Amicus Curiae Brief — Robert Banks, III, Petitioner v. United States

No. 20-5074

IN THE

Supreme Court of the United States

ROBERT BANKS, III,

Petitioner,

v.

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE

CENTER ON RACE, INEQUALITY, AND THE LAW

IN SUPPORT OF PETITIONER

ANTHONY C. THOMPSON

VINCENT M. SOUTHERLAND

CENTER ON RACE,

INEQUALITY, AND THE

LAW AT NYU SCHOOL OF

LAW

139 MacDougal Street

New York, NY 10012

(212) 998-6882

August 14, 2020

ANTONY L. RYAN

Counsel of Record

DAMARIS HERNÁNDEZ

LAUREN M. ROSENBERG

MARCO Y. WONG

ADAM F. MINCHEW

CRAVATH, SWAINE & MOORE

LLP

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019-7475

(212) 474-1000

aryan@cravath.com

i

TABLE OF CONTENTS

Page

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

INTEREST OF AMICUS CURIAE ............................1

SUMMARY OF ARGUMENT .....................................2

ARGUMENT ...............................................................3

I.

THIS COURT HAS EXPRESSED

CONCERN THAT WHREN MIGHT

FACILITATE RACIAL PROFILING. .................3

II.

THE COURT’S PREDICTION HAS BEEN

CONFIRMED AS EMPIRICAL DATA AND

COMMON EXPERIENCE DEMONSTRATE

THAT RACIAL PROFILING IN

WARRANTLESS TRAFFIC STOPS IS

WIDESPREAD AND HAS HARMFUL

CONSEQUENCES. .............................................8

A.

Empirical Data Confirm the Prevalence

of Racial Profiling in Warrantless

Traffic Stops Nationwide and in Los

Angeles, Where Mr. Banks Was

Stopped. ........................................................8

B.

Racial Profiling in Warrantless Traffic

Stops Unduly Burdens and Humiliates

People of Color. ...........................................12

ii

Page

III. THIS COURT SHOULD OVERRULE

WHREN AND HOLD THAT PRETEXTUAL

TRAFFIC STOPS VIOLATE THE FOURTH

AMENDMENT. ..................................................15

A.

This Court Should Adopt a Rule Against

Pretextual Traffic Stops. ............................15

B.

Whren Was Wrongly Decided, and Its

Result Is Not Compelled by This Court’s

Fourth Amendment Precedents. ................20

C.

Whren Should Be Overruled for Other

Reasons Fundamental to the Fourth

Amendment. ...............................................22

CONCLUSION ..........................................................24

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Arkansas v. Sullivan, 532 U.S. 769 (2001) ............. 5, 6

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

(2001) .................................................................. 5, 7

Cady v. Dombrowski, 413 U.S. 433 (1973) ............... 16

Camara v. Municipal Court of San

Francisco, 387 U.S. 523 (1967) ............................ 15

Chase v. State, 243 P.3d 1014 (Alaska Ct.

App. 2010) ............................................................ 16

Colorado v. Bannister, 449 U.S. 1 (1980) ................. 20

Colorado v. Bertine, 479 U.S. 367 (1987)............ 16, 20

District of Columbia v. Wesby, 138 S. Ct.

577 (2018) ........................................................... 6, 7

Florida v. Wells, 495 U.S. 1 (1990) ........................... 20

Georgia v. McCollum, 505 U.S. 42 (1992) ................ 12

Gustafson v. Florida, 414 U.S. 260 (1973) ............... 22

Maryland v. Wilson, 519 U.S. 408 (1997) ................... 4

New York v. Burger, 482 U.S. 691 (1987) ................. 20

Ohio v. Robinette, 519 U.S. 33 (1996) ....................... 18

Payton v. New York, 445 U.S. 573 (1980) ................. 22

Scott v. United States, 436 U.S. 128 (1978) ........ 16, 22

iv

Page(s)

South Dakota v. Opperman, 428 U.S. 364

(1976) .................................................................... 16

State v. Gonzales, 257 P.3d 894 (N.M. 2011)............ 16

State v. Ladson, 979 P.2d 833 (Wash. 1999) ............ 15

State v. Ochoa, 206 P.3d 143 (N.M. Ct. App.

2008) ..................................................................... 16

Terry v. Ohio, 392 U.S. 1 (1968) ............................... 17

United States v. Cannon, 29 F.3d 472 (9th

Cir. 1994) .............................................................. 17

United States v. Gross, 784 F.3d 784 (D.C.

Cir. 2015) .............................................................. 23

United States v. Hawkins, 811 F.2d 211 (3d

Cir. 1987) .............................................................. 17

United States v. Knights, 534 U.S. 112

(2001) ...................................................................... 6

United States v. Robinson, 414 U.S. 218

(1973) .................................................................... 21

United States v. Smith, 799 F.2d 704 (11th

Cir. 1986) .............................................................. 17

United States v. Villamonte-Marquez, 462

U.S. 579 (1983) ..................................................... 21

Utah v. Strieff, 136 S. Ct. 2056 (2016)...................... 12

Washington v. Lambert, 98 F.3d 1181 (9th

Cir. 1996) .............................................................. 13

v

Page(s)

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

Statutes & Constitutional Provisions

Cal. Veh. Code § 12801.5(f) ....................................... 19

Other Authorities

Jennifer Bendery, Obama On Racial

Profiling: I’ve Been Pulled Over for No

Reason, Too, Huffington Post (Oct. 27,

2015) ..................................................................... 13

Jonathan Blanks, Thin Blue Lies: How

Pretextual Stops Undermine Police

Legitimacy, 66 Case W. Res. L. Rev. 931

(2016) .................................................................... 23

Larry Buchanan, Black Lives Matter May

Be the Largest Movement in U.S.

History, N.Y. Times (July 3, 2020) ...................... 15

Christina Capecchi & Mitch Smith, Officer

Who Shot Philando Castile Is Charged

With Manslaughter, N.Y. Times (Nov.

16, 2016) ............................................................... 14

Erwin Chemerinsky, An Independent

Analysis of the Los Angeles Police

Department’s Board of Inquiry Report on

the Rampart Scandal, 34 Loy. L.A. L.

Rev. 545 (2001) ..................................................... 11

C. R. Div., DOJ, Investigation of the

Baltimore City Police Department (2016) ...... 9, 10

vi

Page(s)

C. R. Div., DOJ, Investigation of the

Ferguson Police Department (2015)................ 9, 10

C. R. Div., DOJ, Investigation of the

Newark Police Department (2014) ........................ 9

Diana Roberto Donahoe, “Could Have,”

“Would Have”: What the Supreme Court

Should Have Decided in Whren v. United

States, 34 Am. Crim. L. Rev. 1193 (1997) ........... 18

Richard Fausset & Shaila Dewan, Outrage

Prompts New Scrutiny of Police Killings,

N.Y. Times (June 21, 2020) ................................. 14

David A. Harris, Racial Profiling: Past,

Present, and Future?, ABA Crim. Just.

Mag., Jan. 2020 .................................................... 13

David A. Harris, The Stories, the Statistics,

and the Law: Why “Driving While

Black” Matters, 84 U. Minn. L. Rev. 265

(1999) .................................................................... 13

Evan Hill et al., How George Floyd Was

Killed in Police Custody, N.Y. Times

(May 31, 2020) ...................................................... 14

Inst. on Race & Poverty and Council on

Crime & Just., Minnesota Statewide

Racial Profiling Report: All Participating

Jurisdictions (2003) ............................................... 9

Wayne LaFave, Search and Seizure: A

Treatise on the Fourth Amendment (5th

ed. 2012) ......................................................... 17, 21

vii

Page(s)

Letter from Bill Lann Lee, DOJ, to James

Hahn, L.A. City Attorney, LAPD Notice

of Investigation Letter (May 8, 2000),

https://www.justice.gov/crt/lapd-noticeinvestigation-letter .............................................. 11

Md. Just. Analysis Ctr., Report to the State

of Maryland on Law Eligible Traffic

Stops (2004) ............................................................ 9

Ben Mathis-Lilley & Elliott Hannon, A

Black Woman Named Sandra Bland Got

Pulled Over in Texas and Died in Jail

Three Days Later. Why?, Slate (July 17,

2015) ..................................................................... 14

Neb. Comm’n on L. Enf’t & Crim. Just.,

Traffic Stops in Nebraska: A Report to

the Governor and the Legislature on

Data Submitted by Law Enforcement

(2014) ...................................................................... 9

Louis Nelson, Sen. Tim Scott Reveals

Incidents of Being Targeted by Capitol

Police, Politico (July 13, 2016) ............................. 13

Emma Pierson, et al., A Large-Scale

Analysis of Racial Disparities in Police

Stops Across the United States, 4 Nature

Hum. Behav. 736 (2020) ...................................... 10

Ben Poston & Cindy Chang, LAPD Searches

Blacks and Latinos More. But They’re

Less Likely to Have Contraband Than

Whites, L.A. Times (Oct. 8, 2019) ........................ 11

viii

Page(s)

Barbara C. Salken, The General Warrant of

the Twentieth Century? A Fourth

Amendment Solution to Unchecked

Discretion to Arrest for Traffic Offenses,

62 Temp. L. Rev. 221 (1989) ................................ 22

Michael S. Schmidt & Matt Apuzzo, South

Carolina Officer Is Charged With

Murder of Walter Scott, N.Y. Times (Apr.

7, 2015) ................................................................. 14

David A. Sklansky, Traffic Stops, Minority

Motorists, and the Future of the Fourth

Amendment, 1997 Sup. Ct. Rev. 271 ................... 12

Anthony C. Thompson, Stopping the Usual

Suspects: Race and the Fourth

Amendment, 74 N.Y.U. L. Rev. 956

(1999) .................................................................... 18

Rachel Weiner, Powell On Gates: I’ve Been

Racially Profiled ‘Many Times’,

Huffington Post (Aug. 28, 2009) .......................... 12

Jonathan Witmer-Rich, Arbitrary Law

Enforcement Is Unreasonable: Whren’s

Failure To Hold Police Accountable for

Traffic Enforcement Policies, 66 Case W.

Res. L. Rev. 1059 (2016) ...................................... 17

INTEREST OF AMICUS CURIAE1

The Center on Race, Inequality, and the Law at

New York University School of Law (“Center”) was

created to confront laws, policies and practices that

lead to the oppression and marginalization of people

of color. Among the Center’s priorities is reform of the

criminal legal system in areas infected by racial bias

and plagued by inequality. The Center fulfills its

mission through public education, research, advocacy

and litigation aimed at reforming policies and

practices in the legal system that perpetuate racial

injustice and inequitable outcomes. No part of this

brief purports to represent the views of New York

University School of Law or New York University.

The Center has an interest in this case because

the rule that the Court announced in Whren v. United

States, 517 U.S. 806 (1996), facilitates racial profiling

of Black motorists across the country. Such profiling

unduly burdens and humiliates people of color and

creates distrust in the legal system.

1 Pursuant to Supreme Court Rule 37.6, counsel for Amicus

certify that Amicus and its counsel authored this brief in its

entirety, and no party or its counsel, nor any person or entity

other than Amicus or its counsel, made a monetary contribution

to this brief’s preparation or submission. All parties have

provided written consent to the filing of this brief.

2

SUMMARY OF ARGUMENT

The first question presented for review implicates

a serious problem that people of color face every time

they drive. Twenty-four years ago, in Whren v. United

States, 517 U.S. 806, 813 (1996), this Court held that

a pretextual traffic stop does not violate the Fourth

Amendment so long as the police have probable cause

to believe a traffic violation has occurred. Due to the

breadth of traffic regulations, Whren gives the police

unfettered discretion to single out almost whomever

they wish for a stop. Consequently, many members of

this Court have expressed concern that Whren might

turn out to facilitate racial profiling in traffic stops.

(Infra Part I.)

The concerns that this Court expressed about the

implementation of Whren have come to pass.

Numerous studies conducted since Whren have found

that Whren facilitates the widespread and unchecked

racial profiling of Black motorists throughout the

country. (Infra Part II.A.) Such racial profiling

unduly burdens and humiliates the motorists who are

pretextually stopped and breeds resentment, distrust

and hostility between people of color and the police.

Further, as recent events have shown, what begins as

a stop may swiftly escalate and result in the use of

physical—even deadly—force. (Infra Part II.B.)

The Petition presents a compelling opportunity

for the Court to reconsider its holding in Whren due to

the objective evidence in the record that the stop was

pretextual. Petitioner, a Black driver, was subject to

a pretextual traffic stop, purportedly for an unsafe

lane change, by special weapons and tactics (SWAT)

and vice officers tasked with suppressing crime in the

3

area. The lane change was a pretext for a stop to

investigate Petitioner for involvement in prostitution.

Neither officer issued a ticket or citation for any traffic

violation, and the officer who testified at the

suppression hearing admitted that he did not write

many traffic citations because that was not his

primary duty. The vice officer’s presence indicates

that prostitution was the officers’ real interest all

along. These troubling facts led two judges on the

panel to recommend that the Ninth Circuit rehear the

case en banc. Accordingly, for these and other reasons

detailed in this amicus brief, the Court should grant

certiorari, overrule Whren and hold that pretextual

traffic stops are unreasonable and hence

unconstitutional under the Fourth Amendment.

(Infra Part III.)

ARGUMENT

I.

THIS COURT HAS EXPRESSED CONCERN

THAT

WHREN

MIGHT

FACILITATE

RACIAL PROFILING.

At issue in Whren was “whether the temporary

detention of a motorist who the police have probable

cause to believe has committed a civil traffic violation

is inconsistent with the Fourth Amendment’s

prohibition against unreasonable seizures unless a

reasonable officer would have been motivated to stop

the car by a desire to enforce the traffic laws”. Whren,

517 U.S. at 808. The Court held in the negative,

finding that so long as the police officers had probable

cause to believe that a traffic violation occurred, they

could stop the vehicle without running afoul of the

Fourth Amendment. Id. at 819. The Court held that

“[s]ubjective intentions play no role in ordinary,

4

probable-cause Fourth Amendment analysis”. Id. at

813.

While declining to consider the police officers’

“actual motivations” in assessing the reasonableness

of a traffic stop, the Court acknowledged that “the

Constitution prohibits selective enforcement of the

law based on considerations such as race”. Id. It

ruled, however, that “the constitutional basis for

objecting to intentionally discriminatory application

of laws is the Equal Protection Clause, not the Fourth

Amendment”. Id. But, in subsequent Fourth Amendment cases, many members of this Court—including

six of the nine Justices who joined the majority

opinion in Whren—have expressed concern that

Whren and related cases have shifted the balance too

far in favor of police unaccountability.

One year after Whren, the Court considered

whether the rule “that a police officer may as a matter

of course order the driver of a lawfully stopped car to

exit his vehicle, extends to passengers as well”.

Maryland v. Wilson, 519 U.S. 408, 410 (1997). The

Court held that it does. Id. at 413-15. In his dissent,

Justice Kennedy noted that “[t]he practical effect of

our holding in Whren, of course, is to allow the police

to stop vehicles in almost countless circumstances.

When Whren is coupled with today’s holding, the

Court puts tens of millions of passengers at risk of

arbitrary control by the police.” Id. at 423 (Kennedy,

J., dissenting).

Several years later, the Court expanded the rule

in Whren in ruling, in a 5–4 opinion, that the Fourth

Amendment permits a warrantless arrest for a minor

criminal offense, such as a misdemeanor seatbelt

5

violation punishable only by a fine. Atwater v. City of

Lago Vista, 532 U.S. 318, 323 (2001). The Court

explained that “the standard of probable cause

‘applie[s] to all arrests, without the need to ‘balance’

the interests and circumstances involved in particular

situations’”. Id. at 354 (citation omitted). Justice

O’Connor, in a dissent joined by Justices Stevens,

Ginsburg and Breyer, observed that the “unbounded

discretion” that the majority’s opinion affords law

enforcement “carries with it grave potential for

abuse”. Id. at 372 (O’Connor, J., dissenting). “Indeed,

as the recent debate over racial profiling

demonstrates all too clearly, a relatively minor traffic

infraction may often serve as an excuse for stopping

and harassing an individual.” Id. The majority’s

response—that the dissent’s claims were “speculative”

and have not “ripened into a reality”, id. at 353 n.25—

is now contradicted by empirical data and common

experience, as discussed in Part II.

A month after the Atwater decision, the Court

issued a per curiam opinion reversing the judgment of

the Arkansas Supreme Court in Arkansas v. Sullivan,

532 U.S. 769 (2001). In that case, the Arkansas

Supreme Court had declined to follow Whren on the

ground that “much of it is dicta” and affirmed the

suppression of evidence obtained after a pretextual

arrest. Id. at 771. Justice Ginsburg, in a concurrence

joined by Justices Stevens, O’Connor and Breyer,

sympathized with the Arkansas Supreme Court,

which “was moved by a concern rooted in the Fourth

Amendment”, and expressed concern that, following

Whren and Atwater, “such exercises of official

discretion are unlimited by the Fourth Amendment”.

Id. at 772-73. (Ginsburg, J., concurring). Justice

6

Ginsburg noted that the Court has “departed from

stare decisis when necessary ‘to bring its opinions into

agreement with experience and with facts newly

ascertained’”, and urged the Court to do so “if

experience demonstrates ‘anything like an epidemic of

unnecessary minor-offense arrests’”.

Id. at 773

(citations omitted).

Later that year, the Court in United States v.

Knights, 534 U.S. 112, 116 (2001), considered whether

a search pursuant to a condition of a probation order,

supported by reasonable suspicion, satisfies the

Fourth Amendment. The Court found that it does. Id.

at 119-21. Separately concurring, Justice Souter

wrote that he would “reserve the question whether

Whren’s holding, that ‘[s]ubjective intentions play no

role in ordinary, probable-cause Fourth Amendment

analysis,’ should extend to searches based only upon

reasonable suspicion”. Id. at 122-23 (Souter, J.,

concurring) (citing Whren, 517 U.S. at 813).

Most recently, in District of Columbia v. Wesby,

138 S. Ct. 577, 585 (2018), the Court considered

whether officers have probable cause to arrest for

unlawful entry despite a claim of good-faith entry, and

whether they are entitled to qualified immunity. The

Court answered both questions affirmatively, holding

that, “[v]iewing these circumstances as a whole, a

reasonable officer could conclude that there was

probable cause to believe the partygoers knew they

did not have permission to be in the house”. Id. at 588.

And, even if the officers lacked probable cause to

arrest the partygoers, “a reasonable officer, looking at

the entire legal landscape at the time of the arrests,

could have interpreted the law as permitting the

arrests”. Id. at 593. Concurring in the judgment in

7

part, Justice Ginsburg noted that the facts in Wesby

“lead[] [her] to question whether this Court, in

assessing probable cause, should continue to ignore

why the police in fact acted”. Id. (Ginsburg, J.,

concurring in judgment in part). More broadly,

Justice Ginsburg expressed concern that “[t]he

Court’s jurisprudence . . . sets the balance too heavily

in favor of police unaccountability to the detriment of

Fourth Amendment protection”. Id. Noting that “[a]

number of commentators have criticized the path we

charted in Whren and follow-on opinions”, Justice

Ginsburg wrote that she “would leave open, for

reexamination in a future case, whether a police

officer’s reason for acting, in at least some

circumstances, should factor into the Fourth

Amendment inquiry”. Id. at 594 (citation omitted).

Thus, since this Court decided Whren, six of the

nine Justices who joined the opinion have expressed

some measure of discontentment with the rule it

established.

All of these Justices have either

explicitly voiced concern that Whren facilitates

arbitrary searches and seizures by police officers, or

implicitly suggested this concern by demanding that

probable cause be met before a court ignores police

officers’ subjective intentions. Further, four of these

Justices have objected to Whren’s perpetuation of

abusive racial profiling practices. See Atwater, 532

U.S. at 372 (O’Connor, J., dissenting).

8

II. THE COURT’S PREDICTION HAS BEEN

CONFIRMED AS EMPIRICAL DATA AND

COMMON EXPERIENCE DEMONSTRATE

THAT RACIAL PROFILING IN WARRANTLESS TRAFFIC STOPS IS WIDESPREAD

AND HAS HARMFUL CONSEQUENCES.

The concerns that this Court expressed about the

implementation of Whren have come to pass.

Empirical data and experience at the national level,

and in Los Angeles where Mr. Banks was stopped,

confirm that Black drivers are more likely than white

drivers to be stopped by law enforcement. This

demonstrable racial disparity imposes an undue

burden on people of color, breeds distrust of the justice

system and undermines the fair administration of

justice for all.

A.

Empirical Data Confirm the Prevalence

of Racial Profiling in Warrantless

Traffic Stops Nationwide and in Los

Angeles, Where Mr. Banks Was Stopped.

A 2013 special report published by the

Department of Justice’s (DOJ) Bureau of Justice

Statistics found that, nationwide, Black drivers are

stopped, ticketed and searched at higher rates than

white drivers. Lynn Langton & Matthew Durose,

Bureau of Just. Stat., Police Behavior During Traffic

and Street Stops, 2011, at 1 (Sept. 2013). This is

consistent with data that the DOJ collected in

investigating civil rights issues within police

departments across the country. In 2014, the DOJ

concluded that “[a]pproximately 80% of . . . stops and

arrests” in Newark, New Jersey “involved black

individuals”, whereas only 53.9% of Newark’s

9

population is Black. C. R. Div., DOJ, Investigation of

the Newark Police Department 16 (2014). Similarly,

in 2015, the DOJ found that “85% of vehicle stops, 90%

of citations, and 93% of arrests” in Ferguson,

Missouri, involved Black people although “only 67% of

Ferguson’s population” is Black. C. R. Div., DOJ,

Investigation of the Ferguson Police Department 4

(2015) (hereinafter “Ferguson Investigation”). In

2016, the DOJ concluded that although Baltimore’s

driving age population is only 60% Black and the

metropolitan area’s driving age population is only

27% Black, 82% of vehicle stops were of Black

individuals. C. R. Div., DOJ, Investigation of the

Baltimore City Police Department 7 (2016) (hereinafter “Baltimore Investigation”).

Data at the state and city level without DOJ

involvement corroborate these findings. A Nebraska

commission concluded that in the two most populous

counties, “Black drivers are stopped almost twice as

frequently as compared to the population estimated

numbers”. Neb. Comm’n on L. Enf’t & Crim. Just.,

Traffic Stops in Nebraska: A Report to the Governor

and the Legislature on Data Submitted by Law

Enforcement 4, 16-17 (2014). Maryland and Minnesota commissions have reported similar concerns. See

Md. Just. Analysis Ctr., Report to the State of

Maryland on Law Eligible Traffic Stops 8-9 (2004);

Inst. on Race & Poverty and Council on Crime & Just.,

Minnesota Statewide Racial Profiling Report: All

Participating Jurisdictions 1 (2003).

At the same time, there is no evidence that Black

drivers are more likely to commit traffic offenses; in

fact there is evidence that stopped Black drivers are

less likely than stopped white drivers to possess

10

evidence of criminal activity. See Ferguson Investigation, supra, at 4 (finding that Black drivers

searched by Ferguson police were “found in possession

of contraband 26% less often than white drivers”);

Baltimore Investigation, supra at 7 (finding that

Black drivers searched by Baltimore police were found

to possess contraband half as often as white drivers);

Emma Pierson, et al., A Large-Scale Analysis of Racial

Disparities in Police Stops Across the United States, 4

Nature Hum. Behav. 736, 738-39 (2020) (concluding

that, across eight states and six municipalities,

stopped white motorists were more likely to possess

contraband than stopped Black or Latinx motorists).

Empirical data support the conclusion that Black

drivers are stopped more frequently due to racial

biases. Aggregated data of 95 million traffic stops

across 56 police departments from 2011 to 2018 reveal

that Black drivers were consistently stopped at higher

rates than white drivers, but were less likely to be

stopped after sunset, when a driver’s race is less easily

detected. Pierson et al., supra, at 737-40. Minneapolis data similarly show that Black individuals are

nearly nine times more likely than white individuals

to be arrested for traffic violations during afternoon

hours. By contrast, during late evening and early

morning, when race is less easily observed, Black

drivers are only twice as likely as white drivers to be

arrested for traffic violations. Minn. Advisory Comm.

to the U.S. Comm’n on C.R., Civil Rights and Policing

Practices in Minnesota 9 (2018).

In this case, police officers stopped Mr. Banks on

March 31, 2001 in Los Angeles, where police

misconduct was rampant at that time. Many officers

in the Los Angeles Police Department (LAPD) were

11

engaging in misconduct, notably surrounding the

Rampart corruption scandal. See Erwin Chemerinsky, An Independent Analysis of the Los Angeles

Police Department’s Board of Inquiry Report on the

Rampart Scandal, 34 Loy. L.A. L. Rev. 545, 549 (2001)

(“Rampart is the worst scandal in the history of Los

Angeles.”). In 2000, the DOJ determined that the

LAPD had been engaging in a pattern or practice of

“improper seizures of persons, including making

police stops not based on reasonable suspicion and

making arrests without probable cause”. Letter from

Bill Lann Lee, DOJ, to James Hahn, L.A. City

Attorney, LAPD Notice of Investigation Letter (May

8,

2000),

https://www.justice.gov/crt/lapd-noticeinvestigation-letter.

Unfortunately, there are no data regarding traffic

stops at the time of Mr. Banks’s encounter with the

LAPD. But Los Angeles stop data from July 2018

onwards show that 27% of those stopped by LAPD are

Black, whereas only 9% of Los Angeles’s population is

Black. See Ben Poston & Cindy Chang, LAPD

Searches Blacks and Latinos More. But They’re Less

Likely to Have Contraband Than Whites, L.A. Times

(Oct. 8, 2019). The data also show that equipment

violations, such as broken taillights, were the stated

reasons for more than 20% of vehicle stops involving

people of color, but only 11% of stops involving whites.

Id. Further, according to the data, a Black person in

a vehicle is four times more likely than a white person

to be searched. Id. Finally, the data show that

contraband was found in a higher proportion of

searches of white people than those of people of color.

Id.

12

These data, comprising millions of stops across

the country spanning decades, confirm both that

“people of color are disproportionate victims of [police]

scrutiny”, Utah v. Strieff, 136 S. Ct. 2056, 2070 (2016)

(Sotomayor, J., dissenting), and that “conscious and

unconscious prejudice persists in our society”, Georgia

v. McCollum, 505 U.S. 42, 61 (1992) (Thomas, J.,

concurring). It is no surprise that one of the ways in

which this prejudice manifests itself is the racial

profiling of people of color in warrantless traffic stops

that Whren facilitates.

B.

Racial Profiling in Warrantless Traffic

Stops Unduly Burdens and Humiliates

People of Color.

While the empirical data are important to

confirm racial profiling in traffic stops throughout the

country, the practices sanctioned by Whren impose a

very real cost, borne disproportionately by people of

color through humiliation, distrust of the justice

system and the risk of violent encounters with the

police. See David A. Sklansky, Traffic Stops, Minority

Motorists, and the Future of the Fourth Amendment,

1997 Sup. Ct. Rev. 271, 312 n.196. These impacts are

felt by people of color regardless of their station in life

or standing in the community.

Many people of color have shared personal

anecdotes of the burden and humiliation they

regularly experience. Retired General Colin Powell

has stated that he has been racially profiled “many

times”: “You just suck it up. What are you going to

do? . . . [T]here is no African-American in this country

who has not been exposed to this kind of situation.”

Rachel Weiner, Powell On Gates: I’ve Been Racially

13

Profiled ‘Many Times’, Huffington Post (Aug. 28,

2009). Former President Barack Obama has similarly

stated, “[m]ost of the time I got a ticket, I deserved it.

I knew why I was pulled over. . . . But there were

times when I didn’t. . . . [W]hen you aggregate all the

cases and you look at it, you’ve gotta say that there’s

some racial bias in the system.” Jennifer Bendery,

Obama On Racial Profiling: I’ve Been Pulled Over for

No Reason, Too, Huffington Post (Oct. 27, 2015).

Senator Tim Scott has recounted how the Capitol

Police pulled him over seven times in one year: “I

have felt the anger, the frustration, the sadness and

the humiliation that comes with feeling like you’re

being targeted for nothing more than being just

yourself.” Louis Nelson, Sen. Tim Scott Reveals

Incidents of Being Targeted by Capitol Police, Politico

(July 13, 2016). Robert Wilkins, now a D.C. Circuit

judge, was stopped by police officers who did not

explain the basis for the traffic stop and searched his

car with a drug-sniffing dog even after he denied

consent. David A. Harris, Racial Profiling: Past,

Present, and Future?, ABA Crim. Just. Mag., Jan.

2020, at 11-13. And many well-known Black athletes

and actors have been subject to racial profiling in

traffic stops in Los Angeles. See Washington v.

Lambert, 98 F.3d 1181, 1182 n.1 (9th Cir. 1996).2

Additionally, police encounters involving people

of color all too often lead to the use of physical or

deadly force. On April 4, 2015, an officer stopped

Walter Scott for an alleged taillight violation. When

2 See also David A. Harris, The Stories, the Statistics, and

the Law: Why “Driving While Black” Matters, 84 U. Minn. L. Rev.

265, 269-75 (1999) (describing the pain, humiliation and anguish

racial profiling inflicts on individual people of color).

14

Scott attempted to flee, the officer shot him five times

including three times in his back, killing him at the

scene. Michael S. Schmidt & Matt Apuzzo, South

Carolina Officer Is Charged With Murder of Walter

Scott, N.Y. Times (Apr. 7, 2015). Several months

later, an officer stopped Sandra Bland for an improper

lane change. She was arrested for assaulting the

officer and died in jail three days later. See Ben

Mathis-Lilley & Elliott Hannon, A Black Woman

Named Sandra Bland Got Pulled Over in Texas and

Died in Jail Three Days Later. Why?, Slate (July 17,

2015). On July 6, 2016, an officer stopped Philando

Castile to check his identification because his “wideset nose” reminded the officer of someone involved in

a robbery. When asked, Castile informed the officer

that he had a weapon. Seconds later, the officer shot

and killed Castile thinking he was reaching for his

weapon, even though his girlfriend stated that Castile

was reaching for his identification.

Christina

Capecchi & Mitch Smith, Officer Who Shot Philando

Castile Is Charged With Manslaughter, N.Y. Times

(Nov. 16, 2016).

Unfortunately, deadly encounters between police

and people of color continue to occur. George Floyd

was recently killed in an encounter with police that

began when he allegedly passed a counterfeit $20 bill.

Evan Hill et al., How George Floyd Was Killed in

Police Custody, N.Y. Times (May 31, 2020). Floyd died

after an officer knelt on his neck for more than

8 minutes, despite his calls that he could not breathe.

Id. Floyd’s was one of many deadly encounters

between police and people of color this year. See

Richard Fausset & Shaila Dewan, Outrage Prompts

New Scrutiny of Police Killings, N.Y. Times (June 21,

15

2020). These tragedies sparked a significant movement centered on racial disparities and police

misconduct. Larry Buchanan, Black Lives Matter

May Be the Largest Movement in U.S. History, N.Y.

Times (July 3, 2020). Now is an opportune time for

the Court to reassess the constitutional standard

applicable to one of the most common encounters

people have with the police—traffic stops.

III. THIS

COURT

SHOULD

OVERRULE

WHREN AND HOLD THAT PRETEXTUAL

TRAFFIC STOPS VIOLATE THE FOURTH

AMENDMENT.

A.

This Court Should Adopt a Rule Against

Pretextual Traffic Stops.

In view of the dangers that Whren presents, the

Court should overrule Whren and adopt a rule that

prohibits pretextual traffic stops. This rule is in

keeping with the Court’s observation that the “basic

purpose” of the Fourth Amendment, “as recognized in

countless decisions of this Court, is to safeguard the

privacy and security of individuals against arbitrary

invasions by governmental officials”. Camara v.

Municipal Court of San Francisco, 387 U.S. 523, 528

(1967).

Since Whren, three state courts have adopted or

expressed support for such a rule under their state

constitutions. In State v. Ladson, the Washington

Supreme Court ruled that Washington citizens have

“a constitutionally protected interest against

warrantless traffic stops or seizures on a mere pretext

to dispense with the warrant when the true reason for

the seizure is not exempt from the warrant

16

requirement”. 979 P.2d 833, 842 (Wash. 1999).

Similarly, in State v. Ochoa, the New Mexico Court of

Appeals held that “pretextual traffic stops are not

constitutionally reasonable”. 206 P.3d 143, 155 (N.M.

Ct. App. 2008).3 Finally, while Alaska courts have not

squarely decided the question, the Alaska Court of

Appeals has recognized that “a traffic stop is a

‘pretext’ only if the defendant proves that, because of

this ulterior motive, the officer departed from

reasonable police practices by making the stop”.

Chase v. State, 243 P.3d 1014, 1019 (Alaska Ct. App.

2010) (citations omitted).

This Court should adopt an objective test that

inquires whether a reasonable police officer, given the

same circumstances, would have made the traffic stop

absent the pretext. See Scott v. United States, 436

U.S. 128, 137 (1978) (“[A]lmost without exception in

evaluating alleged violations of the Fourth

Amendment the Court has first undertaken an

objective assessment of an officer’s actions in light of

the facts and circumstances then known to him.”).

An important factor in the objective test should

be whether police officers are abiding by their own

enforcement policies.

Before Whren, this Court

repeatedly inquired into whether standard police

procedures were followed, and when the Court upheld

police actions, it stressed the absence of evidence of

bad faith. See Colorado v. Bertine, 479 U.S. 367, 37273 (1987); South Dakota v. Opperman, 428 U.S. 364,

376 (1976); Cady v. Dombrowski, 413 U.S. 433, 443,

3 The New Mexico Supreme Court has recognized Ochoa as

the law. See State v. Gonzales, 257 P.3d 894, 897-99 (N.M. 2011).

17

447 (1973). “When the police consistently choose to

enforce the law—here, the traffic code—by using

standards different from those written into the code,

then the appropriate baseline for assessing the

reasonableness of police conduct is by evaluating that

conduct against the police department’s own chosen

enforcement practices and policies.”

Jonathan

Witmer-Rich, Arbitrary Law Enforcement Is Unreasonable: Whren’s Failure To Hold Police Accountable

for Traffic Enforcement Policies, 66 Case W. Res. L.

Rev. 1059, 1062 (2016). Indeed, “the proper basis of

concern is not with why the officer deviated from the

usual practice in this case but simply that he did

deviate. It is the fact of the departure from the

accepted way of handling such cases that makes the

officer’s conduct arbitrary, and it is the arbitrariness

that in this context constitutes the Fourth

Amendment violation.” Wayne LaFave, Search and

Seizure: A Treatise on the Fourth Amendment § 1.4(e)

(5th ed. 2012).

This objective test is not novel. A number of

circuits applied this test before Whren. See United

States v. Cannon, 29 F.3d 472, 475-76 (9th Cir. 1994);

United States v. Hawkins, 811 F.2d 211, 213-14 (3d

Cir. 1987); United States v. Smith, 799 F.2d 704, 71011 (11th Cir. 1986). The Court itself applied essentially the same standard in the landmark case of Terry

v. Ohio. There the Court held that the test for

assessing the constitutionality of a stop and frisk is

objective, asking whether “the facts available to the

officer at the moment of the seizure or the search

[would] ‘warrant a man of reasonable caution in the

belief’ that the action taken was appropriate”. Terry

v. Ohio, 392 U.S. 1, 21-22 (1968). The objective test is

18

also used in other areas of criminal procedure and

substantive law. See Diana Roberto Donahoe, “Could

Have,” “Would Have”: What the Supreme Court

Should Have Decided in Whren v. United States, 34

Am. Crim. L. Rev. 1193, 1203-04, 1209 (1997).

Of course, the use of an objective standard does

not require courts to blind themselves to subjective

evidence of race-based traffic enforcement, where

available. Courts can and should consider that

evidence as part of the totality of the circumstances.

See Ohio v. Robinette, 519 U.S. 33, 39 (1996) (holding

that “reasonableness . . . is measured in objective

terms by examining the totality of the circumstances”

and noting that “we have consistently eschewed

bright-line rules, instead emphasizing the factspecific nature of the reasonableness inquiry”). And

“history seems to suggest that intentions matter—at

least to the extent to which officers mask their intent

to target disfavored groups”. Anthony C. Thompson,

Stopping the Usual Suspects: Race and the Fourth

Amendment, 74 N.Y.U. L. Rev. 956, 1005 (1999).

The Court should give Mr. Banks an opportunity

on remand to show that his stop was pretextual and

hence unconstitutional. The objective facts of record

strongly suggest that the police made a pretextual

stop. The two officers who stopped Mr. Banks were

working on a “crime suppression detail” in Los

Angeles. Appellant’s Excerpts of Record at 104,

United States v. Banks, No. 17-50103 (9th Cir.), Dkt.

No. 34 (hereinafter “AER”). One officer worked in

LAPD’s SWAT division, and the other worked on

LAPD’s vice squad. Id. at 103-04. At the suppression

hearing, the SWAT officer testified that he didn’t

“write a lot of [traffic] citations . . . because that’s not

19

[his] primary duty, for traffic enforcement”. Id. at

111-12. And he was unaware that California law

prohibits the type of arrest he ultimately made. See

id. at 122; see also Cal. Veh. Code § 12801.5(f).

Nevertheless, the officers stopped Mr. Banks,

allegedly for an unsafe lane change. AER at 105, 11213. Mr. Banks and the three passengers who were in

his car are Black, and the traffic stop occurred during

the daytime. Id. at 106-108, 115; see Pierson et al.,

supra, at 737-39 (finding that time of day affects the

likelihood that Black drivers are stopped, as their race

is more easily detected before sunset). Despite the

officers’ purported reason for stopping Mr. Banks,

neither officer issued a ticket or citation for any traffic

infraction. See AER at 122. The officers ordered Mr.

Banks out of his car, patted him down and found no

weapons or contraband. Id. at 116. They could have

issued a traffic ticket or citation after the stop or the

frisk and sent Mr. Banks on his way, but they did not.

Instead, they arrested Mr. Banks—in violation of

California law prohibiting such an arrest—

handcuffed him in the police car and detained him and

the passengers in his car for 30 minutes. Id. at 123.

During that 30-minute period, the officers continued

their investigation by questioning the passengers in

the car. Id. at 118. It strains credulity to believe that

the vice officer’s presence in this interrogation about

prostitution was the coincidental result of an unlawful

lane change. From these objective facts, the district

court could conclude that the stop of Mr. Banks was

pretextual.

20

B.

Whren Was Wrongly Decided, and Its

Result Is Not Compelled by This Court’s

Fourth Amendment Precedents.

The Court should also reconsider Whren because

the rule it established was not compelled by this

Court’s precedent. None of the eight cases that the

Court analyzed in Whren to reach its conclusion

prevented the Court from adopting a rule against

pretextual stops.

In Whren, the petitioner relied on four cases to

argue that the Court should consider the police

officer’s purpose in conducting a traffic stop. In these

cases, the Court had stated that “an inventory search

must not be a ruse for a general rummaging in order

to discover incriminating evidence”, Florida v. Wells,

495 U.S. 1, 4 (1990); that it was significant that there

had been “no showing that the police, who were

following standardized procedures, acted in bad faith

or for the sole purpose of investigation”, Colorado v.

Bertrine, 479 U.S. 367, 372 (1987); that an upheld

warrantless administrative inspection did not appear

to be “a ‘pretext’ for obtaining evidence of . . . violation

of the penal laws”, New York v. Burger, 482 U.S. 691,

716 n.27 (1987); and that “[t]here was no evidence

whatsoever that the officer’s presence to issue a traffic

citation was a pretext to confirm any other previous

suspicion about the occupants” of the car, Colorado v.

Bannister, 449 U.S. 1, 4 n.4 (1980). These pre-Whren

precedents all suggest that pretextual searches are

problematic under the Fourth Amendment.

The Court distinguished the first three cases as

inventory and administrative-inspection cases in

which the Court was “addressing the validity of a

21

search conducted in the absence of probable cause”.

Whren, 517 U.S. at 811. The Court failed, however, to

explain why pretext matters only for inventories and

administrative inspections.

Indeed, there is a

stronger argument that pretext should matter in the

traffic stop context: In view of the ease with which

police officers can find that any motorist has violated

a traffic law, the probable cause requirement for

minor traffic offenses provides less protection against

arbitrariness than do the requirements to which

inventories and administrative inspections are

subject. See LaFave, supra, § 1.4(f). Finally, unable

to distinguish Bannister on the same ground, the

Court found that the language in Bannister regarding

pretext was “dictum”. Whren, 517 U.S. at 812.

None of the four cases on which the Whren Court

relied compel the opposite result. In United States v.

Villamonte-Marquez, the Court made an uncontroversial observation that the Coast Guard’s power to

stop vessels without suspicion may also be used

against vessels suspected of involvement with

smuggling. 462 U.S. 579, 584 n.3, 592-93 (1983). The

Whren Court misread the next precedent: What the

Court claimed was the holding in United States v.

Robinson was in reality a paraphrase of the

respondent’s factual argument in the lower court. 414

U.S. 218, 221 n.1 (1973). The lower court rejected the

respondent’s argument because it found the search to

be unconstitutional for other reasons. Id. Whether

the arrest was pretextual was not a question before

the Court in Robinson. Rather, the Court assumed a

lawful arrest and pronounced a bright-line rule that

police officers may search a person incident to a lawful

custodial arrest based on probable cause. Id. at 236.

22

The same is true of Gustafson v. Florida, where “the

petitioner ha[d] fully conceded the constitutional

validity of his custodial arrest”. 414 U.S. 260, 267

(1973) (Stewart, J., concurring). Finally, Scott v.

United States is not a pretext case, and its observation

that “[s]ubjective intent alone . . . does not make

otherwise lawful conduct illegal or unconstitutional”

is beside the point. 436 U.S. 128, 136 (1978). Neither

the petitioner in Whren nor Amicus in this case are

advocating for a test based on the officer’s subjective

intent. (Supra Part III.A.)

For these reasons, the Court’s precedent did not

“foreclose” the Court in Whren from adopting a rule

against pretextual traffic stops. Whren, 517 U.S. at

813. Although the Court did not adopt such a rule

then, it should do so now.

C.

Whren Should Be Overruled for Other

Reasons Fundamental to the Fourth

Amendment.

Finally, the Court should overrule Whren because

it is inconsistent with the historical understanding

and purpose of the Fourth Amendment.

The

Founders adopted the Fourth Amendment because

they were concerned with the arbitrary and

indiscriminate nature of the law enforcement tools of

general warrants and writs of assistance.

See

Barbara C. Salken, The General Warrant of the

Twentieth Century? A Fourth Amendment Solution to

Unchecked Discretion to Arrest for Traffic Offenses, 62

Temp. L. Rev. 221, 254-58 (1989); see also Payton v.

New York, 445 U.S. 573, 583-85 & n.21 (1980). The

same concerns that alarmed the Founders about

23

indiscriminate and arbitrary power of government

officials are present in pretextual traffic stops.

Whren’s refusal to consider police manuals and

procedures in determining whether a stop is

reasonable also conflicts with the Fourth

Amendment’s purpose to protect against indiscriminate and arbitrary exercises of government power.

While the Court admitted that “police manuals and

standard procedures may sometimes provide objective

assistance”, it went on to say that “police enforcement

practices . . . vary from place to place and from time to

time. We cannot accept that the search and seizure

protections of the Fourth Amendment are so variable

and can be made to turn upon such trivialities.”

Whren, 517 U.S. at 815-16 (citations omitted). But

these so-called trivialities are critical for evaluating

whether police officers exercised their powers

arbitrarily. A practice that is contrary to California

law or to LAPD guidelines may be evidence that the

search was pretextual, when the same search in a

different location at a different time may not be

pretextual. Disregarding “place” and “time” undermines the Fourth Amendment’s guarantee against

arbitrary use of government power.

Moreover, the Whren rule undermines the

legitimacy of the law by encouraging untruths

regarding the real reasons for police actions and

thereby builds distrust among people of color. See

generally Jonathan Blanks, Thin Blue Lies: How

Pretextual Stops Undermine Police Legitimacy, 66

Case W. Res. L. Rev. 931 (2016). Cf. United States v.

Gross, 784 F.3d 784, 789-90 (D.C. Cir. 2015) (Brown,

J., concurring) (describing how unacceptable “a rolling

roadblock” in high-crime D.C. neighborhoods would be

24

if put in place in Georgetown). Eliminating pretextual

traffic stops will help to restore confidence in the

police and legal system.

CONCLUSION

For the reasons stated, Amicus respectfully

requests that the Court grant Petitioner’s request for

a writ of certiorari.

Respectfully submitted,

ANTONY L. RYAN

Counsel of Record

DAMARIS HERNÁNDEZ

LAUREN M. ROSENBERG

MARCO Y. WONG

ADAM F. MINCHEW

CRAVATH, SWAINE & MOORE LLP

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019-7475

(212) 474-1000

aryan@cravath.com

ANTHONY C. THOMPSON

VINCENT M. SOUTHERLAND

CENTER ON RACE, INEQUALITY,

AND THE LAW AT NYU SCHOOL OF

LAW

139 MacDougal Street

New York, NY 10012

(212) 998-6882

August 14, 2020