REVISED NOVEMBER 13, 2002
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10967
JEFFREY L. ESTEP,
Plaintiff - Appellant,
VERSUS
DALLAS COUNTY, TEXAS, ET. AL.,
Defendants
WILLIAM F. PEACE, CONLEY, OFFICER; J.C. QUILLEN,
Defendants - Appellees
Appeal from the United States District Court For the Northern District of Texas, Dallas Division
October 18, 2002
Before KING, Chief Judge, PARKER, Circuit Judge, and Ellison*,
* District Judge of the Southern District of Texas, sitting by designation.
1 District Judge.
PER CURIAM:
For the second time, Jeffrey L. Estep (“Estep”) appeals from
the district court’s grant of summary judgment in favor of
defendants William Peace, Officer Conley and J.C. Quillen. As was
the case during the initial appeal, the issue before us is whether
the district court properly granted summary judgment to the
defendants on qualified immunity grounds. For the following
reasons, we REVERSE IN PART and AFFIRM IN PART.
I. PROCEDURAL HISTORY
This case has an unusual procedural history to say the least.
In 1995, Estep filed this Section 1983 action against the
defendants-appellees for violating his right to be free from an
unreasonable search of his vehicle under the Fourth Amendment to
the United States Constitution. Estep alleged that the defendants-
appellees, three City of Garland, Texas police officers, conducted
an unlawful search of his vehicle after a routine traffic stop on
March 29, 1993.1 In October 1997, the district court granted
1 During the course of the search, the police discovered a pistol. Estep was placed under arrest for wrongfully carrying a weapon. Prior to his trial in Dallas County, Estep moved to suppress the pistol because the search had been conducted in violation of the Constitution. On September 7, 1993, Judge Molly Francis conducted a suppression hearing. After hearing testimony, Judge Francis ruled that the search was unconstitutional and suppressed all evidence obtained subsequent to the arrest. The
2 summary judgment to Officer Peace, Officer Quillen, and Officer
Conley on qualified immunity grounds. Estep appealed to our court.
On August 28, 1998, a separate panel issued an unpublished,
per curiam opinion which remanded the case back to the district
court to reconsider the defendants’ summary judgment motion in the
light of competent summary judgment evidence submitted by Estep.
The panel informed the district court that in making its second
ruling it should address whether the search was lawful and whether
such lawfulness is actionable under Section 1983 when all factual
inferences are made in favor of Estep.
On remand, the district court granted summary judgment to
Officer Conley, but denied summary judgment in favor of Officer
Peace and Officer Quillen because the record was insufficient to
determine whether Peace and Quillen were entitled to qualified
immunity. Not satisfied with this ruling, however, the officers
submitted new summary judgment motions without any additional
evidence. Estep failed to respond to the officers’ new summary
judgment motions.
In June 2001, the district court changed its mind and granted
summary judgment in favor of Officer Peace and Officer Quillen.
Unfortunately, in making its ruling, the district court failed to
state of Texas thereafter dismissed its criminal case against Estep.
3 address the issues that the previous panel instructed it to
resolve. Specifically, the court failed to consider all the
competent summary judgment evidence and never determined whether
the search of Estep’s vehicle was lawful. In July 2001, Estep once
again appealed to our court to contest the grant of summary
judgment.
Estep’s current appeal is now properly before us. At this
point (seven years after the complaint was filed and nine years
after the incident occurred ), it is time to conclusively resolve
whether Officer Peace and Officer Quillen are entitled to summary
judgment. While it would have been preferable for the district
court to have initially determined the lawfulness of the search, it
did not. Therefore, we will undertake this task.
II. THE FACTS
Viewing the competent summary judgment evidence in the light
most favorable to Estep, the following occurred on March 29, 1993.
Estep was traveling in a 1988 Ford pick-up truck on Highway 66 near
Rowlett, Texas when he was pulled over by Officer Peace for going
47 mph in a 35 mph speed zone.2 After stopping his truck on the
2 During the course of pre-trial proceedings, Estep submitted a verified response to a magistrate judge’s interrogatory contesting that he had been speeding. However, the previous panel noted that Estep had abandoned that argument during his initial appeal. Thus, our analysis of this case proceeds on the determination that Officer Peace properly stopped Estep for a
4 side of the road, Estep exited his vehicle with driver’s license
and proof of insurance in hand to give to Officer Peace. As Estep
stood by his truck, Officer Peace approached and initiated the
first words. Officer Peace asked “Do you have a gun in the car?”
Estep hesitated a second and said “No. Why do you ask?” Estep then
asked Officer Peace why he had been stopped. Officer Peace did not
answer Estep’s question, but asked again “Do you have a gun in this
vehicle?” Estep said “No” but then told Officer Peace that he had
mace on his key chain. Estep then took his keys from the ignition,
showed Peace the mace, and asked Peace if he considered mace a
weapon. Peace said no, but again told Estep that he better tell
him if he had a gun in the vehicle. Estep then said he did not
have a gun and asked again why he had been stopped.
At that point, Officer Peace asked for Estep’s license and
insurance registration and told Estep to stay in the vehicle.
Officer Peace then called for backup.3 Subsequently, Officer
speeding violation. 3 In Peace’s affidvait, he states that he called for backup because he believed that Estep had a weapon and was worried that Estep would use the weapon. Peace stated that he feared he was in danger because (1) Estep’s vehicle contained an NRA sticker, camoflauge material, and hunting equipment inside it; (2) Estep had waved the mace at him; (3) Estep had not answered his questions; and (4) Estep claimed his constitutional rights were being violated. However, Estep denies that he had hunting equipment inside his car, claims that he merely showed Officer Peace the can of mace, and asserts that he did not inform Peace that his
5 Quillen and Conley arrived on the scene. Officer Peace told
Quillen that he felt there was a weapon in the vehicle. However,
Peace did not explain to Quillen why he felt there was a weapon in
the vehicle or why he felt the situation was dangerous. He just
told Quillen that Estep had denied having a pistol, but that
something about the situation made him nervous.
Thereafter, Officer Peace summoned Estep from his vehicle and
they proceeded to the back of Estep’s truck. Officer Peace
informed Estep that he had been stopped for speeding. While Estep
signed the citation, Quillen began to search the inside of Estep’s
vehicle even though Estep protested that the search violated his
constitutional rights. During the search, Quillen looked under the
back seat of the truck and found a case. He opened the case and
discovered the pistol.
Officer Peace subsequently placed Estep under arrest and took
Estep to the police car. While sitting in the police vehicle,
Peace admitted to Quillen (in Estep’s presence) that the NRA
sticker was what tipped him off to the weapon in the vehicle.
III. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291 because Estep
appeals from a final decision of the district court. We review the
constitutional rights were being violated until the search of his vehicle commenced.
6 district court's grant of summary judgment de novo, applying the
same substantive standard set forth in Fed.R.Civ.P. 56(c). See
Horton v. City of Houston, 179 F.3d 188, 191,(5th Cir. 1999), cert.
denied, 528 U.S. 1021 (1999).
IV. ANALYSIS
A. Fourth Amendment Violation
The Supreme Court reiterated last term in Saucier v. Katz, 533
U.S. 194, 201 (2001) that the threshold question to be answered
when ruling upon the qualified immunity issue is: “[t]aken in the
light most favorable to the party asserting the injury, do the
facts alleged show the officer’s conduct violated a constitutional
right.” Thus, as a threshold matter, we must decide whether the
alleged facts, viewed in the light most favorable to Estep, show
that Estep’s constitutional rights were violated.
The constitutional right at stake in this case is Estep’s
right to be free from an unreasonable search of his vehicle. The
constitutional principle applicable to this case is found in
Michigan v. Long, 463 U.S. 1032 (1983). In Long, the Supreme Court
held that a warrantless search of the passenger compartment of a
vehicle does not violate the Fourth Amendment if the search is
conducted to protect the officer’s safety. Specifically, the Long
court stated that the:
search of the passenger compartment of an
7 automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts, which taken together with rationale inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of the weapon. Id. at 1049.
Thus, for purposes of determining whether the Fourth Amendment
was violated, the question is: was it reasonable for Officer Peace
to think Estep was dangerous and might gain immediate control of a
weapon based upon (1) Estep’s vehicle containing an NRA sticker;
(2) Estep’s vehicle containing camoflauge gear; (3) Estep showing
Peace that he had a key chain which contained mace; (4) Estep
getting out of the car to hand Peace his identification; and (5)
Estep’s manner in answering Peace’s questions?
The answer to that question is no for several reasons. The
presence of the NRA sticker in the vehicle should not have raised
the inference that Estep was dangerous and that he might gain
immediate control of a weapon. Regardless of whether there is some
correlation between the display of an NRA sticker and gun
possession, placing an NRA sticker in one’s vehicle is certainly
legal and constitutes expression which is protected by the First
Amendment. A police officer’s inference that danger is afoot
because a citizen displays an NRA sticker in his vehicle presents
disturbing First and Fourth Amendment implications. See United
8 States v. Ramon, 86 F. Supp. 2d 665, 677 (W.D. Tex. 2000) (holding
that in the absence of other sufficiently strong factors supporting
a stop, reliance upon the vehicular display of religious decals and
symbols as indicative of criminal activity likely violates the
First and Fourth Amendments). Although we do not definitively
decide today whether the presence of an NRA sticker could ever
contribute to a “reasonable suspicion” of danger calculus, we do
find that Peace’s utilization of the NRA sticker in his “reasonable
suspicion” of danger calculus was unwarranted when viewing the
facts in the light most favorable to Estep.
The only remaining factors alleged to indicate that Estep
posed a danger to Officer Peace is that Estep had a camoflauge
jacket in his vehicle, Estep stepped out of his vehicle to greet
Peace, Estep possessed a key chain with mace, and Estep was not
cooperative in answering Peace’s questions. We address each
alleged factor which remains in turn.
First, as far as we know, there is no law which prevents a
citizen from carrying a camoflauge jacket, carrying a key chain
with mace, or displaying an NRA sticker in his vehicle. Indeed, if
the presence of an NRA sticker and camoflauge gear in a vehicle
could be used by an officer to conclude he was in danger, half the
pickups in the state of Texas would be subject to a vehicle search.
Second, Estep’s decision to get out of his vehicle to greet Peace
9 and hand Peace his identification does not create the type of
individualized suspicion needed for an officer to conclude he is in
danger. See United States v. Hunt, 253 F.3d 227, 232 (5th Cir.
2001) (“[a]n 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”).
Third, we cannot accept the notion that mere possession of a key
chain with mace indicated that Estep posed a danger to Peace.4
Finally, Estep’s alleged uncooperativeness could not justify the
vehicle search because, viewed in the light most favorable to
Estep, it appears as though Peace, not Estep, was the individual
being uncooperative in the situation.5 Under Estep’s version of
the events, he cooperated until the search of his vehicle
commenced.
We realize that officers are called upon to make split-second
judgments in oftentimes tense situations. Moreover, we recognize
that the officer in the field is in a much better position than a
judge in his office to determine whether a situation truly places
the officer in danger. See Graham v. Connor, 490 U.S. 386, 397
4 Although Peace avers that Estep “waved” the mace at him, Esteps avers that he only “showed” Peace that he had a key chain with mace. 5 Peace would not tell Estep why he was being stopped.
10 (1989)(noting that because police officers are often forced to make
split-second judgments in tense situations the reasonableness of
the officer’s conduct should be judged from an on-scene
perspective). However, the contention that a search must be done to
protect a police officer must have some reasonable basis in fact.
We cannot rubber-stamp a search of a vehicle based on an officer’s
mere inchoate and unparticularized “hunch” that a citizen poses an
immediate threat of danger.6 See Maryland v. Buie, 494 U.S. 325,
332, 334 n.2 (1990).
Here, viewing the facts in the light most favorable to Estep,
there were no specific articulable facts from which Officer Peace
could have lawfully concluded that he was in danger. The
contention that a citizen poses an immediate danger because he
possesses a key chain containing mace, camoflauge gear, an NRA
sticker, and does not answer questions in exactly the manner the
6 In the past, we have upheld warrantless searches of people and vehicles based upon the contention that the officer feared for his safety. See United States v. Maestas, 941 F.2d 273, 275 & 277 (5th Cir. 1991); United States v. Colin, 928 F.2d 676, 677 (5th Cir. 1991); United States v. Coleman, 969 F.2d 126, 131 (5th Cir. 1992); United States v. Baker, 47 F.3d 691, 693-95 (5th Cir. 1995); United States v. Michelletti, 13 F.3d 838, 842 (5th Cir. 1994). However, those cases involved a much greater degree of suspicious behavior than the instant case. In the cited cases, the individuals in question aroused suspicion because they were either intoxicated, already suspects of violent crimes, had made threatening statements, or had in plain view some evidence of a concealed weapon.
11 officer desires is not suspicious enough behavior to justify a Long
“frisk” of a vehicle. Thus, the search violated the Fourth
Amendment.7
B. Was the constitutional right clearly established?
Our determination that the Fourth Amendment has been violated
does not end our analysis, however. In some circumstances, an
officer will be entitled to summary judgment on qualified immunity
grounds even though the officer violated the citizen’s Fourth
Amendment rights. See Bigford v. Taylor, 896 F.2d 972, 975 (5th
Cir. 1990) (“the analysis of whether a warrantless search was
reasonable is not the equivalent of whether an officer
participating in an unreasonable search is entitled to qualified
immunity”). Consequently, the next step in our analysis is to ask
whether the contours of the constitutional right in question were
sufficiently clear that a reasonable officer would understand that
what he is doing violates that right. See Saucier, 533 U.S. at 202
(“[t]he relevant, dispositive inquiry in determining whether a
right is clearly established is whether it would be clear to a
7 We also note that Officer Peace’s contention that he was truly in fear for his safety is belied by the fact that he never searched Estep’s person for weapons. Moreover, assuming arguendo that Peace and Quillen did truly fear for their safety, the extension of the search to include closed containers located beneath the seat exceeded what would have been necessary to protect them from danger upon Estep’s reentry into the vehicle.
12 reasonable officer that his conduct was unlawful in the situation
he confronted”); 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 a
question about), the conclusion for every like-situated, reasonable
government agent that what the defendant is doing violates federal
law in the circumstances”)(quoting from Lassiter v. Alabama A & M
University, 28 F.3d 1146, 1150 (11th Cir. 1994).
Although we have stated that the constitutional right at stake
is Estep’s right to be free from a vehicle search unless an officer
has a reasonable belief that he is in danger, we must further
evaluate whether the contours of that right were “clearly
established” in a more particularized way. Saucier, 533 U.S. at
202. As applied to this case, we must consider whether it is
clearly established law that a reasonable officer could not
conclude that he was in danger when faced with a citizen who exited
the car prior to the approach of the officer, continuously asked
why he had been stopped, showed the officer a key chain with mace,
possessed camoflauge gear, and possessed an NRA sticker?
There is no Fifth Circuit case which directly addresses
whether a reasonable officer could conclude, based on these
specific facts, that a citizen posed a danger and could gain
13 immediate control of a weapon.8 However, there does not have to be
a case directly on point for the law to be “clearly established.”
See Petta v. Rivera, 143 F.3d 895, 899 (5th Cir. 1998)(noting that
it is not necessary that prior cases have held the particular
action in question unlawful so long as the unlawfulness of the
action is apparent under pre-existing law). Our cases make clear
that a Long “frisk” of a vehicle is only constitutional if there
are specific, articulable facts from which a reasonable police
officer could believe he was in danger. In our view, the
constitutional violation in this case is clear-cut and obvious. No
reasonable police officer could have really believed that a search
was constitutional under the circumstances presented.
C. Entitlement to Qualified Immunity on Other Grounds
1. Officer Peace
The defendants argue that even if (1) the search was unlawful
and (2) no reasonable police officer could have believed a search
to be lawful, Officer Peace is entitled to qualified immunity
because he was not personally involved in the search. The district
court accepted this argument. We reject it.
8 Although no Fifth Circuit case addresses these exact facts, we reiterate that our Hunt decision clearly states that “[a]n 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.” Hunt, 253 F.3d at 232.
14 The district court’s determination that Officer Peace was not
involved in the search relied upon Creamer v. Porter, 754 F.2d 1311
(5th Cir. 1985)(affirming dismissal from suit of a deputy who was
only a bystander to a search and seizure) and Watson v. Interstate
Fire and Casualty Co., 611 F.2d 120 (5th Cir. 1980)(holding that a
sheriff without any personal involvement was properly dismissed
from a § 1983 suit arising from an arrest and incarceration).
However, those cases are inapposite. At the time of the incident,
Officer Peace had 25 years of police experience. More importantly,
he was the officer on the scene who had the information from which
to determine whether Estep truly posed a danger. As such, he was
responsible for deciding whether the search could be conducted
lawfully or not. While the record does not show that Officer Peace
directly ordered Quillen to search the vehicle, it is clear that
Peace knew the search was transpiring (indeed, assuming arguendo
that Peace did not know Quillen was going to search the vehicle
prior to Quillen commencing the search, Estep informed him of that
fact the moment the search began). As we see it, Peace decided to
allow the search to go forward. Therefore, he is not entitled to
summary judgment on qualified immunity grounds.
2. Officer Quillen
With respect to Officer Quillen, the defendants contend that
even if (1) the search was unlawful and (2) no reasonable police
15 officer could have believed a search to be lawful, Officer Quillen
is entitled to qualified immunity because he reasonably relied upon
Officer Peace’s conclusion that the officers were in danger. We
also reject this argument.
An officer can conduct a Long “frisk” of a vehicle based on
information possessed by another officer. However, it is not
reasonable for an officer to conclude that it is lawful to make
such a search when his fellow officer does not provide him with any
specific articulable facts from which a reasonable officer could
think he was in danger. In the instant case, Peace told Quillen
that he thought they were in danger, but he did not tell Quillen of
any specific facts which would support that opinion. From the
record evidence, the most we can say is that Peace told Quillen
that (1) Estep had denied having a pistol; and (2) Estep had some
mace. Based upon such flimsy evidence, it was unreasonable for
Quillen to also conclude that they were in danger and that a search
could be lawfully conducted. Thus, Quillen is not entitled to
qualified immunity.
3. Officer Conley
The evidence indicates that Officer Conley truly was a
bystander in this matter. Thus, we affirm the grant of summary
judgment to Officer Conley.
V. CONCLUSION
16 Viewing the evidence in the light most favorable to Estep,
this is not a case where a reasonable officer could conclude he was
in danger. It is a case where an officer targeted a citizen and
allowed a vehicle search because the citizen had an NRA sticker in
his vehicle. For the aforementioned reasons, we reverse the grants
of summary judgment to Officer Peace and Officer Quillen on
qualified immunity grounds. We affirm the grant of summary
judgment to Officer Conley. This case is remanded back to the
district court for a trial.9
9 The motion filed by Estep requesting the appointment of counsel is hereby denied for lack of exceptional circumstances. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
17 KING, Chief Judge, concurring in part and dissenting in part:
In my view, the police officers in this case reasonably
suspected that Jeffrey Estep'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
18 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 truck. 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 Estep was arrested for unlawfully carrying a weapon.
19 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 plaintiff's constitutional rights were violated.
Saucier v. Katz, 533 U.S. 194, 201 (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.
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 (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
20 is dangerous and the suspect may gain immediate control of
weapons." Id. (quoting Terry v. Ohio, 392 U.S. 1, 21 (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.
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, 532 (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.10 See, e.g., United States v. Baker, 47 F.3d 691,
10 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. 21 694-95 (5th Cir. 1995) (finding that an officer's viewing .9
millimeter bullets on the floor of a suspect'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 a traffic stop supports an
officer's reasonable suspicion).11 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
11 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. 22 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; see also Adams v. Williams, 407 U.S. 143,
146 (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.12 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 a suspect's quick exit from his vehicle, his
nervousness, and money found during a protective pat-down);
12 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. 23 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 a 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 police officer justifiably
suspicious. See United States v. Jacquinot, 258 F.3d 423, 427-28
(5th Cir. 2001), cert. denied, 122 S. Ct. 925-26 (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.13 Thus, I would affirm the
13 I certainly do not suggest that any time a person’s vehicle contains camouflage clothing, hunt ing 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. 24 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,
25 Estep 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 if the police officers’ suspicion that Estep
carried a weapon was not reasonable under the Fourth Amendment, I
26 do not believe the officers acted so outrageously that they are
undeserving of qualified immunity.14
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
(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
14 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). 27 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.
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 (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. 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. The law at
28 the time of the alleged violation indicated that reasonable
suspicion was a forgiving, totality-of-the-circumstances
standard. See, e.g., Graham v. Connor, 490 U.S. 386, 396-97
(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 behavior 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 (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
29 egregious behavior we require before stripping an officer of his
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.15
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
15 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. 30 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.