                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-2177


ESPERANZA GUERRERO,

                Plaintiff - Appellee,

          and

MARIA MUNGUIA; JUAN GUERRERO; JG, Minor; KG, Minor; JJG, Minor;
MG, Minor,

                Plaintiffs,

          v.

DAVID L. MOORE, in his official and individual capacity,

                Defendant - Appellant,

          and

CHARLIE T. DEANE, in his official capacity; LUIS POTES, in his
official and individual capacity; ADAM HURLEY, in his official
and individual capacity; DOES 1-6, in their official and
individual  capacities;   ROES  1-5,  in   their  official  and
individual capacities; PRINCE WILLIAM COUNTY POLICE DEPARTMENT;
PRINCE WILLIAM COUNTY; MATTHEW CAPLAN, in his official and
individual capacity; KAREN MUELHAUSER, in her official and
individual capacity; DOES 1-5, in their official and individual
capacities,

                Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:09-cv-01313-JCC-TRJ)
Submitted:   July 18, 2011               Decided:   August 4, 2011


Before MOTZ, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Angela L. Horan, County Attorney, Jeffrey Notz, Assistant County
Attorney, Prince William, Virginia, for Appellant. Christina G.
Sarchio, Haven G. Ward, Stephen A. Vaden, PATTON BOGGS LLP,
Washington, DC; Cesar Perales, Diana Sen, Jose Perez, LATINO
JUSTICE/PUERTO RICAN LEGAL DEFENSE FUND, New York, New York, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

             Sergeant David L. Moore appeals the district court’s

partial denial of his motion for summary judgment on the basis

of qualified immunity.           We affirm.

             “Qualified immunity protects government officials from

liability for violations of constitutional rights that were not

clearly     established     at     the    time    of    the      challenged       conduct.”

Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 275 (4th

Cir. 2011) (internal quotation marks, brackets, and citations

omitted).      Qualified immunity “is an immunity from suit rather

than a mere defense to liability; and like an absolute immunity,

it is effectively lost if a case is erroneously permitted to go

to   trial.”       Mitchell      v.    Forsyth,      472     U.S.   511,    526     (1985).

Thus, to the extent it turns on an issue of law, a district

court’s denial of a claim of qualified immunity is immediately

appealable despite the absence of a final judgment.                              Witt, 633

F.3d   at   275.     But,     in      hearing    such      an    appeal,    we    “may   not

reweigh     the    record     evidence      to       determine      whether        material

factual disputes preclude summary disposition.”                            Id. (internal

quotation marks and citation omitted).

             The   Fourth     Amendment         to     the      Constitution       protects

individuals from unreasonable searches and seizures.                             “Except in

such special situations [as consent or exigent circumstances],

we have consistently held that the entry into a home to conduct

                                            3
a search or make an arrest is unreasonable under the Fourth

Amendment       unless         done    pursuant         to     a   warrant.”        Steagald      v.

United    States,          451    U.S.       204,       211    (1981).       “[A]ny       physical

invasion of the structure of the home, by even a fraction of an

inch, [is] too much.”                  Kyllo v. United States, 533 U.S. 27, 37

(2001) (internal quotation marks omitted).

             Moore         contends         that    he    did      not   violate     the    Fourth

Amendment rights of Esperanza Guerrero when he entered her home

in an effort to serve a judicially-issued misdemeanor summons on

Antonia Munguia.               He fails to persuade us, however, that the

summons was the functional equivalent of an arrest warrant for

Fourth     Amendment           purposes.            Summonses         confer       more    limited

authority       than       arrest          warrants;          notably,     Moore    lacked       the

authority       to      take     Munguia       into      custody     upon     service      of   the

summons.        Moore fails to cite any persuasive Fourth Amendment

precedent that permits a government official to enter a dwelling

to   serve      a       non-custodial         misdemeanor          summons.         Indeed,     the

latest     relevant            opinion       of     the       Virginia      Attorney       General

concludes that an officer lacks such authority.                                    2003 Va. Op.

Att’y    Gen.       64,    2003       WL    23208766      (Sept.     16,    2003)     (“[A]bsent

consent    of       a    dwelling          owner,   a     law-enforcement          officer      must

obtain a warrant before entering a dwelling for the purpose of

serving a summons for a misdemeanor.”).



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              The qualified immunity analysis does not terminate at

the    finding     of    a    constitutional           violation;       rather       we    must

discern whether the right at issue was “clearly established” at

the time of the violation.                “For a constitutional right to be

clearly    established,          its   contours        must     be    sufficiently        clear

that   a   reasonable        official     would        understand      that    what       he   is

doing violates that right.”               Hope v. Pelzer, 536 U.S. 730, 739

(2002)     (internal       quotation      marks        omitted).         Thus,       qualified

immunity      extends      “ample      protection        to     all    but     the     plainly

incompetent or those who knowingly violate the law.”                                Malley v.

Briggs, 475 U.S. 335, 341 (1986).

              We    find      that     the     right       at        issue    was      clearly

established        at   the    time      of    the      incident.            Supreme      Court

precedent plainly stated the need for a warrant or an exception

to the warrant requirement for an officer to enter a dwelling to

conduct a search or to make an arrest.                        Payton v. New York, 445

U.S.   573,    586      (1980)    (“It    is       a   ‘basic    principle       of     Fourth

Amendment law’ that searches and seizures inside a home without

a warrant are presumptively unreasonable.”).                          The presence of an

earlier opinion of the Virginia Attorney General, see 1982-83

Va. Op. Att’y Gen. 18, 1982 WL 175892 (Aug. 20, 1982), does not

upset that precedent, especially in light of the more recent

superseding statement of the law by the same office.



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           Accordingly,       we   affirm   the   district   court’s   partial

denial of summary judgment on the basis of qualified immunity.

We   dispense   with   oral    argument     because   the    facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                       AFFIRMED




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