobile
for only the $10,000 in cash. And in light of this extrinsic evidence,
it is further unlikely that Porterfield's statement,"cold, leave the blow
out," can reasonably be interpreted as anything but an instruction to
leave the cocaine worth over $4,000 in the dealership's rental car for
later collection.

In short, the sheriff's deputies did not violate any of Porterfield's
rights against malicious prosecution of which a reasonable person
would have known, and they were, therefore, entitled to qualified
immunity on the malicious prosecution claims.

V

Finally, the sheriff's deputies contend that the district court erred
in rejecting their assertion of qualified immunity from Porterfield's
claim for an illegal search.

In his second amended complaint, Porterfield seems to allege that
the search incident to his arrest was performed illegally and without
probable cause and that the sheriff's deputies did not act in good faith
in executing his arrest, all of which violated his Fourth Amendment
rights. It is well settled, however, that searches incident to a lawful
arrest do not violate the Fourth Amendment. See, e.g., United States
v. Nelson, 102 F.3d 1344, 1346 (4th Cir. 1996). Because the search
of Porterfield was effected pursuant to a valid warrant supported by
probable cause, the search did not run afoul of Porterfield's Fourth
Amendment right to be free from unreasonable searches.

In sum, because the sheriff's deputies in this case were entitled to
qualified immunity on each of Porterfield's claims against them in
their individual capacities, the district court's order rejecting qualified
immunity is reversed. We remand this case to the district court with
instructions to dismiss it on the basis of qualified immunity.

REVERSED AND REMANDED

                     12
