                                     PUBLISHED

                        UNITED STATES COURT OF APPEALS
                            FOR THE FOURTH CIRCUIT


                                      No. 18-1845


TIFFANIE HUPP; R.H., a minor, by and through his next friend, Tiffanie Hupp;
CLIFFORD MYERS,

                    Plaintiffs – Appellants,

             v.

STATE TROOPER SETH COOK; COLONEL C.R. JAY SMITHERS,

                    Defendants – Appellees,

      and

WEST VIRGINIA STATE POLICE,

                    Defendant.


Appeal from the United States District Court for the Southern District of West Virginia,
at Charleston. Thomas E. Johnston, Chief District Judge. (2:17–cv–00926)


Argued: April 2, 2019                                          Decided: July 25, 2019


Before GREGORY, Chief Judge, and KING, Circuit Judge. 1


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

      1
        Judge Thacker was unable to participate in oral argument. The decision is filed
by a quorum of the panel pursuant to 28 U.S.C. § 46(d).
ARGUED:         John Eric Campbell, CAMPBELL LAW, Denver, Colorado;
Justin F. Marceau, UNIVERSITY OF DENVER, Denver, Colorado, for Appellants.
Michael Deering Mullins, STEPTOE & JOHNSON PLLC, Charleston, West Virginia,
for Appellees. ON BRIEF: Alene Anello, ALDF, Cotati, California, for Appellants.
Robert L. Bailey, STEPTOE & JOHNSON PLLC, Charleston, West Virginia, for
Appellees.




                                       2
GREGORY, Chief Judge:

       Appellant Tiffanie Hupp was arrested for obstruction when she attempted to stop a

state trooper from shooting her family’s dog. After her husband video-recorded the

incident, the state trooper entered the family’s home, without consent and without a

warrant, and seized several of the family’s electronic devices. Hupp, her minor son, and

her father-in-law filed suit against the state trooper, asserting various violations of the

Fourth Amendment under 42 U.S.C. § 1983.            The district court granted summary

judgment to the state trooper and denied Appellants’ motion for partial summary

judgment. Because issues of fact exist, we affirm the denial of Appellants’ partial

summary judgment motion but reverse the grant of summary judgment in Trooper Seth

Cook’s favor and remand for trial on each of Appellants’ claims.



                                            I.

                                            A.

       Buddy, a 13-year-old husky-Akita mix, lives with his owner, Appellant Clifford

Myers, in Waverly, West Virginia. Buddy has been the source of contention between

Myers and his neighbor David Wayne, who lives across the street.

       On May 9, 2015, the police were called out in response to a dispute earlier that day

between the two men over the dog. West Virginia State Troopers Seth Cook and Sean

Michael responded to the call. Trooper Cook was there to provide backup to Trooper

Michael. Upon their arrival, the troopers spoke with Myers, who was in his front yard

drinking a beer. The troopers then went across the street to speak with the Waynes. In

                                            3
speaking with the Waynes, Trooper Cook was told of the “ongoing problem” with Myers

over Buddy, that Buddy was, in their mind, “vicious and had killed several of their cats

and had chased the children.” J.A. 302. Trooper Cook was also told that Buddy had

chased Wayne’s grandmother back into the house and that Wayne’s grandfather had to

take a stick with him when he checked the mail “to shoo the dog away.” Id. 2

       At the time, Myers had another dog, a black Labrador, on a chain in his front yard;

Buddy was loose in the yard. According to Myers, Trooper Cook was aware that Buddy

was not on a leash. Trooper Cook testified, however, that he did not see Buddy when he

first went to speak with Myers. While the troopers spoke with the Waynes, Myers took

the Labrador off the chain and placed the chain on Buddy. Myers later explained that it

was mere happenstance that he switched the dogs; according to him, it was not because

“the black lab was the friendlier of the two dogs.” J.A. 82.

       After speaking with the Waynes, the troopers returned to Myers’s house. Trooper

Michael asked Myers for his identification.      Myers asked his daughter, Lindsey, to

retrieve it for him. As Lindsey headed back toward the house to retrieve the ID, Trooper

Cook followed her into Myers’s front yard. Trooper Cook testified that he followed

Lindsey “because of the people gathering in the door [of Myers’s home] and just a

general, again, situation awareness.” J.A. 208. At that point, Myers had six of his family

members at his house, and Trooper Cook wanted to “have a little bit of personal contact

with them to, again, determine their nature” and determine if “there were potential other

       2
         Myers maintained that Buddy had never harmed a person and simply chased
squirrels.

                                             4
people that [he] needed to be paying closer attention to.” J.A. 56, 207–08. Trooper Cook

also testified that, due to the slope of Myers’s front yard, he wanted to “get closer to

where [he] could see better than from down at the road in the driveway looking up at a

position of tactical advantage over [him].” J.A. 208.

      Video evidence captured much, but not all, of what happened next. 3 A dog barked

as Trooper Cook walked into Myers’s yard. J.A. 610 at 1:17–1:20. Trooper Cook, who

was trained to identify and “handle” aggressive dogs, took a few steps back after seeing

Buddy. J.A. 189, 610 at 1:20–1:22. He then pulled his gun out and, holding it with his

left hand, pointed it at Buddy.     J.A. 610 at 1:23–1:26.    Hupp, Myers’s 113-pound

daughter-in-law, ran down the front yard from near the house toward Trooper Cook. Id.

at 1:26–1:27. She stood with her left side next to Trooper Cook’s right side, her body

perpendicular to Trooper Cook. Buddy was at Hupp’s right. Hupp’s arms were at her

side and her hands were visibly empty. Id. at 1:26–1:28. Within seconds of Hupp’s

arrival, Trooper Cook grabbed Hupp’s left arm with his right hand. Id. at 1:29. A brief

struggle ensued during which Trooper Cook turned to his left, Hupp moved to her right

and directly facing Trooper Cook, all while the two struggled for two seconds with

Trooper Cook’s grasp on Hupp’s arm. Id. at 1:29–1:30. As Trooper Cook and Hupp

spun around, Hupp fell to the ground. Id. at 1:31. When Hupp stood up, Trooper Cook

      3
         To the extent the video depicts material facts of this case, we review those facts
as they are depicted in the video. Scott v. Harris, 550 U.S. 372, 380–81 (2007). Where,
however, the video “does not ‘clearly’ or ‘blatantly’ contradict” Hupp’s version of the
facts, we adopt her version in reviewing the grant of summary judgment to Trooper
Cook. Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 276–77 (4th Cir. 2011)
(quoting Scott, 550 U.S. at 378).

                                            5
grabbed her arms from behind and walked her to the police car parked a few feet away.

Id. at 1:34–39. Bending Hupp over the hood of the police car, the troopers handcuffed

her. Id. at 1:40–2:05.

       Though not depicted clearly in the video, Trooper Cook testified that after seeing

Buddy as he entered the yard, he yelled for someone to control the dog or to “get a hold

of your dog.” J.A. 201, 569–70. According to Trooper Cook, he did not at first notice

that Buddy was on a chain. Hupp testified that she ran toward Trooper Cook both in

response to Buddy’s barks but also in response to the trooper’s order to control the dog.

       Also not clear from the video is what was said by Trooper Cook and Hupp in their

brief encounter. Trooper Cook testified that he told Hupp at least twice to back away and

that her response was that he could not tell her what to do on her property. Trooper Cook

also maintained that Hupp was “cursing” and “screaming profanities” at him. J.A. 210,

509. Hupp testified, on the other hand, that she did not hear any of Trooper Cook’s

orders and simply told him, “Whoa, whoa, don’t do that, stop.” J.A. 121.

       Hupp’s husband, Ryan, recorded the incident with his cell phone from inside

Myers’s home. As Hupp was being arrested, she asked Ryan, “Did you get that on

video?” J.A. 86. Ryan answered, “Don’t worry, babe. I’ve got that shit.” J.A. 244.

Trooper Cook later testified that he understood that statement to mean that Ryan “was

glad he had” the video and “wouldn’t get rid of it for his—his possession of it.” J.A. 247.

       Upon learning that a video had been recorded, Trooper Cook “stepped in” to

Myers’s home without a warrant and without consent. J.A. 237, 258. He seized four

electronic devices: a child’s tablet and three cell phones, including Ryan’s phone that

                                             6
recorded the incident. J.A. 237, 572. 4 Trooper Cook explained in his deposition that it is

his practice to seize electronic recording devices without first obtaining a warrant if he

believes that someone has used the device to capture evidence. The State Police retained

the devices for a month before returning them.

                                            B.

       Hupp was charged with obstruction under West Virginia Code § 61-5-17(a). She

was arraigned, and after the magistrate judge concluded that probable cause existed for

her arrest, she was released on bond.       Following a jury trial in the Wood County

magistrate court, Hupp was acquitted.

       Appellants Hupp, Myers, and Hupp’s minor son—who witnessed his mother’s

arrest—filed suit against Trooper Cook, West Virginia State Police Colonel C.R. “Jay”

Smithers (the superintendent), and the West Virginia State Police. Appellants brought

several claims for violation of their constitutional rights under 42 U.S.C. § 1983 and

parallel state law claims. Appellants later amended their complaint, bringing claims

against the police officers in their individual and official capacities and against the West

Virginia State Police. The district court granted in part a motion to dismiss, dismissing

the claims against the West Virginia State Police and those brought against the police

officers in their official capacities. As a result, claims remained against only Trooper

Cook and Colonel Smithers in their individual capacities. The claims against Trooper

Cook included section 1983 claims for false arrest, excessive force, malicious

       4
        Trooper Cook testified that after he “took the phones,” Ryan and Tiffanie Hupp
gave him the passwords for the phones and signed a property receipt. J.A. 572–73.

                                             7
prosecution, unlawful search of Myers’s house, unlawful seizure of the electronic

devices, and unlawful seizure of Buddy; and state law claims for malicious prosecution,

intentional infliction of emotional distress (outrage), and battery. A claim for supervisory

liability under section 1983 also remained against Colonel Smithers.

       Trooper Cook and Colonel Smithers moved for summary judgment on all of the

remaining claims, and Appellants moved for partial summary judgment on the false

arrest, excessive force, and unlawful search and seizure claims. The district court granted

summary judgment to Trooper Cook and Colonel Smithers and denied summary

judgment to Appellants.     The district court found that Trooper Cook is entitled to

qualified immunity on the false arrest, excessive force, and malicious prosecution claims

brought under section 1983 as well as on the common law malicious prosecution claim.

The district court granted summary judgment to Trooper Cook on the outrage and battery

claims as well. Because the court found that Trooper Cook did not violate Hupp’s

constitutional rights, it granted summary judgment to Colonel Smithers on the one

remaining claim of supervisory liability against him.

       The district court also granted summary judgment to Trooper Cook on the

unlawful search and seizure claims. The court concluded that exigent circumstances

justified the search of Myers’s home and the seizure of the electronic devices because an

objectively reasonable officer would have believed that Myers’s family members would

destroy or conceal the video evidence before a warrant could be obtained. With respect

to the claim of unlawful seizure of Buddy, the court found that Trooper Cook’s actions



                                             8
did not “meaningfully interfere[ ]” with Appellants’ “possessory interest in Buddy.” J.A.

636.

          Appellants timely appealed the grant of summary judgment on the claims for false

arrest, excessive force, malicious prosecution, unlawful entry, and unlawful seizure of the

electronic devices. Appellants also appealed the denial of summary judgment in their

favor on the Fourth Amendment claims related to the entry of Myers’s home and seizure

of the electronic devices. Appellants did not appeal the grant of summary judgment on

the supervisory liability claim, claim for unlawful seizure of Buddy, or the state law

claims of outrage and battery.

          The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and

1367, and we have jurisdiction under 28 U.S.C. § 1291.



                                              II.

          We review a district court’s grant of summary judgment de novo, “applying the

same legal standards as the district court, and viewing all facts and reasonable inferences

therefrom in the light most favorable to the nonmoving party.” Heyer v. U.S. Bureau of

Prisons, 849 F.3d 202, 208 (4th Cir. 2017) (quoting T-Mobile Ne., LLC v. City Council of

Newport News, 674 F.3d 380, 384–85 (4th Cir. 2012)).                Summary judgment is

appropriate “if 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.” Id. (quoting Fed. R. Civ. P.

56(a)).     “A dispute is genuine if ‘a reasonable jury could return a verdict for the

nonmoving party.’” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013)

                                              9
(quoting Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012)). “A fact

is material if it ‘might affect the outcome of the suit under the governing law.’” Id.

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).



                                             III.

                                             A.

       We first address the district court’s determination that Trooper Cook is entitled to

qualified immunity on the claims for false arrest, excessive force, and malicious

prosecution. “The doctrine of qualified immunity shields government officials from

liability for civil damages when their conduct does not violate clearly established

constitutional or other rights that a reasonable officer would have known.” Sims v.

Labowitz, 885 F.3d 254, 260 (4th Cir. 2018). The doctrine is intended to “balance[ ] two

important interests—the need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Smith v. Ray, 781 F.3d 95, 100 (4th

Cir. 2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).                 It “gives

government officials breathing room to make reasonable but mistaken judgments, and

protects all but the plainly incompetent or those who knowingly violate the law.” Stanton

v. Sims, 571 U.S. 3, 5 (2013) (internal quotation marks and citation omitted).

       An official is not entitled to qualified immunity if he or she deprived an individual

of a constitutional right and that right was clearly established at the time of the violation.

Pearson, 555 U.S. at 231. Our analysis is, therefore, two-fold. We must determine

                                             10
whether the facts, viewed in the light most favorable to Appellants, show that Trooper

Cook violated Appellants’ constitutional or other rights and whether those rights were

clearly established at the time of Trooper Cook’s conduct such that a reasonable officer

would have known that the conduct was unconstitutional. Smith, 781 F.3d at 100. We

may consider either prong of the analysis first. Sims, 885 F.3d at 260. The question of

whether a right is clearly established is a question of law for the Court to decide.

Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992). The question of whether a

reasonable officer would have known that the conduct at issue violated that right, on the

other hand, cannot be decided on summary judgment if disputes of the historical facts

exist. Smith, 781 F.3d at 100. Thus, “while the purely legal question of whether the

constitutional right at issue was clearly established ‘is always capable of decision at the

summary judgment stage,’ a genuine question of material fact regarding ‘[w]hether the

conduct allegedly violative of the right actually occurred . . . must be reserved for trial.’”

Willingham v. Crooke, 412 F.3d 553, 559 (4th Cir. 2005) (alteration and omission in

original) (quoting Pritchett, 973 F.2d at 313).

                                        1. False Arrest

       We begin with Hupp’s false arrest claim. The Fourth Amendment protects “[t]he

right of the people to be secure in their persons . . . against unreasonable searches and

seizures.”   U.S. Const. amend. IV.        A seizure is unreasonable under the Fourth

Amendment if it is not based on probable cause. Dunaway v. New York, 442 U.S. 200,

213 (1979). Thus, “[i]f a person is arrested when no reasonable officer could believe . . .

that probable cause exists to arrest that person, a violation of a clearly established Fourth

                                             11
Amendment right to be arrested only upon probable cause ensues.” Rogers v. Pendleton,

249 F.3d 279, 290 (4th Cir. 2001) (citation omitted).

       The district court determined that a reasonable officer would have believed that

probable cause existed for Hupp’s arrest for obstruction. Appellants, on the other hand,

contend that the historical facts material to a probable cause finding are in dispute.

“Probable cause is determined by a ‘totality-of-the-circumstances’ approach.” Smith v.

Munday, 848 F.3d 248, 253 (4th Cir. 2017) (citing Illinois v. Gates, 462 U.S. 213, 230

(1983)). The 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.’” Id.

(quoting Graham v. Gagnon, 831 F.3d 176, 184 (4th Cir. 2016)). While we look to the

information available to the officer on the scene at the time, we apply an objective test to

determine whether a reasonably prudent officer with that information would have thought

that probable cause existed for the arrest. Graham, 831 F.3d at 185. Evidence sufficient

to secure a conviction is not required, but probable cause exists only if there is sufficient

evidence on which a reasonable officer at the time could have believed that probable

cause existed for the arrest. Wong Sun v. United States, 371 U.S. 471, 479 (1963).

       Because the probable cause inquiry is informed by the “contours of the offense” at

issue, we are guided by West Virginia law in determining the scope of the offense of

obstruction proscribed by West Virginia Code § 61-5-17(a)—the offense for which Hupp

was arrested. Rogers, 249 F.3d at 291; see Graham, 831 F.3d at 188 (Although “an

actual lack of probable cause is not dispositive for qualified immunity purposes[,] . . .

[t]he boundaries of the statute [allegedly violated by the plaintiff] are extremely relevant

                                             12
to an assessment of whether [an officer’s] mistake was reasonable.”). The plain language

of the statute establishes that a person is guilty of obstruction when she, “by threats,

menaces, acts or otherwise forcibly or illegally hinders or obstructs or attempts to hinder

or obstruct a law-enforcement officer, probation officer or parole officer acting in his or

her official capacity.” W. Va. Code § 61-5-17(a).

       Interpreting this statute, the Supreme Court of Appeals of West Virginia has held

that a person is guilty of obstruction when she “check[s] or hamper[s] the action of the

officer,” does “something which hinders or prevents or tends to prevent the performance

of [the officer’s] legal duty,” or acts in “direct or indirect opposition or resistance to the

lawful discharge of [the officer’s] official duty.” State v. Johnson, 59 S.E.2d 485, 487

(W. Va. 1950). As West Virginia’s high court has “succinct[ly]” explained, to secure a

conviction under section 61-5-17(a), the State must show “forcible or illegal conduct that

interferes with a police officer’s discharge of official duties.” State v. Davis, 735 S.E.2d

570, 573 (W. Va. 2012) (quoting State v. Carney, 663 S.E.2d 606, 611 (2008)). Because

conduct can obstruct an officer if it is either forcible or illegal, a person may be guilty of

obstruction “whether or not force be actually present.” Johnson, 59 S.E.2d at 487.

However, where “force is not involved to effect an obstruction,” the resulting obstruction

itself is insufficient to establish the illegality required by section 61-5-17. Carney, 663

S.E.2d at 611. That is, when force is not used, obstruction lies only where an illegal act

is performed. This is because “lawful conduct is not sufficient to establish the statutory

offense.” Id.



                                             13
       Of particular relevance to our inquiry here, West Virginia courts have held that

“when done in an orderly manner, merely questioning or remonstrating with an officer

while he or she is performing his or her duty, does not ordinarily constitute the offense of

obstructing an officer.” State v. Srnsky, 582 S.E.2d 859, 867 (W. Va. 2003) (quoting

State ex rel. Wilmoth v. Gustke, 373 S.E.2d 484, 486 (W. Va. 1988)). For example, the

Supreme Court of Appeals has found that no obstruction is committed when a property

owner asks a law enforcement officer, “without the use of fighting or insulting words or

other opprobrious language and without forcible or other illegal hindrance,” to leave her

property. Wilmoth, 373 S.E.2d at 487. This principle is based on the First Amendment

“right to question or challenge the authority of a police officer, provided that fighting

words or other opprobrious language is not used.” Id.; see Graham, 831 F.3d at 188

(“Peaceful verbal criticism of an officer who is making an arrest cannot be targeted under

a general obstruction of justice statute . . . without running afoul of the First

Amendment.” (citation omitted)).

       On the other hand, certain “threats, language, and menacing demeanor” can

constitute obstruction. State v. Davis, 483 S.E.2d 84, 87 (W. Va. 1996). In Davis, for

example, a police officer responded to a call of shots fired and encountered an intoxicated

man who was fighting with his live-in girlfriend. Id. The man told the officer that he had

a loaded shotgun in the corner of the home, “gestured toward the gun, reminded the

officer in a threatening manner that it was loaded, and employed language indicative of

both his agitated state and his intention to discharge the gun at any time and any place he

chose.” Id. The police officer exited the home and was forced to call for backup. Id. at

                                            14
86.   The court concluded that the “verbal threats and behavior” “had the effect of

hindering the police investigation of shots [ ] fired.” Id. at 87.

       With respect to conduct that involves more than mere verbal interactions with law

enforcement, obstruction may be found when a person refuses to comply with an officer’s

order. For example, the Supreme Court of Appeals of West Virginia upheld a conviction

for obstruction where the defendant was told that he was being placed under arrest and

then “struggled against arrest.” State v. Forsythe, 460 S.E.2d 742, 745–46 (W. Va.

1995). More recently, the court upheld a conviction for obstruction where the defendant

refused to obey a state trooper’s numerous orders to stand to be frisked, began a physical

altercation with the trooper, and ultimately grabbed the trooper’s baton and struck the

trooper twice on the head. State v. Lowery, No. 17-0210, 2018 WL 2193241, at *1, 5 (W.

Va. May 14, 2018) (unpublished).

       Applying these principles here, we find that disputes of fact preclude a finding that

a reasonable officer in Trooper Cook’s position would have believed that probable cause

existed for Hupp’s arrest. Trooper Cook maintains that Hupp’s obstruction began when

she approached him in “an aggressive manner” and continued as she failed to comply

with his orders and “met [Trooper Cook’s order] with a verbal further noncompliance.”

J.A. 210. First, disputes of fact exist with respect to Hupp’s verbal interaction with

Trooper Cook. The video evidence shows Hupp running toward Trooper Cook, with her

arms to her side and her hands empty, after he pulled a gun on her father-in-law’s dog.




                                              15
She testified that she said only “Whoa, whoa, don’t do that, stop.” J.A. 121–22. 5 Even if

Trooper Cook’s testimony is to be believed—that Hupp told him that he could not tell her

what to do on her property—such language is a challenge to the trooper’s authority and

does not constitute the type of menacing language found be to obstructionist in Davis.

The parties dispute, however, whether Hupp also cursed at Trooper Cook when she

approached him.     Compare J.A. 210 (Trooper Cook’s testimony that Hupp was

“screaming profanities” at him) and J.A. 509 (criminal complaint describing Hupp as

“cursing”), with J.A. 122 (Hupp’s testimony that “[t]here was no cussing”) and J.A. 140

(Dalton’s testimony that Hupp was not cursing). While a reasonable jury could credit

Trooper Cook’s version of the interaction, it could instead believe Hupp that no “fighting

or insulting words or other opprobrious language” were used. Wilmoth, 373 S.E.2d at

487.

       Disputes of fact also exist with respect to Hupp’s alleged failure to comply with

Trooper Cook’s order to step aside. See Lowery, 2018 WL 2193241, at *5. Trooper

Cook testified that he gave at least two orders to Hupp to step back, with which she

refused to comply. J.A. 570. Specifically, he testified that he told Hupp to “step back”;

that Hupp responded, “You can’t tell me to f-ing do that”; that he then told Hupp,

“Ma’am, I’m not asking you; I’m telling you. Step back”; and that Hupp was “coming

back with her opinions and why she’s not going to comply.” J.A. 215. The defense’s


       5
         The video does not contain clear audio of the incident. Therefore, we must look
to the parties’ respective deposition testimony and other evidence in the record regarding
what was said.

                                           16
expert described three orders for Hupp to step back. J.A. 443. 6 Hupp, on the other hand,

testified that her only words to Trooper Cook were, “Whoa, whoa, don’t do that, stop”

and that she “didn’t get a chance to hear” any of Trooper Cook’s orders. J.A. 121–22.

Trooper Cook even acknowledged that Hupp had only “a split second to comply” with

his order before he grabbed her arm. J.A. 604. Clearly, there is a dispute as to whether

Hupp refused to comply with Trooper Cook’s orders or was even given the opportunity to

comply with them before she was arrested mere seconds later.

       Indeed, there is evidence to suggest that, rather than defying Trooper Cook’s order

to step back, Hupp was actually acting to comply with his earlier order to restrain Buddy.

Hupp testified in deposition that she approached Trooper Cook and Buddy partly in

response to Trooper Cook’s undisputed command to “get control of the dog” or “get a

hold of your dog.” J.A. 121, 201, 569–70. Although Trooper Cook testified that Hupp

began to obstruct him when she approached him in an “aggressive manner,” J.A. 209–10,

Trooper Michael testified that Hupp’s “coming down the hill” toward Trooper Cook and

Buddy after Trooper Cook’s command to control Buddy “could be viewed as complying

with his request,” J.A. 316.

       On this disputed evidence, we cannot conclude that a reasonable officer in Trooper

Cook’s position would have believed that probable cause existed for Hupp’s arrest. With


       6
          All of these orders, and Hupp’s responses and “opinions,” are alleged to have
been spoken in the incredibly short period of two seconds. Such a back-and-forth
exchange would seem to require more than two seconds. At this stage, however, like the
district court, we make no determination regarding the credibility of Trooper Cook’s
testimony.

                                           17
the facts viewed in the light most favorable to Hupp, the record shows that she ran to

Trooper Cook to comply with his order to have Buddy controlled. Her arms were down

at her side and her hands visibly empty. She told Trooper Cook to stop but did not curse

at him. Yet a mere second or two later, before she heard any order to move, Trooper

Cook grabbed her arm and flung her to the ground. Such facts do not reasonably support

a charge of obstruction under West Virginia law. Accordingly, we reverse the grant of

summary judgment on the false arrest claim. 7

                                     2. Excessive Force

       Turning to Hupp’s excessive force claim, we also conclude that the district court

erred in granting summary judgment to Trooper Cook on qualified immunity grounds.

The Fourth Amendment prohibits police officers from “using excessive force to seize a

free citizen.” Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003); Graham v. Connor,

490 U.S. 386, 395 (1989). Rather, police officers are constitutionally permitted to use

only that force which is reasonable under the circumstances.




       7
          Appellants presented expert reports and deposition testimony from two expert
witnesses, an expert in canine behavior and an expert in police training. Appellants argue
that the expert testimony establishes the unreasonableness of Trooper Cook’s actions in
the way in which he approached Buddy and drew his gun. According to Appellants, the
district court’s failure to engage with any of their proffered expert testimony constitutes
reversible error in itself. As we have explained, the district court’s grant of qualified
immunity on the false arrest claim is reversed for reasons other than the court’s failure to
engage with the expert evidence. That being said, we note that the district court did not
address the expert testimony in its evaluation of the summary judgment motions. We
expect that upon remand, the expert testimony presented by the parties will be
appropriately addressed, including any objections to the admissibility of that testimony.

                                            18
       In determining whether excessive force was used, we consider the facts “from the

perspective of a reasonable officer on the scene,” without the “20/20 vision of hindsight.”

Graham, 490 U.S. at 397. Therefore, while we do not consider the officer’s “intent or

motivation,” Jones, 325 F.3d at 527 (quoting Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir.

1996)), we ask “whether a reasonable officer in the same circumstances would have

concluded that a threat existed justifying the particular use of force,” Elliott, 99 F.3d at

642 (citing Graham, 490 U.S. at 396–97). In answering this question, we consider

several factors, including “the severity of the crime at issue,” whether the “suspect

pose[d] an immediate threat to the safety of the officers or others,” and whether the

suspect was “actively resisting arrest or attempting to evade arrest by flight.” Graham,

490 U.S. at 396; Jones, 325 F.3d at 527. We also consider the extent of the plaintiff’s

injuries. Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994). Ultimately, we must

decide “whether the totality of the circumstances justifie[d] a particular sort of . . .

seizure.” Smith, 781 F.3d at 101 (omission in original) (quoting Tennessee v. Garner,

471 U.S. 1, 8–9 (1985)).

       Here, Hupp alleges that Trooper Cook used unlawful force against her by

“grabbing and throwing” her to the ground and “pushing her against the police car.” J.A.

25. We first dispense with Hupp’s argument that because she was unlawfully arrested,

the use of any force was necessarily unconstitutional. Certainly, we may consider any

lack of probable cause for the arrest as we evaluate the reasonableness of the force used.

But we consider the crime that is alleged to have been committed in connection with our

overall analysis of all of the circumstances surrounding the use of force. See Graham,

                                            19
490 U.S. at 396; Jones, 325 F.3d at 528–31 (explaining that the lack of any crime

committed by plaintiff weighed heavily in favor of plaintiff’s excessive force claim but

nonetheless evaluating remaining Graham factors).

       Moreover, we do not make any determination as to whether Hupp’s arrest was

actually unlawful. Our finding that Trooper Cook is not entitled to qualified immunity on

the false arrest claim at this stage of litigation does not preclude a finding at a later stage

that he lawfully arrested Hupp; a trier of fact could resolve the factual disputes that

currently exist in Trooper Cook’s favor. Therefore, we cannot agree with Hupp that our

evaluation of the grant of qualified immunity on the excessive force claim turns entirely

on any lack of probable cause for her arrest. Instead, we evaluate the totality of the

circumstances surrounding the use of force against her.

       In evaluating those circumstances, we note that the extent of Hupp’s injuries is

slight. The complaint alleges that Hupp suffered emotional trauma, including anxiety and

an inability to sleep, as well as physical injuries. According to her medical records, Hupp

suffered from middle and lower back pain and was diagnosed with a contusion and

lumbosacral strain two days after the incident with Trooper Cook. J.A. 543–44. The

record contains no additional evidence of injury. There is no evidence of serious or

permanent physical injuries. Cf. Rowland, 41 F.3d at 172, 174 (finding extent of injuries

significant where plaintiff suffered torn ligament in his leg, underwent two surgeries, and

remained permanently partially disabled).

       Hupp’s minor injuries, however, are “but one ‘consideration in determining

whether force was excessive.’” E.W. by and through T.W. v. Dolgos, 884 F.3d 172, 185

                                              20
(4th Cir. 2018) (quoting Jones, 325 F.3d at 530). Other factors call into question the

reasonableness of the use of force against Hupp. First, the severity of the crime for which

she was arrested is slight: obstruction is a misdemeanor. See W. Va. Code § 61-5-17(a).

When the offense is a “minor one,” we have found “that the first Graham factor weighed

in plaintiff’s favor.” Jones, 325 F.3d at 528 (citations omitted). We see no reason to find

otherwise here.

       Second, the evidence suggests that Hupp did not “pose[ ] an immediate threat to

the safety of the officers or others.” Graham, 490 U.S. at 396; Jones, 325 F.3d at 528.

The district court found that this factor weighed in favor of qualified immunity, as Hupp

positioned herself between Trooper Cook and Buddy, “which could reasonably be

construed as hindering Cook’s ability to protect himself.” J.A. 620. A review of the

record, however, suggests otherwise.      Hupp is a slender, short, 113-pound female.

Trooper Cook, on the other hand, weighs 200 pounds, is a trained police officer, and had

undergone training in how to identify and handle aggressive dogs months before Hupp’s

arrest. Trooper Cook was armed, had his gun drawn, and the video shows that Hupp

approached him with her arms down and hands visibly empty. Hupp stood perpendicular

to Trooper Cook, did not place herself directly in front of him or his drawn gun, and it

was only after Trooper Cook grabbed her arm that she moved in front of his weapon. In

light of these facts, we cannot agree with the district court that, as a matter of law, Hupp

posed a sufficient threat to tip the scale in Trooper Cook’s favor. See Smith, 781 F.3d at

102 (finding that second Graham factor weighed in favor of section 1983 plaintiff where

plaintiff was a “smaller woman,” officer was “a pretty good size man” as a “200-

                                            21
something-pound man,” and officer had no reason to believe that the plaintiff was

armed); see also Rowland, 41 F.3d at 174 (finding “no threat to the officer or anyone

else” where plaintiff was not armed, officer did not suspect plaintiff was armed, and there

was no “real evidence that this relatively passive, retarded man was a danger to the

larger, trained police officer”).

       Third, there is disputed evidence of Hupp’s resistance to arrest. The video depicts

a brief struggle between Hupp and Trooper Cook lasting mere seconds after he grabbed

her arm and before she fell to the ground. Trooper Cook grabbed Hupp’s arm mere

seconds after she approached him and, according to Hupp, before she had the opportunity

to hear any order that he may have given for her to move. She testified that her reaction

after having her arm seized was to try to put her arms up in surrender. J.A. 123. We

have held that a reasonable officer could not believe that the “initial act of pulling [one’s]

arm away” when an officer grabs a person “without warning or explanation” justifies the

officer’s decision to throw the person to the ground. Smith, 781 F.3d at 103.

       Trooper Cook, on the other hand, testified that Hupp took a “fighting stance” with

him and that he “stiff armed” her in order to holster his weapon. J.A. 219, 571. Trooper

Cook also testified that immediately before Hupp fell to the ground, she grabbed his

clothing and cursed at him. 8 On these disputed versions of the facts, and in light of the

other Graham factors that are unfavorable to Trooper Cook, we cannot say that a


       8
         Hupp’s alleged grabbing of Trooper Cook is not captured in the video because
she allegedly did so when his back was turned to the camera and blocking the camera’s
view of Hupp.

                                             22
reasonable officer would consider Trooper Cook’s use of force reasonable under the

circumstances.     See Rowland, 41 F.3d at 174 (concluding that disputed versions of

plaintiff’s resistance combined with other “unfavorable” Graham factors precluded

qualified immunity on excessive force claim).

                                  3. Malicious Prosecution

       We next address Hupp’s section 1983 malicious prosecution claim. A malicious

prosecution claim brought under section 1983 “is properly understood as a Fourth

Amendment claim for unreasonable seizure which incorporates certain elements of the

common law tort.” Evans v. Chalmers, 703 F.3d 636, 646 (4th Cir. 2012) (quoting

Lambert v. Williams, 223 F.3d 257, 261 (4th Cir. 2000)); see Manuel v. City of Joliet, Ill.,

137 S. Ct. 911, 919 (2017) (“If the complaint is that a form of legal process resulted in

pretrial detention unsupported by probable cause, then the right allegedly infringed lies in

the Fourth Amendment.”). To prove such a claim, a plaintiff must show “that the

defendant (1) caused (2) a seizure of the plaintiff pursuant to legal process unsupported

by probable cause, and (3) criminal proceedings terminated in plaintiff’s favor.” Evans,

703 F.3d at 647.

       There is no dispute here that Hupp was arrested, prosecuted, and acquitted. What

is disputed is whether probable cause existed for Hupp’s prosecution. On this point, the

district court determined that probable cause existed for Hupp’s arrest and that the

magistrate’s subsequent finding of probable cause rendered Hupp’s prosecution

reasonable. J.A. 624. To be sure, we have held that “[o]nce a pretrial seizure has been

rendered reasonable by virtue of a probable cause determination by a neutral and

                                            23
detached magistrate, the continuing pretrial seizure of a criminal defendant—either by

detention or by bond restrictions—is reasonable.” Brooks v. City of Winston-Salem, N.C.,

85 F.3d 178, 184 (4th Cir. 1996). We later explained, though, that a finding of probable

cause by a neutral magistrate only “weigh[s] heavily toward a finding that [the

defendant] is immune” from suit. Merchant v. Bauer, 677 F.3d 656, 664 (4th Cir.)

(quoting Wadkins v. Arnold, 214 F.3d 535, 541 (4th Cir. 2000)), cert. denied, 568 U.S.

1068 (2012). Thus, where a police officer takes certain steps, such as first conferring

with a prosecutor about moving forward with a criminal prosecution, and a magistrate

judge later affirms the officer’s determination that probable cause exists for the

prosecution, those steps weigh in favor of a finding of qualified immunity. They do not

end the qualified immunity inquiry, however, as they “need only appropriately be taken

into account in assessing the reasonableness of [the officer’s] actions.” Id. (internal

quotation marks and citation omitted). A grant of qualified immunity still rests on our

determination that an officer acted reasonably under the circumstances.

      Because a magistrate’s finding of probable cause is but a factor in our

consideration of the overall reasonableness of the officer’s actions, a defendant to a

malicious prosecution claim is not absolved from liability when the magistrate’s

probable-cause finding “is predicated solely on a police officer’s false statements.”

Manuel, 137 S. Ct. at 918. An officer who lies to secure a probable-cause determination

can hardly be called reasonable.      Likewise, where an officer provides misleading

information to the prosecuting attorney or where probable cause is “plainly lacking,”

McKinney v. Richland Cty. Sheriff’s Dep’t, 431 F.3d 415, 419 (4th Cir. 2005), the

                                           24
procedural steps taken by an officer no longer afford a shield against a Fourth

Amendment claim. This is because “[l]egal process has gone forward, but it has done

nothing to satisfy the Fourth Amendment’s probable-cause requirement.” Manuel, 137 S.

Ct. at 918–19.

       Hupp contends that the magistrate’s finding of probable cause does not afford

Trooper Cook qualified immunity on her malicious prosecution claim because the

probable-cause finding rested on false statements made by Trooper Cook in the criminal

complaint against her. Specifically, Hupp asserts that the criminal complaint falsely

stated, inter alia, that she refused to comply with Trooper Cook’s orders to “step aside,”

began cursing at him, “raised her hands towards” him before he grabbed her arm, and

then grabbed at him and “began cursing” after he grabbed her arm. J.A. 509; Opening

Br. 18, 55.

       We agree with Hupp that the district court’s finding of qualified immunity on this

claim was in error. As we have explained, disputes of fact preclude a finding at this stage

that a reasonable officer would have believed that probable cause existed for Hupp’s

arrest. Those disputes relate to many of the facts set forth in the criminal complaint on

which the magistrate relied. For example, there is a dispute as to whether Hupp refused

to comply with Trooper Cook’s orders for her to move or whether she was instead

attempting to obey his order to control Buddy. There is also a dispute as to whether

Hupp was cursing at Trooper Cook. Moreover, contrary to Trooper Cook’s statement in

the criminal complaint, the video clearly depicts Hupp’s hands down at her side during



                                            25
the entirety of the few seconds before Trooper Cook grabbed her arm. It was only after

he grabbed her arm that she struggled, very briefly, with him.

      If we excise the contested statements from the criminal complaint, the additional

facts available to the magistrate do not, as the district court found, provide “ample

evidence” for a probable-cause determination. J.A. 624. The district court emphasized

the fact that Hupp “stepped in between the dog and the undersigned officer,” which,

according to the district court, showed that Hupp stepped in between Buddy and Trooper

Cook as Trooper Cook was attempting to protect himself from the dog. J.A. 509, 624.

However, in the criminal complaint, Trooper Cook also clearly stated that Buddy had

“reached the end of the tether” and could not “reach” Trooper Cook. J.A. 509. Contrary

to showing that Hupp interfered with Trooper Cook’s ability to protect himself from

Buddy, the complaint established that Trooper Cook knew Buddy was no longer a danger

to him. No other basis for Hupp’s alleged obstruction of Trooper Cook is identified in

the complaint.

      Given the disputes of the underlying historical facts, the supported assertion that

Trooper Cook’s statements in the criminal complaint were not entirely truthful, and the

lack of undisputed evidence that otherwise would support a probable-cause finding, we

cannot find that Trooper Cook is entitled to qualified immunity on Hupp’s malicious

prosecution claim under section 1983.

                          4. Common Law Malicious Prosecution

      Trooper Cook’s entitlement to immunity on Hupp’s common law malicious

prosecution claim fares no better.      Under West Virginia law, a plaintiff bringing a

                                            26
malicious prosecution claim must show “(1) that the prosecution was set on foot and

conducted to its termination, resulting in plaintiff’s discharge; (2) that it was caused or

procured by defendant; (3) that it was without probable cause; and (4) that it was

malicious.” Goodwin v. City of Shepherdstown, 825 S.E.2d 363, 368 (W. Va. 2019)

(citation omitted). Where a “want of probable cause for [the] prosecution is shown by a

preponderance of the evidence,” malice may be inferred. Truman v. Fid. & Cas. Co. of

N.Y., 123 S.E.2d 59, 68 (W. Va. 1961); Morton v. Chesapeake & Ohio Ry. Co., 399

S.E.2d 464, 467 (W. Va. 1990).

       The district court determined that, like with the section 1983 malicious

prosecution claim, Trooper Cook is entitled to qualified immunity on the common law

claim because probable cause existed for Hupp’s arrest.             The qualified immunity

available against claims brought under section 1983 generally does not extend to

common law claims.        Nonetheless, West Virginia affords immunity “from personal

liability for official acts if the involved conduct did not violate clearly established laws of

which a reasonable official would have known.” W. Va. Reg’l Jail & Corr. Facility Auth.

v. A.B., 766 S.E.2d 751, 762 (W. Va. 2014) (citation omitted). The state’s qualified

immunity doctrine borrows heavily from the analogous federal qualified immunity

jurisprudence but also requires an additional finding that the defendant’s alleged conduct

not be “fraudulent, malicious, or otherwise oppressive” to the plaintiff. Id.; Hutchison v.

City of Huntington, 479 S.E.2d 649, 659 (W. Va. 1996).

       As discussed above, questions of fact exist that must first be resolved before a

court can determine that a reasonable officer in Trooper Cook’s position would have

                                              27
believed that probable cause existed for Hupp’s arrest and prosecution.          Therefore,

Trooper Cook is not entitled to immunity on Hupp’s common law malicious prosecution

claim, and the district court’s grant of summary judgment is reversed.

                                        *    *   *

       To summarize, qualified immunity is appropriate at this stage only if there are no

disputes of the historical facts underlying the false arrest, excessive force, and malicious

prosecution claims. As we have explained, disputes exist. Those disputes must be

submitted to a jury. The district court may then “reserve for itself the legal question of

whether [Trooper Cook] is entitled to qualified immunity on the facts found by the jury.”

Willingham, 412 F.3d at 560.

                                            B.

       We turn finally to Appellants’ claims that Trooper Cook unlawfully entered

Myers’s home and unlawfully seized electronic devices from within the home. Under the

Fourth Amendment, “searches and seizures inside a home without a warrant are

presumptively unreasonable” and, thus, presumptively unconstitutional. Payton v. New

York, 445 U.S. 573, 586 (1980); United States v. Yengel, 711 F.3d 392, 396 (4th Cir.

2013). This rule is subject to “narrow and well-delineated” exceptions, Yengel, 711 F.3d

at 396, one of which is when exigent circumstances justify the warrantless entry of a

home, Mincey v. Arizona, 437 U.S. 385, 392–94 (1978). Exigent circumstances that may

justify a warrantless entry include “the imminent destruction of evidence.” United States

v. Brown, 701 F.3d 120, 126 (4th Cir. 2012). That is, police officers may enter a home

without a warrant when they “(1) have probable cause to believe that evidence of illegal

                                            28
activity is present and (2) reasonably believe that evidence may be destroyed or removed

before they could obtain a search warrant.” United States v. Cephas, 254 F.3d 488, 494–

95 (4th Cir. 2001) (citing United States v. Turner, 650 F.2d 526, 528 (4th Cir. 1981)).

Likewise, “[w]here law enforcement authorities have probable cause to believe that

[property] holds contraband or evidence of a crime,” warrantless seizure of the property

is permitted under the Fourth Amendment “if the exigencies of the circumstances demand

it.” United States v. Place, 462 U.S. 696, 701 (1983).

       Factors to be considered in determining whether exigent circumstances justify a

warrantless entry include: “(1) the degree of urgency involved and the amount of time

necessary to obtain a warrant; (2) the officers’ reasonable belief that the contraband is

about to be removed or destroyed; (3) the possibility of danger to police guarding the site;

(4) information indicating the possessors of the contraband are aware that the police are

on their trail; and (5) the ready destructibility of the contraband.” Turner, 650 F.2d at

528. In evaluating these factors, courts consider “[t]he appearance of the scene of the

search in the circumstances presented as it would appear to reasonable and prudent men

standing in the shoes of the officers.” United States v. Reed, 935 F.2d 641, 643 (4th Cir.

1991) (alteration in original) (citations omitted).

       This case does not present the usual case for exigency; it does not involve a

warrantless entry into a home to seize contraband that may be imminently destroyed. See

Cephas, 254 F.3d at 495–96 (finding exigency where officer had probable cause to

believe marijuana was inside apartment and would be destroyed if officer waited to

secure warrant); Brown, 701 F.3d at 126–27 (finding exigency where probable cause

                                              29
existed to believe that defendant had evidence of child pornography on computers at

work that could be deleted before a warrant was obtained). Rather, this case involves a

warrantless entry into a home to seize evidence that the police officer understood would

not be destroyed. The video was taken by Hupp’s husband, and Trooper Cook conceded

that he believed Hupp’s husband was glad to have the evidence and would not want to

part with it. Ryan recorded the video as “[p]roof, if anything were to happen,” for his

wife’s benefit. J.A. 160. That is, he believed that the video could exonerate his wife, not

incriminate her. Thus, this case is unlike the “vast majority of cases in which evidence is

destroyed by persons who are engaged in illegal conduct, [where] the reason for the

destruction is fear that the evidence will fall into the hands of law enforcement.”

Kentucky v. King, 563 U.S. 452, 461 (2011).

                                            1.

       Appellants argue that the exigency test cannot be satisfied as a matter of law

because there is no evidence that Ryan Hupp intended to destroy or conceal the video.

Trooper Cook counters that there is evidence that Ryan intended to destroy or at least

conceal the video from the police before a warrant could issue. According to Trooper

Cook, Ryan was “glad to have” the video only before he realized that Trooper Cook

wanted it. Resp. Br. 39 n.150. Trooper Cook points to evidence that after he entered the

house and asked about the video, Ryan told him, “Don’t worry. I deleted it. It was on

this phone.” J.A. 258. Additionally, another of Ryan’s family members, Dalton, is heard

on the video telling Ryan not to let the troopers know that Ryan was recording them.



                                            30
Thus, Trooper Cook asserts, it was reasonable for him to believe that if he did not enter

and seize the devices at that time, the evidence would be destroyed or concealed.

      The evidence highlighted by Trooper Cook, however, is irrelevant to the exigency

analysis. This is because the “existence of exigent circumstances must be determined as

of the moment of the warrantless entry of the officers onto the premises.” Reed, 935 F.2d

at 643. Ryan’s comments to Trooper Cook about deleting the video footage were made

only after Trooper Cook had entered Myers’s home and seized three of the electronic

devices. According to Trooper Cook’s own testimony, he stepped across the threshold

into the home, asked Myers’s family members that were in the house about the location

of the video, received no response, began to seize electronic devices within sight, and

only then did Ryan “step[ ] forward from back up the hallway” and tell Trooper Cook

that he had deleted the video from his cell phone. J.A. 258–59. Similarly, Dalton’s

comments heard in the video were not made in Trooper Cook’s presence; an officer

would have heard those comments only after seizing the cell phone and watching the

video. Thus, before Trooper Cook entered the home and began seizing the devices, his

admitted understanding was that Ryan was happy to have the video footage and would

not want to destroy it. Of course, we must determine whether a reasonable person in

Trooper Cook’s position would have believed that Ryan intended to destroy the video.

On the facts presented to us, we see no reason to believe that an objective officer would

have believed any differently than Trooper Cook did—that Ryan had recorded his wife’s

arrest, was happy about having recorded it, and would not want to delete that recording.



                                           31
       Trooper Cook’s subjective understanding, however, is not the determinative

factor. Rather, we must determine whether a reasonable officer in Trooper Cook’s

position would have believed that Ryan—or another of Hupp’s family members present

at the time—was likely to destroy or conceal the video. See Reed, 935 F.2d at 643.

Based on the information available to an officer in Trooper Cook’s position at the

moment that he entered Myers’s home, we cannot say as a matter of law that no

reasonable officer would have believed that the video would be preserved while the

troopers obtained a warrant. Having heard Ryan yell to his wife not to worry because he

recorded her interaction with Trooper Cook, a reasonable officer could conclude, like

Trooper Cook initially did, that Ryan was glad to have the video and would not destroy it.

On the other hand, Hupp was believed to have committed a crime; the video documenting

that crime was recorded by Hupp’s husband; and a reasonable officer could have believed

that, as Hupp’s husband, Ryan would conceal or destroy the video evidence of her crime

before handing it over to the police. We are thus hesitant to find that, as a matter of law,

Trooper Cook unreasonably believed that the video was likely to be concealed before a

warrant could issue. Instead, the question of whether such a belief was reasonable under

the circumstances known to the officers at the time of Trooper Cook’s entry into Myers’s

home must be submitted to a factfinder.

       Turning to the other exigency factors, we note that there is no evidence regarding

the time needed to secure a warrant. The record suggests, though, that there was little to

no possibility of danger to the troopers if they stood guard while a warrant was secured.

See Turner, 650 F.2d at 528. Trooper Cook testified that when he first approached

                                            32
Myers’s house, he saw Hupp and Lindsey with a “pistol crossbow” but saw no arrows

and believed that Hupp and Lindsey “were playing with something with [sic] the creek”

next to the house. J.A. 565–66. Trooper Cook did nothing to secure the crossbow and

apparently did not consider it a threat; in fact, there is evidence that the crossbow was a

broken plastic toy that belonged to Hupp’s three-year-old son. J.A. 85, 128, 141. Buddy,

the dog believed to be vicious, was tethered at the time of Hupp’s arrest. And although

the two troopers were outnumbered by Myers’s family members, one of those family

members was a toddler, another was pregnant, and there is no evidence that any of them

were armed. Therefore, there does not appear to have been any danger to the troopers.

See Yengel, 711 F.3d at 398 (finding no exigency when officer was informed that there

was a grenade in house but other information available to officer indicated “stable nature

of the threat”); United States v. Whitehorn, 813 F.2d 646, 649 (4th Cir. 1987) (affirming

finding that exigency did not justify warrantless bomb sweep when there was no evidence

“that anyone was evacuated from the building or warned of the potential danger, or that

the agents had otherwise prepared for the risk of an exploding bomb”); cf. Reed, 935 F.2d

at 642–43 (finding exigency where police officers saw sawed-off shotgun eighteen inches

from man sleeping in a home where another man, known to carry firearms and with past

arrests for assault and brandishing weapons, resided).

       Nor was the video the only corroborating evidence of Hupp’s alleged crime;

Trooper Michael was also a witness, as were several of Hupp’s family members. That

fact, coupled with the minor crime for which Hupp was arrested, suggest that the level of

urgency to obtain the video was not high. See Welsh v. Wisconsin, 466 U.S. 740, 750

                                            33
(1984) (“Our hesitation in finding exigent circumstances . . . is particularly appropriate

when the underlying offense for which there is probable cause to arrest is relatively

minor.”).

      While these other factors weigh against a finding of exigency, a jury could

nonetheless find that Trooper Cook reasonably believed that the video was at risk of

being deleted or concealed. Therefore, we decline Appellants’ invitation to find that

Trooper Cook’s entry into Myers’s home and his seizure of the electronic devices were

unreasonable as a matter of law. Instead, we remand for a trial to determine whether

Trooper Cook’s actions were reasonable. 9

                                            2.

      We also take a moment to address Trooper Cook’s view of the exigency exception

to the warrant requirement. In an era in which cell phones are increasingly used to

capture much of what happens in daily life, it is important to emphasize the limitations

that the Fourth Amendment continues to place on a state’s seizure of video evidence.

      Trooper Cook testified that his regular practice is to seize any video recording that

he believes to contain evidence of a crime he is investigating. J.A. 237–39. But the

exigent-circumstances exception does not permit police officers to do what Trooper Cook

routinely does: seize video evidence without a warrant even when there is no reason to


      9
          Because we cannot say as a matter of law that an officer in Trooper Cook’s
position would reasonably have believed that the video evidence would be concealed or
destroyed before a warrant for the video’s seizure could be obtained, Trooper Cook is not
entitled to qualified immunity on the search and seizure claims. See Smith, 781 F.3d at
100.

                                            34
believe that the evidence will likely be destroyed or concealed. Such a rule would allow

officers to seize as a matter of course video-recording devices from not just those

involved in an incident, but also from neighbors and other curious bystanders who

happen to record the events as they transpire. Under this view, police officers would

lawfully be permitted to enter the home of every person living nearby who stands in her

doorway or window recording an arrest, to seize her recording device, and to do so

without a warrant or her consent—simply because video evidence, by its nature, can be

easily deleted.

       Such a view finds no support in our Fourth Amendment jurisprudence. While

video evidence contained in a cell phone can be easily deleted or concealed, it is not

merely the ease with which evidence may be destroyed or concealed that dictates

exigency. An officer must also have reason to believe that the evidence will be destroyed

or concealed. In short, adopting the broad definition of exigency urged by Trooper Cook

would remove the exigent-circumstances exception to the warrant requirement from the

class of “narrow and well-delineated” exceptions permissible under the Fourth

Amendment. Yengel, 711 F.3d at 396. It would convert exigency from an exception to

the rule.



                                          IV.

       For the foregoing reasons, we hold that the district court erred in granting

summary judgment to Trooper Cook on the false arrest, excessive force, malicious

prosecution, and unlawful entry and seizure claims. We also hold that the district court

                                           35
properly denied Appellants summary judgment on the unlawful entry and seizure-of-

devices claims.    Accordingly, the district court’s order denying Appellants’ partial

summary judgment motion on the search and seizure claims is affirmed and its order

granting summary judgment to Trooper Cook is reversed. This matter is remanded to the

district court for trial on each of Appellants’ claims.



                         AFFIRMED IN PART, REVERSED IN PART, AND REMANDED




                                              36
