PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EVERETT ALVAREZ, JR.; TAMMY

ALVAREZ; MARC ALVAREZ,

Plaintiffs-Appellants,

v.

MONTGOMERY COUNTY; DOUGLAS M.

DUNCAN, in his individual and

official capacity; CAROL A.

MEHRLING, Chief of Police,

Montgomery County, in her

No. 97-1648

individual and official capacity;

JOHN P. ROMACK, PO III, in his

individual and official capacity;

ROBIN L. XANDER, PO II, in her

individual and official capacity;

LINDA S. NEUDORFER, PO I, in her

individual and official capacity;

DEANNA CHITTICK, Intern, in her

individual and official capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Peter J. Messitte, District Judge.

(CA-95-3627-PJM)

Argued: May 7, 1998

Decided: June 22, 1998

Before WILKINSON, Chief Judge, WILLIAMS, Circuit Judge, and

FRIEDMAN, United States District Judge for the Eastern District

of Virginia, sitting by designation.

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Affirmed by published opinion. Chief Judge Wilkinson wrote the

opinion, in which Judge Williams and Judge Friedman joined.

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COUNSEL

ARGUED: Patrick Joseph Smith, PATRICK J. SMITH & ASSOCIATES, Rockville, Maryland, for Appellants. Karen Federman

Henry, Principal Counsel for Appeals, Rockville, Maryland, for

Appellees. ON BRIEF: Bernadette Sweeney, PATRICK J. SMITH

& ASSOCIATES, Rockville, Maryland, for Appellants. Charles W.

Thompson, Jr., County Attorney, Linda B. Thall, Chief Counsel,

Division of Special Projects, Rockville, Maryland, for Appellees.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

This appeal involves constitutional and state law claims by Everett,

Tammy, and Marc Alvarez against several police officers employed

by Montgomery County, Maryland. The Alvarezes argue principally

that the officers' warrantless entry into the backyard of their home

violated the Fourth Amendment. We disagree. The Fourth Amendment does not prohibit police, attempting to speak with a homeowner,

from entering the backyard when circumstances indicate they might

find him there; thus we conclude the district court properly granted

summary judgment on the constitutional claim. We also hold that the

district court properly granted summary judgment on plaintiffs' state

claims.

I.

On June 24, 1995, Everett and Tammy Alvarez held a party at their

home to celebrate the twenty-first birthday of their son, Marc. Marc

invited approximately seventy to seventy-five people to the party. The

family provided food and refreshments, including several kegs of

beer. During the party, the kegs were left unattended on the back

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patio. Guests congregated on the back patio and in an adjacent recreation room.

During the evening, the Montgomery County police received a

complaint of an underage drinking party in the neighborhood. The

911 call was announced over the police radio. Responding to the call,

Officer John P. Romack, a member of the Department's Alcohol

Enforcement Unit, met several other officers and drove toward the

area. As he proceeded down Sunrise Drive, Officer Romack noticed

multiple alcohol containers in front of the Alvarezes' home and several cars parked there in an "odd" fashion.

Suspecting that they had located the underage drinking party, the

officers exited their cruisers. While the other officers waited by the

driveway, Officer Romack approached the front door intending to

notify the Alvarezes of the complaint and to request that no one drive

away from the party while intoxicated. When Officer Romack

reached the front stoop, another officer noticed a sign indicating the

party was around back and informed Officer Romack about it. The

sign, affixed to a lamppost in the front driveway, read "Party In

Back"; an arrow on the sign pointed toward the backyard. As it had

rained earlier in the day, Everett Alvarez had posted the sign so guests

would go around back rather than track mud through the house. Without knocking, Officer Romack walked away from the front door, read

the sign, then entered the backyard with the other officers.

Once in the backyard, the officers saw several guests, and Officer

Romack asked to speak with the party's host or the homeowner.

While waiting, he observed Ashley Manning, who appeared to be

underage, drinking what he believed to be beer from a cup. Officer

Romack asked Ashley her age; she responded that she was twentyone years old. Officer Romack then asked to see her identification;

Ashley produced a driver's license which Officer Romack immediately suspected to be fictitious.

At this point, Marc Alvarez confronted Officer Romack, identifying himself as the party's host and demanding to know why the officers were at the house. Officer Romack explained that they were

responding to a complaint of underage drinking and that Ashley had

just given him a false identification. Marc swore at Officer Romack,

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so the officers returned to the front of the home with Ashley to verify

whether her license was fictitious.

In front of the Alvarezes' home, Ashley admitted that she was only

nineteen years old and that Marc, knowing her age, had invited her

to the party. Everett Alvarez then came to the front of the house, and

Officer Romack told him that he wished to speak to his son. Everett

went inside and explained to Marc that the officers wanted to talk to

him. Finding the situation "ridiculous," Marc initially was reluctant to

go, but his father soon persuaded him to return outside. Once outside,

Marc admitted that he knew Ashley. Officer Romack then issued

Marc a citation for furnishing an alcoholic beverage to a person under

twenty-one years of age. See Md. Ann. Code art. 27, § 401A. At a

trial on the citation, a judge granted Marc's motion for judgment of

acquittal and entered a verdict of not guilty.

Marc and his parents subsequently sued Montgomery County,

county officials, and several police officers, alleging constitutional

violations under 42 U.S.C. § 1983 and raising pendent state claims.

The district court dismissed the claims. On appeal, the Alvarezes

argue only that the officers' warrantless entry into their backyard violated the Fourth Amendment; Marc Alvarez also presses several

Maryland tort claims.

II.

We first address the Alvarezes' constitutional claim. They maintain

that the officers' warrantless entry into their backyard constituted an

unreasonable search. The district court found that the officers did not

violate the Fourth Amendment and, alternatively, that they were entitled to qualified immunity.

A.

Not every police encounter with a person or approach to a building

implicates the Fourth Amendment. For example, police may question

a person without committing a seizure where "a reasonable person

would feel free to decline the officers' requests or otherwise terminate

the encounter." Florida v. Bostick, 501 U.S. 429, 436 (1991); see also

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United States v. Wilson, 895 F.2d 168, 170-71 (4th Cir. 1990) (per

curiam). Similarly, police may approach a building, including the

front entranceway to a residential dwelling, without committing a

search where a person lacks a reasonable expectation of privacy in the

area. E.g., United States v. Taylor, 90 F.3d 903, 908-09 (4th Cir.

1996); United States v. Jackson, 585 F.2d 653, 660 (4th Cir. 1978);

see generally 1 Wayne R. LaFave, Search and Seizure § 2.3(c), at

483-84 & nn.78-85 (3d ed. 1996) (collecting cases).

The Alvarezes concede that some warrantless police approaches to

residential dwellings do not violate the Fourth Amendment. Nonetheless, they propose a rule requiring police under all circumstances to

knock at the front door before attempting to contact the occupant elsewhere on the premises. They maintain that the officers' failure in this

case to knock at the front door before entering the backyard constituted an unreasonable search.

We decline to adopt the inflexible approach urged by the Alvarezes. The textual "touchstone of the Fourth Amendment is reasonableness." Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citing Katz

v. United States, 389 U.S. 347, 360 (1967)). When applying this basic

principle, the Supreme Court has "consistently eschewed bright-line

rules, instead emphasizing the fact-specific nature of the reasonableness inquiry." Ohio v. Robinette, 117 S. Ct. 417, 421 (1996).

In line with this reasonableness approach, this circuit has permitted

law enforcement officers to enter a person's backyard without a warrant when they have a legitimate law enforcement purpose for doing

so. In United States v. Bradshaw, for example, we held that federal

agents were "clearly entitled" to go onto a defendant's premises in

order to talk to him. 490 F.2d 1097, 1100 (4th Cir. 1974). We also

observed that one of the agents had not "exceeded the scope of his

legitimate purpose for being there by walking around to the back door

when he was unable to get an answer at the front door." Id. Though

the agent later violated the Fourth Amendment by straying from this

legitimate law enforcement purpose, Bradshaw expressly approved

his warrantless entry into the backyard in an effort to contact the

defendant.

Other circuits likewise have found that the Fourth Amendment

does not invariably forbid an officer's warrantless entry into the area

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surrounding a residential dwelling even when the officer has not first

knocked at the front door. For example, in United States v. Daoust,

the First Circuit held that police officers, who found the front door of

the defendant's house inaccessible, did not violate the Fourth Amendment when they went around to the back. 916 F.2d 757, 758 (1st Cir.

1990). The court there reasoned that "[a] policeman may lawfully go

to a person's home to interview him" and if the front door is inaccessible "there is nothing unlawful or unreasonable about going to the

back of the house to look for another door, all as part of a legitimate

attempt to interview a person." Id. (citations omitted). Daoust thus

supports the view that officers who seek to talk to the occupant of a

home do not necessarily violate the Fourth Amendment by entering

the backyard of a dwelling although they have failed to knock at the

front door. Several circuits similarly have held that an officer's warrantless entry of areas other than a residence's front entranceway does

not always violate the Fourth Amendment. E.g. , United States v.

Garcia, 997 F.2d 1273, 1279-80 (9th Cir. 1993) (entering back porch

of apartment); United States v. Anderson, 552 F.2d 1296, 1299-1300

(8th Cir. 1977) (entering back porch of home).

B.

Applying these principles, we conclude that the officers did not

violate the Fourth Amendment. Their initial entry into the backyard

was not unreasonable. And the officers' conduct after they entered the

backyard did not exceed their legitimate purpose for being there.

The officers' entry into the backyard satisfied the Fourth Amendment's reasonableness requirement. They were responding to a 911

call about an underage drinking party and, based on the alcohol containers and the awkwardly parked cars, believed they had found the

party. They entered the Alvarezes' property simply to notify the

homeowner or the party's host about the complaint and to ask that no

one drive while intoxicated. Thus, like the agents in Bradshaw, the

officers in this case had a "legitimate reason" for entering the Alvarezes' property "unconnected with a search of such premises . . . ."

490 F.2d at 1100. In furtherance of this purpose, they obviously could

approach the front door in an attempt to contact the Alvarezes. See,

e.g., Taylor, 90 F.3d at 909. And in light of the sign reading "Party

In Back" with an arrow pointing toward the backyard, it surely was

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reasonable for the officers to proceed there directly as part of their

effort to speak with the party's host. See Daoust, 916 F.2d at 758;

Anderson, 552 F.2d at 1300; cf. Bradshaw, 490 F.2d at 1100.

Nor did the officers' conduct after they had entered the backyard

violate the Fourth Amendment. The intrusion was minimal. Officer

Romack's request to speak with the homeowner or the party's host

simply was part of the officers' legitimate purpose for entering the

Alvarezes' property. The officers never came into physical contact

with anyone while in the backyard. And Officer Romack clearly

could ask Ashley Manning for her identification and investigate further once she had produced one which he knew to be fictitious. See

INS v. Delgado, 466 U.S. 210, 216 (1984); United States v. Analla,

975 F.2d 119, 124 (4th Cir. 1992); see also Md. Ann. Code art. 27

§ 400B (prohibiting individuals under twenty-one years old from possessing documentation falsely identifying their age).

Though we conclude the officers' conduct comported with the

Fourth Amendment, we reiterate that the area within the curtilage of

the home "typically is `afforded the most stringent Fourth Amendment protection.'" Taylor, 90 F.3d at 908 (quoting United States v.

Martinez-Fuerte, 428 U.S. 543, 561 (1976)). It was not unreasonable,

however, for officers responding to a 911 call to enter the backyard

when circumstances indicated they might find the homeowner there.

Thus, the officers did not violate the Fourth Amendment, and the district court properly granted summary judgment on the Alvarezes' constitutional claim.*

III.

We turn next to Marc Alvarez's tort claims under Maryland law.

These include trespass, false imprisonment, and malicious prosecution. The district court granted the officers summary judgment on

these claims.

Marc argues that the officers' unauthorized entry into the backyard

constituted a trespass under Maryland law. We disagree. "It is not a

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*Because we conclude that the officers did not violate the Fourth

Amendment, we need not address their claim of qualified immunity.

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trespass for an officer of the law to go upon another's premises in the

line of his duty . . . ." Heinze v. Murphy , 24 A.2d 917, 922 (Md.

1942); see also Gardner v. State, 251 A.2d 901, 906-07 (Md. Ct.

Spec. App. 1969). Here the officers clearly acted in the line of duty.

They entered the Alvarezes' property in response to a 911 call about

an underage drinking party. At no time did they deviate from this

legitimate law enforcement purpose. Because the officers' conduct

falls squarely within this recognized defense under Maryland law,

Marc's trespass claim must fail.

Marc next maintains that he was falsely imprisoned when Officer

Romack requested to speak with him in front of his parents' home and

then cited him for furnishing an alcoholic beverage to Ashley Manning. We are unpersuaded. "[T]he necessary elements of a case for

false imprisonment are a deprivation of the liberty of another without

his consent and without legal justification." Montgomery Ward v.

Wilson, 664 A.2d 916, 926 (Md. 1995) (quoting Great Atl. & Pac.

Tea Co. v. Paul, 261 A.2d 731, 738 (Md. 1970)) (citations omitted).

In this case, the evidence does not show that Marc was ever deprived

of his liberty. It is undisputed that no officer ever touched Marc.

Indeed, Marc admitted this fact in his deposition:

Q. Did you ever touch or come into physical contact with

any of the defendants?

A. No.

Furthermore, the encounter between the officers and Marc was consensual. Marc went outside at the request of his father, not in response

to an officer's show of authority. As Everett Alvarez explained,

"[Marc is] respectful, he does basically what I tell him." Marc's

response to his father's request does not render his decision to go outside nonconsensual. Moreover, Officer Romack clearly had legal justification to request to speak with Marc, the party's host, for he had

observed a nineteen year-old consuming a beverage at Marc's party.

See Ashton v. Brown, 660 A.2d 447, 472 (Md. 1995). Because Marc

has failed to create a triable issue with respect to the essential elements of his false imprisonment claim, that too must fail.

Finally, Marc contends that issuing the citation constituted a malicious prosecution. We disagree. "One of the elements of malicious

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prosecution which a plaintiff has the burden of proving is the absence

of probable cause for the underlying criminal proceeding." Palmer

Ford, Inc. v. Wood, 471 A.2d 297, 301-02 (Md. 1984) (citing Exxon

Corp. v. Kelly, 381 A.2d 1146, 1149 (Md. 1978)); see also

Montgomery Ward, 664 A.2d at 922. Probable cause does not require

evidence sufficient to convict a person but only"a reasonable ground

of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the accused is

guilty." Palmer Ford, 471 A.2d at 302 (citations omitted); see also

Kimbrough v. Giant Food Inc., 339 A.2d 688, 693 (Md. Ct. Spec.

App. 1975). Marc's evidence fails to show that Officer Romack

lacked probable cause to issue the citation. Under the circumstances,

Officer Romack had a reasonable ground to suspect that Marc, knowing Ashley to be only nineteen, had furnished her an alcoholic beverage in violation of Maryland law. See Md. Ann. Code art. 27, § 401A.

Furthermore, to survive summary judgment on the malicious prosecution claim, Marc also must create a triable issue over whether the

officers acted with malice in initiating the criminal proceedings.

Montgomery Ward, 664 A.2d at 922; Exxon Corp., 381 A.2d at 1149.

"[T]he `malice' required for malicious prosecution consists of a

wrongful or improper motive in initiating legal proceedings against

the plaintiff." Montgomery Ward, 664 A.2d at 924. Marc has

advanced no evidence that the officers were acting out of a wrongful

or improper motive. The record in this case simply shows that the

officers were fulfilling their law enforcement duties in citing Marc.

Because Officer Romack had probable cause to issue the citation and

no evidence suggests the officers acted maliciously, the district court

properly granted summary judgment on Marc's malicious prosecution

claim.

IV.

For the foregoing reasons, we affirm the judgment of the district

court.

AFFIRMED

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