Lead Opinion
ON WRIT OF CERTIORARI
¶ 1. In this certiorari case, the Court of Appeals reversed David Trejo’s conviction and sentence for possession of a controlled substance with intent to distribute, finding the State had violated David Trejo’s Fourth Amendment right against unreasonable seizure. The Court of Appeals held that the arresting officer lacked probable cause or reasonable suspicion to make
Facts
¶ 2. Officer Chris Picou was traveling North on 1-55 at approximately 1:17 a.m. when he came upon a red Chevrolet SUV with a Texas license plate traveling in the left-hand or inside lane. The SUV was traveling approximately 58-60 miles per hour in an area where the minimum posted speed limit is 45 miles per hour and the maximum is 70 miles per hour. Picou was traveling 70 miles per hour in the left-hand lane behind Trejo when he flashed his bright lights for the SUV to move over so that he could pass. When the driver failed to change lanes, Picou flashed his brights two more times, with ten seconds passing between each flash. After the third flash,
¶ 3. Picou testified that he pulled over the SUV because he was concerned the driver was intoxicated or tired. Picou testified that he did not stop the SUV based on any traffic violation. Picou also testified there was no traffic in the right lane which would have prevented him from passing the SUV.
¶ 4. When Picou approached the vehicle, he noticed that the driver, David Trejo, did not have slurred speech but appeared tired, glassy-eyed, and nervous. His female passenger, Pebbles Nutt, seemed groggy. Picou also noticed that the car smelled strongly of fabric softener, which in his experience
¶ 5. When Picou questioned Trejo about his criminal history, Trejo reported only a conviction for stealing an automobile. Pi-cou also ascertained that Trejo was traveling from Houston, a “source city” for drugs, to Ohio, a “source area” for distribution of drugs. Picou then asked for permission to search Trejo’s vehicle for controlled substances, and Trejo denied permission. Picou informed Trejo that he was going to run a dog around the vehicle, and requested that Trejo and Nutt stand away from the vehicle. When Nutt exited the car, she quickly turned her back to Officer Trejo, which further aroused his suspicion. Picou instructed Nutt to turn around to make sure she had no weapons, and when she did, he saw a large bulge under her clothing at her midsection. With the back of his hand, Picou felt the bulge. He immediately recognized that Nutt had strapped a controlled substance to her body, and he recovered two kilograms of cocaine.
Court of Appeals’ Opinion
¶7. Trejo appealed his conviction and sentence, arguing the circuit court erred in denying his motion to suppress.
Discussion
¶ 8. Aggrieved by the Court of Appeals’ dеcision, the State filed a petition for cer-tiorari with this Court. Although we conclude, as did the Court of Appeals, that there was no probable cause or reasonable suspicion of criminal activity to justify the stop, we ordered additional briefing to address the community caretaking function in light of the trial court’s finding that Picou had performed a “safety” stop.
¶ 9. The United States Supreme Court first applied the community caretaking function in Cady v. Dombrowski
[Sjtate and local police officers, unlike federal officers, have much more contact with vehicles for reasons related to the operation of vehicles themselves. All States require vehicles to be registered and operators to be licensed. States and localities have enacted extensive and detailed codes regulating the condition and manner in which motor vehicles may*688 be operated on public streets and highways.
Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may bеlieve the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community care-taking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.15
The Court found the search reasonable, as the police were “simply reacting to the effect of an accident — one of the recurring practical situations that results from the operation of motor vehicles and with which the local police must deal every day.”
¶ 10. The State argues that this Court should adopt the community caretaking function, as Picou was acting in his duty to protect the public’s safety when he stopped Trejo’s vehicle. It argues Picou rеasonably developed suspicion of criminal activity after effecting the stop.
¶ 11. Conversely, Trejo argues the Supreme Court has used the community caretaking function only in support of inventory searches of impounded cars. Tre-jo argues we should not extend the function to create a new or separate exception to the warrant requirement. He also argues that the stop does not meet the community caretaking function even if we adopt and apply it in this case.
¶ 12. Numerous jurisdictions have applied the community caretaking function beyond thе context of Cady to instances such as the present. And this Court recognized the doctrine in Floyd v. City of Crystal Springs.
¶ 13. In Floyd, the State argued this Court should evaluate the stop under the following standard: “ ‘[W]hen police cross a threshold not in their criminal investigatory capacity, but as part of their community caretaking function, it is clear that the standard for assessing the Fourth
¶ 14. We find “no reasoned argument in support of a categorical refusal to apply the community caretaking exception to vehicle stops[,]”
¶ 15. We begin our analysis by noting that at least two other jurisdictions applying the community caretaking function have concluded that stops effected under similar circumstances were unreasonable.
¶ 16. Because of the risk of danger to a driver as well as the traveling public, we agree that it would be reasonablе for a police officer to stop an individual who appears to be falling asleep while driving. However, the facts presented here simply do not support such an inference. There was no evidence of erratic driving. Trejo was traveling approximately 10-12 miles per hour below the maximum speed limit of 70 miles per hour and well above the minimum speed limit of 45 miles per hour in the left-hand lane around 1:00 a.m. We do not think his speed was so slow that a reasonable person would believe it indicative of distress. We also do not find that Trejo’s failure to change lanes after Picou flashed his bright lights was necessarily indicative of distress, nor was it so when considered with the other facts. Picou flashed his bright lights in quick succession on a deserted stretch of interstate. And no traffic prevented Picou from passing Trejo in the right lane. We find the following analysis by the Court of Appeals especially relevant:
Trejo was not weaving or driving erratically, and there is no indication that Trejo was even aware that he was being followed by law enforcement.... This lack of awareness is supported by the fact that when Officer Picou turned on his flashing blue lights, Trejo promptly pulled over to the side of the rоad.33
Therefore, we find that the facts presented at the suppression hearing do not justify a reasonable belief that Trejo needed help or that the public was endangered, and as such, the trial court should have granted Trejo’s motion to suppress.
Conclusion
¶ 17. In applying the community care-taking function to the facts of this case, we find the trial court erred in denying Tre-jo’s motion to suppress the cocaine as evidence. As noted by the Court of Appeals, “[wjithout the cocaine, there is no remaining evidence to uphold Trejo’s conviction.”
¶ 18. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS REVERSED AND RENDERED.
Notes
. It is undisputed that the Fourth Amendment applies to vehicle stops. Floyd v. City of Crystal Springs,
. Cady v. Dombrowski,
. Picou flashed his bright lights between mile markers 114 and 115.
. Picou had nineteen years of law enforcement experience, and his official title is "master sergeant in the Narcotics Division.”
. Trejo v. State,
. We note the Court of Appeals erroneously referred to Couldery v. State,
. Terry v. Ohio,
. Trejo, at 705-07.
. Id. at 703-04, 707.
. Id. at 705-07, 709.
. Id. at 709.
. Cady v. Dombrowski,
. Id.
. Id. at 437,
.Id. at 441,
. Cady,
. Id. at 447,
. Floyd v. City of Crystal Springs,
. Id. at 112.
. Id. at 112-13.
. Id., at 117 (quoting State v. Alexander,
. Id. at 118.
. People v. Madrid,
. State v. Brown,
. Cady,
. Floyd,
. See generally Brigham City, Utah v. Stuart,
. Gonzales v. State,
. Corbin v. State,
. See Cady,
. State v. Rinehart,
. See Rowe v. Maryland,
. Trejo, at 707.
. Id. at 709.
Concurrence Opinion
¶ 19. While I concur with much of the analysis and with the result reached by the plurality, I write briefly to express, with respect, my disagreement with the plurality’s unequivocal adoption of the so-called community сaretaking function as a standard to be employed by Mississippi courts in determining whether police stops of motorists on public thoroughfares are reasonable in the context of established search and seizure law.
¶ 20. The plurality cites Floyd v. City of Crystal Springs,
¶ 21. Moreover, it is important to note that the facts in Cady v. Dombrowski,
¶ 22. In finding that this was a reasonable search under the Fourth Amendment, the Supreme Court emphasized the following facts: the vehicle was disabled by an accident, the driver was intoxicated and unable to make arrangements to move the vehicle, the vehicle’s presence alongside the highway was a nuisance, the police had a form of custody over the vehicle after its having been towed to the garage, the sеarch of the vehicle for the revolver was an exercise in public safety to prevent the defendant’s service revolver from falling into the wrong hands, and the search of an impounded vehicle was standard procedure for the police department. Id. at 442-43,
¶ 23. The plurality states: “[W]e conclude that the community caretaking function in Cady may apply in contexts other than inventory searches, as the police provide many functions apart from investigating criminal activity.” Plur. Op. at ¶ 14 (emphasis added). However, the present case was not an instance in which a peace officer was acting in a capacity apart from investigating criminal activity, since Officer Picau testified that, despite any indication (i.e., of a traffic violation, or errаtic driving), he suspected Trejo of being either drowsy or intoxicated and made the stop to “check the status on” Trejo.
¶ 24. The danger in expanding this community caretaking function to apply to governmental searches and seizures where traffic stops have been made in the interest of public safety is that officers who have no reasonable belief that there is an imminent threat of danger to the driver or other members of the public will be empowered to make traffic stops of motorists who have not violated the law in any way. Thus, any imaginable activity a police offiсer subjectively thinks could possibly be dangerous — including acts the legislature has not seen fit to prohibit by law, such as cell phone use or eating a sandwich — will provide justification for a police stop. Indeed, it is the legislature’s constitutional responsibility to decide whether such activities are to be deemed threats to public safety. It is not the role of this Court to legalize police stops of motorists who have neither committed some violation of established traffic law nor are threatened by some imminently dangerous situation.
¶ 25. The reasonableness of traffic stops should continue to be analyzed under traditional Fourth Amendment jurisprudence. “Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ ” under the Fourth Amendment. Whren v. U.S.,
¶ 26. No one, of course, reasonably could question a police officer’s right— indeed, obligation — to stop a motorist when the officer reasonably perceives an imminent threat of harm to the motorist or other members of the public. Examples would include the officer’s observing lug nuts missing from a vehicle’s wheel, an automobile traveling toward a washed-out bridge, or gasoline leaking from a car or truck.
¶ 27. In the instant сase, the officer conceded that, at the time of the stop, no
¶ 28. I add that it is not difficult to think of circumstances under which a peace officer may be justified in stopping and charging a motorist for prolonged presence in a far left, or inside, lane of a street or highway of four or more lanes. Mississippi Code Section 63-3-603(d) (Rev. 2004) reads, in pertinent part, as follows:
Whenever any roadway has been divided into three (3) or more clearly marked lanes for traffic ...
Upon all roadways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway.
Although we do not find in the present case a clear violation of Mississippi Code Section 63-3-603(d), today’s deсision should not be read to diminish the validity or importance of that statute, which, if violated, should be enforced. This statute plainly establishes that the far-inside lane is intended mainly for passing. In this case, even if Trejo had violated Section 63-3-603(d), the arresting officer articulated no awareness of this statute’s existence, and, in any event, did not rely on it as justification for stopping the Trejo vehicle. If he had, this case might have been decided differently. Such a stop would have required this Court to interpret Section 63-3-603(d) in light of the facts presented.
¶ 29. Accordingly, there exists no reasonable basis to justify thе officer’s stop of the Trejo vehicle, and thus, no probable cause. I agree with the plurality’s decision to reverse and render the conviction and sentence for possession of a controlled substance with intent to distribute; however, I cannot join in its adoption of the community caretaking function as it applies to traffic stops by police.
. Justice Randolph asks: "Can it fairly be argued that a police officer may not stop a delivery truck with an unsecured cargo door in the interest of public safety? A vehicle with an under-inflated tire? An RV with an unlatched hatch сover flapping in the breeze?” Since all of these illustrations unquestionably present threats of imminent danger, I am grateful to my esteemed colleague for providing additional support for my position.
Concurrence in Part
concurring in part and dissenting in part:
¶ 30. I concur with the adoption of the “community caretaking” doctrine, but dissent to the plurality’s result, which does not apply it. The plurality presents an excellent synopsis of the “community care-taking” doctrine and has crafted a clear, workable standard for its application. Assessing the exercise of a “community care-taking” function on a case-by-case basis, by objеctive reasonableness under “the totality of the circumstances,” is a sound approach according balance to the interests of public safety and individual Fourth Amendment protections. (Plur. Op. at ¶ 14).
¶ 31. Despite the plurality’s balanced, common-sense approach, Justice Kitchens rejects the “adoption of the community caretaking function as it applies to traffic
¶ 32. I part ways with the plurality only insofar as it concludes thаt the circuit court “erred” in finding that the subject traffic stop was “reasonable” because “the facts presented ... do not justify a reasonable belief that Trejo needed help or that the public was endangered.... ” (Plur. Op. at ¶¶ 1, 15-16) (emphasis added). The plurality’s ultimate finding is undergirded by a presupposition of de novo review, despite the fact that “[i]n reviewing the denial of a motion to suppress, we must determine whether the trial court’s findings, considering the totality of the circumstances, are supported by substantial credible evidence.” Delker v. State,
¶ 33. Because I would reverse the decision of the Court of Appeals and reinstate and affirm the ruling of the circuit court denying Trejo’s “Motion to Suppress,” I respectfully concur in adoption of the “community caretaking” doctrine, but dissent as to the result reached by the plurality.
. Compare this to Winston Churchill’s statement to Parliament that "[t]his is one of those cases in which the imagination is baffled by the facts."
. An imminent danger does not have to be of the moment, but rather ''[a]bout to occur at any moment: Impending.” Webster’s II New College Dictionary 553 (2001).
.Using exclusionary rule standards by way of analogy, how exactly did the "constable ... blunde[r]” here? Delker,