                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 13-1923


ROY ROGERS,

                 Plaintiff - Appellee,

           and

DAWN LINDSAY,

                 Plaintiff,

           v.

CHRISTOPHER STEM,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Anthony J. Trenga,
District Judge. (1:12-cv-00976-AJT-JFA)


Argued:   September 16, 2014                 Decided:   November 6, 2014


Before DUNCAN, AGEE, and DIAZ, Circuit Judges.


Affirmed by unpublished opinion.        Judge Duncan         wrote   the
opinion, in which Judge Agee and Judge Diaz joined.


ARGUED: Robert A. Dybing, THOMPSON MCMULLAN PC, Richmond,
Virginia, for Appellant. Victor M. Glasberg, VICTOR M. GLASBERG
& ASSOCIATES, Alexandria, Virginia, for Appellee.    ON BRIEF:
Mark R. Colombell, THOMPSON MCMULLAN PC, Richmond, Virginia;
Yvonne S. Gibney, Senior Assistant County Attorney, OFFICE OF
THE   COUNTY   ATTORNEY,  Hanover,  Virginia,  for   Appellant.
Bernadette Armand, VICTOR M. GLASBERG & ASSOCIATES, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:

     Defendant-Appellant Christopher Stem (“Officer Stem”), an

investigator with the Hanover County Sheriff’s Office (“HCSO”)

Narcotics        Unit       in     Hanover,     Virginia,      appeals        the     district

court’s     denial          of   his   motion    for    summary      judgment        based    on

qualified immunity.                 Plaintiff-Appellee Roy Rogers (“Rogers”),

manager     of    Custom         Blends   Tobacco      Store       (“Custom    Blends”)       in

Hanover, Virginia, brought a 42 U.S.C. § 1983 action against

Officer     Stem       in    his    individual       capacity,       alleging       that   Stem

arrested     him        in       violation      of    the     Fourth     and        Fourteenth

Amendments to the United States Constitution because Stem lacked

probable     cause          to   support      the    warrant       issued     for     Rogers’s

arrest. 1        The    district       court    found       that    Officer    Stem     lacked

probable cause and was not entitled to qualified immunity.                                   For

the reasons that follow, we affirm.




     1
       Dawn Lindsay, a store clerk at Custom Blends, was also
arrested with Rogers and charged with the same violations of
Virginia law.    Like the charges against Rogers, the charges
against Lindsay were dismissed at a preliminary hearing.
Lindsay also filed a § 1983 claim against Officer Stem, but
voluntarily dismissed her claim on January 15, 2013.



                                                3
                                         I.

                                         A.

       Rogers     was    the   manager   of   Custom    Blends    at     all     times

pertinent to this appeal.            The store sells tobacco and incense

products.        The incense products include “air freshener sprays,

car vent deodorizers, incense candles, incense sticks, incense

cones, and incense burners with aromatic oils, aromatic solids

or herbal incense to be heated therein.”                  Rogers v. Stem, No.

1:12-cv-976 (AJT), 2013 WL 3338651, at *1 (E.D. Va. July 2,

2013);    J.A.    468.     This   case   concerns      Custom    Blends’s      herbal

incense products, particularly one called “Bayou Blaster.”

       In early 2011, law enforcement agencies began recognizing

herbal incense as a source of synthetic cannabinoids (also known

as    “synthetic     marijuana”     or   “Spice”).       In     March    2011,    the

Virginia General Assembly enacted Va. Code Ann. § 18.2-248.1:1

(“the Virginia statute” or “the statute”), which criminalizes

the possession, sale, distribution, and manufacture of synthetic

cannabinoids.        Id. § 18.2-248.1:1 §§ (B)–(C), (E).                The statute

identifies substances containing synthetic cannabinoids in two

ways.     First, section (A) lists a number of chemical compounds

specifically banned by the statute--the inclusion of which in

any     detectable      amount    renders     a   substance     subject     to    the

statute.     Second, section (F) criminalizes substances that meet



                                         4
certain criteria, but are not explicitly listed in section (A).

The full text of section (F) provides:

     Any drug not listed in this section or the Drug
     Control Act (§ 54.1-3400 et seq.), which is privately
     compounded, with the specific intent to circumvent the
     criminal penalties for synthetic cannabinoids, to
     emulate   or    simulate   the effects    of  synthetic
     cannabinoids through chemical changes such as the
     addition, subtraction or rearranging of a radical or
     the   addition,    subtraction or   rearranging  of   a
     substituent, shall be subject to the same criminal
     penalties as for synthetic cannabinoids.

Va. Code Ann. § 18.2-248.1:1(F) (2011). 2   In other words, section

(F) criminalizes substances that were (1) privately compounded,


     2
       The Virginia General Assembly amended the statute in 2012
to expand the list of chemical compounds in section (A).     See
Va. Code Ann. § 18.2-248.1:1 (2012); J.A. 30–31.     The General
Assembly repealed the statute in 2014 and added synthetic
cannabinoids   (now  termed  “cannabimimetic  agents”)   to  the
Virginia Code’s list of banned Schedule I substances.    See Va.
Code Ann. § 54.1-3446(7) (2014) (listing as Schedule I
substances the chemical compounds from the repealed statute’s
section (A), id. § 54.1-3446(7)(b), as well as substances that
fall within any of a number of “structural classes,” id. § 54.1-
3446(7)(a)).

     Another section under the same chapter bans “controlled
substance analog[s].”    See id. § 54.1-3456.     This section
appears intended to serve a function analogous to the function
that the General Assembly likely intended section (F) of the
repealed statute to serve. It bans substances not listed under
Schedule I that mimic Schedule I substances, with the following
language:

     A controlled substance analog shall, to the extent
     intended for human consumption, be treated, for the
     purposes of any state law, as a controlled substance
     in Schedule I or II.     A controlled substance analog
     shall be considered to be listed on the same schedule
     as the drug or class of drugs which it imitates.



                                5
(2) with the specific intent to avoid the criminal penalties for

synthetic       marijuana,    (3)     to    mimic    the    effects    of    synthetic

marijuana, (4) through chemical changes.

     Following the passage of the Virginia statute, the HCSO

began visiting tobacco shopkeepers in the county to inform them

of the new law.         On April 13, 2011, two members of the HCSO, an

officer and an investigator, visited Custom Blends and spoke to

the store clerk.        During the visit, the officer and investigator

confiscated      various      herbal       incense   products     as   well    as   two

packets    containing        sample    products.           The   sample     products--

labeled “K2” and “Euphoria 5X”--were found in the store’s back

office    and    were   not    being       offered   for    sale.      The    Virginia

Department of Forensic Science (“DFS”) tested the confiscated

materials.       Both sample products tested positive for section (A)

substances, while the other items confiscated from the store

tested negative.         Rogers, 2013 WL 3338651, at *2 & n.8; J.A.

470–71, 71 n.8.




(continued)
Id.    Unlike section (F), this catchall provision does not
require private compounding or a specific intent of the private
compounder.

     That the General Assembly later repealed the statute at
issue need not alter our analysis. As will be discussed below,
Officer Stem was chargeable with knowledge of the law in place
at the time of the events leading to this case.



                                             6
       Officer Stem is an investigator for the HCSO.                               In this

capacity,           he      has     received        special       training         in    the

“identification, properties, and chemical composition of various

drugs, including synthetic cannabinoids.”                        Appellant’s Br. at 3.

Following the April 2011 visit, the HCSO began an undercover

investigation of Custom Blends, led by Officer Stem.                           On June 9,

2011, Officer Stem purchased 1.5 grams of herbal incense labeled

“Bayou          Blaster”    for     $37.99.        DFS     tested       the   incense     and

determined that it contained the chemical compound AM-2201.                              Id.

at 6.       In 2011, section (A) did not include AM-2201 in its list

of banned substances. 3               On subsequent visits to Custom Blends,

Officer Stem purchased an additional quantity of Bayou Blaster,

and    another         investigator       purchased       an   herbal    incense    product

labeled         “Hayze     Train    Wreck.”        Both    officers      purchased      glass

smoking pipes that were on display for sale near the herbal

incense products.            See Rogers, 2013 WL 3338651, at *3; J.A. 472;

Appellant’s Br. at 7.                Subsequent DFS lab tests confirmed that

none of the products purchased from Custom Blends by Officer

Stem       or    any     other     HCSO   officer     contained         any   section    (A)

substance.         Rogers, 2013 WL 3338651, at *3; J.A. 472.

       3
       The Virginia General Assembly added AM-2201 to the section
(A) list in 2012. See Va. Code § 18.2-248.1:1 (2012); J.A. 30–
31.      The  Virginia   Code   now  classifies   AM-2201  as   a
cannabimimetic agent banned under Schedule I.    Va. Code Ann. §
54.1-3446(7)(b).


                                               7
       Officer Stem consulted with the Hanover County Commonwealth

Attorney’s Office to review the evidence obtained from Custom

Blends and to receive guidance “regarding the interpretation and

application” of the Virginia statute.               Appellant’s Br. at 8.

Stem then prepared an affidavit to support a search warrant for

Custom Blends.      In the affidavit, Officer Stem asserted that he

had    made   undercover   purchases   of     “Spice”--referring      to    Bayou

Blaster--from     Custom   Blends.      The    affidavit    also    noted   that

Custom Blends had been notified of the Virginia statute, which

Stem described     as    “ma[king]   ‘Spice’    and   any   product    sold   as

‘Spice’ illegal.”       J.A. 365.

       The magistrate issued the search warrant on September 8,

2011, and the HCSO conducted a search of Custom Blends the same

day.     During the search, Officer Stem spoke with Rogers, who

acknowledged that he was the manager of the store and that he

maintained     records--including      toxicology     reports      accompanying

some of the herbal incense products--in his office at the store.

See Rogers, 2013 WL 3338651, at *3; J.A. 473.                      Rogers also

pointed out that the incense products sold by Custom Blends were

marked “not for human consumption.”            Rogers, 2013 WL 3338651, at

*3; J.A. 473.

       Following the search, Officer Stem, again in consultation

with the Hanover County Commonwealth Attorney’s Office, applied

for an arrest warrant for Rogers.             In support, Stem offered his

                                       8
own   sworn       oral    statements       as       well     as     the    affidavit       he   had

submitted with the search warrant application.                                   The magistrate

issued      the     arrest      warrant,           and      Rogers        was    arrested       for

“conspiracy and possession with intent to distribute synthetic

cannabinoids.”           Id. at *4; J.A. 474.

                                                   B.

      The    Hanover       County     General            District    Court       dismissed      the

charges     against        Rogers    at    the          preliminary        hearing     stage     on

February 17, 2012.               Roughly six months later, on August 30,

2012, Rogers filed a complaint under 42 U.S.C. § 1983 against

Stem, alleging that Stem arrested him in violation of the Fourth

and   Fourteenth         Amendments       to       the     United    States       Constitution.

Officer Stem moved for summary judgment on the grounds that he

had probable cause to arrest Rogers--citing the evidence his

investigation            had    produced           from      Custom        Blends      and      his

consultations        with      the   Hanover            County    Commonwealth        Attorney’s

Office--and        in     the    alternative,              that     he     was      entitled     to

qualified     immunity          because        a        reasonable        officer     in   Stem’s

position could have believed he or she had probable cause to

arrest Rogers.            See Mem. Supp. Def.’s Mot. Summ. J., Rogers,

2013 WL 3338651 (No. 1:12-cv-976 (AJT)).

      The district court denied Officer Stem’s motion for summary

judgment.     The court found that, because all of the lab tests of

products sold by Custom Blends came back negative for section

                                                   9
(A) substances, Rogers’s arrest could have been based only on a

section (F) violation.           The court concluded that Officer Stem

lacked probable cause to arrest Rogers under section (F), and

that the arrest therefore violated the Fourth and Fourteenth

Amendments.       In addition, the court found that Officer Stem was

not entitled to qualified immunity.                     The court reasoned that

section (F)’s requirement of the compounder’s specific intent

was clear on its face, a reasonable officer in Stem’s position

would     have    known   that     he     did     not    have      evidence       of     the

compounder’s      specific   intent,        and    without         evidence       of    that

“critical aspect” of section (F), a reasonable officer could not

have believed he had probable cause to arrest Rogers under that

provision.       See Rogers, 2013 WL 3338651, at *9; J.A. 486.                          This

appeal followed.



                                          II.

        Interlocutory     orders,        such     as     denials          of   qualified

immunity,     are    typically      not    appealable.              However,      when    a

qualified    immunity     determination         presents       a   question       of    law,

rather than a disputed question of fact, it may be immediately

appealed.     See Iko v. Shreve, 535 F.3d 225, 234 (4th Cir. 2008).

        The two issues presented here are questions of law: whether

Officer    Stem     established,     as    a    matter    of       law,    that    he    had

probable    cause    to   believe       that    Rogers    committed        the     charged

                                          10
offenses,   and   if   not,   whether   Officer   Stem   is    entitled   to

qualified immunity.        Therefore, our review of Officer Stem’s

interlocutory appeal is proper.



                                  III.

     That the two issues on appeal present questions of law also

determines the standard of review.        We review questions of law,

including probable cause and qualified immunity determinations,

de novo.    See United States v. Wilhelm, 80 F.3d 116, 118 (4th

Cir. 1996); Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003).

     We also review de novo a district court’s resolution of a

motion for summary judgment.       Shaw v. Stroud, 13 F.3d 791, 798

(4th Cir. 1994).       The standard requires that we “view the facts

and draw reasonable inferences in the light most favorable to

the party opposing the summary judgment motion.” 4            Iko, 535 F.3d

at 230 (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)).

Summary judgment is appropriate if “there is no genuine issue as

to material fact and . . . the moving party is entitled to


     4
       Officer Stem argues that under the Eastern District of
Virginia’s Local Civil Rule 56(B), Rogers was required to
respond to Stem’s proffered facts with a list of disputed facts.
We note, as did the district court, that Rogers did not do so.
While, in many cases, a party’s failure to comply with this
Local Rule could complicate the district court’s factual
determinations, and thus affect the record on appeal, that is
not the case here, as we accept Stem’s proffered facts.



                                   11
judgment as a matter of law.”            Shaw, 13 F.3d at 798 (quoting

Fed. R. Civ. P. 56(c)) (internal quotation mark omitted).

     We consider each of the two issues on appeal in turn.

                                    A.

     Officer Stem contends that he had probable cause to arrest

Rogers because he knew from his training and investigation of

Custom Blends that the store was selling “Spice,” and because

his investigation produced circumstantial evidence that Custom

Blends’s herbal incense products were intended to be used as

“Spice.”        We hold that Officer Stem lacked probable cause to

arrest Rogers under section (F) 5 because he failed to produce any

evidence regarding a critical component of that provision--that

the private compounder of the substances at issue had a specific

intent     to     evade   the   criminal     penalties   for   synthetic

cannabinoids.       We note at the outset the difficulty posed by

requiring culpability to turn on the state of mind of a non-

party.     However, the statute created this difficulty, and we may

not rewrite the statute to avoid it. 6




     5
       The parties agree that the basis for Officer Stem’s arrest
of Rogers was an alleged section (F) violation. Indeed, as all
of the lab tests performed on Custom Blends’s products for sale
came back negative for section (A) substances, Officer Stem
could have had probable cause only for a section (F) violation.
     6
       As we note above, the Virginia General Assembly repealed
the statute in 2014, included synthetic cannabinoids as banned


                                    12
     Officer       Stem      argues       that      he     gathered         sufficient

circumstantial evidence of the compounder’s specific intent to

conclude   that     Custom    Blends’s         herbal     incense    products        were

“formulated and marketed to smoke and get high.”                           Appellant’s

Br. at 15.      In particular, Officer Stem presents four bases for

asserting that such intent may be inferred: (1) the products’

marketing; (2) the products’ pricing; (3) that one product for

sale contained AM-2201, a chemical compound that the Virginia

General Assembly later added to the list of substances banned

under   section     (A);     and    (4)     that    the     products        came     with

toxicology      reports    and     labels      marking     them     “not    for     human

consumption.”

     Officer Stem’s arguments and his conflation of sections (A)

and (F) highlight the problem with the statute.                             We do not

question Officer Stem’s probable cause to believe that several

of   Custom     Blends’s     herbal       incense       products     were        “Spice.”

However,   he    provided     no    evidence       indicative       of     any    private

compounder’s specific intent.

     First, as to marketing, Officer Stem points to the names of

the products, such as “Bayou Blaster” and “Hayze Train Wreck,”

which he argues connote “getting high.”                   Appellant’s Br. at 18.


(continued)
Schedule I substances, and amended                  the    accompanying          catchall
provision. See supra note 2.



                                          13
The names may well be suggestive, but they do not suggest that

the    products’         compounder       had    the        specific       intent   to     avoid

criminal     prosecution.              Rogers    points       out    that    many   types    of

benign      and       legal   products     are       marketed       with    “alluring      names

suggestive of abandoned behavior.”                          Appellee’s Br. at 8.             For

example,     high-end         fragrances        by   well-respected          companies      Yves

Saint Laurent and Fresh are marketed with the names “Opium” and

“Cannabis,” respectively.

      In addition, Custom Blends’s herbal incense products appear

to have been labeled by the supplier or wholesaler, rather than

by the compounder.                See J.A. 351 (photograph of Bayou Blaster

label); Appellee’s Br. at 18 n.13 (containing the text of the

same Bayou Blaster label, including what appears to be the name

of    the    wholesaler,          Da    Scents       LLC,     and    its    email       address,

Aroma@DaScents.com).               Therefore,         even    if     the    products’      names

suggested         a    specific    intent       to    evade    criminal       penalties,      it

would not appear to be attributable to the compounder.

      Second,          the    products’        pricing       determinations         are     even

further removed from the compounder.                         Stem presents no evidence

to    suggest         that    pricing     is     anything       other       than    a     retail

determination.

      Third, Officer Stem argues that Bayou Blaster would not

have contained the chemical compound AM-2201 if the compounder

meant it to be used as herbal incense.                                However, when Stem

                                                14
purchased Bayou Blaster in June 2011, section (A) did not cover

AM-2201.   See Appellant’s Br. at 6; J.A. 29 (containing the 2011

version of the statute).            The Virginia General Assembly added

AM-2201 to the section (A) list in 2012.             See Appellant’s Br. at

6; J.A. 30–31.       Stem urges us to conclude that the presence of

that substance supports an inference that the private compounder

had a specific intent to evade the law.                Unlike the marketing

and the price, the ingredients of the product do evince choices

made by the compounder.            But the fact that a substance in the

product later became illegal under section (A) tells us nothing

about the specific intent of the private compounder, at some

indeterminate point in the past and wherever it may have been

located, to evade the law of Virginia.

      Fourth,   Officer      Stem    urges   us   to    conclude        that   the

products’ labeling marking them “not for human consumption” and

the   toxicology       reports     accompanying      them     demonstrate      the

specific   intent    of   the    compounder.      Appellant’s      Br.    at   27.

However,   as   Officer     Stem    notes,   these    products--labeled        and

accompanied     by     toxicology     reports--were         delivered    by    the

distributor.     Id.      The distributor’s knowledge or intent would

be relevant under section (F) only if Officer Stem alleged that

the distributor was also the private compounder.               He does not.

      We recognize that the Virginia statute was difficult to

enforce.   And we recognize that Officer Stem, whose job it was

                                       15
to enforce that law, faced a challenging task.                        Yet, it is plain

that Officer Stem provided no evidence of a private compounder’s

specific intent to circumvent the criminal penalties imposed by

the statute.          Though he had probable cause to believe that the

substances could emulate the effects of synthetic cannabinoids,

he lacked any reasonable belief about the compounder’s specific

intent, which was critical to culpability under the statute.                            We

therefore agree with the district court that Officer Stem lacked

probable cause to arrest Rogers.

                                             B.

       Officer Stem next contends that, even if this court holds

that     he    lacked     probable      cause       to     arrest      Rogers,    he    is

nonetheless protected by qualified immunity.                          He argues that a

reasonable officer with his training and experience could have

believed he or she had probable cause to arrest Rogers, and that

it     was    not    clearly       established      that    his       conduct    violated

Rogers’s constitutional rights.                   However, because section (F)’s

requirements are clear, and because it is clear that Officer

Stem failed to gather evidence supporting violation of them, we

conclude      that    Rogers’s      rights    under      these    circumstances        were

clearly       established.          Because   culpability         under    section     (F)

turns on the private compounder’s specific intent, and because

Officer       Stem    lacked   any      information        regarding       the    private

compounder’s         intent,   a    reasonable      officer      in    Stem’s    position

                                             16
could not have believed he or she had probable cause to arrest

Rogers.          Thus, we conclude that Officer Stem is not entitled to

qualified immunity.

       In        qualified     immunity       cases,      we      must       identify       with

particularity the right that the official is alleged to have

violated.         See Anderson v. Creighton, 483 U.S. 635, 640 (1987).

Rather than characterizing it as the general right to be free

from arrest without probable cause, the right at issue here is

the    right       to   be     free   from    arrest          under    the    circumstances

presented in this case.                See id. (“The contours of the right

must    be       sufficiently     clear   that      a    reasonable          official   would

understand that what he is doing violates that right.” (emphasis

added)).          In other words, Officer Stem loses the protection of

qualified immunity if it would have been clear to a reasonable

officer in his position that he or she lacked probable cause to

arrest Rogers for a section (F) violation.                              See Pritchett v.

Alford, 973 F.2d 307, 313–14 (4th Cir. 1992) (“[T]he right in

issue was the right not to be arrested except upon probable

cause       to     believe     that    [the    plaintiff]             had    violated       [the

regulation at issue].”).               That is the case here.                  Officer Stem

is    chargeable        with    knowledge      of       the    law.          See   Harlow    v.




                                              17
Fitzgerald, 457 U.S. 800, 818–19 (1982). 7                     The statute was clear

that section (F) required the compounder’s specific intent to

evade the penalties for synthetic cannabinoids, and Officer Stem

lacked any evidence supporting that requirement.

      Officer Stem also argues that the magistrate’s issuance of

the search and arrest warrants shows that Stem acted reasonably

in interpreting and seeking to enforce the law.                                    In typical

cases,    “the    fact    that    a   neutral      magistrate       .     .    .     issued   a

warrant is the clearest indication that the officers acted in an

objectively reasonable manner.”                  Messerschmidt v. Millender, 132

S. Ct. 1235, 1245 (2012).               However, it does not necessarily end

the   inquiry.      The     Supreme      Court     has       recognized       an    exception

“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. (quoting United States

v. Leon, 468 U.S. 897, 923 (1984)).

      Officer      Stem’s    warrant        application          cited        the    Virginia

statute    as    the     basis    for    the      suspected       offenses,          but   the

supporting       affidavit       provided      only      a     series     of        conclusory

      7
       Officer Stem argues that the Virginia statute’s lack of
judicial interpretation since enactment compels us to conclude
that the right was not clearly established. However, a statute
proscribing certain behavior as criminal may be clear, and the
rights underlying it clearly established, without adjudication.
See Pritchett, 973 F.2d at 314 (citing Anderson, 483 U.S. at
640).



                                            18
references to Custom Blends’s selling “Spice.”               J.A. 363–65.     It

did not specify the statutory section--(A) or (F)--under which

Officer Stem sought the warrant.                Nor did it provide any basis

for a reasonable belief that Rogers had violated section (F).

It referred only to the products purchased as “Spice,” without

disclosing that lab results had shown the products lacked any

chemical compound identified by the General Assembly as Spice,

and    without   providing      any   information        about    the     private

compounder or its specific intent.                In addition, the affidavit

mischaracterized the statute itself, asserting that the statute

“made ‘Spice’ and any product sold as ‘Spice’ illegal.”                     J.A.

365.    As the statute clearly requires the presence of certain

chemical compounds under section (A) or the specific intent of a

private compounder to evade the criminal penalties for synthetic

marijuana under section (F), it did not make “any product sold

as ‘Spice’” illegal.

       Accordingly,   Officer    Stem      is    not   entitled   to    qualified

immunity.



                                      IV.

       For the foregoing reasons, the district court’s denial of

Officer Stem’s motion for summary judgment is

                                                                        AFFIRMED.



                                      19
