UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANTHONY J. MAITILASSO,
Plaintiff-Appellant,

v.

CHARLES E. TIMBERLAKE, JR.; L. R.
SPEARS; DONALD L. KUYKENDALL,
Defendants-Appellees,

and
                                                               No. 94-1898
VIRGINIA STATE POLICE; JOHN
HAMLET; WESTMORELAND COUNTY;
GEORGE WILLIAM WAUGHTEL,
Deputy; CLYDE DAVIS; WAYNE
DIROSARIO; DARRYL E. FISHER;
W. W. HYNSON; WILLIAM O.
SYDNOR; HELEN WHITE,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-94-171-R)

Argued: April 3, 1995

Decided: February 5, 1996

Before WIDENER and LUTTIG, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: William Gething Dade, DADE & BAILEY, Fredericks-
burg, Virginia, for Appellant. Francis Walter Pedrotty, III, Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL, Rich-
mond, Virginia, for Appellees. ON BRIEF: James S. Gilmore, III,
Attorney General of Virginia, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The plaintiff, Anthony J. Maitilasso, appeals the order of the dis-
trict court granting the defendants' motion for summary judgment on
the grounds of qualified immunity, and dismissing his claim under 42
U.S.C. § 1983 that defendant law-enforcement officers violated his
constitutional rights by unlawfully arresting him when he refused to
submit to fingerprinting. We affirm.

Defendants Timberlake and Spears are state police officers who
were investigating allegations against Maitilasso of aggravated sexual
battery, a felony under Va. Code Ann. § 18.2-67.3. During an inter-
view, Maitilasso gave the spelling of his name as Maitilasso and a
birthdate of May 23, 1943, and stated that he had never been arrested.
This information was inconsistent with other information discovered
by the officers which revealed a North Carolina driver's license with
the birthdate of April 23, 1943 and the spelling of the name as Mai-
titasso; records from Virginia showing both spellings of his name
with a birthdate of May 23, 1943; records from Michigan showing the
last name to be Maitilasso with a birthdate of April 23, 1943; and a
criminal history record of an arrest for three offenses of theft in Penn-
sylvania in 1985.

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Based on the inconsistencies in the various state records as to the
spelling of his name and his birthdate, and Maitilasso's statement that
he had never been arrested, the officers requested that Maitilasso sub-
mit to fingerprinting. Maitilasso refused, offering instead an affidavit
of identity. The officers then obtained a search warrant from Magis-
trate Donald Kuykendall to obtain the fingerprints of Maitilasso for
the purpose of verifying Maitilasso's identity in relation to their
investigation of the offense of aggravated sexual battery in violation
of Va. Code Ann. § 18.2-67.3. The warrant was executed and Mai-
tilasso again refused to submit to fingerprinting. He was arrested,
transported to the Westmoreland County Sheriff's office, and
appeared the same day before Magistrate John Hamlet, who found
probable cause and issued a warrant for arrest for obstruction of jus-
tice, failing to assist an officer in a criminal investigation, in violation
of Va. Code Ann. § 18.2-460. Maitilasso again refused to be pro-
cessed and was jailed with a $1500.00 cash surety bond until the next
day when he submitted to fingerprinting. Three felony warrants
charging Maitilasso with aggravated sexual battery of three victims
all under the age of thirteen years were secured on February 18, 1994.

Maitilasso brought an action pursuant to 42 U.S.C.§ 1983 against
Timberlake and Spears and others, alleging that he was unlawfully
arrested without a warrant or proper legal foundation. In a final order
entered June 10, 1994, the district court dismissed the case against all
defendants, including Magistrate Hamlet and Westmoreland County
pursuant to Fed. R. Civ. Proc. 12(b)(6), and found that Magistrate
Kuykendal was entitled to judicial immunity on the same basis as was
Magistrate Hamlet. The court granted motions for summary judgment
in favor of the Virginia State Police and defendants Timberlake,
Spears, and Davis based on 11th Amendment immunity in their offi-
cial capacities and the fact that the State Police are not persons under
§ 1983. The court denied the officers' motion in their individual
capacities for failure to state a claim, but granted their motion for
summary judgment based on qualified immunity, finding that the offi-
cers acted in an objectively reasonable fashion and in reliance upon
warrants issued by judicial officers. The only issue on appeal is the
grant of summary judgment in favor of Timberlake and Spears on the
basis of qualified immunity. Maitilasso brief at 2.

Qualified immunity is an entitlement to be free from suit, and thus
is a question of law that is properly decided as early as possible.

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Hunter v. Bryant, 502 U.S. 224, 227-28 (1991). Our review of the dis-
trict court's grant of summary judgment on the basis of qualified
immunity is de novo, in light of all relevant precedents. Elder v.
Holloway, 62 USLW 4149 (Feb. 23, 1994).

The proper standard to determine if Timberlake and Spears are
entitled to qualified immunity is whether in light of clearly estab-
lished law and the information the officers possessed, a reasonable
officer could have believed that he had probable cause to obtain a
search warrant for fingerprinting, and that probable cause existed to
arrest Maitilasso for obstruction of justice. See Anderson v.
Creighton, 483 U.S. 635, 641 (1987); see also Malley v. Briggs, 475
U.S. 335 (1986). In the circumstances of this case,"[p]robable cause
existed if `at the moment the arrest was made . .. the facts and cir-
cumstances within their knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man in
believing' that [Maitilasso] had violated[Va. Code Ann. § 18.2-
460]." Hunter, 502 U.S. at 228, quoting Beck v. Ohio, 379 U.S. 89,
91 (1964). The test is "whether the [officers] acted reasonably under
settled law in the circumstances, not whether another reasonable, or
more reasonable, interpretation of the events can be constructed. . . ."
502 U.S. at 228.

In this case, Maitilasso was suspected of committing aggravated
sexual battery of children. He had lied about his criminal history, and,
for whatever reason, had records in at least three other States showing
a different spelling of his name and a different birthdate. The officers
asked him to submit to fingerprinting in order to establish his identity.
When Maitilasso refused, the officers sought and obtained a search
warrant from a judicial officer. The warrant clearly stated the purpose
and scope of the search and we find nothing in the record to suggest
that the officers mislead the magistrate. A reasonably competent offi-
cer could have concluded that Maitilasso was covering up relevant
criminal history, and that probable cause existed to seek a simple
form of identification as well as a correct criminal history not based
on the spelling of a name or on date of birth. We also agree with the
district court that a reasonably competent officer could conclude that
he could rely on the magistrate's determination of probable cause in
issuing the warrant for fingerprinting.

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When Maitilasso refused to comply with the search warrant, he
was arrested for obstruction of justice in violation of Va. Code Ann.
§ l8.2-460, a Class I misdemeanor, punishable by up to twelve months
confinement or a fine of not more than $1000, either or both. Va.
Code Ann. § 18.2-11(a). Maitilasso presented no precedent, and we
have found none, to support his position that under Virginia law there
is no probable cause to arrest when a person under investigation for
felonious crimes refuses to comply with an objectively valid search
warrant. A reasonably competent officer could conclude under Vir-
ginia law that such a refusal was a violation of Va. Code Ann. § l8.2-
460. See Love V. Commonwealth, 212 Va. 492, 184 S.E. 2d 769
(1971). In Virginia, a state police officer has authority to arrest with-
out a warrant for a misdemeanor committed in his presence, or to
arrest without a warrant if he has reasonable grounds to suspect that
the person has committed a felony outside his presence. Va. Code
Ann. § 19.2-81. We find that a reasonably competent officer could
conclude that there was probable cause to arrest Maitilasso under the
circumstances and under relevant precedent.*

In sum, we are of opinion that Timberlake and Spears were ever
so careful in their treatment of Maitilasso.

The judgment of the district court is accordingly

AFFIRMED.
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*We also note that it is questionable that Maitilasso has met the thresh-
old requirement of establishing that the defendants deprived him of a
right "secured under the United States Constitution." See Baker v.
McCollan, 443 U.S. 137, 146 (1979).

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