UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

B RITT S. P HILLIPS , Plaintiff-Appellant,

v. M ICHAEL R. P EDDLE , in his

individual capacity, Defendant-Appellee,

and B RIAN E. R USSELL , in his individual No. 00-1345 capacity, Defendant, C ARL B AKER ; M ARK A. Y OUNCE , Parties in Interest, N. E VERETTE C ARMICHAEL ,

Commissioner of Revenue for

Chesterfield County, Movant. Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (CA-99-510)

Argued: December 5, 2000

Decided: March 16, 2001 Before WILKINS and NIEMEYER, Circuit Judges, and

Terrence W. BOYLE, Chief United States District Judge for the

Eastern District of North Carolina, sitting by designation.

Affirmed by unpublished opinion. Chief Judge Boyle wrote the opin-

ion, in which Judge Wilkins and Judge Niemeyer joined. COUNSEL ARGUED: Thomas Hunt Roberts, THOMAS H. ROBERTS &

ASSOCIATES, P.C., Richmond, Virginia, for Appellant. Steven

Latham Micas, County Attorney, Chesterfield, Virginia, for Appellee.

ON BRIEF: Tim Schulte, THOMAS H. ROBERTS & ASSO-

CIATES, P.C., Richmond, Virginia, for Appellant. Jeffrey Lee

Mincks, Deputy County Attorney, Andrea West Wortzel, Assistant

County Attorney, Chesterfield, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). OPINION BOYLE, Chief District Judge:

Britt Phillips brought this action against Michael R. Peddle, see 42

U.S.C.A. § 1983 (West Supp 1998), alleging that Michael R. Peddle,

a police officer with the Chesterfield County (VA) Police Depart-

ment, violated Phillips' rights under the Fourth Amendment when

Officer Peddle entered Phillips' home without a search warrant. Phil-

lips sought damages and declaratory relief. The district court granted

summary judgment in favor of the defendant, granting Officer Peddle

qualified immunity, and dismissing the prayer for declaratory relief

without comment. We affirm. I. In the spring of 1999 Phillips was interviewed by detectives with

the Richmond Police Department as part of an ongoing criminal investi-

gation. 1 One of these investigators was Detective Brian E. Russell. 2

Subsequent to this interview, Detective Russell served Phillips with

a subpoena to testify before a grand jury. Because the subpoena

required an appearance on the following day, Phillips told Detective

Russell that he could not make that appearance on such short notice

but agreed to meet with some detectives at a later date to discuss the

investigation again. After this, there was no more contact between

Phillips and any of the police officers for over a month.

On July 9, 1999, Detective Russell went to Phillips' house to serve

him with another subpoena ordering him to testify as a witness before

a federal grand jury. Phillips did not know that Detective Russell was

coming to his house that day. Detective Russell could not get Phillips

to answer the door despite repeatedly knocking on the door and call-

ing him on the telephone. Phillips designs webpages and said that he

was in the back room of the house with a client and did not hear any-

one. His shades were down on his windows because it was warm and

in the middle of the summer. When Detective Russell could not get

Phillips to respond, he radioed his dispatch. He said that he was told

by the U.S. Attorney's Office to "do whatever you can to serve it."

J.A. 163. Officer Peddle, the appellee, then was ordered to the scene

to assist Detective Russell. Officer Peddle never heard the conversa-

tion between Detective Russell and the dispatch.

Officer Peddle arrived at the scene with another police officer and

said that Detective Russell looked concerned and confused. Officer

Peddle knew nothing about the relationship between Detective Rus-

sell and Phillips or the situation at Phillips' home before Peddle's

arrival, but Detective Russell told Officer Peddle that he had been

talking with Phillips earlier but now he could not get an answer. He

also said that Phillips was a witness for the government, that he and

Phillips had a good rapport, and that Phillips knew that Detective

Russell was coming over to serve the subpoena. Detective Russell

told Officer Peddle that he had repeatedly knocked on the door to the

It is not clear from the record the exact nature of the investigation as

some of the facts have been omitted, but nothing in the record indicates

that Phillips was the target of the criminal investigation.

At the time of this incident Detective Russell was also deputized as

a Special Deputy United States Marshall.

house and yelled, "Police!" but was not getting any response. Detec-

tive Russell then pointed out that there was an additional car there that

did not belong to Phillips and that Phillips had a bad back which

might make it difficult for him to move. Although some of the facts

that Detective Russell presented were untrue, this was the scene that

Detective Russell presented to Officer Peddle.

Officer Peddle then went to a side window and tried to peer in but

the blinds were closed. Detective Russell went to the front door and

called out to Peddle, "The door is open." J.A. 47. Officer Peddle came

around to the front and saw that the door was open 2 to 3 inches. Offi-

cer Peddle then went around to the back of the house and told the

other officer that the front door was open and that he and Detective

Russell were going into the house to check on Phillips. Officer Peddle

then went back around to the front, pushed the door open further, and

entered, shouting, "Police! We're coming in." J.A. 64. They then met

Phillips in the hallway, and Phillips said that he had not come to the

door because he was "with a client." J.A. 65. Officer Peddle then left

the house after being inside for approximately 60 seconds. Detective

Russell served the subpoena on Phillips and then left as well. Officer

Peddle and the other officer then left the premises six minutes after

they arrived.

Phillips brought this civil action against Officer Peddle, alleging

violations of his rights under the Fourth Amendment. See 42 U.S.C.A. § 1983 (West Supp. 1998). Phillips sought monetary damages and

declaratory and injunctive relief, barring Officer Peddle from entering

his home without a warrant. The District Court granted Officer Peddle

summary judgment, ruling that the suit was barred by qualified immu-

nity.

An appeal from a decision to grant qualified immunity is reviewed

de novo. Pritchett v. Alford , 973 F.2d 307 (4th Cir. 1992). II. Qualified immunity protects government officials performing dis-

cretionary functions "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). This doctrine exists to protect

officers in the performance of their duties unless they are "plainly

incompetent" or they "knowingly violate the law." Malley v. Briggs ,

U.S. 335, 342 (1986). Qualified immunity protects law enforce-

ment officers from "bad guesses in gray areas" and ensures that they

are liable only "for transgressing brightlines." Maciariello v. Sumner ,

F.2d 295, 298 (4th Cir. 1992).

To evaluate qualified immunity claims, this Court has adopted a

two step analysis: (1) Whether a clearly established right has been

violated and (2) whether a reasonable person in the officer's position

"would have known that the officer's conduct would violate that

right." Taylor v. Waters , 81 F.3d 429, 433 (4th Cir. 1996) (quoting

Gordon v. Kidd , 971 F.2d 1087, 1093 (4th Cir. 1992)). Because we

hold that Officer Peddle did not violate a clearly established right, this

Court need not address the second step of the above analysis.

It is a well settled "principle of Fourth Amendment law that

searches . . . inside a home without a warrant are presumptively

unreasonable." Payton v. New York , 445 U.S. 573, 586 (1980). Here,

the appellee argues that his entry into the house was justified under

the "community caretaker" doctrine. The United States Supreme

Court and this Court have both recognized that a police officer serv-

ing as a community caretaker to protect persons and property is con-

stitutionally permitted to make searches and seizures without a

warrant. See Cady v. Dombroski , 413 U.S. 433 (1973); United States

v. Newbourn , 600 F.2d 452 (4th Cir. 1979). In Cady , the United States

Supreme Court validated the warrantless entry and search of an auto-

mobile because the officers were engaged in a community caretaking

function, and their actions were unrelated to "the detection, investiga-

tion, or acquisition of evidence relating to the violation of a criminal

statute." Cady , 413 U.S. at 441.

Most cases involving the community caretaker doctrine have

involved its application to the search of an automobile, and the courts

have distinguished searches of and entries into automobiles from

those of private residences. See, e.g. , South Dakota v. Opperman , 428

U.S. 364 (1976); Colorado v. Bertine , 479 U.S. 367 (1987). At least

one other federal court of appeals has recognized that the "community caretaker" doctrine can apply in limited circumstances to justify a

warrantless entry in a home. See United States v. Rohrig , 98 F.3d

6 (6th Cir. 1996). In Rohrig , the defendant moved to suppress evi-

dence discovered during a warrantless entry into his home. The police

entered the home in the middle of the night to turn down loud music

that was disturbing neighbors, but only after repeated banging on the

residents' door and calling them on the telephone. The Sixth Circuit

upheld the search by referring to the community caretaking function

that the United States Supreme Court has established. See Cady . One

fact that the Sixth Circuit found to be important was that the police

officers entered the residence for the limited purpose of locating and

abating the nuisance and were not involved in a criminal investiga-

tion.

Virginia state courts have also adopted the "community caretaker"

doctrine under certain circumstances. 3 In Commonwealth v. Waters ,

Va.App. 285, 456 S.E.2d 527 (1995), the Virginia Court of

Appeals acknowledged that, while most cases interpreting the "com-

munity caretaker" function concern police contact with motor vehi-

cles, "[N]o language in Barrett or Cady restricts an officer's

caretaking actions to incidents involving automobiles." Waters at 531

(citing Barrett v. Commonwealth , 18 Va.App. 773, 447 S.E.2d 243

  (1994) (en banc), rev'd on other grounds , 250 Va. 243, 462 S.E.2d

  (1995)). 4 Barrett recognized that the duty of the police extends

beyond law enforcement and includes "an obligation to maintain

order and render needed assistance." Barrett at 777, 447 S.E.2d at

Because this is a question of federal constitutional law, we do not

look to the Virginia courts for authority on this point. Instead, the Vir-

ginia courts also have a voice in the "clearly established" law under

which Officer Peddle operated, and this Court has referred to Virginia

state court decisions in the past when analyzing a claim for qualified

immunity. See, e.g. , Simmons v. Poe , 47 F.3d 1370 (4th Cir. 1995) (rely-

ing on a Virginia Court of Appeals decision to grant qualified immunity

to officers using a profile including race, among other factors, in a war-

rant application).

The Virginia Supreme Court overturned the Virginia Court of

Appeals, but in doing so the Virginia Supreme Court did not reject the

community caretaker doctrine. Instead, the Virginia Supreme Court held

that there was insufficient evidence to show that the subject who was

stopped needed any police assistance. See Barrett v. Commonwealth , 250

Va. 243, 462 S.E.2d 109 (1995).

. In Wood v. Commonwealth , 27 Va.App. 21, 497 S.E.2d 484

  (1998), the Virginia Court of Appeals declined to apply the commu-

nity caretaker exception to justify a warrantless intrusion into a pri-

vate home, but noted,

[T]he [United States] Supreme Court has yet to decide

whether a situation might exist that would justify a warrant-

less intrusion into an individual's home under the "commu-

nity caretaker" doctrine. . . . The Supreme Court has not

decided that issue, and we need not decide it here because,

on these facts, the officers' intrusion . . . could not be con-

sidered a caretaking function.

Id . at 27, 487 S.E.2d at 487. Thus, while refusing to apply the "com-

munity caretaker" doctrine to an intrusion into a private dwelling, the

Virginia Court of Appeals left open the possibility that it could apply,

particularly when the intrusion is "totally divorced from investigating

criminal activity and acquiring evidence." Id .

When invoking qualified immunity, "[t]he law is clearly estab-

lished such that an officer's conduct transgresses a bright line when

the law has `been authoritatively decided by the Supreme Court, the

appropriate United States Court of Appeals, or the highest court of the

state.'" Wilson v. Layne , 141 F.3d 111 (4th Cir. 1998). As noted

above, neither the United States Supreme Court nor this Court have

addressed the applicability of the community caretaker exception to

a warrantless entrance of a private residence. Although numerous Vir-

ginia Court of Appeals cases have discussed the community caretaker

doctrine, Barrett was the only case to address this doctrine in the Vir-

ginia Supreme Court. In Wood , another case involving a warrantless

entry into a private home, the Virginia Court of Appeals did not dis-

miss the "community caretaker" doctine outright as a matter of law,

thus indicating that there is no clearly established law refuting the

applicability of the community caretaker doctrine to an entry into a

residence.

When determining if the officer's actions were reasonable for qual-

ified immunity purposes, this Court must examine the information

known by the officer at the time of the entry. See Anderson v. Creigh- ton , 483 U.S. 635 (1987). When Officer Peddle arrived at the scene,

Detective Russell (a fellow law enforcement officer who was much

more familiar with Phillips and the current situation) told Officer Ped-

dle that Phillips was expecting the subpoena today. Based on the facts

before this Court, Officer Peddle reasonably could believe that, at the

time of the entry, the occupant needed assistance because he observed

or was told: Phillips was a cooperating witness; Phillips and Detective

Russell had a good rapport; Phillips was expecting Detective Russell

and knew he was coming to serve the subpoena; Phillips and Detec-

tive Russell had been in contact; Phillips had not answered the door

when Detective Russell yelled "Police!;" Phillips' car was in the

driveway, and therefore he was probably home; all of the blinds to the

house were closed; an unexplained car was in the driveway (some-

times federal witnesses are placed at risk because they are testifying

against other criminals); and the front door was open 2 to 3 inches.

Officer Peddle entered the house, saw that the Phillips was unharmed,

and left, all within about 60 seconds. Officer Peddle was not involved

in a criminal investigative matter and left immediately upon determin-

ing that Phillips was safe. These facts come together to present a

scene in which an officer is operating as a community caretaker and

not in an investigative capacity.

Because the United States Supreme Court has not spoken authorita-

tively on this issue, and the Virginia Supreme Court has never

addressed this issue concerning a residential home, this Court con-

cludes that Officer Peddle did not violate any clearly established law

when he entered the home of Phillips. Officer Peddle was acting

under the aegis of the community caretaker doctrine. Qualified immu-

nity cloaks Officer Peddle from liability. III. Finally we address the injunctive relief that Phillips sought. In his

complaint, Phillips prayed that the district court enjoin the defendant

from entering his home absent a warrant or exigent circumstances.

The district court granted summary judgment against the plaintiff

because the defendant was shielded by qualified immunity. Because

the district court's decision rests on the applicability of the granting

of qualified immunity to a prayer for injunctive relief, we review the

decision de novo . See Thornburgh v. American College of Obstetri-

cians and Gynecologists , 476 U.S. 747, 757 (1986) (stating that de

novo is the correct standard where the case "rests solely on a premise

as the applicable rule of law").

The district court's denial of injunctive relief was proper. Phillips

lacks standing to raise his claim for injunctive relief because he did

not raise any facts to support the need for this relief, and the mere fact

that he alleges that his rights were violated once does not establish

any likelihood of a recurrence. See Los Angeles v. Lyons , 461 U.S. 95

  (1983) ("That [appellee] may have been illegally choked by the police

. . . does nothing to establish a real and immediate threat that he

would again be stopped . . . by an officer or officers who would ille-

gally choke him. . . ."). Phillips has failed to make any compelling

reason for injunctive relief and does not suggest that this situation

would occur again. Thus, this Court will deny Phillips' request for an

injunction against Officer Peddle. IV. For the foregoing reasons, we conclude that Officer Peddle was

entitled to qualified immunity and there exists no basis to grant

injunctive relief. We affirm the district court's granting of summary judgment for the appellee. AFFIRMED