Roy Rogers v. Christopher Stem

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1923
ROY ROGERS,
Plaintiff - Appellee,
and
DAWN LINDSAY,
Plaintiff,
v.
CHRISTOPHER STEM,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony J. Trenga,
District Judge. (1:12-cv-00976-AJT-JFA)
Argued: September 16, 2014 Decided: November 6, 2014
Before DUNCAN, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Agee and Judge Diaz joined.
ARGUED: Robert A. Dybing, THOMPSON MCMULLAN PC, Richmond,
Virginia, for Appellant. Victor M. Glasberg, VICTOR M. GLASBERG
& ASSOCIATES, Alexandria, Virginia, for Appellee. ON BRIEF:
Mark R. Colombell, THOMPSON MCMULLAN PC, Richmond, Virginia;
Yvonne S. Gibney, Senior Assistant County Attorney, OFFICE OF

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THE COUNTY ATTORNEY, Hanover, Virginia, for Appellant.
Bernadette Armand, VICTOR M. GLASBERG & ASSOCIATES, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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DUNCAN, Circuit Judge:
Defendant-Appellant Christopher Stem (“Officer Stem”), an
investigator with the Hanover County Sheriff’s Office (“HCSO”)
Narcotics Unit in Hanover, Virginia, appeals the district
court’s denial of his motion for summary judgment based on
qualified immunity. Plaintiff-Appellee Roy Rogers (“Rogers”),
manager of Custom Blends Tobacco Store (“Custom Blends”) in
Hanover, Virginia, brought a 42 U.S.C. § 1983 action against
Officer Stem in his individual capacity, alleging that Stem
arrested him in violation of the Fourth and Fourteenth
Amendments to the United States Constitution because Stem lacked
probable cause to support the warrant issued for Rogers’s
arrest.1 The district court found that Officer Stem lacked
probable cause and was not entitled to qualified immunity. For
the reasons that follow, we affirm.
1 Dawn Lindsay, a store clerk at Custom Blends, was also
arrested with Rogers and charged with the same violations of
Virginia law. Like the charges against Rogers, the charges
against Lindsay were dismissed at a preliminary hearing.
Lindsay also filed a § 1983 claim against Officer Stem, but
voluntarily dismissed her claim on January 15, 2013.

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I.
A.
Rogers was the manager of Custom Blends at all times
pertinent to this appeal. The store sells tobacco and incense
products. The incense products include “air freshener sprays,
car vent deodorizers, incense candles, incense sticks, incense
cones, and incense burners with aromatic oils, aromatic solids
or herbal incense to be heated therein.” Rogers v. Stem, No.
1:12-cv-976 (AJT), 2013 WL 3338651, at *1 (E.D. Va. July 2,
2013); J.A. 468. This case concerns Custom Blends’s herbal
incense products, particularly one called “Bayou Blaster.”
In early 2011, law enforcement agencies began recognizing
herbal incense as a source of synthetic cannabinoids (also known
as “synthetic marijuana” or “Spice”). In March 2011, the
Virginia General Assembly enacted Va. Code Ann. § 18.2-248.1:1
(“the Virginia statute” or “the statute”), which criminalizes
the possession, sale, distribution, and manufacture of synthetic
cannabinoids. Id. § 18.2-248.1:1 §§ (B)–(C), (E). The statute
identifies substances containing synthetic cannabinoids in two
ways. First, section (A) lists a number of chemical compounds
specifically banned by the statute--the inclusion of which in
any detectable amount renders a substance subject to the
statute. Second, section (F) criminalizes substances that meet

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certain criteria, but are not explicitly listed in section (A).
The full text of section (F) provides:
Any drug not listed in this section or the Drug
Control Act (§ 54.1-3400 et seq.), which is privately
compounded, with the specific intent to circumvent the
criminal penalties for synthetic cannabinoids, to
emulate or simulate the effects of synthetic
cannabinoids through chemical changes such as the
addition, subtraction or rearranging of a radical or
the addition, subtraction or rearranging of a
substituent, shall be subject to the same criminal
penalties as for synthetic cannabinoids.
Va. Code Ann. § 18.2-248.1:1(F) (2011).2 In other words, section
(F) criminalizes substances that were (1) privately compounded,
2 The Virginia General Assembly amended the statute in 2012
to expand the list of chemical compounds in section (A). See
Va. Code Ann. § 18.2-248.1:1 (2012); J.A. 30–31. The General
Assembly repealed the statute in 2014 and added synthetic
cannabinoids (now termed “cannabimimetic agents”) to the
Virginia Code’s list of banned Schedule I substances. See Va.
Code Ann. § 54.1-3446(7) (2014) (listing as Schedule I
substances the chemical compounds from the repealed statute’s
section (A), id. § 54.1-3446(7)(b), as well as substances that
fall within any of a number of “structural classes,” id. § 54.1-
3446(7)(a)).
Another section under the same chapter bans “controlled
substance analog[s].” See id. § 54.1-3456. This section
appears intended to serve a function analogous to the function
that the General Assembly likely intended section (F) of the
repealed statute to serve. It bans substances not listed under
Schedule I that mimic Schedule I substances, with the following
language:
A controlled substance analog shall, to the extent
intended for human consumption, be treated, for the
purposes of any state law, as a controlled substance
in Schedule I or II. A controlled substance analog
shall be considered to be listed on the same schedule
as the drug or class of drugs which it imitates.

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(2) with the specific intent to avoid the criminal penalties for
synthetic marijuana, (3) to mimic the effects of synthetic
marijuana, (4) through chemical changes.
Following the passage of the Virginia statute, the HCSO
began visiting tobacco shopkeepers in the county to inform them
of the new law. On April 13, 2011, two members of the HCSO, an
officer and an investigator, visited Custom Blends and spoke to
the store clerk. During the visit, the officer and investigator
confiscated various herbal incense products as well as two
packets containing sample products. The sample products--
labeled “K2” and “Euphoria 5X”--were found in the store’s back
office and were not being offered for sale. The Virginia
Department of Forensic Science (“DFS”) tested the confiscated
materials. Both sample products tested positive for section (A)
substances, while the other items confiscated from the store
tested negative. Rogers, 2013 WL 3338651, at *2 & n.8; J.A.
470–71, 71 n.8.
(continued)
Id. Unlike section (F), this catchall provision does not
require private compounding or a specific intent of the private
compounder.
That the General Assembly later repealed the statute at
issue need not alter our analysis. As will be discussed below,
Officer Stem was chargeable with knowledge of the law in place
at the time of the events leading to this case.

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Officer Stem is an investigator for the HCSO. In this
capacity, he has received special training in the
“identification, properties, and chemical composition of various
drugs, including synthetic cannabinoids.” Appellant’s Br. at 3.
Following the April 2011 visit, the HCSO began an undercover
investigation of Custom Blends, led by Officer Stem. On June 9,
2011, Officer Stem purchased 1.5 grams of herbal incense labeled
“Bayou Blaster” for $37.99. DFS tested the incense and
determined that it contained the chemical compound AM-2201. Id.
at 6. In 2011, section (A) did not include AM-2201 in its list
of banned substances.3 On subsequent visits to Custom Blends,
Officer Stem purchased an additional quantity of Bayou Blaster,
and another investigator purchased an herbal incense product
labeled “Hayze Train Wreck.” Both officers purchased glass
smoking pipes that were on display for sale near the herbal
incense products. See Rogers, 2013 WL 3338651, at *3; J.A. 472;
Appellant’s Br. at 7. Subsequent DFS lab tests confirmed that
none of the products purchased from Custom Blends by Officer
Stem or any other HCSO officer contained any section (A)
substance. Rogers, 2013 WL 3338651, at *3; J.A. 472.
3 The Virginia General Assembly added AM-2201 to the section
(A) list in 2012. See Va. Code § 18.2-248.1:1 (2012); J.A. 30–
31. The Virginia Code now classifies AM-2201 as a
cannabimimetic agent banned under Schedule I. Va. Code Ann. §
54.1-3446(7)(b).

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Officer Stem consulted with the Hanover County Commonwealth
Attorney’s Office to review the evidence obtained from Custom
Blends and to receive guidance “regarding the interpretation and
application” of the Virginia statute. Appellant’s Br. at 8.
Stem then prepared an affidavit to support a search warrant for
Custom Blends. In the affidavit, Officer Stem asserted that he
had made undercover purchases of “Spice”--referring to Bayou
Blaster--from Custom Blends. The affidavit also noted that
Custom Blends had been notified of the Virginia statute, which
Stem described as “ma[king] ‘Spice’ and any product sold as
‘Spice’ illegal.” J.A. 365.
The magistrate issued the search warrant on September 8,
2011, and the HCSO conducted a search of Custom Blends the same
day. During the search, Officer Stem spoke with Rogers, who
acknowledged that he was the manager of the store and that he
maintained records--including toxicology reports accompanying
some of the herbal incense products--in his office at the store.
See Rogers, 2013 WL 3338651, at *3; J.A. 473. Rogers also
pointed out that the incense products sold by Custom Blends were
marked “not for human consumption.” Rogers, 2013 WL 3338651, at
*3; J.A. 473.
Following the search, Officer Stem, again in consultation
with the Hanover County Commonwealth Attorney’s Office, applied
for an arrest warrant for Rogers. In support, Stem offered his

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own sworn oral statements as well as the affidavit he had
submitted with the search warrant application. The magistrate
issued the arrest warrant, and Rogers was arrested for
“conspiracy and possession with intent to distribute synthetic
cannabinoids.” Id. at *4; J.A. 474.
B.
The Hanover County General District Court dismissed the
charges against Rogers at the preliminary hearing stage on
February 17, 2012. Roughly six months later, on August 30,
2012, Rogers filed a complaint under 42 U.S.C. § 1983 against
Stem, alleging that Stem arrested him in violation of the Fourth
and Fourteenth Amendments to the United States Constitution.
Officer Stem moved for summary judgment on the grounds that he
had probable cause to arrest Rogers--citing the evidence his
investigation had produced from Custom Blends and his
consultations with the Hanover County Commonwealth Attorney’s
Office--and in the alternative, that he was entitled to
qualified immunity because a reasonable officer in Stem’s
position could have believed he or she had probable cause to
arrest Rogers. See Mem. Supp. Def.’s Mot. Summ. J., Rogers,
2013 WL 3338651 (No. 1:12-cv-976 (AJT)).
The district court denied Officer Stem’s motion for summary
judgment. The court found that, because all of the lab tests of
products sold by Custom Blends came back negative for section

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(A) substances, Rogers’s arrest could have been based only on a
section (F) violation. The court concluded that Officer Stem
lacked probable cause to arrest Rogers under section (F), and
that the arrest therefore violated the Fourth and Fourteenth
Amendments. In addition, the court found that Officer Stem was
not entitled to qualified immunity. The court reasoned that
section (F)’s requirement of the compounder’s specific intent
was clear on its face, a reasonable officer in Stem’s position
would have known that he did not have evidence of the
compounder’s specific intent, and without evidence of that
“critical aspect” of section (F), a reasonable officer could not
have believed he had probable cause to arrest Rogers under that
provision. See Rogers, 2013 WL 3338651, at *9; J.A. 486. This
appeal followed.
II.
Interlocutory orders, such as denials of qualified
immunity, are typically not appealable. However, when a
qualified immunity determination presents a question of law,
rather than a disputed question of fact, it may be immediately
appealed. See Iko v. Shreve, 535 F.3d 225, 234 (4th Cir. 2008).
The two issues presented here are questions of law: whether
Officer Stem established, as a matter of law, that he had
probable cause to believe that Rogers committed the charged

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offenses, and if not, whether Officer Stem is entitled to
qualified immunity. Therefore, our review of Officer Stem’s
interlocutory appeal is proper.
III.
That the two issues on appeal present questions of law also
determines the standard of review. We review questions of law,
including probable cause and qualified immunity determinations,
de novo. See United States v. Wilhelm, 80 F.3d 116, 118 (4th
Cir. 1996); Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003).
We also review de novo a district court’s resolution of a
motion for summary judgment. Shaw v. Stroud, 13 F.3d 791, 798
(4th Cir. 1994). The standard requires that we “view the facts
and draw reasonable inferences in the light most favorable to
the party opposing the summary judgment motion.”4 Iko, 535 F.3d
at 230 (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)).
Summary judgment is appropriate if “there is no genuine issue as
to material fact and . . . the moving party is entitled to
4 Officer Stem argues that under the Eastern District of
Virginia’s Local Civil Rule 56(B), Rogers was required to
respond to Stem’s proffered facts with a list of disputed facts.
We note, as did the district court, that Rogers did not do so.
While, in many cases, a party’s failure to comply with this
Local Rule could complicate the district court’s factual
determinations, and thus affect the record on appeal, that is
not the case here, as we accept Stem’s proffered facts.

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judgment as a matter of law.” Shaw, 13 F.3d at 798 (quoting
Fed. R. Civ. P. 56(c)) (internal quotation mark omitted).
We consider each of the two issues on appeal in turn.
A.
Officer Stem contends that he had probable cause to arrest
Rogers because he knew from his training and investigation of
Custom Blends that the store was selling “Spice,” and because
his investigation produced circumstantial evidence that Custom
Blends’s herbal incense products were intended to be used as
“Spice.” We hold that Officer Stem lacked probable cause to
arrest Rogers under section (F)5 because he failed to produce any
evidence regarding a critical component of that provision--that
the private compounder of the substances at issue had a specific
intent to evade the criminal penalties for synthetic
cannabinoids. We note at the outset the difficulty posed by
requiring culpability to turn on the state of mind of a non-
party. However, the statute created this difficulty, and we may
not rewrite the statute to avoid it.6
5 The parties agree that the basis for Officer Stem’s arrest
of Rogers was an alleged section (F) violation. Indeed, as all
of the lab tests performed on Custom Blends’s products for sale
came back negative for section (A) substances, Officer Stem
could have had probable cause only for a section (F) violation.
6 As we note above, the Virginia General Assembly repealed
the statute in 2014, included synthetic cannabinoids as banned

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Officer Stem argues that he gathered sufficient
circumstantial evidence of the compounder’s specific intent to
conclude that Custom Blends’s herbal incense products were
“formulated and marketed to smoke and get high.” Appellant’s
Br. at 15. In particular, Officer Stem presents four bases for
asserting that such intent may be inferred: (1) the products’
marketing; (2) the products’ pricing; (3) that one product for
sale contained AM-2201, a chemical compound that the Virginia
General Assembly later added to the list of substances banned
under section (A); and (4) that the products came with
toxicology reports and labels marking them “not for human
consumption.”
Officer Stem’s arguments and his conflation of sections (A)
and (F) highlight the problem with the statute. We do not
question Officer Stem’s probable cause to believe that several
of Custom Blends’s herbal incense products were “Spice.”
However, he provided no evidence indicative of any private
compounder’s specific intent.
First, as to marketing, Officer Stem points to the names of
the products, such as “Bayou Blaster” and “Hayze Train Wreck,”
which he argues connote “getting high.” Appellant’s Br. at 18.
(continued)
Schedule I substances, and amended the accompanying catchall
provision. See supra note 2.

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The names may well be suggestive, but they do not suggest that
the products’ compounder had the specific intent to avoid
criminal prosecution. Rogers points out that many types of
benign and legal products are marketed with “alluring names
suggestive of abandoned behavior.” Appellee’s Br. at 8. For
example, high-end fragrances by well-respected companies Yves
Saint Laurent and Fresh are marketed with the names “Opium” and
“Cannabis,” respectively.
In addition, Custom Blends’s herbal incense products appear
to have been labeled by the supplier or wholesaler, rather than
by the compounder. See J.A. 351 (photograph of Bayou Blaster
label); Appellee’s Br. at 18 n.13 (containing the text of the
same Bayou Blaster label, including what appears to be the name
of the wholesaler, Da Scents LLC, and its email address,
Aroma@DaScents.com). Therefore, even if the products’ names
suggested a specific intent to evade criminal penalties, it
would not appear to be attributable to the compounder.
Second, the products’ pricing determinations are even
further removed from the compounder. Stem presents no evidence
to suggest that pricing is anything other than a retail
determination.
Third, Officer Stem argues that Bayou Blaster would not
have contained the chemical compound AM-2201 if the compounder
meant it to be used as herbal incense. However, when Stem

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purchased Bayou Blaster in June 2011, section (A) did not cover
AM-2201. See Appellant’s Br. at 6; J.A. 29 (containing the 2011
version of the statute). The Virginia General Assembly added
AM-2201 to the section (A) list in 2012. See Appellant’s Br. at
6; J.A. 30–31. Stem urges us to conclude that the presence of
that substance supports an inference that the private compounder
had a specific intent to evade the law. Unlike the marketing
and the price, the ingredients of the product do evince choices
made by the compounder. But the fact that a substance in the
product later became illegal under section (A) tells us nothing
about the specific intent of the private compounder, at some
indeterminate point in the past and wherever it may have been
located, to evade the law of Virginia.
Fourth, Officer Stem urges us to conclude that the
products’ labeling marking them “not for human consumption” and
the toxicology reports accompanying them demonstrate the
specific intent of the compounder. Appellant’s Br. at 27.
However, as Officer Stem notes, these products--labeled and
accompanied by toxicology reports--were delivered by the
distributor. Id. The distributor’s knowledge or intent would
be relevant under section (F) only if Officer Stem alleged that
the distributor was also the private compounder. He does not.
We recognize that the Virginia statute was difficult to
enforce. And we recognize that Officer Stem, whose job it was

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to enforce that law, faced a challenging task. Yet, it is plain
that Officer Stem provided no evidence of a private compounder’s
specific intent to circumvent the criminal penalties imposed by
the statute. Though he had probable cause to believe that the
substances could emulate the effects of synthetic cannabinoids,
he lacked any reasonable belief about the compounder’s specific
intent, which was critical to culpability under the statute. We
therefore agree with the district court that Officer Stem lacked
probable cause to arrest Rogers.
B.
Officer Stem next contends that, even if this court holds
that he lacked probable cause to arrest Rogers, he is
nonetheless protected by qualified immunity. He argues that a
reasonable officer with his training and experience could have
believed he or she had probable cause to arrest Rogers, and that
it was not clearly established that his conduct violated
Rogers’s constitutional rights. However, because section (F)’s
requirements are clear, and because it is clear that Officer
Stem failed to gather evidence supporting violation of them, we
conclude that Rogers’s rights under these circumstances were
clearly established. Because culpability under section (F)
turns on the private compounder’s specific intent, and because
Officer Stem lacked any information regarding the private
compounder’s intent, a reasonable officer in Stem’s position

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could not have believed he or she had probable cause to arrest
Rogers. Thus, we conclude that Officer Stem is not entitled to
qualified immunity.
In qualified immunity cases, we must identify with
particularity the right that the official is alleged to have
violated. See Anderson v. Creighton, 483 U.S. 635, 640 (1987).
Rather than characterizing it as the general right to be free
from arrest without probable cause, the right at issue here is
the right to be free from arrest under the circumstances
presented in this case. See id. (“The contours of the right
must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” (emphasis
added)). In other words, Officer Stem loses the protection of
qualified immunity if it would have been clear to a reasonable
officer in his position that he or she lacked probable cause to
arrest Rogers for a section (F) violation. See Pritchett v.
Alford, 973 F.2d 307, 313–14 (4th Cir. 1992) (“[T]he right in
issue was the right not to be arrested except upon probable
cause to believe that [the plaintiff] had violated [the
regulation at issue].”). That is the case here. Officer Stem
is chargeable with knowledge of the law. See Harlow v.

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Fitzgerald, 457 U.S. 800, 818–19 (1982).7 The statute was clear
that section (F) required the compounder’s specific intent to
evade the penalties for synthetic cannabinoids, and Officer Stem
lacked any evidence supporting that requirement.
Officer Stem also argues that the magistrate’s issuance of
the search and arrest warrants shows that Stem acted reasonably
in interpreting and seeking to enforce the law. In typical
cases, “the fact that a neutral magistrate . . . issued a
warrant is the clearest indication that the officers acted in an
objectively reasonable manner.” Messerschmidt v. Millender, 132
S. Ct. 1235, 1245 (2012). However, it does not necessarily end
the inquiry. The Supreme Court has recognized an exception
“where the warrant was ‘based on an affidavit so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable.’” Id. (quoting United States
v. Leon, 468 U.S. 897, 923 (1984)).
Officer Stem’s warrant application cited the Virginia
statute as the basis for the suspected offenses, but the
supporting affidavit provided only a series of conclusory
7 Officer Stem argues that the Virginia statute’s lack of
judicial interpretation since enactment compels us to conclude
that the right was not clearly established. However, a statute
proscribing certain behavior as criminal may be clear, and the
rights underlying it clearly established, without adjudication.
See Pritchett, 973 F.2d at 314 (citing Anderson, 483 U.S. at
640).

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references to Custom Blends’s selling “Spice.” J.A. 363–65. It
did not specify the statutory section--(A) or (F)--under which
Officer Stem sought the warrant. Nor did it provide any basis
for a reasonable belief that Rogers had violated section (F).
It referred only to the products purchased as “Spice,” without
disclosing that lab results had shown the products lacked any
chemical compound identified by the General Assembly as Spice,
and without providing any information about the private
compounder or its specific intent. In addition, the affidavit
mischaracterized the statute itself, asserting that the statute
“made ‘Spice’ and any product sold as ‘Spice’ illegal.” J.A.
365. As the statute clearly requires the presence of certain
chemical compounds under section (A) or the specific intent of a
private compounder to evade the criminal penalties for synthetic
marijuana under section (F), it did not make “any product sold
as ‘Spice’” illegal.
Accordingly, Officer Stem is not entitled to qualified
immunity.
IV.
For the foregoing reasons, the district court’s denial of
Officer Stem’s motion for summary judgment is
AFFIRMED.

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