Petition for Writ of Certiorari — Robert Benjamin Stout, Petitioner v. Sergeant Johnson, et al.
Supreme Court briefSep 5, 2023
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Case No.
IN THE SUPREME COURT OF THE UNITED STATES
ROBERT B. STOUT,
Petitioner,
v.
SGT. NOBLES,
SGT. JOHNSON,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
Robert B. Stout, Pro Se
Petitioner
30 Willow Branch Place
' Fredericksburg, VA 22405
(540)642-2184
stoutstoutstoutproselitigation@gmail.com
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1
TABLE OF CONTENTS
3
Fourth Circuit Opinion
District Court’s Memorandum Order,
.20
Stout’s Fourth Circuit Informal Opening Brief.
.35
Stout’s District Court Opposition to Respondent’s Motion to Dismiss
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-J957
ROBERT BENJAMIN STOUT,
Plaintiff - Appellant,
v.
SERGEANT JOHNSON, Individually and in his/her official capacity; DEPUTY
NOBLES, Individually and in his/her official capacity; KING GEORGE COUNTY
SHERIFF, Official capacity,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. David J. Novak, District Judge. (3:22-cv-00287-DJN)
Decided: June 9, 2023
Submitted: May 19,2023
Before AGEE and RICHARDSON, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert Benjamin Stout, Appellant Pro Se. Peter Askin, John P. O’Herron, THOMPSON
MCMULLAN PC, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Robert Benjamin Stout appeals the district court’s order denying relief on his 42
U.S.C. § 1983 complaint. We have reviewed the record and find no reversible error.
Accordingly, we affirm the district court’s order. Stout v. Johnson, No. 3:22-cv-00287DJN (E.D. Va. Aug. 26, 2022). We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
AFFIRMED
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
ROBERT BENJAMIN STOUT,
Plaintiff,
v.
Civil No. 3:22cv287 (DJN)
SGT. JOHNSON, etal,
Defendants.
MEMORANDUM ORDER
(Granting Motion and Dismissing Case)
Plaintiff Robert Benjamin Stout, proceeding pro se, brings this action against Defendants
Sgt. Johnson, Deputy Nobles, and King George County Sheriff, alleging violations of the Fourth
Amendment resulting from a license checkpoint traffic stop on July 11,2022. This matter comes
before the Court on Defendants’ Motion to Dismiss (ECF No. 6), moving to dismiss Plaintiffs
Complaint for failure to State a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). For
the reasons set forth below, the Court hereby GRANTS Defendants’ Motion (ECF No. 6) and
DISMISSES WITH PREJUDICE Plaintiffs Complaint (ECF No. 3).
I.
BACKGROUND
At this stage, the Court must accept as true the facts set forth in the Complaint (ECF No.
3). Ashcroft v. Iqbal, 556 U.S. 662,678 (2009). Against this backdrop, the Court accepts the
following facts as alleged for purposes of resolving the instant motions.
A.
Facts Alleged
On July 11,2020, Plaintiff left Rick’s on the River, a popular beachfront restaurant and
bar in King George, Virginia with his four-year-old son. (Compl. ^ 4.) Driving south on Route
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218, Plaintiff stopped at a license checkpoint conducted by Sgt. Johnson and Deputy Nobles,
among others.1 (Compl. f 5.) Defendants stopped every passing vehicle at the checkpoint to
require the driver to produce their license. (Compl. 17.) Based on the video incorporated into
the Complaint, the encounter took place at night2
When Plaintiff reached the checkpoint Deputy Nobles asked Plaintiff to provide his
driver’s license.3 (Compl. 1j| 1,8; Video at 0:10.) Thus began a twenty-minute standoff.
Plaintiff responded by repeatedly asking if he was being detained and for what crime was he
being detained. (Eg., Compl.
9,11,13,15.) Nobles repeatedly told Plaintiff to provide his
driver’s license, that it was a license checkpoint, that he could not leave without providing his
license, and that he needed to roll down his window. (Eg., Compl. HD 11-16; Video at 0:100:35.) Plaintiff refused to roll his window down and did not produce his license. (Compl. 24.)
After about thirty seconds had elapsed, Plaintiff said, “we done talking.” (Video at 0:38.)
Deputy Nobles again told Plaintiff that he needed to provide his driver’s license to prove that he
i
Plaintiff also names “King George County Sheriff” to allege municipal liability, but does
not aver that he or she participated in the checkpoint. (Compl. 127-31.)
2
Plaintiff references and expressly incorporates a video of the encounter (the “Video”)
with his Complaint that is publicly available at the web address he provides. (Compl. ^ 1.)
Courts may consider documents incorporated into the Complaint by reference on a motion to
dismiss, see Gomes v. Valley Ctnty. Servs. Bd, 822 F.3d 159,165-66 (4th Cir. 2016). This Court
and the district court of Maryland have applied this rule to consider videos incorporated into the
Complaint as well, so long as they are authentic and integral to the Complaint. See Thompson v.
Badjugar, No. 20cvl272,2021 WL 3472130, at *3-4 (D. Md. Aug. 6,2021); Stout v. Harris, No.
3:21cv399,2021 WL 5756382, *1 n.l (citing Thompson and Philips v. PittCty. Mem 7 Hosp.,
572 F.3d 176,180 (4th Cir. 2009)). Here, Plaintiff asserts that the video is authentic, Defendants
do not challenge it, and it is critical to his claims related to the encounter.
3
Plaintiff alleges that the officer who first commanded him to produce his license was
Deputy Nobles, but it appears to be a third officer who withdrew from Plaintiff’s vehicle shortly
thereafter and did not return to the encounter.
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could drive “on the highway.” (Video at 0:55.) Plaintiff replied “No, I don’t,” continued to
ignore die command, and told the officers: “I don’t answer questions.” (Video at 0:56-1:56.)
After about three minutes, Sgt Johnson instructed Plaintiff to produce his license and told him to
roll his window down. Plaintiff told Johnson that he would lose his qualified immunity, told him
he was “done talking,” and the “conversation [was] over.” (Video at 3:00-4:00.) When Johnson
asked Plaintiff if he would produce his license, Plaintiff said he would not answer questions.
(Video at 4:40.) Johnson walked away, and Deputy Nobles remained at Plaintiffs window for
the next several minutes. (Video at 5:30.) Plaintiff remained seated in his car, with his window
rolled up, and did not produce his license. The officers began to allow vehicles to proceed
through the checkpoint southbound on Route 218 around Plaintiffs vehicle. (Video at 6:15.)
Several minutes later, Deputy Nobles tried again, this time tapping on the window and
again asking Plaintiff to produce his driver’s license. (Video at 10:15.) Plaintiff responded by
telling Nobles not to touch his car, asking him what crime he was being detained for, then raising
his middle finger, saying “fuck you” to Nobles, and telling Nobles to “get the fuck outta here.”
(Video at 9:00-11:30.) When Plaintiff again asked Nobles if he was free to leave. Nobles
confirmed that he could leave the checkpoint as soon as he provided his driver’s license. (Video
at 12:35.) After several more minutes, the video shows Plaintiff take a flash-light out of his
glovebox, shine it in Nobles’ eyes, and click the light intermittently for about thirty seconds to
create a strobe-like effect. (Video at 16:15.)
The standoff continued for several more minutes, with Deputy Nobles continuing to tap
on Plaintiffs window and commanding Plaintiff to roll his window down and produce his
license. (Video at 16:30-19:00.) Plaintiff, meanwhile, continued to ignore him and shine the
light in his eyes, and told Nobles that he was streaming the video live. (Video at 17:55.)
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Approximately nineteen minutes into the standoff, Sgt. Johnson returned to Plaintiff’s closed car
window, said that the Supreme Court requires a driver to provide his driver’s license at a license
checking detail, and again told Plaintiff to show his license. (Compl. f 29; Video at 19:25.)
Once again, Plaintiff refused to comply and shouted at Johnson through his closed window that
he would not answer any questions. (Video at 19:35.) Johnson told Plaintiff that the Supreme
Court “says we can bust the window out” then confirmed one final time that Plaintiff would not
produce his license. (Compl. f 32; Video at 19:40.) When Plaintiff again ignored him, Johnson
told Nobles: “Bust his window out” (Compl.
31-32; Video at 19:55.)
Plaintiff then promptly opened his door, and Deputy Nobles demanded to see his license.
(Compl.
35-36; Video at 19:57.) Plaintiff and the officers engaged in a short and heated
discussion. When asked again to provide his license, Plaintiff refused and told Sgt. Johnson to
“shut up.” (Compl. K 38; Video at 20:10.) At last, Johnson said a final time that Plaintiff was
required to produce his identification, and Plaintiff shouted for the final time to ask what crime
that he was suspected of committing. (Compl.
44-48; Video at 20:13.) At that point, Johnson
ordered Plaintiff to get out of his vehicle and put his hands behind his back. (Compl.
49-60;
Video at 20:22.) The video ends at this point, and Defendants then arrested Plaintiff. (Compl.
If 60-61; Video at 20:36.)
Defendants arrested Plaintiff for violating Virginia Code § 18.2-266 (driving while
intoxicated), Virginia Code § 46.2-104 (failure to cany license), and Virginia Code § 18.2-460
(obstruction ofjustice). (Compl. H 61.) After Plaintiff was arrested, Sgt. Johnson searched him
and his vehicle and had his car towed. (Compl.
62-68.)
Defendants then transported Plaintiff to the police station where he performed a
breathalyzer sobriety test (Compl. 69.) Plaintiff passed the test as he was not intoxicated and
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does not consume alcohol. {Compl. || 62,69.) Sgt. Johnson brought Plaintiff before the
magistrate, who charged Plaintiff with driving while intoxicated, failure to carry a license, and
obstruction ofjustice. (Compl. f 70.)
At Plaintiff’s arraignment, the prosecutor voluntarily dismissed the driving while
intoxicated charge. (Compl. ^ 72.) On August 11,2021, Plaintiff was convicted in the General
District Court of King George County of violating Virginia Code § 18.2-460 (obstruction of
justice) and acquitted of violating Virginia Code § 46.2-104 (failing to carry license). (Compl.
75,77.) Plaintiff alleges that, on February 3,2022, the obstruction ofjustice charge was
dismissed on a motion to strike during a subsequent de novo trial in the Circuit Court of King
George County. (Compl.
B.
86,94.)
Procedural History
Plaintiff tiled a Motion for Leave to Proceed informa pauperis (“IFP”) on April 22,
2022. (ECF No. 1.) On April 26,2022, the Court granted Plaintiff IFP status and directed the
Clerk to issue process and deliver the summonses to the United States Marshal for service. (ECF
No. 2.)
Plaintiff raises eight counts for relief based on the above allegations. Counts One
through Six raise Fourth Amendment claims for his unreasonable arrest (Count One),
unreasonable traffic stop and detention (Count Two), search of his person and vehicle (Count
Three and Four) and seizure of his license and vehicle (Counts Five and Six). (Compl. fflj 96119.) Count Seven raises a claim for malicious prosecution and Count Eight alleges municipal
liability against King George County for the Sheriffs maintenance of the policy of conducting
unconstitutional license checkpoints. (Compl. fK 120-31.) Based on these allegations, Plaintiff
seeks general compensatory and punitive damages.
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Defendants filed their Motion to Dismiss on May 25,2022. (ECF No. 6.) Defendants
argue that Plaintiff fails to state a claim, because the license checkpoint stop was constitutional,
and Defendants had probable cause to arrest and search Plaintiff. (Defs.’ Mem. in Supp. of Mot.
to Dismiss (“Defs.’ Mem.”) at 7-14,16 (ECF No. 7).) Alternatively, Defendants argue that their
actions are protected by qualified immunity. (Defs.’ Mem. at 14-16.) Plaintiff responded to the
Motion on June 3,2022, arguing that license checkpoints are unconstitutional, that Defendants
did not have probable cause to arrest him and are not entitled to qualified immunity. (Pl.’s Resp.
to Def’s [sic] Mot. to Dismiss (“Pl.’s Resp.”) at 1-10 (ECF No. 8).) Defendants filed their reply
on June 8,2022, rending the matter now ripe for review. (ECF No. 9.)
II.
STANDARD OF REVIEW
A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of a complaint or
counterclaim; it does not serve as the means by which a court will resolve contests surrounding
the facts, determine the merits of a claim or address potential defenses. Republican Party ofN.C.
v. Martin, 980 F.2d 943,952 (4th Cir. 1992). In considering a motion to dismiss, the Court will
accept a plaintiffs well-pleaded allegations as true and view the facts in a light most favorable to
Plaintiff. MylanLab’ys, Inc. v. Matkari.7T.3d 1130,1134(4thCir. 1993). However,“thetenet
that a court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions.” Iqbal, 556 U.S. at 678.
Under the Federal Rules of Civil Procedure, a complaint or counterclaim must state facts
sufficient to “‘give the defendant fair notice of what the... claim is and the grounds upon which
itrests[.]’” BellAtl. Corp. v. Twothbly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41,47 (1957)). As the Supreme Court opined in Twombly, a complaint or counterclaim
must state “more than labels and conclusions” or a “formulaic recitation of the elements of a
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cause of action,” though the law does not require “detailed factual allegations.” Id. (citations
omitted). Ultimately, the “[factual allegations must be enough to raise a right to relief above the
speculative level,” rendering the right “plausible on its face” rather than merely “conceivable.”
Id. at 555,570. Thus, a complaint or counterclaim must assert facts that are more than “merely
consistent with” the other party’s liability. Id. at 557. And the facts alleged must be sufficient to
“state all the elements of [any] claim[s].” Bass v. E.l DuPont de Nemours & Co., 324 F.3d 761,
765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193,213 (4th Cir. 2002) and
lodice v. United States, 289 F.3d 270,281 (4th Cir. 2002)).
ID.
ANALYSIS
The Court begins by considering the constitutionality of the initial traffic stop before
examining the justification for the subsequent searches and seizures. Ultimately, the Fourth
Circuit has long upheld license checkpoints, defeating Counts Two, Five and Eight
Additionally, the officers had probable cause to arrest Plaintiff for obstruction ofjustice, which,
combined with the context of Plaintiffs actions, justified the subsequent searches and seizures
and defeat the remaining claims. As such, Plaintiffs Complaint fails to state a claim.
A.
Counts Two, Five, and Eight Fail, Because The License Checkpoint Did Not
Violate the Fourth Amendment.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const amend. IV.
A police stop of a vehicle at a license checkpoint constitutes one such seizure that must prove
reasonable to comport with this constitutional right. Delaware v. Prouse, 440 U.S. 648,653
(1979). To evaluate a particular checkpoint seizure, the Court must “balance the individual’s
privacy expectations against the Government’s interests to determine whether it is impractical to
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require a warrant or some level of individualized suspicion in the particular context.” Michigan
Dep’t ofState Police v. Sitz, 496 U.S. 444,449-50 (1990) (cleaned up). In dicta, the Supreme
Court has suggested that checkpoints to inspect drivers’ licenses would be constitutional even in
the absence of reasonable articulable suspicion that a driver was unlicensed. See Prouse, 440
U.S. at 663 (suggesting that “[q]uestioning of all oncoming traffic at roadblock-type stops” as
“one possible alternative” to the roving license spot-check that capriciously stopped vehicles
without reasonable suspicion, which the Court found unreasonable).4 Applying this principle,
die Fourth Circuit has upheld such roadblock-type stops, stating that “a brief stop at a checkpoint
for the limited purpose of verifying a driver’s license, vehicle registration, and proof of insurance
is a reasonable intrusion into the lives of motorists and their passengers even in the absence of
reasonable suspicion that a motorist or passenger is engaged in illegal activity.” United States v.
Brugal, 209 F.3d 353,357 (4th Cir. 2000); see also United States v. Price, 164 F. App’x 404,
406 (4th Cir. 2006) (upholding license checkpoint that “stopped every motorist approaching
from either direction,” was “intended to be brief, as drivers only had to present a valid license”
and “did not involve discretionary behavior on the part of police officers”).
4
This holding and dicta flatly contradict Plaintiff’s mischaracterization of Prouse as
“uphold[ing] roadway-safety checkpoints but banfning] roadway-safety checkpoints that require
drivers to produce their driver’s licenses.” (Pl.’s Resp. at 2.) The Supreme Court acknowledged
the State’s interest in checking for licenses to preserve roadway safety, but found the burden on
drivers of tiie arbitrary spot check method of enforcement to outweigh the state’s interest.
Prouse, 440 U.S. at 658,661. The Court stated “[t]his holding does not preclude the State of
Delaware or other States from developing methods for spot checks that involve less intrusion or
that do not involve the unconstrained exercise of discretion” and suggested the less intrusive
method of a roadblock-style check. Prouse, 440 U.S. at 663. Moreover, Plaintiff s'argument
ignores that the Fourth Circuit has subsequently interpreted Prouse and upheld such license
checkpoints, as described infra.
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Here, Defendants’ license checkpoint and stop of Plaintiff’s vehicle prove reasonable. As
alleged, Defendants set up a license checkpoint on Route 218 and “stopped every single vehicle
that drove through the license checkpoint, commanded every single driver to produce a driver’s
license, and commanded every single passenger to produce identification.” (Compl.
5,7.)
Defendants stopped Plaintiff in this manner when he arrived at the checkpoint and requested his
license. (Compl.
5,8.) Such a seizure proves reasonable under Fourth Circuit law.5 See, e.g.,
Price, 164 F. App’x at 406 (upholding license checkpoint that stopped all motorists, without
exercise of police discretion, for a license check). As such, the checkpoint seizure at issue did
not violate the Fourth Amendment Therefore, Count Two, alleging that the checkpoint
amounted to an unreasonable detention for want of reasonable suspicion, Count Five, alleging
unreasonable seizure of driver’s license, and Count Eight, alleging municipal liability based upon
the unreasonableness of license checkpoints, must 'fail.
Nonetheless, “an initially permissible checkpoint seizure may transform into an
impermissible one by further intrusions not based upon individualized suspicion or consent.”
Brugal, 209 F.3d at 357. As such, the Court must proceed to evaluate whether Defendants’
conduct following the traffic stop was justified.
5
As Plaintiff notes in his response, Virginia Code § 46.2-104 also establishes Defendants’
authority to compel his license. In passing, he argues that the statute proves unconstitutional,
because “if it’s unconstitutional for officers to conduct spot checks on one, it's unconstitutional
for officers to conduct spot checks on everyone.” (Pl.’s Resp. at 7.) Plaintiff may not amend his
Complaint to challenge the constitutionality of this law via his response and the Court will not
credit his fallacious drive-by argument See Campbell ex rel. Equity Units Holders v. Am. Ini 7
Grp., Inc., 86 F. Supp. 3d 464,472 n.9, (E.D. Va. 2015) (“[I]t is ‘axiomatic that a complaint may
not be amended by the briefs in opposition to a motion to dismiss.”) (cleaned up).
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B.
The Remaining Counts Fail, Because the Officers Had Probable Cause to
Arrest Plaintiff.
“[W]hen an officer seeks to expand the investigation of a motorist beyond the reasons for
the checkpoint, the officer must have a reasonable suspicion that the particular person seized is
engaged in criminal activity, or obtain consent during the time period the defendant is lawfully
seized.” Brugal, 209 F.3d at 3S7 (cleaned up). As an initial matter, Defendants’ continued
detention of Plaintiff for approximately twenty-minutes up until his arrest was justified by
Plaintiffs refusal to provide his driver’s license. See, e.g., Brugal, 209 F.3d at 358 (noting
“continuing seizure[s]” require continuing justification). As discussed supra, Defendants
lawfully sought to inspect Plaintiffs license and his failure to provide it gave Defendants
continuing reason to detain him.
However, an arrest, such as the one that terminated the stand-off at issue here, requires
greater justification. An arrest complies with the Fourth Amendment “only if based on probable
cause.” Wilson v. Kittoe, 337 F.3d 392,398 (4th Cir. 2003), “An officer has probable cause for
arrest when the facts and circumstances within the officer’s knowledge are sufficient to warrant a
prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to commit an offense.” Id. (cleaned up). Here,
Defendants contend that they had probable cause to believe that Plaintiff was committing, or
about to commit, obstruction ofjustice under Virginia Code § 18.2-460(A),6 (Defs.’ Mem. at
10.)
6
Although Plaintiff alleges dial the officers arrested him for failure to produce his license
and driving while intoxicated, Defendants do not use these purported violations to advance their
probable cause argument.
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Virginia’s obstruction ofjustice statute provides, in pertinent part:
If any person without just cause knowingly obstructs . . . any law-enforcement
officer... in the performance of his duties as such or fails or refuses without just
cause to cease such obstruction when requested to do so by such . . . lawenforcement officer... he is guilty of a Class 1 misdemeanor.
Va. Code Ann. § 18.2-460(A). Virginia courts have long imposed a stringent interpretation of
obstruction ofjustice: “[t]o constitute obstruction of an officer in the performance of his duty..
. there must be acts clearly indicating an intention on the part of the accused to prevent the
officer from performing his duty[.]” Jones v. Commonwealth, 126 S.E. 74,77 (Va. 1925).
“[Ojbstruction ofjustice does not occur when a person fails to cooperate fully with an officer or
when the person’s conduct merely renders the officer’s task more difficult but does not impede
or prevent the officer from performing that task.” Ruckman v. Commonwealth, 505 S.E.2d 388,
389 (Va. Ct. App. 1998). Accordingly, for Defendants to have had probable cause to arrest
Plaintiff for obstruction ofjustice, a reasonable person in their shoes must have believed that
Plaintiff intended to prevent them from performing their duty, not just making their task more
difficult
Here, on the facts alleged and evidence contained in the undisputed video, Plaintiff
clearly indicated his intent to prevent Defendants from performing their duties. That night,
Defendants duties were to ensure that every driver passing through their checkpoint carried a
valid driver’s license. From the outset, Plaintiff refused to provide his license, instead
challenging the Defendants’ authority to stop him and seek his license. He communicated his
intent to completely prevent the officers’ from performing their duty by — over the course of
twenty minutes — refusing to roll down his window, telling the officers the conversation was
over, raising his middle finger and telling the officers “fuck you,” pulsing a flashlight in one of
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the officer’s face, and refusing to answer questions. While “not just any refusal to obey an
officer’s order” amounts to obstruction ofjustice, Wilson, 337 F.3d at 400, Plaintiffs conduct
here certainly did more than merely impede Defendants or make their duties more difficult.
Indeed, for over twenty minutes, Plaintiff frustrated Defendants’ sole purpose in conducting the
license checkpoint.
Recent case law applying Virginia’s obstruction statute assures the Court that Defendants
had probable cause to arrest Plaintiff for its violation. In Thorne v. Commonwealth, the Virginia
Court of Appeals upheld a conviction for obstruction ofjustice where die defendant prevented an
officer from performing his duty of testing the legality of her window tint for nine minutes. 784
S.E.2d 304,308-10 (Va. Ct App. 2016). The officer had pulled the defendant over for a
suspected window tint violation, but the defendant refused to roll her window down enough for
the officer to perform the test, repeatedly telling him that she knew her rights and “[d]o what you
gotta do!” Id at 309. The court found that the defendant’s verbal responses clearly indicated
that she knew she was keeping the officer from performing his duty. Id The court upheld this
conviction even though the defendant complied after nine minutes when a second officer arrived
on the scene, reasoning that the period of nine minutes sufficed to constitute obstruction. Id In
this case, Plaintiff prevented the officers from performing their duties for an even greater period
of time. Moreover, his verbal responses and behavior clearly conveyed that he knew that he was
preventing Defendants from completing their license check.
And in Smith v. Tolley, this Court found probable cause existed to arrest the plaintiff for
obstruction ofjustice when he refused to allow the officer-defendant to enter his home even
though the officer presented an arrest warrant for a third party whom the officer suspected to be
inside. 960 F. Supp. 977,99S (E.D. Va. 1997). The Court reasoned that the arrest warrant gave
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the officer legal justification to enter the home that precluded the plaintiff from asserting his
right to privacy in refusing entry to the officer. Id Accordingly, the plaintiffs actions,
“continually refus[ing] to answer questions... [while being] hostile and aggressive’’ by shutting
the door in the officer’s face, “clearly demonstrated an intention to prevent [the officer] from
performing his duties,” and gave the officer probable cause to arrest the plaintiff for obstruction.
Id. Similarly, in this case, Plaintiffs persistent refusal to answer the officers’ questions and his
aggressive and hostile behavior clearly demonstrated his intent to prevent Defendants from
completing their duties. Further, Defendants here had even greater justification than the officer
in Smith, because, as the operator of a motor vehicle, Plaintiff was obligated to carry and produce
>*
his license and registration. Va. Code. Ann. § 46.2-104. This obligation contrasts with the Smith
plaintiffs otherwise valid right to refuse entry to the officer, but for the warrant
Although, on a previous occasion, in Stout v. Harris, this Court has held that “failing to
identify does not violate Virginia law, nor does it violate the obstruction statute,” this case
significantly differs from the facts at issue there. 2021 WL 5756382, at *5 (E.D. Va. Dec. 3,
2021). There, the plaintiff stood on the side of the road outside of a sheriffs department security
gate. Id. at *1. The defendant, a sheriff s deputy, approached on foot and asked for
identification, which the plaintiff continually refused to provide over the course of four minutes.
Id. at *1-2. The defendant arrested the plaintiff for failure to identify and charged him with
obstruction ofjustice. Id at *2. The Court found that the plaintiff had sufficiently alleged that
the defendant had arrested him without probable cause, because failure to identify is not a crime
in Virginia, nor does it amount to obstruction ofjustice. Id at *5.
This case differs from Stout v. Harris, because of the context in which the interaction
occurred. Here, Plaintiff — a lawfully-detained motorist — completely frustrated the officers’
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ability to conduct a constitutional license checkpoint to ensure the safety of local roadways,
there, the plaintiff— a pedestrian — generally declined to identify himself in a consensual
roadside encounter. The officer sought identification as nothing more than an interim step in
investigating apparently suspicious, disruptive or unsafe behavior. In that situation, failure to
identify merely rendered the officer’s task more difficult, because she could otherwise fulfill her
duties of ensuring roadside safety. By contrast, in the instant case, the request for a driver’s
license at a license checkpoint was not an intermediate step — it was the purpose of the
detention. As an operator of a motor vehicle, Plaintiff had a legal requirement to produce his
driver’s license, unlike a pedestrian who does not have an obligation to identify himself.
Plaintiff flatly refused and by his conduct indicated that he intended to prevent the officers from
completing their duties, thereby giving the officer’s probable cause to arrest Plaintiff for
obstruction ofjustice. As such, Count One, alleging unreasonable arrest without probable cause,
and Count Seven, alleging malicious prosecution for lack of probable cause to institute a
criminal proceeding against Plaintiff, must fail.
Finally, because Defendants lawfully arrested Plaintiff for obstruction ofjustice and
driving under the influence, they did not violate the Fourth Amendment by searching his person,
or searching and seizing his vehicle. See United States v. Currence, 446 F.3d 554,556 (4th Cir.
2006) (“[Wjhen law enforcement officers have probable cause to make a lawful custodial arrest,
they may — incident to that arrest and without a warrant — search ‘the arrestee’s person and the
area within his immediate control.’”) (quoting Chimel v. California, 395 U.S. 752, 763 (1969);
Arizona v. Gant, 556 U.S. 332,343 (2009) (“[Circumstances unique to the vehicle context
justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to
the crime of arrest might be found in the vehicle.”) (cleaned up); Cobbler v. Superintendent,
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Virginia Stale Penitentiary, 528 F,2d 1142. 1146 (4th Cir. 1975) (“[Pjolice do not violate the
Fourth Amendment when they impound a vehicle to protect it or to remove a nuisance after
arresting the driver away from his home, and he has no means immediately at hand for the
safekeeping of the vehicle”) (cleaned up). Accordingly, Count Three, alleging unreasonable
search of Plaintiff, Count Four, alleging unreasonable search of Plaintiff s vehicle, and Count
Six, alleging unreasonable seizure of Plaintiff s vehicle, must fail as well.7
IV.
CONCLUSION
For the reasons set forth above, the Court hereby GRANTS Defendants’ Motion to
Dismiss (ECF No. 6), and DISMISSES WITH PREJUDICE Plaintiffs Complaint (ECF No. 3),
The Court hereby notifies Plaintiff that should he wish to appeal this Order, written
notice of the appeal must be filed within thirty (30) days of entry hereof. Failure to file a notice
of appeal within the stated period may result in the loss of the right to appeal.
This case is now CLOSED.
Let the Clerk file a copy of this Memorandum Order electronically, notify all counsel of
record and forward a copy to Plaintiff at his address of record.
It is so ORDERED.
/s/
David J. Novak
W J
United States District Judge
Richmond, Virginia
Date: August 26. 2022
7
Because the Court finds that Plaintiffs Complaint fails to state a claim, it need not reach
Defendants alternative argument that, if any of their acts violated Plaintiff s rights, they are
protected by qualified immunity. (Defs.’Mem. at 14-16.)
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
ROBERT BENJAMIN STOUT,
Plaintiff,
v.
Civil No. 3:22cv287 (DJN)
SGT. JOHNSON, et al.,
Defendants.
MEMORANDUM ORDER
(Granting Motion and Dismissing Case)
Plaintiff Robot Benjamin Stout, proceeding pro se, brings this action against Defendants
Sgt. Johnson, Deputy Nobles, and King George County Sheriff, alleging violations of the Fourth
Amendment resulting from a license checkpoint traffic stop on July 11,2022. This matter comes
before the Court on Defendants’ Motion to Dismiss (ECF No. 6), moving to dismiss Plaintiffs
Complaint for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). For
the reasons set forth below, the Court hereby GRANTS Defendants’ Motion (ECF No. 6) and
DISMISSES WITH PREJUDICE Plaintiffs Complaint (ECF No. 3).
I.
BACKGROUND
At this stage, the Court must accept as true the facts set forth in the Complaint (ECF No.
3). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Against this backdrop, the Court accepts the
following facts as alleged for purposes of resolving the instant motions.
A.
Facts Alleged
On July 11,2020, Plaintiff left Rick’s on the River, a popular beachfront restaurant and
bar in King George, Virginia with his four-year-old son. (Compl. f 4.) Driving south on Route
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218, Plaintiff stopped at a license checkpoint conducted by Sgt. Johnson and Deputy Nobles,
among others.1 (Compl. f 5.) Defendants stopped every passing vehicle at the checkpoint to
require the driver to produce their license. (Compl. ^ 7.) Based on the video incorporated into
the Complaint, the encounter took place at night2
When Plaintiff reached the checkpoint, Deputy Nobles asked Plaintiff to provide his
driver’s license.3 (Compl.
1,8; Video at 0:10.) Thus began a twenty-minute standoff.
Plaintiff responded by repeatedly asking if he was being detained and for what crime was he
being detained. {E.g., Compl.
9,11,13,15.) Nobles repeatedly told Plaintiff to provide his
driver’s license, that it was a license checkpoint, that he could not leave without providing his
license, and that he needed to roll down his window. (Eg., Compl. fK 11-16; Video at 0:100:35.) Plaintiff refused to roll his window down and did not produce his license. (Compl. H 24.)
After about thirty seconds had elapsed, Plaintiff said, “we done talking.” (Video at 0:38.)
Deputy Nobles again told Plaintiff that he needed to provide his driver’s license to prove that he
i
Plaintiff also names “King George County Sheriff” to allege municipal liability, but does
not aver that he or she participated in the checkpoint. (Compl. 127-31.)
2
Plaintiff references and expressly incorporates a video of the encounter (the “Video”)
with his Complaint that is publicly available at the web address he provides. (Compl. ^ 1.)
Courts may consider documents incorporated into the Complaint by reference on a motion to
dismiss, see Gomes v. Valley Cmty. Servs. Bd, 822 F.3d 159,165-66 (4th Cir. 2016). This Court
and the district court of Maryland have applied this rule to consider videos incorporated into the
Complaint as well, so long as they are authentic and integral to the Complaint. See Thompson v.
Badjugar, No. 20cvl272,2021 WL 3472130, at *3-4 (D. Md. Aug. 6,2021); Stout v. Harris, No.
3:21cv399,2021 WL 5756382, *1 n.l (citing Thompson and Philips v. PittCty. Mem’lHosp.,
572 F.3d 176,180 (4th Cir. 2009)). Here, Plaintiff asserts that the video is authentic, Defendants
do not challenge it, and it is critical to his claims related to the encounter.
3
Plaintiff alleges that the Officer who first commanded him to produce his license was
Deputy Nobles, but it appears to be a third officer who withdrew from Plaintiff’s vehicle shortly
thereafter and did not return to the encounter.
2
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could drive “on the highway.” (Video at 0:55.) Plaintiff replied “No, I don’t,” continued to
ignore the command, and told the officers: “I don’t answer questions.” (Video at 0:56-1:56.)
After about three minutes, Sgt Johnson instructed Plaintiff to produce his license and told him to
roll his window down. Plaintiff told Johnson that he would lose his qualified immunity, told him
he was “done talking,” and the “conversation [was] over.” (Video at 3:00-4:00.) When Johnson
asked Plaintiff if he would produce his license, Plaintiff said he would not answer questions.
(Video at 4:40.) Johnson walked away, and Deputy Nobles remained at Plaintiff’s window for
the next several minutes. (Video at 5:30.) Plaintiff remained seated in his car, with his window
rolled up, and did not produce his license. The officers began to allow vehicles to proceed
through the checkpoint southbound on Route 218 around Plaintiff’s vehicle. (Video at 6:15.)
Several minutes later, Deputy Nobles tried again, this time tapping on the window and
again asking Plaintiff to produce his driver’s license. (Video at 10:15.) Plaintiff responded by
telling Nobles not to touch his car, asking him what crime he was being detained for, then raising
his middle finger, saying “fuck you” to Nobles, and telling Nobles to “get the fuck outta here.”
(Video at 9:00-11:30.) When Plaintiff again asked Nobles if he was free to leave, Nobles
confirmed that he could leave the checkpoint as soon as he provided his driver’s license. (Video
at 12:35.) After several more minutes, the video shows Plaintiff take a flash-light out of his
glovebox, shine it in Nobles’ eyes, and click the light intermittently for about thirty seconds to
create a strobe-like effect. (Videoat 16:15.)
The standoff continued for several more minutes, with Deputy Nobles continuing to tap
on Plaintiff’s window and commanding Plaintiff to roll his window down and produce his
license. (Video at 16:30-19:00.) Plaintiff, meanwhile, continued to ignore him and shine the
light in his eyes, and told Nobles that he was streaming the video live. (Video at 17:55.)
3
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Approximately nineteen minutes into the standoff, Sgt. Johnson returned to Plaintiff’s closed car
window, said that the Supreme Court requires a driver to provide his driver’s license at a license
checking detail, and again told Plaintiff to show his license. (Compl. f 29; Video at 19:25.)
Once again, Plaintiff refused to comply and shouted at Johnson through his closed window that
he would not answer any questions. (Video at 19:35.) Johnson told Plaintiff that the Supreme
Court “says we can bust the window out” then confirmed one final time that Plaintiff would not
produce his license. (Compl. f 32; Video at 19:40.) When Plaintiff again ignored him, Johnson
told Nobles: “Bust his window out” (Compl. ^ 31-32; Video at 19:55.)
Plaintiff then promptly opened his door, and Deputy Nobles demanded to see his license.
(Compl.
35-36; Video at 19:57.) Plaintiff and the officers engaged in a short and heated
discussion. When asked again to provide his license, Plaintiff refused and told Sgt Johnson to
“shut up.” (Compl. U 38; Video at 20:10.) At last, Johnson said a final time that Plaintiff was
required to produce his identification, and Plaintiff shouted for the final time to ask what crime
that he was suspected of committing. (Compl.
44-48; Video at 20:13.) At that point, Johnson
ordered Plaintiff to get out of his vehicle and put his hands behind his back. (Compl. fflj 49-60;
Video at 20:22.) The video ends at this point, and Defendants then arrested Plaintiff. (Compl.
UH 60-61; Video at 20:36.)
Defendants arrested Plaintiff for violating Virginia Code § 18.2-266 (driving while
intoxicated), Virginia Code § 46.2-104 (failure to carry license), and Virginia Code § 18,2-460
(obstruction ofjustice). (Compl, U 61.) After Plaintiff was arrested, Sgt. Johnson searched him
and his vehicle and had his car towed. (Compl.
62-68.)
Defendants then transported Plaintiff to the police station where he performed a
breathalyzer sobriety test, (Compl. 69.) Plaintiff passed the test as he was not intoxicated and
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does not consume alcohol. (Compl.
62,69.) Sgt. Johnson brought Plaintiff before the
magistrate, who charged Plaintiff with driving while intoxicated, failure to carry a license, and
obstruction ofjustice. (Compl. f 70.)
At Plaintiff's arraignment, the prosecutor voluntarily dismissed the driving while
intoxicated charge. (Compl. ^ 72.) On August 11,2021, Plaintiff was convicted in the General
District Court of King George County of violating Virginia Code § 18.2-460 (obstruction of
justice) and acquitted of violating Virginia Code § 46.2-104 (failing to cany license). (Compl.
75,77.) Plaintiff alleges that, on February 3,2022, the obstruction ofjustice charge was
dismissed on a motion to strike during a subsequent de novo trial in the Circuit Court of King
George County. (Compl. ffl[86,94.)
B.
Procedural History
Plaintiff filed a Motion for Leave to Proceed informa pauperis (“IFP”) on April 22,
2022. (ECF No. 1.) On April 26,2022, the Court granted Plaintiff |FP status and directed the
Clerk to issue process and deliver the summonses to the United States Marshal for service. (ECF
No. 2.)
Plaintiff raises eight counts for relief based on the above allegations. Counts One
through Six raise Fourth Amendment claims for his unreasonable anest (Count One),
unreasonable traffic stop and detention (Count Two), search of his person and vehicle (Count
Three and Four) and seizure of his license and vehicle (Counts Five and Sue). (Compl. Hf 96119.) Count Seven raises a claim for malicious prosecution and Count Eight alleges municipal
liability against King George County for the Sheriffs maintenance of the policy of conducting
unconstitutional license Checkpoints. (Compl. ^fl| 120-31.) Based on these allegations, Plaintiff
seeks general compensatory and punitive damages.
5
. 24
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Defendants filed their Motion to Dismiss on May 25,2022. (ECF No. 6.) Defendants
argue that Plaintiff fails to state a claim, because the license checkpoint stop was constitutional,
and Defendants had probable cause to arrest and search Plaintiff. (Defs.’ Mem. in Supp. of Mot.
to Dismiss (“Defs.’ Mem.”) at 7-14,16 (ECF No. 7).) Alternatively, Defendants argue that their
actions are protected by qualified immunity. (Defs.’ Mem; at 14-16.) Plaintiff responded to the
Motion on June 3,2022, arguing that license checkpoints are unconstitutional, that Defendants
did not have probable cause to arrest him and are not entitled to qualified immunity. (Pl.’s Resp.
to Def.’s [sic] Mot. to Dismiss (“Pl.’s Resp.”) at 1-10 (ECF No. 8).) Defendants filed their reply
on June 8,2022, rending the matter now ripe for review. (ECF No. 9.)
II.
STANDARD OF REVIEW
A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of a complaint or
counterclaim; it does not serve as the means by which a court will resolve contests surrounding
the facts, determine the merits of a claim or address potential defenses. Republican Party ofN.C.
v. Martin, 980 F.2d 943,952 (4th Cir. 1992). In considering a motion to dismiss, the Court will
accept a plaintiffs well-pleaded allegations as true and view the facts in a light most favorable to
Plaintiff, Mylan Lab 'ys, Inc. v. Matkari, 7 F.3d 1130,1134 (4th Cir. 1993). However, “the tenet
that a court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions.” Iqbal, 556 U.S. at 678.
Under the Federal Rules of Civil Procedure, a complaint or counterclaim must state facts
sufficient to ‘“give the defendant fair notice of what the... claim is and the grounds upon which
it rests[.]’” Bell All. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41,47 (1957)). As the Supreme Court opined in Twombly, a complaint or counterclaim
must state “more than labels and conclusions” or a “formulaic recitation of the elements of a
6
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cause of action,” though the law does not require “detailed factual allegations.” Id (citations
omitted). Ultimately, the “[factual allegations must be enough to raise a right to relief above the
speculative level,” rendering the right “plausible on its face” rather than merely “conceivable.”
Id. at 555,570. Thus, a complaint or counterclaim must assert facts that are more than “merely
consistent with” the other party’s liability. Id at 557. And the facts alleged must be sufficient to
“state all the elements of [any] claim[s].” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761,
765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193,213 (4th Cir. 2002) and
lodice v. United Stales, 289 F.3d 270,281 (4th Cir. 2002)).
III.
ANALYSIS
The Court begins by considering the constitutionality of the initial traffic stop before
examining the justification for the subsequent searches and seizures. Ultimately, the Fourth
Circuit has long upheld license checkpoints, defeating Counts Two, Five and Eight
Additionally, the officers had probable cause to anest Plaintiff for obstruction ofjustice, which,
combined with the context of Plaintiff s actions, justified the subsequent searches and seizures,
and defeat the remaining claims. As such, Plaintiffs Complaint Ms to state a claim.
A.
Counts Two, Five, and Eight Fail, Because The License Checkpoint Did Not
Violate the Fourth Amendment.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const amend. IV.
A police stop of a vehicle at a license checkpoint constitutes one such seizure that must prove
reasonable to comport with this constitutional right. Delaware v. Prouse, 440 U.S. 648,653
(1979). To evaluate a particular checkpoint seizure, the Court must “balance the individual’s
privacy expectations against the Government’s interests to determine whether it is impractical to
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require a warrant or some level of individualized suspicion in the particular context.” Michigan
Dep't ofState Police v. Sitz, 496 U S. 444,449-50 (1990) (cleaned up). In dicta, the Supreme
Court has suggested that checkpoints to inspect drivers’ licenses would be constitutional even in
the absence of reasonable articulable suspicion that a driver was unlicensed. See Prouse, 440
U.S. at 663 (suggesting that “[qjuestioning of all oncoming traffic at roadblock-type stops” as
“one possible alternative” to the roving license spot-check that capriciously stopped vehicles
without reasonable suspicion, which the Court found unreasonable).4 Applying this principle,
the Fourth Circuit has upheld such roadblock-type stops, stating that “a brief stop at a checkpoint
for the limited purpose of verifying a driver’s license, vehicle registration, and proof of insurance
is a reasonable intrusion into the lives of motorists and their passengers even in the absence of
reasonable suspicion that a motorist or passenger is engaged in illegal activity.” United States v.
Brugal, 209 F.3d 353,357 (4th Cir. 2000); see also United States v. Price, 164 F. App’x 404,
406 (4th Cir. 2006) (upholding license checkpoint that “stopped every motorist approaching
from either direction,” was “intended to be brief, as drivers only had to present a valid license”
and “did not involve discretionary behavior on the part of police officers”).
4
This holding and dicta flatly contradict Plaintiff's mischaracterization of Prouse as
“upholding] roadway-safety checkpoints but ban[ning] roadway-safety checkpoints that require
drivers to produce their driver’s licenses.” (Pl.’s Resp. at 2.) The Supreme Court acknowledged
the State’s interest in checking for licenses to preserve roadway safety, but found the burden on
drivers of the arbitrary spot check method of enforcement to outweigh the state’s interest.
Prouse, 440 U.S. at 658,661. The Court stated “[t]his holding does not preclude the State of
Delaware or other States from developing methods for spot checks that involve less intrusion or
that do not involve the unconstrained exercise of discretion” and suggested the less intrusive
method of a roadblock-style check. Prouse, 440 U.S. at 663. Moreover, Plaintiff’s argument
ignores that the Fourth Circuit has subsequently interpreted Prouse and upheld such license
checkpoints, as described infra.
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Here, Defendants’ license checkpoint and stop of Plaintiff’s vehicle prove reasonable. As
alleged, Defendants set up a license checkpoint on Route 218 and “stopped every single vehicle
that drove through the license checkpoint, commanded every single driver to produce a driver’s
license, and commanded every single passenger to produce identification.” (Compl. tU 5,7.)
Defendants stopped Plaintiff in this manner when he arrived at the checkpoint and requested his
license. (Compl.
5,8.) Such a seizure proves reasonable under Fourth Circuit law.5 See, e.g.,
Price, 164 F. App’x at 406 (upholding license checkpoint that stopped all motorists, without
exercise of police discretion, for a license check). As such, the checkpoint seizure at issue did
not violate the Fourth Amendment Therefore, Count Two, alleging that the checkpoint
amounted to an unreasonable detention for want of reasonable suspicion, Count Five, alleging
unreasonable seizure of driver’s license, and Count Eight, alleging municipal liability based upon
the unreasonableness of license checkpoints, must fail.
Nonetheless, “an initially permissible checkpoint seizure may transform into an
impermissible one by further intrusions not based upon individualized suspicion or consent”
Brugal, 209 F.3d at 357. As such, the Court must proceed to evaluate whether Defendants’
conduct following the traffic stop was justified.
s
As Plaintiff notes in his response, Virginia Code § 46.2-104 also establishes Defendants’
authority to compel his license. In passing, he argues that the statute proves unconstitutional,
because “if it’s unconstitutional for officers to conduct spot checks on one, it’s unconstitutional
for officers to conduct spot checks on everyone.” (Pl.’s Resp. at 7.) Plaintiff may not amend his
Complaint to challenge the constitutionality of this law via his response and the Court will not
credit his fallacious drive-by argument See Campbell ex rel. Equity Units,Holders v. Am. Int’l
Grp., Inc., 86 F. Supp. 3d 464,472 n.9, (E.D. Va. 2015) (“[I]t is ‘axiomatic that a complaint may
not be amended by the briefs in opposition to a motion to dismiss.”) (cleaned up).
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B.
The Remaining Counts Fail, Because the Officers Had Probable Cause to
Arrest Plaintiff.
“[W]hen an officer seeks to expand the investigation of a motorist beyond the reasons for
the checkpoint, the officer must have a reasonable suspicion that the particular person seized is
engaged in criminal activity, or obtain consent during the time period the defendant is lawfully
seized.’’ Brugal, 209 F.3d at 357 (cleaned up). As an initial matter, Defendants’continued
detention of Plaintiff for approximately twenty-minutes up until his arrest was justified by
Plaintiffs refusal to provide his driver’s license. See, e.g., Brugal, 209 F.3d at 358 (noting
“continuing seizure[s]” require continuing justification). As discussed supra, Defendants
lawfully sought to inspect Plaintiff’s license and his failure to provide it gave Defendants
continuing reason to detain him.
However, an arrest, such as the one that terminated the stand-off at issue here, requires
greater justification. An arrest complies with the Fourth Amendment “only if based on probable
cause.” Wilson v. Kittoe, 337 F.3d 392,398 (4th Cir. 2003). “An officer has probable cause for
arrest when the facts and circumstances within the officer’s knowledge are sufficient to warrant a
prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to commit an offense.” Id. (cleaned up). Here,
Defendants contend that they had probable cause to believe that Plaintiff was committing, or
about to commit, obstruction ofjustice under Virginia Code § 18.2-460(A).6 (Defs,’ Mem. at
10.)
6
Although Plaintiff alleges that the officers arrested him for failure to produce his license
and driving while intoxicated, Defendants do not use these purported violations to advance their
probable cause argument.
10
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Virginia’s obstruction ofjustice statute provides, in pertinent part:
If any person without just cause knowingly obstructs . . . any law-enforcement
officer... in the performance of his duties as such or fails or refuses without just
cause to cease such obstruction when requested to do so by such . . . lawenforcement officer... he is guilty of a Class 1 misdemeanor.
Va. Code Ann. § 18.2-460(A). Virginia courts have long imposed a stringent interpretation of
obstruction ofjustice: “[t]o constitute obstruction of an officer in the performance of his duty..
. there must be acts clearly indicating an intention on the part of die accused to prevent die
officer from performing his duty[.]” Jones v. Commonwealth, 126 S.E. 74,77 (Va. 1925).
“[Ojbstruction ofjustice does not occur when a person fails to cooperate fully with an officer or
when the person’s conduct merely renders the officer’s task more difficult but does not impede
or prevent the officer from performing that task.” Ruckman v. Commonwealth, 505 S.E.2d 388,
389 (Va. Ct. App. 1998). Accordingly, for Defendants to have had probable cause to arrest
Plaintiff for obstruction ofjustice, a reasonable person in their shoes must have believed that
Plaintiff intended to prevent them from performing their duty, not just making their task more
difficult
Here, on the facts alleged and evidence contained in the undisputed video, Plaintiff
clearly indicated his intent to prevent Defendants from performing their duties. That night,
Defendants duties were to ensure that every driver passing through their checkpoint carried a
valid driver’s license. From the outset, Plaintiff refused to provide his license, instead
challenging the Defendants’ authority to stop him and seek his license. He communicated his
intent to completely prevent the officers’ from performing their duty by — over the course of
twenty minutes — refusing to roll down his window, telling the officers the conversation was
over, raising his middle finger and telling the officers “fuck you,” pulsing a flashlight in one of
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the officer’s face, and refusing to answer questions. While ‘‘not just any refusal to obey an
officer’s order” amounts to obstruction ofjustice, Wilson, 337 F.3d at 400, Plaintiffs conduct
here certainly did more than merely impede Defendants or make their duties more difficult.
Indeed, for over twenty minutes, Plaintiff frustrated Defendants’ sole purpose in conducting the
license checkpoint.
Recent case law applying Virginia’s obstruction statute assures the Court that Defendants
had probable cause to arrest Plaintiff for its violation. In Thome v. Commonwealth, the Virginia
Court of Appeals upheld a conviction for obstruction ofjustice where the defendant prevented an
officer from performing his duty of testing the legality of her window tint for nine minutes. 784
S.E.2d 304,308-10 (Va. Ct. App. 2016). The officer had pulled the defendant over for a
suspected window tint violation, but the defendant refused to roll her window down enough for
the officer to perform the test, repeatedly telling him that she knew her rights and “[d]o what you
gotta do!” Id at 309. The court found that the defendant’s verbal responses clearly indicated
that she knew she was keeping the officer from performing his duty, Id The court upheld this
conviction even though the defendant complied after nine minutes when a second officer arrived
on the scene, reasoning that the period of nine minutes sufficed to constitute obstruction. Id In
this case, Plaintiff prevented the officers from performing their duties for an even greater period
of time. Moreover, his verbal responses and behavior clearly conveyed that he knew that he was
preventing Defendants from completing their license check.
And in Smith v. Tolley, this Court found probable cause existed to arrest the plaintiff for
obstruction ofjustice when he refused to allow the officer-defendant to enter his home even
though the officer presented an arrest warrant for a third party whom the officer suspected to be
inside. 960 F. Supp. 977,995 (E.D. Va. 1997). The Court reasoned that the arrest warrant gave
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the officer legal justification to enter the home that precluded the plaintiff from asserting his
right to privacy in refusing entry to the officer. Id Accordingly, the plaintiffs actions,
“continually refusfing] to answer questions... [while being] hostile and aggressive” by shutting
the door in the officer’s face, “clearly demonstrated an intention to prevent [the officer] from
performing his duties,” and gave the officer probable cause to arrest the plaintiff for obstruction.
Id Similarly, in this case, Plaintiffs persistent refusal to answer the officers’ questions and his
aggressive and hostile behavior clearly demonstrated his intent to prevent Defendants from
completing their duties. Further, Defendants here had even greater justification than the officer
in Smith, because, as the operator of a motor vehicle, Plaintiff was obligated to carry and produce
his license and registration. Va. Code. Ann. § 46.2-104. This obligation contrasts with the Smith
plaintiffs otherwise valid right to refuse entry to the officer, but for the warrant
Although, on a previous occasion, in Stout v. Harris, this Court has held that “failing to
identify does not violate Virginia law, nor does it violate the obstruction statute,” this case
significantly differs from the facts at issue there. 2021 WL 5756382, at *5 (E.D. Va. Dec. 3,
2021). There, the plaintiff stood on the side of the road outside of a sheriffs department security
gate. Id. at * 1. The defendant, a sheriffs deputy, approached on foot and asked for
identification, which the plaintiff continually refused to provide over the course of four minutes.
Id at *1-2. The defendant arrested the plaintiff for failure to identify and charged him with
obstruction ofjustice. Id at *2. The Court found that the plaintiff had sufficiently alleged that
the defendant had arrested him without probable cause, because failure to identify is not a crime
in Virginia, nor does it amount to obstruction ofjustice. Id at *5.
This case differs from Stout v. Harris, because of the context in which the interaction
occurred. Here, Plaintiff — a lawfully-detained motorist — completely frustrated the officers’
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ability to conduct a constitutional license checkpoint to ensure the safety of local roadways.
There, the plaintiff — a pedestrian — generally declined to identify himself in a consensual
roadside encounter. The officer sought identification as nothing more than an interim step in
investigating apparently suspicious, disruptive or unsafe behavior. In that situation, failure to
identify merely rendered the officer's task more difficult, because she could otherwise fulfill her
duties of ensuring roadside safety. By contrast, in the instant case, the request for a driver’s
license at a license checkpoint was not an intermediate step—it was the purpose of the
detention. As an operator of a motor vehicle, Plaintiff had a legal requirement to produce his
driver’s license, unlike a pedestrian who does not have an obligation to identify himself.
Plaintiff flatly refused and by his conduct indicated that he intended to prevent the officers from
completing their duties, thereby giving the officer’s probable cause to arrest Plaintiff for
obstruction ofjustice. As such, Count One, alleging unreasonable arrest without probable cause,
and Count Seven, alleging malicious prosecution for lack of probable cause to institute a
criminal proceeding against Plaintiff, must fail.
Finally, because Defendants lawfully arrested Plaintiff for obstruction ofjustice and
driving under the influence, they did not violate the Fourth Amendment by searching his person,
or searching and seizing his vehicle. See United States v. Currence, 446 F.3d 554,556 (4th Cir.
2006) (“[Wjhen law enforcement officers have probable cause to make a lawful custodial arrest,
they may — incident to that arrest and without a warrant — search ‘the arrestee’s person and the
area within his immediate control.’”) (quoting Chimel v. California, 395 U.S. 752,763 (1969);
Arizona v. Gant, 556 U.S. 332,343 (2009) (“[Circumstances unique to the vehicle context
justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to
the crime of arrest might be found in the vehicle.”) (cleaned up); Cobbler v. Superintendent,
14
33 .
Case 3:22-cv-00287-DJN Document 10 Filed 08/26/22 Page 15 of 15 PagelD# 138
Virginia Stale Penitentiary, 528 F.2d 1142,1146 (4th Cir. 1975) (“[PJolice do not violate the
Fourth Amendment when they impound a vehicle to protect it or to remove a nuisance after
arresting the driver away from his home, and he has no means immediately at hand for the
safekeeping of the vehicle.5’) (cleaned up). Accordingly, Count Three, alleging unreasonable
search of Plaintiff, Count Four, alleging unreasonable search of Plaintiff’s vehicle, and Count
Six, alleging unreasonable seizure of Plaintiffs vehicle, must fail as well.7
IV.
CONCLUSION
For the reasons set forth above, the Court hereby GRANTS Defendants’ Motion to
Dismiss (EOF No. 6), and DISMISSES WITH PREJUDICE Plaintiffs Complaint (ECF No. 3).
The Court hereby notifies Plaintiff that should he wish to appeal this Order, written
notice of the appeal must be filed withi n thirty (30) days of entry hereof. Failure to file a notice
of appeal within the stated period may result in the loss of the right to appeal.
This case is now CLOSED.
Let the Clerk file a copy of this Memorandum Order electronically, notify all counsel of
record and forward a copy to Plaintiff at his address of record.
It is so ORDERED.
/s/
\\J J
David J. Novak
United States District Judge
Richmond, Virginia
Date: August 26.2022
?
Because the Court finds that Plaintiffs Complaint fails to state a claim, it need not reach
Defendants alternative argument that, if any of their acts violated Plaintiffs rights, they are
protected by qualified immunity. (Defs.’ Mem. at 14-16.)
15
34
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBERT STOUT,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
SERGEANT JOHNSON, et. al.
Defendants.
Appeal No. 22-1957
APPELLANT’S INFORMAL OPENING BRIEF
I.
>
Jurisdiction
The Appellant is appealing from the United States District Court for the Eastern District
of Virginia, Riclnnond Division. The Appellant is appealing the U.S. District Court’s Order dated
August 26,2022, dismissing the Appellant’s civil action.
II.
Issues for Review
1. Whether or not law-enforcement authority to question and observe drivers at roadway
safety checkpoints includes the authority to compel drivers to produce their driver’s
licenses.
2. Whether or not refusing to provide a driver’s license to law-enforcement constitutes
obstruction of justice.
A.
Supporting Facts and Argument
1.
Issue #1
This court in US v. Brugal, 209 F. 3d 353 - Court of Appeals, 4th Circuit 2000, ruled that
“the Supreme Court has upheld the constitutionality of government checkpoints set up to detect
drunken drivers, see id. at 454,110 S.Ct. 2481, and illegal immigrants, see Martinez-Fuerte, 428
35
■
U.S. at 556-67, 96 S.Ct. 3074, so long as they involve no more than an ‘initial stop . . . and the
associated preliminary questioning and observation by checkpoint officers.’ Sit:, 496 U.S. at
450-51, 110 S.Ct. 2481.” US v. Brugal, 209 F. 3d 353 - Court of Appeals, 4th Circuit 2000,
(emphasis added). “A brief stop at a checkpoint for the limited purpose of verifying a driver's
license, vehicle registr ation,' and proof of insurance is a reasonable intrusion into the lives of
motorists and their passengers even in the absence of reasonable suspicion that a motorist or
passenger is engaged in illegal activity.” US v. Brugal, 209 F. 3d 353 - Court of Appeals, 4tli
Circuit 2000. (emphasis added).1.
The Brugal court reasoned that “the Court suggested in Prouse, albeit in dicta, that
checkpoints to check driver's licenses would be permissible even in the absence of articulable
and reasonable suspicion that a driver was unlicensed.” US v. Brugal, 209 F. 3d 353 - Court of
,
Appeals, 4th Circuit 2000. In Prouse, the court’s suggestion was this:
“This holding does not preclude the State of Delaware or other States from
; developing methods for spot checks that involve less intrusion or that do
not involve the unconstrained exercise of discretion. Questioning of all
oncoming traffic at roadblock-type stops is one possible alternative.”
(emphasis added).
1 The Plaintiff concedes that in Indianapolis v. Edmond, 531 US 32 - Supreme Court 2000, the Court ruled that a
“type of roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible.”
(emphasis added). How ever, the purpose of the roadblock in the Appellant’s case was not to verify driver’s licenses
and vehicle registrations, but to, according to the Appellees’ testimony throughout the Appellant’s trial, the
Appellees' checkpoint plan, and the Appellees’ motion to dismiss, detect dnmk drivers, even though the Appellees
characterized the checkpoint as a license checkpoint to the Appellee during the stop. And at DUI checkpoints,
drivers may be “diverted for a license and registration check” only if “motorists.. exhibited signs of intoxication.”
To the extent that DUI checkpoints and license checkpoints are subsumed into roadway safety checkpoints, and are
one and the same, law-enforcement’s authority to verify driver’s licenses and registrations authorizes
law’-enforcement to establish roadway safety checkpoints for the purpose of verifying, verifying by way of stopping,
questioning and observing drivers, not by compelling drivers.
2
36
The Prouse court suggested that states may develop methods less intrusive than requiring
drivers to produce driver’s licenses, or may develop methods not requiring unconstrained
discretion, if those methods are limited to questioning.
hi fact, the Supreme Court sees “virtually no difference between die levels of
intrusion.. .on motorists stopped briefly at sobriety checkpoints” and “on motorists subjected to a
brief stop at a highway checkpoint for detecting illegal aliens. See Martinez-Fuerte, supra, at
558. We see virtually no difference between the levels of intrusion on law-abiding motorists from
the brief stops necessary to the effectuation of these two types of checkpoints, which to the
average motorist would seem identical save for the nature of die questions die checkpoint
officers might ask.” Michigan Dept, ofState Police v. Sitz, 496 US 444 - Supreme Court 1990.
(emphasis added).2 Therefore, roadway safety checkpoints are governed by the same limitations
governing illegal alien checkpoints, so we need look no further tiian United States v.
Martinez-Fuerte, 428 US 543 - Supreme Court 1976, to explore those limitations.
An illegal alien checkpoint “involves only a brief detention of travelers,” “neither the
vehicle nor its occupants are searched, visual inspection of the vehicle is limited to what can be
seen without a search,” and “the stop itself, the questioning, and the visual inspection,” are an
“objective intrusion.” United States v. Martinez-Fuerte, 428 US 543 - Supreme Court 1976.
(emphasis added).3 Roadway safety checkpoints are limited to “the initial.stop of each motorist
- “The intrusion resulting from the brief stop at the sobriety checkpoint is for constitutional purposes
indistinguishable from the checkpoint stops we upheld hi Martinez-Fuerte.” Michigan Dept, of State Police v. Sitz,
496 US 444 - Supreme Court 1990.
3 The Plaintiff concedes that Martinez-Fuerte states that:
" [a]ll that is required of the vehicle's occupants is a response to a brief question or two and possibly the
production of a document evidencing a right to be in the United States.' " United States v. Brignoni-Ponce,
supra; at 880.
(emphasis added). However, illegal alien checkpoint “operations are conducted pursuant to statutory authorizations
empowering Border Patrol agents to interrogate those believed to be aliens as to their right to be in the United States
and to inspect vehicles for aliens. 8 U. S. C. §§ 1357 (a) (1), (a) (3). Under current regulations the authority
3
37
passing through a checkpoint and the associated preliminary questioning and observation by
checkpoint officers.” Michigan Dept, of State Police v. Sit:, 496 US 444 - Supreme Court 1990.
See Illinois v. Lidster, 540 US 419 - Supreme Court 2004 (“The motorist stop will likely be brief.
Any accompanying traffic delay should prove no more onerous than many that typically
accompany normal traffic congestion. And Hie resulting voluntary questioning of a motorist is as
likely to prove important for police investigation as is the questioning of a pedestrian”)
(emphasis added).
Further “detention of particular motorists.. .may require satisfaction of an individualized
suspicion standard. Id., at 567.” Michigan Dept, of State Police v. Sit:, 496 US 444 - Supreme
Court 1990.
So, does law-enforcement’s authority to stop, question, and observe drivers include the
authority to compel drivers to produce their driver’s licenses? The Supreme Court distinguishes
between the authority to ask questions and the authority to issue commands. Questions are
consensual in nature and designed to elicit voluntary answers while commands are shows of
force designed to compel compliance.
“‘There is nothing in the Constitution which prevents a policeman from addressing
questions to anyone on the streets,’ id., at 34. Police officers enjoy ‘the liberty (again, possessed
by every citizen) to address questions to other persons,’ id., at 31,32-33.(Harlan, J., concurring),
although ‘ordinarily the person addressed lias an equal right to ignore his interrogator and walk
away.’ Ibid.” United States v. Mendenhall, 446 US 544 - Supreme Court 1980 (“As long as the
person to whom questions are put remains free to disregard the questions and walk away, there
has been no intrusion upon that person's liberty”) The Supreme Court has authorized
conferred by § 1357 (a) (3) may be exercised anywhere within 100 air miles of the border. 8 CFR § 287.1 (a)
(1976).’’ fh. 8. There is no statutory authorization and no illegal alien checkpoint in this case.
4
38
law-enforcement to question, not compel, at roadway safety checkpoints. The Appellant was not
questioned by the Appellees, but was commanded and compelled to produce his driver’s license.
and was not free to disregard the Appellees’ ‘questions’ and drive away.4
The Pmuse Court has suggested that die permissible level of intrusion be limited to
questioning, and that the permissible level of unconstrained exercise of discretion be limited to
all oncoming traffic. Therefore, in this case, die Appellees satisfied die unconstrained exercise of
discretion standard because the Appellees stopped all oncoming traffic, but the Appellees did not
satisfy the level of intrusion standard because they did not question the Appellant, but
commanded and compelled the Appellant.
The Appelles did not conduct a roadway safety checkpoint, but a spot check of all
oncoming traffic, and die Prouse court banned spot checks. Law-enforcement may not convert
spot checks into roadway safety checkpoints by spot checking everyone. The Supreme court
distinguishes between roadway safety checkpoints and spot checks, upholding the former and
prohibiting the latter.
The Appellees did not provide drivers witii an alternative route to avoid die Checkpoint
and did not provide public notice of die checkpoint’s existence.
2.
Issue #2
4 The Plaintiff concedes that in Indianapolis v. Edmond, 531 US 32 - Supreme Court 2000, the Court ruled that a
“type of roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible.”
(emphasis added). However, the purpose of the roadblock in the Appellant’s case was not to verify driver’s licenses
and vehicle registrations, but to, according to the Appellees’ testimony throughout, the Appellant’s trial, the
Appellees' checkpoint plan, and the Appellees’ motion to dismiss, detect drunk drivers, even though the Appellees
characterized the checkpoint as a license checkpoint to the Appellee during the stop. And at DUI checkpoints,
drivers may be “diverted for a license and registration check” only if “motorists... exhibited signs of intoxication.”
To the extent that DUI checkpoints and license checkpoints are subsumed into roadway safety checkpoints, and are
one and the same, law-enforcement’s authority to verify driver’s licenses and registrations authorizes
law-enforcement to establish roadway safety checkpoints for the purpose of verifying, verifying by way of stopping,
questioning and observing drivers, not by compelling drivers.
5
39
Refusing to provide a driver’s license does not constitute obstruction of justice,
constitutes failure to cany a license as prohibited by Virginia Code ,§ 46.2-104 (The owner or
operator of any motor vehicle, trailer, or semitrailer shall stop on the signal of any
law-enforcement officer who is in uniform or shows his badge or other sign of authority and
shall, on the officer's request, exhibit his registration card, driver's license, learner's pennit, or
temporary driver's pennit and write his name in the presence of tire officer, if so required, for the
purpose of establishing his identity).
III.
Relief Requested
The Appellant requests that this court reverse the District Court’s decision and remand
for further proceedings.
IV.
Prior Appeals
The Appellant lias no prior appeals in tins court.
Date
Robert Stout, Pro Se
Plaintiff
30 Willow Branch Place
Fredericksburg, VA 22405
(540) 370-6980
stoutstoutstoutproselitigation@gmail.com
6
40
CERTIFICATE OF SERVICE
Tile Plaintiff certifies that oil October 6, 2022, the Defendant emailed a copy of this
document to defense counsel at:
John P. O’Herron (VSB NO. 79357)
ThoinpsonMcMullan, P.C.
100 Shockoe Slip
' Richmond, VA 23219
Phone:(804)698-6253
Fax:(804)780-1813
wtunner@t-mlaw.com
joheiTon@t-mlaw.com
Counselfor Defendants Johnson, Nobles,
and Giles
Date
Robert Stout, Pro Se
Plaintiff
30 Willow Branch Place
Fredericksburg, VA 22405
(540) 370-6980
stoutstoutstoutproselitigation@gmail.com
\
7
41
GHOSTWRITING CERTIFICATE
The Plaintiff certifies that he did not receive assistance from an attorney in the
preparation of this document.
Date
Robert Stout, Pro Se
Plaintiff
30 Willow Branch Place
Fredericksburg, VA 22405
(540) 370-6980
stoutstoutstoutproselitigation@gmail.com
8
42
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
ROBERT BENJAMIN STOUT,
Plaintiff,
v.
SGT NOBLES, et. al.,
Defendant.
)
)
)
)
)
)
• )
)
)
Case No. 3:22cv287-DJN
PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS
The Plaintiff hereby responds to the Defendant’s motion to dismiss the Plaintiff’s
complaint and requests that this court deny the Defendant’s motion. The Plaintiff states as
follows in support:
I.
I.D. and License Checkpoints are Unconstitutional
There is no doubt that “the states have a vital interest in ensuring that only those qualified
to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and
hence that licensing, registration, and vehicle inspection requirements are being observed.”
Delaware v. Prouse, 440 US 648 - Supreme Court 1979. See also Indianapolis v. Edmond, 531
US 32 - Supreme Court 2000.
Prouse emphasized how the states can already achieve those highway-safety goals
without establishing license checkpoints that require drivers to produce their driver’s licenses.
“Tire foremost method of enforcing traffic and vehicle safety regulations...is acting upon
observed violations.” Id. “Many violations of minimum vehicle-safety requirements are
observable, and something can be done about them by the observing officer; directly and
1
43
immediately.” Id. See also Michigan Dept, ofState Police v. Sits, 496 US 444 - Supreme Court
1990. “A police officer...can often tell merely by observing a vehicle's license plate and other
outward markings whether the vehicle is currently in compliance with the requirements of state
law.” United States v. Villamonte-Marquez, 462 US 579 - Supreme Court 1983.
Prouse attributes the state’s interest in apprehending unlicensed drivers to the state’s
interest in roadway safety. See Indianapolis v. Edmond, 531 US 32 - Supreme Court 2000 (the
state’s “interest in apprehending [unlicensed drivers is] subsumed by the [state’s] interest in
roadway safety”).
Prouse upholds roadway-safety checkpoints but bans roadway-safety checkpoints that
require drivers to produce their driver’s licenses.
“An individual operating or traveling in an automobile does not lose all reasonable
expectation of privacy simply because the automobile and its use are subject to government
regulation.” Delaware, v. Prouse, 440 US 648 - Supreme Court 1979. “It seems common sense
that the., .percentage of all drivers on the road who are driving without a license is very small and
that the number of licensed drivers who will be stopped in order to fmd one unlicensed operator
will be large indeed.” Id. “Accordingly, we hold that except in those situations in which there is
at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is
not registered, or that either the vehicle or an occupant is otherwise subject to seizure for
violation of law, stopping an automobile and detaining the driver in order to check his driver’s
license and the registration of the automobile are unreasonable under the Fourth Amendment.”
Id. (emphasis added). See also Dunawa)' v. New York, 442 US 200 - Supreme Court 1979
(“checks for drivers' licenses and proper vehicle registration not permitted on less than
articulable reasonable suspicion”) (emphasis added); Michigan Dept, of State Police v. Sit:, 496
2
44
US 444 - Supreme Court 1990 (“detention of particular motorists for more extensive [intrusion]
may require satisfaction of an individualized suspicion standard”).
Prouse upholds roadway-safety checkpoints that don’t require drivers to produce their
driver’s licenses.
“This holding does not preclude...states from developing methods...that involve less
intrusion. Questioning of all oncoming traffic at roadblock-type stops is one possible
alternative.” Delaware, v. Prouse, 440 US 648 - Supreme Court 1979 (emphasis added). See also
Indianapolis v. Edmond, 531 US 32 - Supreme Court 2000 (“we suggested that ‘questioning of
all oncoming traffic at roadblock-type stops’ would be a lawful means of serving this interest in
highway safety”) (emphasis added) (“we suggested that a similar type of roadblock with the
purpose of verifying drivers’ licenses and vehicle registrations would be permissible”) (emphasis
added); United States v. Viliam on te-Marquez, 462 US 579 - Supreme Court 1983 (“alternative
methods, such as spot checks that involve less intrusion, or questioning of all oncoming tr affic at
roadblock-type stops, would just as readily accomplish the state's objectives in furthering
compliance with auto registration and safety laws”) (emphasis added).
The U.S. Supreme Court has analogized roadway-safety checkpoints to border-area
checkpoints.
“Tire constitutionality of stops by Border Patrol agents was...before tire Court in United
States v. Martinez-Fuerte [and United States v. Brignoni-Ponce, 422 US 873 - Supreme Court
1975], hr which we addressed tire permissibility of checkpoint operations. This practice involved
slowing all oncoming traffic ‘to a virtual, if not a complete, halt at a highway roadblock.’”
Delaware v: Prouse (quoting Martinez-Fuerte). “Although not dispositive, these decisions
3.
45
undoubtedly provide guidance in balancing tlie public interest against Hie individual's Fourth
Amendment interest.” Delaware v. Prouse.
“We see virtually no difference between the levels of intrusion on law-abiding motorists
from the brief stops necessary to the effectuation of these two types of checkpoints, which to the
average motorist would seem identical save for the nature of the questions the checkpoint
officers might ask.” Michigan Dept, of State Police v. Sit:, 496 US 444 - Supreme Court 1990.
“Most importantly, the stops interfered only minimally with liberty of the sort tire Fourth
Amendment seeks to protect. Viewed objectively, each stop required only a brief wait in line.
Contact with the police lasted only a few seconds. Cf. Martinez-Fuerte, 428 U. .S., at 547
(upholding stops of three-to-five minutes); Sitz, 496 U. S., at 448 (upholding delays of 25
seconds). Police contact consisted simply of a request for information. Martinez-Fuerte, supra, at
546 (upholding inquiry as to motorists' citizenship and immigration status); Sitz, supra, at 447
(upholding examination of all drivers for signs of intoxication).” Illinois v. Lidster, 540 US 419 Supreme Court 2004 (emphasis added).
Border-area checkpoints, like roadway-safety checkpoints, and ancestor thereto, are
limited to briefly stopping, questioning, and observing or examining drivers, and are limited to
“only the initial stop of each motorist passing through a checkpoint and the associated
preliminary questioning and observation by checkpoint officers.” Sitz.
“In Martinez-Fuerte we upheld the authority of the Border Patrol to maintain permanent
checkpoints...at which a vehicle would be stopped for brief questioning of its occupants ‘even
though there is no reason to believe the particular' vehicle’ is engaged in illegal activity.” United
States v. Villamonte-Marquez, 462 US 579 - Supreme Court 1983 (emphasis added).
4
46
“We hold that stops for brief questioning routinely conducted at permanent checkpoints
are consistent with the Fourth Amendment. ‘[A]ny further detention . . . must be based on
consent or probable cause.’ United States v. Brignoni-Ponce, supra, at 882.” Martinez-Fuerte.
See also United States v. Ortiz, 422 US 891 - Supreme Court 1975; Bowen v. United States, 422
US 916 - Supreme Court 1975 (“United States v. Ortiz forbids searching cars at traffic
checkpoints in the absence of consent or probable cause”).
“We agree” with “the validity of the officers initial stop of appellant's vehicle as a part of
a license check.” Texas v. Brown, 460 US 730 - Supreme Court 1983. (emphasis added). “It is
likewise beyond dispute that shining [a] flashlight to illuminate the interior of [a] car trenched
upon no right secured to the latter by the Fourth Amendment.” Id. “Likewise, the fact that [an
officer] ‘changed [his] position’ and ‘bent down at an angle so [he] could see what w'as inside’ is
irrelevant to Fourth Amendment analysis.” Id. (quoting the record).
Virginia Supreme Court and Virginia Court of Appeals license-checkpoint case-law is
consistent with Prouse, stopping just short of requiring drivers to produce their driver’s licenses
upon police command. “The statutory right of a law enforcement officer to stop a motor vehicle
and the obligation of a motor vehicle operator to submit to such a stop for a license or
registration inspection are circumscribed by the decision of the United States Supreme Court in
Delaware v. Prouse, 440 U.S. 648, 99 S.Q. 1391, 59 L.Ed.2d 660 (1979).” Sheppard v. Com.,
489 SE 2d 714 - Va: Court of Appeals 1997 (emphasis added). See also Wright v. Com., 663 SE
2d 108 - Va: Court of Appeals 2008 (“As a preliminary matter, checkpoints with the primary
objective of enforcing safety requirements are constitutional. Prouse, 440 U.S. at 658,99 S.Ct. at
1398 (finding a checkpoint for examining motorists' license and registration was valid due to
States' vital interest in highway safety) [emphasis added]; Palmer v. Commonwealth, 36 Va.App.
5
47
169, 172, 549 S.E.Zd 29, 30 (2001) (holding the puipose of a checkpoint was valid when officers
stopped vehicles to look for "any violations on the vehicles, such as drivers' license, equipment.
[or] inspection") [emphasis added].”
n.
No Probable Cause to Arrest for Obstruction
Whether or not I.D. and license checkpoints are unconstitutional, failure to provide an
I D. or a driver’s license to law-enforcement is never obstruction of justice in Virginia, and
rightfully so.
In Stout v. Harris, Dist. Court, ED Virginia 2021, the court ruled that “Harris airested
Stout for failing to identify and succeeded in having the magistrate charge him with obstruction
of justice. But failing to identify does not violate Virginia law, nor does it violate the obstruction
statute, Va. Code Ann. § 18.2-460(A). See Crimes and Offenses Generally: Climes Against the
Administration of Justice, Op. Va. Atty's Gen. 02-082 (Oct. 10, 2002). ‘[Obstruction of justice
does not occur when a person fails to cooperate fully with an officer or when the person's
conduct merely renders the officer's task more difficult.’ Ruckman v. Commonwealth, 28 Va.
App. 428, 429, 505 S.E.2d 388, 389 (1998). See, e g., Caiy v. Commonwealth, No. 2068-14-1,
2015 WL 6143660, at *3 n.l (Va. Ct. App. Oct. 20, 2015) (explaining that a defendant's failure
to identify "is not... punishable under1" § 18.2-460).”
In Stout v. Harris, Dist. Court, ED Virginia 2022, “[njeither Virginia law nor a
Spotsylvania County ordinance directly criminalizes a person's refusal to identify themselves to
police officers. Such laws, otherwise known as ‘stop and identify’ statutes, exist in other states.
‘The statutes vary from State to State, but all permit an officer to ask or require a suspect to
disclose his identity.’ Hiibel, 542 U.S. at 183. ...Virginia does not have a stop-and-identify
6
48
statute, and failing to identify does not violate Virginia's obstruction statute, Va. Code Ann. §
18.2-460(A).”
The Defendants contend that Thorne v. Commonwealth, 66 Va. App. 248 (2016), is
controlling. Thome is distinguishable from this case because the police in Thorne had reasonable
suspicion to command Thome to roll down her window because Thome’s vehicle windows were
suspected of being illegally tinted. The Defendants in this case did not suspect the Plaintiff of
engaging in any criminal activity. Illegal tints are prohibited by Virginia statute, refusing to
provide ID. or a driver’s license to law-enforcement is not prohibited by Virginia’s obstruction
of justice statute. Furthermore, Thome was charged with obstruction for not rolling her window
down, not for refusing to provide I D. or a driver’s license, and the Plaintiff was charged rvith
obstruction not for not rolling his window down, but for refusing to provide an I.D. or driver’s
license.
Not only is refusing to provide I.D. or a driver’s license to law-enforcement not
obstruction of justice, Va Code § 46.2-104 governs the Plaintiff’s conduct in question: “The
owner or operator of any motor vehicle, trailer, or semitrailer shall Stop on the signal of any
law-enforcement officer who is in uniform or shows his badge or other sign of authority and
shall, on the officer's request, exhibit his registration card, driver's license, learner's permit, or
temporary driver's permit and write his name in the presence of the officer, if so required, for die
purpose of establishing his identity.” Not only is the Plaintiff’s conduct in question governed by
Va Code § 46.2-104, Va Code § 46.2-104 is unconstitutional because the statute authorizes spot
checks. Spot checks are unconstitutional according to Prouse. And if it’s unconstitutional for
officers to conduct spot checks on one, it’s unconstitutional for officers to conduct spot checks
on everyone.
7
49
HL
No Probable Cause to Search and Seize Vehicle
The Defendants did not have probable cause to search and seize the Plaintiff’s vehicle
because the Defendants did not have probable cause to arrest the Plaintiff.
IV.
Malicious Prosecution
The Defendants maliciously prosecuted the Plaintiff The Defendants did not have
probable cause to arrest the Plaintiff
V. Qualified Immunity
“The fact that an exact right allegedly violated has not earlier been specifically
recognized by any court does not prevent a determination that it was nevertheless ‘clearly
established’ for qualified immunity puiposes. See Anderson, 483 U.S. at 640,107 S.Ct. at 3039.
‘Clearly established’ in this context includes not only already specifically adjudicated rights, but
those manifestly included within more general applications of the core constitutional principle
invoked.” Pritchett v. Alford, 973 F.2d 307 (4th Cir. 1992).
“Whether an official protected by qualified immunity may be held personally liable for an
allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the
action, Harlow, 457 U. S., at 819, assessed in light of the legal rules that were ‘clearly
established’ at the time it was taken, id., at 818.” Anderson v. Creighton, 483 U.S. 635 (1987).
“Our cases establish that the right the official is alleged to have violated musthave been ‘clearly
established’ in a more particularized, and hence more relevant, sense: The contours of the right
must be sufficiently clear that a reasonable official would understand that what he is doing
violates that right. This is not to say that an official action is protected by qualified immunity
unless the very action in question has previously been held unlawful, see Mitchell, supra, at 535,
8
50
n. 12; but it is to say that in the light of pre-existing law the unlawfulness must be apparent. See,
e. g., Malley, supra, at 344-345; Mitchell, supra, at 528; Davis, supra, at 191, 195.” Id.
“We reiterated in Owens v. Lott that ‘the qualified immunity ‘determination “is an
objective one, dependent not on the subjective beliefs of die particular officer at die scene, but
instead oil what a hypodietical, reasonable officer would have thought in diose circumstances.”’
372 F.3d 267, 279 (41h Cir.2004) (quoting Wilson v. Kittoe, 337 F.3d 392, 402 (4th Cir.2003)).”
Henry v. Purnell, 652 F.3d 524 (4tii Cir. 2011).
“A constitutional right is clearly established when ‘its contours [are] sufficiently clear
that a reasonable official would understand that what he is doing violates diat right.’ Hope, 536
U.S. at 739, 122 S.Ct. 2508 (internal quotation marks omitted). That is, “‘in the light of
pre-existing law the unlawfulness must be apparent,’” id. (quoting Anderson v. Creighton, 483
U.S. 635, 640, 107 S.Ct. 3034,97 L.Ed.2d 523 (1987)), but ‘the very action in question [need not
have] previously been held unlawful,’ id. (internal quotation marks omitted), because “‘general
statements of the law are not inherently incapable of giving fair and clear warning, and ... a
general constitutional rule already identified in the decisional law may apply widi obvious clarity
to the specific conduct in question,’” id. at 741, 122 S.Ct. 2508 (quoting United States v. Lanier,
520 U.S. 259, 270-71, 117 S.Q. 1219, 137 L.Ed.2d 432 (1997)). Thus, ‘officials can still be on
notice tiiat their conduct violates established law even in novel factual circumstances,’ Id. The
‘salient question’ is whether the state of the law at die time of die events in question gave die
officials ‘fair warning’ that their conduct was unconstitutional. Id.” Ridpath v. Board of
Governors Marshall University, 447 F.3d 292 (4tii Cir. 2006).
“hi the absence of controlling audiority tiiat specifically adjudicates the right in question,
a right may still be elearly established in one of two ways. A right may be clearly established if
9
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‘a general constitutional rule already identified in the decisional law [] applfies] with obvious
clarity to the specific conduct in question.’ Hope, 536 U.S. at 741, 122 S.Ct. 2508 (quoting
United States v. Lanier, 520 U S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)); see also
Owens, 372 F.3d at 279 (stating that a right may be clearly established if it is ‘manifestly
apparent from broader applications of the constitutional premise in question’). A right may also
be clearly established based on a ‘“consensus of cases of persuasive authority’” from other
jurisdictions.’ Owens, 372 F.3d at 280 (quoting Wilson, 526 U.S. at 617, 119 S.Ct. 1692).”
Booker v. South Carolina Dept, of Corrections, 855 F. 3d 533 - Court of Appeals, 4di Circuit
2017.
“To determine whether the individual defendants here are entitled to qualified immunity,
we must make a two-step inquiry ‘in proper sequence.’ Saucier v. Katz, 533 U.S. 194, 200,121
S.Ct. 2151, 150 L.Ed.2d 272 (2001). As a threshold matter, we must determine whether, ‘[tjaken
in the light most favorable to the party asserting the injury,... the facts alleged show [that] the
officer's conduct violated a constitutional right.’ Id. at 201, 121 S.Ct. 2151. If the facts, so
viewed, do not establish a violation of a constitutional right, die inquiry ends, and die plaintiff
cannot prevail. Id. If the facts do establish such a violation, die next step is to detennine whether
the right violated was ‘ clearly established’ at die time of the alleged offense.” Parrish ex rel Lee
v. Cleveland, 372 F.3d 294 (4th Cir. 2004).
“Before we apply these rules to die instant case, we must first define the right at the
‘appropriate level of specificity.’ Wilson, 526 U.S. at 615, 119 S.Ct. 1692.” Booker v. South
Carolina Dept, ofCoirections, 855 F.3d 533 (4th Cir. 2017).
VI. Municipal Liability
Municipal liability attaches because I.D. and license checkpoints are unconstitutional.
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VII.
Conclusion
The Plaintiff requests that this court deny the Defendant’s motion to dismiss and refer this
case to ADR.
Date
Robert Stout, Pro Se
Plaintiff
30 Willow Branch Place
Fredericksburg, VA 22405
(540) 370-6980
stoutstoutstoutproselitigation@grnail.com
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CERTIFICATE OF SERVICE
The Plaintiff certifies that on May 27, 2022, the Defendant emailed a copy of this
document to defense counsel at:
John P. O’Herron (VSB No. 79357)
ThoinpsonMcMullan, PC.
100 Shockoe Slip
Richmond, VA 23219
Phone: (804) 698-6253
Fax: (804) 780-1813
wtunner@t-mlaw.com
johenon@t-mlaw.com
Counselfor Defendants Johnson, Nobles,
and Giles
Date
Robert Stout, Pro Se
Plaintiff'
30 Willow Branch Place
Fredericksburg, VA 22405
(540) 370-6980
stoutstoutstoutproselitigation@gmail.com
GHOSTWRITING CERTIFICATE
The Plaintiff certifies that he did not receive assistance from an attorney in the
preparation of this document.
Date
Robert Stout, Pro Se
Plaintiff
30 Willow Branch Place
Fredericksburg, VA 22405
(540) 370-6980
stoutstoutstoutproselitigation@gmail.com
-\
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.