Jeffrey L. Estep v. Dallas County, Texas, William F. Peace, Conley, Officer J.C. Quillen

KING, Chief Judge,

concurring in part and dissenting in part:

In my view, the police officers in this case reasonably suspected that Jeffrey Es-tep’s vehicle contained a weapon. They therefore did not violate Estep’s Fourth Amendment rights in searching his vehicle. Further, even if there were a Fourth Amendment violation, these officers are entitled to qualified immunity because reasonable officers in their positions would not have thought the search was clearly illegal. I therefore dissent from the panel’s decision reversing summary judgment in favor of Officers Peace and Quillen. I concur in the decision affirming summary judgment in favor of Officer Conley.

I. FACTS

Because this case comes to our court on the defendants’ motion for summary judgment, we review the record in the light most favorable to Estep. Taking the undisputed facts and the disputed facts as Estep has alleged them, on March 29, 1993, Officer William Peace was monitoring traffic from his squad car using a radar unit when he noticed Estep was speeding. Officer Peace stopped Estep and got out of his squad car to request identification and proof of insurance. As Officer Peace approached Estep’s truck, he noticed camouflage material and what he believed was hunting gear in the back of the truck. Peace also noticed a National Rifle Association (“NRA”) sticker on the truck’s back window.

Before Officer Peace reached the driver’s side of the truck, Estep exited the truck. Estep asserts that he “greeted [Officer Peace] with respect” and was totally cooperative. Officer Peace asked Estep if he had a weapon in the vehicle; Estep responded that he did not and asked why he had been stopped. Officer Peace again asked if there was a weapon in the truck; Estep dangled his key chain in front of Officer Peace and asked if the mace attached to his key chain was a weapon. At that point, Officer Peace became concerned for his own safety, so he returned to his patrol car and called for backup while Estep sat in his truck.

Officers J.C. Quillen and G.A. Conley arrived on the scene. Officer Peace told them that he was nervous because he thought Estep had a weapon in his truck. Officer Peace then had Estep exit the *363truck. Officer Peace wrote Estep a citation for speeding while Officer Quillen searched Estep’s truck for a weapon. While Officer Quillen searched the vehicle, Estep complained that the officers were violating his constitutional rights, particularly his constitutional right to carry a firearm. Officer Quillen found a pistol in a case under the driver’s side seat, and Es-tep was arrested for unlawfully carrying a weapon.

II. DISCUSSION

We utilize a familiar two-part test for determining whether a public official is entitled to qualified immunity. First, we determine if the plaintiffs constitutional rights were violated. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If the facts viewed in the light most favorable to the plaintiff do not show a constitutional violation, the officer is entitled to qualified immunity. Id. Second, if a violation occurred, we consider whether the rights violated were clearly established at the time of the violation. Id. If the officer violated a clearly established right, he is stripped of qualified immunity. Id. at 201-02, 121 S.Ct. 2151.

A. Crediting Estep’s Version of the Events, Was the Fourth Amendment Violated?

The threshold question, then, is whether the facts viewed in the light most favorable to Estep show that the officers violated Estep’s constitutional rights.

It is well-settled that a police officer may conduct a protective search of a vehicle based on a reasonable suspicion that there is a weapon in the vehicle. See Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Reasonable suspicion is a belief “based on ‘specific and articulable facts which, taken together with the rational inferences from those facts’ ” indicate that “the suspect is dangerous and the suspect may gain immediate control of weapons.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). An officer’s suspicion is judged using an objective standard: “the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. 1868.

Reasonable suspicion requires only a minimum level of objective justification, just “more than a hunch.” United States v. Michelletti, 13 F.3d 838, 840 (5th Cir.1994) (en banc). As we have noted, reasonable suspicion “is considerably easier for the government to establish than probable cause.” United States v. Tellez, 11 F.3d 530, 582 (5th Cir.1993). Finally, whether reasonable suspicion existed is judged on the totality of the circumstances. See United States v. Ibarra-Sanchez, 199 F.3d 753, 759 n. 5 (5th Cir.1999).

Even viewing the facts in the light most favorable to Estep, Officers Peace, Quillen, and Conley have articulated sufficient facts to support their suspicion that Estep’s truck contained a weapon. As Officer Peace approached the truck, he saw indicia of gun ownership.1 See, e.g., United States v. Baker, 47 F.3d 691, 694-95 (5th Cir.1995) (finding that an officer’s viewing .9 millimeter bullets on the floor of a sus*364pect’s vehicle supported reasonable suspicion); see also United States v. Richards, 967 F.2d 1189, 1193 (8th Cir.1992) (noting that presence of .22 caliber shells inside a suspect’s vehicle supported an officer’s reasonable suspicion that the vehicle contained a weapon). Estep exited his vehicle and starting moving towards Officer Peace, which Peace interpreted as Estep trying to assert control over the situation. See Michelletti, 13 F.3d at 842 (finding that suspect’s “purposeful strides” were a fact supporting an officer’s reasonable suspicion); United States v. Coleman, 969 F.2d 126, 131-32 (5th Cir.1992) (finding that the fact that a suspect “exited quickly” after traffic stop supports officer’s reasonable suspicion).2 When Officer Peace asked Estep about weapons in the truck, Estep distracted Officer Peace by waving his key chain at Officer Peace and asking if mace was a weapon. Based on Estep’s answers to his questions, Officer Peace became concerned about the presence of weapons and requested backup. In light of the totality of the circumstances, Officer Peace was reasonable in concluding from Estep’s behavior and the items spotted in Estep’s truck that Estep may have a firearm. Further, Officers Quillen and Conley appropriately relied on Officer Peace’s assessment of the situation. See Ibarra-Sanchez, 199 F.3d at 759-60 (finding that police officers need not have personal knowledge of facts giving rise to reasonable suspicion; one officer may rely on another officer’s observations).

The finding that there was reasonable suspicion in this case is in line with our precedents. Initially, it has long been recognized that “investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.” Long, 463 U.S. at 1052, 103 S.Ct. 3469; see also Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (“[T]he policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect.”). Further, we have upheld vehicle searches on similar facts in several cases.3 See, e.g., Baker, 47 F.3d at 694-95 (finding reasonable suspicion based on suspect’s nervousness, evasiveness, and the sight of bullets in the vehicle); Coleman, 969 F.2d at 131-32 (finding reasonable suspicion based on suspect’s quick exit from his vehicle, his nervousness, and money found during a protective pat-down); United States v. Maestas, 941 F.2d 273, 277-78 (5th Cir.1991) (finding reasonable suspicion when a suspect appeared aggressive and intoxicated and, after returning to his vehicle, leaned forward, possibly to grasp a weapon under his seat). Our precedents indicate that officers need only articulate a minimum amount of facts to support reasonable suspicion. See, e.g., United States v. Colin, 928 F.2d 676, 678 (5th Cir.1991) (upholding weapons frisk of passenger who “stoop [ed] down and mov[ed] from side to side” in front seat of automobile). We have held that even a suspect’s innocent behavior may provide facts sufficient to make an experienced *365police officer justifiably suspicious. See United States v. Jacquinot, 258 F.3d 423, 427-28 (5th Cir.2001), cert. denied, 534 U.S. 1116, 122 S.Ct. 925-26, 151 L.Ed.2d 889 (2002).

The majority in this case concludes that “there were no specific articulable facts from which Officer Peace could have lawfully concluded that he was in danger.” I disagree. Particularly in light of our repeated acknowledgments of the dangers police officers face during traffic stops, I refuse to second-guess Officer Quillen’s search of Estep’s truck, even on the facts as Estep has alleged them.4 Thus, I would affirm the district court’s grant of summary judgment in favor of Officers Peace, Quillen, and Conley.

B. Is There a Fact Question as to Whether the Fourth Amendment Was Violated?

Alternatively, if the undisputed facts and the disputed facts as Estep has alleged them do not establish clearly enough that there was no Fourth Amendment violation, there is a serious factual dispute that should be resolved before that question is decided.

While Estep claims he was polite and cooperative during the traffic stop, the police officers tell quite a different story. According to Officer Peace, as he approached the truck, Estep quickly exited the truck and came toward him. Officer Peace noticed camouflage material, what he thought was hunting gear, and an NRA sticker and was concerned that Estep might have a firearm. Officer Peace then asked Estep several times whether Estep had a weapon in the vehicle; Estep never gave him a straight answer. The first time Officer Peace asked whether he had a weapon, Estep asked why he had been stopped. After Officer Peace again asked Estep if he had a weapon, Estep “made a quick move with his hand” to reach inside his truck. Estep retrieved a key chain containing mace and waved the mace in Officer Peace’s face, asking if mace was a weapon. According to Officer Peace, Es-tep then began explaining his view of his constitutional right to carry a firearm. Officer Peace became so concerned for his own safety that he called for backup. Clearly, a- factfinder crediting Officer Peace’s version of events would find that there was no Fourth Amendment violation. Estep’s evasive yet confrontational behavior, combined with Officer Peace’s observations of camouflage material, hunting gear, and an NRA decal, is more than enough to show reasonable suspicion. See, e.g., Baker, 47 F.3d at 694-95; Coleman, 969 F.2d at 131-32; Maestas, 941 F.2d at 277-78. Since the majority does not find it clear, as I do, that there was no Fourth Amendment violation 'on Estep’s version of the events, it should have reversed and remanded for a resolution of the disputed facts bearing on whether there was a Fourth Amendment violation rather than holding that qualified immunity is unavailable. See, e.g., Goodson v. City of Corpus Christi, 202 F.3d 730, 736-40 (5th Cir.2000).

C. Did Officers Peace, Quillen, and Conley Act Unreasonably in Light of Clearly Established Law?

Returning to the undisputed facts and Estep’s version of the disputed facts, even *366if the police officers’ suspicion that Estep carried a weapon was not reasonable under the Fourth Amendment, I do not believe the officers acted so outrageously that they are undeserving of qualified immunity.5

A public official performing discretionary functions is entitled to qualified immunity from lawsuits arising out of those activities. See Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir.2001). Routine traffic stops are considered discretionary functions. See Trejo v. Perez, 693 F.2d 482, 487 n. 9 (5th Cir.1982). An officer retains qualified immunity so long as he acts reasonably in light of the law clearly established at the time of the violation. See Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir.1992). For a right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); see also Pierce v. Smith, 117 F.3d 866, 882 (5th Cir.1997) (“For qualified immunity • to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what [the] defendant is doing violates federal law in the circumstances.”) (quotations omitted) (emphasis in original). Put another way, if reasonable police officers would disagree as to whether the search was lawful, the right to be free from the search was not clearly established and the officer retains qualified immunity. See Anderson, 483 U.S. at 638-40, 107 S.Ct. 3034.

Once an officer pleads the qualified immunity defense, the burden shifts to the plaintiff to show that the officer violated clearly established law. See Pierce, 117 F.3d at 871-72; Salas, 980 F.2d at 306. It is thus Estep’s burden to show that under the facts of this case, it was clearly established that the officers could not reasonably believe their safety was in danger. Estep’s burden is a significant one; qualified immunity gives ample room for mistaken judgments and protects “all but the plainly incompetent or those who knowingly, violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).

Officers Peace, Quillen, and Conley are entitled to qualified immunity in this case. At the time of the traffic stop at issue here, it was clearly established that a police officer may conduct a weapons “frisk” of a vehicle based on reasonable suspicion. See, e.g., Long, 463 U.S. at 1049, 103 S.Ct. 3469. There is no Supreme Court or Fifth Circuit precedent that is factually on all fours with this case, but we would not expect that because, as the Supreme Court has recognized, the Fourth Amendment inquiry is so fact-specific. See Anderson, 483 U.S. at 639-40, 107 S.Ct. 3034. The law at the time of the alleged violation indicated that reasonable suspicion was a forgiving, , totality-of-the-circumstanees standard. See, e.g., Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). And by 1993, we had routinely upheld weapons frisks on similar facts, requiring officers to articulate only a minimum level of suspicion. See, e.g., Coleman, 969 F.2d at 131-32; Maestas, 941 F.2d at 277-78; Colin, 928 F.2d at 678.

In this case, the police officers were called upon to make a split-second determination as to Estep’s dangerousness. Officer Peace relied on his experience and judgment in determining that Estep’s be*367havior was suspicious. Officer Peace also observed items in Estep’s truck that indicated Estep might have a weapon. When Officers Quillen and Conley arrived on the scene, Officer Peace told them he was concerned about the presence of a weapon in the vehicle. A reasonable officer could have been concerned for his safety under the circumstances presented here. Even if Officer Peace was mistaken in his belief that the search was lawful, our qualified immunity jurisprudence forgives such mistakes. See, e.g., Saucier, 533 U.S. at 205, 121 S.Ct. 2151 (noting officers must be protected from liability for reasonable mistakes because they must make split-second judgments in uncertain circumstances). Officer Peace did not engage in the kind of egregious behavior we require before stripping an officer of his qualified immunity.

Whether the officers had reasonable suspicion under the Fourth Amendment is a close call. We expect police officers routinely to make close calls during traffic stops. When they guess wrong, we protect their reasonable decisions with qualified immunity. Estep did not point to clearly established law that would make Officer Quillen’s search unjustifiable. Thus, the district court properly granted summary judgment in favor of Officers Peace, Quillen, and Conley.6

III. CONCLUSION

It is clear to me that, even on the undisputed facts and Estep’s version of the disputed facts, the police officers in this case reasonably suspected that Estep might have a weapon in his vehicle. It is also clear to me that the police officers in this case did not act with the kind of careless indifference to civil rights that this circuit requires before stripping them of qualified immunity. I therefore dissent from the portion of the judgment reversing the district court’s summary judgment in favor of Officers Peace and Quillen. Alternatively, I would reverse and remand- for resolution of the disputed facts in order to determine whether there was a Fourth Amendment violation before addressing the issue of qualified immunity.

I am dismayed by the probability that Estep has received a free pass in this case because his pick-up truck sports an NRA sticker.

. Without deciding the issue, the majority finds “disturbing First and Fourth Amendment implications” in the officer’s reliance on, inter alia, an NRA sticker as a basis for his decision to search the vehicle. The question that the officer was faced with was whether Estep presented a danger because he possessed a weapon and, with respect, throwing an NRA sticker into the calculus (along with other factors) does not seem to me to affront the First Amendment.

. The majority cites United States v. Hunt, 253 F.3d 227 (5th Cir.2001), for the proposition that a person’s decision to exit his vehicle does not create reasonable suspicion. In Hunt, we held that the mere fact that a person exits his vehicle is not alone enough to constitute reasonable suspicion. See id. at 232-34. In this case, Officer Peace articulated other suspicious behavior aside from the fact that Estep exited his truck.

. The majority attempts to distinguish these cases by saying that each involved “a much greater degree of suspicious behavior” than in the present case. The cited cases provide a level of suspicious activity analogous to Estep’s behavior here. Particularly on point is Baker, where we found reasonable suspicion based solely on an officer’s assessment of the suspect’s suspicious manner and evidence of gun ownership. See 47 F.3d at 694-95.

. I certainly do not suggest that any time a person’s vehicle contains camouflage clothing, hunting gear, and an NRA sticker, a police officer may search the vehicle. Every traffic stop is different. Rather, I would uphold the search in this particular case because the officers are able to articulate a reasonable basis for their suspicion that Estep's truck contained a weapon.

. Even if an officer violates the Fourth Amendment, he may still be entitled to qualified immunity. See Bigford v. Taylor, 896 F.2d 972, 974-75 (5th Cir.1990).

. Because I believe that the search was lawful and that the officers deserve qualified immunity, I do not consider the issue of whether Officers Peace and Conley retain qualified immunity because they did not actively participate in the search.