Amicus Curiae Brief — Lawrence W. Blessinger, Petitioner v. United States

No. 18-1554

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------LAWRENCE BLESSINGER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

-----------------------------------------------------------------BRIEF OF AMICUS CURIAE FLORIDA

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS—MIAMI CHAPTER IN SUPPORT

OF THE PETITIONER

-----------------------------------------------------------------SAMUEL J. RABIN, JR.

MICHELLE ESTLUND

PRESIDENT FLORIDA ASSOCIATION Counsel of Record

OF CRIMINAL DEFENSE

Florida Bar No. 273831

LAWYERS—MIAMI CHAPTER RABIN & LOPEZ, P.A.

147 Sevilla Avenue

800 Brickell Avenue,

Coral Gables, Florida 33134

Suite 1400

Tel: 305.448.0077

Miami, FL 33131-2971

Email: mestlund@

Tel: 305.358.1064

estlundlaw.com

Fax: 305.372.1644

Email: sjr@miamilawyer.com

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ........................................

i

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

ii

INTEREST OF AMICUS CURIAE ........................

1

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

1

ARGUMENT ...........................................................

3

A. A majority of the states have recognized a

distinction between ongoing and completed

misdemeanors ..............................................

6

B.

Failing to recognize the distinction between

ongoing and completed misdemeanors in the

context of Terry stops invites limitless investigative detentions and risks escalating tensions

between police and citizens, particularly given

the trend of overcriminalization ................. 10

CONCLUSION .......................................................

15

ii

TABLE OF AUTHORITIES

Page

CASES

Atwater v. City of Lago Vista, 532 U.S. 318

(2001) ............................................................... 3, 4, 5, 14

Blaisdell v. Comm’r of Public Safety, 375 N.W.2d

880 (Minn. Ct. App. 1985) .......................................10

Calhoun v. Villa, 761 F. App’x 297 (5th Cir. 2019) .......... 8

Delaware v. Prouse, 440 U.S. 648 (1979) ....................13

Floyd v. City of New York, 959 F. Supp. 2d 540

(S.D.N.Y. 2013) .................................................... 3, 14

Gaddis v. Redford Twp., 364 F.3d 763 (6th Cir.

2004) ..........................................................................6

Henry v. Commissioner of Public Safety, 357

N.W.2d 121 (Minn. Ct. App. 1984) ............................8

Howard v. State, 112 Md. App. 148 (Ct. App. Md.

1996) ..........................................................................8

Lunn v. Commonwealth, 477 Mass. 517 (Mass.

2017) ..........................................................................8

Mahoney v. Commonwealth, 489 S.W.3d 235 (Ky.

2016) ..........................................................................8

Rubey v. City of Fairbanks, 456 P.2d 470 (Alaska

1969) ..........................................................................8

Scott v. Illinois, 440 U.S. 367 (1979) ...........................12

Sorenson v. Ferrie, 134 F.3d 325 (5th Cir. 1998) ..........3

State v. Almanzar, 316 P.3d 183 (N.M. 2013)...............8

State v. Glover, 422 P.3d 64 (Kan. 2018) ......................8

iii

TABLE OF AUTHORITIES – Continued

Page

State v. Henderson, 554 N.E.2d 104 (Ohio 1990) ....... 7, 8

State v. Lewis, 33 N.E. 405 (Ohio 1893) .......................7

Telfare v. City of Huntsville, 841 So. 2d 1222

(Ala. 2002) .................................................................8

Terry v. Ohio, 392 U.S. 1 (1968) .......................... passim

United States v. Blessinger, 752 F. App’x 765

(11th Cir. 2018)..........................................................5

United States v. Fridman Santisteban, 127

F. Supp. 2d 1304 (D.P.R. 2000)................................12

United States v. Grigg, 498 F.3d 1070 (9th Cir.

2007) ...................................................... 10, 12, 13, 14

United States v. Hensley, 469 U.S. 221 (1985) .............2

STATUTES

18 Pa. Stat. and Cons. Stat. Ann. § 5506 ...................11

18 U.S.C. § 41 ..............................................................11

Ala. Code § 13A-7-29 ..................................................11

Ala. Code § 15-10-3(a)...................................................6

Alaska Stat. § 12.25.030(1) ..........................................6

Ariz. Rev. Stat. Ann. § 13-2916 ...................................11

Ariz. Rev. Stat. Ann. § 13-3883(A)(2)............................6

Ark. Code Ann. § 16-81-106(b)(2)(A) ............................6

Ark. Stat. Ann. § 8-6-404 ............................................11

Cal. Penal Code § 836(a)(1) ..........................................6

iv

TABLE OF AUTHORITIES – Continued

Page

Conn. Gen. Stat. Ann. § 53a-107 ................................11

Conn. Gen. Stat. Ann. § 54-1f(a)...................................6

D.C. Code Ann. § 23-581(a)(1)(B) .................................6

D.C. Code Ann. § 25-1001 ..................................... 11, 14

Del. Code Ann. tit. 11, § 1904(a)(1) ..............................6

Fla. Stat. § 379.401 ................................................. 2, 11

Fla. Stat. § 403.413 .....................................................11

Fla. Stat. § 810.08 .......................................................11

Fla. Stat. § 828.1615(4)..................................... 2, 12, 14

Fla. Stat. § 856.021(1)............................................. 6, 12

Fla. Stat. § 901.15 .........................................................6

Ga. Code § 16-7-43 ......................................................11

Ga. Code Ann. § 16-11-3 ...............................................6

Ga. Code Ann. § 17-4-20(a)(2)(A)..................................6

Idaho Code § 19-603(1) .................................................6

Ind. Code § 35-33-1-1(a)(4) ...........................................6

Ky. Rev. Stat. Ann. § 431.005(1)(d) ...............................6

Md. Code Ann., Crim. Proc. § 2-202(a)-(c) ....................6

Mich. Comp. Laws § 764.15(1)(a) .................................6

Minn. R. Crim. P. 26.01...............................................12

Minn. Stat. § 629.34(c)(1) .............................................6

Miss. Code Ann. § 99-3-7(1) ..........................................6

N.C. Gen. Stat. Ann § 14-159.6 ...................................11

v

TABLE OF AUTHORITIES – Continued

Page

N.C. Gen. Stat. Ann. § 14-399 .....................................11

N.D. Cent. Code § 29-06-15(1)(a) ..................................6

Neb. Rev. Stat. Ann. § 28-523 .....................................11

Ohio Rev. Code Ann. § 2935.03(A)(1) ...........................6

Ohio Rev. Code Ann. § 4301.62 ............................. 11, 14

Ohio Rev. Code Ann. § 4301.99 ............................. 11, 14

Ohio Rev. Code Ann. § 4511.48 ............................... 2, 11

Okla. Stat. tit. 22, § 196(1) ...........................................6

Pa. Stat. and Cons. Stat. Ann. § 6304(a) ......................6

S.C. Code Ann. § 17-13-30 ............................................6

S.D. Codified Laws § 23A-3-2(1) ...................................6

Tenn. Code Ann. § 40-7-103(a)(1) .................................6

Tex. Code Crim. Proc. Ann. art. 14.01(a)-(b) ................6

Tex. Penal Code Ann. § 42.07 .....................................11

Utah Code Ann. § 73-18A-2 ........................................11

Va. Code Ann. § 18.2-427 ............................................11

Va. Code Ann. § 19.2-81(B) ...........................................6

W. Va. Code Ann. § 8-14-3 .............................................6

W. Va. Code Ann. § 20-2-5 ...........................................11

Wash. Rev. Code Ann. § 9A.84.030 .............................11

Wash. Rev. Code Ann. § 10.31.100 ................................6

Wash. Rev. Code Ann. § 77.15.370 ..............................11

Wyo. Stat. § 6-3-204 ....................................................11

vi

TABLE OF AUTHORITIES – Continued

Page

RULES

Sup. Ct. R. 37(2)(a)........................................................1

Sup. Ct. R. 37(6) ............................................................1

OTHER AUTHORITIES

Alexandra Natapoff, Misdemeanors, 85 S. Cal. L.

Rev. 1313 (2012) ......................................................13

Cato Institute, https://www.cato.org/cato-handbookpolicymakers/cato-handbook-policy-makers-8thedition-2017/overcriminalization ...........................11

Florida Department of Law Enforcement, https://

web.fdle.state.fl.us/statutes/about.jsf .....................11

Rachel S. Weiss, Defining the Contours of United

States v. Hensley: Limiting the Use of Terry

Stops for Completed Misdemeanors, 94 Cornell L. Rev. 1321 (2009) ...........................................12

Sanford H. Kadish, The Crisis of Overcriminalization, 7 Am. Crim. L. Q. 17 (1968) ........................11

1

INTEREST OF AMICUS CURIAE

Pursuant to Federal Circuit Rule 29(a), the Florida Association of Criminal Defense Lawyers—Miami

Chapter respectfully submits this brief in support of

the Petitioner.1

Founded in 1963, the Miami Chapter of the Florida

Association of Criminal Defense Lawyers (FACDLMiami) is one of the largest bar associations in MiamiDade County. The 450-plus attorneys in the Miami

Chapter include private practitioners and public defenders who are committed to preserving fairness in

the state and federal criminal justice systems and defending the rights of individuals guaranteed by the

Florida and United States Constitution.

------------------------------------------------------------------

SUMMARY OF THE ARGUMENT

This Court should grant certiorari to address

whether the Fourth Amendment should prevent officers from performing a Terry stop to investigate completed misdemeanors. The purpose of a Terry stop is to

enable officers to prevent crime that is afoot. Terry v.

1

All parties have consented to the filing of this brief under

Rule 37(2)(a) of the Supreme Court Rules. Pursuant to Supreme

Court Rule 37(2)(a), amicus affirms that all parties received notice of intent to file this amicus curiae brief earlier than ten (10)

days before the due date, and pursuant to Supreme Court Rule

37(6) no counsel for any party authored this brief in whole or in

part, and that no person other than amicus, its members, or its

counsel made a monetary contribution to its preparation or submission.

2

Ohio, 392 U.S. 1, 30 (1968). This rule was extended to

completed felonies for reasons of public safety as felonies are serious and often violent crimes. See United

States v. Hensley, 469 U.S. 221, 229 (1985). However,

Terry should not be extended to completed misdemeanors. Such an extension contradicts the original purpose

of Terry to prevent ongoing crimes. Unlike felonies,

misdemeanors are low-level offenses that involve

substantially less risk to public safety. There is no compelling public interest that justifies detaining an individual to investigate a misdemeanor that the officer

did not witness.

Additionally, allowing officers to detain individuals to investigate completed misdemeanors would invite virtually limitless investigative detentions. This

will only serve to compound the burgeoning problems

of overcriminalization and foster distrust of law enforcement. Throughout the United States, there are

incalculable numbers of behaviors that qualify as misdemeanors. Most of these misdemeanors are innocuous, e.g., jaywalking, fishing without a license, or

dyeing a poodle’s fur pink.2 Allowing investigations

based only on reasonable suspicion that such innocuous activity was completed outside the officer’s presence creates the potential for abuse.

------------------------------------------------------------------

2

See, e.g., Ohio Rev. Code Ann. § 4511.48 (jaywalking); Fla.

Stat. § 379.401 (unlawful fishing); Fla. Stat. § 828.1615(4) (making dyeing or artificially coloring animals a misdemeanor).

3

ARGUMENT

Police officers have often commented that “you can

beat the rap, but you can’t beat the ride.”3 Detention by

law enforcement officials impacts citizens before they

are even tried. This is true even if charges are eventually dropped. “While it is true that any one stop is a

limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience. No one should live in fear of being stopped

whenever he leaves his home to go about the activities

of daily life.” Floyd v. City of New York, 959 F. Supp. 2d

540, 557 (S.D.N.Y. 2013).

In Atwater v. City of Lago Vista, 532 U.S. 318, 347

(2001), the petitioner drove her truck with her two

young children in the front seat. None of them was

wearing a seatbelt. Id. at 324. A police officer “observed

the seatbelt violations, pulled [the petitioner] over, verbally berated her, handcuffed her, placed her in his

squad car, and drove her to the local police station,

where she was made to remove her shoes, jewelry, and

eyeglasses, and empty her pockets.” Id. at 319 (emphasis added). The petitioner in Atwater was then booked,

placed in a jail cell, and brought before a magistrate

judge. Id.

3

See Sorenson v. Ferrie, 134 F.3d 325, 328 n. 5 (5th Cir.

1998) (“At oral argument, the officers’ counsel conceded his familiarity with the saying, ‘You can beat the rap, but you can’t beat

the ride,’ but insisted that Sorenson’s night in jail was not the

result of a personal grudge.”).

4

A majority of the Court in Atwater recognized that

“the physical incident of arrest [in that case was] a gratuitous humiliation imposed by a police officer who was

(at best) exercising extremely poor judgment.” Id. at

346–47. Nevertheless, this Court held that police officers could arrest individuals without a warrant if the

officer had probable cause to believe that the individual committed or was about to commit a non-jailable

misdemeanor in the officer’s presence. Id. at 354. The

Atwater decision did not address the Fourth Amendment implications of a warrantless arrest for a completed misdemeanor. See id. at 341 n. 11.

Justice O’Connor’s dissent, joined by three other

justices, explained why the majority’s rule in Atwater

was unreasonable under the Fourth Amendment. Justice O’Connor pointed out that the petitioner and her

children felt the emotional and psychological effects of

the petitioner’s arrest long after the seatbelt fine was

paid. Id. at 395. Because an interaction with law enforcement can have such an impact on an individual’s

life, Justice O’Connor urged that the reasonableness of

the arrest “hinges on the degree to which it is needed

for the promotion of legitimate governmental interests.” Id. at 365. The dissent analyzed the potential

government interests served by permitting the officer

to arrest the petitioner in Atwater. Id. In doing so, Justice O’Connor found that the legislature, by deciding

that a fine, but not imprisonment, was the appropriate

punishment for the offense, had determined that the

state had only a “limited” interest in arresting a person

who committed such an offense. Id. The dissent inferred

5

that warrantless arrests for low-level offenses do not

serve any significant government interests and are often not worth the substantial invasion of an individual’s personal privacy. See id. at 370. Moreover, the

dissent warned that “a minor traffic infraction may often serve as an excuse for stopping and harassing an

individual” and the majority’s rule has contributed to

that risk by extending “the arsenal available to any officer . . . to a full arrest and the searches permissible

concomitant to that arrest.” Id. at 371.

The Petitioner’s case presents a parallel to the

question reserved by this Court in Atwater: whether a

Terry stop for a misdemeanor not committed in an officer’s presence is permitted under the Fourth Amendment. See Atwater, 528 U.S. at 341 n. 11 (“We need not,

and thus do not, speculate whether the Fourth Amendment entails an ‘in the presence’ requirement for purposes of misdemeanor arrests.”). Should this Court

adopt the Eleventh Circuit’s position that the Fourth

Amendment allows Terry stops for completed misdemeanors,4 there will be another item in the “arsenal”

available to officers looking for an excuse to stop an individual. Id. at 371 (O’Connor, J., dissenting). Instead,

Atwater should be the limit. A “per se rule” allowing

Terry stops for misdemeanors, ongoing or not, “has potentially serious consequences for the everyday lives

of Americans.” Id. Therefore, this Court should take

this opportunity to proclaim that the Fourth Amendment protects individuals suspected of a completed

4

2018).

United States v. Blessinger, 752 F. App’x 765, 770 (11th Cir.

6

misdemeanor from warrantless detentions by law enforcement.

A. A majority of the states have recognized a

distinction between ongoing and completed

misdemeanors.

By our count, twenty-seven (27) of the states and

the District of Columbia have enacted statutes prohibiting warrantless arrests for misdemeanors not committed in the officer’s presence.5 This bolsters the

Petitioner’s and the Sixth Circuit’s interpretation6 of

the Fourth Amendment for two reasons. First, this

5

See, e.g., Ala. Code § 15-10-3(a) (Alabama); Alaska Stat.

§ 12.25.030(1) (Alaska); Ariz. Rev. Stat. Ann. § 13-3883(A)(2)

(Arizona); Ark. Code Ann. § 16-81-106(b)(2)(A) (Arkansas); Cal.

Penal Code § 836(a)(1) (California); Conn. Gen. Stat. Ann. § 541f(a) (Connecticut); Del. Code Ann. tit. 11, § 1904(a)(1) (Delaware); D.C. Code Ann. § 23-581(a)(1)(B) (D.C.); Fla. Stat.

§ 901.15 (Florida); Ga. Code Ann. § 17-4-20(a)(2)(A) (Georgia);

Idaho Code § 19-603(1) (Idaho); Ind. Code § 35-33-1-1(a)(4) (Indiana); Ky. Rev. Stat. Ann. § 431.005(1)(d) (Kentucky); Md.

Code Ann., Crim. Proc. § 2-202(a)-(c) (Maryland); Mich. Comp. Laws

§ 764.15(1)(a) (Michigan); Minn. Stat. § 629.34(c)(1) (Minnesota); Miss. Code Ann. § 99-3-7(1) (Mississippi); N.D. Cent. Code

§ 29-06-15(1)(a) (North Dakota); Ohio Rev. Code Ann.

§ 2935.03(A)(1) (Ohio); Okla. Stat. tit. 22, § 196(1) (Oklahoma);

Pa. Stat. and Cons. Stat. Ann. § 6304(a) (Pennsylvania); S.C. Code

Ann. § 17-13-30 (South Carolina); S.D. Codified Laws § 23A-32(1) (South Dakota); Tenn. Code Ann. § 40-7-103(a)(1) (Tennessee); Tex. Code Crim. Proc. Ann. art. 14.01(a)-(b) (Texas); Va.

Code Ann. § 19.2-81(B) (Virginia); Wash. Rev. Code Ann.

§ 10.31.100 (Washington); and W. Va. Code Ann. § 8-14-3 (West

Virginia).

6

See Gaddis v. Redford Twp., 364 F.3d 763, 771 (6th Cir.

2004).

7

widespread restriction of an officer’s ability to arrest

individuals for completed misdemeanors without a

warrant evinces a general agreement on the limitations of police power in this area. Second, if the detention of an individual by an officer cannot result in that

individual’s arrest without a warrant, then the government interest served by allowing the officer to stop

that individual in the first place is reduced.

The Ohio Supreme Court provided a particularly

illustrative example of the justification for the distinction between ongoing and completed misdemeanors.

State v. Henderson, 554 N.E.2d 104, 106 (Ohio 1990).

The Ohio Supreme Court analyzed Ohio’s prohibition

on warrantless arrests for completed misdemeanors.

Id. The highest court in Ohio noted that the power of

an officer to arrest someone for a minor offense is primarily given to the officer so that he may “maintain

the public peace.” Id. That interest is furthered when

an officer conducts a stop based on reasonable suspicion that a crime is about to happen, and the officer can make moves to prevent that crime.7 See id.

7

For example, in Henderson the officer observed the defendant intoxicated and then driving a vehicle. Id. The Ohio Supreme

Court held that an officer could stop such an individual because

the state interest in preventing drunk driving is significantly furthered by enabling an officer to stop an individual that the officer

observed to be intoxicated. Id. However, that interest is mitigated

when the offense is an accomplished fact that cannot be prevented. Id. at 107. The Ohio Court pointed to another case in

which an officer did not have the authority to arrest the suspect

because the officer was called to the scene to break up a fight, but

when the officer arrived to the scene “the parties [to the fight] had

gone and good order had been restored.” Id. (quoting State v.

Lewis, 33 N.E. 405, 406 (Ohio 1893)).

8

Consequently, warrantless arrests for completed misdemeanors, when balanced against an individual’s

privacy interest, do not advance the government’s interest in crime control to a significant enough degree.

See id. Therefore, even though the officer could arrest

for an ongoing misdemeanor, the state of Ohio was justified in restricting police officers’ power in the case of

a completed misdemeanor. See id.; compare with State

v. Glover, 422 P.3d 64, 66, 69 (Kan. 2018) (cert. granted

April 1, 2019, No. 18-556) (analyzing whether a police

officer could initiate a traffic stop to investigate the

suspected, ongoing offense of driving with a revoked license).

Similar language can be found in the opinions of

many other states’ high courts highlighting this distinction, so important to the Sixth Circuit, between arrests for ongoing or imminent crimes versus arrests for

completed misdemeanors. See, e.g., State v. Almanzar,

316 P.3d 183, 186 (N.M. 2013) (“In order to lawfully arrest an individual for a misdemeanor [in New Mexico],

a police officer must have a warrant, unless the misdemeanor was committed in the officer’s presence.”); Telfare v. City of Huntsville, 841 So. 2d 1222, 1229 (Ala.

2002); Rubey v. City of Fairbanks, 456 P.2d 470, 474

(Alaska 1969); Lunn v. Commonwealth, 477 Mass. 517,

530 (Mass. 2017); Mahoney v. Commonwealth, 489

S.W.3d 235, 238 (Ky. 2016); Henry v. Commissioner of

Public Safety, 357 N.W.2d 121, 122 (Minn. Ct. App.

1984); and Howard v. State, 112 Md. App. 148, 158

(Ct. App. Md. 1996). Cf. Calhoun v. Villa, 761 F. App’x

297, 300 (5th Cir. 2019) (explaining that Texas police

officers had the authority to make warrantless arrests

9

for jaywalking and standing on railroad tracks because

the misdemeanor violations occurred within the officer’s view).

These state statutes and opinions underscore a

general determination of how a balancing of interests

under the Fourth Amendment should go in cases of

completed misdemeanors. The states have recognized

that such a balancing of interests is different depending on whether the misdemeanor is ongoing or completed. When the misdemeanor is ongoing, the state

interest is enough that it outweighs concerns for individual privacy. But the result is not the same in cases

of completed misdemeanors: the valid state interest in

preventing crime is not as high with completed misdemeanors, and so the scales tip back in favor of individual liberties and an arrest must be based on probable

cause and supported by a warrant.

The fact that twenty-seven (27) states have decided that policing completed misdemeanors is so limited a state interest that warrantless arrests in this

area should be prohibited bears on the analysis of

whether Terry stops for completed misdemeanors

should be prohibited as well. To be sure, a Terry stop is

less intrusive than a full-blown arrest. But both are an

invasion of an individual’s liberty and freedom of

movement. Whether an investigatory stop or a fullblown arrest, exigencies inherent in ongoing or imminent criminal activity and the government’s interest in

ferreting out crime are diminished when the crime is

a past event; and any interest that exists is still

10

outweighed by an individual’s right to privacy. See also

United States v. Grigg, 498 F.3d 1070, 1080 (9th Cir.

2007) (quoting Blaisdell v. Comm’r of Public Safety,

375 N.W.2d 880, 881, 883–84 (Minn. Ct. App. 1985))

(explaining that the formal distinction between allowing arrests for completed felonies but prohibiting

arrests for completed misdemeanors amounts to “ ‘a

legislative recognition that the public concerns served

by warrantless misdemeanor arrests are in some degree

outweighed by concerns for personal security and liberty’ ”) (emphasis added). This Court has a duty to

protect individual liberty from needless erosion. Accordingly, an interpretation of the Fourth Amendment

that prevents officers from conducting Terry stops

to investigate completed misdemeanors would more

closely comport with many states’ evaluation on this

subject.

B. Failing to recognize the distinction between

ongoing and completed misdemeanors in the

context of Terry stops invites limitless investigative detentions and risks escalating tensions

between police and citizens, particularly

given the trend of overcriminalization.

There are so many activities that are categorized

by statute as misdemeanors that, if this Court allows

officers to conduct investigative detentions for completed

misdemeanors, an officer could effectively conduct an

investigative detention on any and every individual.

According to the Florida Department of Law Enforcement’s website, there are 3,136 misdemeanor crimes

11

currently on the books in Florida.8 And that number

continues to rise, a product of overcriminalization.9

Misdemeanors encompass a wide range of activities, including many of an innocuous nature. Some examples of activities that constitute misdemeanors

include littering,10 jaywalking,11 unlawful fishing,12

8

Florida Department of Law Enforcement, https://web.fdle.

state.fl.us/statutes/about.jsf (last visited July 12, 2019).

9

Overcriminalization is the overuse and abuse of criminal

law to address every societal problem and punish every mistake

through the criminal court system. The exponential growth of activities that are criminalized restricts the freedom of the people

to live their own lives. “As the criminal law expands, there is a

concomitant diminution of liberty.” Cato Institute, https://www.

cato.org/cato-handbook-policymakers/cato-handbook-policy-makers8th-edition-2017/overcriminalization. More crimes also means an

increasing involvement of the citizenry in the criminal justice system, which carries with it lifelong consequences and inherent

stigmatization. Law enforcement officers feel the negative effects

from overcriminalization as well. See Sanford H. Kadish, The Crisis of Overcriminalization, 7 Am. Crim. L. Q. 17, 28 (1968) (“Not

only does the use of the criminal law, therefore, divert substantial

law-enforcement resources away from genuinely threatening conduct, but the whole criminal-justice system is denigrated by the

need to process massive numbers of pathetic and impoverished

people through clumsy and inappropriate procedures.”).

10

See, e.g., Ala. Code § 13A-7-29; Ark. Stat. Ann. § 8-6-404;

Fla. Stat. § 403.413; Ga. Code § 16-7-43; Utah Code Ann. § 7318A-2; Wyo. Stat. § 6-3-204; N.C. Gen. Stat. Ann. § 14-399; Neb.

Rev. Stat. Ann. § 28-523.

11

See, e.g., Wash. Rev. Code Ann. § 9A.84.030; Ohio Rev.

Code Ann. § 4511.48.

12

See, e.g., Wash. Rev. Code Ann. § 77.15.370; 18 U.S.C. § 41;

Fla. Stat. § 379.401; N.C. Gen. Stat. Ann § 14-159.6; W. Va. Code

Ann. § 20-2-5.

12

loitering,13 trespassing,14 using profanity over the

phone,15 intentional annoyance of others,16 playing

one’s car stereo too loudly,17 drinking a beer in public,18

and—of course—dyeing an animal’s fur.19 These crimes

are categorized as misdemeanors because they do not

pose as great a risk to the public as felonies. Indeed,

“[b]y classifying the commission of a crime as a misdemeanor, a legislature is pronouncing its belief that that

crime is not terribly serious and that a person who

commits that crime does not represent a significant

threat to society.” Rachel S. Weiss, Defining the Contours of United States v. Hensley: Limiting the Use of

Terry Stops for Completed Misdemeanors, 94 Cornell L.

Rev. 1321, 1344 (2009). And state legislatures across

the country reinforce that view by affording alleged

misdemeanants fewer procedural rights than those

accused of more serious offenses.20 Moreover, many

13

See, e.g., 18 Pa. Stat. and Cons. Stat. Ann. § 5506; Fla.

Stat. § 856.021(1); Ga. Code Ann. § 16-11-36.

14

See, e.g., Fla. Stat. § 810.08; Conn. Gen. Stat. Ann. § 53a-107.

15

Va. Code Ann. § 18.2-427; Ariz. Rev. Stat. Ann. § 13-2916.

16

Tex. Penal Code Ann. § 42.07.

17

See Grigg, 498 F.3d at 1081.

18

See, e.g., D.C. Code Ann. § 25-1001; Ohio Rev. Code Ann.

§§ 4301.62, 4301.99.

19

See Fla. Stat. § 828.1615(4).

20

See, e.g., Minn. R. Crim. P. 26.01 (codifying that people

who commit mere “petty misdemeanors” are not entitled to a jury

trial); see Scott v. Illinois, 440 U.S. 367, 373–74 (1979) (holding

that misdemeanant who was not subject to “actual imprisonment”

upon conviction was not entitled to counsel); United States v.

Fridman Santisteban, 127 F. Supp. 2d 1304, 1304 (D.P.R. 2000)

13

misdemeanors are considered so trivial or outdated

that prosecutors decline to prosecute them. See Alexandra Natapoff, Misdemeanors, 85 S. Cal. L. Rev. 1313,

1330 (2012) (“In some jurisdictions, prosecutors decline

to prosecute as many as half of all misdemeanor arrests.”).

Despite many misdemeanors being of such innocuous nature, the Eleventh Circuit’s rule invites Terry

stops for the pettiest of past offenses. The Eleventh

Circuit’s decision makes it so that, without judicial (or

even prosecutorial) oversight, police officers on the

beat can detain an individual on suspicion of having

committed a trivial misdemeanor. Because of the marginal interests at stake with completed misdemeanors,

the significant intrusion into the personal autonomy

and liberty of an individual implicated by Terry stops

is unjustified and unreasonable. Cf. Delaware v.

Prouse, 440 U.S. 648, 657 (1979) (explaining that stops

by law enforcement “interfere with freedom of movement, are inconvenient . . . consume time . . . [and] may

create substantial anxiety”). “Evaluation of a Terry

stop in the context of a completed misdemeanor should

tend to give primary weight to a suspect’s interests in

personal security, while considering the law enforcement’s interest in the immediate detention of a suspect

is not paramount.” Grigg, 498 F.3d at 1080.

Under the Eleventh Circuit’s view, a cop could arguably detain a citizen holding an empty beer bottle to

(holding that the Speedy Trial Act does not apply to Class B misdemeanors because they are “petty offenses”).

14

determine if he violated the drinking in public statute;21 or the officer could conduct an investigative detention on an individual to determine whether earlier

in the day that person was blasting his car stereo22 or

had failed to wear his seatbelt;23 or the officer could

stop someone with a pink poodle at the end of his leash

to determine if he (who is perhaps a dog-walker, not

the dog’s owner) violated the statute prohibiting individuals from dyeing an animal’s fur.24

In a country where pretextual stops and racial

profiling should be of great concern, investigatory

stops based on past misdemeanors could have negative consequences. Such stops could generate “resentment and distrust” of law enforcement,25 especially in

communities where tensions are already at a near boiling point. With 3,136 misdemeanors for a Florida cop

on the beat to choose from, the purported reasons for

detaining an individual are effectively limitless. Expanding a police officer’s power under Terry to allow

detentions for so many completed misdemeanors could

21

See, e.g., D.C. Code Ann. § 25-1001; Ohio Rev. Code Ann.

§§ 4301.62, 4301.99.

22

See Grigg, 498 F.3d at 1080.

23

See Atwater, 532 U.S. at 347.

24

See Fla. Stat. § 828.1615(4).

25

See Floyd, 959 F. Supp. 2d at 588–89 (explaining that during the height of New York’s stop and frisk practice, “the climate

in many of New York’s minority neighborhoods . . . was one of resentment and distrust of the NYPD”).

15

engrain that “resentment and distrust” for generations.

------------------------------------------------------------------

CONCLUSION

WHEREFORE, this Court should grant the Petitioner’s request for review.

Respectfully submitted,

MICHELLE ESTLUND

SAMUEL J. RABIN, JR.

PRESIDENT FLORIDA ASSOCIATION Counsel of Record

OF CRIMINAL DEFENSE

Florida Bar No. 273831

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