Amicus Curiae Brief — Randy Johnson, Petitioner v. United States

No. 17-1349

In the Supreme Court of the United States

__________

RANDY N. JOHNSON,

PETITIONER

v.

UNITED STATES OF AMERICA,

RESPONDENT

__________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

__________

BRIEF OF FOURTH AMENDMENT SCHOLARS AS

AMICI CURIAE

IN SUPPORT OF PETITIONER

__________

PATRICK BANNON

WINSTON & STRAWN LLP

200 Park Avenue

New York, NY 10166

(212) 294-6700

LINDA T. COBERLY

Counsel of Record

SEAN H. SUBER

NEHA NIGAM

WINSTON & STRAWN LLP

35 West Wacker Drive

Chicago, IL 60601

(312) 558-5600

LCoberly@winston.com

Counsel for Amici Curiae

QUESTION PRESENTED

In Whren v. United States, 517 U.S. 806 (1996),

this Court held that the Fourth Amendment did not

prohibit a pretextual traffic stop, as long as there was

probable cause to believe that the driver had committed a moving violation. The majority explained that in

that context, “[s]ubjective intentions play no role.” Id.

at 813. In this case, the Seventh Circuit extended

Whren to allow a pretextual seizure based on probable

cause to believe that there had been a civil parking infraction. This decision—which conflicts with state

court decisions addressing similar infractions—threatens to undermine any “reasonableness” limitation on

seizures and to create virtually unbridled police power

to engage in racial profiling and interfere with the liberty of private citizens.

With this context, the question presented in this

case is:

Whether the Fourth Amendment forbids a pretextual and intrusive seizure based solely on probable

cause to suspect a civil parking infraction.

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... iii

INTRODUCTION AND INTEREST OF AMICUS

CURIAE ....................................................................... 1

STATEMENT............................................................... 2

REASONS FOR GRANTING THE PETITION .......... 3

I.

This Court should grant review to resolve

a disagreement about what officers may or

may not do based on a minor, non-moving

civil infraction. .................................................. 4

A. Courts disagree about whether officers

can conduct a seizure and attendant

search based on a minor, non-moving

civil infraction......................................... 5

B. The issue underlying the conflict

implicates concerns already identified

by members of this Court ....................... 9

II.

This case provides the Court with an excellent

vehicle to consider the circumstances under

which an officer’s subjective motivation

should play a role in the analysis. .................. 10

III.

If allowed to stand, the Seventh Circuit’s

extension of Whren will exacerbate the ill

effects that Whren has already created. ........ 16

CONCLUSION .......................................................... 19

APPENDIX

iii

TABLE OF AUTHORITIES

CASES

Arizona v. Gant,

556 U.S. 332 (2009) .................................................. 5

Arizona v. Johnson,

555 U.S. 323 (2009) .................................................. 5

Arkansas v. Sullivan,

532 U.S. 769 (2001) .............................................. 4, 9

Atwater v. Lago Vista,

532 U.S. 318 (2001) .................................................. 4

City of Indianapolis v. Edmond,

531 U.S. 32 (2000) .................................................. 15

Colorado v. Bannister,

449 U.S. 1 (1980) ...................................................... 5

Delaware v. Prouse,

440 U.S. 648 (1979) ................................................ 14

District of Columbia v. Wesby,

138 S. Ct. 577 (2018) .......................................... 4, 10

Flores v. Palacios,

381 F.3d 391 (5th Cir. 2004) .................................... 6

Florida v. Jardines,

569 U.S. 1 (2013) .................................................... 11

Heien v. North Carolina,

135 S.Ct. 530 (2014) ................................................. 6

Illinois v. Caballes,

543 U.S. 405 (2005) .................................................. 5

In re Calvin S.,

930 A.2d 1099 (Md. Ct. Spec. App. 2007) ................ 8

iv

Knowles v. Iowa,

525 U.S. 113 (1998) ................................................ 13

Maryland v. King,

569 U.S. 435 (2013) ................................................ 15

Maryland v. Wilson,

519 U.S. 408 (1997) .......................................... 1, 5, 9

Michigan v. Long,

463 U.S. 1032 (1983) ................................................ 5

Rodriguez v. United States,

135 S. Ct. 1609 (2015) ...................................... 12, 13

State v. Duncan,

43 P.3d 513 (Wash. 2002) ........................................ 8

State v. Holmes,

569 N.W.2d 181 (Minn. 1997) .......................... 6, 7, 8

Terry v. Ohio,

392 U.S. 1 (1968) ...................................................... 5

United States v. Choudhry,

461 F.3d 1097 (9th Cir. 2006) .................................. 6

United States v. Copeland,

321 F.3d 582 (6th Cir. 2003) .................................... 6

United States v. Johnson,

874 F.3d 571 (7th Cir. 2017) .......................... passim

Utah v. Strieff,

136 S. Ct. 2056 (2016) ............................................ 17

Whren v. United States,

517 U.S. 806 (1996) ........................................ passim

v

OTHER AUTHORITIES

David A. Harris, Addressing Racial Profiling in the

States: A Case Study of the “New Federalism” in

Constitutional Criminal Procedure,

3 U. PA. J. CONST. L. 367 (2001) ............................. 17

David A. Harris, “Driving While Black” and All

Other Traffic Offenses: The Supreme Court and

Pretextual Traffic Stops, 87 J. CRIM. L. &

CRIMINOLOGY 544 (1997) ........................................ 16

Devon W. Carbado, From Stopping Black People to

Killing Black People: The Fourth Amendment

Pathways to Police Violence, 105 CALIF. L.

REV. 125 (2017)....................................................... 19

How Does Chicago Make $200 Million A Year on

Parking Tickets? By Bankrupting Thousands of

Drivers, MOTHER JONES, Feb. 27, 2018 ................. 17

John Byrne, Emanuel wants more weekend parking

tickets, CHICAGO TRIBUNE, Oct. 24, 2017 .............. 17

Jonathan Blanks, Thin Blue Lies: How Pretextual

Stops Undermine Police Legitimacy, 66 CASE W.

RES. L. REV. 931 (2016) .......................................... 18

Jonathan Witmer-Rich, Arbitrary Law Enforcement

Is Unreasonable: Whren’s Failure to Hold Police

Accountable for Traffic Enforcement Policies, 66

CASE W. RES. L. REV. 1059 (2016) .......................... 18

Jordan B. Woods, Decriminalization, Police

Authority, and Routine Traffic Stops, 62

UCLA L. REV. 672 (2015) ....................................... 12

Robert H. Jackson, THE FEDERAL PROSECUTOR,

ADDRESS DELIVERED AT THE SECOND ANNUAL

CONFERENCE OF UNITED STATES ATTORNEYS

(Apr. 1, 1940) .......................................................... 16

vi

Sarah A. Seo, The New Public,

125 YALE L.J. 1616 (2016) ........................................ 6

Seth W. Stoughton, Principled Policing: Warrior

Cops & Guardian Officers, 51 WAKE FOREST

L. REV. 611 (2016) .................................................. 19

U.S. Dep’t of Just., INVESTIGATION OF THE BALTIMORE

CITY POLICE DEPARTMENT (2016) ........................... 17

U.S. Dep’t of Just., INVESTIGATION OF THE FERGUSON

CITY POLICE DEPARTMENT (2015) ........................... 18

INTRODUCTION AND

INTEREST OF AMICUS CURIAE *

A bare majority of the en banc Seventh Circuit has

held that the Fourth Amendment does not prohibit a

dramatic and intrusive seizure of a passenger in a

parked car as long as the objective circumstances enable the officer to rely on the pretext of a parking violation. United States v. Johnson, 874 F.3d 571 (7th Cir.

2017). This decision represents a significant extension

of Whren v. United States, 517 U.S. 806 (1996), which

permits a pretextual stop if the officer has probable

cause to believe that the driver committed a moving

violation. The Seventh Circuit’s decision stands in

conflict with state court decisions that have held that

minor civil infractions require a different Fourth

Amendment analysis. Indeed, the Seventh Circuit’s

approach threatens to remove any sense of “reasonableness” in Fourth Amendment analysis and poses a

serious “risk of arbitrary control by the police.” Maryland v. Wilson, 519 U.S. 408, 423 (1997) (Kennedy, J.,

dissenting).

Amici are legal scholars with decades of experience

studying the Fourth Amendment and its impact on

American society. See Appendix (listing the scholars

joining this brief). They respectfully submit this brief

to alert the Court to the Seventh Circuit’s problematic

* Pursuant to Rule 37.2, counsel for amici provided ten days’

notice of its intention to file this brief. All parties have

consented, and letters evidencing that consent are on file

with the Clerk. No counsel for any party authored this brief

in whole or in part, and no person or entity has made a monetary contribution intended to fund the preparation or submission of this brief. See R. 37.6.

2

extension of Whren, and they urge this Court to grant

review to resolve the conflict.

Amici further urge the Court to use this case as an

opportunity to consider the issue of pretextual seizures

more broadly, exploring when it may be appropriate to

consider the officer’s true motivation. At a minimum,

when the only available basis for the seizure is a civil

parking violation—which normally requires the officer

to do nothing more than write out a parking citation

and drop it on the windshield of an unoccupied vehicle—the fact that the officer acted pursuant to an ulterior motive must play some role in the analysis. To

hold otherwise would be to sanction virtually unlimited police power to intrude on the civil liberties of private citizens.

STATEMENT

On a cold winter night in Milwaukee, five police officers in two police cars patrolled a neighborhood looking for small infractions in the hope of finding “bigger

and better things.” The officers came upon a vehicle

parked within 15 feet of a crosswalk, apparently in violation of a civil parking restriction. The driver was

not present.

Rather than simply noting the license number and

writing a parking citation, the officers used their cars

to box the vehicle in and turned on blinding spotlights.

As the officers approached the car, one noticed a passenger moving in a manner suggesting that he was

hiding something “such as alcohol, drugs, or a gun.”

The officers then removed the occupants from the vehicle and put them in handcuffs. The officers found a

handgun in the vehicle and later charged the passenger, Randy N. Johnson, with possessing a firearm illegally. No parking citation was ever issued.

3

Johnson moved to suppress the evidence obtained

during the search of the car. The district court denied

the motion, holding that neither the initial seizure of

the car and its occupants nor the subsequent seizures

of the occupants themselves violated the Fourth

Amendment. A divided Seventh Circuit, sitting en

banc, affirmed the district court’s decision, with the

majority concluding that Whren applies to parking violations as well as moving violations.

REASONS FOR GRANTING THE PETITION

Virtually everyone has committed a parking violation at some point in time, knowingly or not. Usually,

this results in nothing more than an orange ticket under the windshield wiper—often issued by a city employee rather than a police officer—and a civil fine.

The person issuing the ticket need not do anything

other than write out the citation (often from the comfort of his or her own vehicle) and put it on the offending car. There is no need to gather information about

the driver or the car’s occupants; the only relevant information is about the vehicle itself. No investigation

or search is required, and no arrest is permitted.

In the Seventh Circuit, however, officers now also

have the power to use a parking violation as a pretext

to obstruct the car, force any occupants out of the vehicle, and look for evidence that something “bigger and

better” is going on. This opens the door for abuse, allowing a parking violation to serve as a cover for racial

profiling and other biases. The cost to civil liberties is

dramatic.

The Seventh Circuit’s decision conflicts with governing authority in at least three states, and this

Court should grant a writ of certiorari to resolve the

conflict. The issue is a critical one, as it implicates the

4

“‘epidemic of unnecessary minor-offense arrests’” that

erode the core of the Fourth Amendment and undermine the pillars of a free society. See Arkansas v. Sullivan, 532 U.S. 769, 773 (2001) (Ginsburg, J., concurring) (quoting Atwater v. Lago Vista, 532 U.S. 318, 353

(2001)).

In addition, this case gives the Court the opportunity to “reexamin[e]” the “path charted in Whren”

and clarify “whether a police officer’s reason for acting,

in at least some circumstances, should factor into the

Fourth Amendment inquiry.” District of Columbia v.

Wesby, 138 S. Ct. 577, 594 (2018) (Ginsburg, J., concurring in the judgment in part). At a minimum, the

“reasonableness” and “balance” embodied in the

Fourth Amendment require considering whether the

officer acted on an ulterior motive when he conducted

an intrusive seizure based on a mere parking violation.

I.

This Court should grant review to resolve a disagreement about what officers may or may not

do based on a minor, non-moving civil infraction.

This Court has held that an officer’s true motivations for making a traffic stop are irrelevant, as long

as he had probable cause to believe that the driver had

committed a moving violation. Whren, 517 U.S. at

808. Courts disagree about whether this rule extends

to minor civil infractions, like parking violations. This

Court should grant certiorari to resolve that conflict—

and to avoid the extraordinary expansion of police

power that the Seventh Circuit’s approach represents.

5

A.

Courts disagree about whether officers can

conduct a seizure and attendant search

based on a minor, non-moving civil infraction.

In Terry v. Ohio, 392 U.S. 1 (1968), this Court

authorized investigatory stops without a warrant

when the police officer has a reasonable suspicion that

a person is engaged or is about to engage in a crime.

In Whren, this Court extended Terry to permit

intrusive traffic stops based on the pretext of

investigating a moving violation.

As Judge Hamilton noted in his dissent below,

“[t]his combination of constitutional decisions already

enables a host of aggressive and intrusive police

tactics.” Johnson, 874 F.3d at 577. For example:

Officers who have probable cause for a

trivial traffic violation can stop the car

under Whren and then order all occupants out of the car, Maryland v. Wilson,

519 U.S. 408 (1997), often frisk them, Arizona v. Johnson, 555 U.S. 323 (2009),

question them in an intimidating way,

visually inspect the interior of the car,

Colorado v. Bannister, 449 U.S. 1, 4 & n.3

(1980), often search at least portions of

the vehicle’s interior, Arizona v. Gant,

556 U.S. 332 (2009); Michigan v. Long,

463 U.S. 1032 (1983), and hold the driver

and passengers while a drug-detection

dog inspects the vehicle, Illinois v. Caballes, 543 U.S. 405, 406–08 (2005).

Id. at 577–78. In addition, Terry and Whren permit a

pretextual seizure even when the pretext is based on

6

an officer’s mistake of law or fact. Heien v. North Carolina, 135 S.Ct. 530, 536 (2014). The traffic stop has

thus effectively become “‘the twentieth-century version of the general warrant.’” Johnson, 874 F.3d at 575

(quoting Sarah A. Seo, The New Public, 125 YALE L.J.

1616, 1669 (2016)).

By extending Whren to a minor parking violation,

the Seventh Circuit has dramatically expanded these

already broad police powers. Now, in the Seventh Circuit, the occupant of a car who is digging around for

coins to feed an expired parking meter could be seized

and searched, facing potential prosecution based on

anything the search uncovers. Other circuits have applied a similar analysis, holding that in the case of a

parking violation, if the driver chooses to leave the

scene, he can be chased, seized, and searched, and the

proceeds of that search may be used against him. See

Flores v. Palacios, 381 F.3d 391, 402–03 (5th Cir.

2004); United States v. Copeland, 321 F.3d 582, 594

(6th Cir. 2003); United States v. Choudhry, 461 F.3d

1097, 1101 (9th Cir. 2006). These decisions further illustrate the dangers of allowing Whren to stand without clarification.

The courts of several states have interpreted the

Fourth Amendment differently, holding that the “reasonableness” inherent in the Fourth Amendment

would not permit a seizure based on probable cause to

believe the individual committed a minor civil infraction. In State v. Holmes, for example, the Supreme

Court of Minnesota concluded that police officers may

not seize an individual merely because he had parked

illegally. 569 N.W.2d 181, 184 (Minn. 1997). In

Holmes, a parking monitor discovered a car parked

without a permit and, after learning that the car had

several unpaid parking tickets, called a tow truck. Id.

7

at 182. When the driver returned to the car, the monitor called for assistance and an officer arrived on the

scene. Id. at 182–83. The officer detained the driver,

obtained his keys, and found a handgun in the locked

glove compartment. Id. at 183–84. He then arrested

the driver on a charge of unlawfully possessing a gun.

Id. at 184. The court held “that the police officer’s seizure of [the driver] was unreasonable and therefore

unconstitutional” and therefore “[affirmed] the trial

court’s order suppressing all the evidence that came as

a result of the subsequent frisk and interrogation.” Id.

at 185–86.

Notably, the court in Holmes ultimately concluded

that, because this Court limited seizures under Terry

“to those situations where the suspected violation is

serious,” “a police officer who merely has reasonable

suspicion that a parking violation has occurred cannot

seize an individual for the purpose of investigation.”

Id. at 185. In such a case, the Fourth Amendment

analysis must take account of whether the officer was

acting with an ulterior motive. As the Holmes court

explained,

A police officer who has probable cause to

believe that a person has committed a

parking violation can stop the person

only if the stop is necessary to enforce the

violation, for example, if a person is attempting to drive off with an illegally

parked car before the officer can issue the

ticket. We conclude, as did the trial court,

that the officer did not stop Holmes for

the purpose of enforcing the known violation. Not only do police officers typically

enforce parking violations by applying a

ticket to the parked car, the facts show

8

that the parking monitor on the scene already had enforced the violation by issuing the ticket and ordering the tow.

Ibid. Central to the Court’s reasoning was the fact

that parking violations are inherently different from

the moving violations at issue in Whren and therefore

require a different analysis under the Fourth Amendment. Ibid. (“Although there has been much debate

over what types of violations are serious enough to

merit a Terry stop, there can be no debate that a parking violation is not among them.”).

Other states have conducted a similar analysis for

minor civil infractions outside the context of parking.

In State v. Duncan, the Supreme Court of Washington

found that the Fourth Amendment did not permit an

officer to seize an individual to investigate the suspected possession of an open container of alcohol in

public. 43 P.3d 513 (Wash. 2002). The court recognized that Terry applies to traffic violations, but it concluded that such an extension would “not be appropriate for other civil infractions.” Id. at 517. And in In

re Calvin S., the Maryland Court of Special Appeals

similarly concluded that Terry did not allow a seizure

based on suspicion that an individual was using tobacco as a minor. 930 A.2d 1099, 1102, 1107 (Md. Ct.

Spec. App. 2007). According to the court, a “confrontation between an officer and a person who is subject to

being issued a citation for a civil offense does not meet

the standard for a Terry stop absent some other basis

to suspect that criminal activity is afoot.” Ibid.

These decisions reflect a fundamentally different

approach to the Fourth Amendment than the one

adopted by the Seventh Circuit in this case. There is

9

no reason to believe that the conflict will resolve itself;

this Court will need to address it.

B.

The issue underlying the conflict implicates

concerns already identified by members of

this Court.

Since Whren was decided, members of this Court

have cautioned that there must be limits on Whren’s

scope and that Fourth Amendment analysis must

maintain some semblance of balance to protect civil

liberties.

In Maryland v. Wilson, for example, this Court held

that an “officer making a traffic stop may order passengers to get out of the car pending completion of the

stop.” 519 U.S. 408, 415 (1997). The dissent argued

that this holding, coupled with Whren, put “tens of

millions of passengers at risk of arbitrary control by

the police” in a manner that could leave the Fourth

Amendment “diminished in a most public way.” Id. at

423 (Kennedy, J., dissenting).

In Arkansas v. Sullivan, the Court reiterated the

central holding of Whren—that the “‘[s]ubjective intentions [of an officer who seizes an individual] play no

role in ordinary, probable-cause Fourth Amendment

analysis.’” 532 U.S. 769, 772 (2001) (quoting Whren,

517 U.S. at 813). Yet the dissent warned that if an

“epidemic of unnecessary minor-offense arrests” were

to arise, Whren and its progeny may need to be “reconsider[ed],” given the Fourth Amendment implications.

Id. at 773 (Ginsburg, J., dissenting).

As discussed in more detail below, extending

Whren to parking violations would only exacerbate

these concerns. This case provides an opportunity to

address this broad and serious issue and to prevent the

undermining of Fourth Amendment protections. As

10

this Court has noted, “fidelity” to the Fourth Amendment is not “achieved [ ] * * * by a judge who instinctively goes furthest in accepting the most restrictive

claims of governmental authorities.” Illinois v. Gates,

462 U.S. 213, 241 (1983). “The task of this Court, as

of other courts, is to ‘hold the balance true.’” Ibid.

II.

This case provides the Court with an excellent

vehicle to consider the circumstances under

which an officer’s subjective motivation should

play a role in the analysis.

Granting a writ of certiorari in this case would give

the Court an opportunity to revisit the question of pretextual seizures more broadly—and, specifically, the

circumstances under which a Fourth Amendment

analysis should take the officer’s subjective motivation

(and any mismatch with the pretext) into account. The

concurrence in Wesby was justifiably “concerned” that

“the path [ ] charted in Whren” “set[ ] the balance too

heavily in favor of police unaccountability to the

detriment of Fourth Amendment protection.” 138 S.

Ct. at 594. That concurrence urged the Court to

“reexamin[e]” the “path charted in Whren” and clarify

“whether a police officer’s reason for acting, in at least

some circumstances, should factor into the Fourth

Amendment inquiry.” Ibid. At a minimum, such circumstances should include seizures for which the pretext is a common civil parking infraction.

A decade before Whren, this Court recognized that

an evaluation of a Terry stop must “balance[ ] the nature and quality of the intrusion on personal security

against the importance of the governmental interests

alleged to justify the intrusion.” United States v.

Hensley, 469 U.S. 221, 228 (1985). Whren itself echoed this principle, explaining that “every Fourth

11

Amendment case * * * turns upon a ‘reasonableness’

determination” and “involves a balancing of all

relevant factors.” 517 U.S. at 817.

Even when the question before the court is

“whether the officer’s conduct was [ ] objectively reasonable,” it is proper—at least in some instances—to

examine whether the officer’s “behavior objectively reveals a purpose to conduct a search, which [ ] not [ ]

anyone would think he had license to do.” Florida v.

Jardines, 569 U.S. 1, 10 (2013) (emphasis added). And

Whren itself recognizes the danger of “police attempts

to use valid bases of action against citizens as pretexts

for pursuing other investigatory agendas.” 517 U.S. at

811. Here, the minor nature of the parking violation

and the unnecessarily dramatic nature of the stop objectively reveal a purpose to conduct a search for something “bigger and better” than a parking violation—a

search that no one would think the officers had license

to conduct. And the testimony of the officers confirms

that this was, in fact, their true intent.

The Seventh Circuit’s decision illustrates how far

Whren’s progeny have strayed from this principle of

balance and reasonableness. According to the Seventh

Circuit, Whren prescribes a black-and-white rule that

makes ulterior motives irrelevant and that applies in

all cases involving some kind of “violation” without distinction, because the principles that underlie Whren

“are of general application.” Johnson, 874. F.3d at 574

(citations omitted). That cannot be the law. Again, a

Fourth Amendment analysis must “balance[ ] the nature and quality of the intrusion * * * against the importance of the governmental interests alleged to justify the intrusion.” Hensley, 469 U.S. at 228. Where

12

the “governmental interests alleged to justify the intrusion” have to do with civil parking regulations, it

should matter that the officer had an ulterior motive.

There are critical differences between a moving violation and a parking violation. The most obvious difference is logistical: If an officer is going to issue a citation for a moving violation, he must first stop the car.

By definition, a parking violation involves a vehicle

that is already stopped. All that is required is for the

officer to write a citation and put it on the car. In many

jurisdictions, in fact, this function is not carried out by

police officers at all; it is carried out by parking enforcement officials who have no badge, no handcuffs,

no weapon, and no power to detain.

As this Court held just two years ago, a seizure for

a particular violation “justifies a police investigation of

that violation” and nothing more. See Rodriguez v.

United States, 135 S. Ct. 1609, 1614 (2015) (emphasis

added). As a result, a court must evaluate the reasonableness of the officer’s conduct in the context of the

officer’s “mission” to investigate that particular violation. “On-scene investigation into other [violations]

* * * detours from th[e] mission. So too do safety precautions taken in order to facilitate such detours.” Id.

at 1616. The officer’s task is simply to “address[] the

infraction” at hand. Id. at 1614 (citation omitted).

For moving violations, it may well be that this limitation is more honored in the breach. As one scholar

has observed, “[m]any of the investigative tactics that

can quickly transform a non-criminal traffic stop into

a criminal one do not directly further the interest of

traffic safety.” Jordan B. Woods, Decriminalization,

Police Authority, and Routine Traffic Stops, 62 UCLA

L. REV. 672, 749 (2015).

13

For a parking violation, however, the officer’s “mission” in addressing the violation is even more straightforward: write a citation and put it on the car. This

“mission” does not require any interaction with anyone

who happens to be in the vehicle. It does not include

the “‘ordinary inquiries incident to [a traffic] stop’”—

like “checking the driver’s license, determining

whether there are outstanding warrants against the

driver, and inspecting the automobile’s registration

and proof of insurance.” Rodriguez, 135 S. Ct. at 1615

(citations omitted). In addition, issuing a parking

ticket generally does not align with the typical types of

encounters so “‘especially fraught with danger to police

officers’” that “an officer may need to take certain negligibly burdensome precautions in order to complete

his mission safely.” Id. at 1616 (citation omitted). 1 In

most cases, in fact, the vehicle will have no one inside.

And if the facts in a particular case show a basis for

concluding that the officer was actually in danger, a

more case-specific balancing inquiry can take those

facts into account.

Moving and parking violations also differ significantly in terms of the gravity of the matter to be regulated. In general, laws relating to moving vehicles

(civil or not) are likely to focus on public safety—for

example, preventing unsafe speeds near schools or on

highways, avoiding accidents at intersections, and discouraging texting while driving. Parking regulations,

1 See also Knowles v. Iowa, 525 U.S. 113, 117 (1998) (noting that

even for a moving violation, “[t]he threat to officer safety * * * is

a good deal less than in the case of a custodial arrest” because of

“the extended exposure which follows the taking of a suspect into

custody and transporting him to the police station”).

14

on the other hand, are likely to focus on public convenience—for example, allowing sufficient access for local

residents, businesses, snow plows, and street cleaners

(and, of course, providing fee revenue to the city or

town, see infra at 17). The degree of intrusion justified

by the parking violation should be correspondingly minor—and certainly should not involve two police cruisers, multiple officers, and bright searchlights.

In this sense, a parking violation is more like an

administrative inspection, to which this Court has applied a different analysis. In such cases—involving

random traffic stops and checkpoints, for example—

the Court’s “reasonableness” analysis has included an

examination of the officer’s actual purpose in making

the search. See Whren, 517 U.S. at 812 (in the context

of “administrative inspection,” the Court has found on

several occasions that “an officer’s motive invalidates

objectively justifiable behavior under the Fourth

Amendment,” and collecting cases). It has followed

this approach even when the authorities conclude that

such stops would serve roadway safety. As the Court

has explained, “[t]he marginal contribution to roadway

safety possibly resulting from [a random checkpoint

stop] cannot justify subjecting every occupant of every

vehicle on the roads to a seizure * * * at the unbridled

discretion of law enforcement officials.” Delaware v.

Prouse, 440 U.S. 648, 661 (1979).

To be sure, the Court in Whren distinguished these

cases from a traffic stop based on a moving violation,

because the analysis requiring “probable cause” to believe there was a violation “afford[s] the ‘quantum of

individualized suspicion’ necessary to ensure that

police discretion is sufficiently constrained.” 517 U.S.

at 817–18 (quoting Prouse, 440 U.S. at 654–55). This

15

analysis—even when applied to civil moving violations—has had concerning effects, as discussed below.

But civil parking violations are different both in gravity and in the level of intrusion required for enforcement. Applied to civil parking violations, the analysis

in Whren becomes divorced from any concept of balance or “reasonableness.”

As Justice Scalia once observed, some law enforcement activities—including such important activities

as solving unsolved crimes— “occup[y] a lower place in

the American pantheon of noble objectives than the

protection of our people from suspicionless law-enforcement searches.” Maryland v. King, 569 U.S. 435,

481 (2013) (Scalia, J., dissenting). This is precisely

why a Fourth Amendment balancing analysis must

take into account the nature of the law enforcement

activity used to justify the intrusion—in all cases, and

particularly in cases involving parking violations.

“Without drawing the line at [police conduct] designed

primarily to serve the general interest in crime control, the Fourth Amendment would do little to prevent

such intrusions from becoming a routine part of American life.” City of Indianapolis v. Edmond, 531 U.S. 32,

42 (2000).

This case presents an ideal vehicle for revisiting

the broader question of pretextual stops, as the facts

are stark. The violation was truly minor and posed no

imminent risk to public safety. Despite this, the officers approached the car aggressively, boxing it in with

their own vehicles and shining bright lights into the

eyes of anyone who happened to be inside. The nature

of this approach provides objective evidence of the officers’ true ulterior motive; indeed, one of the officers

openly admitted that they were “look[ing] for smaller

infractions and hop[ing] that possibly they may lead to

16

bigger and better things.” Johnson, 874 F.3d at 577.

Thus the officers admittedly took advantage of a common parking violation—which required nothing more

than writing out a citation and placing it on the windshield—to conduct an intrusive (and terrifying) seizure and search on the chance that they might find

something more. A meaningful Fourth Amendment

analysis requires considering all of these facts.

III.

If allowed to stand, the Seventh Circuit’s extension of Whren will exacerbate the ill effects that

Whren has already created.

Whren has already had a detrimental impact on

civil liberties in this country, and the Seventh Circuit’s

decision will make this situation far worse. As Judge

Hamilton noted, “[p]olice officers are trained to

exploit” the powers that Whren allows in the hope that

seizures for “smaller infractions * * * may lead to

bigger and better things.” Johnson, 874 F.3d at 577.

If Whren applies in the same manner to seizures based

on probable cause relating to minor civil infractions, it

would allow police virtually unbridled discretion.

Even Whren itself creates the possibility of significant abuse, given that “full compliance with the traffic

laws is impossible.” David A. Harris, “Driving While

Black” and All Other Traffic Offenses: The Supreme

Court and Pretextual Traffic Stops, 87 J. CRIM. L. &

CRIMINOLOGY 544, 582 (1997); see also Robert H.

Jackson, THE FEDERAL PROSECUTOR, ADDRESS

DELIVERED AT THE SECOND ANNUAL CONFERENCE OF

UNITED STATES ATTORNEYS (Apr. 1, 1940), available at

https://goo.gl/DWnkJ4 (“We know that no local police

force can strictly enforce the traffic laws, or it would

arrest half the driving population on any given

morning.”).

17

Since this Court’s conclusion in Whren that the

Fourth Amendment permits pretextual traffic stops,

such stops have become a matter of official police

policy in departments across the country. See Utah v.

Strieff, 136 S. Ct. 2056, 2069 (2016) (Sotomayor, J.,

dissenting); David A. Harris, Addressing Racial

Profiling in the States: A Case Study of the “New

Federalism” in Constitutional Criminal Procedure, 3

U. PA. J. CONST. L. 367, 384 (2001) (“By all indications,

pretextual traffic stops have increased markedly all

over the country since the Whren decision.”).

Extending Whren to parking violations would

make matters far worse, given the ubiquity of these

violations and the abuses that already occur. In the

first half of 2017 alone, the City of Chicago issued 1.1

million parking tickets. See John Byrne, Emanuel

wants more weekend parking tickets, CHICAGO TRIBUNE, Oct. 24, 2017; see also How Does Chicago Make

$200 Million A Year on Parking Tickets? By Bankrupting Thousands of Drivers, MOTHER JONES, Feb. 27,

2018 (reporting that annually, the City issues more

than 3 million tickets for parking, vehicle compliance,

and automated traffic camera violations).

More broadly, in its investigation of police

departments nationwide, the U.S. Department of

Justice found that police already have incentives to

seize individuals for trivial reasons. In Baltimore, for

example, officers attempted to avoid discipline and

boost their number of stops and arrests by engaging in

“blanket enforcement of low level offenses.” U.S. Dep’t

of Just., INVESTIGATION OF THE BALTIMORE CITY

POLICE DEPARTMENT 42 (2016), available at

http://bit.ly/2staAmu. And in its investigation in

Ferguson, Missouri, the Department of Justice found

that “[p]atrol assignments and schedules are geared

18

toward aggressive enforcement of

Ferguson’s

municipal code, with insufficient thought given to

whether enforcement strategies promote public safety

or unnecessarily undermine community trust and

cooperation.” U.S. Dep’t of Just., INVESTIGATION OF

THE FERGUSON CITY POLICE DEPARTMENT 7 (2015),

available at http://bit.ly/2FGzNAa. Even in this case,

an officer testified that “part of our initiative is to look

for smaller infractions and hope that possibly they

may lead to bigger and better things.” Johnson, 874

F.3d at 576. Thus, police and municipalities are already using low-level infractions to meet their goals,

budgets, and broader aims of finding evidence of crime.

Adding parking violations into the mix not only

sanctions this practice but risks its escalation.

Permitting pretextual seizures based on parking

violations and other minor civil infractions would also

undermine the relationship of trust between the citizenry and the police. Much of the criticism of Whren

and its progeny has focused on the way pretextual

stops for minor traffic infractions “undermine the

perceptions of legitimacy of law enforcement.”

Jonathan Blanks, Thin Blue Lies: How Pretextual

Stops Undermine Police Legitimacy, 66 CASE W. RES.

L. REV. 931, 932 (2016). This is especially true when

minor infractions are enforced arbitrarily and discriminatorily. See Jonathan Witmer-Rich, Arbitrary Law

Enforcement Is Unreasonable: Whren’s Failure to

Hold Police Accountable for Traffic Enforcement

Policies, 66 CASE W. RES. L. REV. 1059 (2016). This

lack of trust and legitimacy would undermine police

safety as well, if citizens have reason to fear that a police encounter over even the most trivial infraction

could lead to an intrusive seizure.

19

It is unfortunately easy to see how one thing can

lead to another. As Judge Hamilton recognized, if the

police have the power to seize a person based on the

pretext of a parking violation—no matter their true intent—then they also have the power “to require the

subject to submit to the stop, and to use reasonable

force in doing so.” Johnson, 874 F.3d at 578 (citing

Hensley, 469 U.S. at 235). And if in the process the

officer misperceives the danger to himself—because of

implicit bias, explicit bias, or simple mistake—what

began as a harmless parking violation could well end

in tragedy. See Devon W. Carbado, From Stopping

Black People to Killing Black People: The Fourth

Amendment Pathways to Police Violence, 105 CALIF.

L. REV. 125 (2017) (reviewing effects of the extension

of Terry to Whren); Seth W. Stoughton, Principled Policing: Warrior Cops & Guardian Officers, 51 WAKE

FOREST L. REV. 611, 652–58 (2016) (explaining how an

aggressive approach to police-civilian encounters can

put both officers and civilians at risk).

By allowing pretextual stops in increasingly trivial

circumstances, the Seventh Circuit’s approach would

increase the incentives and risks of discriminatory

enforcement, undermine trust between police and the

citizenry, raise the danger level in urban communities,

and threaten the civil liberties of all. This is a critical

issue, and this Court should intervene to address it.

CONCLUSION

For all of these reasons, and for those stated by the

petitioner and the forceful dissent below, this Court

should grant the writ of certiorari.

20

Respectfully submitted.

PATRICK BANNON

WINSTON & STRAWN LLP

200 Park Avenue

New York, NY 10166

(212) 294-6700

APRIL 2018

LINDA T. COBERLY

Counsel of Record

SEAN H. SUBER

NEHA NIGAM

WINSTON & STRAWN LLP

35 West Wacker Drive

Chicago, IL 60601

(312) 558-5600

LCoberly@winston.com

APPENDIX

Susan Bandes

Emeritus Centennial Distinguished Professor of Law

DePaul University College of Law*

25 East Jackson Blvd

Chicago, IL 60604

Devon W. Carbado

Associate Vice Chancellor of BruinX for Equity,

Diversity and Inclusion and the Honorable Harry

Pregerson Professor of Law

UCLA School of Law*

385 Charles E. Young Dr. East

Los Angeles, CA 90095

Gabriel “Jack” Chin

Edward L. Barret Jr. Chair of Law, Martin Luther

King, Jr. Professor of Law, and Director of Clinical

Legal Education

University of California, Davis School of Law*

400 Mrak Hall Drive

Rm. 2102 King Hall

Davis, CA 95616

Joshua Dressler

Distinguished University Professor and the Frank R.

Strong Chair in Law

Ohio State University Moritz College of Law*

55 W 12th Ave

Drinko 331

Columbus, OH 43210

2

Jeffrey A. Fagan

Isidor and Seville Sulzbacher Professor of Law

Columbia Law School*

Jerome Greene Hall

Room 916

435 West 116th Street

New York, NY 10027

Chad W. Flanders

Associate Professor of Law

Saint Louis University School of Law*

100 North Tucker Blvd.

Room 848

St. Louis, MO 63101

K. Babe Howell

Professor of Law

CUNY School of Law*

2 Court Square

Office 6-318

Long Island City, NY 11101

L. Song Richardson

Dean and Professor of Law

University of California, Irvine School of Law*

401 E. Peltason Drive

Law 3800-F

Irvine, CA 92697-8000

Christopher Slobogin

Milton R. Underwood Chair in Law

Director, Criminal Justice Program

Vanderbilt University Law School*

131 21st Ave South

Nashville, TN 37203

3

Seth W. Stoughton

Assistant Professor of Law

University of South Carolina School of Law*

1525 Senate Street

Room 325

Columbia, SC 29208

Michael Tonry

McKnight Presidential Professor in Criminal

Law and Policy

University of Minnesota Law School*

Mondale Hall

229 19th Avenue South

Office 312

Minneapolis, MN 55455

Jordan Blair Woods

Assistant Professor of Law

University of Arkansas School of Law*

1045 W. Maple St.

Fayetteville, AR 72701

* The academic affiliation of each professor represented is listed solely for informational purposes.