Rountree v. Lopinto, et al

United States Court of Appeals
for the Fifth Circuit

No. 20-30111

James C. Rountree,

Plaintiff—Appellant,

versus

Joseph P. Lopinto, III, Jefferson Parish Sheriff;
Moon’s Towing Service, Incorporated;
Jerome Green, Deputy Sheriff,

Defendants—Appellees.

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:19-CV-9143

Before Smith, Clement, and Oldham, Circuit Judges.
Jerry E. Smith, Circuit Judge:
When the officer investigating a hit-and-run incident came across one
of the cars involved, he seized it without obtaining a warrant. The owner
claimed that the seizure violated his clearly established constitutional rights
under the Fourth Amendment. The district court disagreed and dismissed
the claim on summary judgment. Because the warrantless seizure was consti-
tutional, we affirm.
United States Court of Appeals
Fifth Circuit
FILED
October 2, 2020

Lyle W. Cayce
Clerk
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No. 20-30111
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I.
On February 6, 2019, Mary Rountree drove her son’s car―a Saturn―
to a doctor’s appointment at Ochsner Hospital. She returned to the car after
the appointment, dismayed to find it blocked into its parking space by an
SUV. Undeterred, she backed the Saturn out of the parking spot, running
into the SUV as she did. She got out briefly to check for damage and then
drove away. The incident was caught on video, and a complaint was filed
with the Sheriff’s Office.
Louisiana criminalizes hit-and-run driving. La. Stat. Ann.
§ 14:100 (2019). “Hit and run driving is the intentional failure of the driver
of a vehicle involved in or causing any accident, to stop such vehicle at the
scene of the accident, to give his identity, and to render reasonable aid.” Id.
§ 100(A). On February 15, the Sheriff’s Office sent James Rountree—the
Saturn’s owner, Mary Rountree’s son, and the plaintiff—a letter informing
him that his car had been involved in an accident and requesting that he set
up an appointment with the hit-and-run office within seven days.
Plaintiff was in London, where he lived. James A. Rountree (“plain-
tiff’s father”)—Mary Rountree’s husband and attorney of record for this
case—responded to the letter on February 25. He acknowledged that the
Saturn belonged to his son but averred that, according to a “confidential
source,” no hit and run had occurred because there was no damage to either
car.
1

According to the police report, on February 28, Jerome Green, the
investigating officer, spoke to plaintiff’s father on the phone. Plaintiff’s
father informed Green that he would not cooperate with the investigation and

1
The Louisiana hit-and-run provision defines “Accident” as “an incident or event
resulting in damage to property or injury to person.” La. Stat. Ann. § 14:100(B)(4).
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again denied that a hit and run had occurred. Shortly thereafter, Green went
to plaintiff’s parents’ apartment in an unsuccessful effort to speak with either
plaintiff or Mary Rountree.
2

On the heels of that failed attempt, Green inspected the parking lot of
the apartment complex and came across the Saturn. He noted damage to the
driver’s-side rear bumper—consistent with where he expected damage to be
after reviewing the surveillance tape. Green called a wrecker and had the
Saturn towed. He returned to the apartment and knocked on the door, but
no one answered. Green left a notice at the door and exited the apartment
complex.
After some back and forth between the two, the Sheriff’s Office sent
plaintiff’s father a letter on March 26, informing him that the evidentiary
hold on the vehicle had been released. On March 29, plaintiff’s father and
Mary Rountree went to the towing yard to recover the Saturn, but, because
it was registered in plaintiff’s name, the towing company refused to release
the vehicle to his parents. Plaintiff visited the United States in April and paid
$1,674.58 to have the Saturn released.
Plaintiff sued, asserting that the seizure was unlawful and seeking
damages. Lopinto moved for summary judgment. He asserted that the sei-
zure was lawful and, in the alternative, that he was entitled to qualified im-
munity (“QI”). After a hearing, the district court held that the seizure was
lawful and, even if it wasn’t, Lopinto was protected by QI. On that reasoning,
the court granted summary judgment and dismissed plaintiff’s claim. Plain-
tiff appeals.

2
Instead, Green was greeted at the door by an unknown woman who stated she was
visiting from out of town and confirmed that the Rountrees were residents there but
declined to contact them.
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II.
We review a summary judgment de novo, applying the same standards
as the district court. See, e.g., McCoy v. Alamu, 950 F.3d 226, 230 (5th Cir.
2020), petition for cert. filed (July 16, 2020) (No. 20–31). When a defendant
asserts QI, the burden shifts to the plaintiff to make two showings. Id.
First, the plaintiff must show the defendant violated his consti-
tutional rights. Second, the plaintiff must show the asserted
right was clearly established at the time of the alleged miscon-
duct. If the plaintiff fails at either step, the federal court can
grant [QI] by addressing either step or both of them.
Cleveland v. Bell, 938 F.3d 672, 675–76 (5th Cir. 2019) (citations omitted).
Because we conclude that Lopinto did not violate plaintiff’s constitutional
rights, we begin and end our analysis with the Fourth Amendment.
Under the Fourth Amendment, “[w]arrantless searches and seizures
are per se unreasonable unless they fall within a few narrowly defined ex-
ceptions.” United States v. Kelly, 302 F.3d 291, 293 (5th Cir. 2002) (quota-
tion omitted). Among those exceptions, relevant here, is the so-called “auto-
mobile exception . . . ..” That exception to the warrant requirement “recog-
nize[s] a distinction between the warrantless search and seizure of automo-
biles . . . and the search of a home or office.” Cardwell v. Lewis, 417 U.S. 583,
589 (1974) (plurality opinion). Justified “by the mobility of vehicles and
occupants’ reduced expectations of privacy while traveling on public roads,”
United States v. Beene, 818 F.3d 157, 164 (5th Cir. 2016), the exception
permits the “police to search a vehicle if they have probable cause to believe
that the vehicle contains contraband,” United States v. Fields, 456 F.3d 519,
523 (5th Cir. 2006).
Under the automobile exception, “[t]he police may seize a car from a
public place without a warrant when they have probable cause to believe that
the car itself is an instrument or evidence of crime.” United States v. Cooper,
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949 F.2d 737, 747 (5th Cir. 1991). That is so because it would make “little
sense” to permit a warrantless seizure of a car “when the police have prob-
able cause to believe that the car contains evidence,” while simultaneously
“requiring a warrant before seizing a car when the police have probable cause
to believe the car itself is such evidence or is an instrument of crime.” Id.
Although neither brief mentions Conlan or Cooper, the rule articulated
in those two cases directly informs our decision. To be sure, a private apart-
ment parking lot is, definitionally, not “public.” But neither is it “private”
in the sense relevant for Fourth Amendment protection.
3
There is no rea-
sonable expectation of privacy—nor does plaintiff intimate that there ought
to be—in a shared apartment parking lot.
4
Thus, Conlan and Cooper control.
Because there was probable cause to believe that the car was “an instrument
or evidence of crime,” its seizure did not require a warrant. Id.
5

The district court’s finding determined that exigent circumstances at
least partially justified the seizure. Plaintiff makes much of a supposed lack

3
The Supreme Court recently held that the automobile exception does not apply
to a car parked within the curtilage of a home. Collins v. Virginia, 138 S. Ct. 1663, 1671
(2018). Although unlikely, it is at least conceivable that a car parked in an apartment
complex parking lot would be within the dwelling’s curtilage. See Mack v. City of Abilene,
461 F.3d 547, 553–54 (5th Cir. 2006) (per curiam) (holding that a vehicle parked in an
apartment complex parking lot was not within the apartment’s curtilage). In any event,
plaintiff does not assert that the vehicle was within the curtilage of the dwelling. Collins,
therefore, is inapposite.
4
See United States v. Jones, 893 F.3d 66, 72 (2d Cir. 2018) (holding that there is no
reasonable expectation of privacy in a parking lot accessible to other tenants of a multi-
family home); see also Florida v. White, 526 U.S. 559, 566 (1999) (“[B]ecause the police
seized respondent’s vehicle from a public area—respondent’s employer’s parking lot—the
warrantless seizure also did not involve any invasion of respondent’s privacy.”); Conlan,
786 F.3d at 389 (applying Cooper’s reasoning to a car parked in motel parking lot); Mack,
461 F.3d at 554.
5
Plaintiff does not argue that Green lacked probable cause to believe that the
Saturn was an instrument or evidence of crime.
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of exigent circumstances justifying the seizure. Had he been apprised of Con-
lan and Cooper, he would realize the folly of that argument. “[P]robable cause
alone” justifies seizing a vehicle if “the car itself is an instrument or evidence
of crime.” Id. Additional exigencies beyond the ready mobility of the vehicle
are unnecessary to justify the seizure. Conlan, 786 F.3d at 389 (citing United
States v. Sinisterra, 77 F.3d 101, 104 (5th Cir. 1996)). Therefore, the finding
of exigent circumstances is irrelevant.
Because there was probable cause to believe the car was an instrument
or evidence of crime, a warrant was not required to seize it. The seizure did
not violate the Fourth Amendment, so Lopinto is entitled to QI, and we
AFFIRM.
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