We cannot agree with this reasoning. Certainly,
Harlow counsels that when the legality of police conduct is an open question at the time the conduct occurs, the official must be held immune from suit. The same principle applies when the legal question at issue turns on the scope of the warrant requirement.
See Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Thus, “in cases where there is a legitimate question whether an exception to the warrant requirement exists, it cannot be said that a warrantless [arrest] violates clearly established law.”
Mitchell, 105 S.Ct. at 2820 n. 12. In
Mitchell, however, the Supreme Court made clear that
Harlow should not be construed to “suggest that an official is always immune from liability or suit for a warrantless [arrest] merely because the warrant requirement has never explicitly been held to apply to an [arrest] conducted in identical circumstances.”
Id. We cannot conclude, then, that these deputies are necessarily immune from suit simply because the Supreme Court had not yet squarely decided whether a warrantless home arrest of a citizen, made with probable cause that he or she has committed a misdemeanor traffic offense involving alcohol, is permissible under the fourth amendment. Rather, our task is to determine whether a “
legitimate question” as to the legality of the arrest existed.