Protective sweep of vehicle via Long


Erik Rodriguez was a passenger in a car driven by his friend. Police noticed the car straddling two lanes of traffic, so they began to follow it. They observed that there were two men in the car and that both were wearing hooded jackets.

The passengers appeared intently interested in the police car and were shifting in their seats. The officers found that activity suspicious. Having already observed a traffic violation, they decided to execute a stop.

The police activated their lights, but at first the vehicle did not pull over. Instead, it passed two driveways before pulling into a third—an apartment complex with a reputation for gang activity. Once in the complex, the vehicle continued to roll forward before stopping after a blip from the officers’ siren.

As the officers exited their cruiser and approached the vehicle, the driver initially opened his door, then remained in the car and rolled down his windows, as instructed. The officers noticed an infant in the back seat.

The officers removed both Rodriguez and the driver. The driver was still wearing his jacket, but Rodriguez was no longer wearing his—even though the temperature was in the forties. Neither man had a driver’s license, and the driver admitted that one of his IDs was fake.

The officers thus detained both men and placed them, in handcuffs, in the back of their patrol car, even though Rodriguez was not suspected of any crime. As one officer ran the driver’s IDs, the other searched the vehicle’s passenger compartment.

He discovered a jacket on the backseat floorboard— its color matched Rodriguez’s pants, but the officer testified that he did not immediately “put two and two together” and consider that the jacket belonged to Rodriguez. The officer found a revolver in the jacket’s pocket. Rodriguez and the driver gave the officers permission to use their phones to call family members to pick up the car and baby.

But in addition to making the calls, an officer also, without permission, went through the
phones. As he did, he observed “MS-13 material” that appeared to implicate Rodriguez. Both Rodriguez and the driver were arrested for state crimes— the driver for tampering with a government document and Rodriguez for unlawfully carrying a weapon in connection with gang activity.

Rodriguez turned out to be an illegal alien, meaning that, regardless of any connection to MS-13 or other gangs, his possession of the revolver was a federal crime. He was thus charged with violating 18 U.S.C. § 922(g)(5)(A).

The district court ordered the suppression of statements made by Rodriguez, reasoning that they were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966).* It also suppressed evidence gained from the search of Rodriguez’s phone, which the court concluded violated U.S. Supreme Court case Riley v. California, 573 U.S. 373 (2014).

But it did not suppress the gun—the court ruled that the stop of the vehicle and detention of the passengers had been reasonable, and Rodriguez neither had nor claimed any ownership or possessory interest or reasonable expectation of privacy in the vehicle because he had been merely a passenger. Rodriguez thus had no standing to challenge the search.

Rodriguez pleaded guilty and was sentenced to time served plus three years’ supervised release. Rodriguez appeals the conviction, maintaining that the district court erred by denying his motion to suppress. The 5th affirmed but for a different reason than the district court judge.


A. Standing

First, Rodriguez maintains that he had a reasonable expectation of privacy in the jacket. Typically, a passenger in a car, as distinct from the driver, lacks standing to complain of its search. United States v. Roberson, 6 F.3d 1088 (5th Cir. 1993).

But this circuit recognized in Buchner an exception for a passenger’s personal luggage. The owner of a suitcase located in another’s car may have a legitimate expectation of privacy with respect to the contents of his suitcase.

Rodriguez maintains that the same logic extends to the pockets of the jacket he had removed and left in the vehicle. But jackets are not exactly like suitcases, and neither party, nor this court, has located any precedent squarely addressing Rodriguez’s theory.

Second, Rodriguez maintains that he has standing to challenge the search because it qualifies as a trespass. Rodriguez relies primarily on Richmond, which itself interprets United States v. Jones, 565 U.S. 400 (2012).

Those cases hold that, in addition to the more familiar reasonable expectation of privacy test described above, a defendant can show Fourth Amendment standing if the government has committed a common law trespass as part of an investigation. But the recent vintage of those cases leaves us with few authorities interpreting them, and we do not have the benefit of the district court’s assessment.

All of that is to say that the question of Rodriguez’s standing is difficult. Admittedly, judges may not invoke judicial modesty to avoid difficult questions. But neither is it the role of the federal courts to answer legal questions unless specific cases need answers.

In keeping with that principle, we reserve for another day the theories of Fourth Amendment standing presented by Rodriguez; we turn instead to a question to which our precedents provide a more certain answer.

B. Protective sweep of vehicle

The protective sweep exception was first articulated in the vehicular context by the U.S. Supreme Court in Michigan v. Long, 463 U.S. 1032 (1983). The court allowed police to conduct an area search of the passenger compartment of a vehicle to uncover weapons, as long as they possess an articulable and objectively reasonable belief that the suspect is potentially dangerous.

Such searches are permissible even if a suspect has been removed from the vehicle—as long as he is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside. We said in Wallen that this applies even if the suspect has been handcuffed.

The protective sweep exception survived SCOTUS Gant v. Arizona, 556 U.S. 332 (2009), which addressed the related subject of searches of a vehicle incident to an arrest. Gant took a narrow view of the proper scope of such searches, but it preserved Long as a separate exception applying under additional circumstances when safety or evidentiary concerns demand.

Long searches are premised on the possibility that a suspect might return to a vehicle but Gant searches occur when a suspect is being placed under arrest and is therefore unlikely to return to the vehicle. Long’s roots lie not in the search incident to arrest exception but, instead, in the frame work established by Terry v. Ohio, 392 U.S. 1 (1968).

The officers did not arrest Rodriguez until they had discovered the gun. To be lawful, a search of his property would thus have to have been a Long search rather than a Gant search. For a Long search to be valid, an officer must have a reasonable suspicion that the person poses a danger and may gain immediate control of weapons. That suspicion must be based on specific and articulable facts.

We said in U.S. v. Colin, 928 F.2d 676 (5th Cir. 1991), that a person stooping down and moving from side to side in the front seat of an automobile may form the basis of a reasonable belief that he is armed and dangerous.

The officers observed both Rodriguez and the driver moving within their seats apparently in response to the presence of police. Rodriguez was shifting as if he was removing a jacket. That observation alone was in the direction of creating a reasonable suspicion that Rodriguez was concealing a weapon, thereby justifying a Long search before Rodriguez was released.

Additionally, the vehicle passed other driveways and stopped in an apartment complex associated with gang activity. Once within that complex, it continued to roll forward rather than stop immediately. The driver initially opened his door as the officers approached. All of those factors could have contributed to a reasonable belief on the part of the officers that they were in danger and could take steps to protect themselves.

Rodriguez could easily have returned to the car after the driver was arrested. He had only been detained, not arrested. Though police were later forced to impound the vehicle, at the time of the search they still hoped to release it to the driver’s wife. Until the gun was found, there was no reason to doubt that Rodriguez (though he did not have a driver’s license) would soon be allowed to return to the car as a passenger and drive away.

Rodriguez responds that by that point, the encounter between him and law enforcement would be over, obviating any concern for officer safety. But we said in Flowers that an encounter between civilians and law enforcement begins before, and thus can continue after, a suspect has been subjected to a search or seizure.

Long and its progeny are premised on the understanding that a police officer may still be in danger after a suspect is released and allowed to return to his car. Because the search was legal under Long, the question of standing is immaterial.

* The case did not provide any details on the issue with the statement.