by David Kim

The United States Court of Appeals for the Fifth Circuit held that a warrantless protective search of a vehicle under Michigan v. Long, 463 U.S. 1032 (1983) (sometimes described as a vehicle “protective sweep”), violated the Fourth Amendment where officers failed to identify any fact contemporaneous with or arising out of a police encounter suggesting that a third party – the defendant’s girlfriend, who remained on scene following his arrest – posed a potential danger. The Court ruled that while the girlfriend’s unspecified felony record, intimate relationship with the defendant, and presence during his arrest were relevant considerations, these background facts alone could not justify a Long-style protective search absent some observable indication during the encounter that she might retrieve a weapon and threaten officer safety. Reversing the U.S. District Court for the Northern District of Texas’ denial of the defendant’s suppression motion and vacating his conviction, the Court clarified that Long inherently demands that officers ground their safety concerns in real-time observations or information arising from the encounter itself.

Background

On July 26, 2023, a magistrate judge in the Northern District of Texas issued an arrest warrant for Tony Lee Johnson, who had failed multiple drug tests while on supervised release stemming from a 2006 conviction for drug and aiding-and-abetting offenses. Officer Todd Pringle, a Lubbock Police Department (LPD) detective serving with the U.S. Marshals Service’s fugitive task force, conducted a pre-arrest investigation revealing that Johnson was a Bloods gang member and the primary suspect in an ongoing homicide investigation. Pringle also learned that Johnson lived with his girlfriend, Beatrice Simmons, whom LPD detectives reported had previously claimed to be a felon on probation or parole, though Pringle could not confirm this and obtained no further details.

Two days later, officers blocked Johnson’s Chevrolet Malibu as he backed out of his driveway with Simmons in the passenger seat. Johnson exited the vehicle before officers directed him to do so, closed the door behind him, instructed Simmons to return the vehicle to the yard, and told Pringle he did not consent to any searches. After officers arrested Johnson and detained Simmons nearby without handcuffing her, Pringle conducted a brief search of the driver’s seat area and center console, lasting approximately 24 seconds, because he believed Johnson was concealing something. The search revealed a loaded handgun. Following discovery of the firearm, officers handcuffed Simmons, who denied knowledge of the weapon and confirmed she was on parole for a 2003 drug offense.

Johnson was charged with possessing a firearm as a convicted felon under 18 U.S.C. §§ 922(g)(1) and 924(a)(8). He moved to suppress the handgun, arguing the warrantless search violated his Fourth Amendment rights. The District Court denied the motion, concluding that the search was constitutional under Long’s protective-search doctrine because Simmons posed a threat to officer safety based on her relationship with Johnson, her criminal history, and the likelihood she would “react emotionally and unpredictably” to Johnson’s arrest. Johnson entered a conditional guilty plea, received a 33-month sentence, and timely appealed.

Analysis

The Court began by observing that warrantless searches are presumptively unconstitutional, with the Government bearing the burden of establishing an applicable exception. United States v. Wallen, 388 F.3d 161 (5th Cir. 2004). Turning to Long, the Court explained that Long extended the protective frisk authorized in Terry v. Ohio, 392 U.S. 1 (1968), to vehicular contexts, permitting officers to search “the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden,” when they reasonably believe “that the suspect is dangerous and … may gain immediate control of weapons.” The Court explained that this belief must rest on “specific and articulable facts” and rational inferences drawn therefrom, Long held, incorporating Terry’s standard.

The Court stated that Long searches are impermissible when the suspect has been arrested, since the risk of immediate weapon access has passed. United States v. Rodriguez, 33 F.4th 807 (5th Cir. 2022). However, when a third party remains temporarily detained and may reenter the vehicle, a protective search may be justified if officers reasonably believe that individual is potentially dangerous and has access to a weapon.

Application to Simmons’s Presence

On appeal, Johnson did not challenge whether it was objectively reasonable for Pringle to believe a weapon was hidden in the vehicle. The dispute was whether there were specific, articulable facts supporting reasonable suspicion that Simmons was potentially dangerous.

Addressing that question, the Court acknowledged that Simmons’ criminal record and relationship with Johnson were relevant considerations under Fifth Circuit precedent. United States v. Gonzalez, 328 F.3d 755 (5th Cir. 2003); United States v. Silva, 957 F.2d 157 (5th Cir. 1992). Pringle’s testimony that romantic partners are more likely to interfere with arrests because “emotions run high” also merited consideration based on his 17 years of experience. United States v. Arvizu, 534 U.S. 266 (2002).

Nevertheless, these factors proved insufficient. The Court held that “[f]or an officer to reasonably believe that a suspect is potentially dangerous, the officer must point to some fact contemporaneous with or arising out of the police encounter that gives rise to that belief.” Without such a fact, the Government had “identified no facts indicating that Simmons might have retrieved a weapon from the vehicle and attacked the officers,” according to the Court. Simmons had not disobeyed instructions, displayed hostility, or motioned toward the vehicle when Johnson encouraged her to move it. When asked directly whether he observed any suspicious actions by Simmons, Pringle answered “no.”

The Contemporaneous-Fact Requirement

While acknowledging that neither Terry nor Long explicitly mandated contemporaneous facts, the Court determined “this requirement is inherent in the very nature of a Terry or Long search.” The Court grounded this conclusion in Terry’s description of protective action as “necessarily swift action predicated upon the on-the-spot observations of the officer on the beat.” Terry’s central holding permitted a protective frisk only “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous,” the Court reasoned.

The Court clarified it was not requiring personal observation by the searching officer in every case. Reasonable suspicion may arise from reliable informant tips or collective law enforcement knowledge communicated at the time of the stop. United States v. Powell, 732 F.3d 361 (5th Cir. 2013); United States v. Massi, 761 F.3d 512 (5th Cir. 2014). Rather, the point was that officers must be aware of some contemporaneous fact forming part of the totality of circumstances justifying the search, the Court instructed.

Distinguishing Precedent

The Court reviewed cases where protective searches were upheld, noting that each involved contemporaneous facts absent in the present case. In United States v. Baker, 47 F.3d 691 (5th Cir. 1995), the couple appeared extremely nervous, gave inconsistent accounts, and a box of ammunition was visible in the vehicle. In Silva, the defendant fled as officers approached. In Wallen, the defendant disobeyed instructions, the stop occurred at night, and the defendant admitted possessing undocumented weapons. In Rodriguez, the vehicle continued rolling when officers approached, and the defendant shifted as if removing a jacket.

The Court also distinguished United States v. Ducksworth, 159 F.4th 965 (5th Cir. 2025), where a passenger’s pat-down was upheld after the driver was discovered with a concealed firearm following dishonest responses, the stop occurred at night in a high-crime area, and the officer was alone and outnumbered. In the present case, the search occurred in daylight, multiple officers were present, it began as a planned arrest rather than an investigatory stop, and neither Johnson nor Simmons was found with a firearm on their person before the vehicle search.

Finding no contemporaneous indication that Simmons threatened officer safety, the Court concluded that Pringle “may have had a hunch that Simmons would act rashly after seeing her lover handcuffed, but this was not supported by individualized, reasonable suspicion.”

Conclusion

Accordingly, the Court reversed the District Court’s denial of Johnson’s motion to suppress and vacated his conviction and sentence. See: United States v. Johnson, 163 F.4th 933 (5th Cir. 2026).  

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