UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1889

BRANDON PEGG; KRISTINA PEGG, husband and wife,

 Plaintiffs – Appellants,

v.

NATHAN TYLER KLEMPA, individually and in his capacity as 

agent and employee of the City of Glen Dale Police 

Department; GRANT HERRNBERGER,

 Defendants - Appellees.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Wheeling. Frederick P. Stamp, 

Jr., Senior District Judge. (5:13-cv-00173-FPS)

Submitted: March 15, 2016 Decided: June 6, 2016

Before NIEMEYER, KING, and DIAZ, Circuit Judges.

Affirmed in part, and reversed in part by unpublished per curiam 

opinion.

Robert G. McCoid, MCCAMIC, SACCO & MCCOID, P.L.L.C., Wheeling, 

West Virginia; Paul J. Harris, HARRIS LAW OFFICES, Wheeling, 

West Virginia, for Appellants. Montѐ L. Williams, Deva A. 

Solomon, Robert L. Bailey, STEPTOE & JOHNSON, PLLC, Morgantown, 

West Virginia; Keith C. Gamble, PULLIN, FOWLER, FLANAGAN, BROWN 

& POE, PLLC, Morgantown, West Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Brandon Travis Pegg and Kristina Pegg appeal the district 

court’s grant of summary judgment in favor of 

Defendants-Appellees Nathan Tyler Klempa and Grant P. 

Herrnberger on the basis of qualified immunity. The Peggs 

raised constitutional claims under 42 U.S.C. § 1983 (2012), as 

well as related state law claims, against Klempa and Herrnberger

arising from a traffic stop of the Peggs’ vehicle. The amended 

complaint alleged: (1) unlawful arrest of Mr. Pegg; (2) unlawful 

detention of Mrs. Pegg; (3) excessive force as to Mr. Pegg; 

(4) intentional infliction of emotional distress as to both Mr. 

and Mrs. Pegg; (5) battery of Mr. and Mrs. Pegg; and (6) civil 

conspiracy to unlawfully detain and search the Peggs. 

After the Peggs filed this action, Klempa and Herrnberger

moved for summary judgment, arguing that they were entitled to 

qualified immunity. The district court granted the defendants’ 

motions for summary judgment on the basis of qualified immunity. 

In regard to Mr. Pegg’s claims, the court concluded that the 

officers had not unreasonably extended the traffic stop and, 

once Mr. Pegg refused to exit his vehicle, probable cause 

existed to arrest him for obstruction. The court also 

determined that, because the arrest of Mr. Pegg was lawful, the 

force applied by the officers was not excessive. 
3

As to Mrs. Pegg’s claims of unlawful detention, the court 

concluded that Herrnberger reasonably believed that she was 

dangerous and was therefore justified in frisking her. The 

court determined that, similar to Herrnberger’s frisk of Mrs. 

Pegg, Klempa’s searches of her purse and the vehicle were 

justified by officer safety concerns.1 Finally, the court 

concluded that Mrs. Pegg had not been the victim of a battery as 

a result of the frisk, and that the remainder of the Peggs’ 

state law claims were also barred by qualified immunity. 

On appeal, the Peggs assert three errors in the district 

court’s decision. First, they argue that the officers 

unnecessarily extended the duration of the traffic stop and did 

not order Mr. Pegg from the vehicle because of safety concerns. 

Therefore, they argue, Mr. Pegg’s arrest for failing to exit the 

vehicle was unlawful. Second, they argue that no facts 

establish an objective, reasonable suspicion that Mrs. Pegg was 

armed and dangerous, and therefore the search of the vehicle, 

frisk of Mrs. Pegg, and search of her purse violated the Fourth 

 1 The court noted that Mrs. Pegg had consented to the search 

of her purse, but concluded that it was “unclear whether Mrs. 

Pegg’s consent was voluntarily given.” Because the court 

determined that the search was valid regardless of consent, it 

did not reach a determination as to whether consent was 

voluntary. 
4

Amendment. Finally, they argue that Herrnberger’s frisk of Mrs. 

Pegg constituted battery, as it involved offensive touching. 

We “review the district court’s grant of summary judgment 

de novo, applying the same standard as the district court . . . 

[and] construing the evidence in the light most favorable to 

[the Peggs], the non-movant[s].” Walker v. Mod-U-Kraf Homes, 

LLC, 775 F.3d 202, 207 (4th Cir. 2014). Summary judgment is 

appropriate if there is no genuine issue as to material fact and 

“the movant is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56(a).

“Qualified immunity protects officers who commit 

constitutional violations but who, in light of clearly 

established law, could reasonably believe that their actions 

were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 

2011) (en banc). Thus, to successfully avail themselves of 

qualified immunity, Klempa and Herrnberger must show either that 

no constitutional violation occurred or that the right was not 

clearly established at the time it was violated.2 Id. In 

 2 West Virginia law similarly follows a two-step inquiry to 

determine whether an officer is entitled to qualified immunity: 

“(1) does the alleged conduct set out a constitutional or 

statutory violation, and (2) were the constitutional standards 

clearly established at the time in question?” Hutchison v. City 

of Huntington, 479 S.E.2d 649, 659 (W. Va. 1996). Additionally, 

an official is not entitled to qualified immunity if his or her 

conduct was “fraudulent, malicious, or otherwise oppressive.” 

Id.
5

evaluating whether the right was clearly established, we look 

“not to whether the right allegedly violated was established ‘as 

a broad general proposition’ but whether ‘it would be clear to a 

reasonable official that his conduct was unlawful in the 

situation he confronted.’” Raub v. Campbell, 785 F.3d 876, 882 

(4th Cir.) (quoting Saucier v. Katz, 533 U.S. 194, 201–02 

(2001), cert. denied, 136 S. Ct. 503 (2015).

With regard to Mr. Pegg’s claim of unlawful arrest, we 

conclude that the district court did not err in finding that the 

officers are entitled to qualified immunity. The 

constitutionality of a traffic stop is analyzed under a 

two-prong standard: first, we determine “whether the officer’s 

reason for the traffic stop was legitimate” and, if so, we 

examine “whether the officer’s actions during the seizure were 

reasonably related in scope to the basis for the traffic stop.” 

United States v. Williams, 808 F.3d 238, 245 (4th Cir. 2015) 

(internal quotation marks omitted). “Like a Terry stop, the 

tolerable duration of police inquiries in the traffic-stop 

context is determined by the seizure's ‘mission’—to address the 

traffic violation that warranted the stop, and attend to related 

safety concerns.” Rodriguez v. United States, 135 S. Ct. 1609, 

1614 (2015) (internal citations omitted). The central question 

is whether the officer’s action, “viewed objectively and in its 

totality, is reasonably directed toward the proper ends of the 
6

stop.” United States v. Digiovanni, 650 F.3d 498, 508 (4th Cir. 

2011).

As to the first prong, Mr. Pegg concedes that his vehicle 

had an inoperative license plate light and therefore the initial 

justification for the traffic stop was valid. Regarding the 

second prong of the inquiry, we conclude the officers’ actions 

up to and including ordering Mr. Pegg from the vehicle were 

reasonably directed toward the proper purpose of the traffic 

stop.

After stopping the Peggs’ vehicle, Klempa had a brief 

conversation with Mr. Pegg regarding the traffic stop, a 

conversation that was extended by Mr. Pegg’s initial 

recalcitrance. Mr. Pegg eventually turned over his 

documentation and Klempa ran checks on the documentation, all of 

which was proper. Digiovanni, 650 F.3d at 507. Only five 

minutes elapsed by the time Klempa returned to Mr. Pegg’s 

vehicle. 

Klempa wanted Mr. Pegg to exit the vehicle for two reasons: 

(1) because of concerns for officer safety; and (2) to show Mr. 

Pegg the burned-out light and issue a verbal warning. This 

directive was not unconstitutional. 

As an initial matter, the traffic stop itself had not 

concluded as Klempa had not yet issued the warning to Mr. Pegg. 

See United States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008) 
7

(“once . . . the police officer has issued the requisite warning 

or ticket, the driver must be allowed to proceed on his way”). 

Moreover, when viewed in context, ordering Mr. Pegg from the 

vehicle was reasonably related to the purpose of the traffic 

stop. From the moment the stop began, Mr. Pegg was agitated and 

expressed incredulity when notified of the reason for the 

traffic stop. Therefore, while it was perhaps unnecessary for 

Klempa to order Mr. Pegg from the vehicle, it was also 

reasonably directed toward the proper purpose of the stop—

demonstrating to Mr. Pegg that there was a legitimate defect 

with his vehicle, and issuing a verbal warning relating to that 

defect. Furthermore, Mr. Pegg confirmed during his deposition 

that, at the time he was asked to exit his vehicle, the officers 

were standing in or near the lane of traffic. The stop occurred 

in the evening on New Year’s Eve, an evening when, as the Peggs’ 

expert testified, there is a higher-than-usual likelihood of 

drunk driving. Thus, ordering Mr. Pegg from his vehicle was 

also justified by concerns for officer safety.

Because it was reasonably directed toward the purpose of 

the stop, Klempa’s decision to order Mr. Pegg from the vehicle 

did not unreasonably extend the duration of Mr. Pegg’s 

detention. The officers therefore maintained authority to order 

Mr. Pegg from the vehicle. Pennsylvania v. Mimms, 434 U.S. 106, 

111 (1977). When Mr. Pegg refused the lawful command given by 
8

the officers, they had probable cause to believe that Mr. Pegg 

was obstructing an officer. See City of Saint Albans v. 

Botkins, 719 S.E.2d 863, 872 (W. Va. 2011) (“Once Appellee 

refused to comply [with the officer’s order], a reasonable 

officer may have believed the refusal to be an attempt to 

obstruct the officer”). The arrest was lawful, and Mr. Pegg’s 

claim for unlawful arrest therefore fails, as do his related 

claims.

Turning to the search of the Peggs’ vehicle, although 

warrantless searches of a vehicle are “presumptively 

unreasonable,” several exceptions exist. United States v. 

Holmes, 376 F.3d 270, 274-75 (4th Cir. 2004). Of relevance to

this case,

the search of the passenger compartment of an 

automobile, limited to those areas in which a weapon 

may be placed or hidden, is permissible if the police 

officer possesses a reasonable belief based on 

specific and articulable facts which, taken together 

with the rational inferences from those facts, 

reasonably warrant the officers in believing that the 

suspect is dangerous and the suspect may gain 

immediate control of weapons.

Michigan v. Long, 463 U.S. 1032, 1049 (1983) (internal quotation 

marks omitted). Thus, to conduct a lawful search pursuant to 

such safety concerns, “an officer must possess a reasonable 

belief of both (1) the suspect’s dangerousness and (2) the 

possibility that the suspect might gain immediate control of any 

weapons inside the vehicle.” United States v. Griffin, 589 F.3d 
9

148, 153 (4th Cir. 2009). We examine “the totality of the 

circumstances in determining whether the requisite reasonable 

suspicion existed.” United States v. McCoy, 513 F.3d 405, 411 

(4th Cir. 2008).

By the time Klempa performed a search of the vehicle, Mr. 

Pegg had been handcuffed and placed in the back of Klempa’s 

vehicle. Consequently, any concern for officer safety had to be 

based on a threat posed by Mrs. Pegg, rather than Mr. Pegg. The 

district court determined that the officers had a reasonable 

suspicion that Mrs. Pegg was dangerous because: (1) it was 

evening on New Year’s Eve; (2) prior to being arrested, Mr. Pegg 

had been agitated and failed to follow officer commands; (3) it 

would be “reasonable . . . to believe that . . . Mrs. Pegg[] was 

also agitated and a risk” to officer safety; and (4) Mrs. Pegg 

had opened her car door and asked why her husband was being 

arrested. 

Certainly, the fact that the stop occurred at nighttime on 

New Year’s Eve supports reasonable suspicion. Even assuming 

that Mr. Pegg’s agitation and failure to comply with officer 

commands is relevant to Mrs. Pegg’s dangerousness, these 

circumstances fall well short of the requisite reasonable 

suspicion needed to believe that Mrs. Pegg was a threat.
10

No evidence demonstrates that Mrs. Pegg was nervous, angry, 

or irritated.3 To the contrary, she was cooperative and 

compliant during the traffic stop. When Mr. Pegg was initially 

uncooperative with Klempa, Mrs. Pegg encouraged him to comply 

with Klempa’s order. When asked, Mrs. Pegg: (1) produced her 

identification; (2) closed her door and stayed quiet; (3) exited 

the vehicle to be searched; and (4) lifted her shirt and coat to 

expose her torso to Herrnberger. During his deposition, 

Herrnberger was unable to remember or articulate a single fact 

that supported a reasonable suspicion that Mrs. Pegg presented a 

threat. 

 3 Contrary to the district court’s determination, it is 

entirely reasonable for an individual, upon witnessing her 

spouse being handcuffed and placed in a police cruiser, to ask 

if and why her spouse was being arrested. Nor is it suspicious 

that Mrs. Pegg opened the door to do this, as she did so merely 

to gain the attention of one of the officers. See United 

States v. McCraney, 674 F.3d 614, 621 (6th Cir. 2012) 

(concluding that, where an individual exits the vehicle not to 

flee but to get the officer’s attention, such behavior does not 

contribute to reasonable suspicion). 

Additionally, we question the district court’s

determination that it would be reasonable to assume that Mrs. 

Pegg was agitated. There is no indication that Mrs. Pegg was 

angry, agitated, or irritated during or after her husband’s 

arrest or that the officers believed she was agitated and, 

absent such evidence, reaching that assumption on summary 

judgment inappropriately ignored the requirement that facts be 

viewed in the light most favorable to Mrs. Pegg, and that all 

reasonable inferences be drawn in her favor. Any assumed 

agitation cannot, therefore, support a particularized suspicion 

that Mrs. Pegg was dangerous.
11

The evidence establishes that Mrs. Pegg had no known 

criminal history or history of violence. At the time the search 

was conducted, no individuals were near the officers other than 

Mrs. Pegg, and the officers outnumbered Mrs. Pegg three to one. 

There is no evidence that the location of the traffic stop was a 

high crime area. Nor is there any evidence that the officers 

actually believed that Mrs. Pegg posed a threat; indeed, they 

left her entirely unattended, prompting her to open her door 

simply to gain an officer’s attention. We therefore conclude 

that no reasonable officer would have believed that Mrs. Pegg 

was dangerous. 

Moreover, Mrs. Pegg’s right to be free from a search under 

these circumstances was clearly established at the time of the 

traffic stop. See United States v. Neely, 564 F.3d 346 (4th 

Cir. 2009). Police may conduct a frisk of a passenger during a 

traffic stop where: (1) “it is lawful for police to detain an 

automobile and its occupants pending inquiry into a vehicular 

violation;” and (2) the police “harbor reasonable suspicion that 

the person subjected to the frisk is armed and dangerous.” 

Arizona v. Johnson, 555 U.S. 323, 327 (2009). 

Reasonable suspicion must be particularized and objective. 

“The officer need not be absolutely certain that the individual 

is armed; the issue is whether a reasonably prudent man in the 

circumstances would be warranted in the belief that his safety 
12

or that of others was in danger.” United States v. Powell, 666 

F.3d 180, 186 (4th Cir. 2011) (quoting Terry v. Ohio, 392 U.S. 

1, 27 (1968)). This determination must be “based on commonsense 

judgments and inferences about human behavior and it is measured 

by the totality of the circumstances.” Id. (quoting Illinois v. 

Wardlow, 528 U.S. 119, 125 (2000)). 

As detailed above, the evidence in this case strongly 

supports a conclusion that no reasonable officer would have 

believed that Mrs. Pegg was dangerous. Although the stop 

occurred after dark, and Mr. Pegg was somewhat uncooperative but 

not threatening during the stop, there is simply no evidence 

that Mrs. Pegg presented any threat. 

Furthermore, at the time of the search, a number of our 

cases made clear that something more than the circumstances 

facing Klempa and Herrnberger was required to support a belief 

that Mrs. Pegg was dangerous. See Powell, 666 F.3d at 187-88 

(knowledge of a past criminal record and providing officers with 

false information was insufficient to create reasonable 

suspicion); United States v. Massenburg, 654 F.3d 480, 488-91 

(4th Cir. 2011) (presence in a high crime area shortly after 

police received anonymous tip concerning random gunfire in the 

area does not create reasonable suspicion); United States v. 

Foster, 634 F.3d 243, 246-49 (4th Cir. 2011) (knowledge of a 
13

suspect’s criminal history, sudden movements, and arm shifting 

were insufficient).

We thus conclude that, at the summary judgment stage, 

Herrnberger is not entitled to qualified immunity for his frisk 

of Mrs. Pegg, and Klempa is not entitled to qualified immunity 

for his search of Mrs. Pegg’s purse.4

Finally, in West Virginia, an individual commits the tort 

of battery where “(a) he acts intending to cause a harmful or 

offensive contact with the person of the other or a third 

person, or an imminent apprehension of such a contact, and (b) a 

harmful contact with the person of the other directly or 

indirectly results.” W. Va. Fire & Cas. Co. v. Stanley, 602 

S.E.2d 483, 494 (W. Va. 2004) (quoting Restatement (Second) of 

Torts, § 13 (1965)). 

We conclude that an unauthorized frisk constitutes an 

offensive contact sufficient to satisfy the requirements for 

battery. See Terry, 392 U.S. at 24-25 (“Even a limited search 

of the outer clothing for weapons . . . must surely be an 

annoying, frightening, and perhaps humiliating experience”). 

Moreover, because Herrnberger conducted a frisk that was not 

 4 As previously noted, the district court did not resolve 

the question of whether Mrs. Pegg voluntarily consented to the 

search of her purse. Because the issue of consent was not 

decided by the district court and has not been raised on appeal, 

we leave resolution of this issue to the district court.
14

necessary for officer safety, he was not privileged to create 

that offensive contact with Mrs. Pegg. See Restatement (Second) 

of Torts § 10 (2)(b) (1965) (A privilege may be based upon . . . 

the fact that its exercise is necessary for the protection of 

some interest . . .”). We therefore conclude that the district 

court erred in granting summary judgment in favor of Herrnberger 

on this claim.

Accordingly, we affirm in part and reverse in part the 

district court’s order, and remand for further proceedings 

consistent with this opinion. We dispense with oral argument 

because the facts and legal contentions are adequately presented 

in the materials before this court and argument would not aid 

the decisional process.

AFFIRMED IN PART,

REVERSED IN PART