21-2047-cv Soukaneh v. Andrzejewski

In the United States Court of Appeals For the Second Circuit

August Term, 2022 Argued: October 28, 2022 Decided: August 12, 2024

Docket No. 21-2047

BASEL M. SOUKANEH,

Plaintiff-Appellee,

—v.—

NICHOLAS ANDRZEJEWSKI,

Defendant-Appellant.*

Appeal from the United States District Court for the District of Connecticut No. 19-cv-1147, Janet Bond Arterton, Judge.

Before: LYNCH, LEE, AND ROBINSON, Circuit Judges.

Defendant-Appellant Nicholas Andrzejewski, an officer of the Waterbury, Connecticut police department, appeals from the judgment of the United States District Court for the District of Connecticut (Arterton, J.) denying in part his

* The Clerk of Court is respectfully directed to amend the official case caption accordingly. motion for summary judgment on the grounds that his purported conduct was not shielded by qualified immunity. That conduct, as alleged by Plaintiff-Appellee Basel Soukaneh, is that in the course of a routine traffic stop, Andrzejewski unlawfully and violently handcuffed and detained Soukaneh in the back of a police vehicle for over half an hour and conducted a warrantless search of Soukaneh’s vehicle after Soukaneh presented a facially valid firearms permit and disclosed that he possessed a firearm pursuant to the permit. On appeal, Andrzejewski argues we should reverse the district court’s denial of qualified immunity because the presence of the lawfully owned firearm in the vehicle gave him the requisite probable cause to detain Soukaneh, search the interior of his car, and search his trunk.

Drawing all permissible factual inferences in Soukaneh’s favor, as we must on summary judgment, we agree with the district court. The evidence supports the conclusion that Andrzejewski violated Soukaneh’s Fourth Amendment rights to be free from unreasonable search and seizure when he detained Soukaneh in the manner, and for the length of time, that he did, and when he conducted the warrantless searches of Soukaneh’s car and trunk. Andrzejewski is not entitled to qualified immunity for this alleged conduct and, accordingly, the district court properly denied his motion for summary judgment.

We therefore AFFIRM the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

JOSEPH A. MENGACCI (Daniel J. Foster, on the brief), Office of the Corporation Counsel, Waterbury, CT, for Defendant-Appellant.

John R. Williams, New Haven, CT, for Plaintiff-Appellee.

Michael T. Jean, Hadan W. Hatch, for Amicus Curiae National Rifle Association of America, Inc., in support of Plaintiff-Appellee.

2 EUNICE C. LEE, Circuit Judge:

Defendant-Appellant Nicholas Andrzejewski, an officer of the Waterbury,

Connecticut police department, appeals from the judgment of the United States

District Court for the District of Connecticut (Arterton, J.) denying in part his

motion for summary judgment on the grounds that his purported conduct was not

shielded by qualified immunity. The evidence, taken in the light most favorable

to Plaintiff-Appellee Basel Soukaneh, would permit a reasonable jury to find that

in the course of a routine traffic stop, Andrzejewski unlawfully and violently

handcuffed and detained Soukaneh in the back of a police vehicle for over half an

hour and conducted a warrantless search of Soukaneh’s vehicle after Soukaneh

presented a facially valid firearms permit and disclosed that he possessed a

firearm pursuant to the permit. On appeal, Andrzejewski argues that we should

reverse the district court’s denial of qualified immunity because the presence of

the lawfully owned firearm in the vehicle gave him the requisite probable cause to

detain Soukaneh, search the interior of his car, and search his trunk.

Drawing all permissible factual inferences in Soukaneh’s favor, as we must

on summary judgment, we agree with the district court. The evidence would

support a finding that Andrzejewski violated Soukaneh’s Fourth Amendment

3 rights to be free from unreasonable search and seizure when he detained Soukaneh

in the manner, and for the length of time, that he did, and when he conducted the

warrantless searches of Soukaneh’s car and trunk. Andrzejewski is not entitled to

qualified immunity for such conduct and, accordingly, the district court properly

denied his motion for summary judgment.

We therefore AFFIRM the judgment of the district court and REMAND the

case for further proceedings consistent with this opinion.

I. BACKGROUND

A. Facts 1

At approximately 8:43 p.m. on November 12, 2018, Basel Soukaneh stopped

his car with the engine running on the side of a street in Waterbury, Connecticut.

Soukaneh’s iPhone GPS, located in a holder mounted to the car’s dashboard, was

frozen, and he stopped his car to fix it. The area “was dark and [known as] a high

crime area well known for prostitution, drug transactions and other criminal

activity.” Joint App’x at 9. Within seconds after Soukaneh stopped his car, Officer

Nicholas Andrzejewski approached the vehicle, knocked on the driver’s side

1Unless otherwise noted, the facts summarized here are undisputed for purposes of this appeal.

4 window, and according to Soukaneh, loudly demanded Soukaneh’s driver’s

license. The interior vehicle light was on, so although the area was dark,

Andrzejewski could see the activity inside of the car when he approached the

window. As Soukaneh complied and handed his license over, he also provided

Andrzejewski with a facially valid firearms permit. While doing so, Soukaneh also

disclosed to Andrzejewski that, per the permit, he was in lawful possession of a

pistol that was located in the driver’s side door compartment.

Following that exchange, Andrzejewski ordered Soukaneh out of the

vehicle. According to Soukaneh’s description, Andrzejewski then violently

“dragged [him] out of the car,” pushed him to the ground, yelled and screamed at

him, handcuffed him, and pat-searched his person, recovering neither a weapon

nor contraband. 2 Joint App’x at 37. Andrzejewski then “shoved [Soukaneh] into

the rear area of [Andrzejewski’s police] cruiser,” and left Soukaneh “bent over and

partially on the floor of the vehicle.” Id. at 38. Soukaneh remained “in that

2 Soukaneh further states that in the course of the search, Andrzejewski took $320 and a flash drive from him. Andrzejewski denies that allegation, but for purposes of this appeal, we take the facts in the light most favorable to Soukaneh. In any event, the allegation is irrelevant to our resolution of the Fourth Amendment issues raised on appeal.

5 position, facing down and unable to see, until another police officer came along

several minutes later and helped him sit up.” Id. at 38–39.

Once the other officer repositioned Soukaneh in the cruiser, Soukaneh saw

Andrzejewski search his “entire car, both front and rear,” as well as the car’s trunk.

Id. at 39. After the search, Andrzejewski returned to the cruiser and kept Soukaneh

handcuffed and detained in it for an additional half hour, during which time “a

group of seven to ten police officers gathered.” Id. At one point, Andrzejewski

began writing on his onboard computer and turned to a fellow officer who had

arrived at the scene and asked, “What should I write him up for?” Id. The other

officer laughed and the sergeant, who had also since arrived, told Andrzejewski

what to write. 3

Both parties agree that at some unspecified point during Soukaneh’s

handcuffed detention while in the vehicle, Andrzejewski ran a check on

Soukaneh’s firearm permit and confirmed that the permit was validly held. 4

3 It is unclear from the record whether Soukaneh ever actually received a citation. 4 It is unclear from the record when Andrzejewski determined that Soukaneh held a valid firearms license, and whether that determination occurred before, after, or during Andrzejewski’s search of Soukaneh’s car. Andrzejewski does not specify whether he ran the check on the firearm license before or after he searched Soukaneh’s vehicle. See

6 Soukaneh was subsequently released.

B. Proceedings Below

On July 25, 2019, Soukaneh filed a complaint in the United States District

Court for the District of Connecticut. He principally alleged that Andrzejewski’s

actions deprived him of his Fourth Amendment right to be free from

“unreasonable and warrantless arrest and/or detention,” and “warrantless and

unreasonable search and seizure of his person, vehicle and effects,” and sought

compensatory and punitive damages pursuant to

and 1988. Joint

App’x at 2–3. On December 31, 2020, Andrzejewski moved for partial summary

judgment under Federal Rule of Civil Procedure 56(a), arguing that his actions

were justified because he had reasonable suspicion and probable cause, or

alternatively, that he was entitled to qualified immunity as to the claims asserted

against him because if any rights were violated, they were not “clearly

established.”

.

On August 6, 2021, the district court granted Andrzejewski’s motion for

generally Joint App’x at 10 (stating only that “[w]hile the plaintiff was inside the police car in handcuffs, Officer Andrzejewski ran a check through the Northwest Communication Center to ascertain whether the carry permit was valid”).

7 summary judgment in part and denied it in part. Soukaneh v. Andrzejewski, No.

3:19-CV-1147 (JBA),

(D. Conn. Aug. 6, 2021). The district court

granted Andrzejewski’s motion for summary judgment with regard to the initial

stop. It concluded that since “[Andrzejewski’s] basis for stopping [Soukaneh’s]

vehicle was that the car was stopped at night in the roadway with the engine

running in an area known for drugs and prostitution,” it was reasonable for

Andrzejewski to believe that Soukaneh was committing a traffic violation, “giving

him reasonable suspicion to stop [Soukaneh], check his driver’s license, and

require him to step out of the car.”

. However, the district court denied

summary judgment on the remaining issues related to (1) handcuffing and

detaining Soukaneh in the police cruiser, (2) searching the interior of Soukaneh’s

car, and (3) searching the car’s trunk.

at *3–7. The district court reasoned that

Andrzejewski did not possess the requisite arguable probable cause to justify this

conduct, explaining that a reasonable officer would not believe that Soukaneh was

committing a crime, or “posed a meaningful threat of being ‘armed and

dangerous’” for merely disclosing the presence of the firearm and its

accompanying permit.

at *6 (quoting Knowles v. Iowa,

(1998)).

That was especially true in light of Soukaneh’s compliant and non-threatening

8 behavior, and “the absence of any articulable reason for Defendant to believe the

[gun] permit was counterfeit or otherwise invalid.” Id. at *4. The district court

concluded that “[a]ny contrary holding would make it practically impossible for

the lawful owner of a firearm to maintain a Fourth Amendment right to privacy

in his or her automobile.” Id. at *6. Accordingly, the district court determined that

Andrzejewski was not entitled to qualified immunity on these issues, and thus

denied Andrzejewski’s motion for summary judgment in remaining part. Id. at

*5–7.

Andrzejewski timely appealed the district court’s rejection of his qualified

immunity defense.

II. LEGAL STANDARDS

A. Jurisdiction and Standard of Review

This Court typically does not have appellate jurisdiction over a denial of

summary judgment. See Plumhoff v. Rickard,

(2014) (“An order

denying a motion for summary judgment is generally not a final decision within

the meaning of [28 U.S.C.] § 1291 and is thus generally not immediately

appealable.”); see also Golino v. City of New Haven,

(2d Cir. 1991)

(same proposition). Under the collateral order doctrine, however, a district court’s

9 denial of a summary judgment motion is appealable when the decision denies

qualified immunity. See Plumhoff,

(noting that the rule requiring a

final judgment for appellate jurisdiction “does not apply when the summary

judgment motion is based on a claim of qualified immunity”); Washington v.

Napolitano,

(2d Cir. 2022) (same proposition). That is because

“[q]ualified immunity ‘is an immunity from suit rather than a mere defense to

liability,’ and therefore its denial is immediately appealable under the collateral

order doctrine.” Reyes v. Fischer,

(2d Cir. 2019) (quoting Mitchell

v. Forsyth,

(1985)). This Court has jurisdiction over a denial of

qualified immunity on a summary judgment motion only to the extent that it was

denied as a matter of law. Terebesi v. Torreso,

(2d Cir. 2014).

We ordinarily review a district court’s summary judgment ruling de novo to

determine whether the evidentiary submissions “show[] that there is no genuine

dispute as to any material fact and that the movant is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(a); see Reyes,

. But on an

interlocutory appeal from a denial of qualified immunity, this Court’s jurisdiction

is limited to whether the immunity defense has been established as a matter of law

based “on stipulated facts, or on the facts that the plaintiff alleges are true, or on

10 the facts favorable to the plaintiff that the trial judge concluded the jury might

find.” Washington,

(quoting Salim v. Proulx,

(2d Cir.

1996)).

Here, Andrzejewski has not disputed—and, for the purposes of appealing

the denial of qualified immunity, must be considered to have accepted—

Soukaneh’s version of the facts, to give this Court proper jurisdiction over his

appeal. See Jok v. City of Burlington,

(2d Cir. 2024) (explaining that

in order to immediately appeal the denial of qualified immunity, appellant must

accept or stipulate to plaintiff’s version of the material facts). Further, while no

material facts here are contested, the evidence must be viewed in the light most

favorable to Soukaneh, and all reasonable inferences must be drawn in his favor.

See Washington,

.

B. Qualified Immunity

Qualified immunity shields officials “when [their] conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” White v. Pauly,

, 78–79 (2017) (internal quotation

marks omitted). “The Supreme Court has instructed that ‘[q]ualified immunity

balances two important interests—the need to hold public officials accountable

11 when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.’”

Vega v. Semple,

(2d Cir. 2020) (alteration in original) (quoting

Pearson v. Callahan,

(2009)).

In deciding whether an official is entitled to qualified immunity, this Court

conducts a two-pronged inquiry, asking whether “the facts shown [i] ‘make out a

violation of a constitutional right,’ and [ii] ‘whether the right at issue was clearly

established at the time of defendant’s alleged misconduct.’” Winfield v. Trottier,

(2d Cir. 2013) (alteration in original) (quoting Pearson,

). The Supreme Court has left it up to courts to decide the order in which to

approach those questions. See Pearson,

(holding that, while there is

still a two-pronged test, courts of appeals can use their discretion as to which

prong to address first).

“A right is ‘clearly established’ when ‘the contours of the right are

sufficiently clear that a reasonable official would understand that what [they are]

doing violates that right.’” Jackler v. Byrne,

(2d Cir. 2011)

(alterations omitted) (quoting Anderson v. Creighton,

(1987)). “[I]f

reasonable officers could disagree on the legality of the action at issue in its

12 particular factual context, the officer is entitled to qualified immunity.” Guan v.

City of New York,

(2d Cir. 2022) (internal quotation marks omitted).

The party seeking summary judgment on the basis of qualified immunity bears

the burden of proof for both queries. See Coollick v. Hughes,

(2d

Cir. 2012) (citing Ashcroft v. al-Kidd,

, 735 (2011)).

III. DISCUSSION

It is an important principle of our legal system that law enforcement officers

must have the necessary discretion to perform their required duties. That

principle must be balanced, however, with a core tenet enshrined in the Fourth

Amendment—the right to be free from unreasonable search and seizure. Thus, it

has long been the “essential purpose of the proscriptions in the Fourth

Amendment [] to impose a standard of ‘reasonableness’ upon the exercise of

discretion by . . . law enforcement agents, in order ‘to safeguard the privacy and

security of individuals against arbitrary invasions.’” Delaware v. Prouse,

, 653–54 (1979) (quoting Marshall v. Barlow’s, Inc.,

(1978)).

Accordingly, we judge “the permissibility of a particular law enforcement

practice . . . by balancing its intrusion on the individual’s Fourth Amendment

interests against its promotion of legitimate governmental interests.” Id. at 654.

13 On appeal, Andrzejewski argues that the district court erred by denying his

motion for summary judgment as to his handcuffed detention of Soukaneh in

Andrzejewski’s police car, search of the interior of Soukaneh’s car, and search of

the trunk of Soukaneh’s car, because he acted reasonably within the ambit of the

Fourth Amendment. 5 To determine whether Andrzejewski is entitled to qualified

immunity for those actions, we must consider whether Andrzejewski violated

Soukaneh’s constitutional rights against unlawful search and seizure, and if so,

whether the violated rights were clearly established at that time.

On the undisputed facts before us, we conclude that Soukaneh has

sufficiently alleged a violation of his constitutional rights and confirm that there is

no defense of qualified immunity available to Andrzejewski for purposes of

summary judgment. For each issue, we first address the specific violation of

Soukaneh’s constitutional rights, and follow with an explanation of how that right

is clearly established in the case law of the Supreme Court and this Circuit.

5Soukaneh does not challenge on appeal the district court’s partial grant of qualified immunity as to the initial stop. Thus, that issue is not before this Court for review, and we do not comment on the district court’s reasoning as to that issue.

14 A. Soukaneh’s Detention

Andrzejewski first argues that he did not violate Soukaneh’s constitutional

rights by handcuffing and detaining him in the police cruiser for over half an hour

because the detention should be “governed by the standard set forth in Terry v.

Ohio,

(1968),” and Andrzejewski possessed reasonable suspicion of

criminal activity to make a lawful “Terry stop.” Appellant’s Br. at 9–10.

Alternatively, Andrzejewski contends that even if the detention constituted an

arrest, he possessed the requisite probable cause based on Soukaneh’s possession

of a gun, irrespective of the facially valid firearms permit. We disagree, however,

that this was a Terry stop requiring only reasonable suspicion, because the facts

before us demonstrate that Soukaneh’s detention was a de facto arrest for which

probable cause was required but lacking. We further conclude that the detention

violated Soukaneh’s clearly established rights.

1.

Terry stops are lawful custodial interrogations that do not rise to the level of

an arrest and are justified when an officer has “reasonable suspicion to believe that

criminal activity has occurred or is about to occur.” United States v. Tehrani,

(2d Cir. 1995) (internal quotation marks omitted); see also Terry,

26–27. “[R]easonable suspicion demands . . . ‘less than is necessary for probable

cause,’” and “is satisfied as long as authorities can point to ‘specific and articulable

facts which, taken together with rational inferences from those facts,’ . . . provide

a ‘particularized and objective basis for suspecting legal wrongdoing.’” United

States v. Patterson,

, 135–36 (2d Cir. 2022) (first quoting Kansas v. Glover,

(2020); then quoting Terry,

; and then quoting United

States v. Arvizu,

(2002)). Andrzejewski contends that “[a]s soon

as he learned that [Soukaneh] had a gun and a facially valid yet unconfirmed pistol

permit, [Andrzejewski’s] reasonable suspicion of criminal activity had fully

developed.” Appellant’s Br. at 14.

As a threshold matter, Andrzejewski has waived the argument that

Soukaneh’s detention required only reasonable suspicion because his counsel

conceded at oral argument before the district court that the detention went beyond

a Terry stop and required probable cause. See United States v. Fahey,

(2d Cir. 1974) (“Appellant cannot now raise on appeal a point he conceded

below[.]”). Andrzejewski’s counsel specifically acknowledged that Andrzejewski

needed probable cause to detain Soukaneh once Soukaneh had been removed

from the car and the protective pat down revealed no weapon or other item of a

16 dangerous or criminal nature:

THE COURT: So once the defendant takes the plaintiff out of the car, does a protective pat-down search, finds nothing, no further weapons, nothing of a criminal nature, what is your view as to the means of detention being used thereafter?

[ANDRZEJEWSKI’S COUNSEL]: So I believe with the—what her Honor is referring to is we’re beyond a Terry stop.

THE COURT: Correct.

[ANDRZEJEWSKI’S COUNSEL]: So we acknowledge that we are beyond the Terry stop and what would be permissible. At this juncture, it is our permission [sic] that there is now probable cause until the gun permit is deemed valid, probable cause based upon the presence of a weapon to search the vehicle and the trunk.

Transcript of Oral Argument at 6:11–24, Soukaneh v. Andrzejewski, No. 3:19-CV-

1147 (JBA) (D. Conn. Sept. 17, 2021), ECF No. 33 (emphasis added). When asked

about this colloquy at oral argument on appeal, Andrzejewski’s counsel

maintained that position, and in our Circuit, parties are “bound by concessions

made by their counsel at oral argument.” Dorce v. City of New York,

(2d Cir. 2021).

Andrzejewski argues that regardless of whether his actions passed the

bounds of a Terry stop, they were justified because he had both “a reasonable

suspicion of possible criminal activity” and “probable cause to detain [Soukaneh]

17 and search his person and his vehicle” once he was made aware of the presence of

a gun in the vehicle—even absent any articulable basis to question the permit’s

validity. Appellant’s Br. at 14 (emphasis added). We disagree because the officer’s

actions here exceeded the limitations of a Terry stop, and there was no probable

cause to justify an arrest.

To begin, we agree with Andrzejewski’s counsels’ oral representations in

the district court and on appeal that his conduct could not be justified as a valid

Terry stop. That is because, as correctly held by the district court, Andrzejewski’s

handcuffing and prolonged detention of Soukaneh went past the contours of a

Terry stop and stepped into the territory of a de facto arrest. See Soukaneh,

, at *3–4. Here, even if Andrzejewski “properly initiated” contact with

Soukaneh, either based on a purported traffic violation or as a proper consensual

encounter, and even accepting, arguendo, that his removal of Soukaneh from the

car was temporarily permissible after he learned there was a gun in the vehicle

within Soukaneh’s reach 6—an investigatory stop nonetheless “may ripen into a de

6We recognize that, if the traffic stop itself was valid, Andrzejewski may have “had a basis for asking [Soukaneh] to step out of the car.” United States v. Hussain,

(2d Cir. 2016); see also Knowles v. Iowa,

, 117–18 (1998) (noting that “the

18 facto arrest,” which then “must be based on probable cause.” United States v. Fiseku,

(2d Cir. 2018) (internal quotation marks omitted); see also United

States v. Sharpe,

(1985) (acknowledging that at some point an

investigative stop can transform into a de facto arrest and that this determination

must consider the “law enforcement purposes to be served by the stop” and “the

time reasonably needed to effectuate those purposes”).

Analysis of the relevant factors confirms that the detention here constituted

a de facto arrest. In determining whether a Terry stop is so intrusive as to become

a de facto arrest, this Court considers:

(1) the length of time involved in the stop; (2) its public or private setting; (3) the number of participating law enforcement officers; (4) the risk of danger presented by the person stopped; and (5) the display or use of physical force against the person stopped, including firearms, handcuffs, and leg irons.

Fiseku,

(quoting United States v. Newton,

(2d Cir.

2004)). While “[n]o one of these factors is determinative,” we have held that “to

satisfy the reasonableness standard, officers conducting stops on less than

concern for officer safety” exists even “in the case of a routine traffic stop”). But, as discussed infra, that alone would not provide the probable cause necessary to justify the de facto arrest that ensued.

19 probable cause must employ ‘the least intrusive means reasonably available’ to

effect their legitimate investigative purposes.” Newton,

(quoting

Florida v. Royer,

(1983) (plurality opinion)).

The present case satisfies nearly all of the de facto arrest factors. First,

Andrzejewski left Soukaneh detained in the police cruiser for approximately 30

minutes after the search of the car had concluded. The record is unclear about the

sequence of Andrzejewski’s actions and exactly how long Soukaneh was detained.

But it is a reasonable inference based on the record that Soukaneh remained

detained for longer than the time it took Andrzejewski to “address [any] traffic

violation that warranted the stop,” “attend to related safety concerns,” or even

confirm the validity of the firearms permit if he had reason to question its validity.

Rodriguez v. United States,

(2015). That is because Andrzejewski

(1) does not refute Soukaneh’s assertions that he detained Soukaneh in the cruiser

for “far longer than” the length of time it took to confirm that Soukaneh possessed

a valid pistol permit, Joint App’x at 36, and “left [Soukaneh] sitting handcuffed in

the squad car for another half hour” after the search of the entire car and trunk

had ended, id. at 39; (2) does not provide an estimate for how long the license check

took as a means of providing a possible alternate justification for the length of the

20 detention; and (3) performed wide-sweeping searches of the vehicle. See

Rodriguez,

(underscoring that the scope of a detention in the context

of a traffic or investigatory stop must be “carefully tailored to its underlying

justification,” and that “it is appropriate to examine whether the police diligently

pursued the investigation”) (alterations and internal quotation marks omitted).

Second, while Andrzejewski was the only police officer who handcuffed

and placed Soukaneh in the cruiser, seven to ten officers soon arrived and

witnessed the duration of Soukaneh’s detention. Cf. Patterson,

(determining, in a case where two individuals were detained by four officers, that

having police officers outnumber suspects “only modestly” may be a reasonable

protective measure that does not necessarily manifest a de facto arrest).

Third, regarding the risk of danger, as we explain more fully below,

Soukaneh complied with Andrzejewski’s requests and presented his facially valid

firearms license immediately before he disclosed the presence and location of the

gun. Soukaneh’s choice to volunteer that information unprompted cuts against a

reasonable officer finding that Soukaneh posed a heightened risk of danger.

Whether a suspect was compliant or, conversely, exhibited suspicious behavior is

a relevant factor when assessing reasonableness—the touchstone of the Fourth

21 Amendment analysis. See, e.g., Florida v. J.L.,

, 270–71 (2000)

(holding that a Terry frisk predicated on an anonymous tip that someone matching

J.L.’s description was carrying a gun was not supported by reasonable suspicion

because the tip lacked sufficient “indicia of reliability” as to the illegality of J.L.’s

conduct, and the officers never observed any furtive movement or otherwise

suspicious behavior from J.L. before Terry frisking him). Indeed, many of the

instances in which we have found a reasonable apprehension of danger have been

cases where the driver was uncooperative and seemingly attempting to conceal

the presence of a weapon. See United States v. Muhammad,

, 123–24

(2006) (noting that a lack of cooperation alone is insufficient for a Terry frisk, but

that in combination with a driver’s suspicious and evasive behavior, and known

history of fleeing, justified the Terry frisk of a bag within the driver’s reach); see

also United States v. Paulino,

(2d Cir. 1988) (holding that “furtive

movement provided a legal basis for the protective search”).

Fourth, and perhaps most importantly, we consider the display or use of

physical force against the person stopped. Andrzejewski “dragged” Soukaneh out

of the car and handcuffed him before “shov[ing]” him in the cruiser and leaving

Soukaneh in handcuffs for the remainder of his detention. Joint App’x at 37–38.

22 “Handcuffs are generally recognized as a hallmark of a formal arrest.” Newton,

(citing New York v. Quarles,

(1984)); see also

California v. Beheler,

(1983) (“[T]he ultimate inquiry is simply

whether there is a ‘formal arrest or restraint on freedom of movement’ of the

degree associated with a formal arrest.”) (quoting Oregon v. Mathiason,

(1977)). Under these circumstances, Andrzejewski’s prolonged detention

of Soukaneh in the patrol car constituted an arrest for which probable cause was

required.

2.

More demanding than reasonable suspicion, “[p]robable cause to arrest

exists when the officers have knowledge of, or reasonably trustworthy information

as to, facts and circumstances that are sufficient to warrant a person of reasonable

caution in the belief that an offense has been or is being committed by the person

to be arrested.” Zellner v. Summerlin,

(2d Cir. 2007); see also Illinois

v. Gates,

, 230–38 (1983) (explaining that probable cause determinations

should be made by assessing the totality of the circumstances).

In his principal brief, Andrzejewski alleges no other basis for suspicion of

criminal activity after the stop and pat down beyond the presence of the licensed

23 gun. 7 Thus, in order for Andrzejewski to have probable cause to arrest, he would

have had to possess evidence sufficient to warrant a person of reasonable caution

in believing that Soukaneh unlawfully possessed the gun, presumably in violation

of state law making it a crime to possess a gun inside a vehicle without a permit.

See

(a) (“Any person who knowingly has, in any vehicle . . .

any weapon, any pistol or revolver for which a proper permit has not been

issued . . . shall be guilty of a class D felony[.]”). According to Andrzejewski’s

argument on appeal, he detained Soukaneh to verify the validity of the gun

permit—ostensibly to determine whether Soukaneh possessed the gun in violation

of the law. In response, Soukaneh argues that “no reasonable police officer could

7 After raising the argument on appeal for the first time in his reply brief, Andrzejewski asserted at oral argument that in addition to Soukaneh’s possession of a firearm, his presence in a vehicle with the engine running in a high crime area known for drug transactions permitted Andrzejewski’s actions. Putting aside the fact that this is a shift in Andrzejewski’s theory to justify Soukaneh’s detention, this context also does not provide Andrzejewski with the requisite probable cause necessary to justify an arrest. While it is true that an area’s characteristics may be a relevant factor in a totality-of-the- circumstances analysis for assessing the reasonableness of an officer’s actions, a location’s reputation as a high crime area alone is typically not enough to suggest reasonable suspicion, let alone probable cause. See Holeman v. City of New London,

(2d Cir. 2005) (stating that driving in a circuitous route in a high crime area at 4:30 a.m. was not enough, standing alone, to support reasonable suspicion). Here, Andrzejewski identifies, and we have found, nothing else in the record that suggests anything unlawful about Soukaneh’s licensed possession of the gun.

24 entertain” the belief that “a facially valid firearms permit [i]s meaningless unless

and until the issuing authority confirm[s] that it [i]s legitimate.” Appellee’s Br. at

12. Absent something indicating to the officer that the permit might not have been

facially valid, or some other evidence of criminality or danger to the officer, we

agree with Soukaneh. Accordingly, we conclude that Andrzejewski did not have

the requisite probable cause to justify Soukaneh’s detention simply because he was

notified of the presence of a gun and presented with the accompanying permit.

The desire to confirm the legitimacy of the facially valid firearms permit that

Soukaneh presented did not—with nothing more—provide Andrzejewski with

probable cause for the half-hour or longer handcuffed detention that occurred. It

is uncontested that Soukaneh presented Andrzejewski with a gun license, the

legitimacy of which Andrzejewski himself admits he had no reason to question.

Moreover, Andrzejewski concedes that he was informed of the facially valid

license before Soukaneh told him that he had a gun and specified its location.

Andrzejewski does not allege that the permit appeared abnormal in any fashion

or that Soukaneh engaged in any suspicious or threatening behavior. On the facts

before us, Andrzejewski does not provide an articulable reason why he, or any

other reasonable officer, could conclude that there was probable cause to believe

25 that Soukaneh possessed his firearm unlawfully in violation of Section 29-38(a).

To find otherwise would consign those validly carrying firearms pursuant to a

license to automatic detention because it would effectively presume that gun

permits are invalid until proven valid, or that lawfully owned guns are per se

contraband until proven otherwise. Such a finding would effectively render

armed individuals’ Fourth Amendment rights meaningless when they are

lawfully carrying firearms. 8 See J.L., 529 U.S. at 272–73 (refusing to create a

“firearm exception” to justify a Terry stop and frisk to confirm the legality of a

gun). 9 Our sister circuits that have confronted this issue agree that we cannot

8 The potential effect of Andrzejewski’s argument on the rights guaranteed by the Second Amendment is worth noting, notwithstanding that those rights are not in dispute for purposes of this appeal. While not every lawful possession of a firearm will trigger Second Amendment protection, some will. Regardless of whether the Second Amendment applies, however, individuals lawfully possessing a weapon should not be penalized by having a diminishment of their Fourth Amendment rights. See, e.g., Northrup v. City of Toledo Police Dep’t,

(6th Cir. 2015) (“To allow stops in this setting would effectively eliminate protections for lawfully armed persons.” (internal quotation marks omitted)); see also Br. for National Rifle Association as Amicus Curiae at 12 (highlighting that the burden is generally on law enforcement to show that a permit is invalid, and that the possession of a facially valid permit, absent more, is not enough for a Terry stop). 9 In J.L., the Supreme Court stated that the safety of the police and public does not justify a firearm exception to the general rule barring investigatory stops and frisks on anonymous tips of unlawful gun possession.

, 272–73 (“[A]n automatic firearm exception to our established reliability analysis [for reasonable suspicion] would

26 assume reasonable suspicion whenever someone possesses a gun in permit-to-

carry and permit-less states. 10 And if the presence of a licensed gun cannot per se

establish reasonable suspicion, then it certainly cannot establish probable cause.

For those reasons and on this record, Andrzejewski did not have probable

cause to handcuff and detain Soukaneh in his police cruiser for at least half an hour

based on Soukaneh’s disclosure of a gun and facially valid permit, and thus, he

violated Soukaneh’s Fourth Amendment right to be free from unreasonable and

warrantless arrest and detention.

rove too far.”). While the facts here may differ, the principle stated by the Court is transferrable. 10 See, e.g., United States v. Lewis,

(3d Cir. 2012) (holding that where it “is lawful for certain individuals . . . to carry a firearm provided that a license is obtained,” “possession of a firearm . . . , in and of itself, does not provide officers with reasonable suspicion to conduct a Terry stop”); United States v. Black,

(4th Cir. 2013) (finding that the driver’s “lawful display of his lawfully possessed firearm [could not] be the justification for [his] detention,” even in a high crime area); Northrup,

, 1132–33 (holding that an individual carrying a firearm in a state that allows open carry cannot be presumptively suspicious to justify a stop and frisk); United States v. King,

(10th Cir. 1993) (“In a state such as New Mexico, which permits persons to lawfully carry firearms, the government’s argument [that the presence of a firearm justifies detention] would effectively eliminate Fourth Amendment protections for lawfully armed persons.”); see also United States v. Brown,

(9th Cir. 2019) (holding that even where a license is required for concealed carry, a tip that someone is carrying a gun creates “a very weak inference that” it is unlicensed and unlawful).

27 3.

Alternatively, Andrzejewski claims that even if he did not have the requisite

probable cause, Soukaneh’s right to be free from the unlawful detention was not

clearly established under the existing case law, so that a reasonable officer in

Andrzejewski’s place could not have known that his behavior was unlawful.

Given the prolonged length and nature of the handcuffed detention inside the

patrol car, and in the absence of any suspicious or non-compliant behavior, we

disagree. Fourth Amendment search and seizure case law existing at the time of

Andrzejewski’s actions certainly provided guidance on how a reasonable officer

should proceed in this context.

The analysis under this element “turns on the objective legal reasonableness

of the action, assessed in light of the legal rules that were clearly established at the

time it was taken.” Colvin v. Keen,

(2d Cir. 2018) (quoting Pearson,

). To assess these considerations, we ask: “(1) whether the right in

question was defined with ‘reasonable specificity’; (2) whether the decisional law

of the Supreme Court and the applicable circuit court support the existence of the

right in question; and (3) whether under preexisting law a reasonable defendant

official would have understood that his or her acts were unlawful.” Matusick v.

28 Erie Cnty. Water Auth.,

(2d Cir. 2014) (quoting Ying Jing Gan v. City

of New York,

(2d Cir. 1993)).

We apply an “arguable” probable cause standard to assess the officer’s

actions vis-à-vis any rights at issue. Arguable probable cause “exists when a

reasonable police officer in the same circumstances and possessing the same

knowledge as the officer in question could have reasonably believed that probable

cause existed in the light of well-established law.” Lee v. Sandberg,

(2d Cir. 1997) (internal quotation marks omitted); see also Rupp v. Buffalo,

(2d Cir. 2024) (“[Q]ualified immunity is available where officers of

reasonable competence could disagree on whether the probable cause test was

met, i.e., where the existence of probable cause for an arrest was at least reasonable

and arguable, even if mistaken.” (internal citations and quotation marks omitted)).

Andrzejewski argues that due to the “absence of case law on point from this

Circuit [or] the Supreme Court, a reasonable officer could believe that he or she

was justified in detaining an armed individual, who had been lawfully pulled over

for a traffic violation, long enough to confirm that the individual had a valid pistol

permit.” Appellant’s Br. at 9. But Andrzejewski’s characterization of Soukaneh’s

detention neglects to account for its forcible nature and protracted length, as well

29 as the admitted absence of reason for questioning the permit’s facial validity in the

first instance. Additionally, Andrzejewski makes no argument whatsoever that

the detention was only as long and as intrusive as reasonably necessary to confirm

the validity of the gun permit. Indeed, the absence of any evidence or assertions

about the timing or duration of the license check is conspicuous. Accordingly, we

must assess whether it was clearly established that Andrzejewski violated

Soukaneh’s Fourth Amendment rights when he detained Soukaneh in handcuffs,

in the back of a police cruiser, for over half an hour, in the context of a traffic stop,

and when: (1) Soukaneh was compliant with the officer’s requests, (2) Soukaneh

engaged in no suspicious or evasive behavior, (3) Soukaneh volunteered that he

held a facially valid firearms license and disclosed the presence and location of a

gun in his possession pursuant to that license, and (4) Andrzejewski provided no

other basis for a finding of probable cause as to any other offense to support the

ensuing intrusions.

Although Andrzejewski is correct that there is no factual twin for this case

in the Second Circuit or Supreme Court, the standard for the clear establishment

of a right is not so exacting. While “clearly established law should not be defined

at a high level of generality for purposes of qualified immunity analysis,” “it is

30 error to demand [the] specificity” of a factual twin. Collymore v. Krystal Myers, RN,

, 29–30 (2d Cir. 2023) (internal quotation marks omitted). Indeed, this

Court has held that “the absence of legal precedent addressing an identical factual

scenario does not necessarily yield a conclusion that the law is not clearly

established” because “the absence of a reported case with similar facts [could]

demonstrate[] nothing more than widespread compliance with the well-

recognized applications of the right at issue on the part of government actors.”

Johnson v. Newburgh Enlarged Sch. Dist.,

, 251 (2d Cir. 2001) (internal

quotation marks omitted); see also Safford Unified Sch. Dist. No. 1 v. Redding,

, 377–78 (2009) (“The unconstitutionality of outrageous conduct obviously will

be unconstitutional, this being the reason, as Judge Posner has said, that the easiest

cases don’t even arise.” (alterations and internal quotation marks omitted)). Thus,

“[f]or a right to be clearly established for purposes of qualified immunity, it is

sufficient if decisions of the Supreme Court or of the appropriate circuit have

defined the contours of the right with reasonable specificity.” Tellier v. Fields,

(2d Cir. 2000) (internal quotation marks omitted); see also City of

Escondido v. Emmons,

(2019) (“[T]he clearly established right must

be defined with specificity.”).

31 We conclude that the ubiquity of Fourth Amendment protections

established in the plethora of traffic stop cases put Andrzejewski on notice of the

protected rights at issue during his de facto arrest of Soukaneh in the absence of

probable cause. We have made clear that “a constitutional right to be free from

arrest without probable cause, as well as a constitutional right to be free from

unreasonably prolonged or intrusive investigative detention” are themselves the

clearly established rights that justify the denial of qualified immunity. Gilles v.

Repicky,

(2d Cir. 2007) (denying qualified immunity where the

defendant officer had “not demonstrated that it was objectively reasonable for him

to believe that his conduct,” including a prolonged investigative detention, “did

not violate these [clearly established Fourth Amendment] rights”). The logic of

Gilles applies with equal force to the facts before us. That is because here

(1) Andrzejewski did not, for the reasons outlined, have even arguable probable

cause to handcuff, detain, and conduct a de facto arrest of Soukaneh for the

prolonged period at issue, and (2) it is clearly established in our case law that there

must be probable cause of a crime to permit an intrusion of this kind on a person’s

freedom.

It “has long been the law that ‘an investigative detention must be temporary

32 and last no longer than is necessary to effectuate the purpose of the stop.’”

at

245 (quoting Royer,

). A reasonable officer in Andrzejewski’s

position who had a desire to check the validity of an individual’s licensing

information would know that the circumstances here could barely justify a Terry

stop, let alone a prolonged, handcuffed detention. See United States v. Gomez,

, 88–89 (2d Cir. 2017) (“[O]fficers may conduct certain ordinary inquiries

related to a traffic stop, such as checking the driver’s license . . . without

independent reasonable suspicion of other crimes. However, tasks not related to

the traffic mission . . . are unlawful if they prolong the stop absent independent

reasonable suspicion.” (internal citations and quotation marks omitted)). Even in

the absence of a case in the specific context of verifying a gun permit during a

traffic stop, a reasonable officer in Andrzejewski’s position would know that this

type of detention was unwarranted where there was no reasonable or asserted

basis for questioning the legitimacy of the gun permit, where Soukaneh did not

engage in any suspicious or non-compliant behavior, and where there were no

facts to support the inference that he was engaging in criminal activity. This is not

a case in which there were circumstances, however insufficient to establish

probable cause, that might suggest to a reasonable officer that there was something

33 illegal about a suspect’s possession of a weapon. Here, there was literally no

reason to believe that Soukaneh’s possession of the gun—whose presence

Soukaneh freely acknowledged, and for which he provided a facially valid permit

that Andrzejewski had no reason whatsoever to believe was forged or had been

revoked—was unlawful.

Moreover, it is well-established that “the investigative methods employed

should be the least intrusive means reasonably available to verify or dispel the

officer’s suspicion in a short period of time.” Gilles,

(quoting Royer,

). However, the record here, taken in the light most favorable to

Soukaneh, supports a finding that the detention continued far longer than was

necessary to effectuate any of Andrzejewski’s alleged reasons for his actions

(legitimate and not)—demonstrating that he did not conduct the stop efficiently

or in the least intrusive way possible. In the absence of facts suggesting some

irregularity to justify the nature of the detention, the constitutional question and

the unreasonableness of Andrzejewski’s actions here are “beyond debate” for a

reasonable officer in Andrzejewski’s position. Ganek v. Leibowitz,

(2d Cir. 2017) (quoting al-Kidd, 563 U.S. at 741). This is not a close case, about

which reasonable officers could differ. The law as it stood at the time of the events

34 in question left no doubt that a person in possession of a firearm and a facially

valid permit for that firearm had a clearly established right to be free from the kind

of forcible and prolonged detention to which Soukaneh was subjected, absent any

objective reason to suspect that the permit was forged or otherwise invalid.

For those reasons, we hold that Andrzejewski’s alleged conduct violated

Soukaneh’s constitutional rights where the detention constituted a de facto arrest

without probable cause, and where case law from the Supreme Court and this

Circuit clearly established Soukaneh’s right to be free from such a detention under

the circumstances. We therefore affirm the judgment of the district court to deny

Andrzejewski’s motion for summary judgment and decline to find that

Andrzejewski has qualified immunity as to his detention of Soukaneh.

B. The Searches of Soukaneh’s Vehicle and Trunk

Andrzejewski argues that there was no constitutional violation as to his

search of the interior of Soukaneh’s car because it was a lawful Terry frisk of a car.

He further argues that the warrantless search of Soukaneh’s trunk was lawful

under the automobile exception to the warrant requirement. However, we reject

Andrzejewski’s contentions that either of these searches were justified and that

they did not violate clearly established rights. We address each of Andrzejewski’s

35 arguments in turn.

1.

In addition to being necessary for Soukaneh’s de facto arrest, 11 probable

cause was also needed for the warrantless searches of his car. See Collins v. Virginia,

(2018). As discussed above, no such probable cause existed.

However, another inquiry for determining the lawfulness of a vehicle search

during a traffic stop is whether an officer had a reasonable apprehension of

danger—which may permit a Terry frisk of the automobile. 12 See Michigan v. Long,

(1983) (“When the officer has a reasonable belief that the

individual whose suspicious behavior he is investigating at close range is armed and

11 Because Soukaneh was not lawfully arrested, the district court was correct to conclude that Andrzejewski’s search of the interior of the car cannot be considered a lawful search incident to an arrest. Soukaneh,

, at *5; see Arizona v. Gant,

, 343–44 (2009) (concluding that a vehicle search incident to lawful arrest is justified “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle,” and that at times, “the offense of arrest will supply a basis for searching . . . an arrestee’s vehicle” (internal quotation marks omitted)). 12A Terry frisk of a car is a limited search for weapons, without a warrant and without probable cause, when there is a reasonable apprehension of danger in connection with a Terry stop—a lawful custodial interrogation that does not rise to the level of an arrest. See Terry,

; see also Maryland v. Buie,

, 334 n.2 (1990) (“Even in high crime areas, where the possibility that any given individual is armed is significant, Terry requires reasonable, individualized suspicion before a frisk [of persons or areas] for weapons can be conducted.”).

36 presently dangerous to the officer or to others, it would appear to be clearly

unreasonable to deny the officer the power to take necessary measures to

determine whether the person is in fact carrying a weapon and to neutralize the

threat of physical harm.” (emphasis added) (internal quotation marks omitted)).

Andrzejewski argues that the Supreme Court’s holding in Michigan v. Long

precludes us from finding that he violated Soukaneh’s constitutional rights when

he searched the interior of Soukaneh’s car because of the known presence of the

gun. However, a straightforward analysis of Long leads us to conclude that this is

not correct—the presence of a lawful weapon alone does not automatically make

someone suspicious, nor a situation dangerous, such as would justify the Terry

frisk of a car.

Unlike here, in Michigan v. Long, the officers had a reasonable apprehension

of danger, based not just on the presence of a weapon, but rather on the discovery

of an undisclosed weapon within the driver’s reach and the driver’s uncooperative

behavior. See 463 U.S. at 1049–50. After driving erratically, swerving his vehicle

into a ditch, and being stopped by the police, the driver was unresponsive to the

officers’ requests for his license and registration—which indicated to them that he

might have been under the influence of alcohol or drugs.

at 1035–36. The

37 officers “observed a large hunting knife on the floorboard of the driver’s side of

the car” through an open door of the vehicle. Id. at 1036. At that point, the officers

pursued a Terry frisk of the driver and the vehicle, “restricted to those areas to

which Long would generally have immediate control, and that could contain a

weapon.” Id. at 1050.

On those facts, the Supreme Court held that:

the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officers in believing that the suspect is dangerous and that the suspect may gain immediate control of weapons.

Id. at 1049 (emphasis added) (quoting Terry,

). In other words, Long

held that a Terry vehicle frisk can be lawful when the police officer reasonably

believes on the basis of specific and articulable facts that the suspect (1) is

dangerous, and (2) may gain immediate control of weapons.

On the facts before us, the requirements in Long are not satisfied. Indeed,

the only overlap in facts between the two cases is the presence of a weapon, and

Long certainly does not stand for the proposition that the presence of a weapon

alone—regardless of the surrounding circumstances—can give rise to a reasonable

38 apprehension of danger that would justify a full search of a car.

Andrzejewski did not have a reasonable belief that Soukaneh was

dangerous, because a traffic infraction—even one with the presence of a lawfully

possessed weapon—without more, is insufficient to satisfy the dangerousness

element of Long. In United States v. Hussain,

(2d Cir. 2016), we

held that a stop for a traffic violation did not justify a vehicle search, even though

the driver was significantly non-compliant. In Hussain, after the police pulled over

the driver, the driver was uncooperative, moved unnaturally towards his car

console, and admitted to the police that he had a pocketknife.

at 310–11. After

frisking the driver and finding the pocketknife, the police then searched his car

and discovered a loaded gun.

. This Court nevertheless held that despite

the driver’s suspicious conduct and initial noncompliance with police questioning,

“the specific facts articulated by the officers fail[ed] to demonstrate that their fear

of immediate danger was objectively reasonable so as to justify a full field-type

search of [the driver’s] car” after the pat down.

at 314–15. The circumstances

in Soukaneh’s case are even less supportive of a reasonable perception of danger

to justify a full search of the vehicle than what was rejected in Hussain, given

Soukaneh’s voluntary disclosure of the firearm and presentation of a facially valid

39 firearms permit, as well as the absence of any suspicious behavior.

Thus, since Andrzejewski had no reason to believe there was anything

illegitimate about the permit or the weapon, and since Soukaneh had not

otherwise acted suspiciously, Andrzejewski had no reason to prolong the stop

further to check the validity of the facially proper gun license and no basis to think

that Soukaneh presented any danger. Moreover, even assuming that

Andrzejewski could detain Soukaneh briefly to run the permit check, that would

at most justify simply moving Soukaneh away from the car so that he did not have

ready access to the gun. There was certainly no reasonable suspicion to believe

that the car contained any other weapon or contraband on these facts so as to

justify a search of the vehicle.

2.

Andrzejewski attempts to justify the search of the trunk by arguing that the

recovery of Soukaneh’s lawful gun provided probable cause to search the trunk

for other guns under the automobile exception. That justification fails.

“Under the ‘automobile exception’ to the Fourth Amendment warrant

requirement, police may conduct a warrantless search of a readily mobile motor

vehicle if probable cause exists to believe the vehicle contains contraband or other

40 evidence of a crime.” United States v. Gaskin,

(2d Cir. 2004) (citing

Pennsylvania v. Labron,

(1996)). But the “scope of a warrantless

search” justified by the automobile exception “is defined by the object of the search

and the places in which there is probable cause to believe that it may be found.”

California v. Acevedo,

, 579–80 (1991) (quoting United States v. Ross,

(1982)). That is to say that the automobile exception does not give

carte blanche to search any place in a car—it authorizes a search only for the subject

of the search and only in the areas the officer has probable cause to believe

contraband or evidence of a crime exists. See, e.g.,

(“Probable cause to believe

that a container placed in the trunk of a taxi contains contraband or evidence does

not justify a search of the entire cab.” (quoting Ross,

)).

The recovery of Soukaneh’s lawful gun did not justify the warrantless

intrusion into the trunk. Andrzejewski argues that once he retrieved the gun

identified by Soukaneh in the driver’s side door compartment, he had the requisite

probable cause to search the trunk for contraband. But the presence or retrieval of

the lawful firearm could not, and did not, provide probable cause to search for

contraband in the trunk, absent indicators of criminal activity. Andrzejewski

attempts to justify his actions by relying on cases in which the discovery of

41 contraband (e.g., the discovery of drugs) provided a foundation for probable cause

for a warrantless search under the automobile exception. But a lawfully owned

gun is not per se contraband. Andrzejewski provides no other basis for suspicion

that the trunk contained illegal weapons, or any evidence to suggest a crime was

afoot to justify his separate intrusion into the trunk.

For those reasons, Andrzejewski lacked the requisite arguable probable

cause to conduct a warrantless search of the interior of Soukaneh’s car, and

separately, his trunk.

3.

Last, we address whether Andrzejewski’s warrantless searches of

Soukaneh’s car and trunk violated clearly established Fourth Amendment rights

to be free from unreasonable searches. We hold that they did. The case law from

the Supreme Court and from this Court set forth in the preceding sections clearly

established, as of the time of Andrzejewski’s stop of Soukaneh, (1) that a

reasonable apprehension of danger is necessary to establish reasonable suspicion

warranting a Terry frisk of a vehicle subsequent to a car stop, and (2) that probable

cause that evidence of a crime will be found is necessary to justify a warrantless

search of a vehicle pursuant to the automobile exception.

42 Long itself clearly establishes the right to be free from Terry frisks of an

automobile absent reasonable suspicion that someone is dangerous and may

access a weapon. See McCardle v. Haddad,

(2d Cir. 1997) (“[T]he

Michigan v. Long Court made it clear that to validate a protective ‘area search’

incident to a Terry stop, the officer ‘must have an articulable suspicion that the

suspect is potentially dangerous.’” (quoting Long,

n.16)). And we

recently acknowledged this same principle—that the dangerousness sufficient to

support a warrantless search of an entire vehicle during a stop requires more than

the mere presence of a weapon—in Hussain. See 835 F.3d at 316–17. There, we

held that Hussain’s suspicious conduct, initial noncompliance, and presence of a

pocketknife, did not justify a full protective search of the vehicle based on

immediate danger to the officers, in part because Hussain “readily volunteered”

the presence of the knife when asked whether there were any weapons in the

vehicle.

The Supreme Court has also clearly articulated that an officer’s concern for

safety does not provide an unlimited justification for, or scope in, conducting

warrantless vehicular searches during a Terry stop. In Knowles v. Iowa, the Court

concluded that the officer’s search of the driver’s vehicle after issuing a traffic

43 citation was not permissible because “while the concern for officer safety [during

a routine traffic stop] may justify the ‘minimal’ additional intrusion of ordering a

driver and passengers out of the car, it does not by itself justify the often

considerably greater intrusion attending a full field-type search”—as seen in this

case.

. Although the Court acknowledged that various

circumstances could justify an expansion of a search, it also noted that each

expansion of a search requires its own justification, and that “the [general]

possibility that an officer would stumble onto evidence wholly unrelated to the

[traffic-related] offense” was not grounds upon which a full field search “based on

the concern for officer safety and destruction or loss of evidence” could proceed.

at 118–19. Accordingly, in the context of a Terry stop, the Court required that

each additional intrusion in the vehicle be supported by reasonable suspicion of

danger or probable cause for a crime (beyond the initial traffic crime or

misdemeanor).

at 118–19. This adds further support to the clearly established

right to be free from unreasonable vehicle searches during an officer’s stop of an

individual for a traffic violation—which permits minimal intrusion, but not the

greater intrusion of a full field-type search.

Long, Hussain, and Knowles provide examples of the longstanding guidance

44 on the relevant factors that police officers must consider before they can engage in

warrantless searches of vehicles incident to a traffic stop or arrest—i.e., the stopped

individual’s dangerousness, their access to a weapon, the justification necessary to

expand the scope of a warrantless search, etc. Those cases clearly establish that an

intrusion on a person’s Fourth Amendment rights must be necessary and must be

tailored spatially and temporally to the specific facts confronting an officer.

Moreover, an officer seeking to benefit from qualified immunity must be able to

articulate why the privacy intrusion went only as far as permissible and necessary.

Andrzejewski has provided no such explanation here.

Accordingly, we hold that Andrzejewski violated Soukaneh’s constitutional

rights when he searched the interior and trunk of Soukaneh’s vehicle, and that case

law from the Supreme Court and this Circuit clearly established Soukaneh’s right

to be free from an unreasonable search under the alleged circumstances. We

therefore affirm the judgment of the district court denying Andrzejewski’s motion

for summary judgment on the basis of the lawfulness of the searches or of qualified

immunity.

45 IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court

and REMAND the case for further proceedings consistent with this opinion.

46