The opinion
Case: 15-60103 Document: 00513177169 Page: 1 Date Filed: 09/01/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60103 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
September 1, 2015
THERESA NICOLE CARNEY, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
BRANDON POLICE DEPARTMENT; RANKIN COUNTY SCHOOL
DISTRICT; BUDDY BAILEY; ANGY GRAHAM; BRIAN ELWELL,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:13-CV-617
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
Plaintiff-Appellant Theresa Nicole Carney (“Mrs. Carney”) appeals the
district court’s grant of summary judgment to defendants on her claim that
defendants violated her Fourth Amendment rights against an unreasonable
seizure. The district court found that Mrs. Carney had not established a
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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violation of her constitutional rights, and, even if she had, the individual
defendants were entitled to qualified immunity. We AFFIRM.
FACTS AND PROCEEDINGS
The district court opinion recounts the following undisputed facts. On
September 25, 2013, Mrs. Carney was the passenger in her black Yukon Denali
vehicle, driven by her husband, Dr. David Carney, as they picked up her
daughter at Brandon High School. At the school, Dr. Carney got into an angry
and profane verbal altercation with another student and that student’s
mother. Dr. Carney also yelled a profanity at the school’s assistant principal,
Angy Graham, who then told Dr. Carney he was no longer welcome on the
school’s campus. After these exchanges, Dr. and Mrs. Carney left the school
grounds. Graham and the school’s principal, Buddy Bailey, informed School
Resource Officer Brian Elwell that they wished to speak to the driver—whom
they could not identify—if Elwell saw the vehicle return to campus.
The next morning, Mrs. Carney—without her husband—drove her
daughter to school in the same black Yukon Denali. Elwell recognized the
vehicle as the one identified by the school officials, although he could not
immediately identify the driver. Elwell turned on his vehicle’s blue lights to
make contact with the driver. Elwell approached the driver’s side window and
asked for Mrs. Carney’s driver’s license, which she did not have. Elwell told
Mrs. Carney, “I’m going to have to ask you to pull around to the front of the
school. Mr. Bailey and . . . Ms. Graham need to talk to you.” Mrs. Carney
drove to the front of the school, followed by Elwell. Without exiting the vehicle,
Mrs. Carney discussed the previous day’s incident with Bailey and Graham.
Mrs. Carney and her husband filed suit in federal district court soon
after these events, asserting federal and state law claims centering on Mrs.
Carney’s belief that defendants should have arranged an appointment to speak
with her and her husband, rather than confronting her in her vehicle. Dr.
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Carney voluntarily dismissed his claims, and the district court granted
defendants summary judgment on Mrs. Carney’s claims. Mrs. Carney appeals
the grant of summary judgment on her claim that the individual defendants
subjected her to an unreasonable seizure in violation of her Fourth
Amendment rights. 1
DISCUSSION
“We review the district court’s grant of summary judgment de novo,
construing all facts and evidence in the light most favorable to the non-moving
party.” Amerisure Mut. Ins. Co. v. Arch Specialty Ins. Co., 784 F.3d 270, 273
(5th Cir. 2015). Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The district court granted the individual
defendants summary judgment on their qualified immunity defense. A
plaintiff may defeat a qualified immunity defense by showing that (1) officials
violated a constitutional right; and (2) the right at issue was “clearly
established” at the time of the officials’ alleged misconduct. Pearson v.
Callahan, 555 U.S. 223, 232 (2009). The district court found the individual
defendants were entitled to qualified immunity because Mrs. Carney did not
establish a violation of her Fourth Amendment rights.
A traffic stop by a police officer is a seizure under the Fourth
Amendment. United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004). A
stop must be justified by reasonable suspicion at its inception and be
reasonably related in scope and duration to the circumstances justifying the
stop. See Terry v. Ohio, 392 U.S. 1, 19–20 (1968). Mrs. Carney does not appeal
1In her briefs, Mrs. Carney does not challenge the district court’s grant of summary
judgment to the Rankin County School District or the Brandon Police Department. She has
therefore waived any appeal as to those defendants. See United States v. Whitfield, 590 F.3d
325, 346 (5th Cir. 2009) (“[A] party waives any argument that it fails to brief on appeal.”).
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the district court’s finding that Officer Elwell was justified in initially stopping
her vehicle. She argues only that the traffic stop impermissibly continued after
Elwell was assured that Dr. Carney was not an occupant of the vehicle in
violation of Graham’s directive that he remain off campus.
“[O]nce an officer’s suspicions have been verified or dispelled, the
detention must end unless there is additional articulable, reasonable
suspicion.” United States v. Valadez, 267 F.3d 395, 398 (5th Cir. 2001). Upon
approaching the vehicle, seeing Mrs. Carney, and asking for her driver’s
license, Elwell’s suspicions of unlawful activity—that Dr. Carney had violated
an order to remain off campus—were eased. Mrs. Carney continued her
discussion with Elwell after his initial suspicion was dispelled, but this does
not decide the matter. Continued interaction “after satisfaction of the purpose
for the initial traffic stop [is] allowable if consensual.” United States v.
Sanchez-Pena, 336 F.3d 431, 441 (5th Cir. 2003). The standard is objective; an
encounter is consensual if “‘a reasonable person would feel free to decline the
officers’ requests or otherwise terminate the encounter.’” Id. (quoting United
States v. Drayton, 536 U.S. 194, 202 (2002)).
Mrs. Carney attempts to distinguish Sanchez-Pena and show that the
encounter was not consensual by highlighting her subjective feeling that she
did not feel free to leave or to ignore Elwell’s request for her to drive to the
front of the school to speak with the school officials. But whether continuation
of a stop is consensual is an objective inquiry and Mrs. Carney’s subjective
feelings will not be credited unless a reasonable person would not have felt free
to terminate the encounter. See United States v. Mask, 330 F.3d 330, 336 (5th
Cir. 2003) (“This ‘reasonable person’ standard is objective, and is concerned not
with the citizen’s subjective perception . . . but only with what the officers’
words and actions would have conveyed to a reasonable and innocent person.”
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(internal citation omitted)). We agree with the district court that Mrs.
Carney’s belief was not objectively reasonable.
Several non-exclusive factors help determine when a reasonable person
would feel free to terminate an encounter with law enforcement: “(1) the
threatening presence of several officers; (2) the display of a weapon by an
officer; (3) physical touching of the person of the citizen; and (4) the use of
language or tone of voice indicating that compliance with an officer's request
might be compelled.” Mask, 330 F.3d at 337 (citing United States v.
Mendenhall, 446 U.S. 544, 554 (1980)). None of these factors supports a
finding of a continued seizure. There was only one officer present, he did not
display a weapon, and he never touched Mrs. Carney. There is no evidence
that Elwell raised his voice during the encounter. Mrs. Carney argues that
Elwell’s tone was “stern” and “rude,” and that Elwell’s statement—“I’m going
to have to ask you to pull around to the front of the school”—compelled
compliance. But Elwell explained the reason for his request; the principal and
assistant principal wished to speak with her. A reasonable person would have
felt free to decline Elwell’s request for Mrs. Carney to speak to the school
administrators. 2
Mrs. Carney correctly notes that these factors do not encompass every
possible circumstance that can support a finding of a seizure. But she points
to no evidence supporting a finding that a reasonable person would not have
felt free to leave. Although Elwell did not expressly tell her she was free to go
and that the stop was over, an officer is not required to verbally inform a driver
she is free to go. See United States v. Muniz, 340 F. App’x 192, 196 (5th Cir.
2The Eleventh Circuit considers additional non-exclusive factors when determining
whether a seizure takes place, but none supports Mrs. Carney’s claim. Her path was not
blocked or impeded, Officer Elwell did not retain her identification, there is no evidence her
age, education, or intelligence inhibited her understanding, and the duration of questioning
was short.” See United States v. Perez, 443 F.3d 772, 778 (11th Cir. 2006).
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2009) (citing United States v. Brown, 102 F.3d 1390, 1394–97 (5th Cir. 1996)).
And the stop did not continue just because Elwell followed Mrs. Carney to the
front of the building and observed her interaction with the administrators. See
Mask, 330 F.3d at 337 (“There is nothing particularly coercive about police
observation in public.”).
The totality of the circumstances shows that Mrs. Carney’s opinion that
the continuation of the encounter was not consensual was objectively
unreasonable. Because the continued interaction was a consensual encounter,
not an unconstitutional seizure, we AFFIRM the district court’s grant of
summary judgment for the individual defendants.
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