                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2008-CT-02133-SCT

DAVID TREJO

v.

STATE OF MISSISSIPPI


                              ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                          12/12/2008
TRIAL JUDGE:                               HON. SAMAC S. RICHARDSON
COURT FROM WHICH APPEALED:                 MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   OFFICE OF INDIGENT APPEALS
                                           BY: HUNTER NOLAN AIKENS
                                           LESLIE S. LEE
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                         MICHAEL GUEST
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               THE JUDGMENT OF THE COURT
                                           OF APPEALS IS AFFIRMED. THE
                                           JUDGMENT OF THE CIRCUIT COURT OF
                                           MADISON COUNTY IS REVERSED AND
                                           RENDERED - 12/15/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    In this certiorari case, the Court of Appeals reversed David Trejo’s conviction and

sentence for possession of a controlled substance with intent to distribute, finding the State
had violated David Trejo’s Fourth Amendment right against unreasonable seizure. The Court

of Appeals held that the arresting officer lacked probable cause or reasonable suspicion to

make the traffic stop 1 that led to the discovery of cocaine; thus, the trial court should have

suppressed the cocaine as fruit of the poisonous tree. While we agree that the officer lacked

probable cause or reasonable suspicion to stop Trejo’s vehicle, we review the case to

determine whether the stop was reasonable under the community caretaking function first

pronounced in Cady v. Dombrowski.2 Finding the stop unreasonable under that doctrine too,

we affirm the Court of Appeals’ reversal of Trejo’s conviction and sentence.

                                            Facts

¶2.    Officer Chris Picou was traveling North on I-55 at approximately 1:17 a.m. when he

came upon a red Chevrolet SUV with a Texas license plate traveling in the left-hand or inside

lane. The SUV was traveling approximately 58-60 miles per hour in an area where the

minimum posted speed limit is 45 miles per hour and the maximum is 70 miles per hour.

Picou was traveling 70 miles per hour in the left-hand lane behind Trejo when he flashed his

bright lights for the SUV to move over so that he could pass. When the driver failed to

change lanes, Picou flashed his brights two more times, with ten seconds passing between

each flash. After the third flash,3 Picou initiated his blue lights, and the driver immediately

pulled onto the interstate shoulder.



       1
       It is undisputed that the Fourth Amendment applies to vehicle stops. Floyd v. City
of Crystal Springs, 749 So. 2d 110, 114 (Miss. 1999) (citations omitted).
       2
           Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973).
       3
           Picou flashed his bright lights between mile markers 114 and 115.

                                               2
¶3.    Picou testified that he pulled over the SUV because he was concerned the driver was

intoxicated or tired. Picou testified that he did not stop the SUV based on any traffic

violation. Picou also testified there was no traffic in the right lane which would have

prevented him from passing the SUV.

¶4.    When Picou approached the vehicle, he noticed that the driver, David Trejo, did not

have slurred speech but appeared tired, glassy-eyed, and nervous. His female passenger,

Pebbles Nutt, seemed groggy. Picou also noticed that the car smelled strongly of fabric

softener, which in his experience4 is used to cover the odor of controlled substances. He then

requested Trejo’s driver’s license and checked his criminal history, which revealed previous

convictions for possession of a controlled substance.

¶5.    When Picou questioned Trejo about his criminal history, Trejo reported only a

conviction for stealing an automobile. Picou also ascertained that Trejo was traveling from

Houston, a “source city” for drugs, to Ohio, a “source area” for distribution of drugs. Picou

then asked for permission to search Trejo’s vehicle for controlled substances, and Trejo

denied permission. Picou informed Trejo that he was going to run a dog around the vehicle,

and requested that Trejo and Nutt stand away from the vehicle. When Nutt exited the car,

she quickly turned her back to Officer Trejo, which further aroused his suspicion. Picou

instructed Nutt to turn around to make sure she had no weapons, and when she did, he saw

a large bulge under her clothing at her midsection. With the back of his hand, Picou felt the




       4
       Picou had nineteen years of law enforcement experience, and his official title is
“master sergeant in the Narcotics Division.”

                                              3
bulge. He immediately recognized that Nutt had strapped a controlled substance to her body,

and he recovered two kilograms of cocaine.

¶6.    Trejo was indicted and found guilty of possessing cocaine with intent to sell in

violation of Mississippi Code Section 41-29-139 and sentenced to sixty years as a habitual

offender. Prior to trial, Trejo filed a motion to suppress the cocaine, which the trial court

denied. The trial court found that Trejo was stopped for “safety reasons,” namely “to check

for the impairment of the driver, whether it was alcohol or sleep deprivation or what[ever]

else[,]” to prevent an accident.

                                   Court of Appeals’ Opinion

¶7.    Trejo appealed his conviction and sentence, arguing the circuit court erred in denying

his motion to suppress.5 The Court of Appeals did not address the circuit court’s finding that

this case involved a “safety” stop, as opposed to an “investigatory stop.” 6 Rather, the Court

of Appeals found that the initial traffic stop was an “investigatory stop” and looked to Terry

v. Ohio 7 to complete its analysis.8 The Court of Appeals determined that, since Picou’s

“suspicion that Trejo was tired or impaired is not sufficient to constitute a reasonable basis

for the traffic stop[,]” then “there was no probable cause or reasonable suspicion to justify




       5
           Trejo v. State, 2010 WL 2271518, *2 (Miss. Ct. App. June 8, 2010).
       6
      We note the Court of Appeals erroneously referred to Couldery v. State, 890 So. 2d
959 (Miss. Ct. App. 2004), as a decision of this Court. Id. at * 4.
       7
           Terry v. Ohio, 393 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
       8
           Trejo, 2010 WL 2271518, at *3.

                                               4
the initial traffic stop . . . .” 9 The Court of Appeals then concluded that the cocaine was “fruit

of the poisonous tree[,]” without which “there is no remaining evidence to uphold Trejo’s

conviction.” 10 It reversed and rendered a judgment of acquittal for Trejo.11

                                           Discussion

¶8.    Aggrieved by the Court of Appeals’ decision, the State filed a petition for certiorari

with this Court. Although we conclude, as did the Court of Appeals, that there was no

probable cause or reasonable suspicion of criminal activity to justify the stop, we ordered

additional briefing to address the community caretaking function in light of the trial court’s

finding that Picou had performed a “safety” stop.

¶9.    The United States Supreme Court first applied the community caretaking function in

Cady v. Dombrowski.12 In that case, the Supreme Court upheld the search of an impounded

automobile after its driver, an off-duty police officer, was arrested for drunk driving after

reporting an accident.13 The police searched the vehicle without a warrant to look for the

off-duty officer’s service revolver and found evidence of another crime.14 The off-duty

officer moved to suppress the evidence, but the Court upheld the search, reasoning:




       9
           Id. at **1, 4.
       10
            Id. at **3, 6.
       11
            Id. at *6.
       12
            Cady v. Dombrowski, 413 U.S. 433, 436, 448, 93 S. Ct. 2523, 37 L. Ed. 2d 706
(1973).
       13
            Id.
       14
            Id. at 437.

                                                5
       [S]tate and local police officers, unlike federal officers, have much more
       contact with vehicles for reasons related to the operation of vehicles
       themselves. All States require vehicles to be registered and operators to be
       licensed. States and localities have enacted extensive and detailed codes
       regulating the condition and manner in which motor vehicles may be operated
       on public streets and highways.

              Because of the extensive regulation of motor vehicles and traffic, and
       also because of the frequency with which a vehicle can become disabled or
       involved in an accident on public highways, the extent of police-citizen contact
       involving automobiles will be substantially greater than police-citizen contact
       in a home or office. Some such contacts will occur because the officer may
       believe the operator has violated a criminal statute, but many more will not be
       of that nature. Local police officers, unlike federal officers, frequently
       investigate vehicle accidents in which there is no claim of criminal liability
       and engage in what, for want of a better term, may be described as community
       care-taking functions, totally divorced from the detection, investigation, or
       acquisition of evidence relating to the violation of a criminal statute.15

The Court found the search reasonable, as the police were “simply reacting to the effect of

an accident–one of the recurring practical situations that results from the operation of motor

vehicles and with which the local police must deal every day.” 16 Furthermore, the Court

noted that it was reasonable for the officers to search the vehicle to recover the revolver “for

the safety of the general public who might be endangered if an intruder removed a revolver”

from the vehicle.17




       15
        Id. at 441; see also Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 93 L.
Ed. 2d 739 (1987) (finding police engaged in caretaking duties in inventory search of a
lawfully impounded vehicle); South Dakota v. Opperman, 428 U.S. 364, 372-75, 96 S. Ct.
3092, 49 L. Ed. 2d 1000 (1976) (finding inventory search reasonable because police
caretaking procedures are designed to secure and protect vehicles and their contents).
       16
            Cady, 413 U.S. at 446.
       17
            Id. at 447.

                                               6
¶10.   The State argues that this Court should adopt the community caretaking function, as

Picou was acting in his duty to protect the public’s safety when he stopped Trejo’s vehicle.

It argues Picou reasonably developed suspicion of criminal activity after effecting the stop.

¶11.   Conversely, Trejo argues the Supreme Court has used the community caretaking

function only in support of inventory searches of impounded cars. Trejo argues we should

not extend the function to create a new or separate exception to the warrant requirement. He

also argues that the stop does not meet the community caretaking function even if we adopt

and apply it in this case.

¶12.   Numerous jurisdictions have applied the community caretaking function beyond the

context of Cady to instances such as the present. And this Court recognized the doctrine in

Floyd v. City of Crystal Springs.18 In that case, we were confronted with an officer’s stop

of a vehicle based solely on a citizen complaint of reckless driving.19 The officer stopped the

driver and found an opened bottle of vodka on the seat and arrested the driver for driving

under the influence.20

¶13.   In Floyd, the State argued this Court should evaluate the stop under the following

standard: “‘[W]hen police cross a threshold not in their criminal investigatory capacity, but

as part of their community caretaking function, it is clear that the standard for assessing the

Fourth Amendment propriety of such conduct is whether they possessed a reasonable basis




       18
            Floyd v. City of Crystal Springs, 749 So. 2d 110, 114-15 (Miss. 1999).
       19
            Id. at 112.
       20
            Id. at 112-13.

                                               7
for doing what they did.’” 21 While we acknowledged the community caretaking function in

that case, we ultimately upheld the stop as reasonable under the reasonable-suspicion

standard.22

¶14.   We find “no reasoned argument in support of a categorical refusal to apply the

community caretaking exception to vehicle stops[,]” 23 and we conclude that the community

caretaking function in Cady may apply in contexts other than inventory searches, as the

police provide many functions apart from investigating criminal activity. But only “[u]nder

appropriate circumstances [may] a law enforcement officer . . . be fully justified in stopping

a vehicle to provide assistance, without needing any reasonable basis to suspect criminal

activity.” 24 In applying the community caretaking function, “[t]he ultimate standard . . . is

reasonableness.” 25 We review the determination of reasonableness under a de novo standard,

but review findings of historical fact for clear error.26 As with other Fourth Amendment

analyses, this Court will not try to determine the subjective intent of the person making the

stop but will examine whether the stop is objectively reasonable.27 In doing so, we look to

       21
            Id. at 117 (quoting State v. Alexander, 721 A.2d 275, 284-85 (Md. Ct. Spec. App.
1998)).
       22
            Id. at 118.
       23
            People v. Madrid, 85 Cal. Rptr. 3d 900, 906 (Cal. Ct. App. 2008).
       24
            State v. Brown, 509 N.W.2d 69, 71 (N.D. 1993).
       25
            Cady, 413 U.S. at 439.
       26
            Floyd, 749 So. 2d at 113.
       27
         See generally Brigham City, Utah v. Stuart, 547 U.S. 398, 404, 126 S. Ct. 1943,
164 L. Ed. 2d 650 (2006) (Court ruling that it had “repeatedly rejected” considering an
officer’s subjective intent and that “subjective motivation is irrelevant”).

                                               8
whether the stopping officer can point to “‘specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant’” the stop. 28 The

question becomes whether a reasonable person, “given the totality of the circumstances,

would believe [the individual] is in need of help” 29 or that the safety of the public is

endangered.30 However, courts must carefully analyze the totality of the circumstances, so

that the community caretaking function is “‘cautiously and narrowly applied in order to

minimize the risk that it will be abused or used as a pretext for conducting an investigatory

[stop and] search for criminal evidence.’” 31

¶15.   We begin our analysis by noting that at least two other jurisdictions applying the

community caretaking function have concluded that stops effected under similar

circumstances were unreasonable.32 Likewise, upon reviewing the totality of the


       28
         Gonzales v. State, 963 So. 2d 1138, 1142 (Miss. 2007) (citing Terry v. Ohio, 392
U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).
       29
         Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002) (quoting Wright v.
State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999)).
       30
            See Cady, 413 U.S. at 447.
       31
        State v. Rinehart, 617 N.W. 2d 842, 844 (S.D. 2000) (quoting Com. v. Waters, 456
S.E.2d 527, 530 (Va. App. 1995)).
       32
         See Rowe v. Maryland, 769 A.2d 879 (Md. 2001) (stop unreasonable where
defendant was driving at 1:00 a.m. in far right lane of interstate at 50-54 miles per hour
where speed limit was 65 and defendant’s car had crossed white edge-line onto shoulder);
Corbin v. State, 85 S.W.3d 272 (Tex. Crim. App. 2002) (stop unreasonable where defendant
was driving 52 miles per hour in 65 miles-per-hour zone at 1:00 a.m. near intersection of
interstate and highway, and defendant’s car crossed onto shoulder of road for less than one
second). But see State v. Martinez, 615 A.2d 279 (N.J. Super. Ct. App. Div. 1992) (stop
reasonable where defendant was traveling less then 10 miles per hour on a 25 miles-per-hour
residential street at 2 a.m.); State v. Rinehart, 617 N.W.2d 842 (S.D. 2000) (stop reasonable
where defendant was traveling at 1:05 a.m. on a deserted street going 20-25 miles per hour

                                                9
circumstances in this case, we find the trial judge erred in finding the stop was reasonable

under the Fourth Amendment. We are unable to conclude that a reasonable person would

have believed Trejo was in need of help or that the public was endangered.

¶16.   Because of the risk of danger to a driver as well as the traveling public, we agree that

it would be reasonable for a police officer to stop an individual who appears to be falling

asleep while driving. However, the facts presented here simply do not support such an

inference. There was no evidence of erratic driving. Trejo was traveling approximately 10-

12 miles per hour below the maximum speed limit of 70 miles per hour and well above the

minimum speed limit of 45 miles per hour in the left-hand lane around 1:00 a.m. We do not

think his speed was so slow that a reasonable person would believe it indicative of distress.

We also do not find that Trejo’s failure to change lanes after Picou flashed his bright lights

was necessarily indicative of distress, nor was it so when considered with the other facts.

Picou flashed his bright lights in quick succession on a deserted stretch of interstate. And

no traffic prevented Picou from passing Trejo in the right lane. We find the following

analysis by the Court of Appeals especially relevant:

       Trejo was not weaving or driving erratically, and there is no indication that
       Trejo was even aware that he was being followed by law enforcement . . . .
       This lack of awareness is supported by the fact that when Officer Picou turned
       on his flashing blue lights, Trejo promptly pulled over to the side of the road.33




where speed limit was 40 miles per hour); Ortega v. State, 974 S.W.2d 361 (Tex. Ct. App.
1998) (stop reasonable where defendant was driving “[i]n the early morning hours” a 1979
Ford Bronco at 18-20 miles per hour in a 50 miles-per-hour zone).
       33
            Trejo, 2010 WL 2271518, at *4.

                                              10
Therefore, we find that the facts presented at the suppression hearing do not justify a

reasonable belief that Trejo needed help or that the public was endangered, and as such, the

trial court should have granted Trejo’s motion to suppress.

                                        Conclusion

¶17.   In applying the community caretaking function to the facts of this case, we find the

trial court erred in denying Trejo’s motion to suppress the cocaine as evidence. As noted by

the Court of Appeals, “[w]ithout the cocaine, there is no remaining evidence to uphold

Trejo’s conviction.” 34 Therefore, we affirm the Court of Appeals’ judgment to reverse and

render Trejo’s conviction and sentence.

¶18. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE
JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS REVERSED
AND RENDERED.

     WALLER, C.J., AND CARLSON, P.J., CONCUR. KITCHENS, J., CONCURS
IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY
DICKINSON, P.J.; DICKINSON, P.J., CONCURS IN PART AND IN RESULT
WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, J., CONCURS IN
PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED
BY PIERCE, J. CHANDLER AND KING, JJ., NOT PARTICIPATING.

       KITCHENS, JUSTICE, CONCURRING IN RESULT ONLY:

¶19.   While I concur with much of the analysis and with the result reached by the plurality,

I write briefly to express, with respect, my disagreement with the plurality’s unequivocal

adoption of the so-called community caretaking function as a standard to be employed by

Mississippi courts in determining whether police stops of motorists on public thoroughfares

are reasonable in the context of established search and seizure law.


       34
            Id. at *6.

                                             11
¶20.   The plurality cites Floyd v. City of Crystal Springs, 749 So. 2d 110, 113 (Miss. 1999),

as having recognized the doctrine of community caretaking by police, yet notes that Floyd

was decided under the reasonable suspicion standard. Plur. Op. at ¶13. It is important to

emphasize that the community caretaking language in Floyd was mere dicta, and in no way

adopted this judicial contrivance as a standard that should apply to police stops of motorists.

¶21.   Moreover, it is important to note that the facts in Cady v. Dombrowski, 413 U.S. 433,

93 S. Ct. 2523, 37 L. Ed. 2d (1973), on which the plurality relies in adopting the community

caretaking function, are vastly different from those in the present case. In Cady, the

defendant was involved in a motor vehicle accident and telephoned police. Id. at 435-36.

The responding officers picked up the defendant at the tavern from which he had placed the

call, drove him back to the scene of the accident, and en route, noted that the defendant

appeared intoxicated. Id. at 436. The defendant informed the officers that he was an off-duty

policeman; and upon their arrival at the disabled vehicle, officers searched his car under the

pretense of locating the defendant’s service revolver. Id. No revolver was found, and the

disabled vehicle was towed from the roadside to a privately owned garage. Id. The defendant

was eventually arrested and charged with driving under the influence of alcohol and later was

hospitalized due to injuries sustained in the accident.      Id. Operating under standard

departmental procedure, one of the arresting officers then performed an inventory search of

the defendant’s impounded vehicle, claiming to be looking for the service revolver. Id. at

437. The search of the vehicle and trunk revealed not the revolver but evidence and

instrumentalities of an unrelated crime. Id.




                                               12
¶22.   In finding that this was a reasonable search under the Fourth Amendment, the

Supreme Court emphasized the following facts: the vehicle was disabled by an accident, the

driver was intoxicated and unable to make arrangements to move the vehicle, the vehicle’s

presence alongside the highway was a nuisance, the police had a form of custody over the

vehicle after its having been towed to the garage, the search of the vehicle for the revolver

was an exercise in public safety to prevent the defendant’s service revolver from falling into

the wrong hands, and the search of an impounded vehicle was standard procedure for the

police department. Id. at 442-43. These facts are wholly distinguishable from the present

case, in which Officer Picau made a traffic stop of a functional vehicle based upon a mere

suspicion that Trejo was either intoxicated or drowsy. In the instant case, there was no

accident requiring Picau’s assistance, there was no disabled vehicle on a roadside, and there

was no standard-procedure, inventory search of an impounded vehicle.

¶23.   The plurality states: “[W]e conclude that the community caretaking function in Cady

may apply in contexts other than inventory searches, as the police provide many functions

apart from investigating criminal activity.” Plur. Op. at ¶ 14 (emphasis added). However, the

present case was not an instance in which a peace officer was acting in a capacity apart from

investigating criminal activity, since Officer Picau testified that, despite any indication (i.e.,

of a traffic violation, or erratic driving), he suspected Trejo of being either drowsy or

intoxicated and made the stop to “check the status on” Trejo.

¶24.   The danger in expanding this community caretaking function to apply to governmental

searches and seizures where traffic stops have been made in the interest of public safety is

that officers who have no reasonable belief that there is an imminent threat of danger to the

                                               13
driver or other members of the public will be empowered to make traffic stops of motorists

who have not violated the law in any way. Thus, any imaginable activity a police officer

subjectively thinks could possibly be dangerous–including acts the legislature has not seen

fit to prohibit by law, such as cell phone use or eating a sandwich–will provide justification

for a police stop.    Indeed, it is the legislature’s constitutional responsibility to decide

whether such activities are to be deemed threats to public safety. It is not the role of this

Court to legalize police stops of motorists who have neither committed some violation of

established traffic law nor are threatened by some imminently dangerous situation.

¶25.   The reasonableness of traffic stops should continue to be analyzed under traditional

Fourth Amendment jurisprudence. “Temporary detention of individuals during the stop of

an automobile by the police, even if only for a brief period and for a limited purpose,

constitutes a ‘seizure’ of ‘persons’” under the Fourth Amendment. Whren v. U.S., 517 U.S.

806, 809-810, 116 S. Ct. 1769, 1772 135 L. Ed. 2d 89 (1996) (citations omitted). “An

automobile stop is . . . subject to the constitutional imperative that it not be ‘unreasonable’

under the circumstances. As a general matter, the decision to stop an automobile is

reasonable where the police have probable cause to believe that a traffic violation has

occurred.” Id. at 810 (citing Delaware v. Prouse, 440 U.S. 648, 659, 99 S. Ct. 1391, 59 L.

Ed. 2d 660 (1979); Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S. Ct. 330, 54 L. Ed. 2d

331 (1977)).

¶26.   No one, of course, reasonably could question a police officer’s right–indeed,

obligation–to stop a motorist when the officer reasonably perceives an imminent threat of

harm to the motorist or other members of the public. Examples would include the officer’s

                                              14
observing lug nuts missing from a vehicle’s wheel, an automobile traveling toward a washed-

out bridge, or gasoline leaking from a car or truck.35 In cases when such stop is challenged,

the officer must establish to the satisfaction of a judge that his or her perception of imminent

threat of harm was reasonable.

¶27.   In the instant case, the officer conceded that, at the time of the stop, no probable cause

existed that led him to believe a traffic violation had occurred. At the suppression hearing,

Officer Picau testified that he had stopped Trejo on suspicion that Trejo could be fatigued

or intoxicated, given that Trejo would not yield the left lane of travel to Picau. Picau testified

that, while drivers are expected to obey traffic signs, such as those on multi-lane highways

that direct slow-moving traffic to drive in the right lane, he admitted that he did not stop

Trejo based on his failure to obey such a traffic sign. At no time was Trejo driving erratically,

over the maximum speed limit, or under the minimum speed limit, and the record includes

no evidence of any imminent threat of danger.

¶28.   I add that it is not difficult to think of circumstances under which a peace officer may

be justified in stopping and charging a motorist for prolonged presence in a far left, or inside,

lane of a street or highway of four or more lanes. Mississippi Code Section 63-3-603(d) (Rev.

2004) reads, in pertinent part, as follows:

       Whenever any roadway has been divided into three (3) or more clearly marked
       lanes for traffic . . .



       35
          Justice Randolph asks: “Can it fairly be argued that a police officer may not stop
a delivery truck with an unsecured cargo door in the interest of public safety? A vehicle with
an under-inflated tire? An RV with an unlatched hatch cover flapping in the breeze?” Since
all of these illustrations unquestionably present threats of imminent danger, I am grateful to
my esteemed colleague for providing additional support for my position.

                                               15
       Upon all roadways any vehicle proceeding at less than the normal speed of
       traffic at the time and place and under the conditions then existing shall be
       driven in the right-hand lane then available for traffic, or as close as
       practicable to the right-hand curb or edge of the roadway, except when
       overtaking and passing another vehicle proceeding in the same direction or
       when preparing for a left turn at an intersection or into a private road or
       driveway.

Although we do not find in the present case a clear violation of Mississippi Code Section

63-3-603(d), today’s decision should not be read to diminish the validity or importance of

that statute, which, if violated, should be enforced. This statute plainly establishes that the

far-inside lane is intended mainly for passing. In this case, even if Trejo had violated Section

63-3-603(d), the arresting officer articulated no awareness of this statute’s existence, and, in

any event, did not rely on it as justification for stopping the Trejo vehicle. If he had, this case

might have been decided differently. Such a stop would have required this Court to interpret

Section 63-3-603(d) in light of the facts presented.

¶29.   Accordingly, there exists no reasonable basis to justify the officer’s stop of the Trejo

vehicle, and thus, no probable cause. I agree with the plurality’s decision to reverse and

render the conviction and sentence for possession of a controlled substance with intent to

distribute; however, I cannot join in its adoption of the community caretaking function as it

applies to traffic stops by police.

       DICKINSON, P.J., JOINS THIS OPINION.




                                                16
    RANDOLPH, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:

¶30.   I concur with the adoption of the “community caretaking” doctrine, but dissent to the

plurality’s result, which does not apply it. The plurality presents an excellent synopsis of the

“community caretaking” doctrine and has crafted a clear, workable standard for its

application. Assessing the exercise of a “community caretaking” function on a case-by-case

basis, by objective reasonableness under “the totality of the circumstances,” is a sound

approach according balance to the interests of public safety and individual Fourth

Amendment protections. (Plur. Op. at ¶ 14).

¶31.   Despite the plurality’s balanced, common-sense approach, Justice Kitchens rejects the

“adoption of the community caretaking function as it applies to traffic stops by police[,]”

predicated upon “imaginable activity a police officer subjectively thinks could possibly be

dangerous . . . .” 36 (Kitchens Op. at ¶¶ 6, 11). Justice Kitchens’s opinion ignores the

standard of objective reasonableness under the “totality of the circumstances” championed

by the plurality and the United States Supreme Court. (Plur. Op. at ¶ 14) (citing Brigham

City, Utah v. Stuart, 547 U.S. 398, 404, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006) (rejecting

the officer’s subjective intent)). Can it fairly be argued that a police officer may not stop a

delivery truck with an unsecured cargo door in the interest of public safety? A vehicle with

an under-inflated tire? An RV with an unlatched hatch cover flapping in the breeze? Where

is the constitutional violation or putative 42 United States Code Section 1983 claim in such




       36
        Compare this to Winston Churchill’s statement to Parliament that “[t]his is one of
those cases in which the imagination is baffled by the facts.”

                                              17
cases? Although no imminent hazard may exist, if left unchecked, each could have dire

consequences for the traveling public.37 Whether one considers his scenarios or mine, all

illustrate why a case-by-case examination of the applicability of “community caretaking” in

a traffic-stop context is required. The appropriate inquiry by the trial court is whether the

stop was objectively reasonable, given the totality of the circumstances surrounding the

condition(s) observed by an officer, that the driver, occupants, or other members of the

traveling public were endangered.

¶32.   I part ways with the plurality only insofar as it concludes that the circuit court “erred”

in finding that the subject traffic stop was “reasonable” because “the facts presented . . . do

not justify a reasonable belief that Trejo needed help or that the public was endangered . .

. .” (Plur. Op. at ¶¶ 1, 15-16) (emphasis added). The plurality’s ultimate finding is

undergirded by a presupposition of de novo review, despite the fact that “[i]n reviewing the

denial of a motion to suppress, we must determine whether the trial court’s findings,

considering the totality of the circumstances, are supported by substantial credible evidence.”

Delker v. State, 50 So. 3d 300, 303 (Miss. 2010) (quoting Moore v. State, 933 So. 2d 910,

914 (Miss. 2006)) (emphasis added). The circuit judge received credible evidence to support

his finding that the subject traffic stop was initiated “for safety reasons[,]” a distinct and

separate undertaking from a Fourth Amendment seizure based upon probable cause or

reasonable suspicion of criminal activity. Specifically, Picou presented the circuit court with

“objective, specific, and articulable facts” from “a trained and experienced police officer[,]”



       37
        An imminent danger does not have to be of the moment, but rather “[a]bout to occur
at any moment : Impending.” Webster’s II New College Dictionary 553 (2001).

                                              18
informed by his “inference and deduction[,]” in support of his perception that the driver may

need aid, as opposed to the suspicion of criminal activity. State v. Marx, 289 Kan. 657, 662,

215 P.3d 601 (2009); State v. Bakewell, 730 N.W.2d 335, 339 (Neb. 2007) (internal citations

omitted). The circuit judge found that the traffic stop based thereon was objectively

reasonable, in the interest of protecting both the driver and the safety of the general public.38

See People v. McDonough, 239 Ill. 2d 260, 272, 940 N.E.2d 1100 (2010). See also State v.

Mitchell, 498 N.W.2d 691, 694 (Iowa 1993) (“[t]he State has a valid interest in the safety of

its citizens on its roads and highways.”). As I would find that the circuit court did not err in

concluding that Trejo was stopped “for safety reasons[,]” the “community caretaking”

doctrine should apply to the subject traffic stop. Under “the totality of the circumstances,”

the circuit court’s conclusion was “supported by substantial credible evidence.” Delker, 50

So. 3d at 303 (quoting Moore, 933 So. 2d at 914). Accordingly, I conclude that the circuit

court did not err in denying Trejo’s “Motion to Suppress,” premised upon the “safety” stop.

¶33.   Because I would reverse the decision of the Court of Appeals and reinstate and affirm

the ruling of the circuit court denying Trejo’s “Motion to Suppress,” I respectfully concur

in adoption of the “community caretaking” doctrine, but dissent as to the result reached by

the plurality.

       PIERCE, J., JOINS THIS OPINION.




       38
        Using exclusionary rule standards by way of analogy, how exactly did the
“constable . . . blunde[r]” here? Delker, 50 So. 3d at 306 (quoting People v. Defore, 242
N.Y. 13, 21, 150 N.E. 585, 587 (1926) (opinion of the Court by Cardozo, J.)).

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