Facts
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On the evening of June 13, 2020, Bilal Hankins was socializing with friends and neighbors at his family’s home in Uptown New Orleans, where he helped his mother care for his grandmother. Hankins had invited over his friend who was visiting from college. With them were Hankins’ neighbor and her twelve-year-old nephew. At some point, they realized that the neighbor’s chihuahua had escaped. At approximately 11:30 PM, the three youths went to look for the dog, with the college student driving the BMW that his mother gave him for his high school graduation. The twelve-year-old sat in the front passenger seat and Hankins sat in the back. The residential street had many potholes, and they drove slowly while looking for the chihuahua.
They drove up to Officer Wheeler, who was on a private security detail for the Hurstville Security and Neighborhood Improvement District, in his marked, Orleans Levee District Police Department car and asked for help finding the lost dog. Officer Wheeler testified that he had observed three people hanging out of the car’s windows, which was directly contradicted by Hankins’ testimony that no one was leaning out of the car’s windows. The parties agree that Hankins engaged Officer Wheeler first to ask if he had seen a lost dog. Officer Wheeler responded that he had not seen a lost dog, and the parties agree that Hankins replied that they were looking for one and asked for help finding it. Hankins testified that he then gave Officer Wheeler his address, pointed in the direction of his house two blocks away, and described the dog as a small, white chihuahua with brown spots. Officer Wheeler disputes that Hankins provided his address and testified that Hankins instead said, “if you see it, call us.”
The car that Hankins was in continued to drive on slowly. Officer Wheeler testified that he ran the car’s plates. He found that it was not reported stolen. It was registered to a woman at an address in a different neighborhood of the city, New Orleans East. He then radioed Officer Ramon Pierre, an off-duty officer for the Housing Authority of New Orleans Police Department who was working the same private security patrol in his unmarked, personal car. Officer Wheeler testified that he relayed what he saw, the exchange about the lost dog, and that the car was registered to an address in New Orleans East. Officer Wheeler testified that they decided to conduct a stop after Officer Pierre said something’s not right. Officer Wheeler did not follow the car. Officer Pierre then came across the car and started driving at a distance behind it.
Officer Wheeler came upon the car again and testified that both he and Officer Pierre then flashed their lights and the car briefly continued to drive slowly before stopping when Officer Wheeler activated a siren tone. Hankins, though, testified that he was unsure whether any lights or sirens were activated. Hankins testified that Officer Wheeler announced over an intercom, “driver, get the f*** out the car,” and Officer Pierre emerged from an unmarked car with his gun drawn, raised above his shoulders, and pointed directly through the car. Hankins testified that he then showed his hands because his mom taught him at a young age to comply with police officers and especially given the fact that he is a young, African American male. Officer Wheeler testified that he did not shout profanities and only pointed a flashlight. Officer Wheeler testified that, though unable to see Officer Pierre’s right side, Officer Pierre also did not have his gun drawn because Officer Wheeler did not see him extend his arm or hear him draw his gun.
There was an exchange about where the car’s occupants lived, the officers checked the driver’s ID, and the group was allowed to leave, though there is some dispute about what Officer Wheeler said when doing so. Officer Wheeler testified that he apologized, said that “it just didn’t add up,” explained there had been car burglaries with people leaning out pulling on car door handles, and told the group to have a great day. Hankins testified that, as the group was leaving, Officer Wheeler instead said you know, three young men, in a nice car, in this neighborhood, but mentioned no other reasons for stopping the youths.
Hankins sued under 1983, asserting he had a right not to be seized. The District Court granted summary judgement to the officers. The 5th reversed.
Analysis
A. Constitutional violation
Police officers may stop and briefly detain an individual for investigative purposes if they have reasonable suspicion that criminal activity is afoot. See Goodson. The officer must point to specific and articulable facts that lead him to reasonably suspect that a particular person is committing, or is about to commit, a crime. Defendants concede the stop was a seizure. They do not argue that there was any traffic violation or other infraction to separately justify the stop. The only question, then, is whether there was reasonable suspicion of criminal activity. We hold that material fact disputes preclude answering this question at summary judgment.
The district court repeated the assertion made by defendants in their summary judgment motions that there was a history of vehicle break-ins in the neighborhood. Even in cases where—unlike this one—there is a description of recent criminal activity in a specific location, we have required a particular connection between the crime suspected in the area and the individual stopped. Although the officers testified that the occupants were leaning out of the windows, the plaintiffs denied that. Thus, this is a disputed fact.
We are left with: A college-aged male in a car registered to a woman’s name in a different neighborhood of the same city, driving slowly on a residential street at night after approaching an officer to ask for assistance finding a lost chihuahua. Importantly, they were able to check before the stop to confirm that the car was not reported as stolen.
We have explained that an out-of-state driver’s license and license plates may not, when considered alongside other factors, suffice to create reasonable suspicion of criminal activity. See Davis. So too with use of another’s vehicle, as people living in the same household drive one another’s cars, whether that of a spouse or a parent. Where officers cannot articulate a connection between the registration information of a car not reported as stolen and the suspected criminal activity of attempting to burglarize parked cars, we conclude that this factor counts for little in our analysis of the totality of the circumstances.
Defendants also point to no caselaw in which driving slowly, let alone driving slowly on a residential street, was a factor supporting reasonable suspicion. The officers provide no explanation for why driving slowly on a residential street would support a particularized suspicion that the car’s occupants were attempting to burglarize cars. And that they continued to drive slowly in full view of the police officer they asked for assistance is inconsistent with the inference that their slow driving was part of criminal activity.
We turn to the final factor offered by the officers and relied on by the district court—that the stop occurred at approximately 11:30 PM—and ask whether, in combination with those factors, they in the aggregate rise to the level of reasonable suspicion. Defendants have never offered any information about when car burglaries in the area occurred, let alone that they occurred at night, but the lateness of the hour may still go to reasonable suspicion if it is in combination with other factors. We do not need to hypothesize about what might explain why Hankins was out at 11:30 PM because Officer Wheeler testified that, minutes before the challenged stop, Hankins approached him for help finding a chihuahua that had just gotten out. Thus, this does not provide reasonable suspicion in this case.
Finally, we examine a factor not considered by the district court in its reasonable suspicion analysis: Hankins’ testimony that, at the end of the stop, Officer Wheeler said, “you know, three young men, in a nice car, in this neighborhood.” If a factfinder was to credit Hankins’ testimony over Officer Wheeler’s on this point, a factfinder would be faced with the officer’s own, contemporaneous explanation for why the stop occurred directly contradicting the explanation that the officers now offer that the stop was premised on a particularized suspicion that the occupants of the car were attempting to burglarize cars. This fact dispute goes directly to the key question of whether there was more than an inchoate and unparticularized suspicion or hunch for the stop and thus, when taken together with the other factors discussed, precludes summary judgment.
B. Clearly established
We agree with Hankins that his reliance on Hill satisfied his burden to point to clearly established law at summary judgment. In Hill, we held that officers unconstitutionally seized a man without reasonable suspicion when the only factors that the officers could point to were that he was without a driver’s license, at 11:00 p.m. on a Saturday night, in an apartment complex that has a drug reputation and is in a high crime county, the car was backed into the parking space which the officers testified is how people sometimes hide their tags, and the exiting passenger left quickly when police arrived.
https://www.ca5.uscourts.gov/opinions/pub/23/23-30711-CV0.pdf