PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CLARENCE I. TAYLOR, JR.,
Plaintiff-Appellee,

v.                                                                    No. 95-1980

DAVID K. WATERS, Individually,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
James E. Bradberry, Magistrate Judge.
(CA-94-63-4)

Argued: March 5, 1996

Decided: April 10, 1996

Before HALL, WILKINS, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Reversed and remanded with instructions by published opinion. Judge
Wilkins wrote the opinion, in which Judge Hall and Judge Williams
joined.

_________________________________________________________________

COUNSEL

ARGUED: John Adrian Gibney, JR., SHUFORD, RUBIN & GIB-
NEY, P.C., Richmond, Virginia, for Appellant. Sa'ad El-Amin,
EL-AMIN & CRAWFORD, P.C., Richmond, Virginia, for Appellee.
OPINION

WILKINS, Circuit Judge:

Clarence I. Taylor, Jr. brought this action pursuant to 42 U.S.C.A.
§ 1983 (West 1994), alleging that Investigator David K. Waters
deprived him of rights guaranteed under the Fourth, Fifth, and Four-
teenth Amendments by arresting him without probable cause and by
failing to disclose exculpatory evidence to the prosecutor in a more
timely manner.1 Investigator Waters appeals the refusal of the magis-
trate judge2 to grant his motion for summary judgment. Because we
conclude that the officer is entitled to qualified immunity on Taylor's
§ 1983 claims, we vacate the decision of the magistrate judge and
remand with directions to enter judgment in favor of Investigator
Waters. Further, since all of the federal claims have been rejected, we
direct the magistrate judge to dismiss without prejudice the remaining
state-law claims.

I.

Viewed in the light most favorable to Taylor, the record demon-
strates the following. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). In 1989 or 1990, Investigator
Waters learned that a Jamaican individual named"Harold," later iden-
tified as Harold Duncan, was converting cocaine into cocaine base at
a specified address in Williamsburg, Virginia and, using this location
as a base of operation, was distributing the illegal drugs from his
automobile. In April 1992, an informant provided Investigator Waters
with details concerning Duncan's distribution from his automobile of
drugs processed at his residence. An investigation of the automobile
tag number provided by the informant disclosed that Duncan resided
at the same location that had earlier been identified to the officer.
Relying on this information, police officers stopped Duncan's auto-
mobile, arrested him, and seized a quantity of cocaine. Soon after-
ward, Duncan admitted that he was a cocaine dealer.
_________________________________________________________________
1 In addition to his constitutional claims, Taylor raised several state-law
causes of action.
2 The parties consented to submission of the case to a magistrate judge
for final resolution. See 28 U.S.C.A. § 636(c) (West 1993).

                    2
Officers subsequently obtained a search warrant for Duncan's
apartment because information indicated that additional quantities of
drugs remained there. Upon arrival to execute the warrant, Investiga-
tor Waters encountered Taylor and learned for the first time that he
was Duncan's roommate. In the kitchen, officers observed a pot on
the counter with white residue on it and discovered a strainer that also
appeared to have white residue on it. When questioned about the pot,
Taylor explained that he had used it to make tea. The officers also
found plastic bags with the corners removed--typical packaging
material employed by cocaine distributors--and a brown envelope
with a white powdery substance in it located in a trash can in a com-
mon area of the apartment. Additionally, a box of plastic bags was
found in the refrigerator. In Taylor's room, police discovered more
than $5,500 in currency, four uncashed paychecks totalling approxi-
mately $1,907 from Taylor's employment as a waiter, bank state-
ments indicating balances in two accounts totalling in excess of
$23,000, and $15 in Jamaican currency. Taylor informed police that
he had lived with Duncan for 12 years, but stated that he did not know
Duncan's occupation. In response to questions concerning whether he
possessed any weapons, Taylor informed the officers that there was
a hunting rifle in his closet; officers immediately seized this weapon.
Armed with this information, Investigator Waters arrested Taylor on
charges of conspiracy to distribute cocaine, see Va. Code Ann.
§ 18.2-256 (Michie 1988), possession of cocaine, see Va. Code Ann.
§ 18.2-250(A) (Michie Supp. 1995), and possession of a firearm
while illegally possessing cocaine, see Va. Code Ann. § 18.2-
308.4(A) (Michie Supp. 1995). Investigator Waters obtained arrest
warrants and served them on Taylor later that evening, April 29,
1992.

Further investigation, however, failed to provide additional evi-
dence of Taylor's guilt. Soon after the arrest, Duncan informed Inves-
tigator Waters that Taylor was not involved in the offenses, and the
informant who had identified Duncan reported that she had no knowl-
edge of Taylor. On May 27, 1992, police officers executed a search
warrant for the apartment and Taylor's automobile; although officers
seized over 70 items in the search, no inculpatory evidence was
obtained. And, a report completed June 12, 1992 disclosed that labo-
ratory analysis of the residue on the kitchen utensils failed to reveal
the existence of narcotics. Only the brown envelope located in the

                    3
kitchen trash contained cocaine residue. Prior to the preliminary hear-
ing, Investigator Waters reviewed this evidence with the prosecutor
assigned to the case. The charges against Taylor subsequently were
declared nolle prosequi on July 3, 1992--approximately two months
after his arrest--immediately before the preliminary hearing.

Thereafter, Taylor brought the present § 1983 action against Inves-
tigator Waters, claiming that he had violated Taylor's constitutional
rights under the Fourth, Fifth, and Fourteenth Amendments. He also
alleged state-law causes of action for malicious prosecution and negli-
gence. Investigator Waters moved for summary judgment, asserting
that viewed in the light most favorable to Taylor, probable cause had
existed for the arrest and prosecution. Further, the officer maintained
that even if probable cause did not exist, he was protected by quali-
fied immunity because the information supporting the arrest was not
so lacking that a reasonable officer could not have believed that prob-
able cause existed for Taylor's arrest.

The magistrate judge denied the motion. The lower court reasoned
that the circumstances known to Investigator Waters did not provide
probable cause to believe that Taylor had committed any offense and
that consequently Investigator Waters knew or should have known
that he was violating Taylor's rights. The magistrate judge also ruled
that Investigator Waters possessed an affirmative duty to notify prose-
cutors immediately of information that was exculpatory of Taylor and
that the officer had failed to satisfy this obligation, instead simply
allowing the prosecution to remain pending until the scheduled pre-
liminary hearing when the charges were declared nolle prosequi.
Finally, the magistrate judge denied summary judgment to the officer
on Taylor's state-law claims. From this ruling, Investigator Waters
appeals.3
_________________________________________________________________

3 Since this interlocutory appeal calls upon the court to decide whether
the law was clearly established based on the facts viewed in the light
most favorable to Taylor, rather than to decide whether the district court
properly concluded that a genuine issue of material fact warranting trial
existed, we possess jurisdiction over the appeal from the refusal of the
district court to rule that Investigator Waters was protected by qualified
immunity. See Johnson v. Jones, 115 S. Ct. 2151 (1995).

                    4
II.

A government official is entitled to qualified immunity from civil
damages for performing discretionary functions when his "conduct
does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). This court has explained:

          In analyzing the appeal of a denial of summary judgment on
          qualified immunity grounds, it is necessary first to identify
          the specific constitutional right allegedly violate[d], then to
          inquire whether at the time of the alleged violation it was
          clearly established, then further to inquire whether a reason-
          able person in the official's position would have known that
          his conduct would violate that right.

Gordon v. Kidd, 971 F.2d 1087, 1093 (4th Cir. 1992) (internal quota-
tion marks omitted).

Taylor's complaint is far from a model of clarity, rendering enig-
matic an identification of "the specific constitutional right allegedly
infringed by the challenged [conduct]." Graham v. Connor, 490 U.S.
386, 394 (1989). His complaint simply claims that the facts alleged
implicate rights protected by the Fourth, Fifth, and Fourteenth
Amendments. Accordingly, we address separately the two principal
factual assertions alleged by Taylor.

A.

The parties agree that Taylor's claim that his arrest was not sup-
ported by probable cause alleges a deprivation of the Fourth Amend-
ment right to be free from unreasonable seizures. Although the right
to be free from seizures not founded upon probable cause was well
established prior to Taylor's 1992 arrest, see, e.g., Gerstein v. Pugh,
420 U.S. 103, 111-12 (1975), defining the applicable right at that
level of generality is not proper, see Anderson v. Creighton, 483 U.S.
635, 639-40 (1987). Rather,

          the right the official is alleged to have violated must have
          been "clearly established" in a more particularized, and

                     5
          hence more relevant, sense: The contours of the right must
          be sufficiently clear that a reasonable official would under-
          stand that what he is doing violates that right. This is not to
          say that an official action is protected by qualified immunity
          unless the very action in question has previously been held
          unlawful, but it is to say that in the light of pre-existing law
          the unlawfulness must be apparent.

Id. at 640 (citation omitted); see Malley v. Briggs, 475 U.S. 335, 341
(1986) (Qualified immunity protects "all but the plainly incompetent
or those who knowingly violate the law."). Thus, we must consider
whether the established contours of probable cause were sufficiently
clear at the time of the arrest to make it plain to a reasonable officer
that under these particular circumstances arresting Taylor would vio-
late his constitutional rights.

In assessing the existence of probable cause, courts examine the
totality of the circumstances known to the officer at the time of the
arrest. United States v. Al-Talib, 55 F.3d 923, 931 (4th Cir. 1995).
Probable cause exists when the facts and circumstances known to the
officer "would warrant the belief of a prudent person that the arrestee
had committed or was committing an offense." United States v.
Garcia, 848 F.2d 58, 59-60 (4th Cir.), cert. denied, 488 U.S. 957
(1988) (internal quotation marks omitted); see Wilkes v. Young, 28
F.3d 1362, 1365 (4th Cir. 1994) ("Probable cause only requires
enough evidence `"to warrant a man of reasonable caution in the
belief that" an offense has been or is being committed.'") (quoting
Brinegar v. United States, 338 U.S. 160, 175-76 (1949)), cert. denied,
115 S. Ct. 1103 (1995). Probable cause must be supported by more
than a mere suspicion, but evidence sufficient to convict is not
required. Wong Sun v. United States, 371 U.S. 471, 479 (1963).

That one is merely present "at the scene of a crime or in the com-
pany of a person engaging in criminal activity" is not, by itself, suffi-
cient to establish probable cause. Garcia, 848 F.2d at 60 (citing
United States v. Di Re, 332 U.S. 581, 594 (1948)). Nor is evidence
of "a person's mere propinquity to others independently suspected of
criminal activity," without more, adequate to establish probable cause.
Ybarra v. Illinois, 444 U.S. 85, 91 (1979). 4 Seemingly innocent activ-
_________________________________________________________________
4 Pursuant to Va. Code Ann. § 18-2.250(A), no presumption of posses-
sion arises as a result of ownership or occupancy of premises where

                     6
ity, however, though not conclusive of probable cause, "may `provide
the basis for a showing of probable cause'" when considered in the
context of all of the surrounding circumstances. United States v.
Thomas, 913 F.2d 1111, 1116 (4th Cir. 1990) (quoting Gates v.
Illinois, 462 U.S. 213, 244 n.13 (1983)).

In Ker v. California, 374 U.S. 23 (1963), state law enforcement
officers had obtained information sufficient to support probable cause
to arrest George Ker for marijuana possession. When officers arrived
at Ker's apartment, his wife was present. In discussing whether the
officers possessed probable cause to arrest her also, the Supreme
Court wrote:

         Probable cause for the arrest of petitioner Diane Ker, while
         not present at the time the officers entered the apartment to
         arrest her husband, was nevertheless present at the time of
         her arrest. Upon their entry and announcement of their iden-
         tity, the officers were met not only by George Ker but also
         by Diane Ker, who was emerging from the kitchen. Officer
         Berman immediately walked to the doorway from which she
         emerged and, without entering, observed the brick-shaped
         package of marijuana in plain view. Even assuming that her
         presence in a small room with the contraband in a prominent
         position on the kitchen sink would not alone establish a rea-
         sonable ground for the officers' belief that she was in joint
         possession with her husband, that fact was accompanied by
         the officers' information that Ker had been using his apart-
         ment as a base of operations for his narcotics activities.
         Therefore, we cannot say that at the time of her arrest there
         were not sufficient grounds for a reasonable belief that
         Diane Ker, as well as her husband, was committing the
         offense of possession of marijuana in the presence of the
         officers.

Id. at 36-37. Thus, the Court concluded that the officers possessed
probable cause for arrest based on their knowledge that the suspect
_________________________________________________________________
drugs are found. However, ownership or occupancy may be considered
with other evidence tending to prove dominion or control over the items.
See Burchette v. Commonwealth, 425 S.E.2d 81, 83 (Va. Ct. App. 1992).

                    7
was in close proximity to illegal drugs plainly visible in a residence
she shared with a known drug dealer who used the residence as his
base of operations for distribution.

Viewed in the light most favorable to Taylor, the facts of which
Investigator Waters was apprised when he placed Taylor under arrest
were closely analogous to those held to sustain a finding of probable
cause in Ker. Taylor had lived with Duncan--a confessed narcotics
dealer--for many years. Duncan was believed to have used their
apartment as a base of operations for his drug distribution activities
for at least several years. During the search, a pot--a utensil com-
monly used to convert cocaine into cocaine base--with white residue
on it was in plain view in the kitchen. Taylor had demonstrated both
a knowledge of the existence of and a connection to the pot by
informing Investigator Waters that he (Taylor) had used it to make
tea. Plastic bags, routinely used for packaging and distributing illegal
drugs, were located nearby in the common area of the apartment, as
was an envelope containing a white powdery substance. Further, the
large amount of currency in Taylor's bedroom and the information
disclosed in his bank statements were consistent with his involvement
in a cocaine distribution conspiracy.

Although the facts known to Investigator Waters appear more than
adequate to support a finding of probable cause for Taylor's arrest, we
need not decide that issue because, in any event, the law was not
clearly established that an arrest of Taylor under these circumstances
would violate his rights. Furthermore, an officer in Investigator
Waters' position could reasonably have believed that the facts known
to him were sufficient to establish probable cause for Taylor's arrest.
See Malley, 475 U.S. at 344-45. Accordingly, we conclude that Inves-
tigator Waters is entitled to qualified immunity on Taylor's § 1983
claim alleging that his arrest and prosecution were unsupported by
probable cause.

B.

We next turn to Taylor's claim that Investigator Waters' failure to
disclose exculpatory information--that Duncan had indicated that
Taylor was not involved in the offenses, that the informant possessed
no knowledge of him, and that the search warrant executed in May

                    8
had failed to disclose inculpatory evidence--to the prosecutor vio-
lated his constitutional rights. Again, we conclude that no settled
authority established the illegality of the officer's conduct.

Taylor first alleges that this failure to disclose deprived him of his
right to due process of law as guaranteed by the Fourteenth Amend-
ment. The Supreme Court, however, has made plain that "[t]he Fourth
Amendment was tailored explicitly for the criminal justice system,
and its balance between individual and public interests always has
been thought to define the `process that is due' for seizures of person
or property in criminal cases, including the detention of suspects
pending trial." Gerstein, 420 U.S. at 125 n.27; see Baker v. McCollan,
443 U.S. 137, 142-46 (1979) (holding that determination of probable
cause by detached judicial officer that complies with Fourth Amend-
ment constitutes all of the process due in order to constitutionally
detain an accused pending trial). And, the Court recently held that no
substantive due process right against prosecution on less than proba-
ble cause exists under the Fourteenth Amendment--at least when
there is no quantum of harm occurring between the initiation of
groundless charges and the seizure. Albright v. Oliver, 114 S. Ct. 807,
810-14 (1994) (plurality); id. at 819-22 (Souter, J., concurring in
judgment); see also United States v. James Daniel Good Real
Property, 114 S. Ct. 492, 499 (1993) (noting that the Court has con-
sidered arrest and pretrial detention of criminal suspects to be gov-
erned by the Fourth Amendment without reference to other
constitutional guarantees); Graham, 490 U.S. at 395 (rejecting sub-
stantive due process analysis in context of a claim of excessive force
during arrest). Therefore, Taylor's assertion that Investigator Waters
failed to disclose exculpatory evidence does not allege a deprivation
of any right guaranteed under the Due Process Clause of the Four-
teenth Amendment.5
_________________________________________________________________
5 The decision of this court in Goodwin v. Metts, 885 F.2d 157 (4th Cir.
1989), cert. denied, 494 U.S. 1081 (1990), does not dictate a contrary
result. In Goodwin, this court held that despite the existence of probable
cause at the time of plaintiffs' arrest, a showing that the officer later
obtained, but failed to disclose, exculpatory evidence and that the § 1983
plaintiffs were unnecessarily put to trial as a result of this failure was suf-
ficient to establish that the officer violated plaintiffs' right to due pro-
cess, reasoning that a wrongful prosecution constituted a deprivation of

                    9
Finally, we consider whether established Fourth Amendment juris-
prudence clearly rendered Investigator Waters' failure to disclose
exculpatory evidence to the prosecutor unconstitutional. We conclude
that it did not. The Fourth Amendment provides:

         The right of the people to be secure in their persons, houses,
         papers, and effects, against unreasonable searches and sei-
         zures, shall not be violated, and no Warrants shall issue, but
         upon probable cause, supported by Oath or affirmation, and
         particularly describing the place to be searched, and the per-
         sons or things to be seized.

U.S. Const. amend. IV. This amendment requires that arrests be made
based upon probable cause and that a neutral and detached judicial
officer evaluate probable cause as a condition of significant pretrial
restraint of liberty. See Gerstein, 420 U.S. at 114. Once such a deter-
mination of probable cause has been rendered, however, the Fourth
Amendment does not impose any further requirement of judicial over-
sight or reasonable investigation to render pretrial seizure reasonable.
Baker, 443 U.S. at 143-46; Gerstein, 420 U.S. at 118-19. Instead,
other constitutional guarantees contained in the Bill of Rights--such
as the right to a speedy trial--protect the accused by ensuring that he
will not be detained indefinitely before an "ultimate determination of
. . . innocence is placed in the hands of the judge and the jury." Baker,
_________________________________________________________________
liberty. Id. at 161-63. To the extent that Goodwin bases its holding on a
conclusion that the officer's failure to disclose exculpatory evidence
deprived the § 1983 plaintiffs of a liberty interest in avoiding prosecution
on less than probable cause, that reasoning has been rejected in Albright.
See Albright, 114 S. Ct. at 810 (plurality); id. at 819-22 (Souter, J., con-
curring in judgment). But, to the extent that Goodwin ruled that the offi-
cer's failure to disclose the exculpatory information deprived the § 1983
plaintiffs of their right to a fair trial, its holding is not affected by
Albright. See Albright, 114 S. Ct. at 813 n.6 (plurality); Goodwin, 885
F.2d 163 (distinguishing Baker v. McCollan on the basis that the § 1983
plaintiffs were subjected to trial). See generally Brady v. Maryland, 373
U.S. 83, 87 (1963) ("[S]uppression by the prosecution of evidence favor-
able to an accused upon request violates due process where the evidence
is material either to guilt or to punishment . . . ."). In this instance, it is
undisputed that Taylor was not subjected to trial.

                   10
443 U.S. at 145-46; see Albright, 114 S. Ct. at 812-13 (plurality);
Gerstein, 420 U.S. at 125 n.27. Consequently, although open commu-
nication between investigators and prosecutors should be encouraged,
the failure of an officer to disclose exculpatory evidence after a deter-
mination of probable cause has been made by a neutral detached mag-
istrate does not render the continuing pretrial seizure of a criminal
suspect unreasonable under the Fourth Amendment. 6

III.

Investigator Waters also requests that we reverse the decision of
the magistrate judge to deny summary judgment in his favor on Tay-
lor's state-law claims. The decision of the magistrate judge denying
summary judgment on these claims is not a final order, nor did the
lower court certify the issue for interlocutory appeal. See 28 U.S.C.A.
§§ 1291-1292 (West 1993 & Supp. 1995); see also DiMeglio v.
Haines, 45 F.3d 790, 807-08 (4th Cir. 1995). Our jurisdiction to con-
sider appeals of the denial of qualified immunity on an interlocutory
basis does not provide grounds for consideration of other rulings of
the lower court--absent an independent jurisdictional basis--unless
the other issue is (1) inextricably intertwined with the decision of the
lower court to deny qualified immunity or (2) consideration of the
additional issue is necessary to ensure meaningful review of the quali-
fied immunity question. Swint v. Chambers County Comm'n, 115 S.
Ct. 1203, 1212 (1995).

A determination of whether the evidence was sufficient to raise a
genuine issue of material fact on each of the elements of the state-law
causes of action is not inextricably intertwined with Investigator
Waters' entitlement to qualified immunity on Taylor's § 1983 claims,
nor is consideration of the former necessary to review the latter.
Hence, we lack jurisdiction to review the propriety of the decision of
the lower court denying summary judgment to Investigator Waters on
the state-law issues.
_________________________________________________________________
6 Taylor's allegation that Investigator Waters violated rights guaranteed
under the Fifth Amendment must fail because Taylor has not alleged any
conduct on the officer's part that even arguably is governed by that
amendment.

                     11
Nevertheless, because we have directed dismissal of all of Taylor's
federal claims, we instruct the magistrate judge on remand to dismiss
the state-law claims without prejudice. See 28 U.S.C.A. § 1367 prac-
tice commentary (West 1993) (explaining that the decision to decline
to exercise supplemental jurisdiction over state-law causes of action
after dismissal of all claims over which district court had original
jurisdiction under § 1367(c)(3) will "hinge on the moment within the
litigation when the dismissal of the touchstone claim takes place, and
on the other surrounding circumstances"); see also United Mine
Workers v. Gibbs, 383 U.S. 715, 726 (1966) ("Certainly, if the federal
claims are dismissed before trial, . . . the state claims should be dis-
missed as well."); Clark v. Brown, 861 F.2d 66, 68 (4th Cir. 1988)
(directing dismissal of state-law claims on remand after holding dis-
trict court erred in failing to grant summary judgment to defendant in
§ 1983 claim on the basis of qualified immunity).

REVERSED AND REMANDED WITH INSTRUCTIONS

                    12
