                                                 Filed:   May 9, 2001

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                            No. 00-2130
                           (CA-99-164-R)



Jonathan Rogers,

                                                Plaintiff - Appellee,

          versus


M. L. Pendleton, etc., et al.,

                                             Defendants - Appellants.



                             O R D E R



     The court amends its opinion filed May 4, 2001, as follows:

     On page 4, first full paragraph, line 4 -- the spelling of

“Constitutional” is corrected.

                                         For the Court - By Direction




                                         /s/ Patricia S. Connor
                                                  Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JONATHAN ROGERS,
Plaintiff-Appellee,

v.
                                                                 No. 00-2130
M. L. PENDLETON, Officer; M. G.
VINYARD, Officer,
Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Irene M. Keeley, Chief District Judge, sitting by designation.
(CA-99-164-R)

Argued: February 26, 2001

Decided: May 4, 2001

Before WILLIAMS and MICHAEL, Circuit Judges, and
Cynthia Holcomb HALL, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge Michael and Senior Judge Hall joined.

_________________________________________________________________

COUNSEL

ARGUED: Jim Harold Guynn, Jr., GUYNN & DILLON, P.C., Roa-
noke, Virginia, for Appellants. Randy Virlin Cargill, MAGEE, FOS-
TER, GOLDSTEIN & SAYERS, P.C., Roanoke, Virginia, for
Appellee.
OPINION

WILLIAMS, Circuit Judge:

Jonathan Rogers brought this action pursuant to 42 U.S.C.A.
§ 1983 (West 1994 & Supp. 2000) against Officers M.L. Pendleton
and M.G. Vinyard of the Roanoke, Va. Police Department ("the offi-
cers"), alleging that the officers violated the Fourth Amendment to the
United States Constitution by falsely arresting him, unreasonably
assaulting him, falsely imprisoning him, and maliciously prosecuting
him. The officers appeal from the district court's denial of their
motion for summary judgment on the basis of qualified immunity. For
the reasons set forth below, we affirm.

I.

In summarizing the facts in this case, we resolve all disputed fac-
tual issues in Rogers' favor, as did the district court. Shaw v. Stroud,
13 F.3d 791, 798 (4th Cir. 1994). On the evening of August 22, 1997,
Rogers and his wife hosted an outdoor party for friends and family
at their home, to celebrate their daughter's admission to Harvard Uni-
versity. The party began at about 7:30. Rogers and his wife served
finger foods and had beer and wine for the adults and sodas in ice tubs
for the underage guests. A family friend (a teacher and president of
the local PTA) monitored the tubs containing alcoholic beverages to
ensure that underage guests did not consume alcohol. A two-person
band, playing amplified guitars, provided entertainment for the party.
Rogers instructed the band to stop playing at 10:00 to comply with
the city's noise ordinance. At 9:47, the Roanoke police dispatcher
received a call complaining of a loud party in the area of Rogers'
home. At 10:08, another individual called the police dispatch center
complaining of loud music at a similar location. At 10:26, the dis-
patcher referred the report to Officers Pendleton and Vinyard. Soon
after, the officers arrived on Lake Drive near Rogers' residence. Roll-
ing his window down, Pendleton heard no music but heard the sounds
of people talking at the Rogers' residence loudly enough to be heard
in the road. The road leading to Rogers' driveway is a marked private
road with two speed bumps. Pendleton pulled his vehicle into Rogers'
circular driveway in front of the house, where he observed Rogers
holding a bottle of beer. Both officers stated that they were aware that

                  2
they were entering Rogers' private property when they entered the
driveway.

Rogers testified that he consumed one bottle of beer between 7:30
and 10:00 and had taken a sip from the beer he was holding at the
time Pendleton arrived. The beer in Rogers' hand was the only alco-
hol the officers saw at the scene. Pendleton, however, asserted that
Rogers appeared intoxicated and was "blowing alcohol fumes" in
Pendleton's face.1
                 1 (J.A. at 60, 69.)

Rogers told Pendleton that he was the owner of the property;
Pendleton told Rogers that the department had received noise com-
plaints. Rogers stated that any noise problem had ended. Officer
Pendleton testified that he viewed Rogers as irreverent and intoxi-
cated and wished to speak to someone "who was sober" regarding the
noise complaint. (J.A. at 61.) Pendleton told Rogers that he intended
to search the premises, whereupon Rogers asked Pendleton whether
he had a search warrant and whether he had probable cause for a
search. Pendleton stated that he did not need a search warrant,
because Rogers was drinking in public. After stating that he owned
the premises, Rogers repeatedly asked the officers to leave. During
their discussion with Rogers, the officers observed persons appearing
to be younger than twenty-one leaving the yard and entering the
house. Pendleton testified that Rogers invaded his "personal space"
and was stepping into his way, "put[ting] his face in my face." (J.A.
at 61.) Pendleton then stepped around Rogers and continued to look
at Rogers, who was then speaking with Vinyard. The officers then
arrested Rogers for public drunkenness and impeding an officer,
handcuffed him, and placed him in the back of a police cruiser. At
that point, without making any further investigation on the premises,
the officers took Rogers to the police station.
_________________________________________________________________

1 Following Rogers' arrest for public intoxication, no officer asked
Rogers to conduct any sobriety test, either at the time of the arrest or at
any time thereafter, and all of the charges against him eventually were
dismissed.

                  3
II.

On March 16, 1999, Rogers filed suit against the officers pursuant
to 42 U.S.C.A. § 1983 (West 1994 & Supp. 2000), alleging that the
officers violated the Fourth Amendment to the United States Consti-
tution and raising various Constitutional claims related to his arrest,
including claims of false arrest, unreasonable assault, false imprison-
ment, and malicious prosecution. The officers denied these violations
in their response to the suit and asserted that the suit was barred by,
inter alia, the doctrine of qualified immunity. Following discovery,
the officers moved for summary judgment, arguing that they were
entitled to qualified immunity as a matter of law. The district court
denied the motion on the ground that the search of Rogers' home and
curtilage which the officers planned to conduct was clearly illegal,
and thus Rogers was entitled to refuse to permit the search to occur.
A district court's denial of qualified immunity is immediately appeal-
able under the collateral order doctrine, because qualified immunity
confers immunity from suit and not merely from liability. Mitchell v.
Forsyth, 472 U.S. 511, 528-30 (1985).2
                                     2
_________________________________________________________________

2 A district court's conclusion that a disputed issue of fact exists is not
immediately appealable under the collateral order doctrine; instead, on an
interlocutory appeal of a denial of qualified immunity, we must ask
whether, assuming "all of the conduct which the District Court deemed
sufficiently supported for purposes of summary judgment," the officers
are, nonetheless, entitled to summary judgment as a matter of law.
Behrens v. Pelletier, 516 U.S. 299, 313 (1996); see also Johnson v.
Jones, 515 U.S. 304, 313 (1995) (stating that a district court's determina-
tion that the evidence at the summary judgment stage raises a genuine
issue of fact is not immediately appealable). When the district court, in
denying summary judgment, does not identify the specific conduct that
it finds adequately supported to create a genuine issue for trial, we must
"review . . . the record to determine what facts the district court, in the
light most favorable to the nonmoving party, likely assumed." Behrens,
516 U.S. at 313 (quoting Johnson, 515 U.S. at 319). In determining what
the district court "likely assumed," this Court "determines what the evi-
dence [properly before the district court on summary judgment], viewed
in the light most favorable to the nonmoving party, demonstrated." Win-
field v. Bass, 106 F.3d 525, 535 (4th Cir. 1997) (en banc).

                  4
III.

A district court's denial of qualified immunity is reviewed de novo
on appeal with the court using its "full knowledge of its own [and
other relevant] precedents." Elder v. Holloway, 510 U.S. 510, 516
(1994) (internal quotation marks omitted and alteration in original).
The Supreme Court has held that "government officials performing
discretionary functions generally are shielded from liability for civil
damages insofar as their 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). Quali-
fied immunity is not lost when an officer violates the Fourth Amend-
ment unless a reasonable officer would know that the specific conduct
at issue was impermissible. Anderson v. Creighton, 483 U.S. 635,
638-39 (1987). A "law enforcement officer who participates in a
search that violates the Fourth Amendment may [not] be held person-
ally liable for money damages if a reasonable officer could have
believed that the search comported with the Fourth Amendment." Id.
at 637. The Supreme Court has held that a right can be deemed clearly
established even if there is no prior decision addressing the precise
conduct at issue, so long as its illegality would have been evident to
a reasonable officer based on existing caselaw. See Wilson v. Layne,
526 U.S. 603, 615 (1999); Anderson v. Creighton, 483 U.S. 635, 640
(1987) (stating that the precise conduct at issue need not have been
held illegal for a right to be clearly established; instead, the particular-
ity inquiry looks to whether "in the light of pre-existing law the
unlawfulness [was] apparent"); cf. United States v. Lanier, 520 U.S.
259, 270-71 (1997).

Officers are not afforded protection when they are "plainly incom-
petent or . . . knowingly violate the law." Malley v. Briggs, 475 U.S.
335, 341 (1986). But, in gray areas, where the law is unsettled or
murky, qualified immunity affords protection to an officer who takes
an action that is not clearly forbidden -- even if the action is later
deemed wrongful. Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.
1992). The deference given to the judgments of law enforcement offi-
cers acting in good faith is "particularly important in cases involving
law enforcement officials investigating serious crimes." Porterfield v.
Lott, 156 F.3d 563, 567 (4th Cir. 1998).

                  5
To determine whether the officers are entitled to qualified immu-
nity, the steps are sequential: we "`must first determine whether the
plaintiff has alleged the deprivation of an actual constitutional right
at all,'" before "`proceed[ing] to determine whether that right was
clearly established at the time of the alleged violation.'" Wilson, 526
U.S. at 609 (quoting Conn v. Gabbert, 526 U.S. 286, 290 (1999)). As
the precedent of the Supreme Court and this Circuit makes clear, the
nature of the right allegedly violated must be defined "at a high level
of particularity." Edwards v. City of Goldsboro, 178 F.3d 231, 250-51
(4th Cir. 1999); see also Anderson, 483 U.S. at 639-40. Here, defined
at the appropiate level of specificity, the question is whether a reason-
able officer could have believed that a general search in the curtilage
of a private home for evidence of a noise violation and evidence of
underage alcohol consumption was permissible based solely upon rea-
sonable suspicion. With these principles in mind, we now turn to the
sole issue before us, whether the officers are entitled to summary
judgment in this case on the basis of qualified immunity.

A.

The officers argue that they had the right to search the curtilage of
Rogers' home based on reasonable suspicion.3 3 Their claimed basis for
reasonable suspicion is that (1) they had received noise complaints in
the vicinity of the Rogers' home; (2) Pendleton encountered Rogers
holding a bottle of beer; and (3) Pendleton observed people who
appeared to be under 21 "scurrying." Thus, the officers argue that they
had an adequate legal basis for conducting a search, and, therefore,
their arrest of Rogers for allegedly "impeding" this search was lawful.
We will first address the officers' contention that only reasonable sus-
picion, and not probable cause, is required to conduct a search of the
curtilage of a private home. We will then address the question of
whether the officers had the required level of justification to conduct
the search of Rogers' curtilage which they contemplated. Finally, we
will turn to the question of whether, regardless of the legality of the
_________________________________________________________________

3 We address here the officers' planned, but not completed, comprehen-
sive search of Rogers' curtilage for evidence of noise and alcohol viola-
tions. Rogers also contends that the officers' entry into his driveway for
the purpose of speaking to him constituted an illegal search. We address
that contention in section IV infra.

                  6
officers' contemplated search, the officers had probable cause to
arrest Rogers for impeding an officer and for public intoxication.

The district court held that the protection against warrantless
searches of the home extends fully to the curtilage. Thus, the district
court held that searches of the curtilage are permissible only when
probable cause plus either a warrant or exigent circumstances exist.
Id. The police officers did not have a warrant and do not contend that
exigent circumstances justified their planned search. Their planned
search therefore was illegal unless mere reasonable suspicion suffices
to permit a search of the curtilage, and the officers in fact had reason-
able suspicion.

The district court had a strong basis for its holding that probable
cause is required for a search of the curtilage of a home. The Supreme
Court in Oliver v. United States, 466 U.S. 170 (1984), stated that "the
curtilage . . . warrants the Fourth Amendment protections that attach
to the home. At common law, the curtilage is the area to which
extends the intimate activity associated with the`sanctity of a man's
home and the privacies of life,' . . . and therefore has been considered
part of the home itself for Fourth Amendment purposes." Id. at 180
(internal citation omitted). The Court reaffirmed this position in Dunn
v. United States, 480 U.S. 294 (1987), stating that "[in Oliver] we rec-
ognized that the Fourth Amendment protects the curtilage of a house
and that the extent of the curtilage is determined by factors that bear
upon whether an individual reasonably may expect that the area in
question should be treated as the home itself." 4 Id. at 300. Thus, two
relatively recent Supreme Court decisions have stated that the curti-
lage is entitled to the same level of Fourth Amendment protection
extended to the home, so that, as with the home, probable cause, and
not reasonable suspicion, is the appropriate standard for searches of
the curtilage.

B.

We next address whether Rogers' right to be free from a search of
the curtilage of his home premised only upon reasonable suspicion
_________________________________________________________________

4 The officers do not claim that the area they planned to search was out-
side the boundaries of the curtilage.

                  7
was clearly established at the time of the incident. Faced with the
above case law, the officers attempt to argue that their planned search
was permissible, or at a minimum, that the law in this area was not
clearly established because some cases hold that an officer may,
based upon reasonable suspicion, enter the curtilage for the purpose
of approaching the home to speak to its inhabitants. By extension of
that principle, the officers contend that they had the right to conduct
a comprehensive search for evidence of a noise violation -- such as
a band or amplifying equipment -- as well as a right to pursue evi-
dence of underage alcohol consumption, based only upon reasonable
suspicion.

In determining whether a right is clearly established, we may rely
upon cases of controlling authority in the jurisdiction in question, or
a "consensus of cases of persuasive authority such that a reasonable
officer could not have believed that his actions were lawful." Wilson,
526 U.S. at 617. While a consensus of cases of persuasive authority
may clearly establish a right for qualified immunity purposes, the
inverse is also true: if there are no cases of controlling authority in the
jurisdiction in question, and if other appellate federal courts have split
on the question of whether an asserted right exists, the right cannot
be clearly established for qualified immunity purposes. See id. at 618
(noting a circuit split and stating that "[i]f judges thus disagree on a
constitutional question, it is unfair to subject police to money dam-
ages for picking the losing side of the controversy"). Therefore, hav-
ing determined that the United States Supreme Court has, in Oliver
and Dunn, established the right to be free of searches of the curtilage
based merely on reasonable suspicion, we must survey the cases cited
by the officers to determine whether these cases could cause a reason-
able officer to believe that the search planned by the officers in this
case was constitutional.

This Court's decision in Alvarez v. Montgomery County, 147 F.3d
354 (4th Cir. 1998), fails to create any doubt as to the illegality of the
officers' planned search. In Alvarez, the officers received a complaint
alleging underage drinking at a party, and went to the house that was
the subject of the complaint. Id. at 356. When they approached the
front door, the officers observed a sign stating,"Party in Back"; an
arrow on the sign pointed towards the backyard. Id. at 357. The offi-
cers followed the arrow, entered the backyard, and asked to speak to

                   8
the owner. Id. While waiting to speak to the owner, the officers
observed a person who appeared to be below the legal drinking age
consuming a cup of beer. Id. After questioning the suspected under-
age drinker, who produced a suspicious identification card while the
officers continued to wait to speak to the owner, the officers went
back to the front of the home and spoke further to the suspected
underage drinker, who admitted that she was underage and stated that
the party's host, knowing her age, had invited her to the party. Id. The
officers then issued a citation to the host. Id. Alvarez stated that offi-
cers may enter a person's yard without probable cause if they have
a "legitimate reason . . . unconnected with a search of [the] premises,"
id. at 358 (internal quotation marks omitted), and held that a desire
to speak to the party's host was such a legitimate reason. In this case,
the officers spoke to Rogers, the host, immediately, and were asked
to leave. At that point, they no longer had a legitimate reason uncon-
nected with a search of the premises, and the reasoning of Alvarez
thus indicates that they would have exceeded the legitimate reasons
for their entry had they proceeded to conduct a general search of the
curtilage.

The Eleventh Circuit has held that "[r]easonable suspicion cannot
justify the warrantless search of a house, but it can justify the agents'
approaching the house to question the occupants." United States v.
Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991). The officers rely on
Tobin for the proposition that their contemplated search of Rogers'
curtilage was reasonable in light of clearly established law. Their reli-
ance on Tobin is misplaced. First, the Tobin opinion cited as authority
Davis v. United States, 327 F.2d 301 (9th Cir. 1964), in which the
Ninth Circuit stated that "[a]bsent express orders from the person in
possession," officers may "walk up the steps and knock on the front
door of any man's `castle,' with the honest intent of asking questions
of the occupant thereof." Id. at 303. Thus, Tobin itself, on which the
officers rely, cites approvingly as the basis for its holding a case stat-
ing that the right to approach the home and knock on its door to ques-
tion the occupants is inapplicable in the presence of contrary "express
orders from the person in possession." Id. In addition, this portion of
Tobin is an alternative holding, because the Tobin court found that the
presence of probable cause and exigent circumstances justified the
search at issue. Tobin, 923 F.2d at 1511. Further, Tobin is factually
distinguishable: after observing what appeared to be the offloading of

                   9
cocaine, the officers in Tobin simply approached the front door of the
home and knocked, whereupon the inhabitants came to the door. Id.
at 1508. The distinction between approaching a house to knock on the
front door, as citizens do every day, and persisting, in the face of a
request to leave by the owner of property, in a comprehensive search
for sound equipment, underage drinkers and persons who might cause
a noise violation to recur would seem obvious. Tobin did not hold, nor
could it in light of the clear language of Oliver and Dunn, that general
searches of the curtilage of a private home may be conducted without
a warrant or exigent circumstances, based simply upon reasonable suspi-
cion.5
     5

The officers also rely upon United States v. Searle, 974 F.Supp.
1433 (M.D. Fla. 1997), a case in which officers received a report of
gunshots from a house on a given street, and noticed only one house
on the street in question with lights on. Id. at 1435. The officers
knocked on the front door, received no answer, went around to knock
on the back door, knocked, and spoke to an inhabitant who came to
the door. Id. The Searle court found that probable cause and exigent
circumstances supported the entry onto the curtilage of the home but
held alternately that "[w]here police have a reasonable suspicion and
approach a house to question the occupants thereof, their conduct
does not violate the Fourth Amendment." Id. at 1440. Searle, how-
ever, fits neatly within the obvious rationale of Tobin: just as private
citizens may approach a home, absent contrary instructions from the
owner, to knock on a door, so may the police approach without proba-
ble cause, a warrant, or exigency. Searle clearly did not hold that,
after speaking to the owner of a house and being asked to leave, offi-
cers may continue to probe the entire curtilage of a home and speak
to anyone within the curtilage based merely upon reasonable suspi-
cion.
_________________________________________________________________

5 We note that the officers do not claim that any exigency -- such as
the need to prevent the destruction of evidence-- justified their planned
warrantless search in this case. The officers do contend that Rogers was
intoxicated, and thus their planned search was justified by the need to
speak to a responsible adult at the party. (Brief of Appellants at 9 (stating
that Officer Pendleton was simply looking for a "responsible adult at the
house.")). Our discussion at § II.C.2 infra demonstrates that, granting
Rogers the benefit of all factual disputes as we must, it is clear that a rea-
sonable officer would not have perceived Rogers as intoxicated.

                  10
The officers argue that the district court "failed to recognize the
right of officers to enter upon curtilage to make an investigation based
on reasonable suspicion." (Reply Brief of Appellants at 3.) The dis-
trict court failed to recognize this right because no such right exists;
instead, the right secured by Tobin and similar cases is the right to
"knock and talk," that is, to knock on a residence's door or otherwise
approach the residence seeking to speak to the inhabitants, not the
right to make a general investigation in the curtilage based on reason-
able suspicion. A contrary rule would eviscerate the principle of Oli-
ver and Dunn that the curtilage is entitled to the same level of Fourth
Amendment protection as the home itself. Indeed, the cases the offi-
cers rely upon say simply that police officers do not need a warrant
to do what any private citizen may legitimately do-- approach a
home to speak to the inhabitants. This is an unremarkable proposition,
but it clearly fails to encompass a continued search of the curtilage
for people and things after officers have spoken to the owner of a
home and been asked to leave. This interpretation is buttressed by
Fourth Circuit case law holding that searches of the curtilage require
probable cause even without regard to the law of trespass. See United
States v. Jackson, 585 F.2d 653, 660 (4th Cir. 1978) ("Of course, a
search of one's home or its curtilage, effected as a result of a trespass,
is an encroachment on a person's expectancy of privacy and is for that
reason, but not because of the trespass, a violation of the Fourth
Amendment if not based on probable cause or authorized by a search
warrant." (emphasis added)). We believe that Oliver and Dunn control
this case, and clearly establish that searches of the curtilage of a pri-
vate home are not permitted based solely upon reasonable suspicion.
Further, we do not believe that reasonable persons could read Tobin,
Alvarez, and similar cases in a manner that would cast doubt on the
law established in Oliver and Dunn. Thus, Rogers had a clearly estab-
lished right to be free of the officers' planned search of the curtilage
of his home, absent probable cause plus either a warrant or exigent
circumstances. Because the officers do not claim to have had a war-
rant, exigent circumstances, or probable cause, it follows that their
contemplated search was illegal, and it was plainly so based upon
clearly established law at the time of the search.

C.

Rogers was arrested for obstruction of justice under Va. Code Ann.
§ 18.2-460 (Michie 1996 & Supp. 2000) and intoxication in public

                  11
under Va. Code Ann. § 18.2-388 (Michie 1996 & Supp. 2000). 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. An arrest is a seizure of the person, and subject to
limited exceptions not relevant here, the general rule is that "Fourth
Amendment seizures are `reasonable' only if based on probable
cause." Dunaway v. New York, 442 U.S. 200, 213 (1979). Probable
cause is "defined in terms of facts and circumstances sufficient to
warrant a prudent man in believing that the [suspect] had committed
or was committing an offense." Gerstein v. Pugh, 420 U.S. 103, 111
(1975) (internal quotation marks omitted and alterations in original).
"Whether probable cause exists in a particular situation . . . always
turns on two factors in combination: the suspect's conduct as known
to the officer, and the contours of the offense thought to be committed
by that conduct." Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir.
1992). "Probable cause therefore could be lacking in a given case, and
an arrestee's right violated, either because of an arresting officer's
insufficient factual knowledge, or legal misunderstanding, or both."
Id. If a person is arrested when no reasonable officer could believe,
in light of the contours of the offense at issue, that probable cause
exists to arrest that person, a violation of a clearly established Fourth
Amendment right to be arrested only upon probable cause ensues. See
Smith v. Reddy, 101 F.3d 351, 356 (4th Cir. 1996). Thus, the appro-
priate question is whether a reasonable police officer could have
believed that arresting Rogers on charges of public intoxication and
impeding an officer was lawful, in light of clearly established law and
the information the officers possessed. Cf. Wilson, 526 U.S. at 615.

1. Obstruction of Justice

The officers contend that their arrest of Rogers was lawful because
Rogers' conduct violated Va. Code Ann. § 18.2-460(A), which states
that "[i]f any person without just cause knowingly obstructs a . . . law
enforcement officer in the performance of his duties. . . he shall be
guilty of a Class 2 misdemeanor." The key issue is whether under any
reasonable interpretation of § 18.2-460(A), Rogers' actions consti-
tuted a violation of that provision. Because the probable cause inquiry
is informed by the "contours of the offense" at issue, we look to Vir-
ginia cases to determine the reasonable scope of § 18.2-460(A). Prit-
chett, 973 F.2d at 314.

                  12
A Virginia appeals court has held that a defendant involved in an
automobile accident who told an officer that he was too drunk to have
been driving and that he did not remember who was driving did not
violate § 18.2-460 because even though the statements frustrated the
officer, they did not impede or resist the officer's attempts to investi-
gate the accident. Ruckman v. Commonwealth, 505 S.E.2d 388, 389
(Va. App. 1998). A conviction for violation of the statute requires
proof of "`acts clearly indicating an intention on the part of the
accused to prevent the officer from performing his duty, as to
`obstruct' ordinarily implies opposition or resistance by direct action.
. . . It means to obstruct the officer himself not merely to oppose or
impede the process with which the officer is armed.'" Ruckman, 505
S.E.2d at 389 (quoting Jones v. Commonwealth, 126 S.E. 74, 77 (Va.
1925)). Thus, like the statute considered by the Virginia Supreme
Court in Jones, § 18.2-460(A) requires "actual hindrance or obstruc-
tion of the officer," "opposition or resistance by direct action." Polk
v. Commonwealth, 358 S.E.2d 770, 772-73 (Va. App. 1987).
"[O]bstruction of justice does not occur when a person fails to cooper-
ate fully with an officer or when the person's conduct merely renders
the officer's task more difficult" or "frustrate[s] [his or her] investiga-
tion." Ruckman, 505 S.E.2d at 389, 390.

Rogers' version of the encounter, which the district court credited
for summary judgment purposes, would indicate clearly that Rogers'
behavior did not obstruct the ability of the officers to conduct their
planned search. While Pendleton testified that Rogers was "stepping
in front of him" and "getting in his face," Pendleton also testified that
he simply stepped around Rogers without difficulty and then stood
without interference for a period of time while observing Rogers
speaking to Vinyard. Rogers, on the district court's account of the
evidence, did not make it difficult or impossible for the officers to
enter the curtilage and perform their planned illegal search; the infor-
mation in the record, construed favorably to Rogers, indicates that
they easily could have ignored him. We thus conclude that Rogers'
behavior, if indeed it was of the sort described by Rogers and implic-
itly credited by the district court for summary judgment purposes, see
Behrens, 516 U.S. at 313, was not a violation of § 18.2-460(A), and
thus Rogers was arrested without probable cause in violation of the
Fourth Amendment because the "contours of the offense," Pritchett,
973 F.2d at 314, did not encompass his conduct.

                   13
Va. Code Ann. § 18.2-460(A) provides that if any person impedes
an officer in the performance of his duties "without just cause," he
shall be guilty of an offense. This language contrasts with the provi-
sions of § 18.2-460(B) and (C), which deal with more serious obstruc-
tions "by threats or force," and contain no "without just cause"
language. "Without just cause," as used in § 18.2-460(A), clearly
operates to permit purely verbal resistance to a plainly unlawful
search. While we conclude that Rogers' acts of purely verbal objec-
tion to the officers' planned search would not constitute obstruction
regardless of the legality of their planned search, we are further cogni-
zant of the risk that persons verbally opposing an illegal search
would, on the officers' extraordinarily broad reading of § 18.2-
460(A), have to walk a very fine line between granting implicit con-
sent and objecting in a sufficiently vociferous manner as to constitute
obstruction of justice. At minimum, it is clear that when a search is
plainly illegal, mere verbal objection cannot constitute obstruction of
justice. Thus, because Virginia's obstruction of justice statute clearly
fails to encompass Rogers' behavior, we conclude that his arrest was
plainly without probable cause to believe that he violated § 18.2-
460(A), and thus the arrest violated his clearly established Fourth
Amendment rights.

2. Public Intoxication

The officers next contend that their arrest of Rogers was lawful
because he was allegedly intoxicated in public in violation of Va.
Code Ann. § 18.2-388. Rogers testified that he had nothing alcoholic
to drink prior to 8:00, consumed one bottle of beer between 8:00 and
10:30, and had taken one sip from the beer he was holding when
Pendleton arrived at 10:30. He also testified that when the officers
arrived, he was unaware of any aspects of his appearance which
would have given anyone the impression that he was intoxicated. The
district court's findings are not highly detailed on the question of
whether, as a purely factual matter, Rogers demonstrated any signs of
intoxication.6
             6 Viewing the evidence in the light most favorable to
_________________________________________________________________

6 The district court did not extensively discuss the conflicting evidence
regarding this issue. However, the district court's denial of summary
judgment coupled with its recitation of the evidence and statement that
all factual disputes must be resolved in Rogers' favor at summary judg-
ment lead us to conclude that we must, under Behrens v. Pelletier, 516
U.S. 299, 313 (1996), survey the record to determine the facts the district
court likely assumed for summary judgment purposes.

                  14
Rogers, we determine that, given the substantial conflict in the evi-
dence, the district court "likely assumed" for summary judgment pur-
poses that Rogers neither was intoxicated at the time of his arrest nor
showed any meaningful signs of intoxication. See Winfield v. Bass,
106 F.3d 525, 535 (4th Cir. 1997). This conclusion "is the factual
basis upon which this court must render its decision on the purely
legal issues presented." Id.

While the officers attempt to use Sigman v. Town of Chapel Hill,
161 F.3d 782 (4th Cir. 1998), as authority for the proposition that
only the officers' perception of Rogers' intoxication matters legally,
and thus his testimony cannot, as a matter of law, create an issue of
material fact, they misread Sigman. Sigman does not stand for the
proposition that the objective facts of an encounter are always legally
irrelevant whenever an officer asserts that his perception of an
encounter was such as to justify his action. Instead, the Sigman court
addressed a situation in which officers had uncontroverted evidence
of a suspect's dangerousness and knew that the suspect was armed
and was behaving violently within a residence. Sigman held that the
statements of persons who claimed to have observed, from a cheering
mob on the other side of the street, that the suspect was unarmed did
not create a triable issue of material fact where the officers closest to
the encounter unanimously testified that they perceived the suspect to
be armed. Id. at 787. The Sigman Court concluded that given the vol-
atile and dangerous atmosphere and the need to make a split-second
self-defense decision, the question of whether the suspect had a knife
was not necessarily material to the question of whether a reasonable
officer could have perceived him to be a violent threat.7 7 Id. at 788
(stating, "we reject the argument that a factual dispute about whether
Sigman still had his knife at the moment of the shooting is material
to the question of whether Officer Riddle is entitled to" qualified
immunity). Here, there was no such need to make a split-second, life
or death decision; the decision to arrest someone drinking a bottle of
beer in his own yard, at the end of a private road at a family social
event, is simply qualitatively different from the need to decide
whether to fire on a dangerous suspect approaching the police. If Rog-
_________________________________________________________________

7 Further, Sigman is based in part on the proposition that officers need
not in all cases actually perceive a suspect to be armed before firing. See
Sigman v. Town of Chapel Hill, 161 F.3d 782, 788 (4th Cir. 1998).

                  15
ers is correct that he had one beer within a two and one-half hour time
frame, it is likely that the officers could not have perceived him to be
intoxicated in public, and a jury would be entitled not to credit their
testimony to the contrary. Applying Sigman in the manner urged by
the officers in this case would work an unwarranted extension of a
decision intended to protect officers making split-second self-defense
decisions into the realm of minor public morals arrests which are
manifestly unjustified if disputed factual issues are resolved in the
nonmovant's favor.

Further, even if the officers could reasonably have perceived Rog-
ers to be intoxicated, they could not have reasonably perceived him
to be "in public" as required by Va. Code Ann. § 18.2-388. Rogers
was standing in his private driveway, which connects to a marked,
private road; Rogers owns the portion of the private road in front of
his property. Rogers' seven and one-half acre residence/farm is sur-
rounded by a wooden fence and a privacy hedge which blocks the vis-
ibility of his property from the private road; when he encountered the
officers, who drove well within the boundaries of his property, Rogers
could not be seen from the private road leading to his driveway, much
less from any public street. A Virginia court has noted that while at
the margins there is some division of authority as to what constitutes
a "public place," the consensus of the extant case law from jurisdic-
tions around the country holds that for purposes of public intoxication
offenses which use language similar to Virginia's statute, a private
residence where a social party is given by invitation is not a public
place. See, e.g., Commonwealth v. Osterhoudt, Crim. No. 6620, 1990
WL 751049 at *1 (Va. Cir. Ct. 1990) (noting that the majority view
defines a "public place" as "a place where the public has a right to go
and to be," excluding "a private residence where a social party is
given"); see also Royster v. State, 643 So.2d 61, 64 (Fla. Dist. Ct.
App. 1994) (approvingly noting a criminal jury instruction defining
a "public place" as "a place where the public has a right to be and go,"
and holding that the front porch of a residence is not a "public place");
Moore v. State, 634 N.E.2d 825, 827 (Ind. Ct. App. 1994) (holding
that "[a] private residence, including the grounds surrounding it, is not
a public place"). Thus, based upon the plain language of the Virginia
statute and a consensus of decisions from other jurisdictions interpret-
ing similar language, the officers did not have the right to arrest Rog-
ers for public intoxication; it was clearly established at the time of

                  16
Rogers' arrest that by consuming alcohol in his own yard, shielded
from public view, at the end of a private road, he did not commit the
offense of public intoxication within the meaning of Virginia law.88 Cf.
Smith v. Reddy, 101 F.3d at 356-57. In short, we conclude that, view-
ing the evidence in the light most favorable to Rogers, a reasonable
officer could not have perceived him to be intoxicated, and further,
we conclude that it is clear that a reasonable officer could not have
perceived him to be in a public place as required by the statute, and
thus, on two separate grounds, the district court's denial of summary
judgment based on qualified immunity on this issue must be affirmed.

IV.

In addition to his false arrest and false imprisonment claims, which
are essentially claims alleging a seizure of the person in violation of
the Fourth Amendment, Rogers brings a malicious prosecution claim
and a claim alleging that the officers' entry into his driveway for the
purpose of speaking to him constitutued an illegal search. Rogers'
malicious prosecution claim is so intertwined legally with his false
arrest claim as to stand or fall with that claim for qualified immunity
purposes. See Lambert v. Williams, 223 F.3d 257, 261-62 (4th Cir.
2000), cert. denied, 121 S.Ct. 889 (2001) (stating that "there is no
such thing as a § 1983 `malicious prosecution' claim. What we
term[ ] a `malicious prosecution' claim . . . is simply a claim founded
on a Fourth Amendment seizure that incorporates elements of the
analogous common law tort of malicious prosecution-- specifically,
the requirement that the prior proceeding terminate favorably to the
plaintiff. It is not an independent cause of action." (internal citation
omitted)). We conclude that this claim is wholly derivative of the
false arrest claim for qualified immunity purposes and thus do not
analyze it separately.
_________________________________________________________________

8 We do not contend that the precise boundaries of the meaning of "in
public" for purposes of Va. Code Ann. § 18.2-388 are settled in Virginia
law. We conclude only that wherever the precise line between public and
private may reasonably be drawn, on these facts-- involving not merely
a private residence but a private residence at the end of a private road and
surrounded by tall hedges and a fence -- Rogers was clearly on the pri-
vate side of the line.

                   17
Rogers also claims that the officers conducted an unlawful search
when they pulled into his driveway in order to speak to him regarding
the noise violation. The cases cited by the officers for the "knock and
talk" rule, while inapplicable to their planned comprehensive search
of Rogers' curtilage after he asked them to leave, find their proper
application relative to this claim. The officers had a right, based on
reasonable suspicion, to approach Rogers' home in order to speak to
him regarding the noise complaints. Their error is in converting this
limited license to do what any citizen may do -- approach the house
and speak to the inhabitant or owner -- into a license to search for
"evidence" and speak to various guests at a party after speaking to
Rogers and being asked to leave. In anything more than a de minimis
sense, however, they did not in fact search Rogers' curtilage after
being asked to leave; instead, after Rogers asked them to leave, they
arrested him and left. The actual "search" conducted by the officers
thus did not violate the Constitution, for the reasons stated in Alvarez.
Alvarez v. Montgomery County, 147 F.3d 354, 358 (4th Cir. 1998).

As regards their planned search of the curtilage for evidence of
alcohol and noise violations, which they did not in fact conduct, the
officers are correct that if the district court had found that they vio-
lated the Constitution by committing an "attempted wrongful search,"
the district court would have erred. However, we do not read the dis-
trict court to have found such an independent violation; instead, the
district court appears to have correctly found that the wrongfulness of
the officers' contemplated search was relevant to the wrongful arrest
claim, since Rogers' arrest for verbally obstructing an officer is inex-
tricably intertwined with his refusal to consent to, and his decision to
complain about, a search that would have been illegal if performed
without his consent. At root, this is a false arrest and false imprison-
ment case.

V.

In examining each constituent part of the officers' qualified immu-
nity claim, we do not lose sight of the possible inference from the evi-
dence that Rogers' arrest was motivated by the officers' anger at his
"irreverent" refusal to consent to their search. In short, crediting Rog-
ers' version of disputed factual issues, as we must, it appears that this
may not be a case in which police officers acting in good faith made

                  18
a "bad guess" in a confusing area of the law, but instead, may be a
case in which police officers, angered by a homeowner's correct
statement of his legal rights and refusal to permit a search which was
clearly illegal absent his consent, arrested a homeowner in a fit of
pique. The officers now seek to justify their arrest with an implausible
reading of cases establishing a simple right to approach a home to
speak to the owner without a warrant, assertions that verbal objection
to an illegal search is an independently arrestable offense, and claims
that a suspect was intoxicated in public when it is disputed whether
he was intoxicated and the clear evidence indicates that he was not
in public. The police do not have a right to arrest citizens for refusing
to consent to an illegal search. The decision of the district court is
therefore affirmed.

AFFIRMED

                  19
