                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-1092


APRIL SMITH,

                Plaintiff - Appellant,

          v.

JASON MUNDAY; CHARLES MCGINLEY; BRIAN GREENE; RODNEY JORDAN;
CITY OF LINCOLNTON; LINCOLNTON POLICE DEPARTMENT; JOHN DOE;
JANE DOE,

                Defendants – Appellees,

          and

RUFUS LYNCH; MARK LESASSIER,

                Defendants.



                              No. 15-1496


APRIL SMITH,

                Plaintiff - Appellant,

          v.

JASON MUNDAY; CHARLES MCGINLEY; BRIAN GREENE; RODNEY JORDAN;
CITY OF LINCOLNTON; LINCOLNTON POLICE DEPARTMENT; MARK
LESASSIER; JOHN DOE; JANE DOE,

                Defendants – Appellees,

          and

RUFUS LYNCH,

                Defendant.
Appeals from the United States District Court for the Western
District of North Carolina, at Statesville.       Richard L.
Voorhees, District Judge. (5:12-cv-00202-RLV-DSC)


Argued:   September 20, 2016          Decided:   February 3, 2017


Before GREGORY, Chief Judge, and KING and AGEE, Circuit Judges.


Affirmed in part, reversed in part, and remanded by published
opinion. Chief Judge Gregory wrote the opinion, in which Judge
King joined. Judge Agee wrote an opinion concurring in part and
dissenting in part.


ARGUED: Algernon Williams, Sr., LAW OFFICE OF ALGERNON WILLIAMS,
Charlotte, North Carolina, for Appellant.       Patrick Houghton
Flanagan, CRANFILL SUMNER & HARTZOG LLP, Charlotte, North
Carolina;  Joseph   Finarelli,  NORTH  CAROLINA   DEPARTMENT  OF
JUSTICE, Raleigh, North Carolina, for Appellees.       ON BRIEF:
Matthew K. Lilly, CRANFILL SUMNER & HARTZOG LLP, Charlotte,
North Carolina; Roy Cooper, North Carolina Attorney General,
Donna Elizabeth Tanner, Assistant Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees.




                                2
GREGORY, Chief Judge:

      Plaintiff-appellant April Yvette Smith brought a suit under

42    U.S.C.    § 1983   alleging     violations     of   her   constitutional

rights when she was arrested and held in police custody for

eighty     days.      She     named   as    defendants    the    investigating

officers,      Defendants     Jason   Munday   and   Charles    McGinley;     the

arresting officers, Defendants Brian Greene and Mark Lesassier;

the   Chief    of   Police,    Defendant    Rodney    Jordan;    the   City    of

Lincolnton; and the Lincolnton Police Department. 1                She raised

Fourth Amendment and tort claims in both direct and supervisory

contexts, all of which center around the allegation that she was

arrested without probable cause.

      The district court found that the officers had probable

cause to believe that Smith illegally possessed and sold crack

cocaine.       Thus, no officers violated her constitutional rights

or caused her injury, and neither their supervisor nor employer

failed to prevent such injuries.            The district court accordingly

granted summary judgment in favor of all of the defendants.                   We

reverse and remand for further proceedings.




      1Smith also named the confidential informant, Rufus Lynch,
as a defendant, but voluntarily dismissed him. J.A. 4-5.


                                        3
                                             I.

        When reviewing a grant of summary judgment, we “view all

reasonable inferences drawn from the evidence in the light that

is most favorable to the non-moving party.”                      Nader v. Blair, 549

F.3d 953, 958 (4th Cir. 2008).

     On March 10, 2009, officers Munday and McGinley conducted an

undercover investigation using a confidential informant, Rufus

Lynch Sr.        J.A. 84, 105.         The officers searched Lynch, wired him

with audio and video recorders, and gave him sixty dollars.                        J.A.

84–85.         Lynch     then   went    to   728   East    Pine   Street,    where   he

purchased crack cocaine from two individuals.                       J.A. 85.      After

the transaction, Lynch returned to the officers.                       Id.     He told

the officers that he purchased drugs from April Smith, a black

female.        Id.    The detective’s notes identify April Smith as such:

“B/F April Smith,” and “April B/F skinny $20 1 rock in plastic,

Smith 40s.”          Supp. J.A. 17.

     Because the audio recorder had no batteries, it failed to

record the transaction.             Supp. J.A. 17.         And because the camera

wired     to     Lynch    pointed      in    the   wrong    direction,      the   video

recording did not capture the drug sale.                     J.A. 85.        The video

instead shows an unidentified black woman sitting on a front

porch, and two other individuals standing on the porch.                       J.A. 79.

It also recorded a discussion of prices.                   Id.



                                              4
        At some point during the next nine months, Munday scanned

police databases for residents of Lincoln County named April

Smith with criminal records.         He then stumbled upon April Yvette

Smith, a black woman who lived in Lincoln County and had been

convicted of selling crack cocaine in 1993, 1997, and 2005.                   His

search    also    revealed   at    least     two   other   April    Smiths    with

criminal records.      Supp. J.A. 40-41.           He had no indication that

the woman who sold crack cocaine to Lynch in March 2009 had a

criminal record, or was even a Lincoln County resident.                 And the

record reflects no further attempt by Munday to investigate Smith

or connect her to the crime.

        Nevertheless, nine months after the sale, on December 20,

2009,    Munday   applied    for   and   received    an    arrest   warrant   for

Smith, on charges of possession with intent to sell crack cocaine

and selling or distributing cocaine.                Supp. J.A. 77.       And on

December 22, 2009, Defendants Greene and Lesassier served the

arrest warrant and arrested Smith in her home, which was eleven

miles away from the site of the drug sale.                 See Supp. J.A. 86.

Smith was held in custody for approximately eighty days, facing

the threat of prosecution.         Over the course of her incarceration,

Smith allegedly lost her job.                J.A. 43.      The Lincoln County

District Attorney’s Office then requested that the charges be

dismissed.



                                         5
     Smith filed suit, alleging constitutional violations of the

Fourth    and   Fourteenth    Amendments, 2     and     state-law     claims   for

intentional      or   negligent   infliction       of     emotional     distress,

negligence,     negligent    supervision,       gross   negligence,     assault,

battery, false imprisonment, and false arrest.

     The district court found that no constitutional violation

occurred.       The district court reasoned that the investigating

officers were looking for a black woman named April Smith who

sold drugs, and they found a black woman named April Smith who

had sold drugs in the past, and who was arrested only eleven

miles away from where the drug sale occurred.                  The one factor

the district court believed counseled against probable cause was

Smith’s   weight.      The   seller   was   a    skinny    woman;     conversely,

Smith was 160 pounds upon arrest, and alleged that she weighed

more than 200 pounds in March 2009, when the sale occurred.                    But

the officers were unaware of Smith’s weight at the time of the

transaction, and the district court reasoned that 160 pounds was

not so different from “skinny,” especially with an intervening

nine months, so as to discredit a finding of probable cause.

Thus, even if she ultimately might not have been the correct

individual, the district court found that--at the time, with the


     2 Smith also raised Fifth Amendment claims. But her Fifth
Amendment claims were identical to her Fourth Amendment claims,
and otherwise not discussed.


                                      6
information then known--the investigating officers had probable

cause to believe that Smith was the woman who sold Lynch crack

cocaine.

        But    even     ignoring      Smith’s     weight,    a    criminal     history,

common race, common gender, and unfortunately common name is not

enough to establish probable cause.                  For this reason, we reverse

the district court and remand for further proceedings.



                                           II.

        We review a district court’s grant of summary judgment de

novo.    Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 817 (4th

Cir. 1995).        Summary judgment should be granted only when “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.”

Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S.

317,    325    (1986).         All    “factual    disputes       and   any   competing,

rational inferences [are resolved] in the light most favorable to

the party opposing that motion.”                 Rossignol v. Voorhaar, 316 F.3d

516,     523    (4th    Cir.    2003)     (quoting     Wightman        v.    Springfield

Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996)).

                                            A.

       The district court properly stylized Smith’s false arrest

claims        against     the        investigating     officers         as    malicious

prosecution claims.            J.A. 107.     A claim of malicious prosecution

                                            7
under § 1983 is a claim “founded on a Fourth Amendment seizure

that incorporates elements of the analogous common law tort of

malicious prosecution.”           Lambert v. Williams, 223 F.3d 257, 262

(4th Cir. 2000).         This Fourth Amendment claim requires “that [1]

the defendant ha[s] seized plaintiff pursuant to legal process

that   was     not    supported   by    probable       cause     and    [2]    that    the

criminal       proceedings    have     terminated       in      plaintiff’s       favor.”

Massey v. Ojanit, 759 F.3d 343, 356 (4th Cir. 2014) (quoting

Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012)).

       Here,    the    sole   question    at    issue      is    whether       there   was

probable cause to arrest Smith.               Probable cause is determined by

a “totality-of-the circumstances” approach.                      Illinois v. Gates,

462 U.S. 213, 230 (1983).              “While probable cause requires more

than    bare     suspicion,     it     requires     less        than    that    evidence

necessary to convict.”          United States v. Gray, 137 F.3d 765, 769

(4th Cir. 1998) (internal quotation marks omitted).                            “It is an

objective standard of probability that reasonable and prudent

persons apply in everyday life.”              Id.

       The   probable-cause       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.”                          Graham v.

Gagnon, 831 F.3d 176, 184 (4th Cir. 2016) (quoting Pritchett v.

Alford, 973 F.2d 307, 314 (4th Cir. 1992)).                     A court should only

consider the information the officers had at the time they sought

                                          8
the warrant.      Id.    Yet the probable-cause inquiry “examine[s] the

facts within the knowledge of arresting officers to determine

whether    they   provide       a   probability         on    which    reasonable     and

prudent    persons      would   act;    we       do   not    examine   the      subjective

beliefs    of   the     arresting      officers       to     determine    whether     they

thought that the facts constituted probable cause.”                          Id. at 185

(quoting Gray, 137 F.3d at 769).

     When applying for an arrest warrant, Munday simply did not

have enough information for any reasonable or prudent person to

believe there was probable cause.                      He lacked any information

connecting Smith’s conduct to the contours of the offense, and

certainly lacked enough evidence to create any inference more

than mere suspicion.

     Of the offense, Munday knew only that Lynch, a confidential

informant used by members of the police department before but new

to him, said “April Smith,” a skinny, black woman, sold him crack

cocaine.    He did not know if she had been convicted for selling

crack cocaine before or if she lived in the county.

     But to find the offender, Munday merely ran a broad search

in   the   department’s         database         of   individuals        with    criminal

histories, looking for a woman of the same name.                           And when he

found multiple individuals, at least two of whom were black women

named April Smith weighing between 130 and 140 pounds, he chose

one for no immediately apparent reason.                      Oral Argument at 18:40,

                                             9
Smith v. Munday, -- F. 3d -- (4th Cir. Sept. 20, 2016) (No. 15-

1092),     http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-

arguments     (recording        Munday’s         lawyer       admitting       that      Munday

searched a criminal history database to find the offender and

found three April Smiths with criminal histories residing in

Lincoln County); see also Supp. J.A. 40-41 (listing excerpts of

case report, including criminal database results revealing at

least two black women named April Smith weighing between 130-140

pounds, filed as exhibits to Munday’s sworn affidavit).                              There is

no evidence that Munday attempted to identify Smith as the black

woman in the video footage.                  There is no evidence that the

officers     showed     Lynch     a    photo       of     Smith       to     establish    the

identification.          There        is    no    evidence        that       the     officers

investigated Smith herself, or found any indication that Smith

frequented the site of the drug sale that day, that month, or at

all.     Indeed, there is no explanation whatsoever for the nine-

month delay between Lynch saying a black woman named April Smith

sold crack cocaine to him and the issuance of an arrest warrant

for April Yvette Smith.

       In short, Munday had no evidence about Smith’s conduct, let

alone whether she was a participant in, connected to, or even

physically present near the drug sale in question.                                 His only

information     about     Smith       was    that       she     had        previously    been

convicted for selling drugs years past, that she was a black

                                            10
woman, and that she was “near” the site of the drug sale because

her home address was eleven miles away.                         If this amount of

evidence were sufficient for probable cause, then officers would

have    probable      cause    to    obtain     arrest    warrants    for    any   local

residents     who     fit   the     generic     description     of   the    day--be   it

“black woman,” “black man,” or otherwise--so long as they had a

criminal history and an unfortunately common name.                          Such scant

evidence barely meets the threshold of “mere suspicion,” let

alone the threshold of probable cause.

       An    investigating          officer        need   not   “exhaust[     ]    every

potential avenue of investigation.”                   Wadkins v. Arnold, 214 F.3d

535, 543 (4th Cir. 2000).                  But an investigating officer must

still       conduct     some        sort   of       investigation     and     assemble

individualized facts that link the suspect to the crime.

       In Thompson v. Prince William County, 753 F.2d 363 (4th Cir.

1985), this Court found that probable cause supported an arrest

warrant for Lisa Ann Thompson, even though--as it turned out--she

was the wrong person.                There, an undercover police agent saw

Thompson driving through a parking lot and recorded her license

plate number.         Id.     He then purchased marijuana from a woman who

identified herself as “Lisa,” id. at 364, and he believed that

she was the same woman he had seen driving earlier.                          After the

sale, he ran the car’s license-plate number through a motor-

vehicle database and found that the owner of the car was Lisa Ann

                                              11
Thompson.   Id.    A police informant, who worked as a bouncer at a

nearby restaurant, also told the officer that the woman driving

the car was named Lisa.          Id.     The officer obtained an arrest

warrant for Lisa Ann Thompson, and she was arrested.               Id. at 365.

Ultimately, the officer was mistaken; Thompson was not the woman

he purchased drugs from.         Yet this Court found that the officer

had   probable    cause   to   obtain   an     arrest   warrant   at   the   time

because he took reasonably prudent steps to determine that he was

arresting the correct person.

      In Thompson, the police officer used multiple methods to

establish the arrestee’s identity, and he himself (mistakenly)

identified her as the woman he purchased drugs from.                   Though in

error, he connected the woman he arrested to the crime by his own

identification of her as a co-participant in the transaction.

The equivalent mistake here would be if Munday showed Lynch a

photo of Smith, and Lynch mistakenly believed that Smith was the

woman he purchased crack cocaine from.             But here, Munday made no

attempt to connect Smith to the crime.               And he had no evidence

whatsoever connecting Smith to the crime.                Thus, Munday had no

probable cause to seek an arrest warrant.

      And in Durham v. Horner, 690 F.3d 183 (4th Cir. 2012), this

Court affirmed the district court’s granting of summary judgment

based on qualified immunity because there was probable cause for

an ultimately erroneous arrest.              There, a confidential informant

                                        12
purchased drugs in Big Stone Gap, Virginia, from an “old man,”

identified thrice as Michael Dwayne Durham, who drove a Jeep with

a stolen Tennessee license plate.              Id. at 185.    The investigating

officer, Horner, used a Social Security Number he received from

the    Task    Force    for    that    name,     as   well    as    two   internet

investigative        resources,   Accurint      and   VCIN,   to    identify    the

offender.       Horner found a forty-five-year-old man named Michael

Dwayne Durham with Tennessee DMV records, a purchased Jaguar, and

addresses in Virginia (including Big Stone Gap) and Tennessee.

Id. at 185-86.        Durham also had state convictions for possession

of    drug    paraphernalia.        Id.   at   186.     After      conducting   the

investigation, Horner took no role in further proceedings.                      Id.

A    grand    jury   subsequently     returned    three    indictments     against

Durham for felony drug distribution.                  Durham was arrested and

later released because he was the wrong person.                 Id. at 187.

       By law, “an indictment, fair upon its face, returned by a

properly      constituted     grand   jury,     conclusively       determines   the

existence of probable cause.”             Id. at 189 (quoting Gerstein v.

Pugh, 420 U.S. 103, 117 n.19 (1975)).                     In Horner, a proper

indictment by a grand jury conclusively proved that there was

probable cause.        Conversely, here, Munday sought no indictment by

grand jury.          As a result, Durham’s “primary problem,” that a

grand jury found probable cause, is inapposite to Smith’s case.

Id.    And since the record did not reveal any way in which Horner

                                          13
participated      in   the     indictment         proceeding,      the   grand    jury’s

determinations,        not    Horner,   were       the      proximate    cause    of    the

arrest; conversely, Munday drafted and submitted the application

for an arrest warrant.

       And even if the court looked beyond the dispositive nature

of the indictments, Horner had a first, middle, and last name;

Munday had only a common first name and a common last name.

There is no evidence that Horner or the Task Force found multiple

individuals by that name; Munday’s counsel admits that even an

area as small as Lincoln County had three April Smiths with

criminal   histories.          Horner    found         an   individual    whose    prior

residence and DMV record matched the state of the seller’s stolen

car; Munday had no such identifying information connecting Smith

to the crime, other than a common name, gender, race, and generic

description as “skinny.”           “Horner was ‘not required to exhaust

every potentially exculpatory lead or resolve every doubt’” to

show   probable    cause.        Id.    at    190      (quoting    Miller    v.   Prince

George’s County, 475 F.3d 621, 630 (4th Cir. 2007)).                              But he

still had to conduct some level of investigation.                         And he did.

Munday conducted none.

       A magistrate judge’s approval of the arrest warrant does not

alter this conclusion.          We generally accord great deference to a

magistrate   judge’s         determination        of    probable    cause,   but       that

deference is not “boundless.”                United States v. Leon, 468 U.S.

                                             14
897, 914 (1984) (quoting Spinelli v. United States, 393 U.S. 410,

417 (1969)).       “[C]ourts must also insist that the magistrate

purport to ‘perform his neutral and detached function and not

serve merely as a rubber stamp for the police.’”                     Id. (quoting

Aguilar v. Texas, 378 U.S. 108, 111 (1964)).                    Here, the evidence

placing   Smith    at     the   crime   is    so    scant--indeed,    it    is     non-

existent--that         deferring   to   the        magistrate    judge     would    be

inappropriate.         Munday’s application for an arrest warrant lacked

probable cause and thus violated Smith’s Fourth Amendment rights.

                                         B.

     Having found that no probable cause existed for the warrant,

the next question is whether Munday is entitled to qualified

immunity.    “Where the alleged Fourth Amendment violation involves

a search or seizure pursuant to a warrant, the fact that a

neutral     magistrate      has    issued      a    warrant     is   the    clearest

indication that the officers acted in an objectively reasonable

manner,     or    in     ‘objective     good       faith.’”     Messerschmidt       v.

Millender, 132 S. Ct. 1235, 1245 (2012) (quoting Leon, 468 U.S.

at 922-23).       But there is an exception to this general rule.

Qualified immunity does not apply “where the warrant application

is so lacking in indicia of probable cause as to render official

belief in its existence unreasonable.”                   Malley v. Briggs, 475

U.S. 335, 344-45 (1986).



                                         15
      A warrant is so deficient in indicia of probable cause when

it has an “error that is apparent from a ‘simple glance’ at the

face of the warrant itself, not a defect that would ‘become

apparent only upon a close parsing of the warrant application.’”

Armstrong v. Asselin, 734 F.3d 984, 992 (9th Cir. 2013) (quoting

Messerschmidt, 132 S. Ct. at 1250).                       And here, even a glance

shows      that    Munday    was    unreasonable          if     he    believed     he   had

probable      cause.        Smith        did     have     a    criminal     history      for

possessing and selling cocaine.                     But as discussed above, Munday

had   no    evidence   about       her    conduct       whatsoever,       let    alone   any

evidence connecting her to the crime in question.                              It would be

unreasonable for any officer to view Munday’s dearth of evidence

as    sufficient      to    establish          probable       cause.      As    a   result,

qualified immunity does not apply.

      When    the    Supreme       Court       established       this     reasonableness

standard,     it    articulated          why    the     law     should    hold      officers

accountable for unreasonable warrant applications:

      True,   an   officer   who   knows   that   objectively
      unreasonable decisions will be actionable may be
      motivated to reflect, before submitting a request for a
      warrant, upon whether he has a reasonable basis for
      believing that his affidavit establishes probable
      cause.   But such reflection is desirable, because it
      reduces the likelihood that the officer's request for a
      warrant will be premature.      Premature requests for
      warrants are at best a waste of judicial resources; at
      worst, they lead to premature arrests, which may injure
      the innocent or, by giving the basis for a suppression
      motion, benefit the guilty.


                                               16
Malley, 475 U.S. at 343-44.               Those very same reasons are equally

applicable here.             The warrant issued in this case was wholly

unreasonable.           And    the    premature,       or        simply       insufficient,

request for a warrant in this case resulted in Smith’s eighty-

day incarceration under threat of prosecution and alleged loss

of her job.         Had Munday more carefully reflected on his warrant

application, perhaps these injuries could have been avoided.

                                            C.

       For these reasons, we hold that Munday violated Smith’s

Fourth Amendment rights when he applied for an arrest warrant

that    wholly      lacked    probable      cause.         The    district       court    had

previously found that Smith’s state-law claims against all of

the individual officers, and negligent-supervision and pattern-

or-practice theories of liability against the Chief of Police

and     City     of    Lincolnton         failed     because       no     constitutional

violation      occurred.           J.A.    111-14.          Because       this       reversal

implicates those rulings, we remand to the district court so it

can examine its prior determinations in the first instance.

       Smith    also    brought      claims      against    the     Lincolnton         Police

Department.         But a governmental entity may only be sued if the

law of the state in which the court is located permits it.                               Fed.

R.     Civ.    P.     17(b)(3).       Under        North    Carolina          law,     police

departments         cannot    be   sued     as     entities.            See    Ostwalt     v.

Charlotte-Mecklenburg Bd. of Educ., 614 F. Supp. 2d 603, 607

                                            17
(W.D.N.C. 2008); Wright v. Town of Zebulon, 688 S.E.2d 786, 789

(N.C. Ct. App. 2010).   Therefore, we affirm the district court’s

dismissal of claims against the Lincolnton Police Department.



                                III.

     Smith also brought a claim for false arrest against her

arresting officers, Greene and Lesassier.      A claim for false

arrest alleges that a warrantless arrest lacked probable cause;

a claim for malicious prosecution alleges that an arrest made

pursuant to a warrant lacked probable cause.    See Brooks v. City

of Winston-Salem, 85 F.3d 178, 181-82 (4th Cir. 1996).       Here,

Greene and Lesassier merely executed the arrest as they were

required to do, pursuant to a facially valid warrant, so her

false arrest claim is improper. 3      As a result, we affirm the

district court on this claim.




     3 Even if Smith had raised a malicious prosecution claim,
her claim would still likely have failed.    Although the arrest
warrant lacked probable cause, the arresting officers were
unaware of the scant factual basis supporting the facially valid
warrant. Looking at the information they knew at the time, the
officers acted reasonably when relying on the warrant.       See
Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998) (officers
who arrested Plaintiff pursuant to facially valid warrant
receive qualified immunity from malicious prosecution claim
because a reasonable person would not have known he was
violating a clearly established right).


                                 18
                          IV.

For the foregoing reasons, the district court’s decision is


           AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




                          19
AGEE, Circuit Judge, concurring in part and dissenting in part:

      The   majority      holds   that      the       arrest   warrant       was    not

supported   by   probable      cause   and   that       Officer     Munday    is    not

entitled    to   qualified     immunity.          I    disagree.       The     record

evidence reflects that reasonable minds could disagree as to

whether probable cause exists, and therefore Munday is entitled

to qualified immunity.         For that reason, I respectfully dissent

from the majority’s decision to reverse the district court’s

judgment    in   favor    of   Munday,      but       concur   in    affirming      the

district court as to the remaining claims.



                                       I.

                                       A.

      Under the Fourth Amendment to the U.S. Constitution, “no

Warrants shall issue, but upon probable cause, supported by Oath

or   affirmation,   and    particularly       describing       the    place    to    be

searched, and the persons or things to be seized.”                    Federal Rule

of Criminal Procedure 4(a) provides that a warrant will issue if

“the complaint establish[es] probable cause to believe that an

offense has been committed and that the defendant committed it.”

An arrest satisfies the Fourth Amendment if it is supported by

probable cause, “even if the wrong person is arrested.”                            Mensh

v. Dyer, 956 F.2d 36, 39 (4th Cir. 1991).



                                       20
         Probable cause is determined in view of the totality of the

circumstances.                See   Illinois    v.    Gates,      462     U.S.   213,   230-31

(1983).              “Probable      cause     sufficient       to    justify      an    arrest

requires facts and circumstances within the officer’s knowledge

that         are    sufficient      to   warrant     a   prudent     person,      or    one    of

reasonable caution, in believing, in the circumstances shown,

that the suspect has committed, is committing, or is about to

commit an offense.”                 United States v. Humphries, 372 F.3d 653,

657 (4th Cir. 2004) 1; see also Maryland v. Pringle, 540 U.S. 366,

371 (2003) (discussing the probable-cause standard).

         A probable-cause inquiry “does not involve the application

of   a       precise        legal   formula    or    test   but     the      commonsense      and

streetwise assessment of the factual circumstances.”                              Humphries,

372 F.3d at 657; see also Florida v. Harris, 133 S. Ct. 1050,

1055-56            (2013)    (“We    have     rejected      rigid    rules,      bright-line

tests, and mechanistic inquiries in favor of a more flexible,

all-things-considered               approach.”);         Brinegar       v.   United     States,

338 U.S. 160, 175 (1949) (“These are not technical; they are the

factual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, act.”).                                    The

determination           of     probable     cause     turns    on       probability.          See


         1
       I have omitted internal quotation marks, alterations, and
citations here and throughout this partial dissent, unless
otherwise noted.


                                                21
Pringle,     540    U.S.     at    371    (“The     probable-cause        standard     is

incapable      of      precise         definition     or     quantification           into

percentages because it deals with probabilities and depends on

the totality of the circumstances.”); Gates, 462 U.S. at 232

(“[P]robable        cause    is    a     fluid    concept     --   turning       on    the

assessment of probabilities in particular factual contexts --

not readily, or even usefully, reduced to a neat set of legal

rules.”);     United    States     v.     Cortez,    449    U.S.   411,    418    (1981)

(“The   process      does    not   deal    with     hard    certainties,     but      with

probabilities.”); Brinegar, 338 U.S. at 175 (“In dealing with

probable cause, however, as the very name implies, we deal with

probabilities.”); see also Humphries, 372 F.3d at 660 (rejecting

the district court’s assertion that “probable cause means more

likely than not, more than 50/50”).                   This is a “practical and

common-sensical standard.”              Harris, 133 S. Ct. at 1055.

       An appellate court’s “after-the-fact scrutiny . . . of the

sufficiency of an affidavit should not take the form of de novo

review,” and “[a] magistrate’s determination of probable cause

should be paid great deference by reviewing courts.”                       Gates, 462

U.S.    at   236.      “It    is   axiomatic        that   hindsight      may    not   be

employed in determining whether a prior arrest or search was

made upon probable cause.”               2 Wayne R. LaFave, Search & Seizure

§ 3.2(d) (5th ed. 2016).



                                            22
     Despite      the    majority’s     attempt    to    distinguish      Durham    v.

Horner,    690    F.3d    183   (4th   Cir.     2012),    from    this    case,    our

opinion    in    Durham    is   particularly      analogous.        In    Durham,    a

confidential informant purchased drugs in Virginia from a person

he identified as Michael Dwayne Durham, “an ‘old man’ who drove

a Jeep with a stolen Tennessee license plate, number unknown.”

Id. at 185.        Officer Horner conducted a search using computer

databases for “Michael Dwayne Durham” and settled on a forty-

five-year-old man living in Mississippi who had previously lived

in Tennessee and Virginia, owned a Jaguar, and had been arrested

for driving while intoxicated.              Id. at 185-86.        A search of the

man’s criminal history revealed convictions for possession of

drug paraphernalia in Mississippi.                Id. at 186.        A grand jury

indicted     Durham,      and   he   was    arrested     six     months   later     in

Tennessee.       Id. at 186-87.        Durham sat in jail for three months

before the prosecuting attorney realized “the wrong person had

been indicted and arrested.”           Id. at 187.

     After the district court granted summary judgment to Horner

based on qualified immunity, Durham appealed, contending that

“Horner was not entitled to qualified immunity because he relied

on and utilized unverified information to set forth a chain of

events that would lead to the indictment and arrest of the wrong

individual.”       Id. at 188.       Specifically, Durham argued that the

officer knew from the computer search

                                           23
      that Durham had not had a [Virginia] address since
      1999; that Horner never obtained the Tennessee license
      number to confirm whether the Jeep belonged to Durham;
      that Horner had not secured a photograph of Durham to
      show the CI and confirm the drug dealer’s identity;
      that Horner believed the dealer was approximately
      sixty years old, and not, like Durham, in his mid-
      forties; and that Horner admitted by deposition that
      he was not a hundred percent certain that he had the
      correct Michael Durham.

Id.

      Although        we   held   that   the    grand   jury     indictment   was

sufficient to warrant a finding of qualified immunity, we also

specifically found, irrespective of the indictment, that

      there was ample evidence for a reasonable law
      enforcement   officer to   believe  that   Durham  was
      involved in the three drug transactions -- namely, the
      CI had on three occasions identified the drug dealer
      as Michael Dwayne Durham; Durham had a [Virginia]
      address; the drug dealer had a vehicle with Tennessee
      license plates; Durham had a Tennessee driver’s
      license; and Durham’s criminal history included two
      drug-related convictions.

Id. at 190.

      Similar to Durham, the evidence here reasonably supports a

finding that probable cause was also “ample” when viewed in the

totality    of       the   circumstances:     the   informant    identified   the

seller     as    a    “skinny”    African-American      female     named   “April

Smith”; Smith resided in Lincoln County, North Carolina, 2 and


      2According to the 2010 census, Lincoln County is a county
of approximately 78,265 people, increasing the probability that
Smith was the April Smith that sold the drugs to the
confidential informant and thereby adding support to the finding
(Continued)
                                         24
approximately eleven miles from where the drug transaction took

place;    she    is    an     African-American          female;    Smith   has    been

convicted of multiple felony drug offenses, including the sale

of drugs; Smith weighed approximately 166 pounds nine months

after    the    drug   sale    when    she       was   arrested,   which   could    be

considered      “skinny”;      and    her    arrest      records    reflect      weight

fluctuations between 125 and 213 pounds.                   In fact, the evidence

of probable cause is stronger in this case because there was no

contradictory evidence 3 as in Durham where the plaintiff had no



of probable cause.       See QuickFacts: Lincoln County, North
Carolina,              U.S.            Census             Bureau,
https://www.census.gov/quickfacts/table/POP010210/37109     (last
visited Jan. 30, 2017) (saved as ECF opinion attachment); see
also United States v. Gregory, 871 F.2d 1239, 1245 (4th Cir.
1989) (taking judicial notice of census data).
     3 The majority errs in its claim of contradictory evidence

of other April Smiths.    There are two sets of “search results”
in the record.    See Suppl. J.A. 40-42 (first set); Suppl. J.A.
97-99 (second set).     A search conducted on February 4, 2010,
yielded the first set of results.     A November 9, 2011, search
returned the second set of results.      Both of these searches
occurred after the December 22, 2009, arrest date, and therefore
the majority cannot use either to contradict the evidence
supporting the magistrate’s finding of probable cause.
     The   majority   opinion  cites  to   pages  40-41  of   the
Supplemental Joint Appendix (the first set of results) for its
proposition that Munday discovered multiple African-American
women named April Smith weighing between 130-140 pounds prior to
obtaining the arrest warrant.     Within the same citation, the
majority also cites to the oral argument, in which Munday’s
attorney stated:
     In addition to identifying Ms. Smith, Officer Munday
     also ran a criminal history, and, as the Court has
     pointed out, and only ran a criminal history, but as
     the Court has pointed out, identified three April
(Continued)
                                            25
connection to a Jeep, did not reside in Virginia at the time of

the   drug   purchases,   and   was    significantly       younger   than    the

informant’s age description.           Despite this stronger evidence,

the   majority   in   hindsight       arrives   at   the    conclusion      that




      Smiths in Lincoln County, and April Smith, the
      plaintiff, has a very significant criminal history of
      doing this exact same thing -- possessing and selling
      cocaine -- dating back to the late 90s and throughout
      the 2000s.
Oral Argument at 18:37, Smith v. Munday, No. 15-1092 (4th Cir.
Sept. 20, 2016).
     The first set of results, on which the majority relies,
lists five different women named April Smith from unknown areas
and originated from the National Crime Information Center.       In
turn, the second set of results lists three women, two from
Lincoln County and one from adjacent Catawba County, and
originated from the Lincoln County Sheriff’s Office.        Compare
Suppl. J.A. 40-42, with Suppl. J.A. 97-99.        Because Munday’s
attorney spoke of search results consisting of three women in
Lincoln County, he was probably referencing either the second
set of search results or search results not in the record, not
the search results to which the majority cites.
     It is also apparent that Munday settled on Smith as the
suspect before conducting the first search because he searched
for her full name, “April Yvette Smith,” along with her birth
date. Suppl. J.A. 40. Therefore, those search results clearly
were not used to identify Smith as the suspect.        Furthermore,
the second set of results does not support the majority’s
reasoning either because the two women returned by the search
other than Smith were Caucasian.     They were conclusively ruled
out as suspects because of their race, leaving only Smith.
Thus, even if the dates of the searches are disregarded in
assessing   whether   probable   cause   existed,    the   majority
mischaracterizes the evidence to erroneously support a finding
of contradictory evidence.


                                       26
probable cause was lacking. 4      Viewed properly under the totality

of the circumstances, that conclusion is erroneous.

                                    B.

       An official is not entitled to qualified immunity if he or

she “(1) violates a constitutional right and (2) that right was

clearly established.”       Graham v. Gagnon, 831 F.3d 176, 182 (4th

Cir. 2016).      “If the right was not ‘clearly established’ in the

specific context of the case -- that is, if it was not clear to

a   reasonable   officer   that   the   conduct       in    which    he   allegedly

engaged was unlawful in the situation he confronted -- then the

law affords immunity from suit.”         Clem v. Corbeau, 284 F.3d 543,

549 (4th Cir. 2002).       It follows that “[t]he right at issue here

is not the general right to be free from arrest without probable

cause, but rather the right to be free from arrest under the

particular circumstances of th[is] case.”                  Graham, 831 F.3d at

182.       If    the   Court   finds     that     a        clearly    established


       4
       There is nothing in the record that indicates that Smith
protested her arrest as a case of mistaken identity at any time
between her arrest and release.      Smith’s affidavit, the only
evidence supporting her response to the defendants’ motion for
summary judgment, maintains only that she did not sell any drugs
on the date of the controlled purchase, did not know the
informant, and had employment during that period. Her affidavit
does not deny that she was present at the controlled purchase
location on the date and time of the sale, and she has presented
no alibi. The record does not reflect the basis upon which the
prosecution   dismissed   the   charges    against  Smith,  and,
consequently, no conclusions can be drawn from that occurrence
that are relevant to probable cause.


                                    27
constitutional right has been violated, it will then “determine

whether a reasonable person in the officer’s position would have

known that his or her actions violated that right.”                                Smith v.

Reddy, 101 F.3d 351, 355 (4th Cir. 1996).                      A government official

does not lose qualified immunity merely by making a mistake.

Rather, the mistake must be unreasonable.                          See Messerschmidt v.

Millender, 565 U.S. 535, ___, 132 S. Ct. 1235, 1249 (2012).

Qualified immunity “protects law enforcement officers from bad

guesses in gray areas and ensures that they are liable only for

transgressing bright lines.”              Wilson v. Layne, 141 F.3d 111, 114

(4th Cir. 1998) (en banc).

     In    a    Fourth    Amendment       seizure          case,    “the    fact    that   a

neutral    magistrate      has   issued          a        warrant    is     the    clearest

indication that the officers acted in an objectively reasonable

manner.”       Messerschmidt, 132 S. Ct. at 1245.                      The magistrate’s

decision will be insufficient to show objective reasonableness

only when “it is obvious that no reasonably competent officer

would    have   concluded    that     a    warrant          should    issue,”      such    as

“where    the   warrant    was   based      on       an    affidavit       so   lacking    in

indicia of probable cause as to render official belief in its

existence entirely unreasonable.”                    Id.      The Supreme Court has

recognized that “the threshold for establishing this exception

is a high one.”      Id.    “The occasions on which this standard will

be met may be rare, but so too are the circumstances in which it

                                           28
will    be    appropriate      to   impose     personal     liability   on   a   lay

officer in the face of judicial approval of his actions.”                        Id.

at 1250.

       An    officer    is    not   required    to   “exhaust   every   potential

avenue of investigation before seeking and obtaining a warrant.”

United States v. McNeal, 818 F.3d 141, 151 (4th Cir. 2016);

Wadkins v. Arnold, 214 F.3d 535, 543 (4th Cir. 2000) (“That [the

investigator’s] efforts could have been more thorough, or even

that his actions may have been mistaken, does not mean that they

were unreasonable.”); see also Torchinsky v. Siwinski, 942 F.2d

257,    264    (4th    Cir.    1991)   (“It    will,   of    course,    always     be

possible to contend in court that an arresting officer might

have gathered more evidence, but judges cannot pursue all the

steps a police officer might have taken that might have shaken

his belief in the existence of probable cause.”).

       As discussed above, Munday knew the first and last name,

race, gender, and physical description of the person who sold

drugs   to    the     confidential     informant.      Munday    also   knew     that

Smith was a local resident of the county in which the drug

purchase took place, resided within eleven miles of the location

of the drug purchase, and had been convicted on multiple felony

drug charges.          Armed with this information, under the totality

of the circumstances, Munday obtained a warrant from a neutral

magistrate.         It is one thing to say that the amount of evidence

                                         29
in    this     case    is    a    close       call      on    probable          cause   upon    which

reasonable triers of fact could differ.                              It is another entirely

to say, as the majority does, that probable cause was so lacking

that Munday could not rely on a neutral magistrate’s probable

cause determination.

       While the majority finds probable cause totally lacking, it

has cited to no case with circumstances similar to this one in

which    the      Court     found       a    complete         dearth       of    probable      cause.

Thus, it is baffling how the majority can now find that Munday

had      “fair         warning              that        his        alleged         conduct        was

unconstitutional.”                Miller v. Prince George’s Cty., Md., 475

F.3d 621, 631 (4th Cir. 2007).                               Munday’s “judgment that the

scope of the warrant was supported by probable cause may have

been     mistaken,           but        it     was        not       plainly         incompetent.”

Messerschmidt, 132 S. Ct. at 1249.                             Nor did the magistrate in

this case “so obviously err[] that any reasonable officer would

have recognized the error.”                    Id. at 1250.            The majority opinion

leaves       no   room      for    the       “reasonable           error”       inherent     in   the

qualified immunity analysis –- particularly where, as here, the

officer obtained a warrant from a neutral magistrate -- and is

not consonant with our qualified immunity jurisprudence, which

does     not      support        this       type     of       de    novo        hindsight.        Its

overzealous use of retroactive perfection chills the effective

operation         of   law        enforcement           officers,          “impair[ing]         their

                                                   30
ability to protect the public,” Torchinsky, 942 F.2d at 259, and

causing     “overdeterrence       of    energetic       law     enforcement    by

subjecting governmental actors to a high risk of liability,”

Rowland v. Perry, 41 F.3d 167, 172 (4th Cir. 1994). 5

     If nothing else, Munday could have reasonably relied on our

decision    in   Durham,   for    the   reasons      stated   in   the   previous

section.     The   majority      goes   to   great    lengths    to   distinguish

Durham from the current case.            If it takes a federal court of

appeals, albeit by a split panel, to distinguish Durham, then it

is apparent that Munday was not put on notice by any “clearly

established” law that his actions were unreasonable.                     Assuming,

as the majority holds, that probable cause was indeed lacking,

this case plainly presents one of those “gray areas” that we

spoke of in Wilson.        Munday is therefore entitled to qualified

immunity.

     For the foregoing reasons, I respectfully dissent from the

majority’s reversal of the district court’s probable cause and

qualified immunity rulings as to Officer Munday.                      I otherwise

concur in the majority opinion.




     5 The majority’s conclusion is based on the evidence as it
is presented at this stage of the proceedings.       I note that
Munday and any other affected defendants are certainly entitled
to renew their arguments regarding probable cause and qualified
immunity based on the evidence adduced on the merits at trial.


                                        31
