Amicus Curiae Brief — Colton W. Sievers, Petitioner v. Nebraska

No. 18-1166

In the

Supreme Court of the United States

________________________

COLTON W. SIEVERS,

v.

STATE OF NEBRASKA,

________________________

Petitioner,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Nebraska

________________________

BRIEF FOR AMICI CURIAE POLICING

PROJECT AT NEW YORK UNIVERSITY

SCHOOL OF LAW; CATO INSTITUTE;

AMERICAN CIVIL LIBERTIES UNION;

AMERICAN CIVIL LIBERTIES UNION OF

NEBRASKA; AND NAACP LEGAL DEFENSE

& EDUCATIONAL FUND, INC. IN SUPPORT

OF PETITIONER

________________________

BARRY FRIEDMAN

FARHANG HEYDARI

MARIA PONOMARENKO

POLICING PROJECT

AT NYU SCHOOL

OF LAW

40 Washington Sq. S.

New York, NY 10012

PAUL D. CLEMENT

Counsel of Record

ERIN E. MURPHY

ANDREW C. LAWRENCE

KIRKLAND & ELLIS LLP

1301 Pennsylvania Avenue, NW

Washington, DC 20004

(202) 389-5000

paul.clement@kirkland.com

Counsel for Amici Curiae

(Additional Counsel Listed on Inside Cover)

May 20, 2019

CLARK M. NEILY III

JAY R. SCHWEIKERT

CATO INSTITUTE

1000 Massachusetts

Avenue, NW

Washington, DC 20001

DAVID D. COLE

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

915 Fifteenth Street, NW

Washington, DC 20005

SHERRILYN A. IFILL

Director-Counsel

JANAI S. NELSON

SAMUAL SPITAL

JIN HEE LEE

NAACP LEGAL DEFENSE

& EDUCATIONAL

FUND, INC.

40 Rector Street, Fifth Floor

New York, NY 10006

AMY MILLER

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION OF

NEBRASKA

134 S. 13th St. #1010

Lincoln, NE 68508

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

STATEMENT OF INTEREST ................................... 1

SUMMARY OF THE ARGUMENT ........................... 3

ARGUMENT ............................................................... 6

I.

The

Framers

Adopted

The

Fourth

Amendment To Provide Safeguards Against

Arbitrary Searches By Government Officials .... 6

II. The Fourth Amendment’s Protections

Against Arbitrariness Vary Based On

Whether A Search Is “Suspicion-Based” Or

“Suspicionless.” .................................................. 11

III. The Nebraska Supreme Court Conflated

“Suspicion-Based”

And

“Suspicionless”

Searches And Thus Deprived Petitioner Of

His Fourth Amendment Rights ........................ 16

IV. Federal And State Courts Around The

Country Are Committing Similar Errors ......... 19

CONCLUSION ......................................................... 22

ii

TABLE OF AUTHORITIES

Cases

Almeida-Sanchez v. United States,

413 U.S. 266 (1973) ................................................ 11

Boyd v. United States,

116 U.S. 616 (1886) ............................................ 9, 11

Brown v. Texas,

443 U.S. 47 (1979) .................................................. 16

Bruce v. Beary,

498 F.3d 1232 (11th Cir. 2007).......................... 6, 21

Camara v. Mun. Court,

387 U.S. 523 (1967) .......................................... 11, 21

Carpenter v. United States,

138 S. Ct. 2206 (2018)...................................... 2, 3, 9

Delaware v. Prouse,

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

Entick v. Carrington (1765),

95 Eng. Rep. 807 ...................................................... 8

Florida v. Jardines,

569 U.S. 1 (2013) ...................................................... 9

Gipson v. State,

268 S.W.3d 185 (Tex. Ct. App. 2008) ................ 6, 20

Illinois v. Lidster,

540 U.S. 419 (2004) ................................ 5, 13, 18, 19

Indianapolis v. Edmond,

531 U.S. 32 (2000) ........................................ 4, 13, 14

Marcus v. Search Warrants of Prop. at 104 E.

Tenth St., Kansas City, Mo.,

367 U.S. 717 (1961) .............................................. 7, 9

iii

Maryland v. King,

569 U.S. 435 (2013) ........................................ 2, 7, 10

Mich. Dep’t of State Police v. Sitz,

496 U.S. 444 (1990) ................................................ 14

Missouri v. McNeely,

569 U.S. 141 (2013) .................................................. 2

Navarette v. California,

572 U.S. 393 (2014) ................................................ 12

Paxton’s Case,

1 Quincy 51 (Mass. 1761) ........................................ 7

Riley v. California,

573 U.S. 373 (2014) .................................... 2, 3, 7, 18

Skinner v. Ry. Labor Execs. Ass’n,

489 U.S. 602 (1989) ................................................ 11

Terry v. Ohio,

392 U.S. 1 (1968) .................................................... 12

United States v. Brewer,

561 F.3d 676 (7th Cir. 2009).............................. 6, 20

United States v. Chadwick,

433 U.S. 1 (1977) ...................................................... 6

United States v. Di Re,

332 U.S. 581 (1948) .................................................. 6

United States v. Hensley,

469 U.S. 221 (1985) .......................................... 12, 16

United States v. Kalb,

891 F.3d 455 (3d Cir. 2018) ................................... 19

United States v. Kalb,

No. CR 16-12, 2017 WL 132164

(E.D. Pa. Jan. 13, 2017) ......................................... 19

iv

United States v. Martinez-Fuerte,

428 U.S. 543 (1976) ................................................ 13

United States v. Sokolow,

490 U.S. 1 (1989) .................................................... 13

Whren v. United States,

517 U.S. 806 (1996) ................................................ 21

Wilkes v. Wood (1763),

98 Eng. Rep. 489 ...................................................... 8

Wolf v. Colorado,

338 U.S. 25 (1949) .................................................. 11

Constitutional Provision

U.S. Const. amend. IV ................................................ 6

Other Authorities

3 Debates on the Federal Constitution

(J. Elliot 2d ed. 1836) ............................................. 10

Akhil Reed Amar, Fourth Amendment First

Principles, 107 Harv. L. Rev. 757 (1994) ............ 8, 9

William Baude & James Y. Stern, The

Positive Law Model of the Fourth

Amendment, 129 Harv. L. Rev. 1821 (2016) ..... 8, 10

Barry Friedman & Cynthia Benin Stein,

Redefining What’s “Reasonable”:

The Protections for Policing,

84 Geo. Wash. L. Rev. 281 (2016) ................... 12, 14

Thomas Y. Davies, Recovering the Original

Fourth Amendment,

98 Mich. L. Rev. 547 (1999) ..................................... 9

Nelson B. Lasson, The History and

Development of the Fourth Amendment to

the United States Constitution (1937) ............. 7, 8, 9

v

Letter from John Adams to William Tudor

(Mar. 29, 1817) in 10 The Works of John

Adams (Boston, Little Brown & Co. 1856) ............. 8

Hon. M. Blane Michael, Reading the Fourth

Amendment: Guidance from the Mischief

That Gave It Birth,

85 N.Y.U. L. Rev. 905 (2010) ..................... 7, 8, 9, 10

George C. Thomas III, Time Travel,

Hovercrafts, and the Framers:

James Madison Sees the Future and

Rewrites the Fourth Amendment,

80 Notre Dame L. Rev. 1451 (2005) ...................... 10

STATEMENT OF INTEREST 1

The Policing Project at New York University

School of Law is dedicated to ensuring that policing

agencies adhere to basic principles of democratic

accountability before they act. To that end, the Project

facilitates public input and engagement on policing

policies and practices, with the twin goals of giving

communities a voice in how they are policed and

developing greater mutual trust between the police

and the communities they serve.

In its many

endeavors, the Policing Project works closely with

policing agencies and communities. The Project

promotes transparency around policing by, among

other things, helping departments get their policy

manuals online. It writes rules, policies, and best

practices for policing agencies. It also works with

experts and policing agencies on groundbreaking costbenefit studies of policing practices, from deescalation training to vehicle pursuit policies. The

Director of the Policing Project is also the Reporter for

the American Law Institute’s Principles of the Law:

Policing.

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

1 Pursuant to Supreme Court Rule 37.6, amici state that no

counsel for any party authored this brief in whole or in part and

that no entity or person, aside from amici, their members, and

their counsel, made any monetary contribution toward the

preparation or submission of this brief. Pursuant to Supreme

Court Rule 37.2, amici certify that counsel of record for all parties

received notice of the intent to file this brief at least 10 days

before it was due and have consented to this filing.

2

markets, and limited government. Cato’s Project on

Criminal Justice was founded in 1999, and focuses on

the scope of substantive criminal liability, the proper

and effective role of police in their communities, the

protection of constitutional safeguards for criminal

suspects and defendants, citizen participation in the

criminal justice system, and accountability for law

enforcement.

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with

nearly 2 million members and supporters dedicated to

the principles of liberty and equality embodied in the

Constitution and our nation’s civil rights laws. The

ACLU regularly participates in cases before this Court

involving the right to privacy protected by the Fourth

Amendment. For example, the ACLU was counsel of

record in Carpenter v. United States, 138 S. Ct. 2206

(2018), and Missouri v. McNeely, 569 U.S. 141 (2013),

and participated as amicus curiae in Riley v.

California, 573 U.S. 373 (2014), and Maryland v. King,

569 U.S. 435 (2013). Because this case addresses an

important Fourth Amendment question, its proper

resolution is of substantial concern to the ACLU and

its members. The ACLU of Nebraska is a statewide,

nonprofit,

nonpartisan

organization

with

approximately 5,750 members and supporters.

The NAACP Legal Defense & Educational Fund,

Inc. (LDF) is the nation’s first and foremost civil rights

legal organization. Through litigation, advocacy,

public education, and outreach, LDF strives to secure

equal justice under the law for all Americans, and to

break down barriers that prevent African Americans

from realizing their basic civil and human rights. As

3

part of its advocacy, LDF launched the Policing

Reform Campaign to transform policing culture and

practices, eliminate racial bias and profiling in

policing, and end police violence against citizens. The

Fourth Amendment issues in this case raise grave

concerns about the significant risk of abusive and

discriminatory police practices in communities of color

and, thus, are of particular importance to LDF.

SUMMARY OF THE ARGUMENT

This case is about first principles of the Fourth

Amendment. The Nebraska Supreme Court lost sight

of those principles, and so too have other courts. The

Framers crafted the Fourth Amendment as a

“response to the reviled ‘general warrants’ and ‘writs

of assistance’ of the colonial era.” Riley v. California,

573 U.S. 373, 403 (2014). Those devices, which

“helped spark the Revolution itself,” gave British

officers unfettered discretion to engage in arbitrary

searches in an “‘unrestrained’” pursuit of “‘evidence of

criminal activity.’” Carpenter v. United States, 138 S.

Ct. 2206, 2213 (2018). In light of the Framers’

antipathy for British search-and-seizure practices,

this Court has had no trouble discerning the “essential

purpose” of the Fourth Amendment: “to impose a

standard of ‘reasonableness’ upon the exercise of

discretion by government officials … in order ‘to

safeguard the privacy and security of individuals

against arbitrary invasions.’” Delaware v. Prouse, 440

U.S. 648, 653-54 (1979) (footnote omitted). In short,

the Fourth Amendment provides a bulwark against

official arbitrariness.

The Fourth Amendment’s protections against

arbitrary searches are not one-size-fits-all, but rather

4

vary according to the nature of a search. As the

Court’s cases reveal, there are two broad categories of

searches. The first includes traditional “suspicionbased” searches, such as when the police target a

particular individual based on some belief of criminal

wrongdoing. In such “category one” cases, the Fourth

Amendment’s protections against arbitrariness are

clear and familiar: The police must have “probable

cause” or “reasonable suspicion” before they may

search or seize a suspect. See id. at 661. But some

search programs are inherently “suspicionless,” such

as when government officers conduct searches at

airports or government buildings without any

individualized suspicion ex ante. See Indianapolis v.

Edmond, 531 U.S. 32, 47 (2000). In these “category

two” cases, the Fourth Amendment requires very

different safeguards against arbitrariness: The police

must subject all people (or some truly randomized

subset of them) to the same treatment, for only then

are the people protected against the “evil” of

“unbridled discretion.” Prouse, 440 U.S. at 661, 663.

In the decision below, the Nebraska Supreme

Court conflated these two categories of searches. As

the state has conceded, the police targeted petitioner

as a “suspect” when stopping his vehicle, because they

believed that the vehicle may have contained stolen

goods and illicit narcotics. Pet.App.88a. Accordingly,

the state had an obligation to prove that it had the

necessary level of individualized suspicion to stop the

vehicle, just as the state must do in all other “category

one” cases. But rather than conduct that inquiry, the

Nebraska Supreme Court upheld petitioner’s stop

under the Fourth Amendment after borrowing

principles from a paradigmatic “category two” case—

5

namely, Illinois v. Lidster, 540 U.S. 419 (2004), in

which the Court considered a checkpoint where the

police stopped all vehicles to determine whether their

occupants had any information about a hit-and-run

accident that had generated no leads.

Because Lidster implicates Fourth Amendment

principles applicable to “suspicionless” stops, it

provides no guidance regarding “suspicion-based”

stops like the one here. Yet the Nebraska Supreme

Court nonetheless held that Lidster could be invoked

to justify an individualized, targeted stop even if the

police lacked the constitutionally required level of

individualized suspicion, on the theory that Lidster

allows the police to stop essentially anyone so long as

they purport to be “seeking information.” That is

plainly not the proposition for which Lidster stands—

nor could it be, as that proposition is antithetical to

core Fourth Amendment principles. The Nebraska

Supreme Court’s error is far from academic. Relieving

the state of its burden to prove that it had sufficient

cause to stop petitioner (or any other suspect) simply

because the state sought information would restore

the kind of search-and-seizure regime the Fourth

Amendment was designed to prevent. The fact that

the government seeks information from the people

describes the problem that the Fourth Amendment is

meant to address, not the basis for an exception to its

protections.

Unfortunately, the error committed by the

Nebraska Supreme Court, while particularly glaring,

is not an isolated mistake. Federal and state courts

around the country are getting it wrong in similar

cases and are therefore green-lighting “category one”

6

searches that lack the level of individualized suspicion

that the Fourth Amendment demands. See, e.g.,

United States v. Brewer, 561 F.3d 676 (7th Cir. 2009);

Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007); Gipson

v. State, 268 S.W.3d 185 (Tex. Ct. App. 2008). This

Court should grant certiorari to ensure that the

“lessons of history” that gave rise to the Fourth

Amendment are not forgotten, United States v. Di Re,

332 U.S. 581, 595 (1948), and that the police are not

permitted to conduct the kind of searches and seizures

the Framers sought to eliminate.

ARGUMENT

I.

The

Framers

Adopted

The

Fourth

Amendment To Provide Safeguards Against

Arbitrary

Searches

By

Government

Officials.

The Fourth Amendment provides that “[t]he

right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or

things to be seized.” U.S. Const. amend. IV. As this

Court and others have explained, the Amendment

developed as a response to the Framers’ opposition to

the “general warrants” and “writs of assistance” used

by British officers, which armed those officers with

virtually unfettered discretion to engage in arbitrary

invasions of personal privacy. See, e.g., United States

v. Chadwick, 433 U.S. 1, 7-8 (1977) (“It cannot be

doubted that the Fourth Amendment’s commands

grew in large measure out of the colonists’ experience

7

with the writs of assistance and their memories of the

general warrants formerly in use in England.”);

Marcus v. Search Warrants of Prop. at 104 E. Tenth

St., Kansas City, Mo., 367 U.S. 717, 726 (1961)

(general warrants “often gave the most general

discretionary authority”); Nelson B. Lasson, The

History and Development of the Fourth Amendment to

the United States Constitution 54 (1937) (“writs of

assistance” gave officials “practically absolute and

unlimited” discretion).

A series of incidents in the 1760s in both the

colonies and England galvanized colonial opposition to

these “despised” devices. Maryland v. King, 569 U.S.

435, 466 (2013) (Scalia, J., dissenting). In 1761, in

Paxton’s Case, 1 Quincy 51 (Mass. 1761), a group of

merchants in Boston—where customs officials

frequently employed writs of assistance in an effort to

quash the trade in smuggled goods—brought a legal

challenge against the writs in Massachusetts court.

See Hon. M. Blane Michael, Reading the Fourth

Amendment: Guidance from the Mischief That Gave It

Birth, 85 N.Y.U. L. Rev. 905, 908 (2010). The

merchants’ attorney—“the patriot James Otis,” Riley,

573 U.S. at 403—“argued passionately” against the

writs, denouncing them as “‘the worst instrument of

arbitrary power, the most destructive of English

liberty … that was ever found in an English law book.’”

Michael 908. Although Otis could not convince the

colonial court to rule in his favor, he swayed many

others, including a young John Adams, who witnessed

Otis speak firsthand. See id. at 909. As Adams later

recounted: “Otis was a flame of fire! … Every man of

a crowded audience appeared to me to go away, as I

did, ready to take up arms against writs of assistance.

8

Then and there was the first scene of the first act of

opposition to the arbitrary claims of Great Britain.

Then and there the child Independence was born.” Id.

(quoting Letter from John Adams to William Tudor

(Mar. 29, 1817) in 10 The Works of John Adams 24748 (Boston, Little Brown & Co. 1856)).

Two English cases that “played a pivotal role in

the drafting of the Fourth Amendment”—Wilkes v.

Wood (1763), 98 Eng. Rep. 489, and Entick v.

Carrington (1765), 95 Eng. Rep. 807—followed on the

heels of the events in Boston, and underscored

concerns about the unfettered and arbitrary exercise

of state power. William Baude & James Y. Stern, The

Positive Law Model of the Fourth Amendment, 129

Harv. L. Rev. 1821, 1838 (2016). The Wilkes case

arose after John Wilkes, a Member of Parliament,

“published an anonymous attack on the majesty and

ministry of King George III in a 1763 pamphlet,”

which resulted in a “general search and arrest

warrant” that “authorized henchmen to round up the

usual suspects and gave the henchmen discretion to

decide who those suspects were.” Akhil Reed Amar,

Fourth Amendment First Principles, 107 Harv. L. Rev.

757, 772 n.54 (1994); see also Lasson 43 (describing the

“absolute discretion” granted to the Crown’s

messengers). After Wilkes filed suit against the

Crown’s messengers, Chief Justice Pratt (soon to

become Lord Camden) condemned the “discretionary

power given to [the] messengers to search wherever

their suspicions may chance to fall,” decrying it as

“totally subversive of the liberty of the subject.”

Wilkes, 98 Eng. Rep. at 498. The Wilkes case quickly

became “a cause célèbre in the colonies, where ‘Wilkes

and Liberty’ became a rallying cry for all those who

9

hated government oppression.”

Amar 772 n.54.

Indeed, “Americans across the continent named cities,

counties, and even children in honor of Wilkes and the

libertarian judge, Lord Camden.” Id.

Entick was no less significant. See, e.g., Boyd v.

United States, 116 U.S. 616, 626 (1886) (describing

Entick as a “landmark[]” decision). After John Entick

published “a pamphlet alleged to contain seditious

libel,” the Crown “issued a warrant for Entick’s arrest,

which gave messengers authority to make a general

search of Entick’s house and to seize any and all

papers at their discretion.” Michael 911. “The

messengers in this instance …, as might be expected,

made the most of the discretion granted them,” Lasson

47, and “carted away great quantities of books and

papers,” Marcus, 367 U.S. at 728. Inspired by the

Wilkes decision, Entick filed suit against those who

executed the warrant, and Lord Camden likewise

declared the general warrant illegal, as “no law

allowed ‘such a general search as a means of detecting

offenders.’” Michael 911 (alterations omitted). Lord

Camden’s denunciation in Entick of British searchand-seizure abuses was “‘undoubtedly familiar’ to

‘every American statesman’ at the time of the

Founding.” Florida v. Jardines, 569 U.S. 1, 7-8 (2013).

In the following decade, the colonists’ opposition

to general warrants and writs of assistance continued

to grow, and indeed “helped spark the Revolution

itself.” Carpenter, 138 S. Ct. at 2213; see also Thomas

Y. Davies, Recovering the Original Fourth

Amendment, 98 Mich. L. Rev. 547, 658 (1999) (noting

that Parliament “reauthorized the general writ of

assistance” in 1767). In the wake of the Revolution, a

10

majority of the new states adopted provisions in their

state constitutions to restrict government searches

and seizures. See George C. Thomas III, Time Travel,

Hovercrafts, and the Framers: James Madison Sees

the Future and Rewrites the Fourth Amendment, 80

Notre Dame L. Rev. 1451, 1463, 1465 & n.63 (2005).

But the Framers initially did not include such a

provision in the federal Constitution, leading the

antifederalists to “sarcastically predict[] that the

general, suspicionless warrant would be among the

Constitution’s ‘blessings.’” King, 569 U.S. at 467

(Scalia, J., dissenting); see also 3 Debates on the

Federal Constitution 588 (J. Elliot 2d ed. 1836)

(Patrick Henry warning that the Constitution would

permit searches and seizures “in the most arbitrary

manner, without any evidence or reason”). The

Framers responded with the Fourth Amendment. In

1789, James Madison introduced the Fourth

Amendment, which had been “copied” from the searchand-seizure provision in Massachusetts’ constitution.

Baude & Stern 1838. The Massachusetts provision in

turn “had been drafted by none other than John

Adams, who remained indelibly impressed by James

Otis’s argument against the writ of assistance.”

Michael 912.

As this historical record reveals, the Framers

were determined to leave behind the arbitrary searchand-seizure practices they had endured under British

rule. Thus, time and again, this Court has explained

that the “essential purpose” of the Fourth Amendment

is “to impose a standard of ‘reasonableness’ upon the

exercise of discretion by government officials … in

order ‘to safeguard the privacy and security of

individuals against arbitrary invasions.’” Prouse, 440

11

U.S. at 653-54; see also, e.g., Skinner v. Ry. Labor

Execs. Ass’n, 489 U.S. 602, 613-14 (1989) (“The

Amendment guarantees the privacy, dignity, and

security of persons against certain arbitrary and

invasive acts by officers of the Government or those

acting at their direction.”); Wolf v. Colorado, 338 U.S.

25, 27-28 (1949) (“The security of one’s privacy against

arbitrary intrusion by the police—which is at the core

of the Fourth Amendment—is basic to a free society.

It is therefore implicit in ‘the concept of ordered

liberty’ and as such enforceable against the States

through the Due Process Clause.”); Boyd, 116 U.S. at

630 (the Fourth Amendment seeks to secure “the

privacies of life” against “arbitrary power”).

II. The Fourth Amendment’s Protections

Against Arbitrariness Vary Based On

Whether A Search Is “Suspicion-Based” Or

“Suspicionless.”

The Fourth Amendment’s safeguards against

arbitrary government conduct are not the same in all

settings, but rather vary according to the nature of the

search. This Court’s cases reveal two broad categories

of Fourth Amendment searches that government

officers may conduct: (1) “suspicion-based” searches

and (2) “suspicionless” searches. These two forms of

searches may differ in their particulars, but the same

Fourth Amendment concern for arbitrariness applies

universally: Government officers are constitutionally

precluded from exercising “unfettered discretion”

when engaging in searches or seizures. AlmeidaSanchez v. United States, 413 U.S. 266, 270 (1973); see

also, e.g., Camara v. Mun. Court, 387 U.S. 523, 532-33

(1967).

12

The first category of searches—i.e., “suspicionbased” searches—are the most familiar.

Such

searches occur when a government officer targets a

particular individual based on a belief that he is

“about to commit a crime,” is “committing a crime,” or

“was involved in or is wanted in connection with a

completed felony.” United States v. Hensley, 469 U.S.

221, 227-29 (1985); cf. Navarette v. California, 572

U.S. 393, 402 n.2 (2014). Take this Court’s decision in

Terry v. Ohio, 392 U.S. 1 (1968), which is a classic

example of a “suspicion-based” search. In Terry, a

police officer subjected two men to a search after

observing behavior that indicated that the men were

preparing to conduct a burglary or robbery. See id. at

4-7. Although the Court emphasized the general rule

that the police must have “probable cause” before

searching or seizing a suspect, see id. at 20, it upheld

the police officers’ conduct as consistent with the

Fourth Amendment because the officers at least had

“reasonable suspicion” to believe that criminal activity

may be afoot and that the suspects may be armed and

dangerous, see id. at 27-31.

These “cause” requirements—i.e., “probable

cause” or, at a minimum, “reasonable suspicion” in

certain circumstances—are the Fourth Amendment’s

basic protection against arbitrary treatment in

“suspicion-based” or “category one” cases. See, e.g.,

Barry Friedman & Cynthia Benin Stein, Redefining

What’s “Reasonable”: The Protections for Policing, 84

Geo. Wash. L. Rev. 281, 320 (2016). They ensure that

an individual who is uniquely targeted by the police is

not searched or seized based on nothing “more than an

inchoate and unparticularized suspicion or ‘hunch’”

that does not sufficiently differentiate that individual

13

from any other member of the public. United States v.

Sokolow, 490 U.S. 1, 7 (1989) (quotation marks

omitted); accord Pet.7 (“Reasonable suspicion is the

bedrock constitutional requirement for seizing a

suspect to investigate suspected criminal activity.”).

The cause standard thus prevents arbitrariness by

providing the line that separates those who are

properly subject to government seizures and searches

from those who are not.

As this Court has explained, however, “the Fourth

Amendment imposes no irreducible requirement of

such suspicion.” United States v. Martinez-Fuerte, 428

U.S. 543, 561 (1976). This is because “certain … forms

of police activity” simply do not “involve[] suspicion, or

lack of suspicion, of the relevant individual.” Lidster,

540 U.S. at 425-26. This “suspicionless” police activity

thus gives rise to “category two” Fourth Amendment

stops and searches.

Consider the routine searches that occur “at

places like airports and government buildings.”

Edmond, 531 U.S. at 47-48.

The government

maintains those security checkpoints not because it

has reasonable suspicion or probable cause to believe

that particular individuals are planning to attack

those sites at every moment of every day, but rather

to deter such activity in the first instance and promote

“public safety” in especially sensitive areas. Id. Such

“suspicionless” searches can plainly be “valid[],” id.,

but because they are inherently different from

“suspicion-based” searches, the Fourth Amendment

requires different safeguards to protect against

arbitrariness.

If the police wish to conduct

“suspicionless” searches, they must abide by

14

principles of generality and nondiscrimination: either

subject all similarly situated people to the same search

(e.g., every vehicle passing through a sobriety

checkpoint), or select some truly randomized subset of

people to undergo the search (e.g., every other vehicle

passing through a sobriety checkpoint). See, e.g.,

Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 453

(1990) (upholding sobriety checkpoint where

“uniformed police officers stop every approaching

vehicle”); see also Friedman & Stein 320-23. In

addition, such searches must generally further

government interests beyond “‘the general interest in

crime control.’” Edmond, 531 U.S. at 44 (quoting

Prouse, 440 US at 659). Absent these safeguards, the

very same concern about arbitrariness in “category

one” searches is reintroduced into “category two”

searches.

This Court’s decision in Delaware v. Prouse puts

these pieces together. In Prouse, the Court considered

whether

Delaware

police

officers

could

constitutionally “stop an automobile, being driven on

a public highway, for the purpose of checking the

driving license of the operator and the registration of

the car, where there is neither probable cause to

believe nor reasonable suspicion that the car is being

driven contrary to the laws governing the operation of

motor vehicles or that either the car or any of its

occupants is subject to seizure or detention in

connection with the violation of any other applicable

law.” 440 U.S. at 650. This Court answered that

question with a resounding no, as it could not

“conceive of any legitimate basis upon which a

patrolman” could stop a single vehicle without any

individualized suspicion. Id. at 661. But in reaching

15

that eminently correct conclusion, the Court made

clear that it did not intend to preclude states from

performing “suspicionless” stops in toto.

To the contrary, the Court noted, there are some

circumstances in which states may conduct

suspicionless stops, but to do so, they must provide

adequate safeguards against arbitrary conduct.

Providing “one possible alternative,” the Court

explained that states could “[q]uestion[] … all

oncoming traffic at roadblock-type stops” to verify

driver’s licenses and vehicle registration information.

Id. at 663 (emphasis added). And in a concurring

opinion, Justice Blackmun, joined by Justice Powell,

suggested that states could conduct “purely random

stops (such as every 10th car to pass a given point).”

Id. at 664 (Blackmun, J., concurring). But Prouse

makes equally clear that what states cannot do is

exactly what Delaware sought to do: grant police

officers “unbridled discretion” to stop vehicles on a

whim. Id. at 663. It could hardly be otherwise, as such

a search regime would reincarnate the very “evil,” id.

at 661, the Framers sought to avoid in adopting the

Fourth Amendment.

In sum, the Fourth Amendment’s protections

against arbitrariness manifest in different ways

depending on whether a stop is “suspicion-based” or

“suspicionless.” Suspicion-based or “category one”

cases require the government to prove a sufficient

level of individualized suspicion, such as “reasonable

suspicion” or “probable cause,” whereas suspicionless

or “category two” cases require the government to

treat all people evenhandedly—until, of course,

sufficient individualized suspicion arises. See, e.g.,

16

Brown v. Texas, 443 U.S. 47, 51 (1979) (“the Fourth

Amendment requires that a seizure must be based on

specific, objective facts indicating that society’s

legitimate interests require the seizure of the

particular individual, or that the seizure must be

carried out pursuant to a plan embodying explicit,

neutral limitations on the conduct of individual

officers”).

III. The Nebraska Supreme Court Conflated

“Suspicion-Based”

And

“Suspicionless”

Searches And Thus Deprived Petitioner Of

His Fourth Amendment Rights.

Against these principles, the problem with the

Nebraska Supreme Court’s decision is obvious: The

court failed to honor the distinction between

“suspicion-based” and “suspicionless” searches. That

error not only deprived petitioner of his fundamental

Fourth Amendment rights, but threatens to do the

same to every other person in Nebraska.

In the proceedings below, the state candidly

admitted that, when the police stopped petitioner’s

vehicle, they treated him like a “suspect” in a “classic

traffic stop.” Pet.App.88a. That concession should

have made the Fourth Amendment analysis easy for

the Nebraska Supreme Court, for all parties agree

that this case involves a suspicion-based “category

one” stop. Accordingly, the state bore the burden of

proving that it at least had “reasonable suspicion” that

petitioner “was about to commit a crime,” “was

committing a crime,” or “was involved in or is wanted

in connection with a completed felony.” Hensley, 469

U.S. at 227-29; but see Pet.App.7a (“The stop occurred

five blocks from the target address and was made

17

without the observation of a traffic or other law

violation.”); Pet.App.9a (“None of the officers who

testified … observed Sievers inside the residence,

leave the residence, put anything into the truck, or

enter the truck. The informant had not provided any

information about Sievers or the truck.”). Indeed,

even the state recognized below that “[t]he proper

analysis in this case is under the traditional

reasonable suspicion framework.” Pet.App.85a.

The Nebraska Supreme Court nonetheless

refused to heed the parties’ agreement. Rather than

assess the stop under the reasonable suspicion

framework that even the state advocated, the court

instead addressed a question that no one (including

the trial court) had ever asked: whether seizing

petitioner was “reasonable under the Fourth

Amendment even in the absence of articulable

suspicion of criminal conduct.” Pet.App.11a-12a.

Worse, the court answered that unasked question in

the affirmative. In its view, because petitioner may

have taken “stolen property and narcotics” from the

“target address,” Pet.App.24a, the police could conduct

a “suspicionless information-seeking stop” of

petitioner’s

vehicle

to

investigate

further.

Pet.App.13a; see also Pet.App.23a (“The stop was

focused on gathering information about the presence

of drugs and specific stolen property[.]”); but see

Pet.App.85a (state conceding that “[t]he stop was not

authorized as an information seeking stop” (emphasis

omitted)).

In reaching the remarkable conclusion that

suspicionless stops of specifically targeted individuals

are constitutionally permissible, the court relied on

18

this Court’s decision in Illinois v. Lidster. But Lidster

provides no support whatsoever for the radical

proposition that police may conduct targeted searches

of potential suspects so long as they purport to be

“seeking information.”

To the contrary, Lidster

upheld the constitutionality of a checkpoint at which

“[t]he police stopped all vehicles systematically” to

determine whether they had information regarding a

hit-and-run accident for which the police had no

suspect. 540 U.S. at 428 (emphases added). Lidster

thus did not involve individualized stops, but rather

involved a classic “category two” case:

the

suspicionless stop of everyone.

The Nebraska Supreme Court’s decision and its

reading of Lidster is profoundly wrong, as the police

cannot be relieved of their obligation to prove the

necessary level of individualized suspicion to stop a

targeted individual through the simple expedient of

declaring that they were merely “seeking information”

about criminal activity that purportedly involved that

individual. After all, the whole point of the Fourth

Amendment is to prevent government officers from

engaging in “unrestrained search[es] for evidence of

criminal activity” without an appropriate level of

individualized suspicion. Riley, 573 U.S. at 403.

When it comes to targeted government investigatory

practices, the fact that the government has an

information-seeking purpose is hardly a justification

for dispensing with individualized suspicion. To the

contrary, the government’s interest in informationgathering is the raison d’etre of the Fourth

Amendment.

19

The Nebraska Supreme Court’s reliance on

Lidster makes clear that the court made a category

mistake. Lidster is a prototypical “category two” case:

It involved a checkpoint that subjected “each vehicle”

to the same treatment, without targeting any

particular individual on the basis of suspicion of

criminal conduct. See 540 U.S. at 422. Although

Lidster’s analysis may be relevant in cases involving

“suspicionless” stops—because such an informationgathering motivation may distinguish such stops from

the kind of law-enforcement-only stops invalidated in

Edmond—it provides no assistance in a case like this

one, in which the police have acknowledged that they

targeted a single individual, not general “members of

the public.” Id. at 423. Contrary to the Nebraska

Supreme Court’s view, the government may not “use

Lidster to expand its power to make individualized

stops even when it cannot meet the requirements of

Terry.” United States v. Kalb, No. CR 16-12, 2017 WL

132164, at *3 (E.D. Pa. Jan. 13, 2017), aff’d, 891 F.3d

455 (3d Cir. 2018).

IV. Federal And State Courts Around The

Country Are Committing Similar Errors.

That petitioner and everyone else in Nebraska no

longer enjoy the full suite of Fourth Amendment

protections is reason enough for this Court to grant

review. But the Nebraska Supreme Court is by no

means the only court committing grave mistakes in

Fourth Amendment cases. Indeed, courts around the

country are permitting targeted stops of criminal

suspects without the requisite level of cause.

The Seventh Circuit’s decision in United States v.

Brewer, one of the main decisions on which the

20

Nebraska Supreme Court relied, is illustrative. See

Pet.App.16a-17a; see also Pet.12. There, the Seventh

Circuit considered whether, even without reasonable

suspicion, a police officer could stop a single vehicle on

a road leading to a particular apartment building

based on a hunch that its occupants “may have been

involved in [a] shooting” that had occurred at the

building. Brewer, 561 F.3d at 679. Relying on Lidster,

the court concluded that the answer was yes. Relying

on the Fourth Amendment, the answer obviously

should have been no. Yet the Seventh Circuit so

thoroughly conflated the principles that govern

suspicion-based and suspicionless searches that, in its

view, the fact that the driver of the vehicle “might be

the gunman,” rather than a mere witness, provided

even more “compelling” reasons for stopping him. Id.

Thus, in the Seventh Circuit just as in Nebraska, the

police’s utter lack of the minimal level of suspicion to

seize potential criminal suspects under this Court’s

established Fourth Amendment principles is no longer

a barrier to forging ahead as long as the police are

engaged in information-gathering. Cf. Gipson, 268

S.W.3d at 186, 190 (justifying vehicle stop under

Lidster when occupants “were potential suspects or

witnesses to a crime”); see also Pet.App.12a n.6 (citing

Gipson). Information-gathering that is devoid of

individualized suspicion but nonetheless targeted at

individuals is precisely what the Fourth Amendment

protects against.

The problems also extend beyond cases that rely

on Lidster to justify dubious stops of potential criminal

suspects. In Bruce v. Beary, for example, the Eleventh

Circuit addressed a case in which a Florida sheriff’s

office had received a criminal complaint from an

21

individual about a particular auto body shop. See 498

F.3d at 1235-36. Although the complaint “did not rise

to the level of probable cause that would have

supported application for a warrant,” id. at 1242, the

authorities nonetheless relied on the complaint to

conduct a warrantless “administrative inspection” of

the shop—with “approximately twenty officers”

arriving on scene “with guns drawn” and some

“dressed in SWAT uniforms,” id. at 1236. The officers

“block[ed] all exits,” “ordered the employees to line up

along the fence,” and “point[ed] a shotgun” at one of

them. Id. The Eleventh Circuit held that the officers

could constitutionally conduct a warrantless

administrative search of the shop in light of the

complaint, even if the officers lacked sufficient cause

to conduct an ordinary “suspicion-based” search. But

see Whren v. United States, 517 U.S. 806, 811-12

(1996) (“the exemption from the need for probable

cause (and warrant), which is accorded to searches

made for the purpose of inventory or administrative

regulation, is not accorded to searches that are not

made for those purposes”). Like the Seventh Circuit,

the Eleventh Circuit has thus endorsed the sort of

arbitrary conduct the Fourth Amendment is designed

to prevent—i.e., targeting individuals (or businesses)

for a search based on “the discretion of the official in

the field.” Camara, 387 U.S. at 532.

In short, there is no question that the decision

below is wrong. But while this Court can certainly

resolve this case by summarily reversing the

Nebraska Supreme Court’s judgment, see Pet.17-18,

the reality is that this case reflects a more systemic

problem. Courts nationwide have lost sight of Fourth

Amendment first principles, and they are accordingly

22

getting things backwards in a number of cases

implicating fundamental Fourth Amendment rights.

That phenomenon warrants either clear guidance in a

summary reversal or this Court’s plenary review.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for certiorari. Alternatively, the Court

should summarily reverse the judgment of the

Nebraska Supreme Court.

Respectfully submitted,

BARRY FRIEDMAN

FARHANG HEYDARI

MARIA PONOMARENKO

POLICING PROJECT

AT NYU SCHOOL

OF LAW

40 Washington Sq. S.

New York, NY 10012

PAUL D. CLEMENT

Counsel of Record

ERIN E. MURPHY

ANDREW C. LAWRENCE

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5000

paul.clement@kirkland.com

CLARK M. NEILY III

JAY R. SCHWEIKERT

CATO INSTITUTE

1000 Massachusetts

Avenue, NW

Washington, DC 20001

DAVID D. COLE

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

915 Fifteenth Street, NW

Washington, DC 20005

23

SHERRILYN A. IFILL

AMY MILLER

Director-Counsel

AMERICAN CIVIL

JANAI S. NELSON

LIBERTIES UNION

SAMUAL SPITAL

FOUNDATION OF

JIN HEE LEE

NEBRASKA

NAACP LEGAL DEFENSE 134 S. 13th St. #1010

& EDUCATIONAL

Lincoln, NE 68508

FUND, INC.

40 Rector Street, Fifth Floor

New York, NY 10006

Counsel for Amici Curiae

May 20, 2019