United States v. Hunt

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
________________

No. 00-60333
________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARCELLUS HUNT,

Defendant-Appellant.
____________________________________

Appeal from the United States District Court
for the Northern District of Mississippi
____________________________________

June 1, 2001

Before: KING, Chief Judge, and ALDISERT* and BENAVIDES, Circuit
Judges.

ALDISERT, Circuit Judge:

We decide today whether Appellant’s Fourth Amendment rights

were violated when the automobile he was driving, which had been

stopped by a state trooper for a traffic violation, was searched

simply because Appellant got out of the car to meet the state

trooper rather than waiting inside the vehicle for the trooper to

approach him. At the suppression hearing, the trooper testified

that, in every case in which a driver disembarks from an

_______________________

*Circuit Judge of the Third Circuit, sitting by designation.
automobile after being stopped for a traffic violation, he opens

the car door to examine the vehicle’s interior.1 Concluding that

Appellant’s constitutional rights had not been violated, the

district court refused to suppress the evidence seized as a

result of the search. We reverse.

I.

The district court had jurisdiction pursuant to 18 U.S.C. §

3231. We have jurisdiction on this appeal from a final judgment

1
The trooper testified:

Q. Now, you went to the driver’s side door to inspect the car for
weapons; is that correct?

A. Sir, that or anything else that might arouse my
suspicions, I always do it.

Q. What you’re saying is, every car that you stop in broad daylight
in a high traffic area, who gets out to meet you and complies with
you and gives your [sic] their license as requested, you go and
open their vehicle to conduct a search; is that correct?

A. I do open their vehicle door.

* * *

Q. But what you are doing is, you are conducting a search to make
sure there are no weapons, alcohol, controlled substance or
anything of that nature; correct?

A. For me, it’s officer safety, sir. I guess–yes, sir, I guess you
are right.

* * *

Q. ... But your reason for going there was to search and to open that
door and to look inside for any contraband such as drugs, alcohol,
or any weapon; correct?

A. That’s correct.

Tr. at 12-13.

2
of a conditional plea and sentence under 28 U.S.C. § 1271.

This court applies a two-tiered standard of review to a

district court’s denial of a motion to suppress, reviewing the

court’s factual findings for clear error and its “ultimate

conclusion as to the constitutionality of the law enforcement

action de novo.” United States v. Hernandez-Zuniga, 215 F.3d

483, 485-486 (5th Cir. 2000) (quoting United States v. Chavez-

Villarreal, 3 F.3d 124, 126 (5th Cir. 1993)); see also United

States v. Kirk, 111 F.3d 390, 393 (5th Cir. 1997) (“When

reviewing a motion to suppress based on live testimony, we must

accept a district court’s findings of fact unless clearly

erroneous or influenced by an incorrect view of the law.”). We

view the evidence in the light most favorable to the party that

prevailed in the district court. See United States v. Dortch,

199 F.3d 193, 197 (5th Cir. 1999).

II.

On July 13, 1999, Appellant Marcellus Hunt was stopped by

Officer Davidson of the Mississippi Highway Patrol for speeding.

The stop occurred on a four-lane highway at 1:45 p.m. Appellant

was driving a 1999 Buick Century which did not have tinted

windows. Dewaun Dorse was a passenger in the car.

After being pulled over, Appellant left his car, shutting

the door behind him, and walked to the back of the Buick to meet

3
Davidson. After Appellant complied with Davidson’s request to

produce a valid driver’s license, Davidson walked to the driver’s

side of the Buick and opened the door.

Davidson visually searched the car and spoke with Dorse.

As Davidson prepared to shut the driver’s side car door, he

observed a clear plastic bag stuffed in the indentation that

serves as a door handle on the door. Davidson contends that the

contents of the clear plastic bag appeared to be crack cocaine.

After spotting the drugs in his search of the vehicle,

Davidson walked back towards Appellant who was waiting at the

rear of the car. As he was returning to Appellant, Davidson

noticed for the first time an empty gun holster on the floorboard

behind the driver’s seat. Davidson frisked Appellant, placed him

under arrest, and then arrested Dorse. Incident to these

arrests, Davidson searched the Buick and found a bag of powder

cocaine in the glove box and a handgun in the center armrest.

Appellant was charged in a two-count indictment. Count One

charged Appellant with aiding and abetting possession with intent

to distribute 248.47 grams of cocaine salt (powder cocaine) and

5.72 grams of cocaine base (crack cocaine). Count Two charged

Appellant with possession of a firearm by a convicted felon.

Appellant filed a motion to suppress, which the district

court denied, concluding that “the officer [was] within his

authority in opening the door of a car after a traffic search to

4
look for weapons.” Following the denial of his motion, Appellant

entered a conditional guilty plea, subject to the appeal of the

denial of the suppression motion.

III.

The Fourth Amendment guarantees that “[t]he right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be

violated.” U.S. CONST. amend. IV. The essential purpose of the

Fourth Amendment is to impose a standard of “reasonableness” upon

law enforcement agents and other government officials in order to

prevent arbitrary invasions of the privacy and security of

citizens. Delaware v. Prouse, 440 U.S. 648, 653-654 (1979).

The protection of the Fourth Amendment is enjoyed not only

in the home, but on the sidewalk and in a person’s automobile.

See Delaware v. Prouse, 440 U.S. at 663 (citing Terry v. Ohio,

392 U.S. 1, 19 (1968) and Adams v. Williams 407 U.S. 143, 146

(1973)) (“[P]eople are not shorn of all Fourth Amendment

protection when they step from their homes onto the public

sidewalks. Nor are they shorn of those interests when they step

from the sidewalks into their automobiles.”). It is well

established that a traffic stop is a limited seizure within the

meaning of the Fourth Amendment, Delaware v. Prouse 440 U.S. at

653, and that intrusion into the interior of an automobile for

5
investigative purposes constitutes a search, New York v. Class,

475 U.S. 106, 114-115 (1986). The stopping of an automobile and

the detention of its occupants constitutes a “seizure,” even when

the purpose of the stop is limited and the resulting detention

brief. Delaware v. Prouse 440 U.S. at 653. “While the interior

of an automobile is not subject to the same expectations of

privacy that exist with respect to one’s home, a car’s interior

as a whole is nonetheless subject to Fourth Amendment protection

from unreasonable intrusions by the police.” Class, 475 U.S. at

114-115.

The Court specifically has rejected a “bright-line” rule

that an automobile search incident to a traffic citation is

permissible without reasonable suspicion or probable cause for

the search. See Knowles v. Iowa, 525 U.S. 113, 117 (1998); see

also Michigan v. Long, 463 U.S. 1032, 1049 (1983). Davidson

could not search the automobile without some articulable,

individualized suspicion that the automobile contained weapons or

contraband. United States v. Michelletti, 13 F.3d 838, 840 (5th

Cir. 1994) (“Reasonable suspicion must be supported by particular

and articulable facts, which, taken together with rational

inferences from these facts, reasonably warrant an intrusion.”).

Thus, we must determine whether Davidson’s search of Appellant’s

automobile, based only on Appellant’s exit from the vehicle, was

an unnecessary intrusion. We believe that it was.

6
 IV.

Appellant admits that he was lawfully stopped for driving 85

miles-per-hour in a 70 mile-per-hour speed zone. Appellant

concedes also that Davidson had the right to inspect the car

visually for the purpose of observing weapons or contraband in

plain view. See Whren v. United States, 517 U.S. 806, 809

(1996). The fact that Appellant was lawfully stopped, however,

does not justify Davidson’s intrusion into Appellant’s car for

the purpose of performing the search of the vehicle’s interior

that unearthed the evidence at issue in this case. Under

existing Fourth Amendment jurisprudence, the officer had the

right only to remove from the vehicle Appellant, the driver, (had

he still been inside), see Pennsylvania v. Mimms, 434 U.S. 106,

111 (1977), and Dorse, the passenger, see Maryland v. Wilson, 519

U.S. 408, 414 (1997). Officer Davidson could not search the

automobile’s interior without objective evidence of criminal

activity or of potential danger to the officer. And, had he not

opened the car door to search the interior, Davidson admits that

he would not have seen the plastic bag stuffed into the driver’s

side door handle.

The facts developed at the suppression hearing demonstrate

that Davidson did not have probable cause or reasonable suspicion

to open Appellant’s car door and conduct a search. Davidson

7
conceded as much when he testified that: (1) Appellant was

compliant and cooperative when the officer requested Appellant’s

driver’s license, (2) there was nothing in Appellant’s dress or

demeanor that caused him any concern, (3) Dorse did not make any

movements that caused Davidson any concern, (4) he did not

suspect that Appellant or Dorse possessed any drugs or contraband

or that Appellant was in possession of a weapon, (5) he did not

smell any alcohol or suspect that Appellant was driving under the

influence of an illicit substance, (6) there was no reason to

believe that the Buick was stolen or that there was anything

wrong with the license plate, the inspection sticker, or

Appellant’s driver’s license, (7) there was “nothing unusual

about the situation,” and (8) Appellant did not do or say

anything to cause Davidson to be concerned or worried.

Davidson testified that the reason he went to the driver’s

door was because Appellant had left the vehicle to meet him

outside the car. On cross-examination, Davidson stated:

“Anytime someone does that, sir, I always go on to the driver’s

door to make sure there is nothing in there, for officer safety;

no weapons or anything else is in the car.” Tr. at 11. Davidson

admitted that he “automatically” undertook this search whenever

anyone exited a vehicle during a routine traffic stop, and that

he recognized that his opening of the door and leaning into the

car was a “search” under the Fourth Amendment. Id. at 12-13, 21;

8
see U.S. v. Ryles, 988 F.2d 13, 15 (5th Cir. 1993).

Davidson’s regular practice of conducting a search whenever

a driver leaves his or her vehicle during a routine traffic stop

is in direct conflict with the constitutional requirement that

automobile searches be conducted only when there are particular

objective factors warranting the intrusion. An individual’s

decision to step out of his or her vehicle to greet a detaining

officer does not create the individualized suspicion required for

an automobile search. See Goodson v. City of Corpus Christi, 202

F.3d 730, 735 (5th Cir. 2000) (stressing that an officer “must be

able to articulate something more than an inchoate and

unparticularized hunch” for a search to be permissible). Officer

Davidson’s admission that his regular practice is to search for

contraband without individualized reasonable suspicion is fatal

to the government’s case.

The government has presented no empirical data, nor has our

independent research discovered any, suggesting that the act of a

driver who has been stopped for a traffic violation leaving his

car to greet the officer creates either a permissible or

compellable inference that the automobile contains contraband or

weapons. For an intrusion to be warranted, there must be

appropriate inferences drawn from the facts specific to the

situation at hand. No such facts were present here.

V.

9
 The government attempts to justify Officer Davidson’s search

by arguing that: (1) Appellant’s decision to leave the Buick and

meet Davidson in the rear of the car was not, according to

Davidson, a common practice for drivers who are stopped for

routine traffic violations; (2) Davidson’s search of the car for

“officer safety” was a standard and acceptable practice; and (3)

Davidson perceived Appellant to be “a little nervous” when he was

asked for his license. These arguments fail. We have already

rejected the notion that, whether it is a common practice or not,

the act of leaving a vehicle to greet a detaining officer creates

the reasonable suspicion necessary to justify an automobile

search for weapons or contraband. We have dismissed also the

government’s assertion that Officer Davidson’s practice of

searching vehicles based only on a generalized fear for officer

safety is acceptable under the Fourth Amendment. As to the

observation that Appellant was “nervous,” Officer Davidson

admitted at the suppression hearing that such “nervousness” was

not unusual among people who are stopped for traffic violations:

Attorney: Let’s talk about this “may have been nervous.”
You are not testifying that he was nervous, are
you?

Davidson: No, sir.

Attorney: You’re just saying that he may have been nervous,
correct?

Davidson: Yes, sir; that’s correct.

Attorney: As any person who is stopped for speeding may have
been nervous; is that correct?

10
 Davidson: Yes, sir, that’s correct.

Tr. at 10-11. Having so testified, Officer Davidson cannot now

allege that his search was justified by an unusual level of

nervousness exhibited by Appellant.

The government cites numerous cases in an attempt to justify

Officer Davidson’s search of Appellant’s vehicle. Each of these

cases can be distinguished from the instant case in one important

way. In every case that the government cites, the Officer

conducting the search had individualized, particularized

suspicion of wrongdoing triggered by specific facts surrounding

the detention. See, e.g., Whren, 517 U.S. at 809-810 (finding

justification for protective search of a car when suspect was

stopped in a “high crime area” in the evening and when the

contraband was clearly seen by a vice-squad officer through the

driver’s side window); Michigan v. Long, 463 U.S. at 1051

(finding justification for protective search of car after

defendant had driven into a ditch, had difficulty answering

questions due to “some intoxicant,” and a knife was spotted by

officers); United States v. Baker, 47 F.3d 691, 694 (5th Cir.

1995) (finding justification for protective search of a car after

police received contradictory responses to questions regarding

their travel itinerary and whether a gun was in the car, where

defendants appeared “extremely nervous,” and only after spotting

a box of ammunition in the car); Ryles, 988 F.2d at 15 (finding

11
justification for protective search of a car when the driver who

left the car to greet the officer had no driver’s license,

admitted he was not the owner of the van, could not provide proof

of liability insurance as required under Texas law, smelled of

alcohol (although he passed the field sobriety test), and where

the van smelled of marijuana as the officer approached). In the

instant case, Officer Davidson admits that his search of

Appellant’s vehicle was prompted not by a unique set of facts

surrounding the stop of the vehicle, but rather by his

generalized perception of individuals who choose to leave their

automobiles when they are stopped for routine traffic violations.

Both Michigan v. Long and Ryles specifically warn against

the type of vehicle frisk without reasonable suspicion engaged in

by Officer Davidson. In Long, the Court stressed that “our

decision does not mean that police may conduct automobile

searches whenever they conduct an investigative stop. . . .” 463

U.S. at 1050 n.14; see also Knowles v. Iowa, 525 U.S. 113, 117

(1998) (establishing that the dicta in Long was now elevated to

the Court’s holding). In Ryles, this court expressly stated:

“We do not intend to suggest that a police officer may in all

circumstances constitutionally intrude into the interior of a

vehicle simply because he has temporarily lawfully detained the

vehicle because of a traffic violation.” 988 F.2d at 16. We

adhere to this admonishment now; this simply is not a case in

12
which the Officer’s search of the vehicle can be justified.2

VI.

The government has failed to present any specific,

articulable facts to justify Officer Davidson’s search of

Appellant’s vehicle. Additionally, Officer Davidson has conceded

that it is his standard practice to conduct such a search

whenever a person voluntarily leaves his or her car during a

routine traffic stop. Because the Fourth Amendment forbids an

automobile search absent individualized suspicion of ongoing

criminal activity or danger to the officer, we find that the

district court erred in denying Appellant’s suppression motion.

The judgment of the district court is VACATED. The Order

denying the motion to suppress is REVERSED.

2
The government contends that Officer Davidson saw the holster in plain
view as he walked back to Appellant after searching the automobile, and that
therefore the evidence should be admitted under the doctrine of inevitable
discovery. See United States v. Kirk, 111 F.3d 390, 392 (5th Cir. 1997). We
need not meet this issue because it was not presented first to the district
court, Sims v. Apfel, 530 U.S. 103, 108 (2000).

13
KING, Chief Judge, specially concurring:

I concur in the judgment reversing the district court’s

order denying Hunt’s motion to suppress and in Judge Aldisert’s

good opinion for the panel. I write separately to emphasize that

the basis for my decision rests in the government’s failure to

present any evidence to suggest that the act of leaving a

lawfully stopped automobile to greet an officer creates an

inference that the automobile contains contraband or weapons.

Officer Davidson did articulate a general, fact-based suspicion

of sorts, which led to his search of the vehicle. He offered no

basis, however, for his suspicion drawn either from his own

experience or from the specific facts of this stop. There is

nothing in the suppression hearing testimony or in the

government’s evidence that allows this court to determine whether

his generalized suspicion was reasonable. Officer Davidson’s

practice, based on what is, on this record, only a hunch, is not

enough.