UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


BRITT S. PHILLIPS,                          
                     Plaintiff-Appellant,
                     v.
MICHAEL R. PEDDLE, in his
individual capacity,
                 Defendant-Appellee,
                 and
BRIAN E. RUSSELL, in his individual                 No. 00-1345
capacity,
                          Defendant,
CARL BAKER; MARK A. YOUNCE,
               Parties in Interest,
N. EVERETTE CARMICHAEL,
Commissioner of Revenue for
Chesterfield County,
                          Movant.
                                            
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
                 James R. Spencer, District Judge.
                           (CA-99-510)

                          Argued: December 5, 2000

                          Decided: March 16, 2001

      Before WILKINS and NIEMEYER, Circuit Judges, and
  Terrence W. BOYLE, Chief United States District Judge for the
     Eastern District of North Carolina, sitting by designation.
2                         PHILLIPS v. PEDDLE
Affirmed by unpublished opinion. Chief Judge Boyle wrote the opin-
ion, in which Judge Wilkins and Judge Niemeyer joined.


                             COUNSEL

ARGUED: Thomas Hunt Roberts, THOMAS H. ROBERTS &
ASSOCIATES, P.C., Richmond, Virginia, for Appellant. Steven
Latham Micas, County Attorney, Chesterfield, Virginia, for Appellee.
ON BRIEF: Tim Schulte, THOMAS H. ROBERTS & ASSO-
CIATES, P.C., Richmond, Virginia, for Appellant. Jeffrey Lee
Mincks, Deputy County Attorney, Andrea West Wortzel, Assistant
County Attorney, Chesterfield, Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

BOYLE, Chief District Judge:

   Britt Phillips brought this action against Michael R. Peddle, see 42
U.S.C.A. § 1983 (West Supp 1998), alleging that Michael R. Peddle,
a police officer with the Chesterfield County (VA) Police Depart-
ment, violated Phillips’ rights under the Fourth Amendment when
Officer Peddle entered Phillips’ home without a search warrant. Phil-
lips sought damages and declaratory relief. The district court granted
summary judgment in favor of the defendant, granting Officer Peddle
qualified immunity, and dismissing the prayer for declaratory relief
without comment. We affirm.

                                  I.

   In the spring of 1999 Phillips was interviewed by detectives with
the Richmond Police Department as part of an ongoing criminal investi-
                            PHILLIPS v. PEDDLE                            3
gation. One of these investigators was Detective Brian E. Russell.2
       1

Subsequent to this interview, Detective Russell served Phillips with
a subpoena to testify before a grand jury. Because the subpoena
required an appearance on the following day, Phillips told Detective
Russell that he could not make that appearance on such short notice
but agreed to meet with some detectives at a later date to discuss the
investigation again. After this, there was no more contact between
Phillips and any of the police officers for over a month.

   On July 9, 1999, Detective Russell went to Phillips’ house to serve
him with another subpoena ordering him to testify as a witness before
a federal grand jury. Phillips did not know that Detective Russell was
coming to his house that day. Detective Russell could not get Phillips
to answer the door despite repeatedly knocking on the door and call-
ing him on the telephone. Phillips designs webpages and said that he
was in the back room of the house with a client and did not hear any-
one. His shades were down on his windows because it was warm and
in the middle of the summer. When Detective Russell could not get
Phillips to respond, he radioed his dispatch. He said that he was told
by the U.S. Attorney’s Office to "do whatever you can to serve it."
J.A. 163. Officer Peddle, the appellee, then was ordered to the scene
to assist Detective Russell. Officer Peddle never heard the conversa-
tion between Detective Russell and the dispatch.

   Officer Peddle arrived at the scene with another police officer and
said that Detective Russell looked concerned and confused. Officer
Peddle knew nothing about the relationship between Detective Rus-
sell and Phillips or the situation at Phillips’ home before Peddle’s
arrival, but Detective Russell told Officer Peddle that he had been
talking with Phillips earlier but now he could not get an answer. He
also said that Phillips was a witness for the government, that he and
Phillips had a good rapport, and that Phillips knew that Detective
Russell was coming over to serve the subpoena. Detective Russell
told Officer Peddle that he had repeatedly knocked on the door to the
  1
    It is not clear from the record the exact nature of the investigation as
some of the facts have been omitted, but nothing in the record indicates
that Phillips was the target of the criminal investigation.
  2
    At the time of this incident Detective Russell was also deputized as
a Special Deputy United States Marshall.
4                          PHILLIPS v. PEDDLE
house and yelled, "Police!" but was not getting any response. Detec-
tive Russell then pointed out that there was an additional car there that
did not belong to Phillips and that Phillips had a bad back which
might make it difficult for him to move. Although some of the facts
that Detective Russell presented were untrue, this was the scene that
Detective Russell presented to Officer Peddle.

   Officer Peddle then went to a side window and tried to peer in but
the blinds were closed. Detective Russell went to the front door and
called out to Peddle, "The door is open." J.A. 47. Officer Peddle came
around to the front and saw that the door was open 2 to 3 inches. Offi-
cer Peddle then went around to the back of the house and told the
other officer that the front door was open and that he and Detective
Russell were going into the house to check on Phillips. Officer Peddle
then went back around to the front, pushed the door open further, and
entered, shouting, "Police! We’re coming in." J.A. 64. They then met
Phillips in the hallway, and Phillips said that he had not come to the
door because he was "with a client." J.A. 65. Officer Peddle then left
the house after being inside for approximately 60 seconds. Detective
Russell served the subpoena on Phillips and then left as well. Officer
Peddle and the other officer then left the premises six minutes after
they arrived.

   Phillips brought this civil action against Officer Peddle, alleging
violations of his rights under the Fourth Amendment. See 42 U.S.C.A.
§ 1983 (West Supp. 1998). Phillips sought monetary damages and
declaratory and injunctive relief, barring Officer Peddle from entering
his home without a warrant. The District Court granted Officer Peddle
summary judgment, ruling that the suit was barred by qualified immu-
nity.

  An appeal from a decision to grant qualified immunity is reviewed
de novo. Pritchett v. Alford, 

(4th Cir. 1992).

                                   II.

   Qualified immunity protects government officials performing dis-
cretionary functions "from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." Harlow v.
                           PHILLIPS v. PEDDLE                           5
Fitzgerald, 

, 818 (1982). This doctrine exists to protect
officers in the performance of their duties unless they are "plainly
incompetent" or they "knowingly violate the law." Malley v. Briggs,

, 342 (1986). Qualified immunity protects law enforce-
ment officers from "bad guesses in gray areas" and ensures that they
are liable only "for transgressing brightlines." Maciariello v. Sumner,

, 298 (4th Cir. 1992).

   To evaluate qualified immunity claims, this Court has adopted a
two step analysis: (1) Whether a clearly established right has been
violated and (2) whether a reasonable person in the officer’s position
"would have known that the officer’s conduct would violate that
right." Taylor v. Waters, 

, 433 (4th Cir. 1996) (quoting
Gordon v. Kidd, 

, 1093 (4th Cir. 1992)). Because we
hold that Officer Peddle did not violate a clearly established right, this
Court need not address the second step of the above analysis.

   It is a well settled "principle of Fourth Amendment law that
searches . . . inside a home without a warrant are presumptively
unreasonable." Payton v. New York, 

, 586 (1980). Here,
the appellee argues that his entry into the house was justified under
the "community caretaker" doctrine. The United States Supreme
Court and this Court have both recognized that a police officer serv-
ing as a community caretaker to protect persons and property is con-
stitutionally permitted to make searches and seizures without a
warrant. See Cady v. Dombroski, 

(1973); United States
v. Newbourn, 

(4th Cir. 1979). In Cady, the United States
Supreme Court validated the warrantless entry and search of an auto-
mobile because the officers were engaged in a community caretaking
function, and their actions were unrelated to "the detection, investiga-
tion, or acquisition of evidence relating to the violation of a criminal
statute." 

.

   Most cases involving the community caretaker doctrine have
involved its application to the search of an automobile, and the courts
have distinguished searches of and entries into automobiles from
those of private residences. See, e.g., South Dakota v. Opperman, 

(1976); Colorado v. Bertine, 

(1987). At least
one other federal court of appeals has recognized that the "community
caretaker" doctrine can apply in limited circumstances to justify a
6                          PHILLIPS v. PEDDLE
warrantless entry in a home. See United States v. Rohrig, 

(6th Cir. 1996). In Rohrig, the defendant moved to suppress evi-
dence discovered during a warrantless entry into his home. The police
entered the home in the middle of the night to turn down loud music
that was disturbing neighbors, but only after repeated banging on the
residents’ door and calling them on the telephone. The Sixth Circuit
upheld the search by referring to the community caretaking function
that the United States Supreme Court has established. See Cady. One
fact that the Sixth Circuit found to be important was that the police
officers entered the residence for the limited purpose of locating and
abating the nuisance and were not involved in a criminal investiga-
tion.

   Virginia state courts have also adopted the "community caretaker"
doctrine under certain circumstances.3 In Commonwealth v. Waters,
20 Va.App. 285, 

(1995), the Virginia Court of
Appeals acknowledged that, while most cases interpreting the "com-
munity caretaker" function concern police contact with motor vehi-
cles, "[N]o language in Barrett or Cady restricts an officer’s
caretaking actions to incidents involving automobiles." Waters at 531
(citing Barrett v. Commonwealth, 18 Va.App. 773, 

(1994) (en banc), rev’d on other grounds, 

, 

(1995)).4 Barrett recognized that the duty of the police extends
beyond law enforcement and includes "an obligation to maintain
order and render needed assistance." Barrett at 

     Because this is a question of federal constitutional law, we do not
look to the Virginia courts for authority on this point. Instead, the Vir-
ginia courts also have a voice in the "clearly established" law under
which Officer Peddle operated, and this Court has referred to Virginia
state court decisions in the past when analyzing a claim for qualified
immunity. See, e.g., Simmons v. Poe, 

(4th Cir. 1995) (rely-
ing on a Virginia Court of Appeals decision to grant qualified immunity
to officers using a profile including race, among other factors, in a war-
rant application).
   4
     The Virginia Supreme Court overturned the Virginia Court of
Appeals, but in doing so the Virginia Supreme Court did not reject the
community caretaker doctrine. Instead, the Virginia Supreme Court held
that there was insufficient evidence to show that the subject who was
stopped needed any police assistance. See Barrett v. Commonwealth, 

, 

(1995).
                          PHILLIPS v. PEDDLE                          7
245. In Wood v. Commonwealth, 27 Va.App. 21, 

(1998), the Virginia Court of Appeals declined to apply the commu-
nity caretaker exception to justify a warrantless intrusion into a pri-
vate home, but noted,

    [T]he [United States] Supreme Court has yet to decide
    whether a situation might exist that would justify a warrant-
    less intrusion into an individual’s home under the "commu-
    nity caretaker" doctrine. . . . The Supreme Court has not
    decided that issue, and we need not decide it here because,
    on these facts, the officers’ intrusion . . . could not be con-
    sidered a caretaking function.

S.E.2d at 487. Thus, while refusing to apply the "com-
munity caretaker" doctrine to an intrusion into a private dwelling, the
Virginia Court of Appeals left open the possibility that it could apply,
particularly when the intrusion is "totally divorced from investigating
criminal activity and acquiring evidence." 

immunity, "[t]he law is clearly estab-
lished such that an officer’s conduct transgresses a bright line when
the law has ‘been authoritatively decided by the Supreme Court, the
appropriate United States Court of Appeals, or the highest court of the
state.’" Wilson v. Layne, 

(4th Cir. 1998). As noted
above, neither the United States Supreme Court nor this Court have
addressed the applicability of the community caretaker exception to
a warrantless entrance of a private residence. Although numerous Vir-
ginia Court of Appeals cases have discussed the community caretaker
doctrine, Barrett was the only case to address this doctrine in the Vir-
ginia Supreme Court. In Wood, another case involving a warrantless
entry into a private home, the Virginia Court of Appeals did not dis-
miss the "community caretaker" doctine outright as a matter of law,
thus indicating that there is no clearly established law refuting the
applicability of the community caretaker doctrine to an entry into a
residence.

   When determining if the officer’s actions were reasonable for qual-
ified immunity purposes, this Court must examine the information
known by the officer at the time of the entry. See Anderson v. Creigh-
ton, 

(1987). When Officer Peddle arrived at the scene,
8                         PHILLIPS v. PEDDLE
Detective Russell (a fellow law enforcement officer who was much
more familiar with Phillips and the current situation) told Officer Ped-
dle that Phillips was expecting the subpoena today. Based on the facts
before this Court, Officer Peddle reasonably could believe that, at the
time of the entry, the occupant needed assistance because he observed
or was told: Phillips was a cooperating witness; Phillips and Detective
Russell had a good rapport; Phillips was expecting Detective Russell
and knew he was coming to serve the subpoena; Phillips and Detec-
tive Russell had been in contact; Phillips had not answered the door
when Detective Russell yelled "Police!;" Phillips’ car was in the
driveway, and therefore he was probably home; all of the blinds to the
house were closed; an unexplained car was in the driveway (some-
times federal witnesses are placed at risk because they are testifying
against other criminals); and the front door was open 2 to 3 inches.
Officer Peddle entered the house, saw that the Phillips was unharmed,
and left, all within about 60 seconds. Officer Peddle was not involved
in a criminal investigative matter and left immediately upon determin-
ing that Phillips was safe. These facts come together to present a
scene in which an officer is operating as a community caretaker and
not in an investigative capacity.

   Because the United States Supreme Court has not spoken authorita-
tively on this issue, and the Virginia Supreme Court has never
addressed this issue concerning a residential home, this Court con-
cludes that Officer Peddle did not violate any clearly established law
when he entered the home of Phillips. Officer Peddle was acting
under the aegis of the community caretaker doctrine. Qualified immu-
nity cloaks Officer Peddle from liability.

                                  III.

   Finally we address the injunctive relief that Phillips sought. In his
complaint, Phillips prayed that the district court enjoin the defendant
from entering his home absent a warrant or exigent circumstances.
The district court granted summary judgment against the plaintiff
because the defendant was shielded by qualified immunity. Because
the district court’s decision rests on the applicability of the granting
of qualified immunity to a prayer for injunctive relief, we review the
decision de novo. See Thornburgh v. American College of Obstetri-
cians and Gynecologists, 

, 757 (1986) (stating that de
                           PHILLIPS v. PEDDLE                           9
novo is the correct standard where the case "rests solely on a premise
as the applicable rule of law").

   The district court’s denial of injunctive relief was proper. Phillips
lacks standing to raise his claim for injunctive relief because he did
not raise any facts to support the need for this relief, and the mere fact
that he alleges that his rights were violated once does not establish
any likelihood of a recurrence. See Los Angeles v. Lyons, 

(1983) ("That [appellee] may have been illegally choked by the police
. . . does nothing to establish a real and immediate threat that he
would again be stopped . . . by an officer or officers who would ille-
gally choke him. . . ."). Phillips has failed to make any compelling
reason for injunctive relief and does not suggest that this situation
would occur again. Thus, this Court will deny Phillips’ request for an
injunction against Officer Peddle.

                                   IV.

   For the foregoing reasons, we conclude that Officer Peddle was
entitled to qualified immunity and there exists no basis to grant
injunctive relief. We affirm the district court’s granting of summary
judgment for the appellee.

                                                             AFFIRMED