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.

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Reversed and remanded with instructions by published opinion. Judge

Wilkins wrote the opinion, in which Judge Hall and Judge Williams

joined.

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COUNSEL

ARGUED: John Adrian Gibney, JR., SHUFORD, RUBIN & GIBNEY, 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 Fourteenth 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 magistrate 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 demonstrates 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 identified 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 automobile, arrested him, and seized a quantity of cocaine. Soon afterward, Duncan admitted that he was a cocaine dealer.

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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).

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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, Investigator 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 common 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 approximately $1,907 from Taylor's employment as a waiter, bank statements 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 evidence of Taylor's guilt. Soon after the arrest, Duncan informed Investigator Waters that Taylor was not involved in the offenses, and the

informant who had identified Duncan reported that she had no knowledge 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 laboratory analysis of the residue on the kitchen utensils failed to reveal

the existence of narcotics. Only the brown envelope located in the

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kitchen trash contained cocaine residue. Prior to the preliminary hearing, 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 Investigator 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 negligence. 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 qualified immunity because the information supporting the arrest was not

so lacking that a reasonable officer could not have believed that probable 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 prosecutors 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 preliminary 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

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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).

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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 reasonable 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 quotation marks omitted).

Taylor's complaint is far from a model of clarity, rendering enigmatic 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 supported by probable cause alleges a deprivation of the Fourth Amendment 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

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hence more relevant, sense: The contours of the right must

be sufficiently clear that a reasonable official would understand 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 violate 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 company of a person engaging in criminal activity" is not, by itself, sufficient 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-

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4 Pursuant to Va. Code Ann. § 18-2.250(A), no presumption of possession arises as a result of ownership or occupancy of premises where

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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 identity, 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 reasonable 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 apartment 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

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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).

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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 commonly 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 Investigator 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

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had failed to disclose inculpatory evidence--to the prosecutor violated 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 Amendment. 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 Amendment 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 probable 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 considered arrest and pretrial detention of criminal suspects to be governed by the Fourth Amendment without reference to other

constitutional guarantees); Graham, 490 U.S. at 395 (rejecting substantive 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 Fourteenth Amendment.5

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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 sufficient to establish that the officer violated plaintiffs' right to due process, reasoning that a wrongful prosecution constituted a deprivation of

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Finally, we consider whether established Fourth Amendment jurisprudence 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 seizures, 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 persons 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 determination of probable cause has been rendered, however, the Fourth

Amendment does not impose any further requirement of judicial oversight 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,

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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., concurring in judgment). But, to the extent that Goodwin ruled that the officer'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 favorable 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.

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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 communication between investigators and prosecutors should be encouraged,

the failure of an officer to disclose exculpatory evidence after a determination of probable cause has been made by a neutral detached magistrate 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 Taylor'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 consider 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 qualified 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.

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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.

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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 practice 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 dismissed as well."); Clark v. Brown, 861 F.2d 66, 68 (4th Cir. 1988)

(directing dismissal of state-law claims on remand after holding district court erred in failing to grant summary judgment to defendant in

§ 1983 claim on the basis of qualified immunity).

REVERSED AND REMANDED WITH INSTRUCTIONS

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