Petition for Writ of Certiorari — Curtis Levar Wells, Jr., Petitioner v. Javier Fuentes, et al.

Supreme Court briefAug 13, 2025

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No. 25In the

Supreme Court of the United States

CURTIS LEVAR WELLS, JR.,

Petitioner,

JAVIER FUENTES, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Matthew A. Crist

Counsel of Record

Matthew A. Crist, PLLC

9200 Church Street, Suite 200

Manassas, VA 20110

(571) 551-6859

mcrist@macpllc.net

Counsel for Petitioner

383780

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

This case concerns a federal law enforcement officer’s

initial detention of a civilian with a post-hoc explanation

of a “welfare check” or “community caretaker” detention,

starting a baseless investigation that was continued

by other officers. Ultimately, a parking-lot search and

seizure resulted in property being taken under pretextual

“safekeeping” without reasonable suspicion, consent, or

warrant. Later, without reasonable suspicion, consent,

warrant, or exigent circumstances, the property was

further rummaged through to craft a known-false

narrative that the property may contain contraband.

Ultimately, a motion to suppress the evidence was

granted due to Fourth Amendment violations, the subject

charges were dismissed and later expunged. Mr. Wells’

claims under, inter alia, 42 U.S.C. § 1983 were dismissed

under Fed. R. Civ. P. 12(b)(6), with disputes being resolved

in the movant’s favor, and the Fourth Circuit has affirmed

dismissal.

The questions presented in this matter are:

In the absence of any objective indicia of consent,

and when the Fourth Circuit considers a small

subset of facts in violation of Robinette and

Bostick, what words or conduct permit officers

to infer, and for the Fourth Circuit to affirm,

consent to searches and seizures that would

otherwise violate the Fourth Amendment?

W hat const itut es u n rea sonable conduct ,

“pretextual rummaging,” and disobedience with

this Court’s holdings in Bertine and Opperman

when seven police officers remove and handcuff

a driver in a parking lot, investigate, and cite

the driver for mere infractions, and take some,

but not all, property from the vehicle, without

an inventory, not related to such infractions

as “safekeeping” w ithout consent, exigent

circumstances, and without warrants?

When may police later, in the calm of the

police department, convert safekept property

to evidence without warrant, without exigent

circumstances, without reasonable suspicion, and

without consent?

Did the Fourth Circuit dangerously expand the

“community caretaker exception” to the Fourth

Amendment to permit officers to investigate

criminal activity based upon perceived furtive

gestures in violation of this Court’s holding in

Caniglia v. Strom?

In light of this Court’s 2008 holding in Heller

and 2010 holding in McDonald, and the Second

A mendment itself, did the Fourth Circuit

correctly hold that in 2020, the individual right

to keep and openly bear arms in public was not

a clearly established right?

iii

PARTIES

Petitioner is Curtis Levar Wells, Jr.

Respondents are Javier Fuentes, Scott Wanek,

Michael P. Armstrong, Lauren Lugasi, Kimberly Soules,

Austin Kline, John Vanak, Keith Shepherd, United States

of America.

Former Appellees Barnickle and County of Arlington

were dismissed by stipulation dated December 8, 2023.

LIST OF ALL PROCEEDINGS

Wells v. Fuentes, et al., No. 1:22-cv-00140 U. S.

District Court for the Eastern District of Virginia.

Judgment entered Jun. 2, 2023.

Wells v. Fuentes, et al., No. 23-1638, U. S. Court of

Appeals for the Fourth Circuit. Judgement entered Jan.

22, 2025.

Wells v. Fuentes, et al., No. 23-1638, U. S. Court of

Appeals for the Fourth Circuit. En Banc denied entered

Mar. 21, 2025.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

LIST OF ALL PROCEEDINGS . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vii

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONST I T U T IONA L A N D STAT U T ORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3

February 9, 2020, initial seizure of Mr. Wells

outside Arlington Cemetery . . . . . . . . . . . . . . . . . 3

II. ACPD Officers’ unreasonable searches

and seizures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

III. Evidence suppressed, charges dismissed

and expunged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Table of Contents

Page

REASONS FOR GRANTING THE PETITION . . . . . 8

The Fourth Circuit’s dangerous view of

consent contradicts this Court’s Fourth

Amendment Jurisprudence . . . . . . . . . . . . . . . . 10

II. The Fourth Circuit’s Opinion violates the

narrow ‘Inventory Search Exception’ . . . . . . . . 13

III. Lat er conversion of proper ty f rom

“Safekeeping” to “Evidence” independently

violated the Fourth Amendment . . . . . . . . . . . . 16

IV. An attended vehicle is constitutionally

more similar to searching a home than to

an abandoned car . . . . . . . . . . . . . . . . . . . . . . . . . 17

A. Cady v. Dombrowski . . . . . . . . . . . . . . . . . . 17

B. This Cour t fur ther nar rows the

exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

The Fourth Circuit Acknowledges a

Circuit Split . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

VI. Second Amendment Injury . . . . . . . . . . . . . . . . 20

VII. This action is substantially similar to

Hicks v. Ferreyra . . . . . . . . . . . . . . . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT, FILED

JANUARY 22, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION

AND ORDER OF THE UNITED STATES

DISTRICT FOR THE EASTERN DISTRICT

OF VIRGINIA, ALEXANDRIA DIVISION,

FILED MAY 31, 2023 . . . . . . . . . . . . . . . . . . . . . . . . 33a

APPENDIX C — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT, FILED MARCH 21, 2025 . . . 78a

vii

TABLE OF CITED AUTHORITIES

Page

CASES

Arizona v. Hicks,

480 U.S. 321 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Cady v. Dombrowski,

413 U.S. 433 (1973) . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Caniglia v. Strom,

593 U.S. 194 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . 18-19

Colorado v. Bertine,

479 U.S. 367 (1987) . . . . . . . . . . . . . . . . . . . . . . 9, 13, 14

Cromartie v. Billings,

298 Va. 284, 837 S.E.2d 247 (2020) . . . . . . . . . . . . . . 18

District of Columbia v. Heller,

554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Ferreyra v. Hicks,

144 S. Ct. 555, 2024 U.S. LEXIS 218

(U.S., Jan. 8, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Florida v. Bostick,

501 U.S. 429 (1991) . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Hicks v. Ferreyra,

64 F.4th 156 (4th Cir. 2023) . . . . . . . . . . . . . . . . . 21-22

McDonald v. City of Chi.,

561 U.S. 742 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

N.Y. State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

viii

Cited Authorities

Page

O’Rourke v. Hayes,

378 F.3d 1201 (11th Cir. 2004) . . . . . . . . . . . . . . . 19, 20

Ohio v. Robinette,

519 U.S. 33 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13

Schneckloth v. Bustamonte,

412 U.S. 218, 93 S. Ct. 2041 (1973) . . . . . . . . 11, 12, 13

South Dakota v. Opperman,

428 U.S. 364 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 14

United States v. Banks,

482 F.3d 733 (4th Cir. 2007) . . . . . . . . . . . . . . . . . . . . 13

United States v. Elliott,

107 F.3d 810 (10th Cir. 1997) . . . . . . . . . . . . . . . . . . . 11

Wells v. Fuentes,

126 F.4th 882 (4th Cir. 2025) . . . . . . . . . . . 8, 13, 20, 21

STATUTES AND OTHER AUTHORITIES

U.S. Const., Amend. II . . . . . . . . . . . . . . . . . . . . . 2, 20, 21

U.S. Const., Amend. IV . . . . . . . . . . 2, 4, 6, 7, 9, 10, 11, 13,

16, 17, 18, 20, 21, 22

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . 8, 9, 11, 14

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully seeks a writ of certiorari to

review the judgment of the United States Court of Appeals

for the Fourth Circuit.

OPINIONS BELOW

The Fourth Circuit’s opinion below (Pet. App. A) is

published at Wells v. Fuentes, 126 F.4th 882, 894 (4th Cir.

2025). The opinion denying rehearing en banc (Pet. App.

C) is published at Wells v. Fuentes, No. 23-1638, 2025

U.S. App. LEXIS 6697, at *2 (4th Cir. Mar. 21, 2025). The

United States District Court for the Eastern District of

Virginia’s opinion dismissing the case (Pet. App. B) is

published at Wells v. Fuentes, No. 1:22-cv-00140 (MSN/

IDD), 2023 U.S. Dist. LEXIS 96692, at *1 (E.D. Va. May

31, 2023).

JURISDICTION

The District Court dismissed this case by order dated

June 2, 2023. The Fourth Circuit affirmed such dismissal

on January 22, 2025, and rehearing en banc was denied

on March 21, 2025. The Chief Justice granted Petitioner’s

application to extend the time to file the instant Petition

to August 18, 2025. This Court has jurisdiction under 28

U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment II:

A well regulated militia, being necessary to the

security of a free state, the right of the people

to keep and bear arms, shall not be infringed.

United States Constitution, Amendment IV:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but

upon probable cause, supported by oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

42 U.S.C. § 1983, in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress [].

STATEMENT OF THE CASE

February 9, 2020, initial seizure of Mr. Wells outside

Arlington Cemetery.

Mr. Wells picked up a strawberry-banana smoothie

from a nearby shop and was heading to his apartment

in Alexandria when he received a phone call. He stopped

to take the call in a small parking lot near Arlington

Cemetery in the afternoon of February 9, 2020. There

were no calls to police to report any suspicious person, no

report of any criminal conduct, and Mr. Wells was alone

in his vehicle. Also, Mr. Wells’ vehicle was not impeding

traffic, nor was his car “on the side of the road,” as wrongly

observed by the Fourth Circuit’s Opinion. There was no

commotion, furtive gestures, or any indicia of any problem

– but Officer Armstrong saw an African American man

sitting alone in a nice car and began investigating, later

to make the false claim he was acting as a caretaker.

Officer Armstrong was a civilian DOD military police

officer tasked to patrol inside Arlington Cemetery –

Armstrong left his post, traveled several minutes to exit,

and, outside of the Cemetery, pulled his patrol car behind

Mr. Wells, blocking his vehicle from leaving. Armstrong

detained Mr. Wells, made no call for medical assistance,

approached Mr. Wells, asked him, “does this car belong

to you?” – indicating that Armstrong was investigating.

Further, he made it clear to Mr. Wells that he was not

permitted to leave.

Without making any report of a medical concern, he

reported a suspicious person to Arlington County police.

The ACPD dispatched at least five police officers, and no

medical personnel. Later, in Armstrong’s testimony in the

criminal action, and in his pleadings at all stages in this

case, Armstrong has repeatedly lied that this was a brief

1-minute encounter welfare or caretaking check, and that

he immediately removed himself; however, Armstrong

can be heard on an audio recording approximately 35

minutes later asking Mr. Wells where he detached from,

removing Mr. Wells’ property from his vehicle, and posing

further questions about his military service.1 Further

contradicting Armstrong, Fuentes testified that when he

arrived, Armstrong’s vehicle continued to block Mr. Wells’

vehicle from leaving – Mr. Wells was unreasonably seized

by Armstrong.

II. ACPD Officers’ unreasonable searches and seizures.

A fter A r mstrong initiated the detention and

investigation, the ACPD officers, initially Fuentes,

approached Mr. Wells and continued the investigation

without warrants, without reasonable suspicion, and

without consent. Notably, when Fuentes first approached,

Mr. Wells explicitly declined to permit any searches

and explicitly stated he does not consent. Despite such

statements, Fuentes and the other ACPD officers

proceeded to violate the Fourth Amendment.

The officers removed lawfully-owned property

from Mr. Wells’ vehicle, and the officers were recorded

indicating their intent to investigate, as opposed to

1. The audio recording was filed in Fourth Circuit and partially

considered by it; the instant reference is to the timestamp 4:43:30

p.m. wherein Armstrong can be heard investigating Mr. Wells –

upon information and belief, Armstrong was unaware he was being

recorded by another an Arlington County officer.

conducting a good-faith inventory – irrespective of

whether the vehicle had to be towed, a mere red herring,

the officers attempted to utilize the inventory as a

pretextual rummaging without any consideration of their

policy. The Fourth Circuit and District Court Opinions

found the officers substantially complied with policy –

however, there has been no evidentiary record of such

policies allegedly complied with, how they complied, or

what form of an inventory was conducted.

The officers can be heard on the audio recording

indicating they are leaving significantly expensive items in

the vehicle, such as Mr. Wells’ laptop, there was no written

inventory done, and Mr. Wells was not presented with, nor

signed, the department form, first provided to Mr. Wells

during this case on November 22, 2022, after it was not

provided during a pre-filing FOIA request. Furthermore,

the option was given, and Mr. Wells agreed, that all items

be locked in the trunk, and towed to Mr. Wells’ home –

but, because the police suspected and were investigating

their suspicions of criminal activity, and acting in bad

faith, they took as “safekeeping” some, but not all, of Mr.

Wells’ property, and investigated it further – they failed to

conduct even a cursory inventory and failed to comply with

nearly any departmental policy on inventory searches.

Ultimately, on February 9, 2020, Mr. Wells rode with

the tow-truck driver to his home – he was not arrested

and his car was not impounded. On that day, he received

two infraction citations because his temporary tag was

expired and he could not find his license while he was

handcuffed sitting on a curb, though he was a licensed

driver in Virginia.

Back at the police department, the next day, Mr. Wells’

personal property was investigated by Appellee Wanek,

without a warrant, without reasonable suspicion, and

without consent – as was learned from a FOIA production,

Appellee Wanek crossed out “safekeeping” from the form

and wrote in “evidence.” 2 The first warrants were later

sought to arrest Mr. Wells and to search his apartment.

There were no exigent circumstances to search the

property taken as “safekeeping.”

III. Evidence suppressed, charges dismissed and

expunged.

Mr. Wells’ civil rights injuries continued to mount after

the February 9, 2020, encounter; warrants were sought

and issued without probable cause, upon knowingly-false

or misleading information, Mr. Wells was later arrested,

incarcerated from February 18, 2020, through September

7, 2020, largely in solitary confinement because of COVID,

and then released when all felony charges were dismissed

after evidence was suppressed due to Fourth Amendment

violations; the charges were later expunged.

Mr. Wells initiated this action to obtain justice from

this unjust series of events infringing upon his Fourth

Amendment rights, because, it seems, he was a firearm

owner. Based upon the conclusory paragraph of the Fourth

Circuit’s Opinion, it appears that if Mr. Wells were not

a firearm owner, he would not have been treated as a

presumptive criminal. The “arsenal” the Fourth Circuit

found Mr. Wells possessed on February 9, 2020, comprised

2. The Property Retrieval Process form was submitted in the

Joint Appendix to the Fourth Circuit. JA69-70.

of two exceptionally common firearms, appropriate

ammunition for a range day, toys, rubber knives, plastic

Halloween masks, and miscellaneous tools – living in

an apartment without a garage had caused his trunk to

become cluttered.

On February 9, 2020, Mr. Wells was nothing short of

a model for the civilian side of a police-civilian encounter.

He was cordial, to a fault, cooperative, and calm – because

he had nothing to hide. Unfortunately, the parable of, ‘if

you’re guilty, you need a lawyer – if you’re innocent, you

really need a lawyer’ proved painfully true, and Mr. Wells

was met with irrational police who concluded everything he

possessed was stolen, that he was a “fucking bullshitter,”

and while he was handcuffed sitting on a curb a fair remove

from his vehicle, the contents of his vehicle were removed

and investigated – absent any reasonable suspicion, absent

consent, and absent any exigent circumstance.

Also, the officers documented in their reports and

utilized later as part of their objectively unreasonable

probable cause affidavits that Mr. Wells was in possession

of a “handwritten list of chemical compounds that have

potential to make the human body bulletproof or even

invincible.” Such irrational fantasy was created, whole

cloth, by the police – Mr. Wells had no such thing.

The import of such irrational conduct of the officers

on February 9, 2020, and thereafter, is that the Fourth

Circuit’s Opinion, affirming the Eastern District

of Virginia’s Opinion dismissing the case, is now a

published Opinion in contradiction to this Court’s sound

jurisprudence on the Fourth Amendment – it also contains

numerous intra-circuit and inter-circuit contradictions,

and contradicts the Virginia Supreme Court’s similar

jurisprudence.

REASONS FOR GRANTING THE PETITION

Mr. Wells’ case is of national importance and requires

this Court’s supervision because the Fourth Circuit has

flouted this Court’s jurisprudence, the requirements of

Virginia Supreme Court’s precedents, as well as other

circuit court decisions as to several extremely important

doctrines that govern civilian-police interactions.

Furthermore, the Fourth Circuit’s Opinion at issue in

this Petition resolved factual disputes in the light most

favorable to the moving party in considering Fed. R. Civ.

P. 12(b)(6) motions to dismiss. Notably, the lower court’s

opening paragraph includes contested facts that were

concluded against Mr. Wells’ pleadings, and in favor of

the moving parties on Fed. R. Civ. P. 12(b)(6) motions, or

created ex nihilo for the first time by the Fourth Circuit:

Curtis Wells parked somewhere he shouldn’t

have. He stopped beside a road running

between Arlington Cemetery and the Pentagon,

then gestured wildly while he took a phone call.

Police understandably checked on him. When

they did, they realized Wells had neither license

nor registration and wrote him a ticket. Without

a registration, Wells couldn’t stay parked on

the roadside. And without a license, he couldn’t

drive home either. So the police had to tow his

car.

Wells v. Fuentes, 126 F.4th 882, 885 (4th Cir. 2025). At

no time and in no place is there any evidence that Mr.

Wells parked somewhere “he shouldn’t have” – as can be

seen from the photographs of that day, there were no, “no

parking” signs. On the contrary, Armstrong was where

he shouldn’t have been – he left his post within Arlington

Cemetery to harass Mr. Wells.

Further, Mr. Wells did not stop beside a road, he was

stopped in a parking lot, again, photographs produced

pursuant to FOIA demonstrate this fact without question.

Mr. Armstrong states in his heavily discredited testimony

during the criminal matter that he observed gestures, this

is disputed matter, Mr. Wells says he did not make such

gestures – on a 12(b)(6) motion, this fact must be concluded

to Mr. Wells’ favor and, thus, discounted. Mr. Wells had

both a registered vehicle and a Virginia license – the paper

temporary tag on his vehicle had recently expired, but

the vehicle was registered, and Mr. Wells was a licensed

driver in Virginia, but he was handcuffed sitting on a curb

and could not produce it to the officers – during the audio

recording, his Texas license was found, and later, as he was

parting from the officers, his Virginia license was found.

The lower courts made findings of fact absent any

support or pleading, and, by doing so, effectively extended

the aegis of qualified immunity to, as but one example,

officers utilizing the so-called “caretaking exception”

to swallow whole the Fourth Amendment, permitting

an officer to detain and investigate and later justify the

conduct as caretaking – and then later lie under oath and

in his pleadings about his conduct.

The Fourth Circuit’s Opinion proceeds to ignore

this Court’s holdings in Opperman and Bertine, and

their progeny, to permit the officers to excuse their

searches and seizures of Mr. Wells and his property

because they had to tow Mr. Wells’ vehicle. However, the

officers failed to perform even the basic tasks expected

of inventory-search policies, made comments, that were

audio recorded, indicating they were investigating Mr.

Wells of crimes, and immediately converted the property

taken as “safekeeping” to “evidence” and proceeded to

rummage through it on the pretext of an inventory search.

Flouting the Fourth Amendment, the officers suspected

everything Mr. Wells said indicated criminal conduct,

failed to comport with department policy on inventory

searches, and utilized an inventory search as a pretextual

rummaging to investigate.

The Fourth Circuit’s dangerous view of consent

contradicts this Court’s Fourth Amendment

Jurisprudence.

In its January 22, 2025, Opinion, the Fourth Circuit

found consent based upon Mr. Wells’ words and conduct

that cannot be reasonably interpreted to imply consent.

Failing to consider all of the circumstances, a mandatory

feature of this Court’s jurisprudence, the Fourth Circuit

set a dangerous precedent on consent that must be

overturned by this Court. In considering a property

retrieval form3 and only two words spoken by Mr. Wells

during the approximately one-hour and sixteen minute

recording,4 and ignoring the well-plead facts that were

not recorded to include the pleading that Mr. Wells

never consented, the Fourth Circuit concluded that Mr.

3. Produced to the Fourth Circuit in the Joint Appendix.

JA69-70.

4. Produced to the Fourth Circuit as a Digital Media Volume.

Wells consented to the searches and seizures – but did

not consider all of the circumstances, did not consider

whether such consent, to the extent it existed, was coerced

(as Mr. Wells was surrounded by seven armed officers,

handcuffed, sitting on a curb) and did not consider the

numerous other statements by Mr. Wells vitiating any

possibility of a finding of consent.

Notably, the fact that Mr. Wells informed Fuentes

he did not consent to the searches should be sufficient

to permit the case to go to a jury, and not decided on

contested facts by Fed. R. Civ. P. 12(b)(6) motion. And,

most importantly, the conversations and property

retrieval form that the Fourth Circuit utilized to find

consent occurred as much as one hour after the searches

and seizures began, as can be heard in the audio recording

and as the evidence will show.

The Fourth Circuit’s finding of consent disobeys this

Court’s holdings in both Robinette5 and Schneckloth v.

Bustamonte,6 and splits with, inter alia, the 10th Circuit

in Elliott as to when consent may be found.7 Notably, in

Robinette, this Court’s guidance required that the Fourth

Circuit turn to and consider the fact that each time Wells

was asked about what to do, he vitiated a finding of consent

by saying, inter alia, “I can’t just like … get an Uber with

5. Ohio v. Robinette, 519 U.S. 33, 40 (1996) (“The Fourth

Amendment test for a valid consent to search is that the consent be

voluntary, and voluntariness is a question of fact to be determined

from all the circumstances.”)

6. Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S. Ct.

2041, 2048 (1973).

7. United States v. Elliott, 107 F.3d 810, 814 (10th Cir. 1997).

that?” “Can I, like, buy you dinner? Is there anything I can

do to not get towed?” “I would be for leaving everything in

the trunk.”8 Only after the officers were frustrated at the

fact that Wells was not consenting, but remained cordial

and cooperative, did the officers simply ignore him, take

some of his property, and investigate it.

Additionally, the Fourth Circuit’s Opinion disobeyed

the requirements of Bostick, because the Fourth Circuit

focused too narrowly on a single or too few facts instead

of considering all of the circumstances. Florida v.

Bostick, 501 U.S. 429, 438, (1991). Similarly, the lower

court disobeyed this Court’s holding in Schneckloth v.

Bustamonte, 412 U.S. 218, 227 (1973) (“[I]t is only by

analyzing all the circumstances of an individual consent

that it can be ascertained whether in fact it was voluntary

or coerced.”)

The Fourth Circuit was bound to consider all of

the circumstances, to include the facts that Mr. Wells’

conversations with the officers indicated he did not

consent, and the officers’ private conversations, also

recorded, indicated their intent to investigate the property

for criminal activity, vitiate consent, and belie the officers’

later-crafted excuses for their inexcusable conduct. The

Fourth Circuit’s Opinion is dangerous in finding that

merely following along with a conversation, approximately

an hour after the search and seizures began, and Mr.

Wells signing a form that does not mention consent,9 at all,

can somehow be the narrow and few facts focused upon

8. February 9, 2020, Audio Recording at 4:39:30-4:39:50 p.m.,

4:48 p.m., 4:48:50 p.m.

9. JA69.

in violation of the Bostick, Robinette, and Bustamonte,

requirements to consider all the circumstances.

II. The Fourth Circuit’s Opinion violates the narrow

‘Inventory Search Exception.’

The Fourth Circuit’s Opinion contradicts its own

holding as well as this Court’s jurisprudence: “[O]fficers’

searches must ‘generally’ accord with such ‘standard

procedures.’ [R]easonable police regulations relating

to inventory procedures administered in good faith

satisfy the Fourth Amendment.’ Searches that satisfy

these two requirements clear the [Fourth] Amendment’s

reasonableness hurdle.” Wells v. Fuentes, 126 F.4th 882,

894 (4th Cir. 2025) (citing United States v. Banks, 482 F.3d

733, 739 (4th Cir. 2007) and Colorado v. Bertine, 479 U.S.

367, 374 (1987)). However, the Fourth Circuit indicated

that because Mr. Wells possessed “dangerous gear” it

rebuffed Mr. Wells’ complaints of Second and Fourth

Amendment injury because the officers are not under

the requirement to search every “tiny compartment and

seizing every item would go far further than required to

achieve that end and would intrude on motorists’ privacy

more than necessary.” Wells v. Fuentes, 126 F.4th 882,

894 (4th Cir. 2025).

Mr. Wells’ case, however, demonstrates that the

Fourth Circuit should have made the opposite conclusion,

when considering its premises. From the audio recording

and photographs taken by police on February 9, 2020,

the officers indeed did search ‘every tiny compartment,’

and seized meaningless items that could only serve to

investigate or invade Mr. Wells’ privacy. For example, the

officers searched and seized business cards, a notebook

with a proverb written on the cover, rubber training

knives, and toys – while leaving behind a valuable laptop,

other computer hardware, and one of two soft body armors

used by Mr. Wells for exercise and games of airsoft.

T he Fou r t h Ci rc u it rev iewed t he se fa c t u a l

circumstances and failed to comport with this Court’s

requirements in Opperman and Bertine – the inventory

search must be conducted according to department policy,

in good faith, and not for investigative purposes. South

Dakota v. Opperman, 428 U.S. 364, (1976); Colorado v.

Bertine, 479 U.S. 367, 372 (1987). Opinions finding the

exception should apply, notably, both Opperman and

Bertine, contain a distinguishing feature absent in Mr.

Wells’ case: impounded or abandoned vehicles.

The Vermillion police were indisputably engaged

in a caretaking search of a lawfully impounded

automobile. The inventory was conducted only

after the car had been impounded for multiple

parking violations. The owner, having left his

car illegally parked for an extended period,

and thus subject to impoundment, was not

present to make other arrangements for the

safekeeping of his belongings. The inventory

itself was prompted by the presence in plain

view of a number of valuables inside the car. As

in Cady, there is no suggestion whatever that

this standard procedure, essentially like that

followed throughout the country, was a pretext

concealing an investigatory police motive.

South Dakota v. Opperman, 428 U.S. 364, 375-76 (1976).

In contrast, the ACPD officers failed to comport with

their policies, were not impounding Mr. Wells’ vehicle,

did not take all valuables which were in plain view, and

Mr. Wells was present to make other arrangements for

his property – and, for the valuable property the police

left behind, he did – notably, the vehicle was towed to his

home with a locked trunk and he rode in the tow-truck,

with the driver.

Finally, while there was no evidence adduced as to

what the department policy held regarding when officers

may perform a warrantless search or seizure of a vehicle,

not impeding traffic, in an out-of-the-way parking lot, the

Fourth Circuit, as well as the District Court, determined

the officers substantially complied with it. Should this

matter be permitted to proceed, evidence will show the

policy would not have permitted the officers to search or

seize as they did on February 9, 2020, that is, they were

obligated to obtain a warrant or contact the Office of the

Commonwealth’s Attorney, and secure the property in

the vehicle, because Mr. Wells was not taken to a hospital

or arrested – the vehicle being towed to Mr. Wells’ home

means it was not in police custody and, therefore, the items

could not be searched or seized.

Because the officers have repeatedly argued they

were conducting an inventory search continued on the

back of a community caretaker intervention, and taking

property in good faith for safekeeping, then they could

not have been involved, in any way, in investigating Mr.

Wells for criminal conduct. Despite that, the Fourth

Circuit reviewed the audio recording and ignored

the conversations in which the officers were clearly

investigating Mr. Wells for suspected criminal conduct,

ignored the fact that Armstrong reported Mr. Wells as

a “suspicious person,” and the ACPD dispatched at least

five officers, but no medical personnel. The later-crafted

stories of community caretaking and inventory search

exceptions should be narrowly defined exceptions to the

default rule that this conduct was per se unreasonable and

violated the Fourth Amendment – the officers’ reliance

upon post-hoc generated stories and justifications must be

disregarded for the purposes of the Fed. R. Civ. P. 12(b)

(6) motions to dismiss.

III. Later conversion of property from “Safekeeping”

to “Evidence” independently violated the Fourth

Amendment.

Detective Wanek, on or about February 10, 2020,

converted the property taken as safekeeping, struck out

that term on the property retrieval form, and wrote in

“evidence.” JA69-70. The Fourth Circuit disregarded this

Court’s jurisprudence and requirements when evaluating

whether police may later investigate property – the Fourth

Circuit, indeed, considered no case law on this topic.

Notably, this Court’s opinion in Arizona v. Hicks

requires that property otherwise validly observed in plain

view during a permitted investigation of other matters,

namely, a shooting in an apartment, was a seizure and

search in violation of the Fourth Amendment. Arizona

v. Hicks, 480 U.S. 321, 323 (1987). Wanek had no exigent

circumstances, reasonable suspicion, nor consent to search

the property – even if one assumes the property was

consensually taken as safekept property on February 9,

2020. If there were probable cause of a crime, he must

first obtain a warrant to search it. Flipping the Fourth

Amendment on its head, Wanek searched the property,

took extensive notes, produced pursuant to FOIA,

made phone calls to people who knew Mr. Wells, opened

containers, examined the serial number on the rifle

plate and firearms, and contacted Detective Shepherd to

fabricate more evidence, and then used the fruits of that

search to obtain an arrest warrant and search warrant

of Mr. Wells’ home.

Such conduct by Wanek constituted an independent

Fourth Amendment violation that resulted in subsequent

civil rights, and other, injuries detailed in Mr. Wells’

pleadings.

IV. An attended vehicle is constitutionally more similar

to searching a home than to an abandoned car.

Cady v. Dombrowski

In Cady v. Dombrowski, this Court established a

constitutionally significant distinction between the search

of a home and the search of a vehicle. 413 U.S. 433, 439,

443 (1973). In Cady, the vehicle searched and seized was

involved in an accident, that was a hazard on the highway,

and its drunk driver was taken to a hospital, with blood and

a suspected weapon inside the vehicle. Id. Thus, this Court

concluded such search was not unreasonable because the

abandoned vehicle was a nuisance to motorists, and the

trunk was suspected to contain a gun and was subject to

being robbed by vandals. Id. at 448.

Demonstrating the close nature of this dispute,

Justices Brennan, Douglas, Stewart, and Marshall

dissented and would hold the search of the vehicle

unconstitutional, even with such facts. Id. at 450.

In contrast to the facts that guided the majority

holding in Cady, in this case, Mr. Wells was present, not

arrested, not taken to a hospital, was not suspected of

any crime, other than two minor infractions, and asked

for his property to be locked in his trunk and towed to his

home, as once offered by an officer as can be heard on the

February 9, 2020, audio recording. Mr. Wells’ case, with

the driver and owner present and not arrested, presents a

constitutionally significant distinction from an abandoned

or nuisance car; that is, Mr. Wells’ case is closer to the

search of a home for the purposes of a Fourth Amendment

examination.

Also, the Virginia Supreme Court in in Cromartie

mirrors this Court’s holding that all searches without a

warrant are, by default, unreasonable – unless the officers

comport with their duties and policies in good faith.

Cromartie v. Billings, 298 Va. 284, 307, 837 S.E.2d 247,

260 (2020) (“Warrantless searches, of course, are per se

unreasonable, subject to a few well-defined exceptions”).

Similar to Cromartie, the ACPD officers conducted an

investigation into suspected crimes that had no connection

to the two cited infractions, and thus violated, inter alia,

Mr. Wells’ right to be free from unreasonable search and

seizure. The Fourth Circuit’s Opinion flips the few, narrow,

and well-defend exceptions to fuzzy, Fourth-Amendmentswallowing leviathans.

B. This Court further narrows the exception.

Recognizing that the Cady Court’s opinion does not

permit an expansive “community caretaker” exception to

the Fourth Amendment, this Court recently refused to

expand that exception. Caniglia v. Strom, 593 U.S. 194, 199

(2021) (“But, this recognition that police officers perform

many civic tasks in modern society was just that—a

recognition that these tasks exist, and not an open-ended

license to perform them anywhere”). The community

caretaker concept is uniquely related to necessities such as

removing disabled or nuisance vehicles, and not, as in the

instant case, to an occupied vehicle not in a lane of travel,

with a driver who is not arrested, under investigation,

or hospitalized, who may make arrangements for his

property and vehicle.

V. The Fourth Circuit Acknowledges a Circuit Split.

As acknowledged by the Fourth Circuit’s Opinion,

the Fourth Circuit does not have a so-called “antipiggybacking rule” however, it has been adopted in

numerous other circuits, that officers must each make

their own reasonable apprehension of the circumstances

before they commit their own violation of the Constitution.

As observed in Hayes, the unconstitutional acts of other

officers do not relieve subsequent officers’ “responsibility

to decide for himself whether to violate clearly established

constitutional rights by intruding into the office without

a warrant or exigent circumstances.” O’Rourke v. Hayes,

378 F.3d 1201, 1210 (11th Cir. 2004).

The Fourth Circuit Opinion concedes, or fails to

consider, that Armstrong had no basis to initiate contact

with Mr. Wells on February 9, 2020. However, it proceeds

to permit the ACPD officers to justify their seizure

based upon the investigation started by Armstrong –

if Armstrong’s interdiction was for welfare purposes,

it could not be an investigation to justify the ACPD’s

continuation.

In any event, the Fourth Circuit’s conclusion is in

direct contradiction to the 11th Circuit holding in Hayes,

that is, the Fourth Circuit concludes, “[w]e do not have

a clearly established anti-piggybacking rule.” Wells v.

Fuentes, 126 F.4th 882, 893 n.11 (4th Cir. 2025). This Court

should intervene to ensure uniformity and to guide law

enforcement officers as to whether they are required to

perform their own evaluation of searches and seizures.

The Appellees have demurred to this argument by

raising the prospect of officers coming upon emergency

situations, such as a gunfight or brawl. The Appellees

ponder a counterfactual wherein officers instructed not

to piggyback upon prior officers’ findings would then

be paralyzed with indecision in a crucial moment. Such

ponderings are inapplicable. Mr. Wells was cordial, calm,

cooperative, and responsive. Furthermore, as more

officers appeared on scene, he was handcuffed sitting on

a curb, a fair remove from his secured firearms. At some

point, some later-arrived officers should be expected to

question the legitimacy of the investigation. Mr. Wells

is not asking the Court to hold that when arriving at a

gunfight, an officer must ask for a timeout to analyze

whether the Fourth Amendment is being violated – when

officers arrive to a jovial, calm, and cooperative driver,

and there is no basis for the detention or seizure, those

officers must be held to make their own determination or

faced with the ‘if all the other officers were jumping off a

bridge, would you?’ inquiry. See O’Rourke v. Hayes, 378

F.3d 1201, 1210 (11th Cir. 2004).

VI. Second Amendment Injury.

The Fourth Circuit erroneously held that Mr. Wells

did not have a clearly established right to open carry

his firearms on February 9, 2020. Wells v. Fuentes, 126

F.4th 882, 896-897 (4th Cir. 2025) (“In 2020, existing

precedent had not established that the Second Amendment

protects a right to public carry”). However, the right to

keep and openly bear arms in public has been a clearly

established right since the ratification of the Second

Amendment. Additionally, this Court’s holding in Heller

and McDonald demonstrate such individual rights were

clearly established in the case law since at least 2008,

and far earlier. District of Columbia v. Heller, 554 U.S.

570, 629 (2008), McDonald v. City of Chi., 561 U.S. 742,

750 (2010). The observations in Bruen and its detailed

historical articulation of the fact that while some firearms

in some circumstances have been banned, open carrying

of firearms has almost never been prohibited, or, if

prohibited, not for long. N.Y. State Rifle & Pistol Ass’n v.

Bruen, 597 U.S. 1, 53 (2022).

VII. This action is substantially similar to Hicks v.

Ferreyra.

This Court should intervene to maintain uniformity

among recent matters within the Fourth Circuit. Under

facts relevantly similar to Mr. Wells’ case, Nathaniel

Hicks, then a United States Secret Service agent, filed

suit against two United States Park Police officers for,

what was characterized as, brief welfare checks. Hicks v.

Ferreyra, 64 F.4th 156 (4th Cir. 2023). Ultimately, after

some procedural meandering, a jury heard the case and

awarded damages of $205,000 in compensatory damages

and $525,000 in punitive damages. Id. In its Hicks II

opinion, the Fourth Circuit affirmed the jury award for

the plaintiff’s Fourth Amendment injury caused by the

“welfare check.” Hicks v. Ferreyra, 64 F.4th 156 (4th Cir.

2023). This Court denied the law enforcement officers’

petition. Ferreyra v. Hicks, 144 S. Ct. 555, 2024 U.S.

LEXIS 218 (U.S., Jan. 8, 2024).

The jury’s mandate speaks loudly: these types of

post-hoc, welfare check justifications violate the Fourth

Amendment and cannot be tolerated. Mr. Wells, similarly,

should be afforded his day in Court to present this case

and his injuries to a jury so that he, also, may obtain justice

for the civil rights violations he suffered.

CONCLUSION

For the foregoing reasons, and in the interests of

substantial justice, this Court should grant this Petition

and issue a writ of certiorari to the Fourth Circuit Court

of Appeals.

Respectfully submitted,

Matthew A. Crist

Counsel of Record

Matthew A. Crist, PLLC

9200 Church Street, Suite 200

Manassas, VA 20110

(571) 551-6859

mcrist@macpllc.net

Counsel for Petitioner

APPENDIX

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT, FILED

JANUARY 22, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION

AND ORDER OF THE UNITED STATES

DISTRICT FOR THE EASTERN DISTRICT

OF VIRGINIA, ALEXANDRIA DIVISION,

FILED MAY 31, 2023 . . . . . . . . . . . . . . . . . . . . . . . . 33a

APPENDIX C — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT, FILED MARCH 21, 2025 . . . 78a

Appendix

A UNITED STATES

APPENDIX A — OPINION

OF THE

COURT OF APPEALS FOR THE FOURTH CIRCUIT,

FILED JANUARY 22, 2025

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-1638

CURTIS LEVAR WELLS, JR.,

Plaintiff–Appellant,

JAVIER FUENTES, BADGE #1666;

SCOTT WANEK, BADGE #1137;

MICHAEL P. ARMSTRONG, BADGE #331;

LAUREN LUGASI, BADGE #1625; KIMBERLY

SOULES, BADGE #1630; AUSTIN KLINE,

BADGE #1720; JOHN VANAK, BADGE #1399;

KEITH SHEPHERD; JOHN DOES 1

THROUGH 10; UNITED STATES OF AMERICA,

Defendants–Appellees,

and

ASHLEY BARNICKLE, BADGE #1574;

COUNTY OF ARLINGTON,

Defendants.

Appendix A

Appeal from the United States District Court for the

Eastern District of Virginia, at Alexandria. Michael

Stefan Nachmanoff, District Judge. (1:22-cv-00140-MSNIDD)

Argued: September 26, 2024

Decided: January 22, 2025

Before THACKER, RICHARDSON, and BENJAMIN,

Circuit Judges.

Affirmed by published opinion. Judge Richardson wrote

the opinion, in which Judge Thacker and Judge Benjamin

joined.

RICHARDSON, Circuit Judge:

Curtis Wells parked somewhere he shouldn’t have.

He stopped beside a road running between Arlington

Cemetery and the Pentagon, then gestured wildly while

he took a phone call. Police understandably checked on

him. When they did, they realized Wells had neither

license nor registration and wrote him a ticket. Without

a registration, Wells couldn’t stay parked on the roadside.

And without a license, he couldn’t drive home either. So

the police had to tow his car.

Wells’s parking ticket became a criminal case when

officers found an assortment of weapons and tactical gear

in his car. Along with guns, face masks, and a grenade,

officers spotted a body armor plate carrier in the back

seat. The police sent Wells home that day and kept some

of his gear for safekeeping. But further investigation

Appendix A

suggested that the plate may have been stolen from

the Army. So, nine days later, police arrested Wells for

receiving stolen property.

Wells now challenges the officers’ actions. But the

Fourth Amendment proscribes only unreasonable police

actions. And when officers enjoy qualified immunity, their

actions must not only be unreasonable, but patently so.

Because everything Wells describes passes that test, and

because his other claims fall short, we affirm the dismissal

of all his claims.

Background

Officer Armstrong Approaches Wells by

Arlington Cemetery

Curtis Wells parked his Mustang outside Arlington

Cemetery in February 2020.1 There, he took a phone

1. Normally, on appeal of a Rule 12(b)(6) dismissal, we

consider only the facts alleged in the complaint. But Wells asks

us to consider exhibits that he attached to his complaint as well,

including police footage, and testimony and documents from the

records of criminal proceedings against him. Below and here,

the defendants agree that this is appropriate. With the parties

in agreement, we will treat Wells’s exhibits as adopted by the

complaint. See Blankenship v. Manchin, 471 F.3d 523, 526 n.1

(4th Cir. 2006); see also Balogh v. Virginia, 120 F.4th 127, 131 (4th

Cir. 2024); Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir.

2013); cf. Doriety for Est. of Crenshaw v. Sletten, 109 F.4th 670,

679–80 (4th Cir. 2024).

Appendix A

call and drank a strawberry-banana smoothie. Michael

Armstrong—a police officer assigned to the cemetery—

noticed Wells’s gestures while he was on the phone. 2 From

Armstrong’s point of view, Wells was making “animated,”

“flamboyant motion[s],” and Armstrong worried that the

“commotion” might mean trouble. J.A. 89–90, 92. Perhaps

“a medical emergency.” J.A. 91. Or perhaps “somebody

was just upset that their car had broken down.” J.A. 91.

Either way, “[b]eing close to a military installation,” he

drove up to check on Wells. J.A. 91. When he reached

Wells, Armstrong parked behind the Mustang. And as he

did, he noticed that Wells’s car bore an expired temporary

registration. So he summoned Arlington County police

and chatted with Wells while he waited for them to arrive.

B. Arlington Police Arrive, Detain Wells, and

Search His Mustang

When the local law-enforcement officers turned

up, one of them, Officer Javier Fuentes, learned from

Armstrong that Wells’s registration had expired. Fuentes

also discovered that Wells wasn’t carrying a driver’s

license. And when he asked Wells whether he had any guns

in the car, Wells replied that he had an AR-15 in the trunk

and a Glock in the center console. Finally, glancing into

the car, Fuentes saw a ballistic plate carrier—a type of

body armor—resting in plain view on the back seat. With

that, Fuentes cuffed Wells and sat him on the curb while

2. Arlington Cemetery lies between Fort Myer and the

Pentagon. Military police like Armstrong patrol the cemetery

and its surroundings under a joint agreement with Arlington

County police.

Appendix A

he sorted out what to do. Other local officers retrieved the

weapons and ran their serial numbers.

By this point, the officers faced a complex problem.

They already knew that Wells had committed at least two

offenses: driving without a license and driving with an

expired registration. See Va. Code §§ 46.2-104, 46.2-646.

Without a license, Wells couldn’t lawfully drive home. At

the same time, his car couldn’t remain parked in a public

lot with an expired tag. See Arlington County, Va., Code

§ 14.2-2(A)(2) (2015).

Given all this, the local officers knew they needed to

tow Wells’s Mustang. Following Arlington County Police

Department practice, the officers performed an inventory

search of the car before towing it. That search turned

up a formidable arsenal: five loaded AR-15 magazines, a

drone, a laptop, rubber knives, face masks, radios, a Texas

license plate, a smoke grenade, two tactical vests, a list

of weapons to be purchased, a “Stanley Fat Max 24-inch

yellow crowbar,” and a Ceradyne ballistic plate bearing

serial number 2923205 inside the earlier-discovered plate

carrier. J.A. 266–68.

This gear raised another problem. Normally, the

police could have just sent Wells home. Though he couldn’t

drive, he could walk or call a cab, and he could ordinarily

take with him whichever of his possessions he wanted

from his car. But the guns, grenade, and plate carrier

posed an issue. Arlington Cemetery is right next to the

Pentagon, and the officers understandably didn’t want to

Appendix A

deck Wells out in weapons and tactical gear, then send

him walking past one of the nation’s most sensitive sites. 3

Instead, they recommended that he phone a friend to pick

him up. But Wells couldn’t find anyone to get him. So the

local police suggested that Wells leave his gear with them.

“Okay,” he replied. J.A. II 01:06:10–01:06:30. Accordingly,

the local police decided which items warranted separate

safekeeping and which could remain in the trunk, then

explained the property retrieval process to Wells. “Cool,

cool,” he said. J.A. II 01:12:18. After Wells signed the

property retrieval form, the local police gave his Mustang

to the tow company.

Arlington County Police Revisit Wells’s

Property in Custody

The next day, Arlington County’s Detective Scott

Wanek took another look at Wells’s in-custody gear. The

armor plate aroused Wanek’s interest because it bore an

Army serial number—and Wells, Wanek discovered, is a

veteran of the Army’s Third Infantry Regiment. Wells

served with the Old Guard’s Echo Company until 2019,

when he received a General Under Honorable Conditions

discharge. Seeing this, Wanek called the military police

and spoke to Detective Keith Shepherd. Shepherd told

Wanek that Echo Company reported several armor plates

as stolen about a month before Wells was discharged. So

Wanek did some digging. He discovered that after Wells’s

gear return, “he was given a ‘statement of no charges,’

meaning that [he] had returned all issued equipment.” J.A.

268. Yet somehow, a serialized Army plate turned up in

3. Nor, apparently, could Wells summon a ride—because

Ubers don’t allow guns.

Appendix A

the back of his car. And as far as Shepherd knew, there

was no legitimate way Wells could have left the Army but

kept the Army’s plate.

Arlington County Police Arrest Wells, and

Virginia Brings Criminal Charges

Wanek thus sought a warrant to arrest Wells. Three

days after Wanek got the warrant, he called Wells and

invited him to “pick up his gear” from the Arlington

County courthouse. J.A. 295. But this was a ruse. When

Wells arrived at the courthouse, this time driving a

Pontiac, he was arrested. And when Wanek asked him

about the plate, Wells confessed that he had stolen it from

his Army roommate during out-processing. Meanwhile,

Officer Ashley Barnickle impounded and requested

a search warrant for the Pontiac because local police

suspected Wells had more plates and intended to sell

them. When the warrant arrived, Barnickle searched the

Pontiac and found more tactical equipment, along with

various unknown substances: a rifle magazine loaded

with 28 green-tipped rounds; lock picks; a hemorrhage

bandage; gauze; “spikes/darts with case”; a black bag

containing various pills and white powder, and a notebook

with Proverbs 3:5 on the cover (“Trust in the Lord with all

your heart, And do not lean on your own understanding.”).

J.A. 284.

Later, in February 2020, Wells was convicted of the

traffic offenses. In March, a grand jury indicted him

for receiving stolen property valued in excess of $500,

a violation of Va. Code § 18.2-108. Wells was denied bail

because the state court considered him a “flight risk and a

danger to the community.” And in July, another grand jury

Appendix A

indicted Wells on drug charges. In September, Virginia

declined to prosecute the stolen-property case. Wells

was then released from jail. And in April 2021, Virginia

likewise declined to prosecute the drug case.

E. Wells Sues

With the criminal cases over, Wells brought state and

federal claims against many state and federal officers,

Arlington County, and the United States. He pleaded

Fourth Amendment claims under 42 U.S.C. § 1983 against

the state defendants for detaining him, searching his car,

and seizing his property on February 9; searching his

property again once it was in police custody; and lying

to magistrates to secure the later arrest and search

warrants. He likewise pleaded a Second Amendment

claim against the state defendants for taking his guns. As

for the federal defendants, he claimed Fourth and Fifth

Amendment violations under Bivens v. Six Unknown

Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed.

2d 619 (1971). Last, he brought state tort claims against

various individual officers for false imprisonment and

malicious prosecution, a Monell v. Dep’t Soc. Servs. claim

against Arlington County, see 436 U.S. 658, 98 S. Ct. 2018,

56 L. Ed. 2d 611 (1978), and a direct claim against the

United States, citing the Federal Tort Claims Act, see 28

U.S.C. § 1346 et seq.

The United States Steps In

Because Wells sued two federal officers for state torts,

the United States stepped in as a party, substituting

itself for Armstrong and Shepherd under the Westfall

Appendix A

Act, 28 U.S.C. § 2679(d)(1). Wells moved to strike

the substitution, complaining (without evidence) that

Armstrong and Shepherd had acted ultra vires and were

therefore ineligible for the Westfall Act’s protections.

The district court denied Wells’s motion. It reasoned that

absent evidence to counter the U.S. Attorney’s Westfall

Act certification, that certification presumptively proved

that Armstrong and Shepherd acted within the scope of

their employment.

The District Court Dismisses Wells’s

Claims

All defendants successfully moved to dismiss Wells’s

claims. The district court reasoned that qualified immunity

protected the federal officers even if a Bivens remedy were

available. So too for the state defendants. And because

Wells never alleged that Arlington County’s policies

caused the harms he complained of, the district court also

rejected Monell liability. Wells’s state tort claims against

state officers likewise failed because Wells didn’t allege

all their elements. As for the United States, the district

court held that Armstrong and Shepherd performed

discretionary functions, so Wells’s claim against them was

barred by sovereign immunity.

Wells now appeals.4

4. We have jurisdiction to decide Wells’s appeal under 28

U.S.C. § 1291. And we review de novo the dismissal of his claims—

whether they were dismissed on the merits, Evans v. United

10a

Appendix A

II. Discussion

State and federal officials alike “are immune from

suit . . . unless they have violated a [federal] statutory or

constitutional right that was clearly established at the

time of the challenged conduct.” City & Cnty. of S.F. v.

Sheehan, 575 U.S. 600, 611, 135 S. Ct. 1765, 191 L. Ed. 2d

856 (2015) (quotation omitted). Though qualified immunity

is controversial, we are bound to apply it in full measure.

And it is demanding.

Qualified-immunity cases involve two steps. At step

one, the plaintiff pleads a § 1983 or Bivens action by

showing that an official’s conduct violated his right. 5 See

States, 105 F.4th 606, 616 (4th Cir. 2024), or for lack of jurisdiction,

Doe v. Meron, 929 F.3d 153, 163 (4th Cir. 2019). To avoid dismissal, a

complaint must “contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.

1955, 167 L. Ed. 2d 929 (2007)). And to “nudg[e] the claims across

the line from conceivable to plausible,” the facts alleged must

surpass “the speculative level.” Evans, 105 F.4th at 616 (quoting

Bazemore v. Best Buy, 957 F.3d 195, 200 (4th Cir. 2020)).

5. What this showing requires of the plaintiff depends on the

stage of litigation. On a Rule 12(b)(6) motion, we ask whether the

plaintiff has plausibly alleged all the elements his claim requires.

At summary judgment, we ask whether there’s a real, trial-worthy

dispute about some fact that the claim turns upon. Either way,

what is required at step one is essentially a normal merits analysis

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Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022). At

step two, qualified immunity allows the official to beat the

plaintiff’s claim by showing that the asserted right was

less than “clearly established” at the time of the conduct.

Plumhoff v. Rickard, 572 U.S. 765, 778, 134 S. Ct. 2012,

188 L. Ed. 2d 1056 (2014).6 What does it mean for the

asserted right to be “clearly established?” It must be the

case that “any reasonable official in the defendant’s shoes

would have understood that he was violating it.” Id. at 779.

Of course, the “reasonable official”—like the “reasonable

man” posited by some tort cases—is a fiction. Qualified

immunity’s real bite lies in what this hypothetical is

supposed to measure: The law is not “clearly established,”

or obvious to “any reasonable official,” unless “existing

precedent” has “placed the statutory or constitutional

question beyond debate.” Ashcroft v. al-Kidd, 563 U.S.

731, 741, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011).

It’s easier to show that a right was probably violated

than inarguably violated, and so “[t]here are cases in

which it is plain that a constitutional right is not clearly

established but far from obvious whether in fact there

is such a right.” Pearson v. Callahan, 555 U.S. 223, 237,

indexed to the relevant stage of litigation. See Behrens v. Pelletier,

516 U.S. 299, 309, 116 S. Ct. 834, 133 L. Ed. 2d 773 (1996).

6. Qualified immunity thus consists of two questions, on which

the burden of proof is split in the Fourth Circuit. Has the plaintiff

shown that his rights were violated, and has the officer shown that

the asserted rights were less than clearly established? Thurston

v. Frye, 99 F.4th 665, 673 (4th Cir. 2024).

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129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). Thus, to avoid

“substantial expenditure of scarce judicial resources,” we

may take these two steps in either order—or, answering

one in the negative, decline to answer the other. Id. at

236. If we choose to take the second, qualified-immunity

inquiry first, we assume that the plaintiff has shown all the

facts alleged. In other words, we assume that the plaintiff

can carry his burden at step one. See Stanton, 25 F.4th

at 233 & n.5. Then we ask whether if what he says were

true, this would amount to an inarguable breach of law.

Because at step two the question must be beyond

debate from the perspective of any reasonable officer, we

often say that qualified immunity calls for an “objective”

test. See Harlow v. Fitzgerald, 457 U.S. 800, 815–17, 102

S. Ct. 2727, 73 L. Ed. 2d 396 (1982). The Supreme Court

has explained “that bare allegations of malice should not

suffice to subject” officers to the “burdens” of suit. Id. at

817–18. This means we do not ask at step two whether

the defendant officials subjectively knew they broke the

law, or even did so deliberately. Id. at 818–19. Instead,

we assume that the plaintiff can win at step one and

then ask only whether what the officer allegedly did was

undebatably wrong.7

7. Some of our cases rightly observe that despite this rule,

defendant officers’ motivations really can matter at step one. In

First Amendment retaliation cases, for example, or in Eighth

Amendment deliberate-indifference cases, it’s clearly established

that whether an officer broke the law depends on his private,

subjective motives—which means we can’t answer the step-one

question without knowing something about those real motives.

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Yet because the precise scope of “clearly established

law” depends on “existing precedent,” the factual details

of past cases matter a great deal. al-Kidd, 563 U.S. at

741–42. The Supreme Court has “repeatedly” admonished

that we should not “define clearly established law at a high

level of generality.” Id. at 742. Instead, to find a violation

of clearly established law, we must be able to “‘identify

a case’ or a ‘body of relevant case law’ where ‘an officer

acting under similar circumstances was held to have

violated the Constitution.’” Rambert v. City of Greenville,

107 F.4th 388, 402 (4th Cir. 2024) (cleaned up) (quoting D.C.

v. Wesby, 583 U.S. 48, 64, 138 S. Ct. 577, 199 L. Ed. 2d

453 (2018)). If no prior case has announced a “rule” that

“obviously resolve[s]” the rights claim at hand, then the

right was not clearly established. Wesby, 583 U.S. at 64. 8

See Crawford-El v. Britton, 523 U.S. 574, 588–89, 118 S. Ct. 1584,

140 L. Ed. 2d 759 (1998); Thompson v. Virginia, 878 F.3d 89,

106 (4th Cir. 2017). So although it’s true that we never consider

officers’ true intentions at step two, we do still consider officials’

subjective motivations at step one if those motivations are elements

of a plaintiff’s claim. But if we take step two first, we don’t need

to know—and therefore don’t ask—whether the officers acted

with malice. We assume that the plaintiff has made out his claim,

including any element of subjective malice, and then ask whether

it is clear beyond debate that the conduct pleaded broke the law.

8. That “specificity is especially important” in Fourth

Amendment cases, where it is “difficult for an officer to determine

how the relevant legal doctrine . . . will apply to the factual situation

the officer confronts.” Mullenix v. Luna, 577 U.S. 7, 12, 136 S. Ct.

305, 193 L. Ed. 2d 255 (2015) (internal quotation marks omitted).

The Supreme Court often reiterates this proposition. See, e.g.,

Wesby, 583 U.S. at 64 (“[W]e have stressed the need to ‘identify

14a

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This objective, fact-bound standard is “demanding.”

Id. at 63. The “crucial question” is whether every

reasonable officer would know this action in this situation

was unlawful. Plumhoff, 572 U.S. at 779. If even one

reasonable officer could think that “existing precedent”

did not put the legality of the conduct at issue “beyond

debate,” then all officers are immune. al-Kidd, 563 U.S.

at 741.

Wells’s Fourth Amendment Claims Fail

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. Wells alleges search and seizure alike.

But the officers’ alleged conduct did not run afoul of clearly

established law. So qualified immunity shields the officers.

The Fourth Amendment, fundamentally, demands

reasonable conduct. See, e.g., Brigham City v. Stuart, 547

U.S. 398, 403, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006)

(“[T]he ultimate touchstone of the Fourth Amendment is

‘reasonableness.’”). In explaining what is reasonable and

what is not, the Supreme Court has identified certain

types of conduct that often clear the reasonableness

hurdle. The typical reasonable search or seizure happens

a case where an officer acting under similar circumstances was

held to have violated the Fourth Amendment.’” (quoting White v.

Pauly, 580 U.S. 73, 79, 137 S. Ct. 548, 196 L. Ed. 2d 463 (2017))).

For this reason, cases like this one are not “‘the rare obvious

case,’ where a general standard can clearly establish the answer.”

Garrett v. Clarke, 74 F.4th 579, 589 (4th Cir. 2023) (quoting Wesby,

583 U.S. at 64).

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within the boundaries of a valid warrant. See Maryland v.

Garrison, 480 U.S. 79, 86, 107 S. Ct. 1013, 94 L. Ed. 2d 72

(1987). But without a warrant, searches and seizures may

still be reasonable. For instance, warrantless searches are

often reasonable when they accompany an arrest. See, e.g.,

Riley v. California, 573 U.S. 373, 382, 134 S. Ct. 2473, 189

L. Ed. 2d 430 (2014). So too under exigent circumstances,

when “there is compelling need for official action and no

time to secure a warrant.” Mitchell v. Wisconsin, 588

U.S. 840, 849, 139 S. Ct. 2525, 204 L. Ed. 2d 1040 (2019).

Yet these categories are more heuristics than hardedged rules. They have inherently fuzzy boundaries

because classifying conduct requires circumstancespecific analysis. See, e.g., United States v. Banks, 540 U.S.

31, 36, 124 S. Ct. 521, 157 L. Ed. 2d 343 (2003) (explaining

that the Court has “largely avoid[ed] categories and

protocols for searches” because “it is too hard to invent

categories without giving short shrift to details that

turn out to be important in a given instance”). And these

guidelines don’t exhaust the universe of reasonable

actions. The categories can help, but “reasonableness

[is] a function of the facts of cases,” and seldom does one

fact have “dispositive[] significance.” Id. For this reason,

we must decide in every individual case whether officers

acted reasonably.

“[A]most without exception,” whether police action

satisfies this reasonableness command turns on “an

objective assessment of an officer’s actions in light of the

facts and circumstances then known to him.” Scott v.

United States, 436 U.S. 128, 137, 98 S. Ct. 1717, 56 L. Ed.

2d 168 (1978). We thus generally do not consider officers’

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subjective intentions. Brigham City, 547 U.S. at 405;

Whren v. United States, 517 U.S. 806, 813–14, 116 S. Ct.

1769, 135 L. Ed. 2d 89 (1996). Instead, we consider only

what an imaginary, reasonable officer could have done in

the same situation with the same knowledge. And whether

a particular action falls within the reasonableness window

or without depends on whether “the circumstances, viewed

objectively, justify the action.” Brigham City, 547 U.S. at

404 (cleaned up).

As laid out above, in qualified-immunity cases, we

layer a second objective inquiry atop the first. At the

first layer (the Fourth Amendment one), we ask whether

a reasonable officer could have done the challenged act—

that is, whether his conduct was factually reasonable. This

determines whether officers violated a constitutional right.

And at the second layer (the qualified-immunity one), we

ask whether the conduct was “legally []reasonable”—that

is, whether any officer could have thought the act factually

reasonable and thus lawful under the Fourth Amendment.

Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034,

97 L. Ed. 2d 523 (1987) (emphasis added). This determines

whether the asserted right was clearly established. All

together, step-two asks in Fourth Amendment cases

whether every reasonable officer would know that the

challenged conduct was un-reasonable.9

9. As explained, qualified immunity does not foreclose inquiry

into officers’ subjective motivations when those motivations form

an element of the plaintiff’s claim. But Fourth Amendment claims

do not invite this subjective analysis. See Hunsberger v. Wood,

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Officers Lawfully Approached Wells

First, Wells claims that Armstrong seized him simply

by pulling up behind him and blocking him in. An officer

merely approaching a person does not implicate the

Fourth Amendment. Police can always talk to people in

public—just as “any private citizen might do without fear

of liability.” Caniglia v. Strom, 593 U.S. 194, 198, 141 S. Ct.

1596, 209 L. Ed. 2d 604 (2021) (internal quotation marks

omitted) (quoting Florida v. Jardines, 569 U.S. 1, 8, 133 S.

Ct. 1409, 185 L. Ed. 2d 495 (2013)). The Fourth Amendment

is implicated only if police do more, like prevent someone

from leaving. See United States v. Mendenhall, 446 U.S.

544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). We

assume without deciding that Armstrong did more and

thereby seized Wells. Given this, our question is whether

Wells had a clearly established right against seizure in

this situation.

Armstrong asserts that a reasonable officer could

think pulling up behind Wells was lawful under a doctrine

sometimes called the “community-caretaking exception.”

This doctrine emerged, almost by accident, out of passing

comments in two decades-old Supreme Court opinions. See

Thomas K. Clancy, The Fourth Amendment: Its History

570 F.3d 546, 554 (4th Cir. 2009). In a few limited contexts, like

inventory searches, we may examine “programmatic” purposes—

that is, the reasons for the general policy for inventory searches.

Id. But that is not the same as considering individual officers’

subjective motives. When it comes to individual officers, we

consider only whether their conduct was objectively reasonable,

not what went through their minds as they did it.

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and Interpretation § 10.3 (2017). In the first, Cady v.

Dombrowski, the Court observed that police are not just

crime-fighters. 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed.

2d 706 (1973). They also regularly “engage in what, for

want of a better term, may be described as communitycaretaking functions, totally divorced from the detection,

investigation, or acquisition of evidence relating to the

violation of a criminal statute.” Id. at 441. In Cady, the

Court used that principle to explain a search that began

as an effort to check a driver’s welfare but wound up

uncovering evidence. Then, in South Dakota v. Opperman,

the Court applied the principle to towing disabled or

illegally parked vehicles: “The authority of police to seize

and remove from the streets vehicles impeding traffic

or threatening public safety and convenience is beyond

challenge.” 428 U.S. 364, 369, 96 S. Ct. 3092, 49 L. Ed. 2d

1000 (1976). From there, the principle assumed a life of

its own. And today, the principle has become a doctrine,

“broadly utilized” by federal and state courts alike to

cover the vast range of situations in which police engage in

activity unrelated to law enforcement yet uncover evidence

of crime. Clancy, supra, § 10.3; see also Pennsylvania v.

Livingstone, 644 Pa. 27, 174 A.3d 609, 625–27 (Pa. 2017)

(thoughtfully detailing the range of state-court treatment

of the community-caretaking exception).

Perhaps because the doctrine is so capacious, its

boundaries remain hazy, for “many police tasks . . . go

beyond criminal law enforcement.” Caniglia, 593 U.S.

at 200 (Alito, J., concurring). Even when limited to the

highway, noncriminal police action can take many forms

depending on “the recurring practical situations that

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Appendix A

result[] from the operation of motor vehicles . . . with

which local police officers must deal every day.” Cady,

413 U.S. at 446. But the idea that police may respond to

car accidents without risking civil liability does not hand

them a blank check in all other situations. For instance, the

Court recently clarified that the community-caretaking

exception is not “a standalone doctrine that justifies

warrantless searches and seizures in the home.” Caniglia,

593 U.S. at 196 (emphasis added). Helpful as this guidance

is, the doctrine’s limits elsewhere remain unsettled.

We need not decide the exception’s precise bounds—

or even decide whether it definitively applies here—to

conclude that Armstrong violated no clearly established

right. Though the exception is fuzzy around the edges,

its core claim is that police can reasonably “provid[e]

aid to motorists.” Caniglia, 593 U.S. at 199. And they

can reasonably help someone in need more generally.

Armstrong saw a car parked outside the cemetery, and

he did “not know[]” “if it was a medical emergency,” or

the “car had broken down,” or its occupant was “upset

in some way.” J.A. 91.10 A reasonable officer in such

10. Though this appeal comes to us on a motion to dismiss, the

parties and district court relied on Armstrong’s testimony below.

Wells quoted long excerpts from it in his complaint. The federal

defendants attached a longer portion as an exhibit to their motion

to dismiss. And the district court’s discussion of the caretaking

issue depended on those submissions.

Now, Wells backpedals—insisting that we should defer to the

language in his complaint over the testimony he pasted into it. But

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Appendix A

circumstances may well have thought caretaking justified.

See Brigham City, 547 U.S. at 404. At the very least,

we cannot “identify a case” that has held the caretaker

exception inapplicable to an analogous situation, so we

cannot say that the constitutional question is “beyond

debate.” Wesby, 583 U.S. at 64 (quotations omitted). Nor

will we speculate whether Armstrong secretly harbored

other, more nefarious motives. Under our precedents, an

officer’s private beliefs make no constitutional difference

in this context. See Hunsberger, 570 F.3d at 554. Wells

recognizes that the caretaking exception has nebulous

borders. But that means Wells cannot claim a clearly

established right—ambiguity is a shield, for better or for

worse.11

although “it is not always appropriate to conclude that the plaintiff

has adopted” whatever is in his complaint, Goines v. Valley Cmty.

Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016), it is too late for Wells

to make this argument now. Wells’s reliance on the testimony

below created a “presumption” that he “adopted [it] as true.” Id.

at 167. Any objection to this was forfeited by his failure to make it

below. The argument is forfeited here too, notwithstanding Wells’s

misgivings, because he does not argue that we shouldn’t consider

Armstrong’s testimony for its truthfulness. See Grayson O Co. v.

Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (explaining that

a party cannot preserve an argument on appeal just by “tak[ing]

a passing shot at the issue” (quotation omitted)).

And given that the testimony was incorporated into Wells’s

complaint, its content trumps Wells’s denials. Even on a motion

to dismiss, “in the event of a conflict between the bare allegations

in the complaint and any exhibit attached, the exhibit prevails.”

Goines, 822 F.3d at 166 (cleaned up). So Armstrong’s testimony

about what he saw overcomes Wells’s bare denial.

11. Wells also objects that police continued Armstrong’s

unlawful seizure when they arrived. But this fails for the same

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Then, Officers Lawfully Inventoried

Wells’s Mustang

After Officer Armstrong told the local police that

Wells carried an expired tag, they could remove Wells

from the car to investigate. See Pennsylvania v. Mimms,

434 U.S. 106, 110, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977).

And as Wells concedes, they could detain him and remove

the guns from his car while they did so.

Wells argues that even though police could lawfully

do all that, they couldn’t constitutionally search the rest

of his car just because they meant to tow it. But here too,

the officers take shelter within a Fourth Amendment

exception. They reply that they weren’t “rummaging”

for “incriminating evidence” but conducting a routine

administrative inventory search. Florida v. Wells, 495

U.S. 1, 4, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990). We

agree. It’s reasonable for a police department to require

an inventory before towing a car. This protects police and

civilians alike from dangerous items and lost property. See

United States v. Banks, 482 F.3d 733, 739 (4th Cir. 2007).

Of course, an inventory search must be conducted

in good faith. Id. Under our precedents, this means

two things. First, the policy or practice authorizing the

search must not have an impermissible “programmatic

purpose.” Hunsberger, 570 F.3d at 554; see also Wells,

reason as his first claim. When local police arrived, they could

rely on Armstrong’s seizure (if it was a seizure). We do not have

a clearly established anti-piggybacking rule. See United States

v. Hensley, 469 U.S. 221, 231–32, 105 S. Ct. 675, 83 L. Ed. 2d 604

(1985).

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495 U.S. at 4 (“The policy or practice governing inventory

searches should be designed to produce an inventory.”).

Second, officers’ searches must “generally” accord with

such “standard procedures.” Banks, 482 F.3d at 739–40;

Colorado v. Bertine, 479 U.S. 367, 374, 107 S. Ct. 738, 93

L. Ed. 2d 739 (1987) (“[R]easonable police regulations

relating to inventory procedures administered in good

faith satisfy the Fourth Amendment.”). 12 Searches

that satisfy these two requirements clear the First

Amendment’s reasonableness hurdle.

The local officers’ search did. Wells had valuable

gear in the car, equipment that could have been the basis

for costly claims if the police lost or damaged it. See

Bertine, 479 U.S. at 372–73. The gear was dangerous too.

See id. And so the officers explained that they followed

department policy, which instructed them to inventory

vehicles before having them towed. By following the

policy’s mandates, the police searched “according to

standardized criteria.” Id. at 374 n.6. And Wells alleges

nothing to the contrary.13

12. With respect to individual officers, this good-faith

requirement is thus an objective one. Cf. United States v. Leon,

468 U.S. 897, 919–20, 104 S. Ct. 3405, 82 L. Ed. 2d 677 & n.20

(1984) (explaining the similar, “objective good faith” exception to

the exclusionary rule).

13. Wells makes no headway by arguing that the local police

should have given him an impound form earlier than they did—or

that officers otherwise breached policy in some unspecified way.

As we have explained, inventory searches should generally follow

department policy. But not every “t” need be crossed. See Banks,

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Appendix A

Wells’s responses are unconvincing. First, he claims

that an inventory search could withstand the Fourth

Amendment only if officers removed everything from the

car. But we have never required that. See, e.g., Bertine,

479 U.S. at 369 (upholding an inventory search that was

“performed in a ‘somewhat slipshod manner’”). And for

good reason: The point of inventory searches is identifying

dangerous or valuable property. See United States v.

Horsley, 105 F.4th 193, 215–16 (4th Cir. 2024). Combing

through every tiny compartment and seizing every item

would go far further than required to achieve that end and

would intrude on motorists’ privacy more than necessary.

Wells next objects that police should not have opened

containers within his car. But this too is mistaken. “[A]n

inventory-search policy may leave the inspecting officer

‘sufficient latitude to determine whether a particular

container should or should not be opened in light of the

nature of the search and characteristics of the container

itself.’” Banks, 482 F.3d at 739 (quotation omitted). And

Wells does not even try to explain which containers he

thinks were wrongly opened or why the circumstances

didn’t justify opening them.

Last, Wells insists that the local police jumped the gun

by beginning the search before they knew his car needed

to be towed. As he tells the story, police only realized

they needed to tow his car once they discovered valuables

inside—items that couldn’t be left on the side of the road

482 F.3d at 739–40 (upholding an inventory search despite six

discrepancies, including an improper inventory form, between the

policy and the officer’s actions). Wells fails to allege any substantial

departure from policy and thus cannot show bad faith.

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Appendix A

and that Wells couldn’t take with him. But the decision

about what to do with Wells’s property and the decision

to tow his car are logically independent. A car with an

expired registration cannot lawfully occupy a public

thoroughfare in Arlington. Arlington County, Va., Code

§ 14.2-2(A)(2) (2015). So, because Wells could not legally

drive the car away, the officers had to tow the car upon

learning that Wells’s registration was expired. Wells may

be right that local police couldn’t know which of his things

they would take for safekeeping until he confirmed that

no one would pick him up. But they did know, long before

Wells gave up trying to phone a friend, that his Mustang

needed to be towed. And that triggered a constitutional

inventory search.14

With Wells’s Consent, Local Police

Lawfully Safekept Wells’s Property

Wells also argues that the local police unlawfully took

his property for safekeeping. Many of his claims turn on

this assertion, but they all fail because it is false: Wells

consented to the safekeeping. When officers realized that

Wells had weapons, tactical gear, and other valuable items

in the car, they explained that he could not leave them

by the roadside. And though they did not forbid him to

walk home with his kit, they did advise him that it would

be unwise to strap on a plate carrier and then stroll past

14. Wells’s claim that officers detained him for too long also

fails. Police could lawfully detain Wells long enough to perform

this search. See Muehler v. Mena, 544 U.S. 93, 100, 125 S. Ct.

1465, 161 L. Ed. 2d 299 (2005).

25a

Appendix A

the Pentagon with a rifle slung from his shoulder. Wells

prudently took that advice.

Wells now backtracks and claims that although he

signed the police property retrieval form, he did not

really consent. The video of his interaction with the police

belies this bare assertion. He accepted, on video, that

leaving his things with the police was his best option.

Though he—and the police—might have preferred to find

someone to take him home, it was Wells who voluntarily

abandoned that endeavor. When he did, Wells agreed to

leave his things without protest. The video is clear that

Wells cheerfully accepted the officers’ offer. His claims of

coercion therefore fail.15

For this reason, the district court rightly dismissed

Wells’s consent-to-safekeeping arguments. At the motionto-dismiss stage, “in the event of a conflict between the

bare allegations in the complaint and any exhibit attached,

the exhibit prevails.” Goines, 822 F.3d at 166 (cleaned up).

We have applied the attached-exhibit rule to videos as well

as documents. Doriety, 109 F.4th at 679. So if a plaintiff

15. Wells replies, citing Miranda v. Arizona, 384 U.S. 436,

86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), that consent must be

clearer than this. How clear, he does not say. But his reliance on

Miranda is misplaced. Miranda does not demand clear consent

to questioning. The Miranda cases teach nearly the opposite:

A suspect must speak “unambiguously” to invoke the rights to

remain silent and to counsel. Berghuis v. Thompkins, 560 U.S.

370, 381, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010). And in any

event, we have held that a consent to search does not require magic

words—or, for that matter, any words at all. See United States

v. Wilson, 895 F.2d 168, 172 (4th Cir. 1990) (finding consent in a

“shrug[]”). So Wells’s repeated statements here suffice.

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Appendix A

bases his complaint on a video, yet the video “‘blatantly

contradicts’ [his] allegations,” then we will dismiss those

allegations as “implausible.” Id. at 680 (citation omitted).

Later, Officers Lawfully Revisited Wells’s

Property

Wells next alleges that Detective Wanek unreasonably

searched his gear the day after police took it for

safekeeping. And because this second look prompted

Wanek to investigate whether Wells had stolen the

Army’s ballistic plate, he complains that this tainted his

later prosecution for the theft. But this just repackages

Wells’s other arguments. As Wells concedes, “evidence

otherwise taken lawfully, can be later reviewed without

Fourth Amendment violation.” Opening Br. 38. So the only

claim he makes on appeal is that police wrongly seized

his property to begin with and that this wrongful seizure

infected everything that happened later. Yet as explained,

there was no wrongful seizure; Wells voluntarily put the

property in police custody. So this claim also fails.16

16. Atop the claims already discussed, Wells argues that

officers violated his rights by lying to a magistrate. Wanek, he says,

lied about the ballistic plate—what it was worth and whether he

had reason to think it stolen—to get an arrest warrant. In his view,

this constitutes both a Fourth and a Fifth Amendment violation.

But given what we have explained, there was no lie. After Wanek’s

investigation, local police had probable cause to believe Wells stole

the plate. Shepherd told Wanek that there was no legitimate way

Wells could have left the Army but kept its equipment. Rather than

refute this, Wells appears to suggest that police can only seek a

warrant if they not only suspect a crime but also know precisely

how the crime was committed. But we have never required that. We

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B. Wells’s Second Amendment Claims Fail

Alongside his Fourth Amendment claims, Wells also

alleges that officers violated his Second Amendment rights

by taking his guns. But this claim runs into the same

qualified-immunity problem. It may—may—be true that

the officers’ acts might violate the Second Amendment

if they repeated them today. But qualified immunity

demands we look at the law’s content “at the time of the

conduct in question.” Mays, 992 F.3d at 301. In 2020,

existing precedent had not established that the Second

Amendment protects a right to public carry. See Kolbe v.

Hogan, 849 F.3d 114, 135–37 (4th Cir. 2017) (en banc). That

recognition came from the Supreme Court years later. See

have instead repeatedly stated that an arrest warrant may be issued

so long as “facts and circumstances within the officer’s knowledge”

are sufficient for a person of “reasonable caution” to think that “the

suspect has committed . . . an offense.” Humbert v. Mayor and City

Council of Baltimore City, 866 F.3d 546, 555 (4th Cir. 2017) (quoting

Cahaly v. Larosa, 796 F.3d 399, 407 (4th Cir. 2015)).

Wells also quibbles that the police had reason to doubt the plate

was worth enough to support a felony charge. But this too gets him

nowhere. Even if the plate wasn’t worth much, its theft still would

have been a misdemeanor. Va. Code § 18.2-96. Receiving it if it was

stolen would have been a misdemeanor too. Va. Code § 18.2-108.

And with probable cause to think Wells committed a misdemeanor,

officers could seek a warrant for his arrest. See Thurston, 99 F.4th

at 674 n.4 (“Probable cause need not be tailored to the offense the

arresting official suspected at the time of arrest.”).

Wells additionally claims that after his arrest, local police again

moved too soon by searching the car he arrived in before getting a

warrant. But he provides no support for this bare allegation. Even

on a motion to dismiss, we will not credit pure speculation. See, e.g.,

Evans, 105 F.4th at 616.

28a

Appendix A

New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1,

8, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022). Because Wells

did not have a clearly established right in 2020, the police

are entitled to qualified immunity.

***

Without alleging injury from the violation of a clearly

established right, Wells has no federal claim against any of

the individual officers.17 Nor does he have a claim against

Arlington County. Even supposing Wells pleaded injury

to a constitutional right, he does not explain how any

County policy, omission, or practice caused the harm. So

no liability can attach to the County. See Lytle v. Doyle,

326 F.3d 463, 471 (4th Cir. 2003).18

17. For the federal officers, we have another reason to pause

before allowing Wells’s claim to proceed. Litigants alleging

constitutional violations have a ready avenue to sue state officers

for damages. That is the principal function of § 1983. But as to

federal officers, plaintiffs have fewer options. No statute opens the

door to § 1983-style damages actions against federal officers. And

though the Supreme Court has cracked that door in a handful of

situations, see Bivens, 403 U.S. 388; Davis v. Passman, 442 U.S.

228, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979); Carlson v. Green, 446

U.S. 14, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980), it has instructed

inferior courts to reject opening the door further if we spot

“even a single reason to pause.” Egbert v. Boule, 596 U.S. 482,

492, 142 S. Ct. 1793, 213 L. Ed. 2d 54 (2022) (internal quotation

marks omitted). But we need not decide whether to extend the

“disfavored” Bivens action, Ziglar v. Abbasi, 582 U.S. 120, 135, 137

S. Ct. 1843, 198 L. Ed. 2d 290 (2017) (citation omitted), to Wells’s

claims. Because the federal officers are immune, we may affirm

without reaching the Bivens question. See Wood v. Moss, 572 U.S.

744, 757, 134 S. Ct. 2056, 188 L. Ed. 2d 1039 (2014).

18. Rather than plausibly allege that County policy caused what

happened to him, Wells instead postulates two patterns that—even if

29a

Appendix A

Wells’s State Claims Likewise Fail

Besides his federal claims, Wells also argues that the

officers’s conduct violated rights against search and seizure

that are conferred by Virginia law. He is mistaken. Virginia

courts treat the state law he invokes as coterminous with

federal constitutional protections. Cromartie v. Billings,

298 Va. 284, 837 S.E.2d 247, 254 (Va. 2020). So these claims

fare no better than their federal counterparts.19

Wells also presses state tort claims for false

imprisonment and malicious prosecution against individual

true—have little to do with his case. First, he says, Arlington County

has a “historical practice of harassing law-abiding gun owners.” J.A.

61. But he does not explain how this “historical practice” affected the

police’s decision to cite him for a traffic offense before they discovered

his guns and later safekeep the guns with his permission. Second, he

insists, Arlington County officers disproportionately “arrest[] armed

persons of color.” J.A. 62. This fares no better. The local police didn’t

arrest Wells when he was armed on February 9. And when they did

arrest him eight days later, it wasn’t because he carried guns; it was

because they thought he stole military equipment.

19. To be sure, Virginia unlawful-search rules don’t use the

federal qualified-immunity standard. But Virginia law gets to the

same outcome by a different path. Virginia state law accounts for

sovereign immunity, which protects officers from liability unless

they lack “even scant care” or else act “in conscious disregard of

another’s rights, or with reckless indifference to the consequences.”

Cromartie, 837 S.E.2d at 254. In other words, a merely negligent

officer faces no liability under Virginia’s unlawful-search rule. Id. And

Virginia courts distinguish negligence from recklessness by a familiar

standard: They ask whether a “search was performed contrary to

well-established law.” Id. at 255. For that, in turn, Virginia courts look

to federal precedent. See id. So without a clearly established Fourth

Amendment violation, Wells has no state-law claim either.

30a

Appendix A

police officers. But these claims fail too. False imprisonment

requires, among other things, an unlawful arrest. But

Wells doesn’t dispute that he was arrested on a warrant.

And though he urges that the warrant relied on faulty

premises, that is not enough to show an unlawful arrest in

Virginia. So long as the warrant was “regular and valid,”

false imprisonment does not lie absent some other issue

with the detention. Lewis v. Kei, 281 Va. 715, 708 S.E.2d

884, 891 (Va. 2011) (quotation omitted).

Malicious prosecution likew ise requires more

elements than Wells alleges. For one thing, it requires the

government to prosecute without probable cause. Dill v.

Kroger, 300 Va. 99, 860 S.E.2d 372, 378 (Va. 2021). Wells

says Virginia lacked probable cause to prosecute him for

the stolen plate because police knew the plate was worth

less than $500. But though the punishment is harsher if

the stolen property is worth more than $500, stealing

something worth less than $500 is still a crime in Virginia.

Va. Code § 18.2-95, -96. And though Wells alleges that

both prosecutions were baseless, his concessions upend

that argument. Wells doesn’t dispute that drugs were in

his Pontiac or that an Army plate was in his Mustang. So

this tort claim fails too. 20

20. Wells pursues the same state tort theories against

Armstrong and Shepherd. For those claims, the United States

stepped in to defend on Armstrong and Shepherd’s behalf. See

28 U.S.C. § 2679(c), -(d)(1). But the United States has sovereign

immunity. And though it has waived parts of that immunity, it

hasn’t waived with respect to federal employees’ discretionary

functions. Id. § 2680(a). If that sovereign immunity applies, district

courts lack jurisdiction to consider the merits. Fed. Deposit Ins. v.

31a

Appendix A

***

Few parking tickets become federal cases. This one

was unlucky for Wells because of the arsenal he carried in

his car. But with the car where it was, police had to tow it.

Needing to tow it, they had to inventory it too. And wisely

Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994)

(“Sovereign immunity is jurisdictional in nature.”); Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 101–02, 118 S. Ct. 1003,

140 L. Ed. 2d 210 (1998) (explaining that a court “act[s] ultra

vires” if it considers the merits when “jurisdiction is in doubt”).

And here, whether immunity applied turned on the scope of the

discretionary-function exception. Concluding that the officers

performed discretionary functions, the district court dismissed

Wells’s claim on Rule 12(b)(1), not 12(b)(6).

Yet we need not decide whether Armstrong and Shepherd

carried out discretionary functions. The district court lacked

jurisdiction for the second reason that, even if we accept Wells’s

allegations as true, neither Armstrong nor Shepherd committed

any state torts. For “in the unique context of the FTCA, all

elements of a meritorious claim are also jurisdictional.” Brownback

v. King, 592 U.S. 209, 217, 141 S. Ct. 740, 209 L. Ed. 2d 33 (2021)

(citation omitted). Put differently, “a plaintiff must plausibly

allege all six FTCA elements not only to state a claim upon which

relief can be granted but also for a court to have subject-matter

jurisdiction over the claim.” Id. at 217–18. This, in turn, “means a

plaintiff must plausibly allege that ‘the United States, if a private

person, would be liable . . .’ under state law.” Id. (quoting 28 U.S.C.

§ 1346(b)(1)). Wells does not. As explained, he does not plausibly

allege that anyone committed any state torts. He thus “fails to

plausibly allege an element that is both a merit element of [his]

claim and a jurisdictional element.” Id. at 218 n.8. So the district

court could “dismiss the claim under Rule 12(b)(1) or Rule 12(b)(6).

Or both.” Id.

32a

Appendix A

or not, Wells chose to leave its contents with the police.

Though what ensued proved inconvenient for Wells, it was

not unconstitutional. So the dismissal of all his claims is

AFFIRMED.

33a

Appendix B

APPENDIX B — MEMORANDUM

OPINION AND

ORDER OF THE UNITED STATES DISTRICT

FOR THE EASTERN DISTRICT OF VIRGINIA,

ALEXANDRIA DIVISION, FILED MAY 31, 2023

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Case No. 1:22-cv-00140 (MSN/IDD)

CURTIS WELLS,

Plaintiff,

JAVIER FUENTES, et al.,

Defendants.

Filed June 2, 2023

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on Defendants’

five separate dismissal motions. See Dkt. No. 56 (Motion

to Dismiss for Lack of Jurisdiction and Failure to State a

Claim on behalf of Michael Armstrong, Keith Shepherd,

and the United States); Dkt. No. 59 (Motion to Dismiss

for Failure to State a Claim on behalf of Javier Fuentes,

Austin Kline, Lauren Lugasi, Kimberly Soules, and John

Vanak); Dkt. No. 61 (Motion to Dismiss for Failure to

State a Claim on behalf of Ashley Barnickle); Dkt. No.

34a

Appendix B

63 (Motion to Dismiss for Failure to State a Claim on

behalf of Scott Wanek); Dkt. No. 68 (Motion to Dismiss for

Failure to State a Claim on Behalf of Arlington County).

Upon consideration of the accompanying memoranda and

the parties’ briefing, the Court will grant the motions, and

the case will be dismissed.

BACKGROUND

Plaintiff’s Allegations

In his Second Amended Complaint, Plaintiff alleges

that, on February 9, 2020, he was sitting in his parked

Ford Mustang in a lot near the Arlington National

Cemetery when Michael Armstrong, a civilian law

enforcement officer employed by the Department of the

Army, approached him. Dkt. No. 48 ¶ 35 (“Compl.”). As

explained at a suppression hearing in Plaintiff’s criminal

case, Officer Armstrong testified that he approached

Plaintiff’s vehicle because, due to Plaintiff’s demeanor,

he sensed that “something was wrong,” and wanted to

make sure that Plaintiff was not suffering from a medical

emergency or having vehicular problems. Compl. ¶ 38, n.3.

Plaintiff claims that, at that time, he did not feel like he

was free to leave because Officer Armstrong parked his

cruiser in a way that impeded Plaintiff’s ability to drive

away. Compl. ¶¶ 35, 39.

During that “welfare check,” Officer Armstrong

noticed that Plaintiff’s temporary license plate was

expired. Compl. ¶ 38, n.3. Then, he requested assistance

from the Arlington County Police Department (“ACPD”).

35a

Appendix B

Compl. ¶ 40. At least five ACPD officers were dispatched:

Fuentes, Lugasi, Soules, Kline, and Vanak (together,

“ACPD Officers”). Compl. ¶ 41. When they arrived, ACPD

Officer Javier Fuentes ordered Plaintiff to step out of

the vehicle and asked if there were any firearms inside.

Compl. ¶ 50. After responding that there were, Plaintiff

was placed in handcuffs, and the guns found in Plaintiff’s

car (a Glock handgun and an AR-15 rifle) were taken

into the officers’ possession for the duration of the stop.

Compl. ¶ 49. At the conclusion of their investigation, the

officers cited Plaintiff for operating his vehicle without a

valid license and for bearing an improper registration in

violation of Virginia law. Compl. ¶ 58.

Because the vehicle was not properly registered, it

could not lawfully be driven (or parked) on local roads. As

such, the vehicle needed to be towed. The officers informed

Plaintiff that his car needed to be towed and explained

why. See Dkt. No. 65-1 at 4:48:12 P.M.1 Plaintiff expressed

his understanding: “Well, it’s got to be towed, and I’ve

got to figure out what’s going on with the weapons.”

Id. Plaintiff then asked if the vehicle had to be towed

1. Throughout his Complaint, Plaintiff relies on portions of

the audio recording of his interaction with the ACPD Officers

on February 9, 2020. See, e.g., Dkt. No. 48 ¶ 47 n.4. And—both

because of those references and because the parties agree that

the recording may be considered “for any purpose,” see Dkt. No.

75 at 1—the Court will consider the contents of that recording.

Cf. Dangerfield v. WAVY Broadcasting, LLC, 228 F. Supp. 3d 696,

702 n.3 (E.D. Va. 2017) (“On a motion to dismiss, a court evaluates

the complaint in its entirety, as well as documents attached or

incorporated into the complaint.”) (internal quotation omitted)).

36a

Appendix B

to the impound lot (rather than to his home). See id. at

5:15:29 P.M. The officers explained that “[b]ecause [they]

called [the tow], they have to take it to their lot.” Id. And

because the vehicle was to be towed into police custody,

the officers conducted an inventory search pursuant to

department policy. In addition to the Glock handgun and

AR-15 rifle, ACPD Officers uncovered five fully loaded

AR-15 magazines (150 rounds of ammunition), U.S. Army

patches, a crowbar, two face masks, two vests with bullet

proof armor, a smoke grenade, a Texas license plate,

two-way radios, and a handwritten list of other weapons

and equipment that Plaintiff possessed or needed to

purchase. Dkt. No. 60-4 at 6-7 (search warrant affidavit). 2

Officers also uncovered a Ceradyne, Inc. rifle plate and

a “handwritten list of chemical compounds that have

potential to make the human body bulletproof or even

invincible.” Id.

The ACPD Officers then talked to Plaintiff about how

they would handle his property in light of the necessity

of towing his vehicle. Specifically, Officer Soules told

Plaintiff that, because officers could not simply leave all

his valuable property in the vehicle, Plaintiff could arrange

for a friend to come pick up both him and his property.

See Dkt. No. 65-1 at 4:48:30 P.M. Plaintiff responded that

he would agree to leaving everything in his trunk to be

towed away. See id. at 4:48:50 P.M. The officers again

2. In Dangerfield, this Court considered a search warrant

affidavit in evaluating a motion to dismiss because it was integral

to the allegations in the Complaint and was a public record.

Dangerfield, 228 F. Supp. 3d at 702 n.3. The Court applies the

same analysis here.

37a

Appendix B

cautioned that they could not leave valuable items (like

firearms) in the trunk. Id. Instead, the officers offered a

third option: “[W]e can take it to our property, exactly

like she said, for safekeeping. We give you a paper receipt,

and then whenever you’re ready, you just go pick it up.” Id.

Ultimately, Plaintiff was unable to secure a ride home, and

rather than have the officers continue to wait, he agreed to

the third option. And after signing the Property Retrieval

form, see Dkt. No. 48-3, Plaintiff allowed the officers to

take the items for safekeeping.

The vehicle was then towed. However, instead of being

taken to the police impound lot, the vehicle was taken to

Plaintiff’s home. Compl. ¶ 67. Plaintiff alleges that the

officers “knew that the Mustang was not going to be towed

to the impound lot” all along and that their statements

to the contrary were a ruse to justify the search of his

vehicle. Compl. ¶ 73.

Plaintiff also alleges that on February 10, 2020,

the day after the roadside encounter, Arlington County

Detective Scott Wanek removed some of his property from

safekeeping and searched it. Compl. ¶ 80. Specifically,

Plaintiff alleges that Detective Wanek opened the soft

body armor sleeve to reveal the Ceradyne, Inc. rifle plate.

Id. Then, based on the plate’s serial number, Detective

Wanek reached out to Keith Shepherd, “a detective

working for the Department of the Army,” to determine

whether it was possible that Plaintiff, a former serviceman

stationed at Fort Myer, had stolen the plate from the

United States government upon his separation from

the military. Compl. ¶ 16, 138-39. Detective Wanek also

38a

Appendix B

reviewed the reports of the ACPD Officers who were at

the scene, including the representations that they found

“a handwritten list of chemical compounds that have

potential to make the human body bulletproof.” See Dkt.

No. 60-4 at 6-7; cf. Compl. ¶ 98 (challenging the description

of that list). The Complaint further alleges that, at the

conclusion of his investigation and “based upon bare

assumption and speculation,” Detective Wanek “made

false statements to the magistrate judge to seek and

receive an arrest warrant.” Compl. ¶¶ 87-88. According

to Plaintiff, Detective Wanek’s actions were improper,

either because he purposely lied under oath or because

he intentionally misled the magistrate judge by failing to

disclose that the conclusions in the warrant application

were speculative. Compl. ¶¶ 90-91. The warrant was issued

on February 14, 2020.

On February 18, Plaintiff met with Detective Wanek

believing that the detective intended to return Plaintiff’s

property that had been held for safekeeping. Compl. ¶ 115.

On that day, Plaintiff was driving a 2008 Pontiac, which he

parked near the police station. Compl. ¶ 117. And, at some

point during Plaintiff’s conversation with the detective,

Plaintiff was arrested pursuant to the February 14

warrant. Compl. ¶ 119. After the arrest, Detective Wanek

confiscated the keys to the Pontiac and gave them to ACPD

Officer Ashley Barnickle, who then requested a warrant

to search the vehicle. Id. The magistrate judge issued a

warrant later that day. However, according to Plaintiff,

Officer Barnickle “sat in” and “searched” the vehicle

before it was moved to the police impound lot and before

she applied for a search warrant. Id. Plaintiff makes this

39a

Appendix B

allegation based on the words used in the application. In

Plaintiff’s view, Officer Barnickle’s use of the affirmative,

past-tense language (that the car “contained” a cell phone)

proves the officer’s conduct occurred before the warrant

had been issued. Compl. ¶ 120. Among other things, a

bag of drugs was discovered in the Pontiac. Compl. ¶ 128.

Plaintiff alleges that he “had never seen nor possessed”

the drugs and that “[Officer] Barnickle, or another officer,

had the motive, means, and opportunity to plant the bag.”

Compl. ¶ 130.

B. Procedural History

On February 28, 2022, Plaintiff initiated this suit,

alleging constitutional claims against the Federal

Defendants (Armstrong, Shepherd, and the United

States), Arlington County, the ACPD Officers (Fuentes,

Lugasi, Soules, Kline, and Vanak), Officer Barnickle,

and Detective Wanek. Dkt. No. 1. The Complaint was

later amended twice. See Dkt. No. 38 (First Amended

Complaint); Dkt. No. 48 (Second Amended Complaint).

The Court will only consider the allegations contained

in the most recent iteration (Dkt. No. 48), which contains

nine claims against the various officers and governmental

entities.

Count I seeks relief under 42 U.S.C. § 1983 against the

ACPD Officers’ (including Detective Wanek and Officer

Barnickle) alleging Fourth Amendment violations that

occurred during the roadside encounter. Compl. ¶¶ 164179. Count II, also brought under § 1983, alleges that

Arlington County and some ACPD Officers (including

Detective Wanek) violated Plaintiff ’s Second and

40a

Appendix B

Fourteenth Amendment rights by seizing his firearms.

Compl. ¶¶ 180-195. Count III is a common law claim for

False Imprisonment brought against Officer Armstrong

and the ACPD Officers (including Detective Wanek).

Compl. ¶¶ 196-201. Count IV is a common law claim

for Malicious Prosecution brought against Detective

Shepherd and some ACPD Officers (including Detective

Wanek). Compl. ¶¶ 202-213. Count V alleges that the

ACPD Officers (including Detective Wanek and Officer

Barnickle) violated Virginia’s prohibition against

warrantless searches. Compl. ¶¶ 214-224. Count VI is

a Bivens action against Detective Shepherd. Compl.

¶¶ 225-234. Count VII is a Bivens action against Officer

Armstrong. Compl. ¶¶ 235-245. Count VIII is a Monell

claim against Arlington County. Compl. ¶¶ 246-268. And

finally, Count IX is a claim against the United States

brought under the Federal Tort Claims Act (“FTCA”).

Compl. ¶¶ 259-268.

In October 2022, Defendants filed five separate

dismissal motions, asserting various immunities and other

defenses. See Dkt. Nos. 56, 59, 61, 63, 68. In November

2022, Plaintiff filed separate responses opposing each of

the dismissal motions. See Dkt. Nos. 77-81. Later that

month, Defendants filed their replies. See Dkt. No. 82-86.

II. DISCUSSIONS

Federal Defendants (Armstrong, Shepherd,

United States)

The Court will start by addressing Plaintiff’s claims

against the Federal Defendants. As to Officer Armstrong

41a

Appendix B

and Detective Shepherd, Plaintiff makes two separate

Bivens claims—alleging that Officer Armstrong violated

his Fourth and Fifth Amendment rights during the initial

encounter (Count VII) and that Detective Shepherd

violated his Fourth Amendment rights during his

participation in the investigation of Plaintiff’s possible

crimes (Count VI). As to the United States, Plaintiff

alleges two FTCA claims—alleging that the federal

government is liable for the torts of False Imprisonment

(Count III) and Malicious Prosecution (Count IV). 3

3. In his Second Amended Complaint (Dkt. No. 48), Plaintiff

alleged these tort claims against the individual federal officers.

The Federal Defendants moved to substitute the United States for

those individual officers. See Dkt. No. 55 (Notice of Substitution).

Plaintiff challenges that substitution through a Motion to Strike

Substitution. See Dkt. Nos. 71 (Motion), 72-73 (Original and

Supplemental Memoranda in Support). In response, the Federal

Defendants argue that because the individual officers were acting

within the scope of their federal duties, the only proper defendant

for the FTCA claims was the United States itself, citing the Federal

Employees Liability Reform and Tort Compensation Act of 1988, 28

U.S.C. § 2679 (“Westfall Act”). See Dkt. No. 76.

The Westfall Act provides that, once the United States

Attorney has certified that the defendant-employee was acting

within the scope of his or her federal employment at the time of

the incident in question, “any civil action or proceeding commenced

upon such claim in a United States district court shall be deemed

an action against the United States under the provisions of this

title and all references thereto, and the United States shall be

substituted as the party defendant.” 28 U.S.C. § 2679(d)(1). If the

plaintiff challenges the scope of certification, the United States

Attorney’s certification “serves as prima facie evidence and shifts

the burden to the plaintiff to prove, by a preponderance of the

evidence, that the defendant federal employee was acting outside

42a

Appendix B

Plaintiff also claims that the United States is liable for

Shepherd and Armstrong’s conduct under the doctrine of

respondeat superior (Count IX).

The Federal Defendants moved to dismiss the claims,

arguing: (1) that the claims against Officer Armstrong

and Detective Shepherd would impermissibly extend

Bivens liability to new contexts; (2) that, even if relief was

available under Bivens, the claims against the individual

officers would be barred by the doctrine of qualified

immunity; (3) that the United States cannot be held

vicariously liable for the acts of the individual officers; and

(4) that, despite the FTCA, the claims against the United

States itself are barred by sovereign immunity. Dkt. No.

57. The Court agrees, and the claims will be dismissed.

Officer Armstrong and Detective Shepherd

Plaintiff’s claims against Officer Armstrong and

Detective Shepherd will be dismissed.

the scope of his employment.” Gutierrez de Martinez v. DEA, 111

F.3d 1148, 1153 (4th Cir. 1997). To do so, plaintiffs must present

more than “conclusory allegations and speculation”—they must

provide “specific evidence.” Id. at 1155. And when they do not, the

government’s certification is “conclusive.” Id.

Here, Plaintiff provides no evidence that Detective Shepherd

and Officer Armstrong were acting outside of the scope of their

employment. Accordingly, Plaintiff’s Motion to Strike will be

denied, and the Court will analyze Counts III and IV with the

other claim against the United States.

43a

Appendix B

Is a Bivens Remedy Available?

Yes and no. While a Bivens remedy is not available

for most of Plaintiff’s claims against the individual federal

officers, there is one exception. The Court then will

address the individual claims in turn. To start, however,

the Court provides a brief background of the Bivens

remedy and its limits.

In Bivens, the Supreme Court was faced with the

question of whether a plaintiff was entitled to seek

damages in a civil action after federal officers conducted

a warrantless search of his home, arrested him for alleged

narcotics violations, and later subjected him to a visual

strip search. Bivens v. Six Unknown Named Agents,

403 U.S. 388, 389, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971).

Answering that question in the affirmative, the Court

(for the first time) recognized an implied right of action

in which “victims of a constitutional violation by a federal

agent have a right to recover damages against the official

in federal court.” See Carlson v. Green, 446 U.S. 14, 14, 100

S. Ct. 1468, 64 L. Ed. 2d 15 (1980) (discussing Bivens, 403

U.S. 388). However, with two exceptions,4 the availability

of a Bivens remedy has been limited to cases that do not

involve extending such liability to “any new context or new

category of defendants.” Ziglar v. Abbasi, 582 U.S. 120,

135, 137 S. Ct. 1843, 198 L. Ed. 2d 290 (2017).

4. Those other two cases are: Davis v. Passman, 442 U.S. 228,

99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979) (extending remedy to a case

brought under the Fifth Amendment) and Carlson v. Green, 446

U.S. 14, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980) (extending remedy

to a case brought under the Eighth Amendment).

44a

Appendix B

To determine whether a case would amount to such an

extension, the Supreme Court has developed a two-step

inquiry. Id. at 139-40. First, courts must ask whether a

given case presents a “new Bivens context.” If the context

is not new—i.e., if the case is not “different in [any]

meaningful way” from the three cases in which the Court

has recognized a Bivens remedy—then a Bivens remedy

continues to be available. Id. But if the context is new,

then courts must proceed to the second step by evaluating

whether there are “special factors counseling hesitation in

the absence of affirmative action by Congress.” Id. at 140

(cleaned up). If such “special factors” do exist, a Bivens

action is not available. Id.

Plaintiff’s Fifth Amendment

Claims

Plaintiff’s Fifth Amendment claims arise in new

contexts. Plaintiff’s due-process claims differ significantly

from the Fifth Amendment claim recognized in Davis

v. Passman. There, the plaintiff sought damages after

allegedly experiencing gender discrimination by a

congressperson. Davis, 442 U.S. 228, 244, 99 S. Ct.

2264, 60 L. Ed. 2d 846 (1979). Here, Plaintiff seeks to

hold the federal officers liable for “numerous violations

of his property rights and liberty rights.” Compl. ¶¶ 234

(Shepherd), 245 (Armstrong). The Fourth Circuit has

recently held that ignoring similar deviations from the

facts of Davis would require an expansion of Bivens

liability. See Doe v. Meron, 929 F.3d 153, 169 (4th Cir.

2019) (declining to impose liability).

45a

Appendix B

Furthermore, special factors counsel against

extending Bivens liability to that new context. When

determining whether special factors that counsel

hesitation in expanding Bivens are present, courts must

consider “whether the Judiciary is well suited, absent

congressional action or instruction, to consider and weigh

the costs and benefits of allowing a damages action to

proceed.” Tun-Cos v. Perrotte, 922 F.3d 514, 523 (4th

Cir. 2019) (quoting Abbasi, 582 U.S. at 136). “If a factor

exists that cause[s] a court to hesitate before answering

that question in the affirmative,” then a Bivens remedy

is unavailable. Id. “In sum, if there are sound reasons to

think Congress might doubt the efficacy or necessity of

a damages remedy as part of the system for enforcing

the law and correcting a wrong, then courts must refrain

from creating the remedy in order to respect the role of

Congress in determining the nature and extent of federalcourt jurisdiction under Article III.” Abbasi, 582 U.S. at

137 (emphasis added).

The fact that Detective Shepherd and Officer

A rmstrong are military personnel is particularly

important. The Fourth Circuit has noted that—in

more than fifty years—the Supreme Court has “never”

extended Bivens liability to “the military context.” See

Cioca v. Rumsfeld, 720 F.3d 505, 510 (4th Cir. 2013).

First, in Chappell v. Wallace, the Supreme Court

recognized “[t]he special status of the military” under

the Constitution, “the unique disciplinary structure of

the military establishment and Congress’ activity in the

field” as special factors that precluded the extension of

Bivens to an employment discrimination claim brought

46a

Appendix B

by military service members against their superiors. 462

U.S. 296, 303-04, 103 S. Ct. 2362, 76 L. Ed. 2d 586 (1983).

Then, in United States v. Stanley, the Court extended

that rationale to civilian claims made against military

personnel. See 483 U.S. 669, 107 S. Ct. 3054, 97 L. Ed. 2d

550 (1987). Reaffirming Chappell and discounting that

case’s concession that the Court had “never held” “that

military personnel are barred from all redress in civilian

courts for constitutional wrongs suffered in the course of

military service,” the Court unambiguously concluded that

“no Bivens remedy is available for injuries that arise out

of or are in the course of activity incident to service.” Id.

at 683-84. The Fourth Circuit has heeded that guidance.

See Cioca, 720 F.3d at 517 (“[N]o case has permitted a

Bivens action for money damages in the military setting.”);

Lebron v. Rumsfeld, 670 F.3d 540, 550 (4th Cir. 2012)

(rejecting Bivens claim against military officers related

to plaintiff’s detention). And so has this District. See, e.g.,

Heap v. Carter, 112 F. Supp. 3d 402, 430 (E.D. Va. 2015)

(rejecting Bivens claim related to plaintiff’s application

for military employment).

This Court will follow suit. The fact that Plaintiff’s

claims may “not involve sensitive issues of national security

or the administration of a uniquely defense-orientated

institution,” does not undercut the “DoD context” of

Plaintiff’s claims against military personnel. See Doe

v. United States, 381 F. Supp. 3d 573, 618 (M.D.N.C.

2019). And that context (in and of itself) is a special

factor counseling hesitation—especially considering the

instruction of Stanley, Chappell, and the Fourth Circuit’s

applications of those cases.

47a

Appendix B

ii.

Plaintiff’s Fourth Amendment

Claim Against Detective Shepherd

Plainti ff ’s Four th A mendment claim against

Detective Shepherd is foreclosed by circuit precedent.

In Annappareddy, the Fourth Circuit declined to

extend Bivens liability to a similar claim alleging that a

federal investigator submitted a false affidavit to obtain

a warrant. Annappareddy v. Pascale, 996 F.3d 120, 135

(4th Cir. 2021). The court held that no Bivens liability

was available because the alleged misdeeds there were

“different from those in Bivens.” Id. at 136. According

to the Fourth Circuit, “speaking to witnesses, drafting

reports, and sharing information with prosecutors and

other investigators are information-gathering and casebuilding activities that represent a different part of police

work than the apprehension, detention, and physical

searches at issue in Bivens.” Id. (cleaned up). And those

differences were especially important because proving

such claims requires a different type of showing: “one that

would pose a greater risk of intruding on the investigatory

and prosecutorial functions of the executive branch” than

did the claims in Bivens. Id. Because Plaintiff’s Fourth

Amendment claim against Detective Shepherd mirrors

those at issue in Annappareddy, it must suffer the same

fate.

And as explained above, the special factor of Detective

Shepherd’s role as a detective for the Department of the

Army counsels against extending Bivens liability to a new

Fourth Amendment context in this case.

48a

Appendix B

iii. Plaintiff’s Fourth Amendment

Claim Against Officer Armstrong

There is, however, a remedy for Plaintiff’s Fourth

Amendment claim against Officer Armstrong. After the

briefing for the Federal Defendants’ Motion to Dismiss was

submitted, the Fourth Circuit decided Hicks v. Ferreyra,

64 F.4th 156 (4th Cir. 2023) (“Hicks II”), which makes a

Bivens remedy available for claims (like Plaintiff’s) which

allege that, under the Fourth Amendment, an officer

unreasonably seized their vehicle. In that case, two officers

employed by the United States Park Police (“USPP”)

unreasonably seized a person parked on the shoulder of

the Baltimore-Washington Parkway. 64 F.4th at 162-63. At

trial, a jury found that the officers violated the plaintiff’s

Fourth Amendment rights and awarded money damages.

Id. at 164. On appeal, the officers argued that the district

court erred by concluding that they could be held liable

under Bivens as the roadside-nature of the encounter

rendered it a “new context” under Supreme Court

precedent. Id. at 164-65. The Fourth Circuit disagreed.

Id. at 169. In so doing, the appellate court held that—

because both the arrest in Bivens and the stop in Hicks

II were subject to the same “objective reasonableness”

standard—the case was “not an extension of Bivens so

much as a replay of the same principles of constitutional

criminal law prohibiting the unjustified, warrantless

seizure of a person.” Id. at 167 (internal quotation omitted).

And because the officers in Hicks II “confronted nothing

more than established principles of Fourth Amendment

law with extensive judicial guidance,” the Court held that

the plaintiff’s claims fell into an existing Bivens context.

Id. at 168.

49a

Appendix B

As noted above, Hicks II resolves the issue before the

Court today. Like the plaintiffs in Hicks II and Bivens

itself, Plaintiff filed suit “to hold accountable only linelevel investigative officers, not high-ranking officials.”

Id. at 167. Like Hicks II and Bivens, Plaintiff’s claims

are “based on the officers’ discrete actions and did not

implicate large-scale policy decisions or other general

directives or statutes.” Id. Like Hicks II, Plaintiff is suing

federal law-enforcement personnel5 whose actions were

taken in “execution of principles of criminal law wellinformed by decades of judicial guidance regarding the

Fourth Amendment prohibition on the warrantless seizure

of citizens without reasonable, articulable suspicion or

5. The Court acknowledges that, while both cases involve

“federal law-enforcement officers,” the officers in Hicks II

served with the USPP while Officer Armstrong is employed by

the Department of the Army. And as the Fourth Circuit has

announced in a similar case, Plaintiff’s claims against Officer

Armstrong would (at least, arguably) extend Bivens liability to a

new group of defendants—military personnel. See Doe v. Meron,

929 F.3d 153,169 (4th Cir. 2019) (finding that a plaintiff’s claims

present a new context when defendants were “employees of the

Department of Defense, operating under naval regulations”).

Therefore—notwithstanding Hicks II—Plaintiff’s claims against

Officer Armstrong (“a military police officer working for the

Department of Defense,” Compl. ¶ 10) may nonetheless present a

“new context” of Bivens liability.

However, the Court need not conclusively find Bivens applies

here as any error committed by subjecting Officer Armstrong to

Bivens liability under Hicks II is harmless. As explained below,

the Court finds that the claims against Officer Armstrong are

nonetheless blocked by his assertion of the qualified-immunity

defense.

50a

Appendix B

probable cause.” Id. And as the appellate court has noted,

“courts, including [the Fourth Circuit], have applied

Bivens to Fourth Amendment claims arising from police

traffic stops like this one.” Hicks v. Ferreyra, 965 F.3d at

311 (4th Cir. 2022) (collecting cases) (“Hicks I”) (cleaned

up).

Accordingly, as in the Hicks cases, the Court finds

that Plaintiff’s claims do not represent an extension of

the doctrine and are therefore cognizable under Bivens.

See Hicks II, 64 F.4th at 169 (ending its inquiry before

addressing any “special factors” after finding that the case

did not arise in a new context) (citing Tun-Cos v. Perrotte,

922 F.3d 514, 522-23 (4th Cir. 2019)).

Did Plaintiff Sufficiently Plead a

Constitutional Violation?

No. Notwithstanding the availability of a Bivens

remedy, Plaintiff’s claims against Officer Armstrong

do not overcome the assertion of qualified immunity.

Officers may assert the defense of qualified immunity only

when their conduct “does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Saucier

v. Katz sets out the two-step process for determining when

the defense applies. See 533 U.S. 194, 121 S. Ct. 2151, 150

L. Ed. 2d 272 (2001). First: Determine whether, “[t]aken

in the light most favorable to the party asserting the

injury,” the facts alleged by that party “show the officer’s

conduct violated a constitutional right.” Id. at 201. Second:

51a

Appendix B

If a constitutional violation occurred, ask whether “it

would be clear to an objectively reasonable officer that

his conduct violated that right.” Id. at 202. In undertaking

that second inquiry, the court “must ascertain whether

a reasonable [official] could have believed [the challenged

conduct] to be lawful, in light of clearly established law.”

Meeker v. Edmundson, 415 F.3d 317, 323 (4th Cir. 2005)

(citing Anderson v. Creighton, 483 U.S. 635, 641, 107 S.

Ct. 3034, 97 L. Ed. 2d 523 (1987)).

Applying that standard, the Court finds that Plaintiff

has failed to establish that his Fourth Amendment rights

were violated. And while Officer Armstrong correctly

argues that Plaintiff’s Fourth Amendment rights were not,

the Court finds that the Fourth Amendment’s protections

were implicated by his interaction with Plaintiff. As the

Supreme Court has explained, “a person has been ‘seized’

within the meaning of the Fourth Amendment only if, in

view of all the circumstances surrounding the incident,

a reasonable person would have believed that he was not

free to leave.” United States v. Mendenhall, 446 U.S.

544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). And, in

his Complaint, Plaintiff alleges that Officer Armstrong

positioned his car in a manner that prevented him from

being able to end the interaction by driving away. See

Compl. ¶¶ 37, 39. The Court therefore finds that Plaintiff

has sufficiently alleged that he was not free to leave,

triggering his Fourth Amendment protections.

Those protections, however, are subject to several

well-defined exceptions. Defendants argue that the socalled “community caretaker” exception applies to these

52a

Appendix B

facts. Dkt. No. 57 at 21. Under that exception, “a police

officer serving as a community caretaker to protect

persons and property is constitutionally permitted to

make searches and seizures without a warrant.” Phillips

v. Peddle, 7 F. App’x 175, 178 (4th Cir. 2001) (citing Cady

v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L.

Ed. 2d 706 (1973)). In other words—so long as the officer’s

actions were unrelated to “the detection, investigation,

or acquisition of evidence relating to the violation of a

criminal statute”—the Constitution does not require

either a warrant or a showing that the officer possessed

the level of suspicion that would otherwise be needed to

justify the intrusion. Cady, 413 U.S. at 441.

Here, the Second Amended Complaint and the

incorporated materials reflect that Officer Armstrong

approached Plaintiff because he was concerned from

a community-caretaking standpoint, not because

he suspected any criminal activity. See Compl. ¶ 38,

n.3 (quoting Officer Armstrong’s testimony at the

state suppression hearing). According to his sworn

statements—after witnessing Plaintiff move “erratically”

while sitting in the vehicle, Dkt. No. 57-1 at 12:21-13:4—

the officer “wasn’t sure if it was a medical emergency”

or “if maybe somebody was just upset that their car had

broken down and they needed some kind of assistance,”

and that uncertainty “drew [his] attention to the vehicle.”

See id. at 14:2-12 (explaining that family members had

a history of seizures, heightening his concerns). And,

because it is unable to discredit that sworn testimony

at this stage, the Court finds that Plaintiff has failed

to allege that a constitutional violation occurred when

53a

Appendix B

Officer Armstrong approached his vehicle. S. Walk at

Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at

Broadlands, LLC, 713 F.3d 175, 182 (4th Cir. 2013) (on a

motion to dismiss: “In the event of conflict between the

bare allegations of the complaint and any exhibit attached

to the complaint, the exhibit prevails.”) (cleaned up).

Thus—because the claims against him would extend

Bivens liability to a new context and because the special

factors surrounding those claims militate against such an

extension—Plaintiff’s claims against Detective Shepherd

will be dismissed. And, because Plaintiff fails to allege a

constitutional violation against him, Officer Armstrong

is entitled to qualified immunity, and the claims against

him will be dismissed.

The United States

The claims against the United States—Count III

(false imprisonment), Count IV (malicious prosecution),

and Count IX (vicarious liability)—will also be dismissed.

Can the United States be Held

Vicariously Liable under the FTCA?

No. Skipping ahead, the Court starts by addressing

Plaintiff’s contention that the United States can be liable

for Shepherd and Armstrong’s conduct under the FTCA

through the doctrine of respondeat superior. See Compl.

¶ 264 (“The United States is liable to [Plaintiff] under the

doctrines of respondeat superior and vicarious liability

for the wrongful conduct of Shepherd and Armstrong.”).

54a

Appendix B

As the Federal Defendants point out, that claim is not

cognizable. See Dkt. No. 57 at 22-23. Nor does it need to

be. The FTCA applies exclusively to claims against federal

employees that are “acting within the scope of [their] office

or employment.” 28 U.S.C. § 2674. In other words, “[a]ll

FTCA liability is respondeat superior liability.” Johnson

v. Sawyer, 47 F.3d 716, 730 (5th Cir. 1995).

Thus—because FTCA liability and employer liability

are one in the same—Count IX is not cognizable as a

standalone claim and will therefore be dismissed. See

Thompson v. Dilger, 696 F. Supp. 1071, 1072 n.1 (E.D. Va.

1988) (“[T]he FTCA subjects the United States to liability

only for negligent or wrongful acts of a federal employee.

Claims of vicarious or strict liability are, therefore,

excluded.”)

Does the Court Have Jurisdiction

Over the Other FTCA Claims?

No. Turning to Counts III and IV, the United States

argues (and the Court agrees) that Plaintiff’s claims

should be dismissed for lack of subject matter jurisdiction.

As the Supreme Court has explained, “[a]bsent

a waiver, sovereign immunity shields the Federal

Government and its agencies from suit.” FDIC v. Meyer,

510 U.S. 471, 474, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994).

The FTCA waives the United States’ sovereign immunity

with respect to certain damages actions based on “the

negligent or wrongful act[s] or omission[s]” of federal

employees. 28 U.S.C. § 1346(b)(1). However, the FTCA’s

55a

Appendix B

waiver is limited by several exceptions, which, if applicable,

preserve the federal sovereign’s immunity from suit and

deprive the district court of subject matter jurisdiction.

See Medina v. United States, 259 F.3d 220, 223 (4th Cir.

2001); Blanco Ayala v. United States, 982 F.3d 209, 214

(4th Cir. 2020) (noting that the FTCA’s “broad waiver of

sovereign immunity is cabined by a list of exceptions”).

At issue in this case is the so-called “discretionaryfunction exception.” Under that exception, the United

States preserves its immunity as to any claim “based

upon the exercise or performance or the failure to

exercise or perform a discretionary function or duty

on the part of a federal agency or an employee of the

Government, whether or not the discretion involved be

abused.” 28 U.S.C. § 2680(a). This exception “prevent[s]

judicial ‘second-guessing’ of legislative and administrative

decisions grounded in social, economic, and political policy

through the medium of an action in tort.” Williams v.

United States, 50 F.3d 299, 309 (4th Cir. 1995). A claim is

based upon an agency’s performance of a discretionary

function when: (1) “the challenged governmental conduct

involves an element of judgment or choice” because

no “statute, regulation, or policy prescribes a specific

course of action,” and (2) “the judgment was one that the

exception was designed to protect, namely a judgment

based on considerations of public policy.” Rich v. United

States, 811 F.3d 140, 144 (4th Cir. 2015). Boiled down: “[f]or

a complaint to survive a motion to dismiss, it must allege

facts which would support a finding that the challenged

actions are not the kind of conduct that can be said to be

grounded in the policy of the regulatory regime.” United

56a

Appendix B

States v. Gaubert, 499 U.S. 315, 324-25, 111 S. Ct. 1267,

113 L. Ed. 2d 335 (1991).

First, there can be little doubt that the threshold

requirement is satisfied here. Plaintiff is seeking to hold

the United States liable for Shepherd and Armstrong’s

decisions to assist local law enforcement officers in

the search of his vehicle and the investigation of his

possession of the rifle plate. See Compl. ¶¶ 196-201

(lumping Armstrong in with ACPD officers for actions

taken during the roadside search); Compl. ¶¶ 202-213,

201 (lumping Shepherd in with ACPD officers for actions

taken during the subsequent investigation). As this Court

has recognized, “[i]t is well-established that decisions

by law enforcement regarding whom to investigate,

how to investigate, and whether to prosecute constitute

discretionary activity by government officials.” Blanco

Ayala v. United States, 386 F. Supp. 3d 635, 640 (E.D.

Va. 2019), aff’d, 982 F.3d 209 (4th Cir. 2020). And while

the Court finds that Plaintiff’s constitutional rights were

not violated during either series of events, that would

not change the outcome. Blanco Ayala, 386 F. Supp. 3d

at 640-41 (“[T]here is no requirement that the decisions

made by law enforcement officers during the investigation

or prosecution of a case must be correct to fall within the

discretionary-function exception.”) (citing Hodgson v.

United States, No. SA:13-CV-702, 2014 U.S. Dist. LEXIS

115435, 2014 WL 4161777, at *11 (W.D. Tex. Aug. 19, 2014));

see also 28 U.S.C. § 2680(a) (stating that the discretionaryfunction exception applies “whether or not the discretion

involved be abused”).

57a

Appendix B

Second, the Court finds that the law enforcement

decisions at issue were of the type that the exception was

designed to protect. See Gaubert, 499 U.S. at 322-23.

“The basis for the discretionary[-]function exception was

Congress’ desire to prevent judicial second-guessing of

legislative and administrative decisions grounded in social,

economic, and political policy through the medium of an

action in tort.” Berkovitz v. United States, 486 U.S. 531,

536-37, 108 S. Ct. 1954, 100 L. Ed. 2d 531 (1988) (internal

quotation omitted). Both Armstrong and Shepherd’s

actions fall within the justifications of the exception. See

Blanco Ayala, 386 F. Supp. 3d at 640. Indeed, as other

courts within the Fourth Circuit have recognized, “claims

of negligent investigation or negligent arrest by law

enforcement officers are barred by the discretionary[-]

function exception.” Burgess v. Watson, 2014 U.S. Dist.

LEXIS 127098, 2014 WL 4540256, at *3 (M.D.N.C. Sept.

11, 2014) (citing Suter v. United States, 441 F.3d 306 (4th

Cir. 2006)). And the Fourth Circuit itself has specifically

applied the discretionary-function exception to claims

arising out of military investigations. See Blakey v. U.S.S.

Iowa, 991 F.2d 148, 153 (4th Cir. 1993).

Thus—because the claims fall within an exception

to the waiver of sovereign immunity—Plaintiff’s claims

against the United States will be dismissed.

B. Arlington County

Second, the Court will address Plaintiff’s claims

against Arlington County. Although the Second Amended

Complaint is unclear, Plaintiff apparently seeks to hold

58a

Appendix B

the County Defendant liable for alleged violations of the

Second and Fourth Amendments (Counts II and VIII,

respectively). As to the Second Amendment claim, Plaintiff

alleges that “Arlington County’s widespread infringement

upon Second Amendment rights has been evidenced by the

historical practice of harassing law-abiding gun owners.”

Compl. ¶ 247. As to the Fourth Amendment claim, Plaintiff

alleges that the “lack of supervision over the process of the

officers searching Mr. Wells’ car and seizing his property”

and the “customary conduct of Wanek and Barnickle

in their warrant application processes” resulted in the

“numerous constitutional violations” he allegedly suffered.

Compl. ¶¶ 252, 254. The County moved to dismiss both

claims, arguing that Plaintiff has only pled conclusory

statements that there was a countywide policy or custom

that led to Plaintiff’s alleged constitutional deprivation.

See Dkt. No. 68. The Court agrees.

On its face, § 1983 does not reach local governments.

See 28 U.S.C. § 1983 (imposing liability to “all persons

acting under the color of law” (emphasis added)). However,

for these purposes, a municipal entity can be considered

a “person” (and thus subject to suit) “when execution of

a government’s policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly

be said to represent official policy, inflicts the injury

that the government as an entity is responsible under

§ 1983.” Hunter v. Town of Mocksville, 897 F.3d 538,

554 (4th Cir. 2018) (quoting Monell v. Dep’t of Social

Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d

611 (1978)). That said, “a municipality cannot be held

liable solely because it employs a tortfeasor—or, in other

59a

Appendix B

words, a municipality cannot be held liable under § 1983

on a respondeat superior theory.” Monell, 436 U.S. at

691. “To be sure,” however, “official policy often refers

to formal rules or understandings—often but not always

committed to writing—that are intended to, and do,

establish fixed plans of action to be followed under similar

circumstances consistently and over time.” Pembaur v.

City of Cincinnati, 475 U.S. 469, 480-81, 106 S. Ct. 1292,

89 L. Ed. 2d 452.

The Fourth Circuit has identified four avenues

through which a plaintiff asserting a § 1983 claim may

demonstrate municipal liability for a policy or custom:

(1) through an express policy, such as a written

ordinance or regulation; (2) through the

decisions of a person with final policymaking

authority; (3) through an omission, such as a

failure to properly train officers, that manifests

deliberate indifference to the rights of citizens;

or (4) through a practice that is so persistent

and widespread as to constitute a custom or

usage with the force of law.

Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (cleaned

up).

Did Plaintiff Establish a Policy or Custom

that Led to His Constitutional Harm?

No. Because each of Plaintiff’s arguments regarding

the existence of a policy fall short for similar reasons,

60a

Appendix B

the Court will analyze them together. Broadly, Plaintiff

argues that the County is liable for Mr. Wells’ injuries

“because the routine or habitual unreasonable nature of

the conduct of the ACPD officers on and after February

9, 2020, evince a pattern of unconstitutional conduct and

irrationality.” Dkt. No. 77 (emphasis added). Specifically, to

show a policy or custom of Second Amendment violations,

Plaintiff relies on statistical data that, in his view, shows

that Black gun owners are arrested at a disproportionate

rate in Arlington County. Compl. ¶ 250. Plaintiff also

relies on a county ordinance that prohibits possession

of a firearm in certain county-owned buildings and at

county-run events. Compl. ¶ 249 (citing Arlington County,

Va. Code § 13-11). To show a policy or custom of Fourth

Amendment violations, Plaintiff points to the “pattern”

of alleged constitutional violations that were committed

by the Defendants in this case. See Dkt. No. 77 (citing

paragraphs of the Second Amended Complaint). Those

arguments are unpersuasive.

Starting with the Second Amendment, the thrust

of Plaintiff’s argument is that Arlington County has an

“irrational” “anti-gun” custom of “harassing gun owners.”

Dkt. No. 77 at 24-25. The Court notes that, even if that

were true, Plaintiff’s evidence (the ordinance and the

statistics) is unavailing. First, the Supreme Court has

never held that individuals have a right to possess a

gun in government buildings and events. See N.Y. State

Rifle & Pistol Assoc. v. Bruen, 142 S. Ct. 2111, 2133,

213 L. Ed. 2d 387 (2022) (“Bruen”) (noting that schools

and government buildings are “sensitive places” “where

arms carrying could be prohibited consistent with the

61a

Appendix B

Second Amendment”). For that reason, the ordinance

Plaintiff cites hardly evidences a policy that mandates

unconstitutional violations. The statistical information

is also unhelpful. While it may be true, according to

the report provided, that Black men are approached by

Arlington County officers at a disproportionate rate,

that alone does not satisfy Monell’s requirement that

plaintiffs show a pattern of unconstitutional (not just

undesirable) conduct. See Whren v. United States, 517

U.S. 806, 813-14, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996)

(holding that “subjective intentions play no role” in the

Fourth Amendment analysis).

As to the Fourth Amendment claim, Plaintiff provides

no more than conclusory allegations that the officers “acted

pursuant to the policies, practices, informal customs, or

acted without sufficient training or supervision by their

employers.” Compl. ¶ 251. Indeed, Plaintiff fails to identify

any of the policies, practices, or informal customs he

contends are at issue here. Nor does he identify a specific

area of training that the County failed to provide. At best,

Plaintiff identifies the “pattern” of alleged violations that

he endured. But, to hold the county liable he must do

more. Starbuck v. Williamsburg James City Cnty. Sch.

Bd., 28 F.4th 529, 534 (4th Cir. 2022) (noting that, alone, a

respondeat superior theory is “impermissible” to impose

liability under Monell).

Thus—because the claims do not allege a policy or

custom caused the alleged constitutional violations—

Plaintiff’s claims against the Arlington County will be

dismissed.

62a

Appendix B

ACPD Officers (Fuentes, Lugasi, Soules, Kline,

and Vanak)

Next, the Court turns to the claims against the

local officers. Plaintiff claims that the ACPD Officers

are liable for: (1) violating the Fourth Amendment and

Virginia law when they continued the stop initiated by

Officer Armstrong (Counts I and V); (2) violating the

Fourth Amendment and Virginia law when they searched

his Mustang (Counts I and V); (3) violating the Second

Amendment when they took his firearms into safekeeping

(Count II); (4) committing the tort of false imprisonment

when they continued the detention initiated by Officer

Armstrong (Count III); and (5) committing the tort

of malicious prosecution when they cooperated with

Detective Wanek’s investigation (Count IV). The ACPD

Officers moved for dismissal, asserting the defense of

qualified immunity as to Counts I, II, and V. See Dkt. No.

60 at 19-28. The officers also argue that Plaintiff fails to

state a claim as to Counts III and IV. Id. at 28-30. The

Court agrees, and the claims against the local officers

will be dismissed.

Did Plainti f f Su f f iciently Plea d a

Constitutional or Statutory Claim?

No. Because Plaintiff fails to establish that the

search or seizure was unreasonable, his allegations do

not overcome qualified immunity’s first prong, nor do they

amount to a claim under Virginia’s state analog. The Court

will take Plaintiff’s four constitutional arguments in turn.

63a

Appendix B

First, as to the claim that the ACPD Officers violated

the Fourth Amendment when they continued Plaintiff’s

detention, the Court notes that it is well-settled that

officers in one jurisdiction are “entitled to rely on the

determination of [an officer from] another jurisdiction that

there is reasonable suspicion to stop a person.” United

States v. Avagyan, 164 F. Supp. 3d 864, 884 (E.D. Va.

2016). Officers responding to a call for assistance are “not

required to conduct an independent investigation of facts

to come to their own determination”—indeed, “[s]uch a

requirement would be unworkable in the environments

in which the police operate.” Guerrero v. Deane, 750 F.

Supp. 2d 631, 652 (E.D. Va. 2010). Thus, even if Officer

Armstrong’s decision to stop Plaintiff was improper,

the responding ACPD Officers would not be liable for

the continuation of that detention. See United States v.

Hensley, 469 U.S. 221, 232, 105 S. Ct. 675, 83 L. Ed. 2d

604 (1985) (noting that officers who rely on information

from another in good faith “may have a good-faith

defense to any civil suit”). Here, the ACPD Officers were

responding to Officer Armstrong’s call for assistance

with a stop already in progress. As such, the responding

officers were permitted to (and did) rely on Armstrong’s

determination that the detention was warranted in good

faith. And because Plaintiff alleges no facts that suggest

otherwise, he has failed to show how the officers’ conduct

was unreasonable.

Second, as to the officers’ decision to search the

vehicle, the ACPD Officers argue that their conduct was

reasonable under the inventory-search exception to the

Fourth Amendment. The Court agrees.

64a

Appendix B

Police officers frequently perform inventory searches

when they impound vehicles or detain suspects. See, e.g.,

Illinois v. Lafayette, 462 U.S. 640, 648, 103 S. Ct. 2605, 77

L. Ed. 2d 65 (1983); South Dakota v. Opperman, 428 U.S.

364, 376, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976) (holding

that evidence discovered during the impoundment of an

illegally parked automobile is admissible at trial). Such

searches “serve to protect an owner’s property while it

is in the custody of the police, to insure against claims

of lost, stolen, or vandalized property, and to guard the

police from danger.” Colorado v. Bertine, 479 U.S. 367,

372, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987); see also

United States v. Banks, 482 F.3d 733, 739 (4th Cir. 2007)

(“A proper inventory search is merely an incidental

administrative step.”) (cleaned up). And for the inventorysearch exception to apply, the search must have “be[en]

conducted according to standardized criteria,” such as

a uniform police department policy, Bertine, 479 U.S. at

374 n.6, and performed in good faith, Banks, 482 F.3d at

739. See United States v. Brown, 787 F.2d 929, 932 (4th

Cir. 1986).

Plaintiff argues that the exception does not apply

for two reasons. His first argument—that the exception

cannot apply when the officers did not inventory every item

in the vehicle—is foreclosed by the law. While the officers

did not remove all the property found for safekeeping,

Plaintiff does not show how that failure brought the

officers so out of step with the department’s procedures as

to deprive them of the exception’s protection. See United

States v. White, 707 F. App’x 766, 769-70 (4th Cir. 2017)

(finding that, despite the officer’s failure to list every item

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found in the vehicle, he generally complied with standard

procedures in conducting the search and rejecting the

argument that the inventory search was conducted in bad

faith for the purpose of gathering evidence).

Plaintiff’s second argument—that the search was

“pretextual rummaging” since the officers never expected

the car to be towed—is foreclosed by the facts. The audio

directly refutes Plaintiff’s suggestion that the search was

a “ruse.” See Dkt. No. 65-1 at 4:48:35 (Plaintiff is informed

that the vehicle had to be towed); id. at 4:48:12 (same); id.

at 5:02:30 (Plaintiff is informed that the vehicle would be

towed to the police impound lot and could not be towed

to his home); id. at 5:15:29 (same).6 Therefore, because

the search was conducted while the officers were under

the reasonable belief that the vehicle would be towed into

police custody, the exception applies. See United States

v. Fort, 313 F. App’x 665, 667 (4th Cir. 2009) (Table)

(holding that an inventory search was valid even though

the vehicle was never taken into police custody because

the defendant’s wife arrived to drive it away).

Third, as to the officers’ decision to take some of

Plaintiff’s property into safekeeping, the Court’s analysis

begins and ends with Plaintiff’s consent. As made clear in

the video recording of the roadside encounter, the ACPD

Officers gave Plaintiff the option to either have someone

6. To the extent that the video evidence conflicts with the

Plaintiff’s allegations, the video controls. See Goines v. Valle

Community Servs. Bd., 822 F. 3d. 159, 166 (4th Cir. 2016) (“[I]n

the event of conflict between the bare allegations in the complaint

and any exhibit attached, the exhibit prevails.”).

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come pick him up and take all the property removed from

the Mustang with him or to have the officers place the

property into safekeeping to be retrieved from police

custody at his convenience. Then—although the officers

would have “prefer[red]” that he chose to be picked up and

take his things, Dkt. No. 65-1 at 4:48:50 P.M.—Plaintiff

ultimately decided that he did not want to hold the officers

any longer and opted for the officers to take temporary

possession of the items, signing a property safekeeping

form to that effect. Id. at 4:50:20 P.M.; see also Dkt. No.

48-3 (signed property safekeeping form).7

And fourth, as to the Second Amendment claims, the

Court again notes its skepticism toward the viability of

Plaintiff’s argument regarding his right to bear arms—

even after the Supreme Court’s recent decision in Bruen,

142 S.Ct. 2111. See Fort, 313 F. App’x at 668 (holding that

it was proper for officers to place an assault rifle, loaded

magazines, tactical gear, and other items in safekeeping

“to avert any danger . . . posed by the property”). However,

the Court need not address the merits of that claim

because, as with the other property discussed above,

any encroachment on Plaintiff’s gun rights was excused

7. As to Plaintiff’s claims made under Va. Code § 19.2-59,

the Court recognizes that claims under that provision have

“consistently been held to provide the same protections as the

Fourth Amendment.” See Nazario v. Gutierrez, No. 2:21-cv-169,

2022 U.S. Dist. LEXIS 142044, 2022 WL 3213538 (E.D. Va. Aug.

9, 2022) (citing Carter v. Virginia, 209 Va. 317, 163 S.E.2d 589,

592 (Va. 1968)). As such, those claims will be dismissed for the

same reasons the Court dismisses those made under the federal

Constitution.

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by his consent to the weapons’ placement in safekeeping.

See Dkt. No. 48-3.

Thus—because Plaintiff fails to allege a constitutional

violation—the ACPD Officers are entitled to qualified

immunity, and the constitutional claims against them

will be dismissed. And—because the officers’ conduct

was reasonable—the statutory claims will be dismissed

as well.

Did Plaintiff Sufficiently Plead a Tort

Claim?

No. Plaintiff failed to allege sufficient facts to sustain

either his false-imprisonment or malicious-prosecution

claim.

To start, as explained above, Plaintiff cannot

reasonably argue that the fact of his detention was

unlawful. Perhaps recognizing this fact, Plaintiff’s

opposition brief asserts (for the first time) that he is not

challenging the fact of his detention—instead, he argues

that the length of the detention made it unlawful. Dkt. No.

79 at 17. And—although the Court need not address his

new argument at all, see Porter v. Hamilton, No. 1:20cv-203, 2022 U.S. Dist. LEXIS 37281, 2022 WL 619959,

at *1 n.3 (E.D. Va. Mar. 2, 2022) (noting that plaintiffs

may not amend their complaint by raising new arguments

in a response to a motion to dismiss)—the Court finds

that the argument fails on its merits. Without providing

support, Plaintiff asserts that two hours was too long for

the officers to hold him. Plaintiff, however, fails to account

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for the fact that the officers needed to perform a (valid, see

supra pp. 23-25) inventory search of the vehicle, the fact

that they all had to wait for the tow truck to arrive, and the

fact that the officers also gave Plaintiff time to try to find a

ride. Considering those facts (along with Plaintiff’s failure

to allege why they do not justify the length of the stop), the

Court finds that Plaintiff failed to state a claim for false

imprisonment. See Rodriguez v. United States, 575 U.S.

348, 354, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (holding that

an officer’s authority to continue a traffic stop “ends when

tasks tied to the traffic infraction are—or reasonably

should have been—completed”); United States v. Perez,

30 F.4th 369, 376-77 (4th Cir. 2022) (citing Rodriguez and

holding that a stop was not impermissibly extended by

the need to wait on a tow truck’s arrival).

Plaintiff’s malicious-prosecution claim is equally

deficient. To state a claim for malicious prosecution,

Plaintiff would need to allege (among other things) that the

prosecution was initiated without probable cause and with

the cooperation of the defendants. Lewis v. Kei, 281 Va. 715,

708 S.E.2d 884, 889 (Va. 2011). However, although Plaintiff

states that the ACPD Officers “materially cooperated”

with the prosecution by “providing misleading notes”

about what they observed during their search of Plaintiff’s

vehicle, his Amended Complaint does not identify any

specific statements. Nor does he explain how any of the

statements were false. Nor does he explain how any of the

alleged conduct or statements were a motivating factor

in the Commonwealth Attorney’s decision to prosecute

Plaintiff for receipt of stolen property. Indeed, as is

routine, the officers submitted their reports and copies of

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the notes found in Plaintiff’s vehicle to prosecutors. See

Dkt. No. 62-5. The Court finds that doing only that does

not qualify as the “material involvement” required under

Virginia law. Cf. Lewis, 708 S.E.2d at 889 (“Actions for

malicious prosecution arising from criminal proceedings

are not favored in Virginia and the requirements for

maintaining such actions are more stringent.”).

Thus—because Plaintiff fails to allege sufficient

facts—his tort claims against the ACPD Officers will be

dismissed.

ACPD Officer Barnickle

The Court now turns to Plaintiff’s claims against

Officer Barnickle. In the Second Amended Complaint,

Plaintiff asserts that Officer Barnickle violated both the

Fourth Amendment (Count I) and the state statutory

analog, Va. Code § 19.2-59 (Count V). Specifically, Plaintiff

alleges that Officer Barnickle (1) searched his Pontiac

before obtaining a warrant, (2) planted a bag of drugs in

the car, and (3) submitted a falsified warrant application.

See Compl. ¶¶ 118-33. Officer Barnickle moved for

dismissal, also asserting the defense of qualified immunity.

As such, the Court must again conduct the two-step

inquiry laid out above. See supra pp. 13-14.

Did Plainti f f Su f f iciently Plea d a

Constitutional Violation?

No. To make it past qualified immunity’s first step,

Plaintiff must allege that it is more than merely possible

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that Officer Barnickle violated his constitutional rights.

He has not.

The Court starts by finding that Plaintiff’s allegations

that Officer Barnickle planted drugs in the Pontiac while

it was in police custody—supported by only Plaintiff’s

statement that he had never seen nor possessed the drugs

that were uncovered—fails to make out a claim for relief

that is “plausible on its face.” See Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed.

2d 929 (2007). That claim will therefore be dismissed.

Next, the Court rejects the claim that Officer

Barnickle violated the Fourth Amendment when she

(allegedly) searched the Pontiac prior to obtaining a

signed warrant. Although the parties devote considerable

portions of their briefing to discussions of the “automobile

exception” to the warrant requirement, see Dkt. No. 62 at

7-9; Dkt. No. 81 at 6-7, the Court need not address that

issue because a different doctrine guides its analysis.

As pointed out in Officer Barnickle’s Reply (Dkt. No.

84), the “inevitable discovery doctrine” generally “allows

the government to use evidence gathered in an otherwise

unreasonable search if it can prove by a preponderance of

the evidence that law enforcement would have ultimately

or inevitably discovered the evidence by lawful means.”

United States v. Seay, 944 F.3d 220, 223 (4th Cir. 2019)

(internal quotations omitted); Nix. v. Williams, 467

U.S. 431, 444, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984)

(establishing the “inevitable discovery” exception to

the exclusionary rule). For these purposes, “lawful

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means” include searches that fall into an exception to

the warrant requirement, “such as an inventory search[]

that would have inevitably uncovered the evidence in

question.” Id. Plaintiff was arrested upon his arrival at

the ACPD station on February 18, 2020. Accordingly, all

his belongings (including the Pontiac) would have been

taken into police custody and subjected to an inventory

search pursuant to department policy. Admittedly, that

question is complicated by the fact that just because a

legal exception allows ill-gotten evidence to be included

at a criminal proceeding does not mean that a Fourth

Amendment violation did not occur in the first instance.

The Court, however, does not need to resolve that issue.

Instead, the Court finds that, at a minimum, it has not yet

been clearly established that officers can be held civilly

liable for searching a vehicle that would have eventually

been searched later pursuant to department policy. Cf.

Anderson v. Creighton, 483 U.S. 635, 644, 107 S. Ct. 3034,

97 L. Ed. 2d 523 (1987) (holding that officers that act in an

“objectively legally reasonable” manner “should no more

be held personally liable in damages than should officials

making analogous determinations in other areas of law”).

The claim that Officer Barnickle intentionally misled

the magistrate judge to obtain a warrant to search the

Pontiac also fails. Officers are permitted to, in good faith,

rely on information obtained from other members of law

enforcement. See United States v. Hensley, 469 U.S. 221,

231, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985). And as made

clear in Officer Barnickle’s warrant application, she relied

on information obtained from both local and federal officers

involved with the case. See Dkt. No. 62-4 at 16 (stating that

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the “Basis for Facts” included information from Detective

Wanek, Officer Shepherd, and an FBI task force agent).

Plaintiff has not made any allegations that such reliance

was in bad faith or was otherwise unreasonable. Cf. United

States v. Ventresca, 380 U.S. 102, 111, 85 S. Ct. 741, 13

L. Ed. 2d 684 (1965) (“Observations of fellow officers of

the Government engaged in a common investigation are

plainly a reliable basis for a warrant applied for by one of

their number.”); Mom’s, Inc. v. Willman, 109 F. App’x 629,

636 (4th Cir. 2004) (holding that an officer’s reasonable

reliance on information from another severed the causal

connection between their conduct and any underlying

constitutional violation). For that reason, the Court finds

that Plaintiff has not adequately alleged that Officer

Barnickle violated his Fourth Amendment rights.

Thus—because Plaintiff fails to allege a clearly

established constitutional violation—Officer Barnickle is

entitled to qualified immunity, and the claims against her

will be dismissed.

E. ACPD Detective Wanek

Finally, the Court addresses the claims against ACPD

Detective Wanek. Plaintiff alleges that Detective Wanek

is liable

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