                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 03-10479
                Plaintiff-Appellee,
               v.                                 D.C. No.
                                               CR-S-00-434-GEB
NEIL R. BROWN,
                                                  OPINION
             Defendant-Appellant.
                                          
        Appeal from the United States District Court
            for the Eastern District of California
       Garland E. Burrell, Jr., District Judge, Presiding

                  Argued and Submitted
       September 14, 2005—San Francisco, California

                      Filed October 4, 2005

       Before: Betty B. Fletcher and Marsha S. Berzon,
    Circuit Judges, and John A. Houston,* District Judge.

                       Per Curiam Opinion

  *The Honorable John A. Houston, United States District Judge for the
Southern District of California, sitting by designation.

                               13791
                       UNITED STATES v. BROWN                        13793

                              COUNSEL

Donald S. Frick, Esq., Sacramento, California, for the
defendant-appellant.

Thomas E. Flynn, Assistant United States Attorney, Sacra-
mento, California, for the plaintiff-appellee.

                               OPINION

PER CURIAM:

   Pursuant to a plea agreement, defendant-appellant Neil R.
Brown pled guilty to forty-four counts of various fraud
crimes. He claims that the government breached that agree-
ment. He also attacks his sentence on Booker grounds and
claims that the district court abused its discretion in denying
his motion, prior to sentencing, for a continuance to obtain
substitute counsel. We conclude that there was no breach of
the plea agreement. Therefore, his other claims are precluded
by the plea agreement, in which he waived his right to appeal.1
We affirm.

  1
    Brown asserts that the government has “forfeited any claim” that
Brown waived his right to appeal by failing to raise that claim at the time
that Brown filed his notice of appeal. Appellant’s Reply Brief at 2. Brown
relies upon Hunter v. United States, 160 F.3d 1109 (6th Cir. 1998). The
court in Hunter faced a collateral attack where the defendant was unaware
that he had waived his right to appeal. Id. at 1113-14. We, by contrast, are
confronted by a direct appeal from a sentence where there is no doubt that
Brown knowingly waived his right to appeal. We find that Hunter does
not apply to the facts of this case.
13794                  UNITED STATES v. BROWN
   [1] Appellant argues that, because the government was not
explicit in moving to dismiss, as promised in the plea agree-
ment, the remaining counts of the indictment with prejudice,
the government has breached the terms of the plea agreement.
Brown claims that he is, therefore, not bound by the plea
agreement and thus may appeal. While it appears that the
standard form used for dismissals in the Eastern District of
California is imprecise in failing to specify whether a dis-
missal is with or without prejudice,2 this technical error does
not constitute a breach of the underlying plea agreement.

   [2] Dismissals by the government are generally presumed
to be without prejudice, United States v. Matta, 937 F.2d 567,
568 (11th Cir. 1991); accord United States v. Ortega-Alvarez,
506 F.2d 455, 458 (2d Cir. 1974), “unless a contrary intent is
clearly expressed.” Matta, 937 F.2d at 568. The intent of the
parties as to the plea agreement — as manifest in the agree-
ment itself — was clearly that the dismissal be with prejudice.
The government’s motion to dismiss and the court’s subse-
quent dismissal should be construed in light of that intent.

   [3] We follow the First Circuit, which has recognized that
where a dismissal with prejudice is intended but not formally
carried out, an appellate court may clarify the dismissal to
reflect that it is with prejudice. United States v. Raineri, 42
F.3d 36, 43 (1st Cir. 1994). We therefore interpret the district
court’s dismissal in accordance with the parties’ clear intent
that the dismissal be with prejudice. Any attempt to prosecute
any of the dismissed claims in the indictment is thus barred.
We, therefore, find that no breach of the plea agreement
occurred.
  2
   Had the district court been specific in dismissing the remaining counts
with prejudice, Brown would have had no basis to argue that he was no
longer bound by his plea agreement. To avoid unnecessary appeals, we
suggest that the standard forms used by the district should reflect whether
the dismissal is with or without prejudice.
            UNITED STATES v. BROWN   13795
AFFIRMED.


321 F.3d 1204
Maria Acelina VALENCIA-FRAGOSO, Petitioner,v.IMMIGRATION and NATURALIZATION SERVICE, Respondent.
No. 02-70028.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted February 7, 2003.
Filed March 6, 2003.

Robert F. Jacobs, Santa Ana, CA, for the petitioner.
Cindy S. Ferrier, U.S. Department of Justice, Washington, D.C., for the respondent.
Petition to Review an Order of the Board of Immigration Appeals. INS No. Alq-nxe-lff.
Before HALL, THOMPSON and BERZON, Circuit Judges.
OPINION
PER CURIAM.

1
Maria Acelina Valencia-Fragoso is a native and citizen of Mexico who entered the United States without inspection on August 26, 1989. On February 20, 1998, the Immigration and Naturalization Service ("INS") initiated removal proceedings against her. On May 11, 1998, after having postponed the removal hearing twice, the Immigration Judge ("IJ") sent her a notice stating that the hearing had been rescheduled for 8:30 a.m. on July 1, 1998. She admits to receiving the notice.

2
On July 1, 1998, Valencia-Fragoso did not appear in court at 8:30 a.m. She had lost the hearing notice and thought the hearing was scheduled for 1:00 p.m. The IJ conducted the hearing without her and entered an in absentia removal order. In her motion to reopen, Valencia-Fragoso alleged that she misrecollected the time printed in the notice. She mistakenly thought that the hearing was scheduled for 1:00 p.m. (at which time she did appear), because the prior two hearings had been scheduled for that time. The IJ denied the motion to reopen, and the Board of Immigration Appeals ("BIA") affirmed. She now petitions for review.

3
Valencia-Fragoso argues that the IJ erroneously entered an in absentia removal order because she did not fail to appear at the hearing. We disagree. The hearing was scheduled for 8:30 a.m. and Valencia-Fragoso did not appear. In fact, she was four and one-half hours late. In these circumstances, she did indeed "fail to appear." See Jerezano v. INS, 169 F.3d 613, 615 (9th Cir.1999) (citing Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996) for the proposition that an alien who arrives forty-five to sixty minutes late has failed to appear).

4
Valencia-Fragoso's four and one-half hour tardy appearance, coupled with a lack of any showing that the IJ was still on the bench hearing cases, distinguishes this case from Jerezano, 169 F.3d at 615 (concluding that "[w]hile an IJ need not linger in the courtroom awaiting tardy litigants, so long as he is there on other business and the delay is short-as in this case [(20 minutes)]-it is an abuse of discretion to treat a slightly late appearance as a nonappearance."). We conclude that Valencia-Fragoso failed to appear for her scheduled removal hearing. We next consider whether she has demonstrated "exceptional circumstances" to justify reopening the proceedings notwithstanding her nonappearance.

5
"Exceptional circumstances" are defined by statute as "circumstances (such as serious illness of the alien ..., but not including less compelling circumstances) beyond the control of the alien." 8 U.S.C. § 1229a(e)(1). Valencia-Fragoso argues that, like the alien in Singh, she reasonably misunderstood the time for her July 1 hearing. See Singh, 295 F.3d at 1039-40. Singh, however, involved a crucial and determinative circumstance which is not present in Valencia-Fragoso's case. Although we observed that "Singh could have easily misunderstood the time of" his hearing, and, like Valencia-Fragoso had faithfully appeared on time for previous hearings, Singh, at the time of his hearing, was the beneficiary of an approved visa petition. The INS conceded that he would not have been deported if his hearing had been held. Emphasizing the importance of this circumstance, we stated that "the INS should not deny reopening of an in absentia deportation order where the denial leads to the unconscionable result of deporting an individual eligible for relief from deportation." Id. at 1040 (citations omitted).

6
Unlike Singh, Valencia-Fragoso made no showing that her circumstances are exceptional within the meaning of 8 U.S.C. § 1229a(e)(1). Moreover, she acknowledged at oral argument that, at best, were her case reopened she might hope for a discretionary grant of voluntary departure. Her case is akin to Sharma, where, as we stated in Singh, "[t]he petitioners' only possibility of relief from deportation in that case was a discretionary grant of asylum."

7
Finally, Valencia-Fragoso argues that the in absentia removal order violates her due process rights. We disagree. It is well settled that "[i]f an alien is provided proper written notice of a removal hearing and fails to attend, the immigration judge is required to enter an in absentia order of removal." Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002). The IJ did not violate Valencia-Fragoso's due process rights by following this rule. Sharma, 89 F.3d at 548 (noting that "[t]he IJ did not deny Petitioners due process by proceeding with the hearing in Petitioners' absence.").

8
DENIED.


311 F.2d 775
Norma WISNICK, Appellant,v.UNITED STATES of America, Appellee.
No. 17138.
United States Court of Appeals District of Columbia Circuit.
Argued December 4, 1962.
Decided December 20, 1962.
As Amended January 15, 1963.

Mr. William E. Rollow, Washington, D. C. (appointed by this court), for appellant.
Mr. Robert A. Levetown, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.
Before WILBUR K. MILLER and BURGER, Circuit Judges, and BELL, Circuit Judge for the Fourth Circuit.*
PER CURIAM.

1
This is an appeal at government expense from a conviction of the crime of accepting money from the earnings of a female engaged in prostitution, without consideration other than the furnishing of a place of prostitution. § 22-2712 D.C.Code Ann. (1961).

2
Court appointed counsel has ably and carefully presented the available points and contentions in appellant's behalf. Upon consideration of briefs, arguments and the record, we are constrained to hold the appeal presents no legally non-frivolous1 questions and we therefore affirm the conviction.

3
Affirmed.

Notes:

*
 Sitting by designation pursuant to Sec. 291(a), Title 28 U.S.Code

1
 Prior to Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958), there was no occasion for the court to undertake evaluation of the legal frivolousness of a paid appeal at any stage since such cases came to the court's notice only upon being fully briefed and argued in due course. The Ellis opinion indicated that the standard for evaluation of a petition for leave to appeal at government expense was whether such appeal would, if paid, be dismissed as frivolous, thus posing comparative standards of frivolousness drawn at two different appellate stages. Compare Cash v. United States, 104 U.S.App.D.C. 265, 261 F.2d 731, judgment vacated and remanded for consideration in light of Ellis v. United States, supra, and Hill v. United States, 356 U.S. 704, 78 S.Ct. 1139, 2 L. Ed.2d 1145 (1958), 357 U.S. 219 (1958). Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962), confirmed the use of this standard indicating the evaluation of paid and in forma pauperis appeals must be made on the same standards. Prior to the Ellis and Coppedge holdings, we customarily disposed of an appeal presenting no meritorious claims by a brief per curiam action or an order affirming without discussion. It has been pointed out that so long as the appellate evaluation is made on a record, briefs and arguments, an affirmance or dismissal as frivolous is essentially the same since the accused has then had his appellate day in court. Keiningham v. United States, 113 U.S. App.D.C. 295, 307 F.2d 632 (1962)


961 F.2d 1569
U.S.v.Kapadia (Shirazmahmad)
NO. 91-5478
United States Court of Appeals,Third Circuit.
Apr 15, 1992

Appeal From:  D.N.J.,
Rodriguez, J.

1
AFFIRMED.


132 Cal.App.2d 275 (1955)
WALLACE HOBSON et al., Appellants,
v.
GEORGE R. REILLY et al., Respondents.
Civ. No. 16255.
California Court of Appeals. First Dist., Div. One.
Apr. 15, 1955.
 Frank J. Comaich, Harold Brown and Everett H. Roan, Rhein, Dienstag & Levin and Jay Jackson, Jr., for Appellants.
 Edmund G. Brown, Attorney General, and William M. Bennett, Deputy Attorney General, for Respondents.
 BRAY, J.
 Respondent State Board of Equalization revoked petitioners' general on- sale liquor license. On the hearing of a petition for writ of mandate to annul the order of revocation, the superior court found that the findings of the board were supported by substantial evidence and by the weight of evidence and denied the petition. Solely contending that the evidence does not support the findings of the board and court, petitioners appeal from the judgment of denial.
 Record
 The matter was heard in the superior court on the transcript and record of the proceedings before the board, and on oral and written argument of counsel. Petitioners were charged before the board with violating section 40, subdivision 2, Alcoholic Beverage Control Act, and section 303, Penal *276 Code (employment of B-girls). The board found petitioners guilty of violating section 303 and section 57, Alcoholic Beverage Control Act.  [fn. *]
 Section 303 makes it unlawful for anyone engaged in the sale of alcoholic beverages under an on-sale license to employ upon the premises "any person for the purpose of procuring or encouraging the purchase or sale of such beverages," or to pay any person a percentage of commission for so doing. As the board expressly found that the girls involved did not receive and petitioners did not pay a percentage or commission on the sales hereafter discussed, we are only concerned with the portion of the section prohibiting employment to solicit the buying of drinks.  [fn. ]
 Petitioners are the owners and licensees of the "Arabian Nights" club on Pacific Avenue, San Francisco. Petitioner Wallace testified that during the times in question they employed one Lili, one Diane and one Norma, also called Norell, as dancers or entertainers and one Marie and one Bobbie as waitresses. He denied that at any time any of them were employed to, or did, solicit the buying of drinks by customers, although they were permitted to mix with and drink with customers.
 [1] Liquor Control Officer McDonald testified that on the night of March 26, 1953, he bought Marie at her request four drinks of vermouth. Each time he paid the bartender for her drink the bartender took a penny out of the cash register and dropped it in a glass beside the register. When he bought a drink for himself alone, before Marie accosted him, the bartender did not transfer a penny. Officer Cute testified that on the night of March 27th he bought Diane at her request three drinks of vermouth. He also bought a drink for Diane's friend Norell, at Diane's request. Each time he paid for Diane's drinks the bartender transferred a coin from one compartment of the cash register to another. Petitioner *277 Wallace spoke to the girls while they were drinking with Cute and went behind the bar. Cute's testimony was corroborated by Officers McDonald and Feeney to the extent that they witnessed him buy the drinks and saw the bartender transfer the coin. On two nights in succession Officer McDonald bought Lili champagne, and each time he paid for it the bartender dropped a penny in a glass beside the register. Petitioner Wallace was behind the bar at its end the second night. The officers that night made arrests and seized four glasses containing pennies and other coin. Each glass was marked with a name, "Marie," "Lili," "Dottie," and "Bobbie."
 Diane testified that she was employed as a dancer and was not employed to solicit, nor did she solicit, the buying of drinks. She admitted that she and Norell drank with Officer Cute, but denied asking for the drinks. She and Norell merely accepted his invitation to have the drinks. Earlier in the evening she had bought her own drinks, paying for them at the end of the week. She had not noticed the bartender drop a penny in a glass when she was served the drinks bought by Cute. It was the practice when she bought her own drinks for the bartender to drop a penny in the glass, so that she could pay later.
 The business representative of the entertainers' union testified that his union is opposed to the use of B-girls. He inspected petitioners' place four or five times a week and had never seen any of the girls soliciting drinks.
 It was stipulated that the other girls named by the officers would testify substantially the same as did Diane, that they were not employed to solicit the buying of drinks nor did they solicit any of the officers to buy them a drink, but, in fact, were requested to have a drink by said officers at all times in question. Evidence of the salaries paid all the girls was given showing that they were paid a straight weekly salary or wage and not a percentage or commission.
 Petitioner Wallace's explanation of the dropping of the coins in the glasses with the girls' names labeled thereon was that it was a method he had devised for accounting for the drinks each girl bought for herself. Whether the particular girl bought herself an alcoholic or a soft drink the bartender would drop a coin in her glass. At the end of the week the girls would pay Wallace 50 cents for each coin in her glass, that being the price charged her for each drink, whether it be a highball, champagne, or a soft drink. *278
 Petitioners contend that as the board found that petitioners did not pay the girls a percentage or a commission for soliciting drinks there is no evidence, as required by section 303, Penal Code, that petitioners employed the girls to solicit the buying of drinks. While it is true that there is no direct evidence that the girls were employed to solicit drinks, the obvious and only reasonable conclusion from the facts is that they were. Coupling the fact that petitioners admit that the girls mixed and drank with the male customers, with the bartender's method of keeping track of the number of drinks bought at their request, one would have to be very gullible, indeed, to believe that the practice was to keep track of the drinks the girls bought themselves. It would be stretching the court's credulity beyond the breaking point to believe that these girls were buying their own drinks instead of the customers buying drinks for them, or that the petitioners did not include the soliciting of drinks as a part of each girl's employment. The facts in this case are almost identical with those in Chosick v. Reilly, 125 Cal.App.2d 334 [270 P.2d 547], where the court held that the inference that the licensees employed girls to solicit drinks was a reasonable one. The only difference from our case lies in the method of keeping track of the drinks solicited by each girl. There a different Roman numeral was rung up on the cash register for drinks bought for a girl from the numeral used when drinks were bought by the male customers for themselves. There, as here, the board found that the girls received no percentage or commission for soliciting drinks. The reviewing court held that the denials of the licensee and his employees only created a conflict with the circumstantial evidence, which conflict was resolved by the board against the licensee and that the board's factual decision was binding on the courts. The same is true here.
 In Cornell v. Reilly, 127 Cal.App.2d 178 [273 P.2d 572], the only substantial difference from the facts in our case was that track was kept of drinks solicited by the girl employees by the bartender making a tally notation on a pad. There, too, it was claimed that these notations were only for drinks purchased by the girls themselves, to be paid for at the end of the week. There, as here, the defendant contended that all that was proved was mere solicitation by the employees; that employment for that purpose was not proved. After pointing out that guilt in disciplinary administrative proceedings of this kind must be proved to a reasonable certainty *279 and cannot be based on surmise, suspicion or theoretical conclusions, the court held that there was sufficient evidence to support the finding of a hiring for the purpose of solicitation. In our case, the fact that the girls were employed and were permitted to drink with the patrons is admitted. The fact that they on several occasions solicited drinks from the officers and that petitioners devised and used a method of keeping tally of those drinks is established by substantial evidence. While, apparently, the tally of drinks solicited by the girls was not kept for the purpose of paying them a commission, it obviously was kept for the purpose of determining the efficiency of each girl in increasing the employer's business. As we said in the Cornell case, supra, p. 186, "Under such a state of facts the inference that such solicitation was an integral part of the employment of the entertainers is not only reasonable, but almost inevitable."
 The judgment is affirmed.
 Peters, P. J., and Wood (Fred B.), J., concurred.
NOTES
[fn. *]  *. Petitioners were not charged with violating section 57. The accusation, therefore, did not comply as to that alleged violation with Government Code, section 11503. The board having failed to find on the charge of violating section 40, subdivision 2, and petitioners not being charged with violating section 57, the only question before the superior court was and before us is the sufficiency of the evidence concerning a violation of section 303, Penal Code.
[fn. ]  . Article XX, section 22, Constitution, provided in part: "The State Board of Equalization ... shall have the power, in its discretion, to deny or revoke any specific liquor license if it shall determine for good cause that the granting or continuance of such license would be contrary to public welfare or morals."


41 So.3d 398 (2010)
Patti WITHERS, Appellant,
v.
Jeanine BLOMBERG, as Commissioner of Education, Appellee.
No. 2D09-3750.
District Court of Appeal of Florida, Second District.
August 4, 2010.
*399 Melissa C. Mihok of Kelly & McKee, P.A., Tampa, for Appellant.
Edward T. Bauer of Brooks, LeBoeuf, Bennett, Foster, & Gwartney, P.A., Tallahassee, for Appellee.
MORRIS, Judge.
In May 2006, Patti Withers, a foreign language teacher at Pasco High School, attempted to end her own life while on the school campus at the end of the school day. As a result of this incident, the commissioner of education brought an administrative complaint seeking sanctions against Withers' teaching certificate; the commissioner alleged that the incident was witnessed by students and other faculty members. Withers denied the allegations and requested a formal hearing before an administrative law judge (ALJ). At the hearing in January 2009, the ALJ determined that while there was sufficient evidence to prove that the incident occurred on campus, there was insufficient evidence to prove that it occurred in the presence of students and faculty. The ALJ recommended *400 that Withers be found guilty of misconduct, receive a letter of reprimand, and be placed on probation for two years. Although the Pasco County superintendent of schools requested that Withers also be subject to participation in the Recovery Network Program (RNP), the ALJ rejected that request. No written exceptions to the ALJ's proposed order were filed, and the recommended order was submitted to the Education Practices Commission (EPC) for consideration.
At the final hearing before the EPC, the commissioner requested that the ALJ's recommended order be clarified to include the requirement that Withers participate in the RNP. Although Withers pointed out that participation in the RNP was not contained in the recommended order, she did not argue that the EPC was prohibited from including that condition due to the commissioner's failure to file written exceptions to the recommended order within fifteen days, as required by section 120.57(1)(k), Florida Statutes (2008).
In July 2009, the EPC issued its final order, adopting the ALJ's recommended order but also requiring that Withers "engage in counseling with a RNP-approved licensed Florida provider until discharged from that treatment."
In this appeal, we must decide whether the EPC erred by modifying the ALJ's recommended order where the EPC failed to state its reasons for doing so with particularity. The parties conceded at oral argument, and we agree, that this case must be reversed and remanded to allow the EPC to review the complete record and to state the reasons for the modification with particularity in its written order, if the EPC again finds that a modification of the penalty is warranted. In reversing, we hold that the EPC's failure to state the reasons for the modification in the written order under review constituted fundamental error.

Analysis
Our review is governed by section 120.68(7)(c), Florida Statutes (2009), which provides that a reviewing court may set aside agency action when it finds that the action is dependent on a material error in procedure. See also Big Bend Hospice, Inc. v. Agency for Health Care Admin., 904 So.2d 610, 611 (Fla. 1st DCA 2005). Guided by this standard, as well as by the concept of procedural due process, we conclude that the EPC's order must be reversed.
An administrative agency may increase or reduce a proposed penalty in a recommended order, but it may only do so where it "review[s] ... the complete record and [states] with particularity its reasons therefor in the order, by citing to the record in justifying the action." § 120.57(1)(l). The purpose of this statute "is to provide some assurance that the agency has gone through a thoughtful process of review and consideration before making a determination to change the recommended penalty." Hutson v. Casey, 484 So.2d 1284, 1285-86 (Fla. 1st DCA 1986).
Here the transcript of the final hearing reveals that the EPC commissioners each affirmed that they had read the case, but they did not further elaborate. It is thus unclear whether they engaged in a review of the complete record. And while the EPC commissioners orally discussed some reasons why they believed Withers' participation in RNP would be helpful, they not only failed to cite to the record, but they also failed to include any reasons in the written order.
We have not overlooked the fact that at the final hearing before the EPC, Withers failed to specifically argue that the EPC was precluded from requiring her *401 participation in the RNP due to the commissioner's failure to file written exceptions to the recommended order. Ordinarily, this court would not consider an issue unless that precise legal argument was presented to the lower tribunal. See Rosenzweig v. Dep't of Transp., 979 So.2d 1050, 1056 (Fla. 1st DCA 2008). However, "[a] denial of due process, if proven, constitutes fundamental error, which may be challenged for the first time on appeal." Verizon Bus. Network Servs., Inc. v. Dep't of Corrs., 988 So.2d 1148, 1151 (Fla. 1st DCA 2008) (considering merits of appellant's due process claim that it was denied the right to have the case considered by an impartial tribunal despite the fact that argument was not made below).
The record in this case reveals that the EPC failed to abide by the procedural requirements of section 120.57(1)(l) and, as a result, violated Withers' procedural due process rights. We therefore reverse the EPC's final order and remand this case to the EPC for the purpose of reviewing the complete record and entering an order which comports with the requirements of section 120.57(1)(l).
Reversed and remanded.
KHOUZAM and CRENSHAW, JJ., Concur.


859 A.2d 1138 (2004)
383 Md. 438
STATE of Maryland
v.
Kevin Powers CARROLL.
No. 25, Sept. Term, 2003.
Court of Appeals of Maryland.
October 21, 2004.
*1140 Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of MD, on brief), Baltimore, for Petitioner.
Brian J. Murphy, Baltimore, for Respondent.
Argued before BELL, C.J., ELDRIDGE,[*] RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.
BELL, Chief Judge.
In Carroll v. State, 149 Md.App. 598, 817 A.2d 927 (2003), the Court of Special Appeals held that the failure of police officers in that case to knock-and-announce their presence prior to executing a search and seizure warrant was unreasonable. We granted the State's petition for a writ of certiorari, State v. Carroll, 374 Md. 582, 824 A.2d 58 (2003), to decide the correctness of that ruling.
The respondent, Kevin Powers Carroll, was arrested and charged with possessing a regulated firearm after having been convicted of a "felony crime of violence," as proscribed by Md.Code (1957, 1996 Repl. Vol.), Article 27, § 445(d)(1), presently codified at Md.Code (2003), § 5-133(c)(1) of the Public Safety Article, and possession of marijuana and drug paraphernalia. The evidence that formed the basis for the charges was obtained as a result of a search of the respondent's Columbia, Maryland home, pursuant to a search and seizure warrant issued by a judge of the District Court of Maryland, sitting in Howard County. In support of the search and seizure warrant, the applicant, Officer Verderaime, submitted an affidavit containing the following information:
"Within the past seventy-two (72) hours your affiant ... was contacted by a known and reliable source. This source wished to provide your affiant with information regarding a person possessing marijuana and as well as illegally possessing several handguns.
"The source stated to your affiant that within the aforementioned time period the source was inside the residence of 5738 Margrave Mews, Columbia, Howard County, Maryland. The source continued that Kevin Carroll lives at said residence. The source observed inside of Carroll's residence and in Carroll's possession five handguns. The source described the handguns as one Ruger, one .45 cal, one 9mm and two 380 semi-automatics. In addition, the source observed Carroll in possession of a quantity of marijuana. The source described Carroll as a white male, 5-10" tall, 180 pounds, brown hair, and approximately 23 years old. Moreover, the source directed your affiant to Carroll's house and pointed Carroll out to your affiant.
"Your affiant ... says that this source is reliable based on information and active cooperation by this source in other investigation [sic]....

*1141 "The source has a basis of knowledge regarding handguns. The source explained to your affiant the difference between a revolver and a semi-automatic handgun.
* * * *
"Your affiant ... caused the records of the Howard County Police Department Central Records to be checked for Kevin Carroll. These records indicate that Kevin Carroll is a white male 5-10 tall, 170 pounds, brown hair and with a date of birth of 11-26-1978; and residing at 5738 Margrave Mews, Columbia, Howard County, Maryland.
"Your affiant ... caused the official records of the Maryland Justice Information System Data Base to be checked on any criminal convictions on Kevin Powers Carroll with a date of birth of 11-26-1978. The official records indicated that in the year on [sic] 1999 Kevin Carroll was convicted of third degree felony burglary and given a sentence of five years of which five years was [sic] suspended."
The affiant did not request permission from the warrant issuing judge for the police to enter the premises to be searched without knocking and announcing their presence; he did not ask, in other words, that a clause be included in the warrant authorizing a "no-knock" entry.[1]
After the warrant was issued, the affiant sought the assistance of the Tactical Section of the Howard County Police Department in executing it. The Tactical Section often assisted with the execution of warrants when there were concerns for officer safety. Sergeant Merritt Bender, the head of the Tactical Section, consistent with the practice of the Section, conducted an investigation of the respondent's criminal history, to determine whether Carroll had previously been arrested or convicted of a violent crime or a crime using a weapon. As a result, he learned that the respondent had been convicted of third-degree burglary in 1999 and that he had prior arrests for possession of marijuana and robbery. Also as usual, Sergeant Bender investigated the location to be searched, including determining who occupied and frequented that location. With respect to this investigation, he learned from the affiant that the respondent was reputed to associate with an individual, Gregory Daniel Price, with whom Bender was familiar. Price, who had prior arrests for first degree assault, a number of robberies and CDS offenses, was believed to be carrying a handgun.
Notwithstanding that there had been no request for a "no-knock" warrant, and thus, the warrant did not authorize entry without knocking and announcing, Sergeant Bender concluded that knocking and announcing before entry potentially would expose the officers to the danger of significant harm. This conclusion was based on the respondent's criminal background, his known association with an individual with a history of violent crime, Sergeant Bender's experience in executing between five and six hundred search warrants and consultations with his Captain, the affiant's Captain and the Howard County State's Attorney.
The respondent moved, prior to trial, to suppress the evidence seized during the search. The Circuit Court for Howard County denied that motion. Pointing to the affidavit in support of the warrant, the court concluded that the "information at Sergeant Bender's disposal was of sufficient *1142 substance and reliability to rise to the level of reasonable suspicion based on particularized facts." It explained:
"Here, Sergeant Bender knew that Defendant, previously convicted of third degree burglary, was in possession of firearms and drugs, had a previous arrest for robbery (a crime of violence), and associated with individuals with extensive criminal records, including crimes of violence. The Court is convinced that Sergeant Bender had a reasonable suspicion of danger sufficient to allow the Howard County Police officers to enter the house without a knock."
The Court of Special Appeals reversed. It held that the "no-knock" entry was invalid where the police "purposely did not seek a `no-knock' warrant," Carroll, 149 Md.App. at 602, 817 A.2d at 929, and, at the time of the entry, the information known to the police was the same as that which they had when they applied for the warrant. Id. at 611-13, 817 A.2d at 935-36.
In this Court, the State argues that the Court of Special Appeals "erred in finding that the no-knock entry was unreasonable, and in creating a rule that a [`]no-knock['] entry is reasonable only if authorized by the warrant itself, unless the exigency arises between the time the search warrant is issued and served." It maintains, moreover, that there is no basis for a rule requiring that magistrate approval of a "no-knock" entry must be obtained at the time the warrant is issued, unless the facts establishing the exigency warranting a "no-knock" entry arise after the officer applies for, and obtains, the search and seizure warrant. The State argues, in any event, that the facts known to the officers at the time of their entry justified a "no-knock" entry.
The respondent does not agree. He disputes the State's contention that the Court of Special Appeals announced a new rule, that "no-knock" entries are inappropriate when police officers do not seek a "no-knock" warrant and the circumstances pertinent to the execution of the warrant do not change between the issuance of the warrant and its execution. As the respondent sees it, the intermediate appellate court simply announced a preference for "no-knock" warrants and, thus, for a neutral magistrate to conduct a pre-entry review of all facts bearing on the mode of entry, and disapproved of the way the officers, in this case, circumvented this preferred procedure. The respondent submits that the intermediate appellate court, fully cognizant of the facts known to the officers, made an independent determination that the "no-knock" entry, in this case, was not based upon sufficient particularized facts, as required by Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) and Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995).

I.
When we consider the propriety of the denial of a motion to suppress under Maryland Rule 4-252, we review only the record of the suppression hearing. Rowe v. State, 363 Md. 424, 431, 769 A.2d 879, 883 (2001). See also Gamble v. State, 318 Md. 120, 125, 567 A.2d 95, 98 (1989); Trusty v. State, 308 Md. 658, 670, 521 A.2d 749, 755 (1987). In conducting that review, we give great deference to the hearing judge's credibility determinations and first-level fact-finding. Ferris v. State, 355 Md. 356, 368, 735 A.2d 491, 497 (1999); Dashiell v. State, 374 Md. 85, 93, 821 A.2d 372, 377 (2003). When, there is conflicting evidence, we are to consider it in the light most favorable to the State, Rowe, 363 Md. at 432, 769 A.2d at 883, we accept the facts as found by the hearing judge unless those *1143 findings are clearly erroneous. Dashiell, 374 Md. at 93, 821 A.2d at 377; McMillian v. State, 325 Md. 272, 281-82, 600 A.2d 430, 435 (1992); Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239, 1240 (1990). Legal conclusions, however, are reviewed "de novo." Rowe, 363 Md. at 432, 769 A.2d at 883; Cartnail v. State, 359 Md. 272, 282, 753 A.2d 519, 525; Ferris, 355 Md. at 368, 735 A.2d at 497. Stated differently, we must make our own independent constitutional appraisal as to the ultimate conclusion, the propriety of the ruling under review. Dashiell, 374 Md. at 93-94, 821 A.2d at 377; Riddick, 319 Md. at 183, 571 A.2d at 1240.

II
In Davis v. State, 383 Md. 394, 859 A.2d 1112, 2004 WL 2360589 (2004), we considered an issue quite relevant to the resolution of the case sub judice, "whether, where there is no statute so providing, a judge is authorized to issue a `no-knock' search and seizure warrant, on the basis of which the police may make a `no knock' entry to execute that warrant." Id. at 397, 859 A.2d at 1113. We held that a Maryland judge had no such authority. Id. at 427-28, 859 A.2d at 1132.
In that case, two police officers, having conducted an investigation, applied for a search and seizure warrant for, inter alia, premises, in which, they had been informed by a confidential source, Davis and his co-defendant, Adams, kept a major supply of marijuana. Id. at 398-99 n. 5, 859 A.2d at 1114-15, n. 5. Listing their prior experience, which they said "indicates that narcotic/drug dealers/users have, carry, and use Firearms to protect their operations," the officers' affidavit informed the judge reviewing their application for warrant that they would "attempt to gain entry by the rush or No-Knock forced entry." Id. at 400, 859 A.2d at 1116. The judge issued the warrant, incorporating the affidavit by reference. Id. at 400, 859 A.2d at 1116. As they stated that they intended to do, the police gained entry to the premises without knocking and announcing and through the use of force. As a result of the search, Davis and Adams were arrested and various weapons, drug paraphernalia and marijuana were recovered. Id. at 400, 859 A.2d at 1116.
Davis and Adams moved to suppress the evidence seized during the search. They argued, "inter alia,[2] that the facts alleged in the affidavit submitted in support of the search and seizure warrant were insufficient to justify a `no-knock entry.'" Davis, 383 Md. at 400-01, 859 A.2d at 1116. The Circuit Court for Baltimore City denied the motion, reasoning:
"`Somewhat more vexing is the consideration whether the warrant itself provides say a sufficient basis for a no-knock forced entry. The cases, which have been discussed by the defense, and reviewed by the Court, largely involve situations in which law enforcement officers were confronted with situations which post entry were determined either to rise to the level of exigency permitting no-knock entry or failed to meet that standard, and thus require suppression.
"`No cases were found in which the issue presented was, in this context, in which there was pre-raid approval for a no-knock entry on a set of facts which essentially recite the officers' general and specific experience in law enforcement, from which they extrapolate the *1144 need, as they perceive it, for a no-knock entry. It is, of course, well-settled in search and seizure law that the issuing judge is permitted to rely upon the experience of law enforcement officers and the conclusions which reasonably flow from that experience in making the probable cause determination.
"`I see no reason to depart from that pattern when the examination is not the presence or absence of probable cause, but is instead the existence of exigencies meriting a no-knock entry. It is, in any event, a close question for the Court.
"`However, crediting the affiants' experience which involves hundreds of narcotics arrests, extensive training, and considerable experience in narcotics law enforcement, I cannot conclude that their conclusion with respect to the likeliness of firearms on the property is an irrational one.'"
Id. at 401-02, 859 A.2d at 1116. Thus, it was the police officers' wealth of experience in narcotics law enforcement that tipped the scales in favor of finding a reasonable suspicion for the "no-knock" entry.
Both petitioners timely, but unsuccessfully, appealed. Different panels of the Court of Special Appeals, in separate opinions, affirmed the judgments of the Circuit Court.[3] Only one of the opinions, Davis v. State, 144 Md.App. 144, 797 A.2d 84 (2002) (Davis I), addressed the merits of the "no-knock" warrant issue. As to the merits, the court concluded that the affidavit in support of the warrant "contained sufficient facts to establish reasonable suspicion of the then existence of exigent circumstances and, thus, to permit a judge to make a pre-entry finding that a `no-knock' entry onto the premises was justified." Id. at 152, 797 A.2d at 89. Like the warrant issuing court, although it articulated additional rationale, the intermediate appellate court primarily relied on the experience of the affiant officers to credit their conclusion that those involved in the drug trade often are dangerous, carry weapons, and that drugs are easily and quickly destroyed when entry onto the premises is delayed or stalled. Id. at 158, 797 A.2d at 93.
Although the petitioners in Davis questioned, on appeal, only the sufficiency of the factual allegations offered to justify issuance of a "no-knock" warrant, assuming, as it were, the authority of Maryland judges to issue such warrants, we surveyed other jurisdictions to determine how "no-knock" warrants are handled. 383 Md. at 408-10, 859 A.2d at 1120-21. That survey revealed that, although some states have enacted "no-knock" warrant statutes, expressly authorizing such warrants, there is a split of authority among states without such statutes with respect to the authority of judicial officers in those states to issue "no-knock" warrants. Id. at 415-18, 859 A.2d at 1125-26.
One line of cases, characterized by 2 Wayne R. LaFave, Search And Seizure: A *1145 Treatise On The Fourth Amendment § 4.8(g) (1996), as "[t]he prevailing but not unanimous view," and exemplified by Parsley v. Superior Court, 9 Cal.3d 934, 109 Cal.Rptr. 563, 513 P.2d 611, 615 (1973); State v. Bamber, 630 So.2d 1048, 1050-51 (Fla.1994); State v. Eminowicz, 21 Ariz.App. 417, 520 P.2d 330, 332 (1974); State v. Acre, 83 Or.App. 185, 730 P.2d 1260, 1262 (1987), holds that statutory authority is a prerequisite to the issuance of "no-knock" warrants. The other line, exemplified by Commonwealth v. Scalise, 387 Mass. 413, 439 N.E.2d 818, 822 (1982); State v. Lien, 265 N.W.2d 833, 838 (Minn.1978); State v. Henderson, 245 Wis.2d 345, 629 N.W.2d 613, 622-23 (2001); Poole v. State, 266 Ga.App. 113, 596 S.E.2d 420, 422 (2004); White v. State, 746 So.2d 953, 956 (Miss.App.1999); see State v. Johnson, 168 N.J. 608, 775 A.2d 1273 (2001); United States v. Dupras, 980 F.Supp. 344, 348-49 (D.Mont.1997), reaches the opposite result, leaving the decision whether to issue such a warrant to the discretion of the judicial officer. Some of these latter courts, we discovered, "require the police at the scene to make a `threshold reappraisal of the threat,'" notwithstanding the fact that a "no-knock" warrant had been issued. 383 Md. at 416, 859 A.2d at 1125, quoting Scalise, 439 N.E.2d at 823 and citing Lien, 265 N.W.2d at 839.
Having conducted the survey, we observed that the Court of Special Appeals, in Davis I addressed, as a threshold matter, an issue not theretofore decided by a Maryland court, whether "no-knock" warrants are authorized by Maryland law and concluded that they were. Davis, 383 Md. at 418, 859 A.2d at 1126. To arrive at that conclusion, we noted the court's reliance on the warrant preference, id. at 418, 859 A.2d at 1126, citing and quoting Davis I, 144 Md.App. at 155-56, 797 A.2d at 91-92, and its determination that "`[t]his preference should be equally applicable to `no-knock' warrants.'"[3]Id. at 418, 859 A.2d at 1127, quoting Davis I, 144 Md.App. at 156, 797 A.2d at 92. We also took note of the intermediate appellate court's application of the warrant preference in the "no-knock" warrant context:
"If at the time he or she is applying for a search warrant, a law enforcement officer believes that the circumstances under which the warrant will be executed justify dispensing with the knock and announce requirement, the officer should seek no-knock authorization from the warrant issuing judge. If the judge is satisfied that the request for a no-knock entry is reasonable, the judge should include in the warrant a mandate that, in substantially the following form, provides:
`Good cause being shown therefor, the executing law enforcement officers are authorized to enter the premises to be searched without giving notice of their authority and purpose.'
"Moreover, when they apply for no-knock authorization in a search warrant, *1146 law enforcement officers do not have to include in the affidavit the kind of search scene case-specific, particularized circumstances of exigency that they would have to establish during the suppression hearing if they did not have a no-knock provision in the warrant and made the no-knock entry determination on their own."
Id. at 418-19, 859 A.2d at 1127, quoting Davis I, 144 Md.App. at 156-57, 797 A.2d at 92 (footnotes omitted).
We reviewed two subsequent opinions of the intermediate appellate court, State v. Riley, 147 Md.App. 113, 807 A.2d 797 (2002) and Carroll v. State, 149 Md.App. 598, 817 A.2d 927 (2003), the latter of which is the subject of review in the case sub judice. Those opinions confirmed the approach announced in Davis I. Id. at 420-22, 859 A.2d at 1127-29.
The issue in Riley, we characterized as "involv[ing] determining to what deference a decision by a warrant issuing judge is entitled to be given by a reviewing judge." Id. at 420-21, 859 A.2d at 1127-28. Analogizing to the warrant preference and concluding that, "[t]he fundamental policy undergirding the warrant requirement is just as strong with respect to the no-knock increment as it is with respect to the underlying entry into the home itself," Riley, 147 Md.App. at 120-121, 807 A.2d at 802, the court opined, "[j]ust as the decision WHETHER to cross the threshold should be submitted to a neutral and detached judicial figure, so too should the decision as to HOW to cross that threshold." Id. at 121, 807 A.2d at 802. It was from this premise, we pointed out, that the Court of Special Appeals "admonished the applicants for search and seizure warrants to advise the issuing judge of all exigencies that would justify a `no-knock' entry and admonished reviewing courts to give `great deference' to the `no-knock' determinations of the warrant issuing judge." 383 Md. at 421, 859 A.2d at 1128.
In Carroll, we summarized as follows:
"The issue addressed in Carroll was whether the failure to seek a `no-knock' warrant foreclosed the right of the police to execute the warrant using a `no-knock' entry. Building upon Davis and Riley, the intermediate appellate court held that a `no-knock' entry to execute a search and seizure warrant was invalid where the police `purposely did not seek a "no-knock" warrant,' Carroll, 149 Md.App. at 602, 817 A.2d at 929, and, at the time of the entry, the information known to the police was the same as that which they had when they applied for the warrant. Id. at 611-14, 817 A.2d at 935-36. The court explained:
"`What is absent is the absolute lack of material change in the facts or circumstances surrounding the execution of the warrant between the time it was issued and served. In other words, the officers serving the warrant had no "particularized knowledge." Sergeant Bender's testimony clearly demonstrated that the "particularized knowledge" was already known at the time they secured the warrant. No additional facts giving rise to a sudden emergency were shown other than what they previously had learned from the officers who secured the warrant, namely Detective Verderaime. ... Moreover, the record indicates that the officers did not witness any suspicious activities or events while surveilling Carroll's residence that would lead them to believe that the climate had changed and that would give rise to exigent circumstances. Thus, the officers serving the warrant based their decision not to knock and announce on the information previously given to them by *1147 Detective Verderaime that was known at the time they secured the search warrant, rather than on exigent circumstances that may have arisen at the time they executed the warrant.... Under these circumstances, there was no evidence of exigent circumstances that could possibly eliminate the constitutional requirement to knock and announce.'"
Id. at 421-22, 859 A.2d at 1128-29, quoting 149 Md.App. at 611-13, 817 A.2d at 935-36.
Having conducted the foregoing analysis, "[w]e reject the rule implicitly, if not expressly, enunciated by the Court of Special Appeals in Davis; Riley and Carroll, requiring applicants for search and seizure warrants to obtain pre-entry authorization for a `no-knock' entry, to obtain judicial approval of the method of entry in addition to the authorization of the search." 383 Md. at 422, 859 A.2d at 1129. Notwithstanding the recognition that there is a relationship between the propriety of a "no-knock"entry and the propriety of the issuance of the search warrant itself, because "[d]ifferent criteria inform the decision of the form of entry than inform the analysis of whether, or not, there is probable cause to search in the first place," id. at 422, 859 A.2d at 1129, the Court held:
"that a judicial officer in Maryland, under Maryland law, may not issue a `no-knock' warrant. Rather, the propriety of a `no-knock' entry will be reviewed and determined on the basis of the facts known to the officers at the time of entry, rather than at the time of the application for the warrant."
Id. at 427, 859 A.2d at 1132.
The rationale underlying this holding was set out as follows:
"The decision as to how entry is to be made balances, at the least, the privacy interest of the individual, the need to protect the safety of police officers and the need to preserve evidence. See Richards, 520 U.S. at 387, 117 S.Ct. at 1418, 137 L.Ed.2d at 620. The probable cause analysis, on the other hand, while ultimately concerned with the privacy issue, is more fact based, it is concerned more specifically with the probability of the item or items that are the subject of the inquiry being in the place to be searched. Thus, what the Supreme Court pointed out in Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1948), where the issue was probable cause, is entirely logical, absent exigent circumstances, deference to the determination of a detached warrant-issuing judge rather than a `zealous' officer engaged in the often-adrenaline charged task of "ferreting out crime," is appropriate, because it supports the goal of encouraging officers to seek warrants. When the issue concerns the form of entry, however, probable cause for the search already having been established, the appropriate inquiry, and thus the decision to be reviewed, is whether the form used was reasonable in light of the facts as known to the officer at the time of the entry. Ker v. California, 374 U.S. 23, 40, 83 S.Ct. 1623, 1633, 10 L.Ed.2d 726, 742 (1963) (`In addition to the officers' belief that Ker was in possession of narcotics, which could be quickly and easily destroyed, Ker's furtive conduct in eluding them shortly before the arrest was ground for the belief that he might well have been expecting the police'); Parsley, 109 Cal.Rptr. 563, 513 P.2d at 615 (`the key to permissible unannounced entry is the knowledge of exigent circumstances possessed by police officers at the time of entry. Thus, from the viewpoint of a court reviewing justification for an unannounced entry after the fact, a warrant authorizing such action *1148 adds nothing.'); Bamber, 630 So.2d at 1050-51.
"Moreover, the factors and circumstances bearing on the method of effecting entry to execute a search and seizure warrant may not be, and often are not, static; the facts bearing on the propriety of a `no-knock' entry, known to the judicial officer when the warrant was issued may well change and be different, perhaps rendering the judicial officer's finding on the question of exigency inappropriate. This is so whatever the magistrate's decision, whether the search warrant authorized a `no-knock' entry or refused to authorize such an entry. That deficiency of the `no-knock' warrant has been recognized and explained. In Parsley, explaining why the reasonableness of an entry to execute a search and seizure warrant must be judged at the time of the entry, itself, the court said:
`Facts existing at the time of obtaining a warrant may no longer exist at the time of entry. Such an emergency, therefore, can be judged only in light of circumstances of which the officer is aware at the latter moment. Previously obtained information may at that time be taken into account in determining the necessity of dispensing with ordinary announcements (People v. Dumas (1973) Cal. 9 Cal.3d 871, 109 Cal.Rptr. 304, 512 P.2d 1208,) but a more significant factor in this decision is perception and knowledge the officer acquires on the scene immediately prior to effecting entry. For this reason, earlier judicial authorization would be largely inappropriate in the context of unannounced entry and, thus, clearly cannot be considered a constitutional requirement.'
109 Cal.Rptr. 563, 513 P.2d at 614."
Id. at 425-26, 859 A.2d at 1130-31. See Richards, 520 U.S. at 396 n. 7, 117 S.Ct. at 1422 n. 7, 137 L.Ed.2d at 625 n. 7 (cautioning that "a magistrate's decision not to authorize a no-knock entry should not be interpreted to remove the officers' authority to exercise independent judgment concerning the wisdom of a no-knock entry at the time the warrant is being executed").
We made clear, as courts authorizing "no-knock" warrants recognize, see Scalise, 439 N.E.2d at 823; Lien, 265 N.W.2d at 839, that whether the necessary exigency exists is not fixed in time by the fact that a judicial officer may have been presented with, or have found, facts bearing on the mode of entry. Davis, 383 Md. at 426-27, 859 A.2d at 1131-32. Like those courts, we recognized that "the possibility of changed circumstances requires that there be a re-evaluation of the propriety of a "no-knock" entry at the time of the search." Id. at 427, 859 A.2d at 1132.
The question presented to the Court of Special Appeals for resolution in this case was:
"DID THE TRIAL COURT ERR IN UPHOLDING A `NO-KNOCK' ENTRY WHEN THE POLICE PURPOSELY DID NOT SEEK A `NO-KNOCK' WARRANT BUT, INSTEAD, LATER DECIDED ON THEIR OWN TO FORCIBLY ENTER WITHOUT KNOCKING AND ANNOUNCING?"
Carroll, 149 Md.App. at 601, 817 A.2d at 929. By answering "yes" to that question, that court implicitly, if not expressly, held that "no-knock" warrants are authorized in Maryland and that such warrants must be sought, and presumably obtained, in advance of the entry, if the circumstances that would justify a "no-knock" entry are known when the warrant is sought. The latter point is made manifest by the intermediate appellate court's reliance on Davis I, 144 Md.App. at 156, 797 A.2d at 92, *1149 which announced that officers applying for a search and seizure warrant, who are aware of circumstances that would justify such an entry, should seek authorization for a "no knock" entry at that time, and Riley, 147 Md.App. at 120-121, 807 A.2d at 802, in which the court opined that "[t]he fundamental policy undergirding the warrant requirement is just as strong with respect to the no knock increment as it is with respect to the underlying entry into the house itself."
As indicated, we rejected this analysis in Davis, when we held that "no-knock" warrants are not authorized under Maryland law. 383 Md. at 427, 859 A.2d at 1132. Accordingly, to the extent that, in determining the reasonableness of the entry in this case, the decision of the Court of Special Appeals relied on the failure of the officers to seek "no-knock" entry authorization when they applied for the search and seizure warrant, it is disapproved.

III.
Turning to the question of whether the "no-knock" entry in this case was reasonable, we conclude that the Court of Special Appeals erred when it determined that it was not. The critical issue, on judicial review in this case, is whether there were sufficient facts known to the officers executing the warrant, at the time of the entry, to establish a reasonable suspicion that the circumstances justified a stealthy entry. General averments that, due to the nature of the crime, as, for example, narcotics cases, there is a propensity for the use of firearms and, consequently, officers are at a heightened risk of danger, and there is an increased danger of the destruction of evidence are not sufficient. See Richards, supra, 520 U.S. at 394, 117 S.Ct. at 1421, 137 L.Ed.2d at 624; Davis, 383 Md. at 430-31, 859 A.2d at 1133-34; State v. Lee, 374 Md. at 287-88, 821 A.2d at 929. Rather, the factual averments must be specific as to the suspect and the situation. Richards, 520 U.S. at 394-95, 117 S.Ct. at 1421-22, 137 L.Ed.2d at 621.
The facts of Richards are instructive. In that case, police officers obtained a warrant to search Richard's hotel room, after surveillance had revealed that he was involved in drug activity. Richards, 520 U.S. at 388, 117 S.Ct. at 1418, 137 L.Ed.2d at 621. Their request for advance authorization to enter the hotel room without knocking and announcing was denied by the magistrate, who deleted references to a "no-knock" entry from the warrant. Id. at 388, 117 S.Ct. at 1419, 137 L.Ed.2d at 621. When officers arrived at Richard's hotel room to execute the warrant, the team leader knocked on the door and announced that he was a maintenance man. Id at 388, 117 S.Ct. at 1418-19, 137 L.Ed.2d at 621. Although he opened the door, Richards kept the latch on, and when he saw the police officers, he slammed the door shut. The officers kicked the door numerous times to gain entry, announcing simultaneously that they were the police. Once they gained entry, drugs and money were found. Id. at 388-89, 117 S.Ct. at 1419, 137 L.Ed.2d at 621. Richards moved to suppress the evidence, arguing that it was obtained as a result of an illegal "no-knock" search. Id. at 389, 117 S.Ct. at 1419, 137 L.Ed.2d at 621.
The Wisconsin Supreme Court affirmed the denial of the suppression motion. It held that, because "nothing in Wilson's acknowledgment that the knock-and-announce rule was an element of the Fourth Amendment `reasonableness' requirement would prohibit application of a per se exception to the rule in a category of cases," id. at 390, 117 S.Ct. at 1419, 137 L.Ed.2d at 621, "police officers are never required to knock and announce their presence when executing a search warrant in a felony *1150 drug investigation." Id. at 387-88, 117 S.Ct. at 1418, 137 L.Ed.2d at 620.
The United States Supreme Court disagreed, holding that:
"In order to justify a `no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.... This showing is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged."
Id. at 394-95, 117 S.Ct. at 1421-22, 137 L.Ed.2d at 624. The Court, nevertheless, affirmed the drug conviction. Id. at 395, 117 S.Ct. at 1422, 137 L.Ed.2d at 624. It concluded that, on that record, there were sufficient facts that the petitioner knew that the men who stood outside of his door were police, as evinced by his prompt slamming of the door. Therefore, given the disposable nature of the drugs and Richard's apparent intention to refuse the officers' entry, the Court agreed that the officers were justified in using force to enter the room, while simultaneously announcing that they were the police. Id. at 395-96, 117 S.Ct. at 1422, 137 L.Ed.2d at 625.
In determining that the "no-knock" entry in this case was unreasonable, the Court of Special Appeals relied heavily on a comparison of the facts offered to show exigency in some of its prior cases with those in the case sub judice. Carroll, 149 Md.App. at 609-610, 817 A.2d at 933-34. One such case was Wynn v. State, 117 Md.App. 133, 699 A.2d 512, (1997), rev'd on other grounds, 351 Md. 307, 718 A.2d 588 (1998). As to it, the intermediate appellate court concluded that, in this case, the officers relied on significantly fewer facts than did the officers executing the warrant in Wynn. To that end, the Court explained:
"Wynn had a long criminal background including drug convictions.... In addition, Wynn was on parole, and had pulled a concealed weapon on police, in the past, to avoid arrest....
"Another factor the Court considered in reaching its decision was the presence of another dangerous criminal in the house, namely Wynn's wife, Angela Kenyon.... The Wynn court, affirming the lower court, held that `sufficient particularized evidence existed to support the conclusion that the officers had an objectively reasonable belief that their personal safety was in danger because of appellant's and Kenyon's prior violent and criminal actions.'"
Carroll, 149 Md.App. at 609-610, 817 A.2d at 933-34. (citations omitted).
The court then juxtaposed the exigent facts in Wynn, with the significantly more meager facts present in Lee v. State, 139 Md.App. 79, 774 A.2d 1183 (2001), aff'd, 374 Md. 275, 821 A.2d 922 (2003). Noting that "[t]he other end of the spectrum is Lee," Carroll, 149 Md.App. at 610, 817 A.2d at 934, the court explained:
"In Lee, we reached the conclusion that the `record failed to show anything more than that Lee was a drug dealer whom the police observed on two previous occasions selling a small amount of a controlled dangerous substances ....' and stated that `[t]he record is bare of any evidence of exigent circumstances that could possibly eliminate the constitutional necessity to knock and announce.'... The Lee Court held that the circuit court erred in ruling that there was justification for the police to enter without knocking and announcing."
Id. (citation omitted).
The intermediate appellate court held that, unlike the circumstances in Richards *1151 and Wynn, the facts known to the officers in this case, did not support the conclusion that an exigency existed to execute the warrant without first knocking and announcing. The court reasoned:
"In attempting to meet its burden, the State relied solely on the testimony of Sergeant Bender, a 15-year veteran, to establish that there were exigent circumstances that made it necessary to dispose of the knock and announce requirement. `The meaning of exigent circumstances is that the police are confronted with an emergencycircumstances so imminent that they present an urgent and compelling need for police action.' Stackhouse v. State, 298 Md. 203, 220, 468 A.2d 333 (1983) (emphasis supplied).
"Sergeant Bender testified that his concern about knocking and announcing was based on the criminal backgrounds of appellant and two known felons with whom he associated and the fact that the search was for an unspecified amount of marijuana and five handguns. The criminal records of Carroll and his alleged cohorts did not create a reasonable suspicion that they would act in a dangerous manner toward the police as contemplated in Richards and Wynn. In addition, we have stated before `that a reasonable belief that firearms may be within the residence, standing alone, is clearly insufficient to excuse a knock and announce requirement.' Wynn, supra, 117 Md.App. at 167, 699 A.2d 512."
149 Md.App. at 611, 817 A.2d at 934-35 (footnote omitted).
We disagree with the Court of Special Appeals.
As Richards indicates, "the showing [of reasonable suspicion that an exigency exists to warrant a "no-knock" entry] is not high but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged." Richards, at 394-95, 117 S.Ct. at 1422, 137 L.Ed.2d at 624. In other words, the requirement that particularized circumstances establishing a reasonable suspicion of exigency be shown, does not mandate that officers show, to an absolute certainty, that their safety is in jeopardy or that evidence unquestionably will be destroyed, but rather, that the police be able to point to some articulable reason why the preference for knocking and announcing their presence would not be appropriate in that case. To be sure, in Wynn, there were a plethora of facts that indicated that the defendants were dangerous to support the conclusion that a "no-knock" entry was required. That case, however, does not set a minimum requirement that must be met in order for a "no-knock" entry in a subsequent case to be found to be reasonable. To the contrary, as Richards dictates, the showing must be case by case and the reasonable suspicion standard is not high. What is required is that a reviewing court be satisfied that the officers have a reasonable suspicion, based on particular circumstances, that an exigency sufficient to warrant a "no-knock" entry to execute the search warrant exists in the case under review. See Richards, supra, 520 U.S. at 394, 117 S.Ct. at 1421-22, 137 L.Ed.2d at 624.
In this case, the affiant averred that, in 1999, the respondent had been convicted of third degree burglary, a crime of violence, see Md.Code (1957, 1996 Repl. Vol.), Article 27, § 44(e), present Md.Code (2003) § 5-101(c)(4) of the Public Safety Article, and that an informant had described, in detail, five handguns, which the informant reported seeing in the respondent's premises, the premises to be searched. Subsequently, Sergeant Bender, who assisted in executing the warrant, learned that, in addition to his burglary conviction, the respondent also had marijuana *1152 and robbery arrests and was known to associate with an individual named Gregory Daniel Price. That individual, Sergeant Bender was aware, had previous arrests for first degree assault, multiple robberies, CDS offenses and was known to carry a handgun.
Although the facts in the case sub judice, may not be as substantial or as compelling as those in Wynn, it is worth repeating that Wynn did not establish a threshold by which all other "no-knock" situations will be evaluated for reasonableness. In this case, we are satisfied that the facts known to the officers at the time of the "no-knock" entry supported the trial court's conclusion that such an entry was reasonable.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED.
CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY.
COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENT.
NOTES
[*]  Eldridge, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.
[1]  The affiant testified that he made no such request because he believed that "no-knock" warrants were issued only in those cases in which there was the potential that the suspect would destroy evidence, and destruction of evidence was not a concern in this case.
[2]  The petitioners also argued that the application did not establish probable cause for the search. The petitioners did not appeal the Circuit Court's denial of their motion on that basis, however. Consequently, the issue was not considered on appeal.
[3]  Both panels held, citing cases from other jurisdictions so holding, see State v. Van Beek, 591 N.W.2d 112, 118-19 (N.D.1999); State v. Hughes, 589 N.W.2d 912, 915-16 (N.D.1999); State v. Eason, 245 Wis.2d 206, 629 N.W.2d 625, 628 (2001); United States v. Tisdale, 195 F.3d 70, 73 (2nd Cir.1999); United States v. Carter, 999 F.2d 182, 184-87 (7th Cir.1993); United States v. Moore, 956 F.2d 843, 851 (8th Cir.1992); United States v. Moland, 996 F.2d 259, 261 (10th Cir.1993); United States v. Gonzalez, 164 F.Supp.2d 119, 125 (D.Mass.2001); United States v. Rivera, 2000 U.S. Dist. Lexis 7997, *2 (D. Maine 2000); United States v. Brown, 69 F.Supp.2d 518, 519 (S.D.N.Y.1999); United States v. Tavarez, 995 F.Supp. 443, 448-49 (S.D.N.Y.1998), that the evidence seized pursuant to the warrant should not be suppressed under the good faith exception to the exclusionary rule. See Davis v. State, 144 Md.App. 144, 150, 797 A.2d 84, 87 (2002).
[3]  The Court of Special Appeals reasoned, more specifically:

"Dispensing with the search scene case-specific particularized circumstances of exigency for law enforcement officers seeking no-knock authorization from a judicial officer serves the public interest. It is more beneficial for law enforcement officers to seek no-knock authorization in a search warrant, rather than make their own independent on-the-scene determination of whether to enter without knocking and announcing. If law enforcement officers had to make an identical showing of exigency regardless of whether they received no-knock authorization in the search warrant, there would be no incentive to seek judicial authorization prior to entering without knocking and announcing."
Davis I, 144 Md.App. at 157 n. 7, 797 A.2d at 92 n. 7.


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                                      PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                      No. 18-1039

CATHERINE D. NETTER, an individual,

                    Plaintiff - Appellant,

             v.

SHERIFF BJ BARNES, in his official and individual capacity,

                    Defendant - Appellee,

             and

GUILFORD COUNTY SHERIFF’S OFFICE, a North Carolina public entity,

                    Defendant.

Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:15-cv-00843-CCE-JEP)

Argued: October 10, 2018                                   Decided: November 15, 2018

Before GREGORY, Chief Judge, MOTZ and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Chief Judge
Gregory and Judge Diaz joined.

ARGUED: Wilson Frank Fong, HENSEL LAW, PLLC, Greensboro, North Carolina,
for Appellant. James Marion Powell, WOMBLE BOND DICKINSON (US) LLP,
Greensboro, North Carolina, for Appellee. ON BRIEF: Craig Hensel, HENSEL LAW,
PLLC, Greensboro, North Carolina, for Appellant. Sonny S. Haynes, Ethan C. Goemann,
WOMBLE BOND DICKINSON (US) LLP, Greensboro, North Carolina, for Appellee.

                                        2
DIANA GRIBBON MOTZ, Circuit Judge:

       Catherine D. Netter brings this appeal, arguing that her unauthorized review and

disclosure of confidential personnel files to support her racial and religious

discrimination claims constituted protected activity under Title VII. Netter contends that

the district court erred in rejecting her argument and granting summary judgment to her

employer. For the reasons that follow, we affirm.

                                            I.

       Netter, a Black and Muslim woman, worked for the Guilford County Sheriff’s

Office for approximately nineteen years, most recently as a detention services supervisor.

For more than sixteen years, Netter compiled an unblemished disciplinary record. That

changed in April 2014, when she received a disciplinary sanction that barred her from

testing for a promotion. Netter filed timely complaints with Guilford County Human

Resources and the Equal Employment Opportunity Commission.              She alleged that

similarly situated officers, who were neither Black nor Muslim, had not been similarly

disciplined.

       Following up on Netter’s complaint, an investigator from the county Human

Resources office asked her if she had evidence to support her discrimination claims. In

response, Netter reviewed, copied, and supplied the investigator with the confidential

personnel files (which she maintained in a file cabinet in her shared office) of two

subordinate employees whom she supervised at Greensboro Jail Central. Netter also

provided the investigator with the personnel files of three other employees who worked at

                                            3
the High Point Detention Center, which she obtained through a personal request to a co-

worker. Netter acknowledges that she knew the files were confidential but nonetheless

did not seek permission from the five employees or her own supervisors to copy and

disclose them.

      Netter additionally gave copies of all five files to the Equal Employment

Opportunity Commission and the lawyer representing her in this suit. In response to a

pretrial discovery request, Netter’s counsel provided copies of the files to defendant BJ

Barnes, the Sheriff of Guilford County. This led the Sheriff’s attorneys to inquire how

Netter obtained the files. In deposition testimony, Netter admitted that she had acted as

outlined above.

      On these facts, a professional standards officer in the Sheriff’s office

recommended Netter’s termination on three grounds. First, the officer concluded that

Netter violated department policy restricting the unauthorized review, duplication, and

dissemination of these records. Second, he believed that she failed to conform to the

work standards established for her position. Third, he asserted that Netter had violated

state law — namely, N.C. Gen. Stat. § 153A–98, which imposes criminal penalties for

reviewing or disseminating information in county personnel files without authorization,

subject to exceptions inapplicable here. Netter appealed to Sheriff Barnes, who upheld

the recommendation and discharged her.

      Netter filed a new charge with the EEOC, contending that the Sheriff fired her for

engaging in activity protected under Title VII. When the EEOC dismissed the charge, the

                                           4
parties agreed to allow Netter to supplement her existing Title VII discrimination

complaint with the new retaliation claim.

       After discovery concluded, the district court granted summary judgment to Sheriff

Barnes on all claims, including Netter’s allegations of discrimination and her claims of

retaliation. Netter timely filed this appeal, in which she challenges only the portion of the

district court’s order that concerns her retaliation claim.

                                              II.

       Title VII of the Civil Rights Act of 1964 bars employers from discriminating on

the basis of “race, color, religion, sex, or national origin.” Pub. L. No. 88–352, § 703, 78

Stat. 241, 255 (1964) (codified as amended at 42 U.S.C. § 2000e–2(a)). Section 704(a)

of the Act expressly prohibits retaliation by an employer against an employee “because

he has opposed any practice made an unlawful employment practice by this subchapter,

or because he has made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e–3(a)

(codified as amended). 1

       This antiretaliation provision has the critical purpose of maintaining “unfettered

access” to Title VII’s “statutory remedial mechanisms” for addressing discrimination.

       1
         Netter also presses an antiretaliation claim under 42 U.S.C. §§ 1981 and 1983.
See CBOCS W., Inc. v. Humphries, 553 U.S. 442, 457 (2008) (interpreting § 1981 to
encompass retaliation claims). Because § 1981 “affords no greater substantive protection
than Title VII” in the circumstances here, our analysis of Netter’s claim “also disposes of
the § 1981 claim.” N.Y.C. Transit Auth. v. Beazer, 440 U.S. 568, 583 n.24 (1979).

                                               5
Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). Because “Title VII depends for its

enforcement upon the cooperation of employees,” the Supreme Court has held that the

scope of protected activity under § 704(a) should be interpreted broadly to “ensure the

cooperation upon which accomplishment of the Act’s primary objective depends.”

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).

       Section 704(a) shields from retaliation two categories of activity: participation

and opposition.    The statute’s participation clause provides absolute protection to a

limited range of conduct. It protects “participat[ion] in any manner in an investigation,

proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e–3(a). Given the clear

directive inherent in the phrase “in any manner,” the clause protects participation

activities even when they are plainly “unreasonable” or “irrelevant.” Glover v. S.C. Law

Enf’t Div., 170 F.3d 411, 414 (4th Cir. 1999); see also Laughlin v. Metro. Wash. Airports

Auth., 149 F.3d 253, 259 n.4 (4th Cir. 1998) (noting that the participation clause provides

“broader” protection than the opposition clause because “[a]ctivities under the

participation clause are essential to the machinery set up by Title VII” (internal quotation

marks omitted)).

       Section 704(a) additionally bars retaliation for “oppos[ition] [to] any practice

made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e–3(a).

This clause provides qualified protection to a wide range of conduct. See, e.g., Crawford

v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 277–78 (2009) (holding that

protected opposition activity need not be “active” or “consistent”). In contrast to the

participation clause, the opposition clause contains no limitation to proceedings “under

                                             6
this subchapter.” But the opposition clause also lacks the participation clause’s express

protection for “any manner” of conduct. Instead, for an employee’s activity to constitute

protected “opposition,” she must show (1) that she reasonably believed that the

employment action she opposed constituted a Title VII violation, Boyer-Liberto v.

Fontainebleau Corp., 786 F.3d 264, 282 (4th Cir. 2015) (en banc), and (2) that her

conduct in opposition was reasonable, see Laughlin, 149 F.3d at 259–60.

       For both participation and opposition claims, the plaintiff bears the burden of

establishing that unlawful retaliation “would not have occurred in the absence of the

alleged wrongful action or actions of the employer.” Univ. of Tex. Sw. Med. Ctr. v.

Nassar, 570 U.S. 338, 360 (2013). This but-for causation requirement is stricter than the

“lessened causation standard” for discrimination claims, id., under which a plaintiff need

only show that “race, color, religion, sex, or national origin was a motivating factor” for

an adverse action by an employer, 42 U.S.C. § 2000e–2(m).

       Finally, when pursuing any claim under Title VII, a plaintiff can prove her case

either “through direct and indirect evidence of retaliatory animus,” or through a burden-

shifting “pretext” framework. Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th

Cir. 2015). In the context of a retaliatory discharge, this means an employee may

proceed by showing directly that she was fired in retaliation for protected activity, or by

proving that any non-retaliatory justification for the firing was pretextual. The choice is

“left to the plaintiff’s discretion.” Id.

                                            7
                                           III.

       With these principles in mind, we turn to the case at hand. Notwithstanding the

Sheriff’s apparent belief that Netter pursues a pretext claim, Netter has opted to proceed

on a direct-evidence theory. 2 Because the parties do not dispute the facts, the sole issue

before us is whether Title VII protects Netter’s conduct against retaliation.       Netter

principally argues that her entire course of conduct constituted protected “participation”

activity under the antiretaliation protections of Title VII and related statutes.

Alternatively, she asserts that her review and disclosure of files to the county Human

Resources investigator constituted protected “opposition” activity.

      We can quickly dispose of Netter’s alternative argument. Under the opposition

clause, unauthorized disclosures of confidential information to third parties are generally

unreasonable.    See, e.g., Laughlin, 149 F.3d at 260 (“easily conclud[ing]” under

opposition clause that “employer’s interest in maintaining security and confidentiality of

sensitive personnel documents outweigh[ed]” employee’s interest in providing them to

former co-worker); Jefferies v. Harris Cty. Comm. Action Ass’n, 615 F.2d 1025, 1036–37

(5th Cir. 1980) (holding disclosure of personnel records and agency documents

unprotected as opposition in light of employer’s “legitimate and substantial interest” in

confidentiality). Netter attempts to justify her conduct on the basis that she reasonably

believed the county investigator had a right to access employee personnel files. Even if

she is correct as to the disclosures, however, Netter’s review of the files, which she

       2
        We note that the outcome of this case does not turn on whether Netter relied on
burden-shifting or direct evidence.

                                            8
lacked permission to access for this purpose, falls decidedly outside the scope of

reasonable opposition. We are loath “to provide employees an incentive to rifle through

confidential files looking for evidence.” O’Day v. McDonnell Douglas Helicopter Co.,

79 F.3d 756, 763 (9th Cir. 1996) (analyzing analogous Age Discrimination in

Employment Act provision).

       However, the participation clause offers more capacious protection for conduct in

connection with Title VII proceedings. Application of the participation clause must

account for the evidentiary difficulties many plaintiffs face when pressing claims of

workplace discrimination. Absent unusual evidence of overt animus, a plaintiff seeking

to prove unlawful discrimination in employment will generally need to produce evidence

of comparators, or similarly-situated employees of a different race, color, religion, sex, or

national origin who have been treated differently.

       Because salaries, disciplinary infractions, and the like often remain confidential, it

may be difficult for an employee to realize — let alone prove — that such evidence

exists. See, e.g., Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 645 (2007)

(Ginsburg, J., dissenting) (noting that because pay disparities can accrue in “small

increments” “often hidden from the employee’s view,” “cause to suspect that

discrimination is at work develops only over time”), superseded by statute, Lily Ledbetter

Fair Pay Act of 2009, Pub. L. No. 111–2, 123 Stat. 5 (2009). Even after an employee

suspects discrimination, her uncertainty and her employer’s power over her livelihood

may discourage her from “making waves” until “the disparity becomes apparent and

sizable.” Id.

                                             9
       Of course, once an employee recognizes potential discrimination and files a charge

with the Equal Employment Opportunity Commission, the agency may investigate the

claim and issue subpoenas. See, e.g., EEOC v. Shell Oil Co., 466 U.S. 54, 63–64 (1984)

(outlining EEOC’s investigatory powers, including “authority to issue administrative

subpoenas and to request judicial enforcement of those subpoenas”) (citing 42 U.S.C.

§§ 2000e–8(a), 2000e–9). But an employee has no power to subpoena evidence herself,

nor to review the evidence that the EEOC gathers. If the EEOC dismisses the charge and

the employee files a civil suit stating a valid claim for relief, the employee may gather

evidence through civil discovery mechanisms — but still, the employee must know what

to request.   We therefore will not read the participation clause so narrowly as to

improperly limit an employee’s ability to gather evidence for a bona fide Title VII claim.

       That said, we cannot conclude that Netter’s unauthorized inspection and copying

of the personnel files constituted protected participation activity for a straightforward

reason.    She violated a valid, generally-applicable state law.          Netter does not

meaningfully dispute that these actions, standing alone, violated N.C. Gen. Stat. § 153A–

98(f), which establishes a Class 3 misdemeanor for “knowingly and willfully examin[ing]

. . . , remov[ing,] or copy[ing] any portion of a confidential personnel file” without

authorized access. We have already held in an opposition clause case that “illegal

actions” do not constitute “protected activity under Title VII.” Laughlin, 149 F.3d at 259

n.3. That is also true for participation clause claims.

       Netter responds that under the Supremacy Clause, even illegal activities can be

protected if the relevant state law conflicts with Title VII. See U.S. Const. art. VI, cl. 2;

                                             10
see also Arizona v. United States, 567 U.S. 387, 398–400 (2012) (summarizing express,

field, and conflict preemption). But this argument presupposes the existence of a conflict

between state and federal law, and we see none here.

       A state law that expressly or effectively criminalized filing an EEOC charge or

pursuing a Title VII suit would undoubtedly be preempted as an obstacle to the

enforcement of Title VII. But that is not the law at issue. N.C. Gen. Stat. § 153A–98(f)

has the valid and salutary purpose of protecting the personal information of current and

former county employees across the state. It neither expressly contradicts Title VII’s

provisions nor meaningfully impedes a litigant’s ability to pursue a Title VII claim.

Indeed, in this case, Netter had access to — and utilized — civil discovery procedures

without any demonstrated need to unlawfully review or copy confidential personnel

information.

       Accordingly, we hold that Netter’s unauthorized review and duplication of

confidential personnel files did not constitute protected opposition or participation

activity. Therefore, Netter cannot prevail. For us to reverse, Netter would have to

persuade us that “unlawful retaliation would not have occurred in the absence of the

alleged wrongful action . . . of the employer.” Nassar, 570 U.S. at 360. But Sheriff

Barnes and his officers expressly and extensively cited Netter’s violations of N.C. Gen.

Stat. § 153A–98(f) in justifying her discharge. Even assuming the other stated grounds

for her discharge are invalid, Netter has not established that she would have remained

employed in their absence. To the contrary, the record establishes that Sheriff Barnes

would have terminated her solely on the basis of her violation of state law.

                                            11
                                            IV.

       The Sheriff urges us to rule more broadly. He asks us to hold that any disclosure

of information in violation of an employer’s confidentiality policy falls beyond the scope

of the participation clause. This assertedly would be the rule even if the employee had

permission to access the information, disclosed it only to the Equal Employment

Opportunity Commission in connection with a Title VII proceeding, and did not violate

valid state law. Perhaps implicitly recognizing that providing evidence in an EEOC

investigation seems like quintessential “participation” activity, Sheriff Barnes offers two

arguments in support of his preferred result.

       First, the Sheriff cites the Sixth Circuit’s holding that although the “analysis of a

participation claim does not generally require a finding of reasonableness, . . . when

confidential information is at issue, a reasonableness requirement is appropriate.”

Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 726 (6th Cir. 2008). Second, the Sheriff

points to our reasoning in Glover that conduct “related to protected activity” but “distinct

and separable from that activity” remains a valid basis for discipline. 170 F.3d at 415.

The Sheriff then relies on a case in which the Tenth Circuit stretched this principle to

hold that while disclosure of records to the EEOC constituted protected participation

activity, the resultant violation of the employer’s confidentiality policy nevertheless

constituted a legitimate, non-retaliatory basis for termination. Vaughn v. Epworth Villa,

537 F.3d 1147, 1152–53 (10th Cir. 2008).

       We believe Glover properly counsels against both of these approaches. As we

carefully explained in that case, the phrase “in any manner” clearly forecloses any

                                            12
reasonableness requirement for participation claims. Glover, 170 F.3d at 414. The

statutory text remains unchanged today, and we see no basis to create a blanket exception

to the Glover analysis for cases that happen to implicate employer confidentiality

policies. Similarly, the underlying act of disclosing evidence to the EEOC and the

employer policy violation that such an act may trigger are “so inextricably related” that

following the Tenth Circuit and separating the two would, as we explained in Glover,

“slice things much too thinly.” Id. at 415 (internal quotation omitted). Both broad rules

suggested by the Sheriff risk eroding the protection afforded by the participation clause,

thereby threatening the full employee cooperation on which Title VII depends. 3

      We hold only, as we did in Laughlin, that § 704(a) does not protect a violation of a

valid state law that poses no conflict with Title VII. Like Laughlin’s opposition claim,

Netter’s participation claim fails: she has not met her burden of proving that Sheriff

Barnes terminated her employment because she engaged in protected activity.

                                            V.

      For the foregoing reasons, the judgment of the district court is

                                                                             AFFIRMED.

      3
         For similar reasons, it is neither necessary nor prudent to decide in this case
whether N.C. Gen. Stat. § 153A–98(e), a provision that criminalizes the disclosure of
confidential information generally, can validly be applied to prohibit a claimant from
disclosing evidence in confidence to the EEOC in light of the participation clause.

                                            13