    Case: 15-30748        Document: 00513689163        Page: 1    Date Filed: 09/22/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit


                                      No. 15-30748
                                                                              FILED
                                                                     September 22, 2016
                                                                        Lyle W. Cayce
                                                                             Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellant,

versus

TOSH TOUSSAINT,

                                                  Defendant–Appellee.




                    Appeal from the United States District Court
                       for the Eastern District of Louisiana




Before KING, SMITH, and COSTA, Circuit Judges. *
JERRY E. SMITH, Circuit Judge:

      The United States appeals an order suppressing evidence seized in a
traffic stop. Although the government maintained that the exigent-circum-
stances exception to the Fourth Amendment’s warrant requirement validated
the stop, the district court held that the exigency had dissipated by the time
the officers made the stop. We reverse and remand.



      *   Carolyn Dineen King, Circuit Judge, concurs in the judgment only.
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                                        No. 15-30748
                                               I.
       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 them-
selves 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, 1 and Cadet proceeded to “pace” it. 2 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


       1 The officers saw several silver Infinitis, all parked and unoccupied, before encoun-
tering the one they eventually pulled over.
       2 “Pacing” is a process by which a police officer attempts to match the speed of a vehicle
the officer suspects of speeding; if the officer has to increase his or her speed above the speed
limit, the vehicle is pulled over. We upheld the denial of suppression of evidence found after
a stop that resulted from pacing in, e.g., United States v. Castro, 166 F.3d 728, 731, 733 (5th
Cir. 1999) (en banc) (per curiam).
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                                        No. 15-30748
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. 3

                                               II.
       The government charged Toussaint with three crimes relating to the
items recovered in the search incident to arrest. 4 Toussaint moved to suppress
the fruits of the traffic stop (the drugs and the gun), as well as the statements
he made to police once they brought him to the investigations bureau. The
government contested the motion on two grounds: (1) that the stop was legal
under the exigent-circumstances exception because of the threat on Toussaint’s
life, and (2) that the speeding violation provided the officers with enough rea-
sonable suspicion to make the stop.

       The district court granted the motion to suppress on both grounds.
United States v. Toussaint, 117 F. Supp. 3d 822 (E.D. La. 2015). It found exi-
gent circumstances when the call was first intercepted but none when the offi-
cers encountered Toussaint forty-five minutes later. Additionally, it found that
Roniger and his fellow officers’ response to the threat was unreasonable, criti-
cizing their lack of urgency and questioning whether they actually believed
Toussaint was in need of emergency help. 5



       3When the officers pulled Toussaint over, they did not know for certain that he was
the person who had been threatened. Only after he was arrested did he give Roniger his
name, and it was then that Roniger confirmed that they had arrested “Tye”/“Todd.”
       4 Possession with intent to distribute a quantity of a mixture or a substance containing
a detectable amount of cocaine base (“crack”) in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C),
possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A), and possession of a firearm by a convicted felon in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2).
       5 The district court found that “there was no objectively reasonable basis for them to

find that Toussaint was speeding.” Toussaint, 117 F. Supp. 3d at 849 n.288. The government
does not appeal that finding.
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                                       No. 15-30748
                                             III.
                                             A.
      A ruling on a motion to suppress is reviewed de novo, though the factual
findings made en route to that decision are reviewed for clear error. United
States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003) (citations omitted). This
evidence is viewed in the light most favorable to the prevailing party—here,
Toussaint. Id. Generally, a district court’s determination of the existence
vel non of exigent circumstances is a factual finding examined for clear error.
See, e.g., United States v. Troop, 514 F.3d 405, 409 (5th Cir. 2009). But when
influenced by an incorrect view of the law or an incorrect application of the
correct legal test, a factual determination is reviewed de novo. United States
v. Mask, 330 F.3d 330, 335 (5th Cir. 2003). Because the court did operate under
just such an errant influence, we examine this entire matter de novo.

      To decide whether the court erred in suppressing the evidence, we con-
front the res nova issue of whether officers can justify any stop of a vehicle (as
distinguished from the search of a home) under the exigent-circumstances
exception. We then examine whether that exception can justify this particular
stop. Answering both questions in the affirmative, we reverse the order of
suppression.

                                             B.
      The Fourth Amendment prohibits only searches that are unreasonable.
Although “searches and seizures inside a home without a warrant are
presumptively unreasonable,” 6 officers can respond without a warrant where
exigent circumstances justify it. 7 One recognized exigent circumstance is “the


      6 Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (quoting Groh v. Ramirez,
540 U.S. 551, 559 (2004)).
      7   Mincey v. Arizona, 437 U.S. 385, 393–94 (1978).
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                                       No. 15-30748
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 with-
out a warrant. Id. In this regard, the police serve a “community caretaking
function[ ]” to ensure the safety of citizens. 8

       The vast majority of these cases address warrantless entries into homes. 9
No federal court of appeals has yet approved (nor has any rejected) the
extension of this doctrine to a vehicular stop. 10 But there is no logical difficulty
with extending the exception to those particular situations. Federal courts
have decided similarly in cases dealing with vehicles that had already
stopped. 11 Additionally, there is little reason to think that officers should be
permitted to enter a home to help someone, as the Court allowed in Stuart, but
would somehow be foreclosed by the Fourth Amendment from stopping a car
where, as one example, the officers had received a warning that the driver was




       United States v. Rideau, 969 F.2d 1572, 1574 (5th Cir. 1992) (en banc) (quoting Cady
       8

v. Dombrowski, 413 U.S. 433, 441 (1973)).
       9 See, e.g., Michigan v. Fisher, 558 U.S. 45 (2009) (per curiam) (warrantless entry into
a house acceptable where officers could observe occupant bleeding and throwing objects);
Stuart, 547 U.S. at 406 (warrantless entry acceptable to break up a fight observed through a
window); Rice v. ReliaStar Life Ins. Co., 770 F.3d 1122 (5th Cir. 2014) (no Fourth Amendment
violation where officers entered house in attempt to prevent suicide); United States v. de
Jesus-Batres, 410 F.3d 154 (5th Cir. 2005) (holding that officers acted within the bounds of
the Fourth Amendment when they conducted a warrantless search of a garage to check for
any injured aliens).
       10State courts have permitted police officers to justify vehicular stops based on the
emergency-aid exception. See State v. Dunn, 964 N.E.2d 1037, 1042 (Ohio 2012); State v.
Stapa, 46 So. 3d 264, 266 (La. App. 2 Cir. 2010).
       11  See, e.g., United States v. Collins, 321 F.3d 691, 694–95 (8th Cir. 2003) (permitting
officer to lean into parked car because he had reasonable belief that persons were injured);
United States v. Kelly, 267 F. Supp. 2d 5, 9 (D.D.C. 2003) (no Fourth Amendment violation
where officers entered car to treat visible crash victim).
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                                         No. 15-30748
armed and intended to kill himself upon reaching a certain destination. 12

       The Fourth Amendment’s central concern is warrantless entry into
homes, 13 so stops of persons outside the home are “considerably less intru-
sive.” 14 Additionally, a person’s privacy interest in his or her vehicle is less
substantial than is the interest in one’s house. 15 Forcing officers to ignore
other evidence when they stop vehicles to render emergency aid would “not
meet the needs of law enforcement or the demands of public safety.” Fisher,
558 U.S. at 49.         “[T]he ultimate touchstone of the Fourth Amendment is
‘reasonableness,’” Stuart, 547 U.S. at 403, and the benevolent act of trying to
notify a driver that his life is in danger epitomizes reasonableness. Because,
in proper circumstances, the emergency-aid exception to the Fourth Amend-
ment’s warrant requirement can be used to justify a traffic stop, we turn to
whether it can be used to justify this particular stop.

                                                 C.
       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.’” 16                     “The officer’s
subjective motivation is irrelevant.” 17 Thus, in evaluating whether an exigency



       12   This was the case in Dunn, 964 N.E.2d at 1042.
       13   E.g., Payton v. New York, 445 U.S. 573, 585 (1980).
       14   Illinois v. McArthur, 531 U.S. 32, 336 (2001).
       15See, e.g., Arizona v. Gant, 556 U.S. 332, 345 (2009) (citing New York v. Class,
475 U.S. 106, 112–13 (1986)).
       16 Stuart, 547 U.S. at 404 (quoting Scott v. United States, 436 U.S. 128, 138 (1978)
(emphasis in internal quotation added)).
       17 Id.; see also Fisher, 558 U.S. at 49 (“[T]he test . . . is not what the [officer] believed,

but whether there was ‘an objectively reasonable basis for believing’ that medical assistance
was needed, or persons were in danger’” (quoting Stuart, 547 U.S. at 406)); Rideau, 969 F.2d
at 1574 (“In assessing the reasonableness of an officer’s actions, it is imperative that the facts
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                                         No. 15-30748
actually existed, courts must examine whether there was an objectively rea-
sonable 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.’” 18

       “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 con-
sider 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.” 19     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. 20 The
existence of an emergency cannot, by itself, immunize the conduct of the officer
from scrutiny.

                                                1.
       The objective facts—that is, those divorced from the officers’ response to
the threat on Toussaint’s life—are straightforward. FBI agents overheard a
threat. A suspected felon gave an associate permission to kill the defendant,



be judged against an objective standard . . . . The officer’s state of mind, or his stated justifi-
cation . . ., is not the focus of our inquiry.” (citation and internal quotation marks omitted)).
        United States v. Mata, 397 F. App’x 39, 39–40 (5th Cir. 2010) (quoting United States
       18

v. Mechacha-Castruita, 587 F.3d 283, 290 (5th Cir. 2009)).
       19 United States v. Rodea, 102 F.3d 1401, 1405 (5th Cir. 1996) (internal quotation
marks omitted). Accord Rideau, 969 F.2d at 1574 (“We must attempt to put ourselves in the
shoes of a reasonable police officer as he or she approaches a given situation and assesses the
likelihood of danger . . . .”).
       20See Rice v. ReliaStar Life Ins. Co., 770 F.3d 1122, 1132 (5th Cir. 2014); see also
Stuart, 547 U.S. at 403–05.
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                                         No. 15-30748
and no one—including the district court—contested that that threat was
credible. After intercepting the threat, officers searched for the potential vic-
tim, found him, and informed him of it—all within forty-five minutes of the
first indication that his life was in danger.

       From those objective facts, the district court concluded that the exigency
had dissipated by the time the officers pulled Toussaint over, citing the forty-
five minutes between threat and arrest, the lack of gunfire or signs of distress
in the neighborhood, and the absence of anyone menacing Toussaint’s vehicle
when officers discovered it. But the main thrust of the district court’s theory
is not that there was no objectively reasonable basis for concluding an emer-
gency existed, but rather that the officers’ subjective actions indicate they did
not think one existed. That was error. 21

       In both Stuart and Fisher, the Court emphasized that the intentions and
beliefs of the officers do not inform whether there was an emergency, 22 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 nei-
ghborhood 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.



       21This is the legal error that infected the district court’s factual determinations to
which we referred supra Part I.A. Because of that error, we review both legal conclusions
and factual determinations de novo. Mask, 330 F.3d at 335.
       22 See Fisher, 558 U.S. at 49 ((“[T]he test . . . is not what the [police officer] believed,
but whether there was ‘an objectively reasonable basis for believing’ that medical assistance
was needed, or persons were in danger.’” (quoting Stuart, 547 U.S. at 406)); Stuart, 547 U.S.
at 505 (noting that “it does not matter” whether the intent of the officers was to make arrests
or to respond to an emergency).
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                                       No. 15-30748
A district court not only must examine the actions of the officers but also must
consider whether an objectively reasonable person might have acted differently
from how the officers responded. This case is a hornbook example of precisely
that distinction, which the district court should have recognized.

       Again we look to the objective facts. Police officers receive what all agree
is a credible threat against a specific individual, who is located within a specific
area of the city and is driving a particularly-described vehicle. Then 45 min-
utes pass without incident. 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. 23 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 con-
ducted the hit.

       Those two uncontroversial propositions provide more than enough sup-
port to conclude that there was an “objectively reasonable basis” for believing
the emergency had not ended. See Stuart, 547 U.S. at 406. Because the
emergency had not dissolved after 45 minutes, we examine whether the offi-
cers’ actions in responding to it were reasonable.

                                             2.
       The district court mainly objected to two actions the officers took before


       23The government cites at least one example of a hit intercepted on wiretap that took
longer than 45 minutes to occur. Such an example is apposite but unnecessary. It stands to
reason that planned hits intercepted over wiretap—indeed, planned killings generally—do
not expire after 45 minutes. Toussaint has not pointed to any precedent from this circuit or
elsewhere suggesting that emergencies disappear altogether after 45 minutes. Inasmuch as
precedent points in any direction, it shows that exigencies can persist longer than that. See
de Jesus-Batres, 410 F.3d at 159 (“[T]he delay of approximately 45 minutes before the officers
entered the garage does not by itself preclude a finding of exigent circumstances.”).
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                                  No. 15-30748
stopping Toussaint. First, it concluded that the officers should not have met
at a gas station to plan how they would find Toussaint while protecting them-
selves. Second, it theorized that Cadet should not have “paced” his vehicle
before pulling Toussaint over. But that also was legal error.

      “Our purpose is not to examine each act in isolation and inquire whether
the officers could have acted differently.” United States v. Blount, 123 F.3d
831, 838 (5th Cir. 1997) (en banc). We view those decisions—made by police
on the ground, with comparatively minimal time to deliberate—with “20/20
hindsight”; it is not our job to “second-guess[] officers’ actions” in these situa-
tions. Rice, 770 F.3d at 1132. Given those warnings, the officers’ actions, taken
as a whole, were a reasonable response to the emergency.

      The suppression order is REVERSED, and this matter is REMANDED
for proceedings as needed.




                                        10
