Petition for Writ of Certiorari — Hector Santillan, Petitioner v. United States

No. ____________________

IN THE

Supreme Court of the United States

_________________________________

HECTOR SANTILLAN

Petitioner,

vs.

UNITED STATES,

Respondent.

_________________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

_________________________________

PETITION FOR WRIT OF CERTIORARI

_________________________________

MICHELLE ANDERSON BARTH

CJA appointed counsel for Petitioner

Law Office of Michelle Anderson Barth

P.O Box 4240

Burlington, VT 05406

(619) 884-3883

i.

QUESTION PRESENTED

Whether, per the Fourth Amendment and this Court’s holdings in

Rodriguez v. United States, 135 S.Ct. 1609, 1616 (2015) and Reid v. Georgia,

448 U.S. 438 (1980), an officer, during a traffic stop to issue a traffic ticket,

may prolong that roadside stop to investigate other matters merely because

the car’s occupants have failed to satisfy the officer’s curiosity about their

travel itinerary and they appear nervous?

ii

ii.

PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT

Petitioner is Hector Santillan, defendant-appellant below. Respondent

is the United States, plaintiff-appellee below. Petitioner is not a corporation.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .................................................................................. ii

PARTIES TO THE PROCEEDINGS

AND RULE 29.6 STATEMENT ........................................................................ iii

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

PETITION FOR CERTIORARI .......................................................................... 1

OPINIONS BELOW ............................................................................................ 1

JURISDICTION .................................................................................................. 1

I.

STATEMENT OF THE CASE.................................................................. 2

II.

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

III

A.

This Court should grant certiorari because the Opinion departs

from the holdings of Rodriguez and Reid.. .................................... 6

B.

The Opinion's conclusion makes this decision an outlier among

decisions of the Courts of Appeal analyzing similar circumstances

and now, absent a grant certiorari, there will be no relief to people

suffering from impermissibly prolonged roadside . interrogations

residing within the geographic boundaries of the Court of Appeals

for the Second Circuit .................................................................. 13

C.

A collateral consequence of the Opinion: stops that will be

prolonged based on such subjective, self-serving, guilt-assuming

observations of police will disproportionately affect minority

communities exacerbating police and

community tensions

...................................................................................................... 15

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

iv

INDEX TO APPENDICES

Opinion, United States v. Hector Santillan ....................... APPENDIX A

Order, Denial of Petition for Rehearing, United States

v. Hector Santillan ............................................................... APPENDIX B

v

TABLE OF AUTHORITIES

Page

CASES

Amnesty Int’l USA v. Clapper,

667 F.3d 163 (2d Cir. 2011) ................................................................................. 8

Commonwealth v. Warren,

475 Mass. 530 (Mass. 2016) .............................................................................. 14

Dancy v. McGinley,

843 F.3d 93 (2d Cir. 2016) ........................................................................... 6,8,14

Karnes v. Skrutski,

62 F.3d 485 (3d Cir. 1995) ................................................................................. 10

Reid v. Georgia,

448 U.S. 438 (1980) (per curiam) .............................................................. passim

Ricci v. DeStefano,

530 F.3d 88 (2d Cir. 2008) ................................................................................. 12

Rodriguez v. United States,

135 S. Ct. 1609 (2015) ............................................................................... passim

United States v. Bowman,

884 F.3d 200 (4th Cir. 2018) ............................................................................. 10

United States v. Foster,

634 F.3d 243 (4th Cir. 2011) ............................................................................... 9

United States v. Jenson,

462 F.3d 399 (5th Cir. 2006) ............................................................................. 10

United States v. Jones,

269 F.3d 919 (8th Cir. 2001) ............................................................................. 11

United States v. Macias,

658 F.3d 509 (5th Cir. 2011) ............................................................................. 10

United States v. Perkins,

348 F.3d 965 (11th Cir. 2003) ........................................................................... 11

United States v. Rodriguez-Escalera,

884 F.3d 661 (7th Cir. 2018) ............................................................................... 9

vi

United States v. Salzano,

158 F.3d 1107 (10th Cir. 1998) ......................................................................... 11

United States v. Santillan,

902 F.3d 49 (2d Cir. 2018) ......................................................................... passim

United States v. Tapia,

912 F.2d 1367 (11th Cir. 1990) ........................................................................... 9

United States v. Townsend,

305 F.3d 537 (6th Cir. 2002) ............................................................................. 11

United States v. Williams,

808 F.3d 238 (4th Cir. 2015) ............................................................................ 5,9

Utah v. Strieff,

136 S. Ct. 2056 (2016) .................................................................................... 6,14

OTHER AUTHORITIES

U.S. Const. amend IV .......................................................................................... 2

E. Pierson et al., A large-scale analysis of racial disparities in police stops across

the United States, Working Paper 2017, Stanford University Open Policing

Project, p.1 ......................................................................................................... 13

Michael A. Fletcher, For Black Motorists, a Never-Ending Fear of Being Stopped,

National Geographic (March 3, 2018) ......................................................... 13,14

M. Flumenbaum and B. Karp, The Rarity of En Banc Review in the Second

Circuit, New York Law Journal, Vol. 256—No. 38 (August 24, 2016) ............ 12

vii

PETITION FOR CERTIORARI

Petitioner Hector Santillan respectfully prays for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Second

Circuit.

OPINIONS BELOW

The judgment of the United States Court of Appeals for the Second

Circuit was filed a published opinion on August 24, 2018. A divided threejudge panel of the Second Circuit issued a 30-page majority opinion (the

“Opinion”) affirming the judgment of the district court and a 15-page

dissenting opinion (the “Dissent”). See United States v. Santillan, 902 F.3d

49 (2d Cir. 2018). The opinions are attached as Appendix A.

On October 19, 2018, Mr. Santillan filed a petition for rehearing and

suggestion for rehearing en banc. The Second Circuit denied his petition on

November 26, 2018. That order is attached as Appendix B.

JURISDICTION

On August 24, 2018, a divided three judge panel for the Second Circuit

denied Petitioner’s appeal in a published opinion. Subsequently, on

November 26, 2018, the Second Circuit denied Mr. Santillan’s petition for

rehearing and suggestion for rehearing en banc.11/ This Court has

1 The time to file a petition for a writ of certiorari runs from the date a timely petition for

rehearing is denied. Sup. Ct. R. 13(3). A petition for a writ of certiorari is timely when filed

within 90 days. Sup. Ct. R. 13(1). A petition is timely filed if mailed on the date for filing.

Sup. Ct. R. 29.2. If the due date falls on a Saturday, Sunday, federal holiday, or day the

Court is closed, it is due the next day the Court is open. Sup. Ct. R. 30.1. The petition for

rehearing in this case was denied on November 26, 2018, making the petition for writ of

certiorari due on February 25, 2018.

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jurisdiction to review the Second Circuit’s decision pursuant to 28 U.S.C. §

1254.

CONSTITUTIONAL & STATUTORY PROVISIONS

U.S. Const. Amend. IV:

The 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.

I.

STATEMENT OF THE CASE

The Opinion holds that you may be detained and interrogated during a

routine traffic stop if you fail to satisfy an officer’s curiosity about your travel

plans and the officer perceives you are nervous. According to the Opinion,

these two subjective and self-serving factors alone permit an officer to subject

you to a prolonged roadside interrogation, even after the mission of ticketing

you should have been completed.

By way of background, Mr. Santillan, the petitioner, was a passenger

in a car driven by Mr. Junior Rivera-Vasquez when the men were stopped for

traffic violations while travelling along the Hutchinson Parkway outside of

New York City. Mr. Rivera- Vasquez and Mr. Santillan, both of Hispanic

descent, were stopped because the officer observed Mr. Rivera-Vasquez: (1)

driving 62 miles per hour in a 55 miles per hour zone, (2) following too closely

and failing to signal when passing another car, and (3) allowing the tires of

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his car to briefly touch the “fogline.”2

Eight minutes into the traffic stop, the officer had all of the

information he needed to complete his mission to issue traffic tickets but

chose not to because he wanted to investigate other matters.

During the first eight minutes of the traffic stop, Mr. Rivera-Vasquez

and Mr. Santillan responded appropriately to all of the officer’s requests. At

the officer’s request, Mr. Rivera- Vasquez (the driver) produced his driver’s

license and the vehicle’s registration, both quickly confirmed as valid by the

officer. The officer then questioned Mr. Rivera-Vasquez about his destination

to which Mr. Rivera responded he was going to Massachusetts. The officer

confirmed that Mr. Rivera had a Massachusetts license and the car he was

driving had Massachusetts plates. Likewise, the men were headed north

toward Massachusetts, where they claimed to be traveling.

In response to further questioning, Mr. Rivera-Vasquez stated that he

had come from Mr. Santillan’s aunt’s home but did not know the exact

address. The officer then asked Mr. Santillan (the passenger) to produce

identification and Mr. Santillan gave him a copy of his identification card,

which was also valid and accurate. In response to more questioning, Mr.

Santillan said that his aunt lived in New Jersey and gave the officer the

name of a city.

Nonetheless, the officer prolonged the stop to interrogate the men

further because (1) they had failed to satisfy his curiosity about their travel

2 The “fogline” is the solid white that divides the roadway from the shoulder.

3

plans and (2) his observation that both men seemed nervous. During the

traffic stop, the officer called other officers to the scene, made both men exit

the car, and conducted judicially recognized illegal searches of their persons.3

Over an hour later, the car was searched by a narcotics detector dog called to

the scene and a package of cocaine was discovered under Mr. Santillan’s seat.

Mr. Santillan moved to suppress the evidence discovered during this

prolonged roadside stop as violative of the Fourth Amendment. The district

court denied his motion, finding reasonable suspicion. A divided Court of

Appeals panel subsequently affirmed the holding that there was sufficient

reasonable suspicion to prolong the stop because the men gave “inconsistent”

statements about their travel plans and they were nervous during the

encounter.

The Dissent held that there was no reasonable suspicion sufficient to

prolong the stop beyond the eight-minute mark so the officer could

investigate other matters. Without such reasonable suspicion, the Dissent

reasoned, the traffic stop ran afoul of this Court’s decision in Rodriguez v.

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

Mr. Santillan’s petition should be granted by this Court for at least

three main reasons.

First, the Opinion departs from the Supreme Court’s holdings in

Rodriguez, 135 S.Ct. at 1616 and Reid v. Georgia, 448 U.S. 438 (1980) (per

curiam). The Opinion departs from the holding of Rodriguez in that it finds

3 The Opinion recognized that the officer violated Mr. Santillan’s Fourth Amendment rights

4

reasonable suspicion based on the very type of non-mission related questions

and answers that prolong a stop beyond the duration necessary to complete

the initial goal of the stop. It departs from Reid in that, to reach reasonable

suspicion, it relies on the subjective, self-serving, guilt-assuming

interpretations of the officer—with no actual nexus to criminal activity—

which have the potential to describe large numbers of presumably innocent

travelers. This Court should grant certiorari to correct these significant

departures from established Supreme Court precedent.

Second, the Opinion’s conclusion that nervousness and unsatisfactory

answers regarding point of origin give rise to reasonable suspicion, creates a

circuit split and represents an extreme outlier in the various Courts of

Appeals’ decisions. That is, in cases such as this one—where the Reid-nexus

mentioned in the “First” point above is absent—nearly every other Court of

Appeals has found nervousness, even extreme nervousness, coupled with

inconsistent statements fall short of the reasonable suspicion standard. See

e.g. United States v. Williams, 808 F.3d 238, 249-50 (4th Cir. 2015) (failure to

satisfy officer’s queries about one’s travel itinerary coupled with nervousness

are insufficient bases for a finding of reasonable suspicion). Clarity of this

issue is necessary because it will lead to circuit courts’ uniformity in

reviewing the appropriate scope and duration of road-side interrogations by

aggressive drug interdiction officers patrolling our nation’s thoroughfares.

Finally, empirical data indicates that African Americans and Latinos

when the officer conducted an illegal search of Mr. Santillan’s person during the traffic stop.

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are pulled over and searched at a much higher rate than non-minorities. The

Opinion, which gives officers unfettered discretion to prolong a stop based on

their subjective, self-serving, guilt-assuming interpretations, (not supported

by the record), will likely “lead to harassment of minority groups and severely

exacerbate police-community tensions.” Dancy v. McGinley, 843 F.3d 93, 111

(2d Cir. 2016) (internal quotations and citations omitted); see also Utah v.

Strieff, 136 S.Ct. 2056, 2070 (2016) (Sotomayor dissenting) (“it is no secret

that people of color are disproportionate victims of this type of [police]

scrutiny”) (internal citation omitted). Such external consequences crystallize

the need for the specificity and particularity on the part of officers, so sorely

lacking here, to justify detention.

II.

ARGUMENT

A.

This Court should grant certiorari because the Opinion departs

from the holdings of Rodriguez and Reid.

This Court held in Rodriguez that without reasonable suspicion of

some other crime, a stop must not extend the time that is needed to complete

the initial mission of the stop. Rodriguez, 135 S.Ct at 1616 (“[A] police stop

exceeding the time needed to handle the matter for which the stop was made

violates the Constitution’s shield against unreasonable seizures,” indicating

that the critical question is whether the unrelated investigation “prolongs––

i.e., adds time to––the stop.”). Relatedly, this Court held in Reid that

reasonable suspicion to justify a stop should exclude factors that apply to

6

large categories of presumably innocent travelers and that such factors must

have an objective nexus to criminal activity. See Reid, 448 U.S. at 441

(holding that to find otherwise would subject anyone to “virtually random

seizures”). Read together, Rodriguez and Reid stand for the dual principles

that: (1) reasonable suspicion cannot be acquired by prolonging a traffic stop

beyond the point needed to complete its initial mission (say, for instance, by

engaging in question and answer about one’s travel itinerary) and (2) if a

traffic stop is prolonged beyond that point, the suspicious circumstances upon

which the officer relies to do so must have an objectively reasonable

connection to criminal activity to avoid including large numbers of

presumably innocent travelers.

The Opinion departs from the holding of Rodriguez by considering the

officer’s questioning of the defendants about their travel plans, even though

that conversation prolonged the stop and was not pertinent to the traffic

violations that justified the stop in the first instance. As such, that

questioning violated Rodriguez’s prohibition against “add[ing] time to the

stop,” Rodriguez, 135 S.Ct. at 1616, and should not have been considered by

the majority.

The Opinion departs from the holding of Reid by finding reasonable

suspicion based solely on two factors: (1) nervousness and (2) a failure to

satisfy an officer’s curiosity about one’s travel plans. These factors, however,

are only guilt-forming in the eye of the beholder; i.e., they lack an objective

nexus to criminal activity. Thus, these two factors have a tendency to include

7

large categories of presumably innocent travelers. The effect of the majority’s

expansive definition of reasonable suspicion “winnow[s] the protections of the

Fourth Amendment to a near nullity...”, Santillan, 902 F.3d at 63 (Pooler, J.

dissenting), and subjects our citizens to “virtually random seizures.” Reid,

448 at 441.

This Court should grant certiorari to correct these significant

departures from established Supreme Court precedent. Amnesty Int’l USA v.

Clapper, 667 F.3d 163, 179 (2d Cir. 2011) (Raggi, J., dissenting from denial of

rehearing en banc because “The panel decision puts this court at odds with

Supreme Court precedent”).

B.

The Opinion’s conclusion makes this decision an outlier among

decisions of the Courts of Appeal analyzing similar

circumstances and now, absent a grant certiorari, there will

be no relief to people suffering from impermissibly prolonged

roadside interrogations residing within the geographic

boundaries of the Court of Appeals for the Second Circuit.

The Dissent, by the Honorable Judge Rosemary S. Pooler, is correct

when it notes, “nearly every stop will produce some answer that could be as

vaguely unavailing in the mind of the officer as the answers given here.”

Santillan, 902 F.3d at 63. This is why it is so important that there be a

nexus, per Reid, between the factors upon which an officer relies to justify

prolonging the stop and actual criminal activity. Because this critical nexus

is missing here, this case “is a clear example of officers acting on a ‘mere

hunch,’ without reasonable suspicion.” Id. at 63 (citing Dancy, 843 F.3d at

106).

8

This principle has not been lost on other Courts of Appeal which have

indicated an unwillingness to find reasonable suspicion based on a suspect’s

nervousness during police interaction—even coupled with other factors, such

as inconsistent statements that warrant some suspicion—in the absence of a

sufficient nexus. The Fourth Circuit stated in United States v. Foster, 634

F.3d 243 (4th Cir. 2011):

We … note our concern about the inclination of the Government

toward using whatever facts are present, no matter how innocent, as

indicia of suspicious activity. We recognize that we must look to the

totality of the circumstances when evaluating the reasonableness of a

stop… However, an officer and the Government must do more than

simply label a behavior as “suspicious” to make it so. The

Government must also be able to either articulate why a particular

behavior is suspicious or logically demonstrate, given the

surrounding circumstances, that the behavior is likely to be

indicative of some more sinister activity than may appear at first

glance.

Id. at 248 (internal citations omitted).

In Mr. Santillan’s case, the officer recited a familiar narrative about

nervousness and unsatisfactory answers regarding itinerary, but without a

Reid-nexus, “neither police officers nor courts should sanction as ‘reasonably

suspicious’ a combination of factors that could plausibly describe the behavior

of a large portion of motorists engaged in travel upon our interstate

highways.” United States v. Tapia, 912 F.2d 1367, 1371 (11th Cir. 1990); see

also United States v. Rodriguez-Escalera, 884 F.3d 661, 670-71 (7th Cir.

2018) (defendants’ nervousness and conflicting account of their travel

insufficient to prolong stop without Reid-nexus); Williams, 808 F.3d 238, 253

(4th Cir. 2015) (inconsistent travel plans, inability to provide a permanent

9

home address in New York even though he claimed to live there and had a

New York driver’s license, and inconsistent statements about traveling with

the car ahead of him found insufficient to prolong stop finding that “our

precedent requires that the authorities articulate or logically demonstrate a

connection between the relevant facts and criminal activity”); United States

v. Macias, 658 F.3d 509, 519 (5th Cir. 2011) (reversing after finding trooper

unconstitutionally prolonged Macias’s detention by asking irrelevant

questions without reasonable suspicion of criminal activity and rejecting the

government’s claim that officer had reasonable suspicion based on Macias’s

“extreme signs of nervousness”); United States v. Jenson, 462 F.3d 399, 40405 (5th Cir. 2006) (inconsistent answers between driver and passenger and

nervousness are insufficient without “adequate evidence of a nexus” to

criminal activity); Karnes v. Skrutski, 62 F.3d 485, 493 (3d Cir. 1995) (“[T]he

factors together must serve to eliminate a substantial portion of innocent

travelers before the requirement of reasonable suspicion will be satisfied.”).

Recently, in United States v. Bowman, 884 F.3d 200, 208 (4th Cir.

2018), the Fourth Circuit analyzed the following factors (individually and

cumulatively) related to a stop: (1) the defendants’ apparent nervousness; (2)

the presence of a suitcase, clothes, food and an energy drink inside of the car;

(3) the driver’s inability to supply the officer with the name and address of

passenger’s girlfriend despite having just gone to her home thirty minutes

prior; (4) the driver’s statements that he had been laid off recently and that

he had recently purchased the car (a Lexus) via Craigslist: (5) the driver’s

10

statement that “he bought cheap cars off of Craigslist which the officer

indicated was in accord with the ‘known practice of drug traffickers … [of

using] multiple, different vehicles to transport narcotics.’” The Fourth

Circuit found that these factors did not amount to reasonable suspicion

without a Reid-nexus and reversed the conviction. Id. at 218; see also United

States v. Perkins, 348 F.3d 965, 970 (11th Cir. 2003) (nervousness and

“inconsistent statements” about who defendants were going to visit

insufficient, noting that a traffic stop is itself is an “unsettling show of

authority that may create substantial anxiety”); United States v. Townsend,

305 F.3d 537, 543 (6th Cir. 2002) (failure to satisfy officer’s curiosity about

one’s purpose for late night travel and nervousness are insufficient); United

States v. Jones, 269 F.3d 919, 928–29 (8th Cir. 2001) (nervousness and

inconsistent statements about one’s prior criminal history insufficient);

United States v. Salzano, 158 F.3d 1107, 1112-14 (10th Cir. 1998)

(defendant’s failure to satisfy officer’s curiosity about his travel itinerary and

nervousness insufficient).

The cases detailed above recognize that “[m]any—if not most—traffic

stops will yield nervous drivers and one or another answer that the officer

could find unsatisfactory in some regard.” Santillan, 902 F.3d at 68-69. An

extreme outlier—solely relying on two dubious, self-serving, conclusory

factors to support its reasonable suspicion conclusion—the Opinion stands in

stark contrast to the Dissent and the overwhelming weight of authority from

other Circuits.

11

Rehearing, had it been granted by the Second Circuit, would have been

appropriate here because this is a case where the panel has reached a result

“that would not command a majority vote of the appeals court as a whole, and

thereby provoke an avoidable circuit conflict that the Supreme Court would

have to resolve.” Ricci v. DeStefano, 530 F.3d 88, 93 (2d Cir. 2008) (Jacobs, J.,

dissenting from denial of rehearing en banc). But the Second Circuit Court of

Appeals grants petitions for rehearing less often than any other circuit in this

nation. See M. Flumenbaum and B. Karp, The Rarity of En Banc Review in

the Second Circuit, New York Law Journal, Vol. 256—No. 38 (August 24,

2016) (“Since 1979, the U.S. Court of Appeals for the Second Circuit has

consistently granted fewer petitions for rehearing en banc than any other

circuit court, both in absolute terms and relative to the court’s caseload…”).

It is thus unsurprising that the Second Circuit denied Mr. Santillan’s petition

for rehearing given the statistical unlikelihood of its grant.

Absent a grant certiorari here, however, there will be no relief to

people suffering from impermissibly prolonged roadside interrogations

residing within the geographic boundaries of the Second Circuit. Mr.

Santillan’s (and others like him) only hope for relief is from this Court. Mr.

Santillan urges this Court to grant his petition so that the Second Circuit can

be calibrated in line with this Court’s precedent and resolve the circuit split

this decision created in favor of the Dissent and the majority view of the

sister circuits.

12

C.

A collateral consequence of the Opinion: stops that will be

prolonged based on such subjective, self-serving, guiltassuming observations of police will disproportionately affect

minority communities exacerbating police and community

tensions.

Traffic stops are, overwhelmingly, the most common interaction

between police and the public--an average of 20 million stops per year. See

E. Pierson et. al., A large-scale analysis of racial disparities in police stops

across the United States, Working Paper 2017, Stanford University Open

Policing Project, p.1 (internal citation omitted).4 A disproportionate share of

those 20 million police traffic stops each year involve people of color, even

though they are no more likely to break traffic laws than whites and yet,

they are more likely than whites to be ticketed, searched and arrested. Id.

This is true even though black and Hispanic motorists are no more likely

than whites to be carrying contraband. Id. (“By examining both the rate at

which searches occur and the success rate of these searches, we find evidence

that the bar for searching black and Hispanic drivers is lower than for

searching white drivers”). In short, “across the country, law-abiding black

and Hispanic drivers are left frightened and humiliated by the inordinate

attention they receive from police, who too often see them as criminals.

Such treatment leaves minorities feeling violated, angry, and wary of police

and their motives.” See Michael A. Fletcher, For Black Motorists, a Never-

4 Found at: https://openpolicing.stanford.edu/publications/ (last visited on February 23,

2019).

13

Ending Fear of Being Stopped, National Geographic (March 3, 2018).5

Despite this empirical data, the Opinion “blinds [itself] to the reality

that an individual’s race and ethnicity often will affect assessments of that

individual’s behavior.” Santillan, 892 F.3d at 65 (Pooler, J. dissenting); see

also Strieff, 136 S.Ct. at 2070; Commonwealth v. Warren, 475 Mass 530, 53840 (Mass. 2016).6 Requiring “specificity in articulating the basis for a stop is

necessary in part because according the police unfettered discretion to stop

and frisk could lead to harassment of minority groups and severely

exacerbate police-community tensions.” Dancy, 843 F.3d at 111 (quotation

marks omitted). And relying on an officer’s report of generalized nervousness,

as the majority does here, is simply too imprecise to meet this goal. People of

color will continue to have their rights violated by law enforcement when

murky descriptors like ‘nervousness’ or one’s failure to satisfy an officer’s

curiosity about anything the officer decides to ask are permitted by this

Court. “Such descriptors implicate biases—which are often implicit and

unknown to the officer—that code one individual’s behavior as more

5 Found at: https: // www.national geographic.com /magazine/2018/04/the-stop-race-policetraffic/ (last visited February 23, 2019).

6 In its recent opinion, the Massachusetts Supreme Judicial Court recognized that when a

person of color flees from a police officer, such flight “is not necessarily probative of a

suspect’s state of mind or consciousness of guilt.” Id. at 539-40. The court found that because

members of minority communities are frequent subjects of racial profiling, when one flees

from the police, it may not necessarily be because he is guilty of an underlying criminal

offense. Warren thus clarifies the weight that should be given to an individual’s behavior

when making a “reasonable suspicion” determination in the context of any citizen-police

interaction. When such a person avoids police contact, even in circumstances in which police

officers may have other reasons for suspecting or stopping an individual, the flight itself does

not conclusively provide an adverse inference of a suspect’s guilty conscious. In its thoughtful

opinion, the court explicitly recognized how race and history impact one’s perception and

behavioral responses.

14

suspicious only because of the color of her skin.” Santillan, 902 F.3d at 65.

Given the gravity of the issue and its impact on our citizens, this case

is a suitable vehicle for review by this Court.

III.

CONCLUSION

The Opinion regarding reasonable suspicion in the context of prolonged

automobile detention allows for unconstitutional encroachment on citizens’

liberty interests. It is out of line with the standards held by this Court in

Rodriguez and Reid, and the overwhelming weight of precedent from other

Courts of Appeal. The Opinion fails to narrow the universe of presumably

innocent travelers who are subject to the government’s intrusive actions.

Finally, the Opinion gives police the freedom to prolong stops based not on

specific, articulable suspicion, but instead based on their own subjective, selfserving, guilt-assuming impressions. The adverse effect of this freedom will

disproportionately fall on the shoulders of people of color. For the foregoing

reasons, the petitioner prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the Second Circuit.

Respectfully submitted,

MICHELLE ANDERSON BARTH

CJA appointed counsel for Petitioner

Law Office of Michelle Anderson Barth

P.O. Box 4240

Burlington, VT 05406

(619) 884-3883

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