Petition for Writ of Certiorari — Abilio Hernandez, et al., Petitioners v. Jason Boles, et al.

No.

In the

Supreme Court of the United States

ABILIO HERNANDEZ, LAZARO BETANCOURT,

NORGE RODRIGUEZ, and JOSE PEREZ

v.

Petitioners

JASON BOLES and DONNIE CLARK,

Respondents

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Paul Andrew Justice III

1902 Cypress Drive

Murfreesboro, TN 37130

(615) 419-4994

drew@justicelawoffice.com

Counsel for Petitioners

QUESTIONS PRESENTED

I.

In a civil rights lawsuit, should a federal appellate court grant deference to a

jury's conclusions of law about constitutional issues?

II.

While waiting for a drug-sniffing dog during a traffic stop, may the police

extend the stop by subjecting the driver and passengers to repetitive, back-toback checks for outstanding warrants, and by interrogating the driver and

the passengers about their activities and their backgrounds? Or does such

delay violate the Fourth Amendment?

i

PARTIES TO THE PROCEEDING

Petitioners Abilio Hernandez, Lazaro Betancourt, Norge Rodriguez, and Jose

Perez were the Plaintiffs in the trial court, and they were the Appellants in the

appellate court.

Respondents Jason Boles and Donnie Clark were the Defendants in the trial

court, and the Appellees in the appellate court. They were troopers with the

Tennessee Highway Patrol, sued only in their individual capacity.

No corporate disclosure is required because none of the parties is a corporate

entity.

RELATED PROCEEDINGS

Hernandez v. Boles, 949 F.3d 251 (6th Cir. 2020) (Case number 18-6281)

Hernandez v. Boles, 4:17-cv-00025 (E.D. Tenn. Nov. 07, 2018).

ii

TABLE OF CONTENTS

Questions Presented........................................................................................................i

Parties to the Proceeding................................................................................................ii

Related Proceedings........................................................................................................ii

Table of Contents...........................................................................................................iii

Table of Authorities.........................................................................................................v

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

Opinion Below.................................................................................................................1

Jurisdiction......................................................................................................................1

Statement of the Case.....................................................................................................3

A.

B.

C.

The So-Called Traffic Stop........................................................................3

The Lawsuit...............................................................................................6

Ruling of the Sixth Circuit........................................................................7

REASONS TO GRANT CERTIORARI...........................................................................9

I.

THE SIXTH CIRCUIT ERRED BY SHOWING DEFERENCE TO A

JURY VERDICT ON A QUESTION OF CONSTITUTIONAL LAW......9

II.

AS A MATTER OF LAW, THE TROOPERS UNREASONABLY

EXTENDED THIS TRAFFIC STOP.......................................................14

A.

B.

C.

The Fourth Amendment was Violated.........................................14

The Constitutional Issues are Important....................................17

There is a Three-Way Circuit Split on these Issues....................18

Conclusion......................................................................................................................21

Appendix........................................................................................................................22

Opinion of the United States Court of Appeals for the Sixth Circuit (Jan. 30,

2020)....................................................................................................................1a

Judgment of the United States Court of Appeals for the Sixth Circuit (Jan.

30, 2020)............................................................................................................14a

iii

Order of the United States Court of Appeals for the Sixth Circuit, Denying

Rehearing (March 06, 2020).............................................................................15a

Order by the United States District Court for the Eastern District of

Tennessee, Denying Rule 50(b) Motion (Nov. 7, 2017)...................................16a

Appellate Docket...............................................................................................22a

Agreed Pretrial Order (July 11, 2018).............................................................29a

iv

TABLE OF AUTHORITIES

Court Cases

Page(s)

Arizona v. Johnson, 555 U.S. 323 (2009).....................................................................16

Brendlin v. California, 551 U.S. 249 (2007).................................................................16

Bowman Trans., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285

(1974)...................................................................................................................11

Harrington v. Richter, 562 U.S. 86 (2011)...................................................................11

Hibbs v. Winn, 542 U.S. 88 (2004).................................................................................3

Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996)...............................9,10

McKenna v. Edgell, 617 F.3d 432, 440 (6th Cir. 2010)...............................................11

Muehler v. Mena, 544 U.S. 93 (2005)........................................................................9,13

Ornelas v. United States, 517 U.S. 690 (1996).........................................................9,10

Rodriguez v. United States, 135 S.Ct. 1609, 1615 (2015)......................................14,15

United States v. Cone, 868 F.3d 1150 (10th Cir. 2017)...............................................20

United States v. Evans, 786 F.3d 779 (9th Cir. 2015).................................................19

United States v. Gorman, 859 F.3d 706 (9th 2017) ....................................................19

United States v. Hill, 852 F.3d 377, 382 (4th Cir. 2017).............................................20

United States v. Landeros, 913 F.3d 862 (9th Cir. 2019)............................................18

United States v. Palmer, 820 F.3d 640 (4th Cir. 2016)...............................................19

U.S. Bank Nat. v. Village at Lakeridge, 138 S.Ct. 960 (2018)....................................10

Young v. Harper, 520 U.S. 143 (1997)............................................................................3

v

Statutes

Antiterrorism and Effective Death Penalty Act, 110 Stat. 1214...........................11,12

28 U.S.C. § 1254(1)..........................................................................................................1

28 U.S.C. § 1331...........................................................................................................1,6

42 U.S.C. § 1983...........................................................................................................3,6

Other Authorities

Fed R. Civ. P. 50.................................................................................................6,7,12,16

Sup. Ct. R. 10.................................................................................................................18

Sup. Ct. R. 13.3.............................................................................................................2,3

vi

PETITION FOR WRIT OF CERTIORARI

Petitioners Abilio Hernandez, Lazaro Betancourt, Norge Rodriguez, and Jose

Perez pray for a writ of certiorari. They ask for this writ to review the opinion and

judgment of the United States Court of Appeals for the Sixth Circuit, case number

18-6281. First, this case is about whether an appellate court should allow a jury in a

civil rights case to define the terms of the Fourth Amendment — even where the

facts are undisputed. Second, this case is about whether, instead of just writing a

traffic ticket, the police may constitutionally extend a traffic stop by checking and

double-checking the driver and passengers for outstanding warrants, and by

interrogating them to look for discrepancies, while waiting for a drug-sniffing dog.

OPINION BELOW

The Sixth Circuit panel issued its decision on January 30, 2020. Petition

App., at 1a. A timely petition for rehearing was denied on March 06, 2020. Pet. App.

15a. The opinion has been published at Hernandez v. Boles, 949 F.3d 251 (6th Cir.

2020). A copy of the slip opinion (#18-6281) is also reproduced in the Appendix

herein, pages 1a-13a.

JURISDICTION

This court has appellate jurisdiction under 28 U.S.C. § 1254(1). The federal

courts have subject-matter jurisdiction under 28 U.S.C. § 1331 (Federal question).

1

This petition for certiorari is timely because it is being filed within 150 days of an

order denying rehearing.

The normal deadline for filing a petition for certiorari is 90 days from the

latest of: 1) The date of the intermediate court opinion, 2) The date of the denial

of a timely petition for rehearing, 3) The date of the denial of an untimely petition

for rehearing, if appropriately entertained late, or 4) The date of any sua sponte

consideration of rehearing. Sup. Ct. R. 13.3. However, on March 19, 2020, due to the

Covid-19 pandemic, the Supreme Court granted a universal 60-day extension to all

prospective applicants. Due to that extension, the deadline is now due after 150

days.

This petition for certiorari is being filed within 150 days of the denial of a

timely petition for rehearing. The panel opinion was filed on January 30, 2020.

App., at 1a. Hernandez and company then filed a timely petition for rehearing

fourteen days later on February 13, 2020. Pet. App. 27a, entry #28. Notably, on

February 14, 2020, the electronic filing was locked by the appellate court clerk, with

directions for the Plaintiffs to re-file the document with the panel opinion attached.

Pet. App. 27a, at entry #28. Hernandez and company then re-filed the document

that same day, this time with the opinion attached. Pet. App. 27a, at entry #29. The

Sixth Circuit then considered the petition on the merits, denying it on March 06,

2020, on the basis that the court had already considered all the issues therein. Pet.

App. 15a.

2

To be clear, the rehearing petition was timely filed on February 13, 2020, and

only re-filed the next day at the court's express direction. But even if somehow

deemed untimely due to the court's locking it with instructions to re-file, the

petition would still reset the clock for requesting certiorari, given that the panel

"entertained" the petition, actively considered the request for rehearing, and denied

the petition on the merits. See Sup. Ct. R. 13.3; Hibbs v. Winn, 542 U.S. 88, 97-98

(2004); Young v. Harper, 520 U.S. 143, 147 n. 1 (1997).

STATEMENT OF THE CASE

This case involves a Fourth Amendment civil rights lawsuit under 42 U.S.C.

§ 1983, specifically regarding the unlawful extension of a traffic stop.

A.

The So-Called Traffic Stop

On 17 December 2015, Defendant Jason Boles pulled over the four Plaintiffs

for speeding by seven miles per hour on the interstate. Pet. App. 2a. The

Defendants, Troopers Jason Boles and Donnie Clark, both work for Interdiction

Plus. Pet. App. 2a. This entity is a division of the Tennessee Highway Patrol. Pet.

App. 2a. Importantly, Interdiction Plus employs an "all crimes approach." The "all

crimes approach" means pulling ordinary travelers over for minor traffic violations,

and then looking for "indicators" to justify seizing them for more serious crimes. 2a.

3

If the "indicators" are absent, the motorists are just given a warning, and released.

Pet. App. 2a.

In the sense that the Troopers typically only give warnings instead of

prosecuting traffic offenses, arguably the traffic law has very little to do with their

mission in general. Regardless, here Trooper Boles specifically acknowledged that

he never intended to prosecute this driver for speeding. Pet. App. 2a. Instead, Boles

was simply looking for "indicators." Pet. App. 2a. If no indicators were present, he

planned to give the driver a warning. Pet. App. 2a.

The 'traffic stop' began at 11:52 a.m. Pet. App. 2a. Plaintiff Hernandez was

the driver. Pet. App. 3a. Plaintiff Betancourt, owner of the vehicle, was the frontseat passenger. Pet. App. 3a. Plaintiffs Rodriguez and Perez were the two

passengers seated in the back. Pet. App. 3a.

Initially, Trooper Boles just collected the car registration, insurance, and

driver's license of Hernandez. Pet. App. 3a. But when he learned that the vehicle

actually belonged to the front passenger, Betancourt, he also took the front

passenger's license, too. Pet. App. 3a. He returned to his own vehicle, where he ran

both licenses for outstanding warrants.

By 11:59 a.m. (seven minutes into the stop), both men had been run through

NCIC successfully. Pet. App. 3a. Both men had come back clean. Pet. App. 3a. At

this point, Trooper Boles went back to the driver, Hernandez, and told him to step

out for interrogation. Pet. App. 3a. For the following several minutes, he asked

4

Hernandez various questions, including but not limited to where he was going, who

was in the car with him, and whether he had ever been in trouble. Pet. App. 3a.

Trooper Donnie Clark arrived while the interrogation of the driver was in

progress. Pet. App. 3a. He participated in the seizure from that point forward. Pet.

App. 3a-4a.

By about 12:05 p.m. (thirteen minutes into the stop), the interrogation was

complete. After the interrogation of the driver was complete, Trooper Boles went

back to the vehicle in order to interrogate the passengers. Pet. App. 3a. However, he

could not get very far with that interrogation because the passengers did not speak

good English. Pet. App. 3a. Specifically, at 12:05 p.m., Trooper Boles collected the

driver's licenses of the two back passengers. Pet. App. 30a, at ¶ ix. After collecting

these remaining licenses, he began running the back two passengers' names

through NCIC for outstanding warrants. By 12:13 p.m., (twenty-one minutes into

the stop), the back passengers came back clean through NCIC. Pet. App. 31a, at ¶

xi.

Around that same time, namely at 12:12 or 12:13 p.m., the second officer,

Trooper Clark, began running all four Plaintiffs' names through a second database.

Pet. App. 3a. The purpose of the second database was to conduct a "more detailed

check" on individuals. Pet. App. 3a.

A canine handler arrived at 12:17 p.m. (twenty-five minutes into the stop),

and shortly thereafter the dog began sniffing the vehicle. Pet. App. 3a. Supposedly

5

the dog alerted to something. Pet. App. 3a. Although not relevant to this petition,

the Sixth Circuit held that the resulting search of the car was unsupported by

probable cause, but nonetheless granted qualified immunity for that error. Pet. App.

8a-13a. Regardless, the car was indeed searched. Pet. App. 3a-4a. Based on that

search, an "unknown substance" was found inside, along with some re-encoded gift

cards. Pet. App. 4a. The four Plaintiffs were arrested. Pet. App. 4a. In the end, their

criminal cases were dismissed. Pet. App. 4a.

B.

The Lawsuit

This lawsuit followed. The four Plaintiffs sued Trooper Boles and Trooper

Clark under 42 U.S.C. § 1983 for violating their Fourth Amendment rights, most

notably by delaying a traffic stop unlawfully. Pet. App. 4a. The trial court had

jurisdiction under 28 U.S.C. § 1331. Eventually, both sides moved for summary

judgment. Pet. App. 4a. But on the general issue of whether the traffic stop was

illegally extended, summary judgment was denied to both parties. Pet. App. 4a. The

trial judge did grant partial summary judgment to the Defendants on the unrelated

issue of whether the dog alert was reliable. Pet. App. 4a. But the more general claim

about the unlawful extension of the traffic stop proceeded to trial.

With the Plaintiffs having been denied judgment as a matter of law at the

summary judgment stage, the trial went forward. At trial, the parties stipulated to

the basic timeline. Pet. App. 29-30a (List of stipulations). Video evidence was also

6

introduced showing what had occurred. See Pet. App. 3a and 24a, at Entry #20.

Seemingly, no facts were even disputed. But in the end, the jury simply ruled that

the stop was not extended unlawfully. Pet. App. 16a.

Fortunately, though, prior to the verdict, the Plaintiffs had moved a second

time for a judgment as a matter of law, citing Rule 50(a). Pet. App. 16a-17a. That

motion was denied. Pet. App. 16a-17a. Also, again after the verdict, the Plaintiffs

moved for judgment as a matter of law a third time, citing Rule 50(b). Pet. App. 16a.

Relief was again denied. Pet. App. 16a-22a.

C.

Ruling of the Sixth Circuit

Hence, the Plaintiffs appealed. 1a-2a. Ultimately, the Sixth Circuit affirmed.

Pet. App. 2a. Notably, the Sixth Circuit did hold that the Troopers had forfeited any

argument that they had reasonable suspicion to extend the seizure. Pet. App. 6a, at

n. 2. Therefore, the only issue was whether the stop was indeed extended.

Notwithstanding, the Sixth Circuit affirmed the verdict, holding that the stop had

not been extended beyond a normal traffic stop. Pet. App. 5a-8a.

Importantly, the Sixth Circuit held that the jury could have rightly ruled in

favor of either the Troopers, or the Plaintiffs, under the same undisputed facts. Pet.

App. 7a-8a. In essence, the court said that the jury could do whatever it wanted. As

the court held:

Certainly, the jury could have found that it was unreasonable to continue to

detain the Hernandez-Plaintiffs after the initial warrant check of Hernandez

7

and Betancourt came back negative because that was not necessary to carry

out the traffic stop — especially given that no ticket was being written — or

that the Troopers were unreasonably dilatory in waiting 20 minutes to call

BLOC [the second database]. But the Hernandez-Plaintiffs cite no authority

mandating such a determination as a matter of law. And though the delay

caused by checking two databases is troubling, the Hernandez-Plaintiffs

point to no bright-line rule that officers are limited to checking one database

for warrants during a traffic stop. Whether the traffic mission was (or should

have been) over by the time the dog arrived was a question properly

submitted to the jury.

Opinion, at Pet. App. 7a-8a. Hence, in the end, the court held that the jury must be

given deference on this question of constitutional law. As such, the judgment in

favor of the officers was affirmed. Pet. App. 8a.

8

REASONS TO GRANT CERTIORARI

I.

THE SIXTH CIRCUIT ERRED BY SHOWING DEFERENCE TO A JURY

ON A QUESTION OF CONSTITUTIONAL LAW

This Court should grant the writ because the Sixth Circuit departed from the

rule of Muehler v. Mena, 544 U.S. 93, 98 n. 1 (2005), requiring that an appellate

court only grant deference to a trial court's findings of fact and not its conclusions of

law. Here the lower court expressly held that the Defendants' undisputed conduct

was "troubling," but declined to say whether it violated the Constitution. Instead,

the court held that the Constitution was up to the jury to decide. According to the

Sixth Circuit, the jury could have either condemned, or condoned, the undisputed

conduct as the jury saw fit. The unfortunate effect of this ruling is to let civil juries

decide constitutional rights on an ad hoc basis. By granting deference to a jury's

conclusions of law, the lower court erred. In effect, this error also denied the

Plaintiffs their right even to have a judge rule on their claim.

This Court has previously held that a jury's interpretations of the Fourth

Amendment should not be granted any deference on appeal. For example, a finder

of fact on a criminal motion to suppress should only receive deference on factual

determinations, not on the overall legal assessments, such as whether probable

cause existed. Ornelas v. United States, 517 U.S. 690 (1996). In a later ruling, this

Court reiterated and arguably expanded that holding, applying it also to civil jury

verdicts on civil rights claims. Muehler v. Mena, 544 U.S. 993, 98 n. 1 (2005).

9

Indeed, rejecting deference to jurors on questions of law makes good sense, given

that juries are untrained in the law. See Markman v. Westview Instruments, Inc.,

517 U.S. 370, 388-389 (1996) (Making a similar point, specifically with regard to

jurors' lack of training in the field of interpreting patents).

More recently, this Court has carved out a limited exception to the rule of de

novo review. Namely, the Court has allowed deference to a factfinder on certain

idiosyncratic mixed questions of law in a bankruptcy appeal. U.S. Bank Nat. v.

Village at Lakeridge, 138 S.Ct. 960, 967 (2018). As justification for the relaxed

standard in that area, the Court noted that the legal issues in play had minimal, if

any, value in establishing a uniform body of law. Id. But even in that case, the

Court again reaffirmed its more basic position that, for constitutional questions, de

novo review remains important. Id. at 967 n. 4. That is, it remains important to

adjudge constitutional issues afresh, without deference, in order to maintain a

uniform body of constitutional law. Indeed, independent review of Fourth

Amendment questions is "necessary if appellate courts are to maintain control of,

and to clarify, the legal principles." Ornelas, 517 U.S. 690 at 697 (internal citation

omitted). Hence, for constitutional questions, the standard of de novo review should

still stand. Under the rule set by the present case, however, the Sixth Circuit has

given up control over the legal principles to each individual jury.

Here the Sixth Circuit has declined to say whether the Fourth Amendment

was even violated. Instead, the court said that the jury could have ruled the stop

10

unreasonable on the basis of the Troopers' undisputed conduct (which the court

found "troubling"), but also that the jury could have chosen (as it did) to rule in

favor of the Troopers. Pet. App. 7a-8a. Apparently, the Sixth Circuit would have

shown deference either way. See also McKenna v. Edgell, 617 F.3d 432, 440-441

(6th Cir. 2010) (Discussing, in somewhat more depth than the court did here, the

Sixth Circuit's policy of showing deference to juries on mixed questions of law).

Ultimately, the court therefore faulted the Plaintiffs for not pointing to a "brightline rule," which was supposedly needed to overturn a jury's legal opinion. Pet. App.

8a. The problem with all this analysis is that review must be de novo. Finding error

only if a bright-line rule was broken is effectively the opposite of review de novo.

Instead, such lax review equates to requiring an abuse of discretion.

In fact, requiring a bright-line legal rule for reversal is generally even more

deferential than reviewing for abuse of discretion. See, e.g., Bowman Trans., Inc. v.

Arkansas-Best Freight System, Inc., 419 U.S. 281, 285 (1974) ("[A]rbitrary and

capricious" standard considers only whether there was a "clear error" in judgment)

(internal citation omitted). If anything, the Sixth Circuit's policy for reviewing civil

rights verdicts most resembles the high level of deference afforded to a state court

judgment in federal habeas corpus proceedings. Under the Antiterrorism and

Effective Death Penalty Act (AEDPA), federal habeas courts may not override a

state court's constitutional conclusions unless those decisions of law were not just

wrong, but clearly wrong. Harrington v. Richter, 562 U.S. 86 (2011). This limited

11

review in the habeas context, as set by Congress's AEDPA statute, has received its

fair share of criticism. But regardless of whether it makes any sense in that field,

there is simply no justification for enacting a similar type of deference for civil

rights trials.

By declining to say whether the jury was right or wrong, effectively the Sixth

Circuit has declined to rule on the Fourth Amendment altogether. Per the Seventh

Amendment, the judge and the appellate courts have always held the role of

reviewing a jury verdict in accordance with the common law. As such, although a

jury verdict is entitled to deference, still it may be overridden if no rational trier of

fact could have reached it. Fed. R. Civ. P. 50(b). The question there is a factual one.

Here all of the meaningful facts have always been undisputed. The jury's role

should have been minimal, or non-existent (which is why the Plaintiffs moved for

summary judgment). Allowing a jury to decide a Fourth Amendment claim where

the facts are undisputed, and then granting deference to the jury on matters of law,

allows for jury nullification in a civil rights case. It fractures any possibility of

establishing a uniform body of law on issues of constitutional rights. Finally, it

deserves note that while the Sixth Circuit is now looking for bright-line rules, such

rules will never arise until the courts choose to actually rule. By declining to rule on

whether the Troopers' conduct violated the law, the Sixth Circuit and the trial court

both denied the Plaintiffs' any opportunity to have a judge consider their claim in

accordance with the common law.

12

One proper remedy for this error would be to grant certiorari and to direct

the Sixth Circuit to reconsider its ruling in light of Muehler v. Mena, 544 U.S. 993

(2005). Alternatively, the Court could more broadly grant certiorari and decide the

Fourth Amendment issue as a whole. That latter possibility is addressed next.

13

II.

AS A MATTER OF LAW, THE TROOPERS UNREASONABLY EXTENDED

THIS TRAFFIC STOP

By detaining the Plaintiffs for repeated, back-to-back warrants checks for

both the driver and the passengers, and also for roadside interrogation of both the

driver and the passengers, the troopers unreasonably extended the traffic stop in

violation of the Fourth Amendment. The result of their conduct (and presumably its

aim) was to delay the stop for long enough that a drug dog could arrive. Because all

the meaningful facts of the claim were undisputed, the trial court should have

granted judgment as a matter of law notwithstanding the verdict. Ultimately,

certiorari should be granted on these issues because the Fourth Amendment was

indeed violated, the constitutional issues in play are important, and there is now a

three-way circuit split on these issues.

A.

The Fourth Amendment was Violated

To start, spending any time at all checking the outstanding warrants of the

passengers was constitutionally unreasonable. Such an activity deviates from the

stop's traffic-related mission. This Court has previously ruled that the purpose of an

outstanding warrants check during a traffic stop is to ensure the safety of the

roadway. Rodriguez v. United States, 135 S.Ct. 1609, 1615 (2015), citing Delaware

v. Prouse, 440 U.S. 648, 658-660 (1979) and 4 W. LaFave, Search and Seizure §

9.3(c) pp. 507-517 (5th ed. 2012). The warrants check ensures that a traffic citation

is not being written to a driver who has disregarded past citations. Id. If a driver

14

could simply disregard traffic citations with impunity, traffic enforcement would be

meaningless.

The same thing cannot be said of passengers, though. Here these Troopers

deviated from that Fourth Amendment justification. They spent much of their time

checking the warrants of not just the alleged traffic violator, but also his

passengers. Pet. App. 3a-4a. A traffic stop is supposed to be constrained by its

actual "mission" — enforcing the traffic law. Rodriguez, 135 S.Ct. 1609 at 1612.

There is no traffic-related purpose for checking the status of passengers. Whether

the passengers had any history of ignoring past traffic tickets was completely

irrelevant. By spending the traffic stop worrying about the passengers, instead of

dealing with the actual speeding violation, the Troopers abandoned their mission.

Likewise, even assuming that the passengers could rightly be checked at all,

the Troopers acted unreasonably by checking the driver and the passengers more

than once, and by waiting a lengthy period before even starting the second and

third warrants checks. This Court has previously held that the duration of a traffic

stop must be measured based on an objective standard, namely a reasonable officer.

Rodriguez, 135 S. Ct. 1609 at 1614, citing United States v. Sharpe, 470 U.S. 675,

686 (1985). A reasonable officer must act diligently. Id. These present Troopers did

not act diligently because, even assuming that the second and third warrants

checks were somehow important for traffic enforcement, there was no justification

for doing the checks consecutively, instead of concurrently.

15

If the second check (i.e., the back-seat passengers, through the first database)

were somehow needed, then the Troopers should have gone ahead and done it at the

beginning. They should not have waited until thirteen (13) minutes into the traffic

stop to begin that effort. Likewise, if the third check (the driver again, plus all the

passengers again, through a second database) were somehow important, then the

Troopers should have gone ahead and done it at the beginning as well. They should

not have waited until twenty (20) minutes into the traffic stop to begin. Given these

undisputed, measurable delays, no rational juror could have found that the traffic

stop was reasonable and unextended. Cf. Fed. R. Civ. P. 50.

Similarly, the roadside interrogation of the driver, which asked him things

such as where he was going, why he was going there, who his passengers were,

whether he had ever been in trouble before, where he worked, and who he worked

with, was an unreasonable detention of his person. By extension, the passengers

were also unreasonably seized. See Brendlin v. California, 551 U.S. 249 (2007)

(Holding that passengers are seized if the driver is seized). This Court has

previously held that police may ask irrelevant questions during a traffic stop, but

only if the questions happen alongside the stop's more legitimate activities, as

opposed to measurably extending the stop. Arizona v. Johnson, 555 U.S. 323, 783

(2009). Here the prosecution of a traffic violation was entirely put on hold so that

the troopers could investigate the four men's backgrounds and travel activities.

16

In total, the four men were held for a warrants check, a second warrants

check, a third warrants check, and a roadside interrogation. These facts, all

undisputed, showed a Fourth Amendment violation as a matter of law.

B.

The Constitutional Issues are Important

Because traffic stops affect countless individuals every year, and because

they often (but not always) result in criminal charges or money forfeitures, review is

needed to address this issue of national importance. As documented in the trial of

this case, the Tennessee Highway Patrol has devoted an entire division

("Interdiction Plus") to the sole purpose of pulling people over for trivial traffic

offenses and then searching for evidence of serious felonies, all without any

apparent goal of actual traffic enforcement. Pet. App. 2a. Not only was "no ticket . . .

being written" here prior to the drug dog's arrival, Pet. App. 8a, but the Troopers

frankly admitted that they do not typically even prosecute traffic offenses. Pet. App.

2a. Instead, they only write warnings. Law enforcement agencies, at least in

Tennessee, are taking advantage of the courts' unwillingness to condemn

unreasonable traffic seizures. Due to the importance of these issues, and to better

shape the law on these points, the Court should grant certiorari.

17

C.

There is a Three-Way Federal Circuit Split on these Issues

In addition to the erroneous ruling and the importance of the constitutional

question, the Court should extend certiorari in order to unify the law nationally. At

this point, a circuit split has indeed developed that needs to be fixed. According to

Rule 10(a) of the Supreme Court, the Court will more likely accept review where "a

United States court of appeals has entered a decision in conflict with another

United States court of appeals on the same important matter[.]" At present, three

circuits have directly addressed the issues addressed herein. Oddly enough, all

three circuits have come out differently. The Circuits involved in the three-way split

are the Ninth, Fourth, and Sixth Circuits.

To start, the Ninth Circuit squarely agrees with Hernandez and his fellow

Plaintiffs. For one thing, the Ninth Circuit has condemned any delay of a traffic

stop in order to check the warrant status of passengers, as opposed to the driver.

United States v. Landeros, 913 F.3d 862, 868 (9th Cir. 2019). As already discussed

above, that position is quite sound, given that passengers' history of paying traffic

tickets does not even matter. Moreover, the Ninth Circuit has condemned the type

of stalling interrogation carried out here. Specifically, in Landeros, the court

condemned not only checking the passengers for warrants, but also even asking for

the passengers' names. Id. Gathering information from passengers was deemed

outside the purpose of the traffic stop. Id. Indeed, it is hard to dispute that

proposition. In the present case, the Trooper gave no traffic-related reason for

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needing to interrogate the passengers — or the driver, either, for that matter.

Additionally, the Ninth Circuit has condemned repeat database checks of a driver.

Addressing the question of whether an officer may perform an "ex-felon registration

check" after having already received a clean result from NCIC for outstanding

warrants, the Court found that the second delay was unreasonable under the

Fourth Amendment. United States v. Evans, 786 F.3d 779 (9th Cir. 2015)1. As the

Ninth Circuit has articulated its rule on this point, "Non-routine record checks and

dog sniffs are paradigm examples of 'unrelated' investigations that may not be

performed if they prolong a roadside detention absent independent reasonable

suspicion." United States v. Gorman, 859 F.3d 706, 715 (9th 2017), citing Rodriguez,

135 S.Ct. 1609 at 1615.

In stark contrast, the Fourth Circuit has sided against Hernandez's position

on all the above points. Namely, the Fourth Circuit has held that passengers may

be checked for warrants, and interrogated, and that all vehicle occupants, including

passengers, may also be checked multiple times. The Fourth Circuit has held that

an officer may conduct "safety-related checks that do not directly bear on the

reasons for the stop," including not just checking for outstanding warrants, but also

"checking for criminal records[.]" United States v. Palmer, 820 F.3d 640, 649 (4th

Cir. 2016). While the initial ruling was less than clear on what exactly the court

meant by such language, the Fourth Circuit later clarified and expanded its

1

Although the denial of qualified immunity in the present case under this issue was neither

appealed nor cross-appealed by the Troopers, it bears note that the opinion in United States v.

Evans was already issued seven months before the incident here. 786 F.3d 779.

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holding. As such, now the Fourth Circuit condones the performance of a second

background check, which shows all interactions with police, even after the prior

check through NCIC has already shown that there are no outstanding warrants for

traffic violations. United States v. Hill, 852 F.3d 377, 382-383 (4th Cir. 2017).

Moreover, the Fourth Circuit allows such checks and double-checks of not just the

traffic violator, but also the passengers. Id. at 383. 2 As such, the arguably

harassing patrols of "Interdiction Plus" would fare well in the Fourth Circuit.

Finally, in the present case, the Sixth Circuit has weighed in. But as already

discussed, instead of actively taking sides, the Sixth Circuit has passively left the

matter up to each individual jury. Duplicative warrants checks and interrogations

of passengers are apparently fine in the Sixth Circuit — but only if the individual

jurors feel like it. 5a-8a. The Sixth Circuit's refusal to take sides on these issues

amounts to a third legal position altogether.

Altogether, between the Ninth, Fourth, and Sixth Circuits, we now have

three different positions on the same basic set of issues. The Fourth Circuit has

voted "Aye," the Ninth Circuit has voted "Nay," and the Sixth Circuit has voted

"Present." Such a three-way split is unfortunate. But it further justifies Supreme

Court review of this important matter.

2

Similarly, taking cues from the Fourth Circuit and citing this case law, the Tenth Circuit has

condoned the verbal interrogation of a driver about his criminal history. United States v. Cone,

868 F.3d 1150, 1153-54 (10th Cir. 2017). The court reasoned that if a computer check is fine, then

verbal questioning must also be fine. Id.

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CONCLUSION

Given the problematic standard of review adopted by the Sixth Circuit for

reviewing constitutional issues, the importance of the constitutional claims in this

particular case, and the three-way circuit split, the Plaintiffs ask that the Court

grant a writ of certiorari to review the case.

Respectfully submitted,

Paul Andrew Justice III

Attorney for Hernandez et al.

1902 Cypress Drive

Murfreesboro, TN 37130

(615) 419-4994

drew@justicelawoffice.com

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