Facts
On July 26, 2023, a magistrate judge in the Northern District of Texas issued a warrant for Tony Lee Johnson’s arrest. Johnson had failed a series of drug tests in violation of the terms of his supervised release; he was serving a 2006 sentence for drug and aiding-and-abetting offenses. The United States Marshals Service partnered with the Lubbock Police Department (LPD) to carry out Johnson’s arrest. During a pre-arrest investigation, Officer Todd Pringle—an LPD detective who also served as a task force officer with the U.S. Marshals Service’s North Texas Fugitive Task Force—reviewed Johnson’s criminal history and learned that Johnson was a Bloods gang member and the primary suspect in an ongoing LPD homicide investigation.
Officer Pringle also discovered that Johnson lived with his girlfriend, Beatrice Simmons. LPD detectives informed Officer Pringle that Simmons had expressed to officers, at one point in time, that she was a felon and either on probation or on parole. But Officer Pringle was unable to confirm that she had a felony conviction, and he did not ask the detectives for more details. LPD detectives advised Officer Pringle that they wanted to speak with Simmons about the homicide, though they did not suspect Simmons was involved.
Two days later, officers made their move. After conducting surveillance and positively identifying Johnson at his known address, at about two o’clock in the afternoon, officers blocked Johnson’s Chevrolet Malibu as he backed out of his driveway into the public roadway. Simmons was riding in the passenger seat at the time. Johnson began exiting the vehicle before officers ordered him to do so, and he closed the door after exiting. Officers then arrested Johnson and removed Simmons from the vehicle, detaining her nearby in the driveway. Simmons was neither arrested nor placed in handcuffs. Johnson instructed Simmons to pull the vehicle back in the yard and told Officer Pringle that he did not consent to any searches.
Officer Pringle responded: “It don’t matter; you’re arrested.” Johnson replied: “It’s not my car; it’s Simmons’s car.” Johnson had now succeeded in arousing Officer Pringle’s suspicions. Believing that Johnson was hiding something in the vehicle, Officer Pringle conducted a cursory sweep of the driver’s seat and middle console because those were the areas in the immediate reach of the driver. Officer Pringle discovered a red bandana tied to the steering wheel —a known hallmark of Bloods gang membership. He also found a handgun loaded with a full magazine in the center console. The district court found that the search lasted approximately twenty-four seconds. In his report, Officer Pringle identified this search as a search incident to arrest. After Officer Pringle discovered the firearm, he handcuffed Simmons. Simmons told Officer Pringle that she did not know about the handgun. She also confirmed that she was on parole for a 2003 drug offense.
Johnson was charged with one count of possessing a firearm as a convicted felon under 18 U.S.C. §§ 922(g (1) and 924(a)(8). He filed a motion to suppress the loaded handgun, claiming that Officer Pringle violated his Fourth Amendment rights. After holding a hearing on the motion, the district court denied it. The court held that Officer Pringle’s warrantless search of Johnson’s vehicle was constitutional under the protective-sweep exception articulated in SCOTUS Michigan v. Long, 463 U.S. 1032 (1983), because Simmons posed a threat to officer safety. The court determined first that Johnson’s behavior and criminal history gave rise to a reasonable suspicion that a weapon was hidden in the vehicle. But Johnson was no longer a threat to the officers at the time of the search because he was arrested and would not be permitted to return to his vehicle. Simmons, on the other hand, was only temporarily detained, would be permitted to return to the vehicle, and would have been able to access any weapon concealed within. Given Simmons’s romantic relationship with Johnson, her criminal history, as well as, according to Officer Pringle, the likelihood that she would react emotionally and unpredictably to Johnson’s arrest, the district court deemed Simmons’s presence at the scene a dangerous situation that authorized the protected sweep of the vehicle.
After the district court ruled on his motion to suppress, Johnson entered a conditional guilty plea, reserving the right to appeal the denial. The district court accepted the plea and sentenced Johnson to thirty-three months of imprisonment. Johnson timely appealed. The only issue before us is whether Officer Pringle’s limited search of Johnson’s vehicle was supported by reasonable suspicion. The 5th reversed.
Analysis
In Michigan v. Long, the Supreme Court extended the protective frisk of a person authorized in Terry v. Ohio, 392 U.S. 1 (1968), to vehicles. It ultimately held that police may search the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, if the officers reasonably believe that the suspect is dangerous and . . . may gain immediate control of weapons.
Individualized suspicion is required for an automobile search. See Hunt. Police may not conduct a Long search if the suspect has been arrested. See Rodriguez. After all, once a suspect is in police custody, the risk that he may gain immediate control of weapons in his vehicle has subsided. But when a suspect is only temporarily detained by police, that risk persists. He may break away from police control or be permitted to reenter his automobile and access any weapons that lie within. Accordingly, because Johnson was under arrest at the time of the search, he could not have gained immediate control of any weapons in the vehicle. But because Simmons was not under arrest, the search of Johnson’s vehicle was justifiable if Officer Pringle reasonably believed that Simmons was potentially dangerous and had access to a weapon.
For Officer Pringle’s protective sweep of Johnson’s vehicle to be constitutional, Officer Pringle must have reasonably believed that Simmons was potentially dangerous and could have immediately accessed a weapon. Reasonable suspicion is a low threshold. It requires only a minimal level of objective justification. But more than a “mere hunch” is required.
Johnson does not challenge whether it was objectively reasonable for Officer Pringle to believe that a weapon was hidden in the vehicle. Nor could he. Like the district court, we have no trouble arriving at this conclusion, based on Johnson’s criminal history, gang affiliation, suspected involvement in a murder, and his suspicious behavior after being stopped by officers. Johnson began exiting the vehicle before officers directed him to, closed the door after exiting the vehicle, instructed Simmons to pull the vehicle back in the yard, told Officer Pringle he did not consent to any searches, and claimed Simmons owned the vehicle. On these facts, it was reasonable for Officer Pringle to believe the vehicle harbored a weapon. And because Simmons was not arrested, she could have gained immediate control of any such weapon and used it against the officers.
The parties’ chief disagreement is whether it was objectively reasonable for Officer Pringle to believe that Simmons was potentially dangerous. The district court tethered its dangerousness finding to Simmons’s intimate relationship with Johnson, a convicted felon, and her previous admission of an unspecified felony. In the district court’s view, these facts, together with Simmons’s presence at the scene of her boyfriend’s arrest, indicated that she posed a significant threat to the officers and justified the Long search.
Without more, Simmons’s unspecified felony record, intimate association with a convicted felon, and her presence during Johnson’s arrest did not justify the protective sweep under Long. For an officer to reasonably believe that a suspect is potentially dangerous, the officer must point to some fact contemporaneous with or arising out of the police encounter that gives rise to that belief. Here, the government has identified no facts indicating that Simmons might have retrieved a weapon from the vehicle and attacked the officers. She did not, for example, disobey the officer’s instructions, display any hostility toward the officers, or motion toward the vehicle when Johnson encouraged her to return it to the driveway.
In Baker, we upheld a protective search of a vehicle where, during a stop, the couple appeared extremely nervous, gave inconsistent accounts of their trip, and the officer observed a box of .9-millimeter bullets on the front floorboard the vehicle. The officer also asked where the gun was, and the wife answered that she did not know. In United States v. Silva, we held that an officer had reasonable suspicion to detain the defendant where, in addition to being in the company of an individual upon whom the police were about to execute a felony arrest, the defendant fled the scene as officers approached him. Reasoning that companionship with an arrestee is not independently sufficient to provide reasonable suspicion, we clarified that the totality of the facts—the defendant’s presence with a suspected felon combined with his flight from the officers justified the seizure.
Nervousness, inconsistent answers to officers’ questions, fleeing the scene—facts like these are missing here. When asked whether Officer Pringle observed any actions by Simmons that were suspicious or that might indicate she was potentially dangerous, he said no. Officer Pringle witnessed nothing in the moment prior to his brief search of Johnson’s vehicle to indicate that Simmons herself threatened his or his fellow officers’ safety. We do not doubt that, after a seventeen-year career in law enforcement, Officer Pringle had good reason to believe Simmons was more likely than a passerby to interfere with her boyfriend’s arrest. But nothing in the moment suggested that Simmons might do so.
The search here occurred in broad daylight, and Officer Pringle was accompanied by other officers from his task force. This is a unique case. With an arrest warrant in hand, the officers staked out Johnson’s residence and executed the planned arrest once Johnson and his girlfriend entered his car and backed out of their driveway. The Long searches this court typically reviews begin as investigatory stops. In any event, our analysis is the same. We have already acknowledged—and Johnson has admitted—that Simmons’s criminal record and close relationship with Johnson were properly considered by Officer Pringle in determining whether Simmons might have been dangerous. And the fact that Simmons was at the scene, a witness to Johnson’s arrest, is an important situational reality. But without some fact contemporaneous to or arising out of Johnson’s arrest that suggests Simmons was potentially dangerous, the totality of these circumstances could not have caused Officer Pringle to reasonably fear for his safety. Officer Pringle may have had a hunch that Simmons would act rashly after seeing her lover handcuffed, but this was not supported by individualized, reasonable suspicion. Thus, the protective sweep of Johnson’s vehicle was unconstitutional.
https://www.ca5.uscourts.gov/opinions/pub/24/24-11115-CR0.pdf