FIFTH CIRCUIT HOLDS EXIGENT CIRCUMSTANCES MAY JUSTIFY TRAFFIC STOP
by Brian S. Batterton, Attorney
©2016 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute (www.llrmi.com)
On September 22, 2016, the Fifth Circuit Court of Appeals decided Toussaint v. United States[i] , which serves as instructive regarding whether exigent circumstances may provide a legal basis under the Fourth Amendment for officers to conduct a traffic stop. The relevant facts of Toussaint, taken directly from the case, are as follows:
By wiretap, an FBI agent heard Robert Williams, the suspected leader of the "Harvey Hustlers," a drug-trafficking organization, give permission to an associate to kill a person identified only as "Tye" or "Todd," who was said to be in the Kennedy Heights neighborhood of Avondale, Louisiana, driving around in a silver Infiniti coupe. The agent immediately got in touch with Detective William Roniger of the Jefferson Parish Sheriff's Office, who was a member of the task force investigating the Harvey Hustlers. Roniger contacted the sheriff's division that had responsibility for that area of Avondale and met several of its officers, including Deputy Jean Cadet, at a gas station. There they discussed how to find the threatened individual and how to keep themselves safe in a potentially lethal situation.
Roniger and the other officers proceeded to Kennedy Heights and searched for silver Infinitis. As they were leaving the area, they encountered one, and Cadet proceeded to "pace" it. Cadet concluded the car was going over 35 miles per hour in a 20-mile zone and pulled it over.
Tosh Toussaint was the occupant. Cadet told him to exit the vehicle holding his license, registration, and insurance information, but Toussaint got out without those items and quickly fled on foot. Roniger chased him down, arrested him and gave Miranda warnings, and searched him incident to arrest, finding a 9mm pistol and a bag with rocks of crack cocaine. Toussaint tried to flee and was caught again. By that time, about forty-five minutes had elapsed between the initial threat overheard on wiretap and the stop of Toussaint's car. They brought Toussaint to the sheriff's investigations bureau and interviewed him; only then did they inform him of the potential threat on his life.
The government charged Toussaint with three crimes relating to the items recovered in the search incident to arrest.[ii]
Toussaint filed a motion to suppress the evidence discovered as a result of his stop and his statement to police. The district court granted the motion and held that the 45 minute delay between the threat and stop caused the exigency to evaporate and that the officers actions, particularly meeting to formulate a plan and pacing Toussaint speeding showed that the officers may not have personally believed the threat was credible, or possibly had an ulterior motive for the stop. The government appealed the grant of the motion to suppress to the Fifth Circuit Court of Appeals.
The issue on appeal was whether the exigent circumstance exception to the Fourth Amendment probable cause requirement justified the traffic stop of Toussaint’s vehicle.
In order to decide this issue, the court first examined whether the exigent circumstance exception, particularly the one regarding protection of life, may justify a stop of a vehicle. The court noted that no circuit had decided this issue, and that the protection of life exigent circumstance exception has typically only been applied to entry in residences. The court stated that if it decides that traffic stops may be justified by exigent circumstances, then they will next decide specifically whether exigent circumstances justified a stop of Toussaint’s vehicle.
In deciding the issue, the court first looked at the law pertaining to the exigent circumstance “emergency aid” exception to the warrant requirement as in pertains to private residences since it has not yet been applied to a vehicle stop. The court stated
Although "searches and seizures inside a home without a warrant are presumptively unreasonable," officers can respond without a warrant where exigent circumstances justify it. One recognized exigent circumstance is "the need to assist persons who are seriously injured or threatened with such injury." Stuart, 547 U.S. at 403. That is the "emergency aid" exception to the warrant requirement. Under Stuart and its progeny, officers can enter areas to help persons even though they could not otherwise be legally present without a warrant. Id. In this regard, the police serve a "community caretaking function[ ]" to ensure the safety of citizens.[iii] [emphasis added]
The court then went on to recognize that protection of residences is the main concern of the Fourth Amendment, therefore “stops of persons outside of the home are ‘considerably less intrusive.’”[iv] As such, regarding whether an officer can conduct a traffic stop, absent probable cause of a crime, based upon the “emergency aid” exception to the Fourth Amendment, the court held
[I]n proper circumstances, the emergency-aid exception to the Fourth Amendment's warrant requirement can be used to justify a traffic stop...[v] [emphasis added]
After determining that the emergency may justify the stop of a vehicle, the court set out to determine the main issue of this case, particularly whether the emergency aid exception justified the stop of Toussaint’s vehicle. It is important to note that this issue is being decided independently of the fact that the officer paced Toussaint speeding.
Regarding this issue, the court first noted
Under existing case law, "[a]n action is 'reasonable' under the Fourth Amendment, regardless of the individual officer's state of mind, 'as long as the circumstances, viewed objectively, justify [the] action.'" "The officer's subjective motivation is irrelevant." Thus, in evaluating whether an exigency actually existed, courts must examine whether there was an objectively reasonable basis for such a belief, divorced from the officer's conduct. And "[w]hen reasonable minds may disagree, we 'will not second guess the judgment of experienced law enforcement officers concerning the risks of a particular situation.'[vi]
Thus, as long as, viewed objectively, the facts of the case are such that a reasonable officer would believe exigent circumstances were present, the stop will be legal under the Fourth Amendment. This means any personal intent or motivation on the part of the officers is not relevant to the determination of whether the stop was legal under the Fourth Amendment.
The court then discussed what factors are to be considered when making a determination of the reasonableness of the officer’s belief of the existence of an emergency. The court stated
Because it is essentially a factual determination, there is no set formula for determining when exigent circumstances may [exist]." United States v. Jones, 237 F.3d 716, 720 (5th Cir. 2001). Nevertheless, a court "should consider the appearance of the scene of the search in the circumstances presented as it would appear to reasonable and prudent men standing in the shoes of the officers." In addition to determining whether there was an objectively reasonable basis for identifying an emergency, courts must decide whether the officer who engaged in conduct without a warrant acted reasonably. The existence of an emergency cannot, by itself, immunize the conduct of the officer from scrutiny.[vii]
In Toussaint’s case, the court found the following facts relevant regarding the existence of exigent circumstances. First, an FBI agent monitoring a wire-tap, heard a suspected felon give an accomplice permission to kill Toussaint. Second, after the threat was heard, officers met in a parking lot and discussed the matter. Third, officers searched for the victim (Toussaint), and found him 45 minutes later. Fourth, they stopped him, and his actions led to the discovery of evidence. Regarding these facts, the court found that an exigency justifying the emergency aid exception did exist, even though the district court held that the 45 minute delay where nobody tried to kill him showed the exigency no longer existed. However, in disagreement with the lower court, the Fifth Circuit stated
But no one could conclude from just those facts that was no objectively reasonable basis for thinking an emergency persisted. A period of 45 minutes is far less time than it may take to pull off a hit. And that there was no gunfire or any suspicious cars following Toussaint is not any sort of proof that the hit had been canceled; to the contrary, it is more than objectively reasonable to conclude that Williams's associate had not yet conducted the hit.[viii]
Thus, the exigency still existed. The Fifth Circuit also noted that the district court gave weight to what it considered was the subjective intent of the officers. However, as previously stated, the subjective intent of the officers is not relevant to whether the stop was legal. The court stated
[T]he main thrust of the district court's theory is not that there was no objectively reasonable basis for concluding an emergency existed, but rather that the officers' subjective actions indicate they did not think one existed. That was error.
In both Stuart and Fisher, the Court emphasized that the intentions and beliefs of the officers do not inform whether there was an emergency, yet it is obvious from the district court's opinion that it was especially concerned with (1) Roniger's decision to confer with his fellow officers before combing the neighborhood for Toussaint and (2) Cadet's decision to pace the car instead of pulling it over immediately. The district court ignored the directives that the actions of officers when they confront an exigency matter only insofar as they indicate whether there was an objectively reasonable basis for believing an emergency existed and that officers' subjective motivations are never relevant.[ix] [emphasis added]
Thus, because the emergency still existed after 45 minutes, and because any subjective intent on the part of the officers is not relevant, the Fifth Circuit reversed the district court’s decision granting the motion to suppress.
The court did not discuss the independent basis for the stop, as they only discuss matters before them on appeal. However, the independent observation of a traffic violation would also render the stop objectively reasonable under the Fourth Amendment, according the United States Supreme Court in Whren v. United States[x]. In Whren, the Supreme Court upheld a traffic stop of a car by narcotics officer who did not regularly enforce traffic law because the officer observed an independent traffic violation. The court stated that as long as officers have an objectively valid reason for a traffic stop, such as the observation of a traffic violation, the stop is reasonable under the Fourth Amendment, even if the officers have an ulterior motive, such as conducting a drug investigation as was the case in Whren. Thus, it would appear that this case also could have supported Toussain’s stop, but it was not an issue discussed in the case.
[i] No. 15-30748 (5th Cir. Decided September 22, 2016)
[ii] Id. at 2-3
[iii] Id. at 4-5
[iv] Id. at 6
[vi] Id. at 6-7
[vii] Id. at 7
[viii] Id. at 9
[ix] Id. at 8
[x] 517 U.S. 806 (1996)