                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-1791


DANNY ROWELL,

                Plaintiff - Appellant,

           v.

CITY OF HICKORY; T. E. HUNT,

                Defendants - Appellees.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Dennis L. Howell,
Magistrate Judge. (5:07-cv-00075-DLH)


Argued:   May 13, 2009                    Decided:   August 27, 2009


Before NIEMEYER, Circuit Judge, C. Arlen BEAM,        Senior Circuit
Judge of the United States Court of Appeals          for the Eighth
Circuit, sitting by designation, and Joseph F.        ANDERSON, Jr.,
United States District Judge for the District of     South Carolina,
sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Phyllis Lile-King, PINTO, COATES, KYRE & BROWN, PLLC,
Greensboro, North Carolina, for Appellant.      Patrick Houghton
Flanagan, CRANFILL, SUMNER & HARTZOG, LLP, Charlotte, North
Carolina, for Appellees. ON BRIEF: Bradley P. Kline, CRANFILL,
SUMNER & HARTZOG, LLP, Charlotte, North Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

        This is an appeal of a grant of summary judgment in a

lawsuit     seeking        damages         arising           out        of     an      allegedly

unconstitutional      arrest.          The       defendants         below,       who    are    the

appellees here, are the City of Hickory, North Carolina, and one

of its police officers, named in his official capacity.                                        The

lower court granted summary judgment to the City of Hickory on

several    grounds,       one   of    which         was    that    the       appellant,      Danny

Rowell (“Rowell”), failed to present evidence that his allegedly

unconstitutional arrest was the result of the implementation of

an official policy, custom, or practice of the City of Hickory.

Because this conclusion is sound, we affirm.



                                                I.

     Rowell    met    a    gentleman        named         Ronald    Eddings         while     on   a

business    trip     in    Hickory         in       December       of    2004.         The     two

apparently met at the hotel where Rowell was staying and spent

the day drinking beer in and around the hotel.                                      After they

exhausted the initial supply of beer, the two men took Rowell’s

car to purchase more.             According to Rowell, he allowed Eddings

to drive the car because he (Rowell) felt it imprudent to drive

after    drinking.        After      the   two       men    returned         from    purchasing

beer, Eddings asked to borrow Rowell’s car.                             Rowell agreed, but

on the condition that he come along while Eddings drove.

                                                2
       The   parties   present   different     versions    of    what    happened

next.    Officer T.E. Hunt of the Hickory police department avers

that he observed Rowell’s car traveling in the wrong lane of the

road and that he had to quickly maneuver his police car in order

to avoid a head-on collision with Rowell’s car.                   Officer Hunt

alleges that he then turned his police car around, activated his

traffic lights, and initiated a traffic stop.                   Rowell contends

that    Officer    Hunt’s   version       of   events     is    not     accurate.

According to Rowell, Eddings was not operating the car in an

unusual manner.        Rowell contends that the two men noticed a

police car following behind them and that Officer Hunt initiated

the traffic stop after Eddings turned into a parking lot.

       There is also some dispute about what happened during the

traffic stop, but none of it appears to be material.                       After

Officer Hunt approached the car, Eddings informed the officer

that he did not have a valid driver’s license.                    Officer Hunt

arrested     Eddings   after     verifying     this   information.         After

securing Eddings in the police car, Officer Hunt returned to

question Rowell, who by all accounts had not behaved unusually

during any portion of the traffic stop.               After Rowell informed

Officer Hunt that he owned the car, Officer Hunt placed Rowell

under arrest for aiding and abetting the unlicensed operation of

a motor vehicle.



                                      3
      After    securing       Rowell    in       the   police    car,    Officer     Hunt

conducted a search of Rowell’s vehicle.                      In the search, Officer

Hunt discovered a small amount of a hard, white substance which

Officer   Hunt    attested      to     believing,       based     on    his   knowledge,

experience, and training, to be cocaine base; commonly known as

“crack”     cocaine.       Officer      Hunt       confronted      Rowell     with   the

suspected contraband and Rowell claims to have declared that it

was not cocaine base and that he had no drugs in the vehicle.

Officer Hunt seized the suspected controlled substance and took

both Eddings and Rowell before a magistrate.                            The magistrate

determined that Rowell’s arrests for the traffic violation and

for   possession    of    a    controlled         substance      were    supported    by

probable cause.     R.O.A. 750. 1

      It is around this point that the timeline of this case took

an unfortunate turn.           Rowell posted bond the morning after his

arrest, but lost his job shortly thereafter as a result of the

arrest.       R.O.A. 329, 333.           Although Rowell had a relatively

quickly   scheduled       preliminary        date      in    court,     the   case   was

continued     several     times.         Rowell        was      appointed     a   public

defender.      R.O.A. 337.           It appears that in February of 2005,


      1
       We granted appellant leave to use the original record on
appeal.   Citations in this opinion will therefore sometimes be
to the record on appeal (“R.O.A.”), and at other times be to the
joint appendix (“J.A.”). J.A. 47.



                                             4
Rowell believed the matter to be closed and decided to move to

Virginia.     R.O.A. 341.     The matter was not closed, however, and

in April of 2005, which was about four months after Rowell’s

arrest, a grand jury in North Carolina returned an indictment

charging     Rowell    with   aiding       and   abetting    the    unlicensed

operation of a motor vehicle and with possession of cocaine.

R.O.A. 766.     When Rowell was thereafter arrested in Virginia in

connection with what appears to have been a minor fracas at a

bar, the Virginia police discovered the pending North Carolina

charges.      R.O.A.   348.    While       awaiting   extradition    to   North

Carolina, Rowell spent about twenty days in a Virginia jail.

R.O.A. 352.     Rowell spent about thirty additional days in jail

after he returned to North Carolina before he could post bond.

R.O.A. 355.    Rowell secured a different public defender, and the

case was set for trial in January of 2006.                   R.O.A. 356-58.

Rowell hired an attorney shortly before his trial date, the case

was continued again, and Rowell’s attorney eventually phoned him

in the Spring of 2006 to tell him that the charges had been

dismissed.    R.O.A. 359, 361.     The dismissal came about because a

laboratory report issued by the North Carolina State Bureau of

Investigation concluded that the suspected cocaine seized from

Rowell’s car was in fact aspirin.           R.O.A. 12, 14.

     Rowell filed this lawsuit in May of 2007, J.A. 5, and the

defendants removed the case to federal court, J.A. 1.                  Spelled

                                       5
out in seven causes of action, Rowell’s complaint contended that

the stop of his car was without probable cause; that the search

of the car was unreasonable; that Rowell’s criminal charges were

not     supported     by    probable       cause;        that     false     evidence      was

presented      to   the    North    Carolina          grand   jury;      that    Rowell   was

extradited from Virginia without probable cause; and that the

defendants were negligent in failing to reasonably investigate

Rowell’s criminal charges.                 J.A. 8-13.            Rowell contended that

these actions gave rise to liability in damages under 42 U.S.C.

§ 1983 (for violations of his Fourth and Fourteenth Amendment

rights), and under North Carolina’s common law.                          Id.

        By the parties’ consent, the case came before a magistrate

judge    on   cross-motions        for     summary       judgment.         Noting    that   a

lawsuit against a municipal employee “in his official capacity”

is a suit against the municipality, the magistrate dismissed the

claims      against   Officer       Hunt    as    “redundant.”            J.A.    21.     The

magistrate then granted summary judgment to the City of Hickory

on    the     grounds      that    Rowell’s           evidence     did    not     show    any

deficiency in the city’s training, policies, and practices in

operating its police department.                      J.A. 30.     Along the way, the

magistrate excluded a portion of Rowell’s expert’s testimony and

concluded that Officer Hunt’s stop of the car, Rowell’s arrest,

and the search of the car were supported by probable cause.                               The

magistrate      similarly         disposed       of    Rowell’s     state-law       claims;

                                             6
finding that a claim for false imprisonment does not lie when

the     complained-of         imprisonment               is       an    arrest          supported       by

probable cause.         J.A. 41.         This appeal followed.



                                                   II.

       We     review    a    grant       of       summary         judgment         de    novo.        CACI

Intern., Inc. v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150,

155 (4th Cir. 2009).

       Rowell raises six issues on appeal, contending that the

magistrate erred in adopting Officer Hunt’s version of the facts

in    resolving       the    probable         cause          questions;          in     excluding      the

testimony of Rowell’s offered expert; in concluding that the

stop    and     arrest       were     supported              by    probable           cause;     and    in

concluding       that        the     City          of        Hickory         did        not    have     an

unconstitutional            policy,      custom,         or       practice.             If    Rowell    is

wrong    on    this    last     point         —    that       is,      if    the      magistrate       was

correct in concluding that there is no evidence in this case of

a    policy,    practice,       or    custom            of    the      City      of     Hickory    which

caused a deprivation of Rowell’s constitutional rights — the

other questions Rowell raises are academic matters.                                          We conclude

that    Rowell    is     wrong      on    the       point         and       we   therefore       do    not

address his remaining contentions.

       “Local governing bodies . . . can be sued directly under §

1983 for monetary, declaratory, or injunctive relief where . . .

                                                    7
the action that is alleged to be unconstitutional implements or

executes a policy statement, ordinance, regulation, or decision

officially         adopted       and   promulgated           by   that      body’s     officers.”

Monell v. Dep’t of Soc. Serv. of the City of N.Y., 436 U.S. 658,

690   (1978).         “[A]       municipality          cannot     be     held      liable    solely

because       it    employs       a    tortfeasor        .    .   .    in     other        words,      a

municipality cannot be held liable under § 1983 on a respondeat

superior theory.”              Id. at 691 (emphasis in original).                          “Instead,

it is when execution of a government’s policy or custom, whether

made by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy, inflicts the injury

that the government as an entity is responsible under § 1983.”

Id. at 694.          “[T]he inadequacy of police training may serve as

the basis for § 1983 liability,” but “only where the failure to

train    amounts          to   deliberate         indifference           to     the    rights         of

persons with whom the police come into contact.”                                   City of Canton

v. Harris, 489 U.S. 378, 388 (1989).

      At trial, Rowell focused on what he contended was Hickory

police    department’s            policy    of     arresting          individuals          for    drug

offences without confirming that what the officer suspects is

drugs    is    in     fact       drugs.      Appellee’s           Brief       at    30.       Rowell

contended          that    the     failure        to    confirm        the      presence         of    a

controlled          substance,         in   the        circumstances          of     his    arrest,

amounted to the arrest lacking probable cause.                                  As Rowell sees

                                                  8
it, “where the policy of the department is to not require field

testing,       which    arguably          would       always    provide       the    threshold

probable cause for an arrest, the department bears that much

more    responsibility            for     training      and     procedures         that    assure

probable cause supports its arrests.”                        Id. at 31.

       In City of Canton, the case which provides the standard for

this    type    of     liability,         the    court       spoke    of    the    “deliberate

indifference”           a         municipality           must        show      towards         the

constitutional rights of others, and the court described such

indifference through specific examples.                           One example noted in

that case was a policy of vesting shift commanders with the sole

discretion to determine when an individual in police custody

needed medical attention.                  By vesting the commanders with this

discretion, the argument went that the municipality had a duty

to provide the shift commanders with some medical instruction to

guide   them     in    making          those    decisions.           489    U.S.    at    381-82.

Another    example          was    a    city’s        providing      of     firearms      to   its

officers.       When a city does so, the court recognized the city’s

duty to train officers in the constitutional limitations on the

use of deadly force.                   Id. at 390 n.10.              In both examples the

court    focused       on    specific          types    of     discretion      entrusted        to

municipal       employees,          the    municipality’s            need     to    train      its

employees in exercising that discretion, and the harm of not

providing such training.

                                                  9
       Rowell’s claim is of a different sort.                       The City of Hickory

gave   Officer       Hunt    the    power    to    arrest     individuals       for     drug

offences, but there is no dispute that Officer Hunt received

instruction      in    constitutional        law,       including      the    requirement

that    an    arrest        be   supported        by    probable       cause,     and     in

identifying controlled substances.                     Rowell simply contends that

Officer      Hunt’s     training      didn’t        sink      in.       We     have     been

instructed, however, that the fact “[t]hat a particular officer

may be unsatisfactorily trained will not alone suffice to fasten

liability on the city, for the officer’s shortcomings may have

resulted from factors other than a faulty training program.”

Id. at 390-91.          Rowell does not point to specific deficiencies

in   the     Basic    Law     Enforcement         Training     Course     Officer       Hunt

completed at community college, nor does he point to deficient

aspects of Officer Hunt’s field training during his period of

probationary employment with the City of Hickory.                            His claim is

that Officer Hunt did not understand the concept of probable

cause, that he inaccurately identified a tablet of aspirin as

cocaine, and that because the City of Hickory put him on patrol,

the City of Hickory is responsible.                    This is exactly the type of

case City of Canton noted would not measure up.

       Rowell    also       fails    to     allege      how    providing       additional

training would have made a difference in these circumstances.

The only evidence we have in this case is that in the course of

                                            10
a   search    incident    to    an     arrest,     Officer     Hunt      discovered      a

substance     which    he      attested       to   believing,         based      on    his

knowledge,     training,       and     experience,       to    be     cocaine         base.

Although     Officer   Hunt’s        belief    turned    out   to     be   inaccurate,

Rowell has not pointed us to how the City of Hickory caused

Officer Hunt’s analysis to be flawed or unreasonable, and Rowell

has not provided other examples of similar police encounters in

the City of Hickory which might be fairly said to put the city

on notice that its police officers made a habit of incorrectly

identifying benign substances as illegal drugs.                     In short, there

is nothing suggesting that the city can be fairly said to have

been “deliberately indifferent” to the constitutional rights of

its   citizens.        Rowell        simply     posits    that      if     the    police

department does not have a policy of field testing, it needs to

train its officers to identify controlled substances with more

accuracy.      This proposition is not persuasive.                       We have been

instructed that “adequately trained officers occasionally make

mistakes,” and “the fact that they do says little about the

training     program     or    the    legal     basis    for    holding       the     city

liable.”     Id. at 391.

      Rowell’s attempt to hamstring the city into liability by

citing to statements by Officer Hunt and his supervisor that the

arrest was “textbook” and “in conformance with official policy”

do not help the case meet this threshold.                     Officer Hunt thought

                                          11
the arrest was “textbook” because he believed the arrest to be

supported by probable cause.                     This belief was apparently shared

by Hunt’s supervisor and the magistrate who performed the post-

arrest hearing.              Rowell’s argument along these lines is flatly

rejected by City of Canton, which noted that municipal liability

“will    not      be    satisfied         by    merely      alleging       that    the    existing

training       program        for   a     class       of    employees,          such    as     police

officers,         represents          a        policy       for     which        the     city      is

responsible.”           Id. at 389.            Rowell has not presented a claim in

the mold of what the City of Canton concurring opinion termed a

“failure to train concerning a clear constitutional duty” or a

failure to train “where it can be shown that policymakers were

aware     of,     and        acquiesced         in,     a   pattern        of     constitutional

violations involving the exercise of police discretion.”                                     Id. at

396-97.      Any offered parallel for this standard of liability and

Rowell’s theory of this case simply does not hold.

      Two matters of housekeeping warrant quick mentioning.                                       The

first is that at oral argument, Rowell shifted gears on his

theory       of        the     case        completely          and     argued           that      the

unconstitutional police policy or custom in this case was to

conduct a search of a suspect’s vehicle after the suspect had

been arrested and secured in a police car; a clear violation of

the Fourth Amendment in light of the recent decision in Arizona

v.   Gant,      No.     07-542      (U.S.       Apr.     21,      2009).        There    are    many

                                                  12
problems with this argument.     The most important is that it was

not presented below, and as a legal matter, the argument is

therefore waived.    See Malbon v. Pa. Millers Mut. Ins. Co., 636

F.2d 936, 941 (4th Cir. 1980) (“It is elementary that an issue

not raised below will not, absent extraordinary circumstances .

. . be considered on appeal.”).        As a practical matter, the fact

that it was not presented below represents why the record is not

developed at all on the point.     There is no evidence of the City

of Hickory’s policy on training regarding searches incident to

arrest and no characterizations and findings as to the city’s

actions in this area by a lower court.        Indeed, the briefing in

this case contains no citations to Gant or discussion of what

Hickory’s policy on automobile searches incident to an arrest

may have been.      A remand would give Rowell the opportunity to

develop a record on the point, but Rowell cannot shift gears

while his case is on appeal to take advantage of a new theory of

liability that he did not assert below.

     The second housekeeping matter is one of, for lack of a

better word, contrition.    We ought to acknowledge that although

Rowell has presented no evidence that a policy of the City of

Hickory caused a violation of his constitutional rights, the

system did not act expediently in his case.          When all is said

and done, this case may stand for the proposition that although

an arrest and indictment be supported by probable cause, they

                                  13
may also be founded on a genuine mistake.                  It took a long time

for the criminal justice system to validate Rowell’s protest

that the substance seized from his car was not drugs, but this

can hardly be said to be the City of Hickory’s fault.                     In this

appeal,   we    are   concerned     solely   with    the    City    of   Hickory’s

liability      in   damages   for   its     role    in   these     circumstances.

Though the timeliness of the system may have failed Rowell, he

has not shown how a policy or custom of the City of Hickory

caused a violation of his constitutional rights.

     For the foregoing reasons, the grant of summary judgment to

the defendants is

                                                                         AFFIRMED.




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