Bellotte v. Edwards

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TAMETTA BELLOTTE, Individually; 

E. B.; C. B., by and through their

next friend and mother, Tametta

Bellotte,

Plaintiffs-Appellees,

v.

TRACY L. EDWARDS, Detective; P.

G. SMITH, DEPUTY; KEITH

SIGULINSKY, Corporal, Ranson

Police Department, formerly

UNKNOWN DEFENDANT ONE; ADAM

LETTS, Corporal, Charles Town

Police Department, formerly

UNKNOWN DEFENDANT TWO;

ROBERT SELL, Corporal, Jefferson  No. 10-1115

County Sheriff’s Department,

formerly UNKNOWN DEFENDANT

THREE; KEVIN BOYCE, Corporal,

Jefferson County Sheriff’s

Department, formerly UNKNOWN

DEFENDANT FOUR; JAMES TENNANT,

Deputy, Jefferson County Sheriff’s

Department, formerly UNKNOWN

DEFENDANT FIVE; BRANDON

HAYNES, Deputy, Jefferson County

Sheriff’s Department, formerly

UNKNOWN DEFENDANT SIX; SAM

SMITH, Patrolman, Charles Town

Police Department, formerly

UNKNOWN DEFENDANT SEVEN;



2 BELLOTTE v. EDWARDS

ANTHONY MANCINE, Patrolman, 

Charles Town Police Department,

formerly UNKNOWN DEFENDANT

EIGHT; PATRICK NORRIS, Patrolman,

Ranson Police Department,

Defendants-Appellants,

and 

WAL-MART STORES EAST, L.P.,

Defendant,

v.

SAMUEL JOSEPH BELLOTTE,

Third Party Defendant.



TAMETTA BELLOTTE, Individually; 

E. B.; C. B., by and through their

next friend and mother, Tametta

Bellotte,

Plaintiffs-Appellants,

v.

TRACY L. EDWARDS, Detective; P.  No. 10-1123

G. SMITH, Deputy; KEITH

SIGULINSKY, Corporal, Ranson

Police Department, formerly

UNKNOWN DEFENDANT ONE; ADAM

LETTS, Corporal, Charles Town

Police Department, formerly

UNKNOWN DEFENDANT TWO;



BELLOTTE v. EDWARDS 3

ROBERT SELL, Corporal, Jefferson 

County Sheriff’s Department,

formerly UNKNOWN DEFENDANT

THREE; KEVIN BOYCE, Corporal,

Jefferson County Sheriff’s

Department, formerly UNKNOWN

DEFENDANT FOUR; JAMES TENNANT,

Deputy, Jefferson County Sheriff’s

Department, formerly UNKNOWN

DEFENDANT FIVE; BRANDON

HAYNES, Deputy, Jefferson County

Sheriff’s Department, formerly

UNKNOWN DEFENDANT SIX; SAM

SMITH, Patrolman, Charles Town



Police Department, formerly

UNKNOWN DEFENDANT SEVEN;

ANTHONY MANCINE, Patrolman,

Charles Town Police Department,

formerly UNKNOWN DEFENDANT

EIGHT; PATRICK NORRIS, Patrolman,

Ranson Police Department,

Defendants-Appellees,

and

WAL-MART STORES EAST, L.P.,

Defendant,

v.

SAMUEL JOSEPH BELLOTTE,

Third Party Defendant.



4 BELLOTTE v. EDWARDS

Appeals from the United States District Court

for the Northern District of West Virginia, at Martinsburg.

John Preston Bailey, Chief District Judge.

(3:08-cv-00094-JPB)

Argued: October 27, 2010

Decided: January 11, 2011

Before WILKINSON, GREGORY, and WYNN,

Circuit Judges.

Affirmed in part, reversed in part, dismissed in part, and

remanded by published opinion. Judge Wilkinson wrote the

opinion, in which Judge Gregory joined. Judge Wynn wrote

a separate opinion dissenting in part.

COUNSEL

Jason Patrick Foster, STEPTOE & JOHNSON, LLP, Martins-

burg, West Virginia, for Appellants/Cross-Appellees. Thomas

E. Carroll, CARROLL & TURNER, PSC, Monticello, Ken-

tucky, for Appellees/Cross-Appellants.

OPINION

WILKINSON, Circuit Judge:

In this case, police officers executed a late-night, no-knock

entry into a family’s home. Though the officers claim that

exigent circumstances justified their conduct, we agree with

the district court that the remarkably scanty rationale offered

for the no-knock invasion makes an award of qualified immu-

BELLOTTE v. EDWARDS 5

nity inappropriate. With respect to the denial of qualified

immunity on plaintiffs’ other claims, we affirm in part and

reverse in part, and dismiss the cross-appeal for want of juris-

diction.

I.

On May 31, 2007, Sam Bellotte printed some photographs

from a memory card at a self-service station in a Winchester,

Virginia Wal-Mart. When he went to pay for the prints, a

clerk insisted on inspecting the photos. Mr. Bellotte admitted

that some contained nudity and surrendered them, then made

other purchases and left the store.

The Wal-Mart employees charged with discarding the pho-

tos noticed one depicting male genitalia seemingly next to a

child’s face. Concerned that the photograph was child pornog-

raphy, the employees notified the Frederick County police.

An investigation of the surveillance camera footage and credit

card receipts showed that Mr. Bellotte, a resident of Jefferson

County, West Virginia, had printed the photo in question. A

Frederick County police officer placed the photo in a file con-

tainer and notified the Jefferson County Sheriff’s Department,

which then took responsibility for the investigation. After

reviewing the file, verifying Mr. Bellotte’s address, and learn-

ing that both Mr. and Mrs. Bellotte held concealed carry per-

mits, Detective Tracy Edwards sought a search warrant for the

Bellotte residence. Around 9:00 that evening, the magistrate

reviewed the application and signed the warrant.

In order to execute the warrant, Detective Edwards sought

and received approval from the ranking Jefferson County law

enforcement officer for the assistance of the Jefferson County

Special Operations Team ("SORT Team"). The SORT Team

leaders decided that their involvement was justified due to the

possibility of a violent reaction from Mr. Bellotte and the con-

cealed carry permits held by both Mr. and Mrs. Bellotte. After

6 BELLOTTE v. EDWARDS

the three SORT squads were assembled and briefed, they

arrived at the Bellotte residence around 10:15 p.m.

The three squads took positions around the house, wearing

tactical vests and helmets and armed with flashlight-equipped

.45 caliber Sig Sauer pistols and "hooligan" pry bars for a

possible forced entry. Then, the Bellottes claim, the SORT

squads opened the unlocked front and rear doors without

knocking or announcing their presence. They immediately

executed a dynamic entry—a technique that the SORT Team

had recently been trained in—by which all squads simulta-

neously rushed into the home from multiple entry points.

After the SORT squads were inside the house, they repeatedly

identified themselves as law enforcement officers executing a

search warrant.

The first member of the family to encounter the SORT

Team was E.B., the Bellottes’ teenage son. When the officers

found him upstairs walking out of his bedroom and talking on

a cell phone, they subdued and handcuffed him. E.B. asserts

that the officers also poked a gun at the back of his head. In

another bedroom, the team found C.B., the Bellottes’ young

daughter, and led her downstairs unhandcuffed.

When the SORT Team came to the parents’ bedroom,

Tametta Bellotte raced out of bed and ran screaming toward

the closet. When she reached for a gun bag, the officers

forced her to the ground and handcuffed her. Later, when the

house was secured, the SORT Team allowed Mrs. Bellotte to

get fully dressed under the supervision of a female officer.

The search of the Bellotte residence concluded shortly before

midnight.

Mr. Bellotte, it turns out, had spent that night in his hunting

cabin in Hampshire County, West Virginia. The next morn-

ing, when his wife told him what happened, he went to see

Detective Edwards at the Jefferson County Sheriff’s Office.

He gave a recorded statement and later produced a passport

BELLOTTE v. EDWARDS 7

and birth certificate showing that the female in the photo was

not a child, but in fact a 35-year-old woman who lived in the

Philippines. Thus Mr. Bellotte did not in fact possess any

child pornography, and no charges were ever filed against

him.

Mrs. Bellotte and her children brought several causes of

action against Detective Edwards and the officers involved in

the search under 42 U.S.C. § 1983 and state law. On Decem-

ber 28, 2009, the district court granted in part and denied in

part defendants’ motion for summary judgment. The court

dismissed plaintiffs’ claims inasmuch as they alleged that the

search warrant was invalid and that certain aspects of the exe-

cution of the warrant were unreasonable. The court did find,

however, that the defendants were not entitled to qualified

immunity from the plaintiffs’ Fourth Amendment claims

regarding the no-knock entry and excessive use of weapons.

Finally, the court allowed the plaintiffs’ state-law claim for

intentional infliction of emotional distress to proceed as well.

The officers appealed the partial denial of qualified immunity,

and the Bellottes cross-appealed the partial grant of summary

judgment on their search warrant and warrant execution

claims.

II.

The district court granted summary judgment to the officers

on the Bellottes’ claims that the hour of the evening chosen

for the search and the decision to have the SORT Team pres-

ent during the search were unreasonable, and those claims are

not before us on this appeal. Instead, we address here the nar-

row question whether the officers are entitled to qualified

immunity with respect to the Bellottes’ no-knock entry claim.

The officers offer two reasons. They first argue that the no-

knock entry did not violate the Fourth Amendment because it

was justified under the circumstances. The officers also assert

that the entry did "not violate clearly established statutory or

constitutional rights of which a reasonable person would have

8 BELLOTTE v. EDWARDS

known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). But

the thin justification offered here renders this particular entry

a violation of clearly established Fourth Amendment law gov-

erning the obligation to knock and announce.

A.

The knock-and-announce requirement has long been a fix-

ture in law. Gould v. Davis, 165 F.3d 265, 270 (4th Cir.

1998). Before forcibly entering a residence, police officers

"must knock on the door and announce their identity and pur-

pose." Richards v. Wisconsin, 520 U.S. 385, 387 (1997). This

requirement serves the valuable ends of "(1) protecting the

safety of occupants of a dwelling and the police by reducing

violence; (2) preventing the destruction of property; and (3)

protecting the privacy of occupants." Bonner v. Anderson, 81

F.3d 472, 475 (4th Cir. 1996).

Though the "knock and announce principle forms a part of

the Fourth Amendment reasonableness inquiry," Wilson v.

Arkansas, 514 U.S. 927, 930 (1995), no-knock entries may

still be reasonable by virtue of exigent circumstances, see

United States v. Kennedy, 32 F.3d 876, 882 (4th Cir. 1994).

"In order to justify a ‘no-knock’ entry, the police must have

a reasonable suspicion that knocking and announcing their

presence, under the particular circumstances, would be dan-

gerous or futile, or that it would inhibit the effective investi-

gation of the crime by, for example, allowing the destruction

of evidence." Richards, 520 U.S. at 394. The Supreme Court

has admonished that "it is the duty of a court confronted with

the question to determine whether the facts and circumstances

of the particular entry justified dispensing with the knock-

and-announce requirement." Id. We have thus required a par-

ticularized basis for any suspicion that would justify a no-

knock entry. See United States v. Dunnock, 295 F.3d 431, 434

(4th Cir. 2002).

BELLOTTE v. EDWARDS 9

B.

The officers first argue they had a reasonable suspicion that

knocking and announcing their presence would jeopardize

their own safety.1 In particular, they contend that Mr. Bellotte,

due to his suspected possession or production of child pornog-

raphy, "could react unpredictably and possibly violently"

when faced with the prospect of arrest and prosecution. Brief

of Appellants at 24. The embarrassment that citizens face in

being linked to child pornography, so the theory goes, leads

them to violence when confronted with an investigator’s pres-

ence.

Such speculation hardly establishes the level of justification

needed to authorize a no-knock entry. Production or posses-

sion of child pornography is patently unlawful and utterly

deplorable, but to condemn it is not to say that it automati-

cally constitutes a violent crime. Assuming, purely for the

sake of argument, that the photograph Mr. Bellotte left behind

was child pornography, one could not reasonably discern a

propensity to violence toward police from that picture alone.

Possession of this single photograph, without more, simply

does not provide a particularized basis for believing that there

was danger to police executing a warrant. Conjecture to the

contrary under these circumstances was unreasonable.

Nor was there any indication that the Bellottes had any ten-

dency to violence in general. There is no record that either of

the Bellottes had ever been convicted of a crime, or that either

of them had ever had a run-in with the law. To the contrary,

the officers admit that holding concealed carry permits

showed the Bellottes to be citizens in good standing who

passed a background check. Then as now, the officers do not

point to even a single incident that would call into question

1

The district court noted the officers’ concession "that Detective

Edwards did not state any particularized basis for her concern that evi-

dence may be destroyed," and we accordingly do not take up the question.

10 BELLOTTE v. EDWARDS

their fitness to carry a concealed weapon or to retain the

clearly established constitutional protection of the knock-and-

announce requirement.

United States v. Grogins, 163 F.3d 795 (4th Cir. 1998),

illustrates one paradigmatic no-knock entry and shows by

contrast how weak the case before us is. In Grogins, officers

executing a search warrant at a drug stash house declined to

knock and announce for fear of their own safety. The subject

of the investigation had a violent history of shoot-outs, man-

aging drug operations, and intimidating people by firing

weapons into their homes. He even made a chilling declara-

tion "that he was not going back to jail and that he would do

whatever was necessary to avoid it." Id. at 796. Whereas the

officers in Grogins had a truly reasonable suspicion that their

own lives would be in danger if they announced their pres-

ence to such a vicious individual, the officers here can point

to not even one of these particularized indicia of risk.

In United States v. Singleton, 441 F.3d 290 (4th Cir. 2006),

police argued that the knock-and-announce requirement

should be excused not only because of "generalizations about

the inherent violence of drug dealers," but also because of the

defendant’s multiple previous firearms offense arrests, a pre-

vious arrest for second-degree murder, and his location in "a

known open air drug market." Id. at 293. While that support

did not unambiguously establish "‘a particularized basis to

reasonably suspect that knocking and announcing would be

met with violent resistance,’" id. (quoting Grogins, 163 F.3d

at 798) (emphasis in original), we found that the no-knock

entry did not violate the Fourth Amendment because the offi-

cers had "reasonably relied in good faith upon a properly

obtained search warrant that specifically authorized a no-

knock search," id. at 294.

In this case, no warrant authorized a no-knock entry. This

circuit has approved of such warrants in appropriate circum-

stances, see Singleton, 441 F.3d at 294, and these very offi-

BELLOTTE v. EDWARDS 11

cers testified to their previous experience with no-knock

warrants. The officers do not contend, and indeed nothing in

the record shows, that they discovered any new information

after securing the warrant that would have been supportive of

a no-knock entry. Of course, the absence of a no-knock war-

rant "should not be interpreted to remove the officers’ author-

ity to exercise independent judgment concerning the wisdom

of a no-knock entry at the time the warrant is being executed."

Richards, 520 U.S. at 396 n.7. But where, as here, the officers

faced no barrier at all to seeking no-knock authorization at the

time they obtained a warrant, "a strong preference for war-

rants" leads us to view their choice not to seek no-knock

authorization with some skepticism. United States v. Leon,

468 U.S. 897, 914 (1984).

To permit a no-knock entry on facts this paltry would be to

regularize the practice. Our cases allow officers the latitude to

effect dynamic entries when their safety is at stake, but the

Fourth Amendment does not regard as reasonable an entry

with echoes, however faint, of the totalitarian state. The offi-

cers who burst into the Bellotte home point to no signpost of

danger, nor to any criminal history, nor indeed to any factor

that "distinguishes this particular search from many others

that police conduct on a daily basis." Singleton, 441 F.3d at

294. What prompted their entry was the possession of a single

photograph suggestive more of unlawful lurid propensities

than of violent ones. Officers are, of course, entitled to inter-

pret "facts through the lens of [their] police experience and

expertise." Grogins, 163 F.3d at 798 (quoting Ornelas v.

United States, 517 U.S. 690, 699 (1996)). But the entry here

seems less grounded in experience than in speculation, which

the district court rightly found to be "insufficiently particular-

ized to excuse the knock and announce requirement," and

inadequate to justify a grant of qualified immunity.

C.

The officers next contend that a no-knock entry was proper

not only for their own safety, but for that of Mr. Bellotte as

12 BELLOTTE v. EDWARDS

well. As they read it, "[t]he available scholarly and scientific

literature pertaining to sexual offenders underscores that they

are at great risk for suicide at any number of phases of the

arrest and prosecutorial process." Brief of Appellants at 25-26.

From this, we are to conclude that knocking and announcing

posed a threat to Mr. Bellotte. We find this argument unper-

suasive.

For starters, the claim is speculative. The officers’ own tes-

timony demonstrates that there was no reasonable, particular-

ized suspicion that Mr. Bellotte was a danger to himself, but

instead uncertainty about what child pornographers in general

would do upon arrest: "Because you don’t know how or what

the mental status of somebody [is] that you’re doing a warrant

for child pornography, you don’t know how they’re going to

react." Brief of Appellants at 24. But the constitutional stan-

dard of reasonableness demands a particularized basis before

dispensing with the requirement to knock and announce—a

particularized basis not presented by these facts.

The officers attempt to shore up the argument by citing to

an empirical study, Colin Pritchard and Elizabeth King’s

"Differential Suicide Rates in Typologies of Child Sex

Offenders in a 6-year Consecutive Cohort of Male Suicides,"

9 Archives of Suicide Research 35 (2005), that allegedly sup-

ports their assessment of Mr. Bellotte’s suicide risk. We are

reluctant at the outset to credit this ex post rationalization, for

the record provides no indication that the officers were aware

of this study at the time of the entry. See Ker v. California,

374 U.S. 23, 41 n.12 (1963) ("It goes without saying that in

determining the lawfulness of entry . . . we may concern our-

selves only with what the officers had reason to believe at the

time of their entry."). More importantly, the authors of the

study wisely caution against drawing a particularized assess-

ment of suicide risk for any one person, for "this epidemiolog-

ical approach can say little about an individual and can only

yield results that are indicative, rather than definitive, of gen-

eral trends." Pritchard & King, supra, at 40. Caution is further

BELLOTTE v. EDWARDS 13

appropriate because the study draws on a sample that is both

small and foreign—two counties in southern England. Id. at

37.

Even read in the light most favorable to the officers, the

study offers but scant support. It found that the annual suicide

rate for the relevant set of convicted child sex offenders was

2.7%, hardly enough for a reasonable inference of suicide risk

in someone not even convicted of the crime. Id. at 39. The

authors candidly admit that "the numbers of suicides as sequel

to child sexual offender [convictions] were small." Id. More-

over, it remains unclear how many, if any, of those suicides

occurred at the time of arrest, for the study deals only with

those that "occurred around the time of the trial or the disclo-

sure of their offences." Id. To leap from this narrow study in

southern England to a particularized basis that Mr. Bellotte

presented an imminent suicide risk requires an extrapolation

that flirts with absurdity.

Finally, cases addressing the justifications for no-knock

entries speak primarily in terms of officer safety. See, e.g.,

Singleton, 441 F.3d at 293 ("[E]xigent circumstances—like a

threat of physical violence to officers—may allow officers to

conduct a no-knock entry.") (internal quotation omitted);

Gould, 165 F.3d at 274 ("Without question, the failure to

knock and announce prior to entering a home can be justified

by a fear for officer safety."); United States v. Lalor, 996 F.2d

1578, 1584 (4th Cir. 1993) ("Exigent circumstances include

the possibility of destruction of evidence and danger to enter-

ing officers."); see also Ker, 374 U.S. at 40 (Exigent circum-

stances allow an exception to the knock-and-announce

requirement when "the officer’s peril would have been

increased or the arrest frustrated had he demanded entrance

and stated his purpose"). Certainly, we can imagine actual or

threatened injuries to hostages or other third parties that might

excuse the knock-and-announce requirement. A no-knock

entry might even be appropriate in emergency circumstances

to protect the suspect to be apprehended. But here, neither the

14 BELLOTTE v. EDWARDS

prospect of injury nor any other emergency gave the officers

a plausible reason to neglect what the Constitution ordinarily

demands. A professed concern for the suspect, grounded in

little more than speculation about what a certain category of

people might do under certain circumstances, fails to justify

the ironic result of a violation of that very suspect’s rights.

D.

Finally, the officers assert that there was a reasonable sus-

picion of danger to themselves and to the Bellottes because

both Mr. and Mrs. Bellotte had concealed carry permits.

According to the officers, homeowners with such permits

"might have handguns readily accessible to them." Brief of

Appellants at 26. The combination of ready access to hand-

guns, combined with suspected involvement in child pornog-

raphy, is said to create "the potential for a perfect storm of

violence." Id. at 27.

It should go without saying that carrying a concealed

weapon pursuant to a valid concealed carry permit is a lawful

act. The officers admitted at oral argument, moreover, that

"most people in West Virginia have guns." Most importantly,

we have earlier rejected this contention: "If the officers are

correct, then the knock and announcement requirement would

never apply in the search of anyone’s home who legally

owned a firearm." Gould, 165 F.3d at 272; accord United

States v. Smith, 386 F.3d 753, 760 (6th Cir. 2004); United

States v. Marts, 986 F.2d 1216, 1218 (8th Cir. 1993). We rec-

ognized over a decade ago that "[t]his clearly was not and is

not the law, and no reasonable officer could have believed it

to be so." Gould, 165 F.3d at 272.

It is the officers’ failure to offer a plausible and particular-

ized basis for believing that someone in the Bellotte house-

hold would respond violently to a knock-and-announce entry

that sinks their contention. "We think a reasonable officer

would have known that guns do not fire themselves, and that

BELLOTTE v. EDWARDS 15

a justifiable fear for an officer’s safety must include a belief,

not simply that a gun may be located within a home, but that

someone inside the home might be willing to use it." Id.

While in some cases a no-knock entry may prevent violence,

in others "an unannounced entry may provoke violence in

supposed self-defense by the surprised resident." Hudson v.

Michigan, 547 U.S. 586, 594 (2006). That the sword is

double-edged underscores the need for some particularized

suspicion that a resident would resort to violence when police

knock and announce their presence.

This is necessarily a narrow conclusion, for the result might

be different under different facts. It might contribute to an

exigency that supports a no-knock entry if the suspected

crime were more closely connected with violence. See

Grogins, 163 F.3d at 799. Likewise if it were unlawful to pos-

sess the weapon thought to be inside the home. See United

States v. Wardrick, 350 F.3d 446, 452 (4th Cir. 2003). Or if

the suspect had some history of criminal behavior. See United

States v. Ramirez, 523 U.S. 65, 71 (1998). Or if he had actu-

ally threatened suicide. See Cloaninger ex rel. Estate of

Cloaninger v. McDevitt, 555 F.3d 324, 334 (4th Cir. 2009).

We emphasize, however, that each factual situation must be

examined in its totality, see Illinois v. Gates, 462 U.S. 213,

230-31 (1983), in order to make an exigency determination,

and that we cannot script categorical rulings when future cir-

cumstances are unknown. Here the bare fact that the Bellottes

had concealed weapon permits cannot justify this no-knock

entry. We agree with the district court that a "contrary holding

would issue a blanket rule permitting no-knock entries in all

cases involving alleged child pornographers who happen to

possess a weapon in their home." In a nation where suspicions

of crime do not cancel every claim of liberty, this goes too far.

E.

Qualified immunity is meant to protect against liability for

"bad guesses in gray areas." Maciariello v. Sumner, 973 F.2d

16 BELLOTTE v. EDWARDS

295, 298 (4th Cir. 1992). This was not a bad guess. Not a sin-

gle one of the officers’ proffered rationales provides a reason-

able, particularized basis to justify their conduct.2 The officers

contended at oral argument that a no-knock entry under these

circumstances is "so infrequent, so uncommon that it’s a gray

area." To the contrary, we face here an unfortunate exception

to the truism that "[t]he easiest cases don’t even arise." United

States v. Lanier, 520 U.S. 259, 271 (1997) (internal quotation

omitted). The absence of "a prior case directly on all fours"

here speaks not to the unsettledness of the law, but to the

brashness of the conduct. Pinder v. Johnson, 54 F.3d 1169,

1173 (4th Cir. 1995) (en banc). Because "a man of reasonable

intelligence would not have believed that exigent circum-

stances existed in this situation," Bailey v. Kennedy, 349 F.3d

731, 743 (4th Cir. 2003), we affirm the district court’s holding

that this no-knock entry violated the Bellottes’ clearly estab-

lished constitutional rights and does not warrant an award of

qualified immunity.

2

Our good colleague in dissent says the police believed there was a

child victim in the home at the time of the search. There was no objective

basis for that belief. Despite ample opportunity to do so, the officers

advanced not one word on appeal for any belief that a child victim was

in the house at the time of the search. The dissent points to nothing in the

appellants’ brief that even purports to suggest that Mr. Bellotte somehow

kept a child victim in the house with his family, and we cannot adopt an

argument too speculative for even the officers in this appeal to make.

Instead, they press the view that mere possession of the photograph and

the concealed weapon permits was sufficient to excuse the requirement to

knock and announce. As a result, we fully agree with our dissenting col-

league that the officers’ asserted rationales were not reasonable and that

"the officers’ fear was not sufficiently supported to justify their dynamic

no-knock entry into the Bellottes’ home." See Dissenting Opinion at 26.

As to our differences on the point of qualified immunity, Supreme

Court and circuit precedent clearly require a particularized reason to

believe the Bellotte family would pose a danger, something less generic

than the observations about concealed weapon permits and suicide risks

raised at the most general levels by the officers in this appeal.

BELLOTTE v. EDWARDS 17

III.

The officers argue next that they are entitled to qualified

immunity as to the Bellottes’ claim that they used weapons in

an unreasonable and excessive manner during the search of

the house.

A.

As a species of excessive force claims, excessive-use-of-

weapons allegations "are properly analyzed under the Fourth

Amendment’s ‘objective reasonableness’ standard." Graham

v. Connor, 490 U.S. 386, 388 (1989). As with no-knock entry

analysis, application of the reasonableness standard to

excessive-weapons claims "requires careful attention to the

facts and circumstances of each particular case." Id. at 396.

Factors relevant to that analysis include "whether the suspect

poses an immediate threat to the safety of the officers or oth-

ers, and whether he is actively resisting arrest or attempting

to evade arrest by flight." Id. We must make "allowance for

the fact that police officers are often forced to make split-

second judgments—in circumstances that are tense, uncertain,

and rapidly evolving—about the amount of force that is nec-

essary in a particular situation." Id. at 397.

In Taft v. Vines, 83 F.3d 681, 684 (4th Cir. 1996) (en banc),

this court specifically addressed the use of weapons in an

excessive-force context. We adopted the dissenting panel

opinion, which recognized the well-established rule that

"[i]nvestigating officers may take such steps as are reasonably

necessary to maintain the status quo and to protect their safety

during an investigative stop." Taft v. Vines, 70 F.3d 304, 320

(4th Cir. 1995) (Motz, J., dissenting) (quoting United States

v. Taylor, 857 F.2d 210, 213 (4th Cir. 1988)). In particular,

"although ‘approaching a suspect with drawn weapons [is an]

extraordinary measure[ ], such [a] police procedure[ ] [has]

been justified in this circuit as a reasonable means of neutral-

18 BELLOTTE v. EDWARDS

izing potential danger to police and innocent bystanders.’" Id.

(quoting Taylor, 857 F.2d at 214) (alterations in original).

B.

Mrs. Bellotte claims that the officers entered her home and

bedroom in dramatic fashion with guns unreasonably drawn.

The district court noted the sleepy state of the household just

before the entry, and the fright that ensued "as the officers ran

up the stairs toward their bedrooms, screaming, and pointing

guns . . . ."

Of course "[t]his is not an experience to be wished on any-

one." Taft v. Vines, 70 F.3d at 321 (Motz, J., dissenting). But

"[t]he risk of harm to both the police and the occupants is

minimized if the officers routinely exercise unquestioned

command of the situation," as they did here. Michigan v. Sum-

mers, 452 U.S. 692, 702-03 (1981). Mrs. Bellotte and her

children faced a situation quite like that of Mrs. Unus and her

daughter in Unus v. Kane, 565 F.3d 103 (4th Cir. 2009),

where federal agents executing a search warrant entered a res-

idence with firearms drawn. Applying the Virginia constitu-

tion’s reasonableness requirement, we stated that "the officers

were reasonably entitled to believe that the drawing of weap-

ons was necessary in order to gain control of a fluid situation

and ensure the safety of all involved." Id. at 118. The officers

in Mrs. Bellotte’s residence acted reasonably for the same rea-

son.

The risk to their safety was illustrated when Mrs. Bellotte

reacted in threatening, if understandable, fashion. When she

heard voices and footsteps in the house, she testified that she

"bolted out of [her] bed," "threw open the doors" of her closet,

and reached for a gun with the intention to shoot. At that

point, despite substantial reason to fear for their own safety,

the officers restrained Mrs. Bellotte not with deadly force but

by wrestling her to the ground. There was no allegation that

they touched her with a weapon or threatened to use a weapon

BELLOTTE v. EDWARDS 19

against her. Such a "split-second judgment" in the face of an

immediate threat was a reasonable one. Graham, 490 U.S. at

397.

Thereafter, the officers continued to supervise the situation

in reasonable fashion. They placed Mrs. Bellotte in handcuffs

and covered her with a robe. They then took off the handcuffs

when it was clear that there was no danger and when the chil-

dren were secured and brought downstairs. The officers

allowed Mrs. Bellotte to change clothes under the supervision

of a female officer. That Mrs. Bellotte had to face such an

experience was most unfortunate, but we cannot say that the

officers used excessive force. They are entitled to qualified

immunity as to Mrs. Bellotte’s excessive-weapons claim, and

the district court is accordingly reversed on that ground.

C.

Plaintiffs also claim that the officers used excessive weap-

ons against the Bellottes’ daughter C.B. We have the deepest

sympathy for a twelve-year-old "awakened to the sight of four

or five men standing at the foot of her bed with flashing lights

and guns pointed at her." Brief of Appellees at 39. But the

officers had good reason to fear for their own safety upon

entering an unsecured room. And there is no evidence that the

officers who entered C.B.’s room kept their weapons drawn

after they realized who she was. Once they realized that she

did not "pose[ ] an immediate threat to the safety of the offi-

cers or others," Graham, 490 U.S. at 396, the officers used no

force or weapons at all on C.B. See also Unus, 565 F.3d at

118 ("Indeed, the record reflects that the . . . defendants drew

their weapons only long enough to ensure their safety and

control of the situation."). The defendants are accordingly

entitled to qualified immunity on that claim as well.

20 BELLOTTE v. EDWARDS

D.

Unlike his mother and sister, E.B. alleges that he felt "boots

in his back and a gun at the back of his head." Brief of Appel-

lees at 38-39. The officers contest E.B.’s description of the

encounter as a matter of fact, but recognize that such factual

disputes are not immediately appealable and do not contend

on appeal that the alleged conduct did not violate E.B.’s

clearly established constitutional rights. Brief of Appellants at

2 n.3. Because we have jurisdiction over the denial of a claim

for qualified immunity on summary judgment only "to the

extent that the official maintains that the official’s conduct did

not violate clearly established law," Winfield v. Bass, 106

F.3d 525, 529 (4th Cir. 1997) (en banc), we decline to review

the factual dispute, with the result that E.B.’s claim shall go

forward.3

IV.

On cross-appeal, the Bellottes challenge the district court’s

grant of summary judgment to the officers with respect to the

validity of the search warrant and the reasonableness of vari-

ous aspects of the search. This cross-appeal falters, however,

because there is no final order governing those issues from

which to appeal. The partial grant of summary judgment to

defendants was not a "final decision" for purposes of 28

U.S.C. § 1291, which "generally is one which ends the litiga-

tion on the merits and leaves nothing for the court to do but

execute the judgment." Dilly v. S.S. Kresge, 606 F.2d 62, 63

(4th Cir. 1979) (quoting Catlin v. United States, 324 U.S. 229,

3

In addition to their federal constitutional tort claims, the Bellottes

brought state-law claims for intentional infliction of emotional distress.

The district court denied the officers’ request for immunity under West

Virginia law, and the officers have not raised this issue on appeal. Thus,

we will not address it here. See United States v. Bowles, 602 F.3d 581, 583

n.1 (4th Cir. 2010) (noting that arguments not raised in the appellant’s

opening brief are waived).

BELLOTTE v. EDWARDS 21

233 (1945)). Here, "[t]here is obviously something else for the

district court to do but execute the judgment." Id.

The Bellottes nevertheless contend that because we have

appellate jurisdiction over the denial of qualified immunity

with respect to the no-knock entry and excessive-weapons

claims, see Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), we

should choose to exercise pendent jurisdiction over the cross-

appeal. Specifically, the Bellottes contend that "[i]t would be

in the interest of judicial economy to resolve all of these

issues on this appeal" because "[b]oth the Police Defendants’

appeal and the Plaintiffs’ cross-appeal deal with the constitu-

tionality of the search of the Bellotte residence and whether

the Police Defendants are entitled to qualified immunity."

Brief of Appellees at 2.

This argument misses the mark. For starters, "[p]endent

appellate jurisdiction is an exception of limited and narrow

application driven by considerations of need, rather than of

efficiency." Rux v. Republic of Sudan, 461 F.3d 461, 475 (4th

Cir. 2006). Even if this were otherwise a proper case for pen-

dent jurisdiction, "[w]e are constrained by the language of the

Supreme Court as well as our own precedent from recogniz-

ing efficiency considerations as a basis for the exercise of

pendent appellate jurisdiction." Id.

Instead, we have recognized that such jurisdiction is proper

only when an 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." Tay-

lor v. Waters, 81 F.3d 429, 437 (4th Cir. 1996) (citing Swint

v. Chambers County Comm’n, 514 U.S. 35, 51 (1995). The

Bellottes have not argued that any of the issues on cross-

appeal are "inextricably intertwined with," or "necessary to

ensure meaningful review of," the denials of qualified immu-

nity below such that pendent appellate jurisdiction is now

appropriate. This omission is understandable. Our review of

22 BELLOTTE v. EDWARDS

the qualified immunity denials in no way requires an evalua-

tion of the claims that were dismissed on summary judgment

concerning the validity of the search warrant and the reason-

ableness of elements of the search other than the no-knock

entry and use of weapons. The appeal and the cross-appeal,

while sharing certain wholesale commonalities of fact (the

incidents leading up to and during the search of the Bellotte

residence) and law (the Fourth Amendment), nevertheless

present quite distinct factual and legal issues at the retail

level. See Renn v. Garrison, 100 F.3d 344, 352 (4th Cir.

1996) (denying pendent jurisdiction even when "many, or

even all, of the questions remaining in the case may well be

answered by [the] decision here"). We therefore dismiss the

cross-appeal for lack of jurisdiction.

V.

We recognize that police officers executing search warrants

must often make momentous decisions in minute amounts of

time. Qualified immunity provides critically important protec-

tion when a reasonable decision in the line of duty turns out

to be a bad guess. But when the officers failed to knock and

announce their presence under these particular circumstances,

they transgressed the boundaries identified by this circuit and

violated clearly established federal law. They may not now

seek the shelter of immunity for that claim. We affirm the

denial of qualified immunity with respect to the no-knock

entry and E.B.’s excessive-weapons claims and remand for

further proceedings. We also reverse the denial of qualified

immunity as to Mrs. Bellotte and C.B.’s excessive-weapons

claims, and dismiss the cross-appeal for want of jurisdiction.

AFFIRMED IN PART, REVERSED IN PART,

DISMISSED IN PART, AND REMANDED

WYNN, Circuit Judge, dissenting in part:

Qualified immunity gives law enforcement officers the

benefit of the doubt when preexisting law would not make

BELLOTTE v. EDWARDS 23

clear to a reasonable officer that his actions are unlawful. See

Hope v. Pelzer, 536 U.S. 730, 739 (2002). Officers are "liable

for transgressing bright lines" but not for making "bad

guesses in gray areas." Campbell v. Galloway, 483 F.3d 258,

271 (4th Cir. 2007) (quotation marks omitted).

In this case, police officers performed a no-knock entry into

the home of someone suspected of sexual exploitation of a

minor based on the officers’ belief that a child victim and

multiple firearms were in the home. I join the majority in con-

cluding that the no-knock entry here was unlawful. As a result

of this case, the law will be clearly established as to any simi-

lar entries in the future. I cannot conclude, however, that prior

Supreme Court or Fourth Circuit case law clearly established

that the no-knock entry was unlawful under the circumstances

these officers confronted. On that basis, I must respectfully

dissent.

When the officers executed the no-knock entry in 2007, it

was clearly established that they "must have a reasonable sus-

picion that knocking and announcing their presence, under the

particular circumstances, would be dangerous or futile, or that

it would inhibit the effective investigation of the crime by, for

example, allowing the destruction of evidence." Richards v.

Wisconsin, 520 U.S. 385, 394 (1997). It was also clearly

established that a reasonable suspicion is "a minimal level of

objective justification." United States v. Sokolow, 490 U.S. 1,

7 (1989).

The reasonableness of the officers’ asserted suspicion of

danger is assessed based upon the information the officers

possessed at the time they entered. Ker v. California, 374 U.S.

23, 41 n.12 (1963). Thus, it is critical to examine thoroughly

what the officers knew at the time of entry to determine

whether "pre-existing law [made] the unlawfulness [of the no-

knock entry] apparent." Hope, 536 U.S. at 739; see also

DiMeglio v. Haines, 45 F.3d 790, 804 (4th Cir. 1995) ("The

contours of the right must be sufficiently clear that a reason-

24 BELLOTTE v. EDWARDS

able official would understand that what he is doing violates

that right.").

Here, at the time of the no-knock entry, the officers knew

that Mr. Bellotte printed and attempted to purchase porno-

graphic pictures at a Wal-Mart on the morning of May 31,

2007. When asked by the cashier to inspect the photographs

according to store policy, Mr. Bellotte resisted and admitted

that some of the photographs contained nudity. After some

escalation, Mr. Bellotte surrendered the photographs, adamant

that they should be destroyed without inspection. While

shredding the photographs, a Wal-Mart employee was

alarmed by what appeared to be an adult’s penis beside a

young girl’s face. Three other Wal-Mart employees, including

two managers, also believed they saw a child in the photo-

graph, so they decided to call police.

At least two Virginia police officers also believed a child

was depicted in the photograph. According to the Virginia

officers’ police report, the photograph depicted "an approxi-

mately five to six year old white female being forced towards

what appeared to be a male adult penis." Using Wal-Mart’s

camera surveillance and credit card records, the Virginia offi-

cers determined that the man who attempted to purchase the

photographs was Mr. Bellotte.

In the later morning hours of May 31, the case was trans-

ferred to West Virginia law enforcement, and Detective Tracy

Lynn Edwards assumed the role of lead investigating officer.

After Detective Edwards concluded her assistance to federal

agents in an unrelated child pornography investigation, law

enforcement began investigating Mr. Bellotte for possession

of child pornography and suspected sexual exploitation of a

minor. The officers then determined that Mr. and Mrs. Bel-

lotte possessed concealed carry permits. The officers therefore

believed that the Bellottes had multiple firearms in their

home.

BELLOTTE v. EDWARDS 25

Believing that the situation was urgent, Detective Edwards

completed an application for a search warrant for the Bellot-

tes’ home around 7:30 P.M. on May 31. The suspected crime

cited in the search warrant application was not possession of

child pornography, but rather use of a minor in filming sexu-

ally explicit conduct, undoubtedly a form of sexual child

abuse. See W. Va. Code § 61-8C-2(a) ("Any person who

causes or knowingly permits, uses, persuades, induces, entices

or coerces such minor to engage in or uses such minor to do

or assist in any sexually explicit conduct shall be guilty of a

felony when such person has knowledge that any such act is

being photographed or filmed."). The magistrate reviewed and

signed the warrant between 8:30 and 9:00 P.M.

Detective Edwards believed execution of the search war-

rant presented a high risk of danger for essentially two rea-

sons:

I believed that the Bellottes had weapons. I also

believed that this child existed at their residence,

even though I didn’t know if it was a neighbor’s

child or if it was their child.

...

Child pornography—and I do feel that if, in fact,

someone were responsible for kidnapping a child,

that it would [be] a very dangerous situation.

Thus, Detective Edwards sought and obtained departmental

approval to use a tactical special operations team, which exe-

cuted a no-knock entry into the Bellottes’ home shortly after

10:00 P.M. on May 31.

At the time of entry, a magistrate had found probable cause

to believe that evidence of sexual child abuse existed in the

Bellottes’ home, and the officers reasonably believed that

multiple firearms were in the home because of the Bellottes’

26 BELLOTTE v. EDWARDS

concealed carry permits. Based on this information, Detective

Edwards and the other officers believed that executing this

search warrant presented a high risk of danger to the entering

officers and the child victim potentially located within.* If the

officers’ fear of danger had been reasonable, the no-knock

entry would have been lawful. Richards, 520 U.S. at 391. I

concur with the majority, however, and conclude that the offi-

cers’ fear was not sufficiently supported to justify their

dynamic no-knock entry into the Bellottes’ home. While the

officers’ no-knock entry was unlawful, no preexisting case

law clearly established the unlawfulness of their conduct

under the circumstances here such that a reasonable officer

would have known that he was "transgressing" a "bright line."

Campbell, 483 F.3d at 271.

Indeed, at the time of entry in this case, there was congres-

sional and judicial emphasis on combating the harm to vic-

tims of child pornography and sexual exploitation offenses.

See, e.g., New York v. Ferber, 458 U.S. 747, 757 (1982) ("The

prevention of sexual exploitation and abuse of children consti-

tutes a government objective of surpassing importance.");

United States v. MacEwan, 445 F.3d 237, 249-50 (3d Cir.

2006) ("The congressional findings underlying [18 U.S.C.]

§ 2251 repeatedly stress that child pornography is a form of

sexual abuse which can result in physical or psychological

harm, or both, to the children involved.") (internal quotation

*My fine colleagues in the majority suggest that the officers have

offered no "objective basis" in this appeal for a belief that a child victim

was in the house. The record on appeal contains a photograph showing

what two Virginia police officers and at least three West Virginia police

officers believed to be an adult’s penis beside the face of a very young

girl, evidence of Mr. Bellotte’s defensive and evasive behavior at the Wal-

Mart store, and Detective Edwards’ deposition testimony. This evidence,

most assuredly, provides an "objective basis" to believe that a child victim

could be in Mr. Bellotte’s home. In light of that belief, coupled with the

reasonable belief that Mr. Bellotte had firearms within reach, I cannot con-

clude that the unlawfulness of this no-knock entry would have been appar-

ent to any reasonable officer.

BELLOTTE v. EDWARDS 27

marks omitted); see also United States v. Matthews, 209 F.3d

338 (4th Cir. 2000) (rejecting a First Amendment bona fide

reporter defense to a charge of interstate transportation of

child pornography). With that legal backdrop, and given the

officers’ belief that a child victim and deadly weapons were

likely in the Bellottes’ home, I cannot conclude that in light

of preexisting law, it would have been clear to any reasonable

officer that a no-knock entry violated the Constitution.

The majority opinion contends that there is "nothing in the

appellants’ brief that even purports to suggest that Mr. Bel-

lotte somehow kept a child victim in the house with his fam-

ily." However, I find much in the briefs before this Court to

reflect the parties’ acknowledgement that the police officers

held such a belief. The officers’ brief states that the "Bellottes

alleged that the search warrant was invalid because . . . (5) the

search warrant was obtained by making a false statement."

Opening Brief at 5. Indeed, the Bellottes in their brief confirm

this allegation:

In any event, Detective Edwards, as had others,

wrongly concludes that this 35-year-old female is a

5 or 6-year-old child. Her imagination kicked in and

she concluded without any foundation that this may

be a kidnapped child being held in the non-existent

basement at [the Bellottes’ home].

. . . In spite of Detective Edwards’ knowledge of the

Bellotte children being at home, in spite of knowing

that child molesters rarely ever engage in their

nefarious schemes around their own children, Detec-

tive Edwards sought a search warrant.

Brief of Appellees at 14-15. The Bellottes’ brief further states

that Detective Edwards "defended her decision to carry out a

nighttime search with a SWAT team as justified by the fact

that Mr. and Mrs. Bellotte possessed concealed weapon per-

28 BELLOTTE v. EDWARDS

mits and the fact that the police did not know if the ‘child’

was in the house ‘or somewhere else.’" Id. at 16.

Additionally, this is an appeal from the denial of summary

judgment on qualified immunity. Summary judgment is not to

be granted unless "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affida-

vits, if any, show that there is no genuine issue as to any

material fact and the moving party is entitled to judgment as

a matter of law." Fed. R. Civ. P. 56(c). Upon reviewing, de

novo, whether the district court erred by not granting sum-

mary judgment, I would not limit the evidence to be consid-

ered to solely that which is presented in the appellants’ briefs.

In order to determine whether preexisting law made the

unlawfulness of this entry apparent, "the facts must be evalu-

ated from the perspective of a reasonable officer at the scene,

and the use of hindsight must be avoided." Orem v. Rephann,

523 F.3d 442, 448 (4th Cir. 2008) (quotation marks omitted).

The preexisting case law the majority cites does not estab-

lish that the circumstances confronted by these officers could

not support a reasonable suspicion of danger. See Ornelas v.

United States, 517 U.S. 690, 698 (1996) ("It is true that

because the mosaic which is analyzed for a reasonable-

suspicion or probable-cause inquiry is multi-faceted, one

determination will seldom be a useful ‘precedent’ for

another.") (citation and quotation marks omitted). United

States v. Grogins, 163 F.3d 795 (4th Cir. 1998), like a number

of cases on which the majority relies, is far removed from the

facts of this case. The suspect in Grogins was a notorious

drug dealer with a history of violence. Police performed a no-

knock entry into a suspected "stash house" where police

believed the suspect kept his drug inventory. Id. at 796. The

house, however, belonged to an acquaintance of the suspect.

When police entered they found a large quantity of drugs, but

the only person present was the acquaintance, who was

charged with possession with intent to distribute a controlled

substance. Id. at 797. Grogins did little to inform the officers

BELLOTTE v. EDWARDS 29

here whether a no-knock entry into a suspected child abuser’s

home—where the suspect, multiple firearms, and the child

victim were believed to be present—was lawful.

United States v. Singleton, 441 F.3d 290 (4th Cir. 2006), is

a similarly distinguishable drug case. There, the officers

obtained a no-knock search warrant predicated upon three

general categories of allegedly exigent circumstances: 1) the

suspect’s remote criminal history included violence; 2) a gen-

eralized concern about the tendency to violence in drug-

ridden neighborhoods; and 3) a generalized concern about the

violent tendencies of drug dealers. The court ultimately

upheld the search based on good–faith reliance on the war-

rant. However, the court suggested in dictum that the no-

knock entry might not have been justified because the defen-

dant’s remote criminal history was the only specific factor

that distinguished "this particular search from many others

that police conduct on a daily basis." Id. at 294. By contrast,

the officers in this case had particularized information leading

them to believe that child abuse was occurring in the

Bellottes’ residence, where multiple firearms were likely pres-

ent. The circumstances here are therefore a far cry from the

routine drug investigation in Singleton.

Gould v. Davis, 165 F.3d 265 (4th Cir. 1998), did little

more to put the officers in this case on notice that the circum-

stances they confronted were insufficient to justify a no-knock

entry. In Gould, police executed a no-knock entry into the

home of the plaintiff, the father of a suspected armed robber,

while the suspect was in police custody. Id. at 268. The no-

knock warrant was issued based on the violent nature of the

suspect’s crimes and probable cause to believe that handguns

would be found in the plaintiff’s house. Id. At the time of

entry, the officers knew that the plaintiff was not involved in

the armed robberies and that he had no criminal history. The

plaintiff was shot during entry and he sued under Section

1983. This Court held that the officers were not entitled to

qualified immunity because "any reasonable officer would

30 BELLOTTE v. EDWARDS

have rejected as inconsistent with clearly established law in

1992 . . . a belief that [the plaintiff] might use a weapon

because of the criminal propensities of his children." Id. at

271. This holding did not clearly establish the unlawfulness

of the no-knock entry here, where the suspect was believed to

be in the home and was under investigation for child abuse.

There is simply no case law that speaks to the presence or

absence of exigent circumstances in the context of a child

abuse investigation in which the child victim and multiple

firearms are believed to be in the suspect’s custody. Thus,

there were no "bright lines" demarcating the limits of a rea-

sonable suspicion of danger under these circumstances.

Campbell, 483 F.3d at 271. "If the law at [the time of entry]

was not clearly established, an official could not reasonably

be expected to anticipate subsequent legal developments, nor

could he fairly be said to ‘know’ that the law forbade conduct

not previously identified as unlawful." Harlow v. Fitzgerald,

457 U.S. 800, 818-19 (1982). Although the law is now settled

as to any similar entries arising in the future, I must conclude

that no preexisting law clearly established the unlawfulness of

this particular entry. Therefore, I would hold that the officers

are entitled to qualified immunity on the no-knock entry

claim.