Mazuz v. State of MD

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RAFAEL MAZUZ, 

Plaintiff-Appellee,

v.

 No. 05-1463

THE STATE OF MARYLAND; PHILIP P.

TOU,

Defendants-Appellants.



Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Peter J. Messitte, District Judge.

(CA-04-1067-PJM)

Argued: November 29, 2005

Decided: March 29, 2006

Before WIDENER and SHEDD, Circuit Judges, and

Walter D. KELLEY, Jr., United States District Judge

for the Eastern District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge Shedd wrote the

opinion, in which Judge Widener and Judge Kelley joined. Judge Kel-

ley wrote a separate concurring opinion.

COUNSEL

ARGUED: Dawna Marie Cobb, Assistant Attorney General, OFFICE

OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,

Maryland, for Appellants. William James Mertens, Bethesda, Mary-

2 MAZUZ v. STATE OF MARYLAND

land, for Appellee. ON BRIEF: J. Joseph Curran, Jr., Attorney Gen-

eral of Maryland, Baltimore, Maryland, for Appellants.

OPINION

SHEDD, Circuit Judge:

While executing a search warrant in a University of Maryland, Col-

lege Park, dormitory during a multi-room drug raid, university police

detective Philip Tou and other law enforcement officers mistakenly

entered the wrong room and briefly detained the residents of that

room, one of whom was Rafael Mazuz. Upon realizing the mistake,

the officers immediately released the residents and left the room.

Mazuz subsequently filed this lawsuit asserting a cause of action

against Tou under 42 U.S.C. § 1983 for violating his Fourth Amend-

ment right to be free from unreasonable search and seizure, unlawful

arrest and detention, and the use of excessive force. Mazuz also

asserted an identical cause of action against Tou under Article 26 of

the Maryland Declaration of Rights. Tou moved for summary judg-

ment on both causes of action arguing that no constitutional violation

occurred and that he is entitled to qualified immunity. The district

court denied the motion, and Tou now appeals. For the reasons set

forth below, we vacate the district court’s order and remand for fur-

ther proceedings consistent with this opinion.1

I

In May 2002, Mazuz was a student at the University of Maryland,

College Park. Mazuz and a roommate resided in room 5108 of Ellicott

Hall, which is a university dormitory. Tou was employed by the uni-

versity police department and was assigned by the university to serve

on a multi-jurisdiction drug task force. In this capacity, Tou con-

ducted drug investigations on the university campus. Tou had been

1

Mazuz also asserted several tort causes of action against the State of

Maryland. The district court granted summary judgment in the State’s

favor on these claims. The claims against the State are not now before

us, and we need not address them further.

MAZUZ v. STATE OF MARYLAND 3

employed by the university police department for several years, and

he had obtained and executed over 100 search warrants, many of

which were for campus dormitory rooms. Mazuz and Tou did not

know one another.

In early May, Tou received information concerning the sale of ille-

gal drugs on campus. Tou’s investigation revealed that several of the

students involved in this drug activity resided in Ellicott Hall. Among

other information, Tou learned that in late April an armed robbery of

drugs from a resident of Ellicott Hall room 5107 had occurred. Tou

also learned that one of the students involved in this drug activity had

stated to an informant that he possessed a knife and intended to use

it against any police officer who confronted him.2

Based on his investigation, Tou subsequently applied for and

obtained search warrants for Ellicott Hall rooms 5105 and 5110, and

arrest warrants for students residing in Ellicott Hall rooms 5105 and

5107. Before obtaining the warrants, Tou visited the fifth floor of

Ellicott Hall and observed the exterior of rooms 5105, 5107, and

5110. Tou also confirmed with university officials the identity of the

residents of these rooms. Neither Mazuz nor his roommate was a sus-

pect in any of the drug activity, and the validity of the warrants is not

at issue.

On May 15, Tou prepared an "Operational Plan" for the execution

of the arrest and search warrants on the fifth floor of Ellicott Hall.

J.A. 43-46. At approximately 10:00 p.m. that evening, Tou met with

other officers at the university police station and planned for the raid.

Tou reviewed with the officers the information uncovered during his

investigation and the floor plan for Ellicott Hall, and the officers were

assigned specific duties for the raid. Tou, along with one or more offi-

cers, was assigned to enter room 5110. The officers then drove from

the police station to Ellicott Hall. Consistent with his normal practice

to show warrants to suspects only after a scene has been secured, Tou

left the warrants in his vehicle when he arrived at Ellicott Hall.

2

This student had purportedly "punched a police officer’s horse" dur-

ing the riot which occurred after the university’s men’s basketball team

won the NCAA championship in late March. J.A. 40.

4 MAZUZ v. STATE OF MARYLAND

Although Tou was designated as the lead investigator, his immediate

supervisor accompanied the officers on this raid.

The search warrant for room 5110 (and presumably the other war-

rants) authorized nighttime execution, and Tou believed that the like-

lihood of finding evidence in the rooms was greater at night. At

approximately 10:30 p.m., Tou and seven or eight other officers

entered Ellicott Hall and took an elevator to the fifth floor. The offi-

cers exited the elevator and proceeded down the hallway at a quick

pace. From the officers’ location, room 5110 was halfway down the

hall from the elevator on the right side, room 5108 was immediately

past room 5110, and rooms 5105 and 5107 were further down the hall

on the left side. Tou moved down the hall staying close to the wall

on the right side so that other officers could pass him on the left side.

The plan for the raid called for simultaneous entry into the three

rooms. Tou reached room 5110 ten to fifteen seconds after exiting the

elevator.

The room numbers in Ellicott Hall are not located on the room

doors. Instead, they are located on the wall to the upper left of each

doorway. Tou was familiar with this numbering system, and he also

had reviewed the warrant for room 5110 during the pre-raid meeting.

The warrant for room 5110 correctly described the location of the

number for the room.

As Tou approached room 5110, which he understood was the room

he was supposed to enter, he remained close to the wall. From this

vantage point, Tou could not view the room numbers on the wall until

he was close to the rooms because the numbers were obstructed by

the doorway frames. When Tou viewed the number 5110, he mis-

takenly associated it with the door to room 5108, which was next to

room 5110. The number 5110 is between rooms 5108 and 5110, but

it is closer to the door for room 5110. Believing that room 5108 was

in fact room 5110, Tou focused his attention on the door to room

5108, and he and another officer moved into position on the sides of

that door. At that time, the number 5108 was immediately above Tou,

but he did not see it. Nothing in the record suggests that the actual

doors of rooms 5108 and 5110 differ in any material respect.

Tou knocked on the door to room 5108 and announced his pres-

ence for the purpose of executing a search warrant. Tou then drew his

MAZUZ v. STATE OF MARYLAND 5

weapon. Mazuz and his roommate were in room 5108, and Mazuz

was studying for an examination to be given the following morning.

Hearing the knock on the door and believing that another student was

outside his room, Mazuz opened the door to find Tou’s firearm

pointed directly at him. Tou and one or more armed officers entered

the room, loudly ordered Mazuz and his roommate to get on the floor,

and handcuffed them. Tou was dressed in black "battle dress uni-

form," which included a black t-shirt, raid vest, and gun belt, and he

had some form of clothing over his head or face. J.A. 212. Quite natu-

rally, Mazuz and his roommate were unnerved by the officers’ entry

into their room, and they attempted to ascertain what was happening

and to explain that a mistake had been made. The officers told them

to "shut up." J.A. 69. The room was filled with shouting.

Shortly after entering room 5108, Tou became aware that some-

thing was amiss. Tou thus went into the hall and checked the room

number. At that time, Tou realized that the officers had mistakenly

entered room 5108 rather than room 5110, and he informed the other

officers of this fact. The officers uncuffed Mazuz and his roommate

and went to room 5110 to execute the search warrant. The entire inci-

dent involving room 5108 lasted "one to two minutes." J.A. 82.

Although the officers "pushed or shoved" some of Mazuz’s belong-

ings near the doorway for a few seconds, J.A. 115, they did not physi-

cally search Mazuz, his roommate, or the room itself.

Mazuz was understandably upset by this incident, and he therefore

attempted (without success) to be excused from his examination the

following morning. Because of anxiety resulting from the incident,

Mazuz scored poorly on the examination; consequently, he received

a poor letter grade for the course. Mazuz has since been diagnosed as

suffering from post-traumatic stress disorder.

Mazuz has presented a report from his expert witness, Dr. Wendell

M. France, who opined (among other things) that "the execution of

the search and seizure warrants at Ellicott Hall . . . was a disjointed,

poorly managed initiative," and that Tou "disregarded" Mazuz’s

rights "by failing to ensure a copy of the warrant was in hand to pre-

vent the armed, forced entry of . . . room #5108." J.A. 313. Dr. France

specifically pointed to a State police policy that provides, in pertinent

part, that when executing a search warrant "[t]he entry team leader,

6 MAZUZ v. STATE OF MARYLAND

along with the task force/unit supervisor, is responsible for reading

the description of the location to be searched and compare the

description to the location being entered." J.A. 339.

For his part, Tou testified during discovery that he had never seen

this policy. Tou also testified that the manner in which the warrant for

room 5110 was executed is consistent with the normal practice of the

drug task force. However, Tou acknowledged that if he had compared

the description in the warrant with the doorway immediately before

he entered room 5108 he "probably" would not have entered that

room. J.A. 195.

II

As we have noted, Mazuz has asserted a claim under 42 U.S.C.

§ 1983, alleging that Tou violated his Fourth Amendment right to be

free from unreasonable search and seizure, unlawful arrest and deten-

tion, and the use of excessive force. Mazuz has also asserted an iden-

tical cause of action based on Article 26 of the Maryland Declaration

of Rights which, as we discuss below, is generally construed "in pari

materia" with the Fourth Amendment. See Fitzgerald v. State, 864

A.2d 1006, 1019 (Md. 2004).3

In moving for summary judgment, Tou argued that the Fourth

Amendment is violated only by unreasonable conduct and that his

mistaken entry into Mazuz’s room was reasonable under the circum-

stances. For this reason, Tou contended that he did not violate the

Fourth Amendment or Article 26. Tou further argued that he is enti-

tled to qualified immunity on the § 1983 cause of action because the

law was not clearly established in 2002 that his actions violated the

Fourth Amendment and because he acted in good faith. Tou also

argued that he is entitled to qualified immunity on the Article 26

claim because he did not act with malice or gross negligence.

3

Mazuz asserted these causes of action together in Count VII of the

complaint, which is titled "Violation of Constitutional Rights: 42 U.S.C.

§ 1983." J.A. 17. Mazuz’s Article 26 claim arises under Maryland com-

mon law. See Widgeon v. Eastern Shore Hosp. Ctr., 479 A.2d 921, 930

(Md. 1984).

MAZUZ v. STATE OF MARYLAND 7

Describing the issue as a "close call," J.A. 401, the district court

denied Tou’s motion in an oral order. After recounting much of the

evidence set forth above, the district court held that the law was

clearly established in 2002 that a law enforcement officer could not

enter a premises without proper authorization. Therefore, the district

court reasoned, the issue "is really a question of whether analyzing

the acts in question a reasonable trier of fact could conclude that what

[Tou] did . . . was objectively unreasonable," J.A. 400, and it

answered this question in the affirmative:

The plaintiff’s argument . . . is not unreasonable in the sense

that [Tou] had been there the week before and should have

known better. He knew where the numbers were. He scoped

it out to see exactly where they were.

He described the door in detail to get the warrant. He did not

have the warrant with him when he came in that evening

and indeed he says on deposition, that "maybe if I had had

that warrant in hand, I would have seen and not gone in."

And I think that’s enough, frankly, to raise a question of

material fact in this case. It squeaks by.

Not to say that the plaintiff prevails in this case ultimately,

but a jury will decide whether or not there was objective

unreasonableness in this case. As I say, no issue of qualified

immunity here really, because it is well established that one

doesn’t enter into a premises where one doesn’t have a war-

rant.

So this is really a question of whether on these particular

facts there was objectively reasonable or unreasonable

behavior and a trier of fact could differ on that. So the

motion as to count seven, which is the 1983 claim . . . and

the Article 26 state claim is denied.

J.A. 402 (quotation marks added). In making this ruling, the district

court stated that it was unnecessary to rule specifically on Mazuz’s

claim of excessive force; therefore, it expressly refrained from doing

so.

8 MAZUZ v. STATE OF MARYLAND

On appeal, Tou reiterates the arguments that he made in the district

court. As we explain more fully below, we conclude that the district

court erred in denying the summary judgment motion on the § 1983

and Article 26 claims because the specific undisputed evidence in this

case establishes as a matter of law that Tou acted reasonably.

III

A.

We begin with the § 1983 claim, which is grounded on Tou’s

alleged violation of Mazuz’s Fourth Amendment rights. The Fourth

Amendment guarantees the "right of the people to be secure in their

persons [and] houses . . . against unreasonable searches and seizures."

The "central concern of the Fourth Amendment is to protect liberty

and privacy from arbitrary and oppressive interference by government

officials." United States v. Ortiz, 422 U.S. 891, 895 (1975). Under the

Fourth Amendment, a "search" occurs "when an expectation of pri-

vacy that society is prepared to consider reasonable is infringed,"

United States v. Jacobsen, 466 U.S. 109, 113 (1984), and a "seizure"

occurs "when, taking into account all of the circumstances surround-

ing the encounter, the police conduct would have communicated to a

reasonable person that he was not at liberty to ignore the police pres-

ence and go about his business," Kaupp v. Texas, 538 U.S. 626, 629

(2003) (per curiam) (citations and internal punctuation omitted).

"The Fourth Amendment does not proscribe all state-initiated

searches and seizures; it merely proscribes those which are unreason-

able." Florida v. Jimeno, 500 U.S. 248, 250 (1991). "Whether a

Fourth Amendment violation has occurred turns on an objective

assessment of the officer’s actions in light of the facts and circum-

stances confronting him at the time, and not on the officer’s actual

state of mind at the time the challenged action was taken." Maryland

v. Macon, 472 U.S. 463, 470-71 (1985) (internal citation and punctua-

tion omitted). This is a fact-specific inquiry. Ohio v. Robinette, 519

U.S. 33, 39 (1996). "[I]n order to satisfy the ‘reasonableness’ require-

ment of the Fourth Amendment, what is generally demanded of the

many factual determinations that must regularly be made by agents of

the government . . . is not that they always be correct, but that they

always be reasonable." Illinois v. Rodriguez, 497 U.S. 177, 185-86

MAZUZ v. STATE OF MARYLAND 9

(1990). Elaborating on this point, the Court has stated: "Because

many situations which confront officers in the course of executing

their duties are more or less ambiguous, room must be allowed for

some mistakes on their part. But the mistakes must be those of rea-

sonable men, acting on facts leading sensibly to their conclusions of

probability." Brinegar v. United States, 338 U.S. 160, 176 (1949).

The "purpose of § 1983 is to deter state actors from using the badge

of their authority to deprive individuals of their federally guaranteed

rights and to provide relief to victims if such deterrence fails." Wyatt

v. Cole, 504 U.S. 158, 161 (1992). Section 1983 allows a plaintiff "to

seek money damages from government officials who have violated

his Fourth Amendment rights," Wilson v. Layne, 526 U.S. 603, 609

(1999), but it "does not purport to redress injuries resulting from rea-

sonable mistakes," McLenagan v. Karnes, 27 F.3d 1002, 1008 (4th

Cir. 1994).

B.

In response to the § 1983 claim, Tou has asserted the defense of

qualified immunity, which shields government officials performing

discretionary functions "from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitu-

tional rights of which a reasonable person would have known." Har-

low v. Fitzgerald, 457 U.S. 800, 818 (1982). When a government

official asserts qualified immunity as a defense, "the requisites of

[the] defense must be considered in proper sequence." Saucier v.

Katz, 533 U.S. 194, 200 (2001). The threshold question that a court

must first answer is whether the facts, when viewed in the light most

favorable to the plaintiff, show that the official’s conduct violated a

constitutional right. Id. at 201. "If no constitutional right would have

been violated were the allegations established, there is no necessity

for further inquiries concerning qualified immunity." Id. However, "if

a violation could be made out on a favorable view of the parties’ sub-

missions, the next, sequential step is to ask whether the right was

clearly established;" that is, "whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he confronted."

Id. at 201, 202.

10 MAZUZ v. STATE OF MARYLAND

"In reviewing the denial of summary judgment based on qualified

immunity, we accept as true the facts that the district court concluded

may be reasonably inferred from the record when viewed in the light

most favorable to the plaintiff. To the extent that the district court has

not fully set forth the facts on which its decision is based, we assume

the facts that may reasonably be inferred from the record when

viewed in the light most favorable to the plaintiff." Waterman v. Bat-

ton, 393 F.3d 471, 473 (4th Cir. 2005) (internal footnote and citations

omitted).4

Applying the foregoing standard, we begin our analysis by answer-

ing the threshold question of whether the facts presented in the sum-

mary judgment record, when viewed in the light most favorable to

Mazuz, show that Tou violated Mazuz’s Fourth Amendment right to

be free from unreasonable search and seizure, unlawful arrest and

detention, or the use of excessive force. We believe that under the

specific circumstances of this case this question must be answered in

the negative.

C.

The genesis of the alleged Fourth Amendment violations in this

case, and the focus of the district court’s order, is Tou’s entry into

Mazuz’s room. Tou does not dispute that his entry into Mazuz’s room

constitutes a Fourth Amendment "search," and it is undisputed that he

did not have a warrant to enter this particular room. Viewed in isola-

tion, Tou’s entry into Mazuz’s room has the appearance of a Fourth

Amendment violation because "[w]ith few exceptions, the question

4

We have jurisdiction to review "final decisions" of district courts, 28

U.S.C. § 1291, and "a district court’s denial of a claim of qualified

immunity, to the extent that it turns on an issue of law, is an appealable

‘final decision’ within the meaning of . . . § 1291 notwithstanding the

absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530

(1985). As we explained in Winfield v. Bass, 106 F.3d 525, 530 (4th Cir.

1997) (en banc), "we possess no jurisdiction over a claim that a plaintiff

has not presented enough evidence to prove that the plaintiff’s version

of the events actually occurred, but we have jurisdiction over a claim that

there was no violation of clearly established law accepting the facts as

the district court viewed them."

MAZUZ v. STATE OF MARYLAND 11

whether a warrantless search of a home is reasonable and hence con-

stitutional must be answered no." Kyllo v. United States, 533 U.S. 27,

31 (2001). However, relying primarily on Hill v. California, 401 U.S.

797 (1971), and Maryland v. Garrison, 480 U.S. 79 (1987), Tou con-

tends that his entry into Mazuz’s room was nonetheless "reasonable"

because he had a valid warrant to enter room 5110, and he simply

made an honest mistake based on his observation and perception of

the room number as the raid unfolded. We agree.

In Hill, the police had probable cause to arrest a man named Hill.

When they arrived at Hill’s apartment, they encountered a man named

Miller in the apartment. Despite Miller’s presentment of identification

and protestation, the police believed in good faith that Miller was

Hill, and they arrested him. During a search of Hill’s apartment fol-

lowing Miller’s arrest, police found contraband that was subsequently

used against Hill at a criminal trial. Hill was convicted, and his con-

viction was upheld by the state courts.

The Supreme Court likewise sustained Hill’s conviction. In doing

so, the Court rejected Hill’s assertion that the arrest of Miller (which

led to the search of Hill’s apartment) was invalid, holding that "when

the police have probable cause to arrest one party, and when they rea-

sonably mistake a second party for the first party, then the arrest of

the second party is a valid arrest." Hill, 401 U.S. at 802 (citation omit-

ted and internal punctuation altered). Explaining this holding, the

Court stated:

The upshot was that the officers in good faith believed Mil-

ler was Hill and arrested him. They were quite wrong as it

turned out, and subjective good-faith belief would not in

itself justify either the arrest or the subsequent search. But

sufficient probability, not certainty, is the touchstone of rea-

sonableness under the Fourth Amendment and on the record

before us the officers’ mistake was understandable and the

arrest a reasonable response to the situation facing them at

the time.

Id. at 803-04. Turning then to the validity of the search of Hill’s

apartment, the Court also rejected Hill’s assertion that the search was

invalid regardless of the validity of Miller’s arrest. After noting that

12 MAZUZ v. STATE OF MARYLAND

"there was probable cause to arrest Hill and the police arrested Miller

in Hill’s apartment, reasonably believing him to be Hill," the Court

held that "[i]n these circumstances the police were entitled to do what

the law would have allowed them to do if Miller had in fact been Hill,

that is, to search incident to arrest and to seize evidence of the crime

the police had probable cause to believe Hill had committed." Id. at

804.

In Garrison, the police obtained and executed a valid warrant to

search the person of a man named McWebb and "‘the premises

known as 2036 Park Avenue third floor apartment.’" 480 U.S. at 80.

When the police obtained and executed the warrant, they reasonably

believed (based on their pre-search investigation) that there was only

one apartment on the third floor of 2036 Park Avenue. There were,

however, two apartments on the third floor: one occupied by

McWebb and one occupied by Garrison. Before the police realized

that there were two apartments on the third floor, they had entered

Garrison’s apartment and observed contraband. Garrison was charged

and convicted based on this contraband, but his conviction was

reversed by the Court of Appeals of Maryland based on the grounds

that the search of his apartment and the seizure of the contraband was

unconstitutional. In reaching this decision, the court relied on Article

26 and, because of the "in pari materia" construction, the Fourth

Amendment. Id. at 83-84.

Applying Fourth Amendment principles, the Supreme Court

reversed. After concluding that the warrant itself was valid, the Court

considered the "question whether the execution of the warrant vio-

lated [Garrison’s] constitutional right to be secure in his home." Id.

at 86. The Court noted that although "the purposes justifying a police

search strictly limit the permissible extent of the search," there is also

"the need to allow some latitude for honest mistakes that are made by

officers in the dangerous and difficult process of making arrests and

executing search warrants." Id. at 87. The Court stated that its ratio-

nale in Hill "that an officer’s reasonable misidentification of a person

does not invalidate a valid arrest is equally applicable to an officer’s

reasonable failure to appreciate that a valid warrant describes too

broadly the premises to be searched," and that "the validity of the

search of [Garrison’s] apartment pursuant to a warrant authorizing the

search of the entire third floor depends on whether the officers’ fail-

MAZUZ v. STATE OF MARYLAND 13

ure to realize the overbreadth of the warrant was objectively under-

standable and reasonable." Id. at 87-88. The Court concluded that it

was "objectively understandable and reasonable" because the "objec-

tive facts available to the officers at the time suggested no distinction

between McWebb’s apartment and the third-floor premises." Id. at 88.

Notably, the Court observed that the officers properly recognized that

"they were required to discontinue the search of [Garrison’s] apart-

ment as soon as they discovered that there were two separate units on

the third floor and therefore were put on notice of the risk that they

might be in a unit erroneously included within the terms of the war-

rant." 480 U.S. at 87.5

The material facts in this case are undisputed. Tou had a valid war-

rant to enter and search room 5110, which is immediately next door

to Mazuz’s room (5108) on the fifth floor of Ellicott Hall. Before

obtaining the warrant, Tou visited Ellicott Hall to locate and identify

room 5110 (as well as the other two rooms that were under investiga-

tion), and he correctly identified room 5110 on the warrant applica-

tion. On the night of the raid, Tou reviewed with the other officers the

plan for the raid and correctly identified room 5110 as the room he

was to search. The plan called for simultaneous entry into three rooms

on the fifth floor, and the officers had information that indicated that

they could encounter armed resistance. As the raid unfolded, Tou and

a number of other officers moved quickly down the fifth floor hall-

5

In United States v. Patterson, 278 F.3d 315 (4th Cir. 2002), we

applied Garrison to uphold the validity of a search of a vehicle that offi-

cers executing a search warrant mistakenly believed was on the property

that was the subject of the warrant (the "Patterson property"). The vehi-

cle — which belonged to Patterson — was on a gravel parking area that

abutted the street and the Patterson property, and this gravel area —

which police had observed Patterson routinely use — was actually city

property. During the search of the Patterson property, the officers

searched the vehicle and discovered contraband which later led to a crim-

inal charge being filed against Patterson. Following Patterson’s convic-

tion, we affirmed the district court’s denial of his motion to suppress this

contraband. Relying on Garrison, we held that "because the agents’

belief that the gravel parking area was part of the Patterson property was

an objectively reasonable one, their interpretation of the scope of the

warrant to include Patterson’s vehicle, which was parked there, was also

objectively reasonable." 278 F.3d at 319.

14 MAZUZ v. STATE OF MARYLAND

way, and Tou stayed close to the right wall in order to allow other

officers to pass by on his left. During this entire time, Tou correctly

understood that he was to enter room 5110. However, from his van-

tage point, Tou mistakenly associated the room number 5110 (which

was on the wall between rooms 5110 and 5108) with the door to room

5108, and in the quickly unfolding circumstances, he and other offi-

cers entered room 5108. The officers were in Mazuz’s room for a rel-

atively brief period of time, and they left immediately upon realizing

the mistake.

The district court concluded that these undisputed facts present a

"close" jury question concerning the reasonableness of Tou’s entry

into Mazuz’s room. J.A. 401. However, given "the need to allow

some latitude for honest mistakes that are made by officers in the dan-

gerous and difficult process of making arrests and executing search

warrants," Garrison, 480 U.S. at 87, we believe that these specific

undisputed facts establish as a matter of law that Tou’s "mistake was

understandable and the [search] a reasonable response to the situation

facing [him] at the time," Hill, 401 U.S. at 804. Therefore, we hold

that Tou’s entry into Mazuz’s room — i.e., the "search" — does not

constitute a Fourth Amendment violation.

The district court grounded its contrary conclusion primarily on

two factors. First, the district court noted that because Tou had been

on the fifth floor hallway before the raid and observed the exterior of

rooms 5108 and 5110, he "should have known better" on the night of

the raid. J.A. 402. Second, the district court attached great signifi-

cance to the fact that Tou did not carry the warrant with him when

he began the search, pointing out that Tou acknowledged that he

"probably" would not have entered Mazuz’s room if he had carried

the warrant and examined it while he was in the hallway. Although

there may be a certain superficial appeal to these observations, we do

not believe that under the circumstances of this case they create an

issue of whether Tou acted reasonably for Fourth Amendment pur-

poses.

Regarding the former observation, we believe that the district court

is implicitly penalizing Tou for doing what appears to be a natural,

and likely necessary, law enforcement function — that is, visiting

Ellicott Hall as part of his investigation to identify the rooms that

MAZUZ v. STATE OF MARYLAND 15

were the subject of the warrants. Of course, when Tou later returned

to execute the warrants, he mistakenly entered Mazuz’s room. In stat-

ing that Tou "should have known better" than to make this mistake,

the district court implicitly suggests that Tou would have been better

off in this litigation if he had never visited Ellicott Hall before the

night of the raid. In other words, under the district court’s view, Tou’s

mistaken entry into Mazuz’s room may have been more reasonable

had he not "known better." We cannot agree with this suggestion. Cf.

United States v. Ventresca, 380 U.S. 102, 111-12 (1965) (noting that

although the Court "is alert to invalidate unconstitutional searches and

seizures," it is "equally concerned to uphold the actions of law

enforcement officers consistently following the proper constitutional

course").

Concerning the fact that Tou did not carry the warrants with him

during the actual raid, we note initially that the Fourth Amendment

does not require that an officer executing a search must physically

possess the warrant at the commencement of the search. See United

States v. Bonner, 808 F.2d 864, 869 (1st Cir. 1986) ("Courts have

repeatedly upheld searches conducted by law enforcement officials

notified by telephone or radio once the search warrant issued."); cf.

Groh v. Ramirez, 540 U.S. 551, 562 n.5 (2004) (noting that "neither

the Fourth Amendment nor Rule 41 of the Federal Rules of Criminal

Procedure requires the executing officer to serve the warrant on the

owner before commencing the search"). In any event, it is undisputed

that Tou knew at all times during the raid that the warrant authorized

him to enter room 5110; indeed, he thought he was entering room

5110 when he entered room 5108. Thus, this is not a case where an

officer’s failure to review the warrant mistakenly caused him to

believe that he had the authority to enter a premises not identified on

the warrant.6 Although Tou conceded that he "probably" would not

have entered Mazuz’s room had he stopped in the hallway outside the

target rooms and reviewed the warrant during the raid, his decision

not to review the warrant in this manner in the circumstances of this

case — where the officers were in a relatively close area executing

6

Tou’s failure to possess the warrant during the raid arguably would

have more significance if, in fact, he had knowingly entered room 5108

under the mistaken belief that the warrant authorized entry into that room

rather than room 5110.

16 MAZUZ v. STATE OF MARYLAND

multiple arrest and search warrants for different rooms and with infor-

mation of potential resistance — is by no means unreasonable. See

Terry v. Ohio, 392 U.S. 1, 23 (1968) (noting that "it would be unrea-

sonable to require that police officers take unnecessary risks in the

performance of their duties").7

D.

Having determined that Tou’s entry into Mazuz’s room did not vio-

late the Fourth Amendment, we now turn to Mazuz’s claim that he

was subjected to an unreasonable seizure, an unlawful arrest and

detention, and the use of excessive force. As with the search issue,

Tou does not contend that he did not "seize" Mazuz for purposes of

the Fourth Amendment. Rather, Tou argues that the seizure was not

unreasonable because it was made during the normal course of the

execution of the warrant.

Generally, a Fourth Amendment "seizure" may take the form of an

"arrest" or a "detention." See United States v. Brignoni-Ponce, 422

U.S. 873, 878 (1975) ("The Fourth Amendment applies to all seizures

of the person, including seizures that involve only a brief detention

short of traditional arrest."). When a warrant authorizes a law enforce-

ment officer to enter a premises to conduct a search, the warrant "im-

plicitly carries with it the limited authority to detain the occupants of

the premises while a proper search is conducted." Summers, 452 U.S.

at 705. "Inherent in [the] authorization to detain an occupant of the

place to be searched is the authority to use reasonable force to effectu-

ate the detention," including the use of handcuffs. Muehler v. Mena,

544 U.S. 93, 125 S. Ct. 1465, 1470 (2005). This detention is a "sei-

zure" under the Fourth Amendment, but it is not necessarily an "ar-

7

The Court has noted that "the execution of a warrant to search for nar-

cotics is the kind of transaction that may give rise to sudden violence or

frantic efforts to conceal or destroy evidence," Michigan v. Summers,

452 U.S. 692, 702 (1981), and that "it is generally left to the discretion

of the executing officers to determine the details of how best to proceed

with the performance of a search authorized by warrant - subject of

course to the general Fourth Amendment protection ‘against unreason-

able searches and seizures,’" Dalia v. United States, 441 U.S. 238, 257

(1979) (internal footnote omitted).

MAZUZ v. STATE OF MARYLAND 17

rest." See Summers, 452 U.S. at 696 (recognizing distinction between

"pre-arrest ‘seizure’" and "formal[ ]" arrest).

Despite the manner in which Mazuz framed his claim in his com-

plaint (i.e., an unreasonable seizure, unlawful arrest and detention,

and the use of excessive force), he has not argued that he was actually

arrested, and we find nothing in the record to support such an allega-

tion. We shall therefore examine Mazuz’s claim as one for an unrea-

sonable seizure. In doing so, we recognize that Mazuz’s claim of

excessive force is governed by the Fourth Amendment’s prohibition

against unreasonable seizures, Chavez v. Martinez, 538 U.S. 760, 773

n.5 (2003), and is to be analyzed under the Fourth Amendment rea-

sonableness standard, Graham v. Connor, 490 U.S. 386, 395 (1989)

(holding that all "claims that law enforcement officers have used

excessive force . . . in the course of an arrest, investigatory stop, or

other ‘seizure’ of a free citizen should be analyzed under the Fourth

Amendment and its ‘reasonableness’ standard").8

We conclude that the seizure of Mazuz was reasonable under the

undisputed facts of this case. As we have previously held, although

the warrant did not authorize Tou to enter Mazuz’s room to conduct

a search, his mistaken entry into Mazuz’s room was reasonable under

the Fourth Amendment. We believe, as the Court held in Hill, that in

this circumstance once Tou entered Mazuz’s room he was "entitled to

do what the law would have allowed [him] to do" if he had entered

the correct room. 401 U.S. at 804. Accordingly, we hold that it was

not unreasonable for Tou to detain (and handcuff) Mazuz when he

entered his room. This brief detention was an appropriate measure

incident to the search, there is no evidence that any excessive force

was used during the detention, and the detention ended as soon as the

officers discovered their mistake.

8

From the record, it seems clear that Mazuz’s excessive force claim

primarily hinges on whether Tou’s entry into room 5108 was reasonable.

See J.A. 379 (Mazuz’s counsel: "the core of [the excessive force claim]

is that under the circumstances of this, any force against Mr. Mazuz

would be unreasonable"). Although the parties dispute (for different rea-

sons) whether this claim is properly before us, we conclude that a fair

reading of the record shows that it is, and the district court’s failure to

specifically address it does not preclude our consideration of it. See Gar-

raghty v. Commonwealth, 52 F.3d 1274, 1284 & n.8 (4th Cir. 1995).

18 MAZUZ v. STATE OF MARYLAND

E.

In short, we hold that Tou did not violate the Fourth Amendment

by entering Mazuz’s room and seizing Mazuz. Therefore, Mazuz’s

§ 1983 claim must fail. In light of this determination, there is "no

necessity for further inquiries concerning qualified immunity." Sau-

cier, 533 U.S. at 201.

IV

We now turn to Tou’s appeal of the denial of his motion for sum-

mary judgment on the Article 26 claim. As we have noted, Article 26

is generally construed in pari materia with the Fourth Amendment.

Fitzgerald, 864 A.2d at 1019. The Court of Appeals of Maryland has

used this method of construction "essentially to equate the Federal

and State provisions, notwithstanding their very different language,

and to construe the Maryland provision in conformance with con-

structions given to the Fourth Amendment by the Supreme Court."

Scott v. State, 782 A.2d 862, 873 n.2 (Md. 2001) (citation omitted).

Although, theoretically, the resolution of claims under the Fourth

Amendment and Article 26 can differ, see Davis v. State, 859 A.2d

1112, 1120 (Md. 2004) (citations omitted) (noting that the provisions

have "a like, though perhaps not identical, purpose and effect, to pro-

hibit unlawful searches and seizures," and generally are "subject to a

like, but not identical, interpretation"), we discern no basis in this

record or under Maryland law to support a different construction of

these provisions. See Garrison, 480 U.S. at 83-89 (applying Fourth

Amendment principles to Article 26 unreasonable search claim);

Richardson v. McGriff, 762 A.2d 48, 56 (Md. 2000) (applying Fourth

Amendment excessive force standard to Article 26 claim); see also

Robles v. Prince George’s County, Md., 302 F.3d 262, 269 n.1 (4th

Cir. 2002) (in affirming denial of Fourth Amendment claim, we also

held that "[b]ecause Article 26 . . . and the Fourth Amendment . . .

parallel each other, the jury verdict for the defendants on [the Article

26] claim must stand"). Therefore, we conclude that our disposition

of Mazuz’s § 1983 claim dictates the same result on his Article 26

claim. Accordingly, Tou is entitled to summary judgment on this claim.9

9

We have appellate jurisdiction over the Article 26 claim because it is

"inextricably intertwined" with the district court’s denial of qualified

MAZUZ v. STATE OF MARYLAND 19

V

Based on the foregoing, we vacate the district court’s order deny-

ing Tou’s motion for summary judgment and remand this case for fur-

ther proceedings consistent with this opinion.

VACATED AND REMANDED

KELLEY, District Judge, concurring:

I am pleased to join in the majority’s well-reasoned opinion hold-

ing that Officer Tou did not violate Mazuz’s Fourth Amendment right

to be free from unreasonable search and seizure, unlawful arrest and

detention, or the use of excessive force. I write separately only to

emphasize the proper roles of the court and the jury in deciding

claims of qualified immunity.

In denying defendants’ Motion for Summary Judgment, the district

court stated:

The plaintiff’s argument . . . is not unreasonable in the sense

that [Tou] had been there the week before and should have

known better. He knew where the numbers were. He scoped

it out to see exactly where they were.

He described the door in detail to get the warrant. He did not

have the warrant with him when he came in that evening

and indeed he says on deposition, that "maybe if I had had

that warrant in hand, I would have seen and not gone in."

immunity on the § 1983 claim. See Taylor v. Waters, 81 F.3d 429, 437

(4th Cir. 1996) (holding that jurisdiction to consider an interlocutory

appeal of the denial of qualified immunity provides a basis for consider-

ation of other district court ruling if that ruling is "inextricably inter-

twined with the decision of the lower court to deny qualified immunity");

Altman v. City of High Point, N.C., 330 F.3d 194, 207 n.10 (4th Cir.

2003) (holding that claims are "inextricably intertwined" where the reso-

lution of one claim necessarily resolves the other claim).

20 MAZUZ v. STATE OF MARYLAND

And I think that’s enough, frankly, to raise a question of

material fact in this case. It squeaks by.

Not to say that the plaintiff prevails in this case ultimately,

but a jury will decide whether or not there was objective

unreasonableness in this case. As I say, no issue of qualified

immunity here really, because it is well established that one

doesn’t enter into a premises where one doesn’t have a war-

rant.

So this is really a question of whether on these particular

facts there was objectively reasonable or unreasonable

behavior and a trier of fact could differ on that. So the

motion as to count seven, which is the 1983 claim . . . and

the Article 26 state claim is denied.

J.A. 402 (quotation marks and emphasis added).

As the quoted language makes clear, the district court planned to

submit to a jury the issue of Officer Tou’s objective reasonableness

in entering Room 5108 and restraining its occupants. This is an incor-

rect apportionment of decision-making responsibility. Whether an

officer’s conduct was objectively reasonable, and hence protected by

qualified immunity, is a question of law solely for the court. Wil-

lingham v. Crooke, 412 F.3d 553, 559-60 (4th Cir. 2005); see Knuss-

man v. Maryland, 272 F.3d 625, 634 (4th Cir. 2001). Only disputed

issues of fact material to the court’s objective reasonableness decision

are submitted to the jury. Willingham, 412 F.3d at 559-60; see Knuss-

man, 272 F.3d at 634. The court then uses the jury’s factual findings,

typically communicated in the form of answers to special interrogato-

ries, to decide whether to grant qualified immunity. Willingham, 412

F.3d at 560; see Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir. 1990) ("If

there are unresolved factual issues . . . the jury should decide these

issues on special interrogatories . . . .").*

*The district court’s misapprehension undoubtedly arose from the

unsettled state of the law in this area. Unlike the Fourth Circuit, several

Courts of Appeal hold that objective reasonableness is a jury issue. See,

e.g., Maestas v. Lujan, 351 F.3d 1001, 1008-10 (10th Cir. 2003); Fisher

MAZUZ v. STATE OF MARYLAND 21

Qualified immunity is not a mere defense; it is instead "‘an entitle-

ment not to stand trial or face the other burdens of litigation.’" Sau-

cier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth,

472 U.S. 511, 526 (1985)). As a result, both the Supreme Court and

this Court repeatedly have "emphasized the importance of resolving

the question of qualified immunity at the summary judgment stage

rather than at trial." Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir.

2003); see also Saucier, 533 U.S. at 200-01.

The instant case did not involve any disputed issues of fact material

to the ultimate legal question whether Officer Tou acted in an objec-

tively reasonable manner. The parties agreed on what transpired; they

disagreed only on what the facts meant. The district court therefore

could have, and should have, dismissed Officer Tou as a defendant

prior to trial.

v. City of Memphis, 234 F.3d 312, 317 (6th Cir. 2000); Snyder v. Trepag-

nier, 142 F.3d 791, 799-800 (5th Cir. 1998). Past decisions of this Court

tended to favor judicial resolution of the objective reasonableness

inquiry. See, e.g., Knussman v. Maryland, 272 F.3d 625, 634 (4th Cir.

2001). However, as recently as last year this Court used language which

implied that a jury could decide the ultimate issue in a qualified immu-

nity case. See Waterman v. Batton, 393 F.3d 471, 477 n.7 (4th Cir. 2005)

("[T]he reasonableness itself — and specifically the question of what a

reasonable jury could determine regarding reasonableness — is an issue

that we consider de novo."). These decisions, when combined with pat-

tern jury instructions on the topic of objective reasonableness, left the

district courts and litigants with conflicting guidance as to who should

decide what. It was only this Court’s June 2005 decision in Willingham

that fully and finally settled the issue in the Fourth Circuit.