                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-1889


BRANDON PEGG; KRISTINA PEGG, husband and wife,

                Plaintiffs – Appellants,

          v.

NATHAN TYLER KLEMPA, individually and in his capacity as
agent and employee of the City of Glen Dale Police
Department; GRANT HERRNBERGER,

                Defendants - Appellees.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:13-cv-00173-FPS)


Submitted:   March 15, 2016                 Decided:   June 6, 2016


Before NIEMEYER, KING, and DIAZ, Circuit Judges.


Affirmed in part, and reversed in part by unpublished per curiam
opinion.


Robert G. McCoid, MCCAMIC, SACCO & MCCOID, P.L.L.C., Wheeling,
West Virginia; Paul J. Harris, HARRIS LAW OFFICES, Wheeling,
West Virginia, for Appellants. Montѐ L. Williams, Deva A.
Solomon, Robert L. Bailey, STEPTOE & JOHNSON, PLLC, Morgantown,
West Virginia; Keith C. Gamble, PULLIN, FOWLER, FLANAGAN, BROWN
& POE, PLLC, Morgantown, West Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

       Brandon Travis Pegg and Kristina Pegg appeal the district

court’s       grant          of      summary        judgment        in    favor      of

Defendants-Appellees               Nathan      Tyler     Klempa     and    Grant     P.

Herrnberger       on   the    basis       of   qualified   immunity.       The     Peggs

raised constitutional claims under 42 U.S.C. § 1983 (2012), as

well as related state law claims, against Klempa and Herrnberger

arising from a traffic stop of the Peggs’ vehicle.                        The amended

complaint alleged: (1) unlawful arrest of Mr. Pegg; (2) unlawful

detention of Mrs. Pegg; (3) excessive force as to Mr. Pegg;

(4) intentional infliction of emotional distress as to both Mr.

and Mrs. Pegg; (5) battery of Mr. and Mrs. Pegg; and (6) civil

conspiracy to unlawfully detain and search the Peggs.

       After the Peggs filed this action, Klempa and Herrnberger

moved for summary judgment, arguing that they were entitled to

qualified immunity.               The district court granted the defendants’

motions for summary judgment on the basis of qualified immunity.

In regard to Mr. Pegg’s claims, the court concluded that the

officers had not unreasonably extended the traffic stop and,

once   Mr.    Pegg     refused       to     exit   his   vehicle,    probable     cause

existed      to   arrest      him     for      obstruction.         The   court    also

determined that, because the arrest of Mr. Pegg was lawful, the

force applied by the officers was not excessive.



                                               2
     As to Mrs. Pegg’s claims of unlawful detention, the court

concluded    that    Herrnberger      reasonably       believed    that    she    was

dangerous    and    was   therefore     justified     in   frisking      her.     The

court determined that, similar to Herrnberger’s frisk of Mrs.

Pegg,    Klempa’s    searches    of     her   purse    and   the    vehicle      were

justified    by    officer     safety    concerns. 1       Finally,      the    court

concluded that Mrs. Pegg had not been the victim of a battery as

a result of the frisk, and that the remainder of the Peggs’

state law claims were also barred by qualified immunity.

     On appeal, the Peggs assert three errors in the district

court’s     decision.        First,     they    argue      that    the     officers

unnecessarily extended the duration of the traffic stop and did

not order Mr. Pegg from the vehicle because of safety concerns.

Therefore, they argue, Mr. Pegg’s arrest for failing to exit the

vehicle     was    unlawful.      Second,      they     argue     that    no    facts

establish an objective, reasonable suspicion that Mrs. Pegg was

armed and dangerous, and therefore the search of the vehicle,

frisk of Mrs. Pegg, and search of her purse violated the Fourth




     1 The court noted that Mrs. Pegg had consented to the search
of her purse, but concluded that it was “unclear whether Mrs.
Pegg’s consent was voluntarily given.”        Because the court
determined that the search was valid regardless of consent, it
did not reach a determination as to whether consent was
voluntary.



                                         3
Amendment.     Finally, they argue that Herrnberger’s frisk of Mrs.

Pegg constituted battery, as it involved offensive touching.

     We “review the district court’s grant of summary judgment

de novo, applying the same standard as the district court . . .

[and] construing the evidence in the light most favorable to

[the Peggs], the non-movant[s].”               Walker v. Mod-U-Kraf Homes,

LLC, 775 F.3d 202, 207 (4th Cir. 2014).                      Summary judgment is

appropriate if there is no genuine issue as to material fact and

“the movant is entitled to judgment as a matter of law.”                             Fed.

R. Civ. P. 56(a).

     “Qualified         immunity        protects       officers        who       commit

constitutional      violations        but     who,     in     light       of    clearly

established     law,    could   reasonably      believe       that    their     actions

were lawful.”       Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.

2011)    (en   banc).     Thus,    to    successfully        avail    themselves       of

qualified immunity, Klempa and Herrnberger must show either that

no constitutional violation occurred or that the right was not

clearly    established    at    the     time it      was    violated. 2        Id.     In


     2 West Virginia law similarly follows a two-step inquiry to
determine whether an officer is entitled to qualified immunity:
“(1) does the alleged conduct set out a constitutional or
statutory violation, and (2) were the constitutional standards
clearly established at the time in question?” Hutchison v. City
of Huntington, 479 S.E.2d 649, 659 (W. Va. 1996). Additionally,
an official is not entitled to qualified immunity if his or her
conduct was “fraudulent, malicious, or otherwise oppressive.”
Id.


                                          4
evaluating whether the right was clearly established, we look

“not to whether the right allegedly violated was established ‘as

a broad general proposition’ but whether ‘it would be clear to a

reasonable       official       that     his       conduct    was       unlawful        in     the

situation he confronted.’”               Raub v. Campbell, 785 F.3d 876, 882

(4th    Cir.)     (quoting       Saucier v.          Katz,   533       U.S.     194,     201–02

(2001), cert. denied, 136 S. Ct. 503 (2015).

       With   regard    to      Mr.    Pegg’s      claim     of    unlawful      arrest,        we

conclude that the district court did not err in finding that the

officers        are    entitled          to        qualified           immunity.               The

constitutionality          of     a    traffic        stop    is       analyzed        under     a

two-prong standard: first, we determine “whether the officer’s

reason   for     the   traffic        stop     was    legitimate”        and,     if    so,     we

examine “whether the officer’s actions during the seizure were

reasonably related in scope to the basis for the traffic stop.”

United States v. Williams, 808 F.3d 238, 245 (4th Cir. 2015)

(internal quotation marks omitted).                        “Like a Terry stop, the

tolerable       duration     of       police    inquiries         in    the     traffic-stop

context is determined by the seizure's ‘mission’—to address the

traffic violation that warranted the stop, and attend to related

safety concerns.”          Rodriguez v. United States, 135 S. Ct. 1609,

1614 (2015) (internal citations omitted).                          The central question

is whether the officer’s action, “viewed objectively and in its

totality, is reasonably directed toward the proper ends of the

                                               5
stop.”       United States v. Digiovanni, 650 F.3d 498, 508 (4th Cir.

2011).

        As to the first prong, Mr. Pegg concedes that his vehicle

had an inoperative license plate light and therefore the initial

justification for the traffic stop was valid.                          Regarding the

second prong of the inquiry, we conclude the officers’ actions

up to and including ordering Mr. Pegg from the vehicle were

reasonably directed toward the proper purpose of the traffic

stop.

        After     stopping    the    Peggs’      vehicle,    Klempa        had    a    brief

conversation        with     Mr.    Pegg    regarding       the     traffic       stop,    a

conversation        that      was     extended        by    Mr.      Pegg’s        initial

recalcitrance.               Mr.    Pegg      eventually          turned      over        his

documentation and Klempa ran checks on the documentation, all of

which was proper.             Digiovanni, 650 F.3d at 507.                       Only five

minutes      elapsed   by     the    time    Klempa    returned       to    Mr.       Pegg’s

vehicle.

        Klempa wanted Mr. Pegg to exit the vehicle for two reasons:

(1) because of concerns for officer safety; and (2) to show Mr.

Pegg the burned-out light and issue a verbal warning.                                   This

directive was not unconstitutional.

        As   an   initial     matter,      the   traffic     stop    itself       had     not

concluded as Klempa had not yet issued the warning to Mr. Pegg.

See United States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008)

                                            6
(“once . . . the police officer has issued the requisite warning

or ticket, the driver must be allowed to proceed on his way”).

Moreover, when viewed in context, ordering Mr. Pegg from the

vehicle was reasonably related to the purpose of the traffic

stop.     From the moment the stop began, Mr. Pegg was agitated and

expressed      incredulity     when     notified            of    the    reason          for   the

traffic stop.       Therefore, while it was perhaps unnecessary for

Klempa    to    order    Mr.   Pegg     from          the    vehicle,         it     was       also

reasonably      directed   toward       the      proper          purpose      of    the     stop—

demonstrating to Mr. Pegg that there was a legitimate defect

with his vehicle, and issuing a verbal warning relating to that

defect.       Furthermore, Mr. Pegg confirmed during his deposition

that, at the time he was asked to exit his vehicle, the officers

were standing in or near the lane of traffic.                           The stop occurred

in the evening on New Year’s Eve, an evening when, as the Peggs’

expert    testified,     there    is    a   higher-than-usual                 likelihood         of

drunk driving.          Thus, ordering Mr. Pegg from his vehicle was

also justified by concerns for officer safety.

      Because it was reasonably directed toward the purpose of

the stop, Klempa’s decision to order Mr. Pegg from the vehicle

did     not    unreasonably      extend         the     duration         of        Mr.     Pegg’s

detention.      The officers therefore maintained authority to order

Mr. Pegg from the vehicle.             Pennsylvania v. Mimms, 434 U.S. 106,

111 (1977).       When Mr. Pegg refused the lawful command given by

                                            7
the officers, they had probable cause to believe that Mr. Pegg

was    obstructing          an    officer.                 See    City     of       Saint    Albans    v.

Botkins,       719    S.E.2d      863,       872       (W.       Va.     2011)       (“Once      Appellee

refused    to    comply          [with       the       officer’s          order],      a     reasonable

officer    may       have    believed         the          refusal       to     be    an    attempt    to

obstruct the officer”).                  The arrest was lawful, and Mr. Pegg’s

claim for unlawful arrest therefore fails, as do his related

claims.

       Turning       to     the   search        of         the     Peggs’       vehicle,         although

warrantless          searches           of         a        vehicle           are     “presumptively

unreasonable,”            several    exceptions                  exist.         United       States    v.

Holmes, 376 F.3d 270, 274-75 (4th Cir. 2004).                                        Of relevance to

this case,

       the search of the passenger compartment of an
       automobile, limited to those areas in which a weapon
       may be placed or hidden, is permissible if the police
       officer    possesses a   reasonable   belief   based   on
       specific and articulable facts which, taken together
       with   the    rational inferences   from   those   facts,
       reasonably warrant the officers in believing that the
       suspect is dangerous and the suspect may gain
       immediate control of weapons.

Michigan v. Long, 463 U.S. 1032, 1049 (1983) (internal quotation

marks omitted).             Thus, to conduct a lawful search pursuant to

such   safety        concerns,      “an       officer            must     possess       a    reasonable

belief    of    both       (1)    the    suspect’s               dangerousness             and   (2)   the

possibility that the suspect might gain immediate control of any

weapons inside the vehicle.”                       United States v. Griffin, 589 F.3d

                                                       8
148, 153 (4th Cir. 2009).               We examine “the totality of the

circumstances    in    determining      whether       the   requisite   reasonable

suspicion existed.”          United States v. McCoy, 513 F.3d 405, 411

(4th Cir. 2008).

     By the time Klempa performed a search of the vehicle, Mr.

Pegg had been handcuffed and placed in the back of Klempa’s

vehicle.    Consequently, any concern for officer safety had to be

based on a threat posed by Mrs. Pegg, rather than Mr. Pegg.                      The

district court determined that the officers had a reasonable

suspicion   that      Mrs.    Pegg    was       dangerous   because:    (1) it   was

evening on New Year’s Eve; (2) prior to being arrested, Mr. Pegg

had been agitated and failed to follow officer commands; (3) it

would be “reasonable . . . to believe that . . . Mrs. Pegg[] was

also agitated and a risk” to officer safety; and (4) Mrs. Pegg

had opened her car door and asked why her husband was being

arrested.

     Certainly, the fact that the stop occurred at nighttime on

New Year’s Eve supports reasonable suspicion.                      Even assuming

that Mr. Pegg’s agitation and failure to comply with officer

commands    is   relevant       to    Mrs.        Pegg’s    dangerousness,   these

circumstances      fall      well    short       of   the   requisite   reasonable

suspicion needed to believe that Mrs. Pegg was a threat.




                                            9
      No evidence demonstrates that Mrs. Pegg was nervous, angry,

or   irritated. 3       To    the   contrary,    she   was   cooperative   and

compliant during the traffic stop.              When Mr. Pegg was initially

uncooperative with Klempa, Mrs. Pegg encouraged him to comply

with Klempa’s order.          When asked, Mrs. Pegg: (1) produced her

identification; (2) closed her door and stayed quiet; (3) exited

the vehicle to be searched; and (4) lifted her shirt and coat to

expose    her   torso    to    Herrnberger.        During    his   deposition,

Herrnberger was unable to remember or articulate a single fact

that supported a reasonable suspicion that Mrs. Pegg presented a

threat.



      3Contrary to the district court’s determination, it is
entirely reasonable for an individual, upon witnessing her
spouse being handcuffed and placed in a police cruiser, to ask
if and why her spouse was being arrested. Nor is it suspicious
that Mrs. Pegg opened the door to do this, as she did so merely
to gain the attention of one of the officers.        See United
States v.   McCraney,  674   F.3d  614, 621   (6th  Cir.  2012)
(concluding that, where an individual exits the vehicle not to
flee but to get the officer’s attention, such behavior does not
contribute to reasonable suspicion).

     Additionally,    we    question  the    district   court’s
determination that it would be reasonable to assume that Mrs.
Pegg was agitated.   There is no indication that Mrs. Pegg was
angry, agitated, or irritated during or after her husband’s
arrest or that the officers believed she was agitated and,
absent such evidence, reaching that assumption on summary
judgment inappropriately ignored the requirement that facts be
viewed in the light most favorable to Mrs. Pegg, and that all
reasonable inferences be drawn in her favor.        Any assumed
agitation cannot, therefore, support a particularized suspicion
that Mrs. Pegg was dangerous.



                                       10
      The   evidence   establishes     that   Mrs.    Pegg    had    no   known

criminal history or history of violence.           At the time the search

was conducted, no individuals were near the officers other than

Mrs. Pegg, and the officers outnumbered Mrs. Pegg three to one.

There is no evidence that the location of the traffic stop was a

high crime area.       Nor is there any evidence that the officers

actually believed that Mrs. Pegg posed a threat; indeed, they

left her entirely unattended, prompting her to open her door

simply to gain an officer’s attention.               We therefore conclude

that no reasonable officer would have believed that Mrs. Pegg

was dangerous.

      Moreover, Mrs. Pegg’s right to be free from a search under

these circumstances was clearly established at the time of the

traffic stop.     See United States v. Neely, 564 F.3d 346 (4th

Cir. 2009).     Police may conduct a frisk of a passenger during a

traffic stop where: (1) “it is lawful for police to detain an

automobile and its occupants pending inquiry into a vehicular

violation;” and (2) the police “harbor reasonable suspicion that

the   person   subjected   to   the   frisk   is   armed     and   dangerous.”

Arizona v. Johnson, 555 U.S. 323, 327 (2009).

      Reasonable suspicion must be particularized and objective.

“The officer need not be absolutely certain that the individual

is armed; the issue is whether a reasonably prudent man in the

circumstances would be warranted in the belief that his safety

                                      11
or that of others was in danger.”               United States v. Powell, 666

F.3d 180, 186 (4th Cir. 2011) (quoting Terry v. Ohio, 392 U.S.

1, 27 (1968)).     This determination must be “based on commonsense

judgments and inferences about human behavior and it is measured

by the totality of the circumstances.”                 Id. (quoting Illinois v.

Wardlow, 528 U.S. 119, 125 (2000)).

     As    detailed     above,    the    evidence      in   this     case   strongly

supports    a   conclusion     that     no    reasonable      officer    would    have

believed    that   Mrs.   Pegg     was       dangerous.       Although      the   stop

occurred after dark, and Mr. Pegg was somewhat uncooperative but

not threatening during the stop, there is simply no evidence

that Mrs. Pegg presented any threat.

     Furthermore, at the time of the search, a number of our

cases   made    clear   that     something      more   than    the   circumstances

facing Klempa and Herrnberger was required to support a belief

that Mrs. Pegg was dangerous.                See Powell, 666 F.3d at 187-88

(knowledge of a past criminal record and providing officers with

false     information     was      insufficient        to     create     reasonable

suspicion); United States v. Massenburg, 654 F.3d 480, 488-91

(4th Cir. 2011) (presence in a high crime area shortly after

police received anonymous tip concerning random gunfire in the

area does not create reasonable suspicion); United States v.

Foster, 634 F.3d 243, 246-49 (4th Cir. 2011) (knowledge of a



                                         12
suspect’s criminal history, sudden movements, and arm shifting

were insufficient).

      We   thus    conclude     that,    at    the     summary      judgment        stage,

Herrnberger is not entitled to qualified immunity for his frisk

of Mrs. Pegg, and Klempa is not entitled to qualified immunity

for his search of Mrs. Pegg’s purse. 4

      Finally, in West Virginia, an individual commits the tort

of battery where “(a) he acts intending to cause a harmful or

offensive    contact    with    the     person    of       the    other    or   a   third

person, or an imminent apprehension of such a contact, and (b) a

harmful    contact     with    the    person     of    the       other     directly      or

indirectly results.”           W. Va. Fire & Cas. Co. v. Stanley, 602

S.E.2d 483, 494 (W. Va. 2004) (quoting Restatement (Second) of

Torts, § 13 (1965)).

      We   conclude     that    an    unauthorized          frisk    constitutes         an

offensive    contact    sufficient       to   satisfy       the     requirements         for

battery.     See Terry, 392 U.S. at 24-25 (“Even a limited search

of   the   outer   clothing     for   weapons     .    .    .    must     surely    be   an

annoying,    frightening,       and     perhaps      humiliating          experience”).

Moreover, because Herrnberger conducted a frisk that was not

      4As previously noted, the district court did not resolve
the question of whether Mrs. Pegg voluntarily consented to the
search of her purse.     Because the issue of consent was not
decided by the district court and has not been raised on appeal,
we leave resolution of this issue to the district court.



                                         13
necessary for officer safety, he was not privileged to create

that offensive contact with Mrs. Pegg.            See Restatement (Second)

of Torts § 10 (2)(b) (1965) (A privilege may be based upon . . .

the fact that its exercise is necessary for the protection of

some interest . . .”).        We therefore conclude that the district

court erred in granting summary judgment in favor of Herrnberger

on this claim.

     Accordingly,    we   affirm   in     part   and   reverse   in   part   the

district   court’s   order,    and   remand      for   further    proceedings

consistent with this opinion.           We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.



                                                           AFFIRMED IN PART,
                                                            REVERSED IN PART




                                     14
