Garrett HUDSON, T. Sherrod Meadows, et al., Defendants-Appellees-Cross-Appellants, v. J.T. HALL, individually and in his capacity as a police officer for the Clayton County Police Department, Plaintiff-Appellant-Cross-Appellee, Ronnie Clackum, Chief, in his official capacity as Chief of police for Clayton County, Clayton County, Georgia, Plaintiffs-Cross-Appellees.
No. 99-8104.
United States Court of Appeals, Eleventh Circuit.
October 30, 2000. November 9, 2000.
231 F.3d 1289
Appeals from the United States District Court for the Northern District of Georgia. (No. 97-01487-1-CV-RWS), Richard W. Story, Judge.
Before EDMONDSON, HULL and WOOD*, Circuit Judges.
EDMONDSON, Circuit Judge:
Garrett Hudson, T. Sherrod Meadows, and Shedrick Gaston (“Plaintiffs“) brоught suit under
Officer Hall appeals the district court‘s partial denial of qualified immunity, and Plaintiffs cross-appeal the partial grant of qualified immunity to Officer Hall. On Officer Hall‘s appeal of the рartial denial of qualified immunity, we affirm in part and reverse in part. And, on Plaintiffs’ appeal of the partial grant of qualified immunity to Officer Hall, we affirm.1
A.
On 26 May 1995, Plaintiff Garrett Hudson (“Hudson“) was driving his car in Clayton County, Georgia.2 Plaintiffs T. Sherrod Meadows (“Meadows“) and Shedrick Gaston (“Gaston“) were passengers in Hudson‘s car. Hudson turned right from a gas station onto Tara Boulevard. When Hudson made this right turn, he failed to use a turn signal.
Officer Hall saw Plaintiffs’ car turn onto Tara Boulevard without using a turn signal, and he stopped their car. Officer Hall got out of his car, approached the driver‘s side of Plaintiffs’ car, and explained why he had stopped Plaintiffs. He asked Hudson to get out of the car, and Hudson did so. Officer Hall and Hudson walked to the rear of Plaintiffs’ car.
At that point, Officer Hall searched Hudson‘s person. Officer Hall did not ask for and did not receive Hudson‘s consent before conducting the search. Hudson was wearing a t-shirt and shorts. Officer Hall patted down Hudson‘s clothing, reached into Hudson‘s pockets, instructed Hudson to lift his shirt, and looked into Hudson‘s shorts and underwear. After searching Hudson, Officer Hall asked Hudson for consent to search Plaintiffs’ car. Hudson consented to a search of the car. Officer Hall proceeded to then search the car.
Officer Hall—either just before or during his search of the car—asked Meadows and Gaston to get out of the car. Meadows and Gaston complied. After they left the car, Officer Hall asked Meadows for consent to search Meadows’ person. Meadows initially refused consent. Officer Hall then said: “If you don‘t want to be searched, start walking.” Meadows then consented to a search. Meadows was wearing a t-shirt and shorts. Officer Hall patted down Meadows’ clothing, reached into Meadows’ pockets, and looked into Meadows’ shorts.
After searching Meadows, Officer Hall approached Gaston and searched Gaston‘s person. Officer Hall did not ask for and did not receive Gaston‘s consent to search. Officer Hall patted down Gaston‘s clothing and reached into Gaston‘s pockets. He did not look, however, into Gaston‘s pants.3 Officer Hall‘s searches of Plaintiffs and of the car revealed no contraband. Officer Hall instructed Plaintiffs to return to their car and to leave the scene.
Plaintiffs brought suit under
The district court granted Officer Hall‘s motion in part, and denied the motion in part. The district court concluded that Officer Hall was entitled to qualified immunity for the initial traffic stop because, when Officer Hall stopped Plaintiffs’ car, Officer Hall had probable cause to believe that the driver (Hudson) had committed a traffic offense. And the district court concluded that Officer Hall was entitled to qualified immunity for the search of Plaintiffs’ car because Hudson freely and voluntarily consented to the search of the car.
The district court, however, concluded that Officer Hall was due no qualified immunity—at least, not at the summary judgment stage—for searching Plaintiffs’ persons. First, the district court said that—accepting Plaintiffs’ version of the facts—a reasonable officer in Officer Hall‘s circumstances would have known that he lacked Plaintiffs’ free and voluntary consent to search their persons. Second, the district court said that—even assuming that Plaintiffs consented to a search of their persons—Officer Hall clearly exceeded the scope of such consent by looking into Plaintiffs’ pants.
II.
Because we are a court of limited jurisdiction, see
Our jurisdiction over Plaintiffs’ cross-appeal, however, is less certain. Plaintiffs cross-appeal the district court‘s partial grant of qualified immunity to Officer Hall. The jurisdictional exception for qualified immunity cases—allowing interlocutory appeals from the denial of qualified immunity—does not encompass Plaintiffs’ cross-appeal. So, we have jurisdiction of Plaintiffs’ cross-appeal only if it properly falls within our pendent appellate jurisdiction.
Under the pendent appellate jurisdiction doctrine, we “may address [otherwise] nonappealable orders if they are ‘inextricably intertwined’ with an appealable decision or if ‘review of the former decision [is] necessary to ensure meaningful review of the latter.‘” Summit Med. Assoc., P.C. v. Pryor, 180 F.3d 1326, 1335 (11th Cir.1999); see also Swint v. Chambers County Com‘n, 514 U.S. 35, 50-51, 115 S.Ct. 1203, 1212, 131 L.Ed.2d 60 (1995); Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians of Fla., 177 F.3d 1212, 1221-22 (11th Cir.1999); Moniz v. City of Fort Lauderdale, 145 F.3d 1278, 1281 n. 3 (11th Cir.1998); Harris v. Board of Educ. of City of Atlanta, 105 F.3d 591, 594 (11th Cir.1997); United States v. Lopez-Lukis, 102 F.3d 1164, 1167 n. 10 (11th Cir.1997).
III.
We turn now to the question of Officer Hall‘s entitlement to qualified immunity. “Qualified immunity protects government officials performing discretionary functions ... from liability if their conduct violates no ‘clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Lassiter v. Alabama A&M Univ. Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir.1994) (en banc); see also Stanley v. City of Dalton, 219 F.3d 1280, 1285 (11th Cir.2000); Gonzalez v. Lee County Housing Auth., 161 F.3d 1290, 1295 (11th Cir.1998); GJR Investments, Inc. v. County of Escambia, 132 F.3d 1359, 1366 (11th Cir.1998).
For the law to be clearly established to the point that qualified immunity does not protect а government official, “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 defendant is doing violates federal law in the circumstances.” Id. at 1150. And, of course, whether a defendant has violated a constitutional right at all is a “necessary concomitant” to the question of qualified immunity: if a defendant has not violated the law at all, he certainly has not violated clearly established law. GJR Investments, 132 F.3d at 1366-67.
A.
Plaintiffs contend that the district court erred in awarding qualified immunity to Officer Hall for his initial stop of Plaintiffs’ vehicle. That a police officer may conduct a traffic stop where the officer has probable cause to believe that a traffic violation has occurred is well-settled. See Whren v. United States, 517 U.S. 806, 809, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996); see also United States v. Simmons, 172 F.3d 775, 778 (11th Cir.1999). The record is clear that Officer Hall stopped Plaintiffs after he saw Hudson turn from a gas station onto a busy public highway without using a turn signal. The ultimate question in this case, therefore, is whether Officer Hall clearly lacked probable cause to believe that Hudson—by turning from a gas station without a turn signal—violated the traffic laws of Georgia.
(a) No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in Code Section 40-6-120 or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or change lanes or move right or left upon a roadway unless and until such movement can be madе with reasonable safety. No person shall so turn any vehicle without giving an appropriate and timely signal in the manner provided in this Code section.
(b) A signal of intention to turn right or left or change lanes when required shall be given continuously for a time sufficient to alert the driver of a vehicle proceeding from the rear in the same direction or a driver of a vehicle approaching from the opposite direction.
From the plain language of the statute, that the statute is inapplicable to vehicles turning from private driveways onto public roadways is not obvious. Indeed, the plain language of the statute seems to admit a construction reaching private driveways. And, the parties cite—and we have found—no Georgia cases deciding (or even suggesting) that the statute is inapplicable to turns from private driveways onto рublic roadways. In other words, even if
Plaintiffs also contend that the district court erred in awarding qualified immunity to Officer Hall for his search of Plaintiffs’ car. We cаnnot agree. The record is clear that Officer Hall asked Hudson for consent to search before he searched Plaintiffs’ car. And, the record is equally clear that Hudson consented to a search of the car. The only issue disputed by the parties is whether Hudson‘s consent was voluntary.
“In order for consent to a search to be deemed voluntary, it must be the product of an essentially free and unconstrained choice.” United States v. Garcia, 890 F.2d 355, 360 (11th Cir.1989). In considering whether a consent to search was voluntary, we examine the totality of the circumstances. United States v. Tovar-Rico, 61 F.3d 1529, 1535 (11th Cir.1995); see also United States v. Gonzalez, 71 F.3d 819, 828-32 (11th Cir.1996) (illustrating factors properly to be considered in totality of circumstances inquiry). We conclude—as did the district court—that Hudson voluntarily consented to the search of Plaintiffs’ car. Officer Hall did not threaten force or violence against Hudson. Officer Hall was not verbally abusive toward Hudson. Officer Hall explained to Hudson why he was stopped: for a minor traffic offense. And, Officer Hall did not suggest to Hudson that Hudson had no choice but to consent.7
The district court аccordingly did not err in awarding Officer Hall qualified immunity for his search of Plaintiffs’ car.
C.
Officer Hall argues that the district court erred in denying qualified immunity for the searches of Plaintiffs’ persons. The district court based its partial denial of qualified immunity to Officer Hall on two different ideas: (1) that Officer Hall searched Plaintiffs’ persons without any voluntary consent at all; and (2) that, even if Plaintiffs voluntarily consented to some search of their persons, they did not consent to the search that Officer Hall conducted. We address the district court‘s reasons in turn.
Because a disputed issue of material fact exists about whether Hudson and Gaston consented at all to a search of their persons, the district court correctly denied qualified immunity for the searches of Hudson and Gaston. Hudson and Gaston testified that Officer Hall neither requested nor received their consent to a search of their persons. At the summary judgment stage, we must accept Hudson‘s and Gaston‘s testimony. We accept that, in the absence of voluntary consent, Officеr Hall‘s search of Hudson and Gaston was unlawful.8 And, no reasonable officer in Officer Hall‘s circumstances could have understood no consent at all to constitute a voluntary consent. Accordingly, Officer Hall is not due qualified immunity—at the summary judgment stage, at least—for the claim that he unlawfully searched Hudson and Gaston without their consent.
But the impropriety of Officer Hall‘s statement is not plain. As the Supreme Court has recognized, a police offiсer performing his lawful duties may direct and control—to some extent—the movements and location of persons nearby, even persons that the officer may have no reason to suspect of wrongdoing. See Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (1997) (holding that “an officer making a traffic stop may order passengers to get out of the car pending completion of the stop“); see also Michigan v. Summers, 452 U.S. 692, 702-03, 101 S.Ct. 2587, 2594, 69 L.Ed.2d 340 (1981) (“The risk of harm to both the police and the occupants [of a home during a search] is minimized if the officers routinely exercise unquestioned command of the situation.“). We expect that, in some circumstances, a police officer conducting a traffic stop may properly direct passengers—for example, if they refuse to permit the officer to search their persons for weapons—to walk a reasonable distance away from the officer.
The parties have cited (and we have found) no pre-1995 case holding that a similar statement in similar circumstances was sufficiently coercive to rеnder an otherwise-voluntary consent involuntary. We have written:
When considering whether the law applicable to certain facts is clearly established, the facts of cases relied upon as precedent are important. The facts need not be the same as the facts of the immediate case. But they do need to be materially similar. Public officials are not obligated to be creative or imaginative in drawing analogies from previously decided cases.
Lassiter, 28 F.3d at 1150 (quoting Adams v. St. Lucie County Sheriff‘s Dep‘t, 962 F.2d 1563, 1575 (11th Cir.1992) (Edmondson, J., dissenting)) (citatiоn omitted). This idea is especially true when the inquiry is as heavily fact-dependent as is the “voluntariness” inquiry. See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973) (surveying case law on voluntariness of consent to search and explaining that “none of [the prior decisions] turned on the presence or absence of a single controlling criterion; each reflected a careful scrutiny of all the surrounding circumstances“). Therefore, because the impropriety of Officer Hall‘s statement was not obvious and because no materially similar, рre-existing case law was around, a reasonable police officer in the circumstances might not have known that Meadows’ consent was involuntary. Accordingly, Officer Hall is entitled to qualified immunity for his search of Meadows.
We also disagree with the district court‘s second explanation for denying qualified immunity. In a consent search, the scope of the consent given governs the scope of the search that may be conducted. United States v. Hidalgo, 7 F.3d 1566, 1570 (11th Cir.1993). We think that in the circumstances of this case, if Plaintiffs consentеd generally to a search of Plaintiffs’ persons for drugs and weapons—without articulating specific limits on that consent—Officer Hall did not exceed the scope of consent just by looking into Hudson‘s and Meadows’ pants. After all, drug dealers and couriers “frequently hide drugs near their genitals.” United States v. Rodney, 956 F.2d 295, 297 (D.C.Cir.1992). And, very important, we are not dealing here with a case where the officer actually touches the suspect‘s genitals, see, e.g., United States v. Blake, 888 F.2d 795 (11th Cir.1989), or a case where the officer forces the suspect to disrobe and expose himself to the public. See, e.g., Johnson v. State, 613 So.2d 554 (Fla.Dist.Ct.App.1993). Here, we are faced simply with a brief and discreet look into the pants of a suspect by an officer of the same sex during a search for drugs and for weapons. Officer Hall did not exceed the scope of Meadows’ consent by looking into Meadows’ pants. And, Officer Hall did not exceed the scope of Hudson‘s consent—if Hudson, in fact, consented—just by looking into Hudson‘s pants.
The district court properly awarded qualified immunity to Officer Hall for his initial stop оf Plaintiffs’ car and his search of Plaintiffs’ car. The district court properly denied qualified immunity to Officer Hall for his search of Hudson without consent from Hudson and for his search of Gaston without consent from Gaston. The district court, however, should have awarded qualified immunity to Officer Hall for his search of Meadows and for the claim that Officer Hall exceeded the scope of consent by looking into Hudson‘s and Meadows’ pants.
On Officer Hall‘s appeal of the district court‘s denial of qualified immunity for the search of Plaintiff Hudson, we AFFIRM IN PART and REVERSE IN PART.
On Officer Hall‘s appeal of the district court‘s denial of qualified immunity for the search of Plaintiff Meadows, we REVERSE.
On Officer Hall‘s appeal of the district court‘s denial of qualified immunity for the search of Plaintiff Gaston, we AFFIRM.
On Plaintiffs’ cross-appeal of the district court‘s grant of qualified immunity for the stop of Plaintiffs’ car and for the search of Plaintiffs’ car, we AFFIRM.
On Plaintiffs’ cross-appeal of the district court‘s grant of summary judgment to Clayton County, Clayton County Police Chief Ronnie Clackum, and Officer Hall in his officiаl capacity, we DISMISS for lack of jurisdiction.
DISMISSED IN PART, AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
Notes
Officer Hall‘s account of the pertinent events is quite different from Plaintiffs’ accounts in several respects. For example and most important, according to Officer Hall, both Hudson and Gaston consented to a search of their persons. But, for the purposes of this appeal, we must accept Plaintiffs’ version of the pertinent events.
In this case, whether probable cause existed—and, whether the Fourth Amendment was violated—turns upon a difficult question of state law. If we followed here the approaсh set out in Wilson and in Lewis, we would be required to determine whether