IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-60333
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARCELLUS HUNT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
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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
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*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
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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).
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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.