REVISED NOVEMBER 13, 2002

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-10967

JEFFREY L. ESTEP,

Plaintiff - Appellant,

VERSUS

DALLAS COUNTY, TEXAS, ET. AL.,

Defendants

WILLIAM F. PEACE, CONLEY, OFFICER; J.C. QUILLEN,

Defendants - Appellees

Appeal from the United States District Court For the Northern District of Texas, Dallas Division

October 18, 2002

Before KING, Chief Judge, PARKER, Circuit Judge, and Ellison*,

* District Judge of the Southern District of Texas, sitting by designation.

1 District Judge.

PER CURIAM:

For the second time, Jeffrey L. Estep (“Estep”) appeals from

the district court’s grant of summary judgment in favor of

defendants William Peace, Officer Conley and J.C. Quillen. As was

the case during the initial appeal, the issue before us is whether

the district court properly granted summary judgment to the

defendants on qualified immunity grounds. For the following

reasons, we REVERSE IN PART and AFFIRM IN PART.

I. PROCEDURAL HISTORY

This case has an unusual procedural history to say the least.

In 1995, Estep filed this Section 1983 action against the

defendants-appellees for violating his right to be free from an

unreasonable search of his vehicle under the Fourth Amendment to

the United States Constitution. Estep alleged that the defendants-

appellees, three City of Garland, Texas police officers, conducted

an unlawful search of his vehicle after a routine traffic stop on

March 29, 1993.1 In October 1997, the district court granted

1 During the course of the search, the police discovered a pistol. Estep was placed under arrest for wrongfully carrying a weapon. Prior to his trial in Dallas County, Estep moved to suppress the pistol because the search had been conducted in violation of the Constitution. On September 7, 1993, Judge Molly Francis conducted a suppression hearing. After hearing testimony, Judge Francis ruled that the search was unconstitutional and suppressed all evidence obtained subsequent to the arrest. The

2 summary judgment to Officer Peace, Officer Quillen, and Officer

Conley on qualified immunity grounds. Estep appealed to our court.

On August 28, 1998, a separate panel issued an unpublished,

per curiam opinion which remanded the case back to the district

court to reconsider the defendants’ summary judgment motion in the

light of competent summary judgment evidence submitted by Estep.

The panel informed the district court that in making its second

ruling it should address whether the search was lawful and whether

such lawfulness is actionable under Section 1983 when all factual

inferences are made in favor of Estep.

On remand, the district court granted summary judgment to

Officer Conley, but denied summary judgment in favor of Officer

Peace and Officer Quillen because the record was insufficient to

determine whether Peace and Quillen were entitled to qualified

immunity. Not satisfied with this ruling, however, the officers

submitted new summary judgment motions without any additional

evidence. Estep failed to respond to the officers’ new summary

judgment motions.

In June 2001, the district court changed its mind and granted

summary judgment in favor of Officer Peace and Officer Quillen.

Unfortunately, in making its ruling, the district court failed to

state of Texas thereafter dismissed its criminal case against Estep.

3 address the issues that the previous panel instructed it to

resolve. Specifically, the court failed to consider all the

competent summary judgment evidence and never determined whether

the search of Estep’s vehicle was lawful. In July 2001, Estep once

again appealed to our court to contest the grant of summary

judgment.

Estep’s current appeal is now properly before us. At this

point (seven years after the complaint was filed and nine years

after the incident occurred ), it is time to conclusively resolve

whether Officer Peace and Officer Quillen are entitled to summary

judgment. While it would have been preferable for the district

court to have initially determined the lawfulness of the search, it

did not. Therefore, we will undertake this task.

II. THE FACTS

Viewing the competent summary judgment evidence in the light

most favorable to Estep, the following occurred on March 29, 1993.

Estep was traveling in a 1988 Ford pick-up truck on Highway 66 near

Rowlett, Texas when he was pulled over by Officer Peace for going

47 mph in a 35 mph speed zone.2 After stopping his truck on the

2 During the course of pre-trial proceedings, Estep submitted a verified response to a magistrate judge’s interrogatory contesting that he had been speeding. However, the previous panel noted that Estep had abandoned that argument during his initial appeal. Thus, our analysis of this case proceeds on the determination that Officer Peace properly stopped Estep for a

4 side of the road, Estep exited his vehicle with driver’s license

and proof of insurance in hand to give to Officer Peace. As Estep

stood by his truck, Officer Peace approached and initiated the

first words. Officer Peace asked “Do you have a gun in the car?”

Estep hesitated a second and said “No. Why do you ask?” Estep then

asked Officer Peace why he had been stopped. Officer Peace did not

answer Estep’s question, but asked again “Do you have a gun in this

vehicle?” Estep said “No” but then told Officer Peace that he had

mace on his key chain. Estep then took his keys from the ignition,

showed Peace the mace, and asked Peace if he considered mace a

weapon. Peace said no, but again told Estep that he better tell

him if he had a gun in the vehicle. Estep then said he did not

have a gun and asked again why he had been stopped.

At that point, Officer Peace asked for Estep’s license and

insurance registration and told Estep to stay in the vehicle.

Officer Peace then called for backup.3 Subsequently, Officer

speeding violation. 3 In Peace’s affidvait, he states that he called for backup because he believed that Estep had a weapon and was worried that Estep would use the weapon. Peace stated that he feared he was in danger because (1) Estep’s vehicle contained an NRA sticker, camoflauge material, and hunting equipment inside it; (2) Estep had waved the mace at him; (3) Estep had not answered his questions; and (4) Estep claimed his constitutional rights were being violated. However, Estep denies that he had hunting equipment inside his car, claims that he merely showed Officer Peace the can of mace, and asserts that he did not inform Peace that his

5 Quillen and Conley arrived on the scene. Officer Peace told

Quillen that he felt there was a weapon in the vehicle. However,

Peace did not explain to Quillen why he felt there was a weapon in

the vehicle or why he felt the situation was dangerous. He just

told Quillen that Estep had denied having a pistol, but that

something about the situation made him nervous.

Thereafter, Officer Peace summoned Estep from his vehicle and

they proceeded to the back of Estep’s truck. Officer Peace

informed Estep that he had been stopped for speeding. While Estep

signed the citation, Quillen began to search the inside of Estep’s

vehicle even though Estep protested that the search violated his

constitutional rights. During the search, Quillen looked under the

back seat of the truck and found a case. He opened the case and

discovered the pistol.

Officer Peace subsequently placed Estep under arrest and took

Estep to the police car. While sitting in the police vehicle,

Peace admitted to Quillen (in Estep’s presence) that the NRA

sticker was what tipped him off to the weapon in the vehicle.

III. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under

because Estep

appeals from a final decision of the district court. We review the

constitutional rights were being violated until the search of his vehicle commenced.

6 district court's grant of summary judgment de novo, applying the

same substantive standard set forth in Fed.R.Civ.P. 56(c). See

Horton v. City of Houston,

,(5th Cir. 1999), cert.

denied,

(1999).

IV. ANALYSIS

A. Fourth Amendment Violation

The Supreme Court reiterated last term in Saucier v. Katz,

, 201 (2001) that the threshold question to be answered

when ruling upon the qualified immunity issue is: “[t]aken in the

light most favorable to the party asserting the injury, do the

facts alleged show the officer’s conduct violated a constitutional

right.” Thus, as a threshold matter, we must decide whether the

alleged facts, viewed in the light most favorable to Estep, show

that Estep’s constitutional rights were violated.

The constitutional right at stake in this case is Estep’s

right to be free from an unreasonable search of his vehicle. The

constitutional principle applicable to this case is found in

Michigan v. Long,

(1983). In Long, the Supreme Court

held that a warrantless search of the passenger compartment of a

vehicle does not violate the Fourth Amendment if the search is

conducted to protect the officer’s safety. Specifically, the Long

court stated that the:

search of the passenger compartment of an

7 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 rationale inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of the weapon.

.

Thus, for purposes of determining whether the Fourth Amendment

was violated, the question is: was it reasonable for Officer Peace

to think Estep was dangerous and might gain immediate control of a

weapon based upon (1) Estep’s vehicle containing an NRA sticker;

(2) Estep’s vehicle containing camoflauge gear; (3) Estep showing

Peace that he had a key chain which contained mace; (4) Estep

getting out of the car to hand Peace his identification; and (5)

Estep’s manner in answering Peace’s questions?

The answer to that question is no for several reasons. The

presence of the NRA sticker in the vehicle should not have raised

the inference that Estep was dangerous and that he might gain

immediate control of a weapon. Regardless of whether there is some

correlation between the display of an NRA sticker and gun

possession, placing an NRA sticker in one’s vehicle is certainly

legal and constitutes expression which is protected by the First

Amendment. A police officer’s inference that danger is afoot

because a citizen displays an NRA sticker in his vehicle presents

disturbing First and Fourth Amendment implications. See United

8 States v. Ramon,

(W.D. Tex. 2000) (holding

that in the absence of other sufficiently strong factors supporting

a stop, reliance upon the vehicular display of religious decals and

symbols as indicative of criminal activity likely violates the

First and Fourth Amendments). Although we do not definitively

decide today whether the presence of an NRA sticker could ever

contribute to a “reasonable suspicion” of danger calculus, we do

find that Peace’s utilization of the NRA sticker in his “reasonable

suspicion” of danger calculus was unwarranted when viewing the

facts in the light most favorable to Estep.

The only remaining factors alleged to indicate that Estep

posed a danger to Officer Peace is that Estep had a camoflauge

jacket in his vehicle, Estep stepped out of his vehicle to greet

Peace, Estep possessed a key chain with mace, and Estep was not

cooperative in answering Peace’s questions. We address each

alleged factor which remains in turn.

First, as far as we know, there is no law which prevents a

citizen from carrying a camoflauge jacket, carrying a key chain

with mace, or displaying an NRA sticker in his vehicle. Indeed, if

the presence of an NRA sticker and camoflauge gear in a vehicle

could be used by an officer to conclude he was in danger, half the

pickups in the state of Texas would be subject to a vehicle search.

Second, Estep’s decision to get out of his vehicle to greet Peace

9 and hand Peace his identification does not create the type of

individualized suspicion needed for an officer to conclude he is in

danger. See United States v. Hunt,

(5th Cir.

2001) (“[a]n individual’s decision to step out of his or her

vehicle to greet a detaining officer does not create the

individualized suspicion required for an automobile search”).

Third, we cannot accept the notion that mere possession of a key

chain with mace indicated that Estep posed a danger to Peace.4

Finally, Estep’s alleged uncooperativeness could not justify the

vehicle search because, viewed in the light most favorable to

Estep, it appears as though Peace, not Estep, was the individual

being uncooperative in the situation.5 Under Estep’s version of

the events, he cooperated until the search of his vehicle

commenced.

We realize that officers are called upon to make split-second

judgments in oftentimes tense situations. Moreover, we recognize

that the officer in the field is in a much better position than a

judge in his office to determine whether a situation truly places

the officer in danger. See Graham v. Connor,

, 397

4 Although Peace avers that Estep “waved” the mace at him, Esteps avers that he only “showed” Peace that he had a key chain with mace. 5 Peace would not tell Estep why he was being stopped.

10 (1989)(noting that because police officers are often forced to make

split-second judgments in tense situations the reasonableness of

the officer’s conduct should be judged from an on-scene

perspective). However, the contention that a search must be done to

protect a police officer must have some reasonable basis in fact.

We cannot rubber-stamp a search of a vehicle based on an officer’s

mere inchoate and unparticularized “hunch” that a citizen poses an

immediate threat of danger.6 See Maryland v. Buie,

, 334 n.2 (1990).

Here, viewing the facts in the light most favorable to Estep,

there were no specific articulable facts from which Officer Peace

could have lawfully concluded that he was in danger. The

contention that a citizen poses an immediate danger because he

possesses a key chain containing mace, camoflauge gear, an NRA

sticker, and does not answer questions in exactly the manner the

6 In the past, we have upheld warrantless searches of people and vehicles based upon the contention that the officer feared for his safety. See United States v. Maestas,

, 275 & 277 (5th Cir. 1991); United States v. Colin,

(5th Cir. 1991); United States v. Coleman,

(5th Cir. 1992); United States v. Baker,

(5th Cir. 1995); United States v. Michelletti,

(5th Cir. 1994). However, those cases involved a much greater degree of suspicious behavior than the instant case. In the cited cases, the individuals in question aroused suspicion because they were either intoxicated, already suspects of violent crimes, had made threatening statements, or had in plain view some evidence of a concealed weapon.

11 officer desires is not suspicious enough behavior to justify a Long

“frisk” of a vehicle. Thus, the search violated the Fourth

Amendment.7

B. Was the constitutional right clearly established?

Our determination that the Fourth Amendment has been violated

does not end our analysis, however. In some circumstances, an

officer will be entitled to summary judgment on qualified immunity

grounds even though the officer violated the citizen’s Fourth

Amendment rights. See Bigford v. Taylor,

(5th

Cir. 1990) (“the analysis of whether a warrantless search was

reasonable is not the equivalent of whether an officer

participating in an unreasonable search is entitled to qualified

immunity”). Consequently, the next step in our analysis is to ask

whether the contours of the constitutional right in question were

sufficiently clear that a reasonable officer would understand that

what he is doing violates that right. See Saucier, 533 U.S. at 202

(“[t]he relevant, dispositive inquiry in determining whether a

right is clearly established is whether it would be clear to a

7 We also note that Officer Peace’s contention that he was truly in fear for his safety is belied by the fact that he never searched Estep’s person for weapons. Moreover, assuming arguendo that Peace and Quillen did truly fear for their safety, the extension of the search to include closed containers located beneath the seat exceeded what would have been necessary to protect them from danger upon Estep’s reentry into the vehicle.

12 reasonable officer that his conduct was unlawful in the situation

he confronted”); Pierce v. Smith,

(5th Cir.

1997)(“For qualified immunity to be surrendered, pre-existing law

must dictate, that is, truly compel (not just suggest or allow a

question about), the conclusion for every like-situated, reasonable

government agent that what the defendant is doing violates federal

law in the circumstances”)(quoting from Lassiter v. Alabama A & M

University,

(11th Cir. 1994).

Although we have stated that the constitutional right at stake

is Estep’s right to be free from a vehicle search unless an officer

has a reasonable belief that he is in danger, we must further

evaluate whether the contours of that right were “clearly

established” in a more particularized way. Saucier, 533 U.S. at

202. As applied to this case, we must consider whether it is

clearly established law that a reasonable officer could not

conclude that he was in danger when faced with a citizen who exited

the car prior to the approach of the officer, continuously asked

why he had been stopped, showed the officer a key chain with mace,

possessed camoflauge gear, and possessed an NRA sticker?

There is no Fifth Circuit case which directly addresses

whether a reasonable officer could conclude, based on these

specific facts, that a citizen posed a danger and could gain

13 immediate control of a weapon.8 However, there does not have to be

a case directly on point for the law to be “clearly established.”

See Petta v. Rivera,

(5th Cir. 1998)(noting that

it is not necessary that prior cases have held the particular

action in question unlawful so long as the unlawfulness of the

action is apparent under pre-existing law). Our cases make clear

that a Long “frisk” of a vehicle is only constitutional if there

are specific, articulable facts from which a reasonable police

officer could believe he was in danger. In our view, the

constitutional violation in this case is clear-cut and obvious. No

reasonable police officer could have really believed that a search

was constitutional under the circumstances presented.

C. Entitlement to Qualified Immunity on Other Grounds

1. Officer Peace

The defendants argue that even if (1) the search was unlawful

and (2) no reasonable police officer could have believed a search

to be lawful, Officer Peace is entitled to qualified immunity

because he was not personally involved in the search. The district

court accepted this argument. We reject it.

8 Although no Fifth Circuit case addresses these exact facts, we reiterate that our Hunt decision clearly states that “[a]n individual’s decision to step out of his or her vehicle to greet a detaining officer does not create the individualized suspicion required for an automobile search.” Hunt,

.

14 The district court’s determination that Officer Peace was not

involved in the search relied upon Creamer v. Porter,

(5th Cir. 1985)(affirming dismissal from suit of a deputy who was

only a bystander to a search and seizure) and Watson v. Interstate

Fire and Casualty Co.,

(5th Cir. 1980)(holding that a

sheriff without any personal involvement was properly dismissed

from a § 1983 suit arising from an arrest and incarceration).

However, those cases are inapposite. At the time of the incident,

Officer Peace had 25 years of police experience. More importantly,

he was the officer on the scene who had the information from which

to determine whether Estep truly posed a danger. As such, he was

responsible for deciding whether the search could be conducted

lawfully or not. While the record does not show that Officer Peace

directly ordered Quillen to search the vehicle, it is clear that

Peace knew the search was transpiring (indeed, assuming arguendo

that Peace did not know Quillen was going to search the vehicle

prior to Quillen commencing the search, Estep informed him of that

fact the moment the search began). As we see it, Peace decided to

allow the search to go forward. Therefore, he is not entitled to

summary judgment on qualified immunity grounds.

2. Officer Quillen

With respect to Officer Quillen, the defendants contend that

even if (1) the search was unlawful and (2) no reasonable police

15 officer could have believed a search to be lawful, Officer Quillen

is entitled to qualified immunity because he reasonably relied upon

Officer Peace’s conclusion that the officers were in danger. We

also reject this argument.

An officer can conduct a Long “frisk” of a vehicle based on

information possessed by another officer. However, it is not

reasonable for an officer to conclude that it is lawful to make

such a search when his fellow officer does not provide him with any

specific articulable facts from which a reasonable officer could

think he was in danger. In the instant case, Peace told Quillen

that he thought they were in danger, but he did not tell Quillen of

any specific facts which would support that opinion. From the

record evidence, the most we can say is that Peace told Quillen

that (1) Estep had denied having a pistol; and (2) Estep had some

mace. Based upon such flimsy evidence, it was unreasonable for

Quillen to also conclude that they were in danger and that a search

could be lawfully conducted. Thus, Quillen is not entitled to

qualified immunity.

3. Officer Conley

The evidence indicates that Officer Conley truly was a

bystander in this matter. Thus, we affirm the grant of summary

judgment to Officer Conley.

V. CONCLUSION

16 Viewing the evidence in the light most favorable to Estep,

this is not a case where a reasonable officer could conclude he was

in danger. It is a case where an officer targeted a citizen and

allowed a vehicle search because the citizen had an NRA sticker in

his vehicle. For the aforementioned reasons, we reverse the grants

of summary judgment to Officer Peace and Officer Quillen on

qualified immunity grounds. We affirm the grant of summary

judgment to Officer Conley. This case is remanded back to the

district court for a trial.9

9 The motion filed by Estep requesting the appointment of counsel is hereby denied for lack of exceptional circumstances. See Cupit v. Jones,

(5th Cir. 1987).

17 KING, Chief Judge, concurring in part and dissenting in part:

In my view, the police officers in this case reasonably

suspected that Jeffrey Estep's vehicle contained a weapon. They

therefore did not violate Estep's Fourth Amendment rights in

searching his vehicle. Further, even if there were a Fourth

Amendment violation, these officers are entitled to qualified

immunity because reasonable officers in their positions would not

have thought the search was clearly illegal. I therefore dissent

from the panel's decision reversing summary judgment in favor of

Officers Peace and Quillen. I concur in the decision affirming

summary judgment in favor of Officer Conley.

I. FACTS

Because this case comes to our court on the defendants'

motion for summary judgment, we review the record in the light

most favorable to Estep. Taking the undisputed facts and the

disputed facts as Estep has alleged them, on March 29, 1993,

Officer William Peace was monitoring traffic from his squad car

using a radar unit when he noticed Estep was speeding. Officer

Peace stopped Estep and got out of his squad car to request

identification and proof of insurance. As Officer Peace

approached Estep's truck, he noticed camouflage material and what

18 he believed was hunting gear in the back of the truck. Peace

also noticed a National Rifle Association ("NRA") sticker on the

truck's back window.

Before Officer Peace reached the driver's side of the truck,

Estep exited the truck. Estep asserts that he "greeted [Officer

Peace] with respect" and was totally cooperative. Officer Peace

asked Estep if he had a weapon in the vehicle; Estep responded

that he did not and asked why he had been stopped. Officer Peace

again asked if there was a weapon in the truck; Estep dangled his

key chain in front of Officer Peace and asked if the mace

attached to his key chain was a weapon. At that point, Officer

Peace became concerned for his own safety, so he returned to his

patrol car and called for backup while Estep sat in his truck.

Officers J.C. Quillen and G.A. Conley arrived on the scene.

Officer Peace told them that he was nervous because he thought

Estep had a weapon in his truck. Officer Peace then had Estep

exit the truck. Officer Peace wrote Estep a citation for

speeding while Officer Quillen searched Estep's truck for a

weapon. While Officer Quillen searched the vehicle, Estep

complained that the officers were violating his constitutional

rights, particularly his constitutional right to carry a firearm.

Officer Quillen found a pistol in a case under the driver's side

seat, and Estep was arrested for unlawfully carrying a weapon.

19 II. DISCUSSION

We utilize a familiar two-part test for determining whether

a public official is entitled to qualified immunity. First, we

determine if the plaintiff's constitutional rights were violated.

Saucier v. Katz,

, 201 (2001). If the facts viewed

in the light most favorable to the plaintiff do not show a

constitutional violation, the officer is entitled to qualified

immunity. Id. Second, if a violation occurred, we consider

whether the rights violated were clearly established at the time

of the violation. Id. If the officer violated a clearly

established right, he is stripped of qualified immunity. Id. at

201-02.

A. Crediting Estep's Version of the Events, Was the Fourth

Amendment Violated?

The threshold question, then, is whether the facts viewed in

the light most favorable to Estep show that the officers violated

Estep's constitutional rights.

It is well-settled that a police officer may conduct a

protective search of a vehicle based on a reasonable suspicion

that there is a weapon in the vehicle. See Michigan v. Long,

(1983). Reasonable suspicion is a belief "based

on 'specific and articulable facts which, taken together with the

rational inferences from those facts'" indicate that "the suspect

20 is dangerous and the suspect may gain immediate control of

weapons."

(quoting Terry v. Ohio,

(1968)).

An officer's suspicion is judged using an objective standard:

"the issue is whether a reasonably prudent man in the

circumstances would be warranted in the belief that his safety or

that of others was in danger." Terry,

.

Reasonable suspicion requires only a minimum level of

objective justification, just "more than a hunch." United States

v. Michelletti,

(5th Cir. 1994) (en banc). As

we have noted, reasonable suspicion "is considerably easier for

the government to establish than probable cause." United States

v. Tellez,

(5th Cir. 1993). Finally, whether

reasonable suspicion existed is judged on the totality of the

circumstances. See United States v. Ibarra-Sanchez,

, 759 n.5 (5th Cir. 1999).

Even viewing the facts in the light most favorable to Estep,

Officers Peace, Quillen, and Conley have articulated sufficient

facts to support their suspicion that Estep's truck contained a

weapon. As Officer Peace approached the truck, he saw indicia of

gun ownership.10 See, e.g., United States v. Baker,

,

10 Without deciding the issue, the majority finds "disturbing First and Fourth Amendment implications" in the officer's reliance on, inter alia, an NRA sticker as a basis for his decision to search the vehicle. The question that the officer was faced with was whether Estep presented a danger because he possessed a weapon and, with respect, throwing an NRA sticker into the calculus (along with other factors) does not seem to me to affront the First Amendment. 21 694-95 (5th Cir. 1995) (finding that an officer's viewing .9

millimeter bullets on the floor of a suspect's vehicle supported

reasonable suspicion); see also United States v. Richards,

(8th Cir. 1992) (noting that presence of .22

caliber shells inside a suspect's vehicle supported an officer's

reasonable suspicion that the vehicle contained a weapon). Estep

exited his vehicle and starting moving towards Officer Peace,

which Peace interpreted as Estep trying to assert control over

the situation. See Michelletti,

(finding that

suspect's "purposeful strides" were a fact supporting an

officer's reasonable suspicion); United States v. Coleman,

(5th Cir. 1992) (finding that the fact that a

suspect "exited quickly" after a traffic stop supports an

officer's reasonable suspicion).11 When Officer Peace asked

Estep about weapons in the truck, Estep distracted Officer Peace

by waving his key chain at Officer Peace and asking if mace was a

weapon. Based on Estep's answers to his questions, Officer Peace

became concerned about the presence of weapons and requested

backup. In light of the totality of the circumstances, Officer

Peace was reasonable in concluding from Estep's behavior and the

11 The majority cites United States v. Hunt,

(5th Cir. 2001), for the proposition that a person's decision to exit his vehicle does not create reasonable suspicion. In Hunt, we held that the mere fact that a person exits his vehicle is not alone enough to constitute reasonable suspicion. See

. In this case, Officer Peace articulated other suspicious behavior aside from the fact that Estep exited his truck. 22 items spotted in Estep's truck that Estep may have a firearm.

Further, Officers Quillen and Conley appropriately relied on

Officer Peace's assessment of the situation. See Ibarra-Sanchez,

(finding that police officers need not have

personal knowledge of facts giving rise to reasonable suspicion;

one officer may rely on another officer's observations).

The finding that there was reasonable suspicion in this case

is in line with our precedents. Initially, it has long been

recognized that "investigative detentions involving suspects in

vehicles are especially fraught with danger to police officers."

Long,

; see also Adams v. Williams,

(1972) ("[T]he policeman making a reasonable investigatory

stop should not be denied the opportunity to protect himself from

attack by a hostile suspect."). Further, we have upheld vehicle

searches on similar facts in several cases.12 See, e.g., Baker,

(finding reasonable suspicion based on

suspect's nervousness, evasiveness, and the sight of bullets in

the vehicle); Coleman,

(finding reasonable

suspicion based on a suspect's quick exit from his vehicle, his

nervousness, and money found during a protective pat-down);

12 The majority attempts to distinguish these cases by saying that each involved "a much greater degree of suspicious behavior" than in the present case. The cited cases provide a level of suspicious activity analogous to Estep's behavior here. Particularly on point is Baker, where we found reasonable suspicion based solely on an officer's assessment of the suspect's suspicious manner and evidence of gun ownership. See

. 23 United States v. Maestas,

(5th Cir. 1991)

(finding reasonable suspicion when a suspect appeared aggressive

and intoxicated and, after returning to his vehicle, leaned

forward, possibly to grasp a weapon under his seat). Our

precedents indicate that officers need only articulate a minimum

amount of facts to support reasonable suspicion. See, e.g.,

United States v. Colin,

(5th Cir. 1991)

(upholding weapons frisk of a passenger who "stoop[ed] down and

mov[ed] from side to side" in front seat of automobile). We have

held that even a suspect's innocent behavior may provide facts

sufficient to make an experienced police officer justifiably

suspicious. See United States v. Jacquinot,

(5th Cir. 2001), cert. denied,

-26 (2002).

The majority in this case concludes that "there were no

specific articulable facts from which Officer Peace could have

lawfully concluded that he was in danger." I disagree.

Particularly in light of our repeated acknowledgments of the

dangers police officers face during traffic stops, I refuse to

second-guess Officer Quillen's search of Estep's truck, even on

the facts as Estep has alleged them.13 Thus, I would affirm the

13 I certainly do not suggest that any time a person’s vehicle contains camouflage clothing, hunt ing gear, and an NRA sticker, a police officer may search the vehicle. Every traffic stop is different. Rather, I would uphold the search in this particular case because the officers are able to articulate a reasonable basis for their suspicion that Estep's truck contained a weapon. 24 district court's grant of summary judgment in favor of Officers

Peace, Quillen, and Conley.

B. Is There a Fact Question as to Whether the Fourth Amendment

Was Violated?

Alternatively, if the undisputed facts and the disputed

facts as Estep has alleged them do not establish clearly enough

that there was no Fourth Amendment violation, there is a serious

factual dispute that should be resolved before that question is

decided.

While Estep claims he was polite and cooperative during the

traffic stop, the police officers tell quite a different story.

According to Officer Peace, as he approached the truck, Estep

quickly exited the truck and came toward him. Officer Peace

noticed camouflage material, what he thought was hunting gear,

and an NRA sticker and was concerned that Estep might have a

firearm. Officer Peace then asked Estep several times whether

Estep had a weapon in the vehicle; Estep never gave him a

straight answer. The first time Officer Peace asked whether he

had a weapon, Estep asked why he had been stopped. After Officer

Peace again asked Estep if he had a weapon, Estep "made a quick

move with his hand" to reach inside his truck. Estep retrieved a

key chain containing mace and waved the mace in Officer Peace's

face, asking if mace was a weapon. According to Officer Peace,

25 Estep then began explaining his view of his constitutional right

to carry a firearm. Officer Peace became so concerned for his

own safety that he called for backup. Clearly, a factfinder

crediting Officer Peace's version of events would find that there

was no Fourth Amendment violation. Estep's evasive yet

confrontational behavior, combined with Officer Peace's

observations of camouflage material, hunting gear, and an NRA

decal, is more than enough to show reasonable suspicion. See,

e.g., Baker,

; Coleman,

;

Maestas,

. Since the majority does not find it

clear, as I do, that there was no Fourth Amendment violation on

Estep's version of the events, it should have reversed and

remanded for a resolution of the disputed facts bearing on

whether there was a Fourth Amendment violation rather than

holding that qualified immunity is unavailable. See, e.g.,

Goodson v. City of Corpus Christi,

(5th Cir.

2000).

C. Did Officers Peace, Quillen, and Conley Act Unreasonably in

Light of Clearly Established Law?

Returning to the undisputed facts and Estep's version of the

disputed facts, even if the police officers’ suspicion that Estep

carried a weapon was not reasonable under the Fourth Amendment, I

26 do not believe the officers acted so outrageously that they are

undeserving of qualified immunity.14

A public official performing discretionary functions is

entitled to qualified immunity from lawsuits arising out of those

activities. See Glenn v. City of Tyler,

(5th

Cir. 2001). Routine traffic stops are considered discretionary

functions. See Trejo v. Perez,

, 487 n.9 (5th Cir.

1982). An officer retains qualified immunity so long as he acts

reasonably in light of the law clearly established at the time of

the violation. See Salas v. Carpenter,

(5th

Cir. 1992). For a right to be clearly established, "[t]he

contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right." Anderson v. Creighton,

(1987); see also Pierce v. Smith,

(5th Cir.

1997) ("For qualified immunity to be surrendered, pre-existing

law must dictate, that is, truly compel (not just suggest or

allow or raise a question about), the conclusion for every like-

situated, reasonable government agent that what [the] defendant

is doing violates federal law in the circumstances.") (quotations

omitted) (emphasis in original). Put another way, if reasonable

14 Even if an officer violates the Fourth Amendment, he may still be entitled to qualified immunity. See Bigford v. Taylor,

(5th Cir. 1990). 27 police officers would disagree as to whether the search was

lawful, the right to be free from the search was not clearly

established and the officer retains qualified immunity. See

Anderson,

.

Once an officer pleads the qualified immunity defense, the

burden shifts to the plaintiff to show that the officer violated

clearly established law. See Pierce,

; Salas,

. It is thus Estep’s burden to show that under

the facts of this case, it was clearly established that the

officers could not reasonably believe their safety was in danger.

Estep’s burden is a significant one; qualified immunity gives

ample room for mistaken judgments and protects "all but the

plainly incompetent or those who knowingly violate the law."

Malley v. Briggs,

(1986).

Officers Peace, Quillen, and Conley are entitled to

qualified immunity in this case. At the time of the traffic stop

at issue here, it was clearly established that a police officer

may conduct a weapons "frisk" of a vehicle based on reasonable

suspicion. See, e.g., Long,

. There is no

Supreme Court or Fifth Circuit precedent that is factually on all

fours with this case, but we would not expect that because, as

the Supreme Court has recognized, the Fourth Amendment inquiry is

so fact-specific. See Anderson,

. The law at

28 the time of the alleged violation indicated that reasonable

suspicion was a forgiving, totality-of-the-circumstances

standard. See, e.g., Graham v. Connor,

(1989). And by 1993, we had routinely upheld weapons frisks on

similar facts, requiring officers to articulate only a minimum

level of suspicion. See, e.g., Coleman,

;

Maestas,

; Colin,

.

In this case, the police officers were called upon to make a

split-second determination as to Estep's dangerousness. Officer

Peace relied on his experience and judgment in determining that

Estep's behavior was suspicious. Officer Peace also observed

items in Estep's truck that indicated Estep might have a weapon.

When Officers Quillen and Conley arrived on the scene, Officer

Peace told them he was concerned about the presence of a weapon

in the vehicle. A reasonable officer could have been concerned

for his safety under the circumstances presented here. Even if

Officer Peace was mistaken in his belief that the search was

lawful, our qualified immunity jurisprudence forgives such

mistakes. See, e.g., Saucier, 533 U.S. at 205 (noting officers

must be protected from liability for reasonable mistakes because

they must make split-second judgments in uncertain

circumstances). Officer Peace did not engage in the kind of

29 egregious behavior we require before stripping an officer of his

qualified immunity.

Whether the officers had reasonable suspicion under the

Fourth Amendment is a close call. We expect police officers

routinely to make close calls during traffic stops. When they

guess wrong, we protect their reasonable decisions with qualified

immunity. Estep did not point to clearly established law that

would make Officer Quillen's search unjustifiable. Thus, the

district court properly granted summary judgment in favor of

Officers Peace, Quillen, and Conley.15

III. CONCLUSION

It is clear to me that, even on the undisputed facts and

Estep's version of the disputed facts, the police officers in

this case reasonably suspected that Estep might have a weapon in

his vehicle. It is also clear to me that the police officers in

this case did not act with the kind of careless indifference to

civil rights that this circuit requires before stripping them of

qualified immunity. I therefore dissent from the portion of the

judgment reversing the district court's summary judgment in favor

of Officers Peace and Quillen. Alternatively, I would reverse

and remand for resolution of the disputed facts in order to

15 Because I believe that the search was lawful and that the officers deserve qualified immunity, I do not consider the issue of whether Officers Peace and Conley retain qualified immunity because they did not actively participate in the search. 30 determine whether there was a Fourth Amendment violation before

addressing the issue of qualified immunity.

I am dismayed by the probability that Estep has received a

free pass in this case because his pick-up truck sports an NRA

sticker.

31