Petition for Writ of Certiorari — Jason P. Briscoe, Petitioner v. United States

Supreme Court briefFeb 22, 2021

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NO.

IN THE

SUPREME COURT OF THE UNITED STATES

JASON BRISCOE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

VIRGINIA L. GRADY

Federal Public Defender

JOHN C. ARCECI

Assistant Federal Public Defender

Counsel of Record for Petitioner

633 17th Street, Suite 1000

Denver, Colorado 80202

(303) 294-7002

QUESTION PRESENTED

Whether this Court’s decision in Whren v. United States, 517 U.S. 806 (1996),

which permits pretextual traffic stops so long as the police have probable cause to

believe a traffic violation has occurred, should be overruled?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................................................................................................. i

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

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

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINION BELOW .............................................................................................................. 1

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

FEDERAL CONSTITUTIONAL PROVISION............................................................. 1

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

REASONS FOR GRANTING THE WRIT ..................................................................... 4

CONCLUSION ................................................................................................................... 11

APPENDIX

Order and Judgement in the Tenth Circuit Court of Appeals ....................................... A1

TABLE OF AUTHORITIES

Page

Cases

Atwater v. City of Lago Vista, 532 U.S. 318 (2001) .......................................................... 6, 10

Brendlin v. California, 551 U.S. 249 (2007) ............................................................................. 4

Colorado v. Bannister, 449 U.S. 1 (1980) ................................................................................. 9

Colorado v. Bertrine, 479 U.S. 367 (1987) ................................................................................ 8

D.C. v. Wesby, 138 S.Ct. 577 (2018) ...................................................................................... 5

Delaware v. Prouse, 440 U.S. 648 (1979) ................................................................................. 4

District of Columbia v. Wesby 138 S.Ct. 577 (2018) ................................................................. i

Florida v. Wells, 495 U.S. 1 (1990) .......................................................................................... 8

Franchise Tax Bd. of Cal. v. Hyatt, 139 S.Ct. 1485 (2019) ..................................................... 9

Gustafson v. Florida, 414 U.S. 260 (1973) ........................................................................... 7, 8

Maryland v. Wilson, 519 U.S. 408 (1997).......................................................................... 6, 10

New York v. Burger, 482 U.S. 691 (1987) ............................................................................... 8

Payne v. Tennessee, 501 U.S. 808 (1991) .................................................................................. 9

Ramos v. Louisiana, 140 S.Ct. 1390 (2020)............................................................................. 9

Rodriquez v. United States, 575 U.S. 348 (2015) ................................................................... 10

Scott v. United States, 436 U.S. 128 (1978) ............................................................................. 8

United States v. Gross, 784 F.3d 784 (D.C. Cir. 2015)......................................................... 10

United States v. Knights, 534 U.S. 112 (2001) ......................................................................... 6

iii

United States v. Robinson, 414 U.S. 218 (1973) ....................................................................... 7

United States v. Villamonte-Marquez, 462 U.S. 579 (1983)..................................................... 7

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

Wilson v. Arkansas, 514 U.S. 927 (1995) ............................................................................... 4

Statutes

18 U.S.C. § 3231 ..................................................................................................................... 1

18 U.S.C. § 3742 ..................................................................................................................... 1

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

28 U.S.C. § 1291 ..................................................................................................................... 1

Other Authorities

Banks v. United States, No. 20-5074, Brief of Amicus Curiae Center on Race,

Inequality, and the Law (Aug. 14, 2020) .......................................................................... 8

1 W. LaFave, Search and Seizure § 1.4(f) (5th ed. Oct. 2019 Update) (West) ................ 6

Gabriel J. Chin & Charles J. Vernon, Reasonable but Unconstitutional: Racial

Profiling and the Radical Objectivity of Whren v. United States, 83 Geo. Wash. L.

Rev. 882, 884 n.2, 886 (2014) ............................................................................................ 6

Stephen Rushin & Griffin Edwards, An Empircal Assessment of Pretextual

Stops and Racial Profiling, 73 Stanford L. Rev. ___ (forthcoming) ...................... 7, 10, 11

Rules

Sup. Ct. R. 12.7 ....................................................................................................................... 2

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Jason Briscoe, respectfully petitions for a writ of certiorari to review

the order and judgment of the United States Court of Appeals for the Tenth Circuit.

OPINION BELOW

The unpublished decision of the United States Court of Appeals for the Tenth

Circuit, United States v. Briscoe, 19-3261, is found in the Appendix at A1.

JURISDICTION

The United States District Court for the District of Kansas had jurisdiction in

this criminal action pursuant to 18 U.S.C. § 3231. The Tenth Circuit had jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and entered judgment on

September 23, 2020. On March 19, 2020, this Court extended the time within which

to file any petition for a writ of certiorari due on or after that date to 150 days from

the date of the lower court judgment. This Court has jurisdiction pursuant to

28 U.S.C. § 1254(1).

FEDERAL CONSTITUTIONAL PROVISION

The Fourth Amendment provides, in relevant part:

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and

seizures, shall not be violated . . . .”

STATEMENT OF THE CASE

On the morning of March 6, 2018, two local police detectives were patrolling

what they described as a bad part of town in Salina, Kansas. (Vol. 3 at 136-37, 140,

177.)1 Passing through the parking lot of a budget hotel, they noticed a parked Chevy

Impala, in which the driver was waiting. (Id. at 137, 177.) They found it suspicious, the

detectives later said, that the vehicle had backed into the parking space, rather than

pulling in forward. (Id. at 141, 161-63, 177.) Making a mental note of the Impala, they

continued on patrol, but when they saw the car a short time later leaving the hotel

with a passenger, later identified as petitioner Mr. Briscoe, they decided to follow it

based on their earlier hunch. (Id. at 137-38, 161, 177-78.) Shortly thereafter, they

noticed that the car’s brake lights weren’t working properly, and called dispatch to

have a uniformed officer make a traffic stop. (Id. at 137-40, 161-63, 178-80.)

When that officer activated his cruiser’s lights to initiate the traffic stop, the

Impala kept driving a few more blocks before dead-ending in a cul de sac. (Id. at 20203, 215.) When it stopped, Mr. Briscoe ran, but he surrendered not long into the foot

chase that ensued. (Vol. 1 at 167; Vol 3 at 206-07.) Based on drugs and firearms found

following a search of the scene, the federal government charged him with a variety of

crimes, possession with intent to distribute a controlled substance, possession of a

Citations are to the record on appeal in the Tenth Circuit and the page number at

the bottom, right-hand side of each page, and are provided in the event this Court

deems it necessary to review the record to resolve this petition. See Sup. Ct. R. 12.7.

firearm in furtherance of a drug trafficking crime, and possession of a firearm by a

previously-convicted felon. (Vol. 1 at 49-52; Vol. 2 at 11; Vol. 3 at 183, 208-10, 24145, 251-56, 384-85.)

Mr. Briscoe moved to suppress the evidence. As pertinent here, he argued that

the detectives’ decision to initiate a traffic stop was pretextual—they had a hunch, and

the faulty brake lights gave them a basis for initiating the traffic stop. (Vol. 1 at 12731.) The district court agreed, holding, in relevant part, that the stop was “clearly”

pretextual. (Id. at 131-32.) But the court correctly explained that this didn’t violate the

Fourth Amendment because under this Court’s decision in Whren v. United States, the

“constitutional reasonableness of traffic stops” does not “depend[] on the actual

motivations of the individual officers involved.” 517 U.S. 806, 813 (1996). It denied

Mr. Briscoe’s motion, and a jury convicted him of the charged offenses. (Vol. 1 at

228-30; Vol. 3 at 521-22.)

On appeal, Mr. Briscoe pressed his challenge that the traffic stop was

pretextual, while acknowledging, of course, that the court of appeals was bound by

Whren. (Opening. Br. at 25) He also argued that six (of nine) of his convictions were

multiplicitous, in violation of the Double Jeopardy Clause, and that a plain sentencing

error had unlawfully increased his guidelines sentencing range. (Id. at 8-25.) The

government conceded both of those points, and the Tenth Circuit agreed, vacating

the disputed convictions and remanding for resentencing.2 (Appendix at A1-A3.) This

petition follows.

REASONS FOR GRANTING THE WRIT

Traffic stops, of course, entail the seizure of the vehicle and its occupants

within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653

(1979); Brendlin v. California, 551 U.S. 249, 254 (2007). Such seizures, therefore, must

be reasonable. Wilson v. Arkansas, 514 U.S. 927, 931 (1995) (“[T]he underlying

command of the Fourth Amendment is always that searches and seizures be

reasonable.”). This Court’s 1996 decision in Whren allows officers to stop a vehicle

without violating the Fourth Amendment whenever they “have probable cause to

believe that a traffic violation has occurred,” regardless of the subjective intentions or

prejudices of the officer. 517 U.S. at 810, 813 & 818. That is, pretextual traffic stops,

motivated by hunches unrelated to traffic law enforcement are not unreasonable

under the Fourth Amendment. Because the breadth of traffic regulations nationwide

grants nearly unfettered discretion to law enforcement to stop almost any motorist an

officer chooses, Mr. Briscoe contends that Whren was wrongly decided and should be

overruled.

Mr. Briscoe is currently scheduled to be resentenced in the District of Kansas

on May 3, 2021.

In Whren, two defendants claimed that their Fourth Amendment rights were

violated when police officers pulled them over for a traffic code infraction. 517 U.S. at

810. Although the officers had probable cause of a traffic violation, the defendants

asserted that more was necessary to prevent officers from using traffic stops “as a

means of investigating other law violations” and to prevent stops based on

impermissible factors. Id. This Court, however, declined to require more, concluding

that, “[a]s a general matter, the decision to stop an automobile is reasonable where the

police have probable cause to believe that a traffic violation has occurred,” regardless

of the subjective motivations of the officers. Id. at 810, 814 (citations omitted).

In the ensuing years, the scope of Whren has been the subject of concern and

criticism, voiced not only by commentators, but also members of this Court.

Most recently, in 2018, Justice Ginsburg expressly suggested that Whren may

warrant reconsideration, noting 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.” D.C. v. Wesby, 138

S.Ct. 577, 594 (2018) (Ginsburg, J., concurring in the judgment in part). Before that,

other members of this Court had voiced concern that the rule underlying Whren may

facilitate seizures of extremely broad scope. See, e.g., United States v. Knights, 534 U.S.

112, 116 (2001) ( Souter, J. concurring) (“reserv[ing] 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”); Maryland v. Wilson, 519 U.S. 408, 410 (1997) (Kennedy, J. dissenting)

(noting “[t]he practical effect of our holding in Whren, of course, is to allow the police

to stop vehicles in almost countless circumstances” and that “[w]hen Whren is coupled

with today’s holding [that police may order drivers and passengers to exit the vehicle],

the Court puts tens of millions of passengers at risk of arbitrary control by the

police”); Atwater v. City of Lago Vista, 532 U.S. 318, 323 (2001) (O’Connor, J.

dissenting) (observing that “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”).

A leading treatise has suggested the decision “blinks at reality.” See, e.g., 1 W.

LaFave, Search and Seizure § 1.4(f) (5th ed. Oct. 2019 Update) (West) (“The apparent

assumption of the Court in Whren, that no significant problem of police arbitrariness

can exist as to actions taken with probable cause, blinks at reality.”). Other

commentators have raised issues with Whren’s reasoning and its effects, for reasons

that include “that it puts all motorists at risk of arbitrary police detention,

underestimates the frequency or costs of racial profiling, causes resentment and

hostility between the community and the police, ignores the psychological realities of

police behavior, overlooks the problem of police perjury, leaves victims of

unconstitutional behavior remediless, facilitates the financial self-interest of police

agencies through forfeitures, and ignores evidence demonstrating the ineffectiveness

of racial profiling.” Gabriel J. Chin & Charles J. Vernon, Reasonable but Unconstitutional:

Racial Profiling and the Radical Objectivity of Whren v. United States, 83 Geo. Wash. L.

Rev. 882, 884-86 & n.2, n.12, (2014); see also Stephen Rushin & Griffin Edwards, An

Empircal Assessment of Pretextual Stops and Racial Profiling, 73 Stanford L. Rev. ___

(forthcoming), at 15 n.72 (collecting scholarly criticism).3

For three reasons, these concerns and critiques are well founded and Whren

should be revisited.

1. First, the objective reasonableness rule adopted in Whren was not compelled

by the precedent the Court relied on. Whren’s analysis turned on a review of prior

Fourth Amendment cases, an analysis that led the court to reject the idea that the

“constitutional reasonableness of traffic stops depends on the actual motivations of

the individual officers involved.” 517 U.S. at 812-13. But as one recent amicus

succinctly explained, “[n]one of the four cases on which Whren relied compel [that]

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.

Available at https://ssrn.com/abstract=3506876.

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. 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).

Banks v. United States, No. 20-5074, Brief of Amicus Curiae Center on Race, Inequality,

and the Law, at 21-22 (Aug. 14, 2020).

Moreover, and quite to the contrary, other precedent points in the opposite

direction. For example, three pre-Whren precedents suggested that pretextual searches

are problematic under the Fourth Amendment. 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); and 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). The

Whren court distinguished these cases as relevant only to inventory and administrative

inspections, but it is hard to see why the consideration of pretext should be so limited,

and not also relevant considerations to situations, as here, where the low threshold of

probable cause combined with the wide breadth of traffic violations, provides little

protection against arbitrary seizures. 4

2. Second, principles of stare decisis do not favor retaining Whren. The doctrine,

of course, is “‘at its weakest when [this Court] interpret[s] the Constitution’ because a

mistaken interpretation of that supreme law is often ‘practically impossible’ to correct

through other means.” Ramos v. Louisiana, 140 S.Ct. 1390, 1405 (2020) (quoting Payne

v. Tennessee, 501 U. S. 808, 828 (1991)). When it revisits precedent this Court has

traditionally considered “the quality of the decision’s reasoning; its consistency with

related decisions; legal developments since the decision; and reliance on the decision.”

Id. (quoting Franchise Tax Bd. of Cal. v. Hyatt, 139 S.Ct. 1485, 1499 (2019)). Here, each

factor favors overturning Whren. As discussed above, the rule in Whren was not

compelled by prior Fourth Amendment cases, and the decision has been extensively

questioned over the last twenty-five years. Moreover, few reliance interests exist as

changing course from Whren would not upend the Fourth Amendment analysis, but,

Additionally, in Colorado v. Bannister, 449 U.S. 1, 4 n.4 (1980), the Court also

had indicated pre-Whren 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, language Whren disregarded as dicta.

rather, mean only that pretextual reasons are not categorically excluded from

consideration in the Fourth Amendment analysis. Courts are well versed in balancing

such totality of the circumstances, particularly on issues of Fourth Amendment

reasonableness.

3. And third, this question is important and recurring. By authorizing pretextual

stops whenever a police officer has probable cause to believe a traffic violation has

occurred, Whren gives enormous discretion to law enforcement officers to stop

anyone driving a car at nearly any time, as even the most careful drivers occasionally

run afoul of the multitude of traffic laws, briefly crossing the fog line or driving

slightly above the speed limit, for example. See Rushin & Edwards, supra, at 1 (noting

that “any citizen fair game for a traffic stop almost anytime, anywhere, virtually at the

whim of police”) (quoting David A. Harris, “Driving While Black” and All Other Traffic

Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544,

545 (1997)). And far from incidental or innocuous, traffic stops entail significant

intrusions on liberty. A vehicle can be detained for meaningful amounts of time while

an officer investigates the traffic violation and makes related inquiries. Rodriquez v.

United States, 575 U.S. 348 (2015). Drivers and passengers can be ordered out of car,

Maryland v. Wilson, 519 U.S. 408, 410 (1997), and subject to warrantless arrest for

minor offenses, Atwater v. City of Lago Vista, 532 U.S. 318, 323 (2001).

Moreover, the impacts of ignoring pretext are not borne evenly across the

population, but, rather fall on ‘high-crime’ communities that feature a greater police

presence, and, recent studies have shown, “may contribute to a statistically significant

increase in racial profiling of minority drivers.” See See Rushin & Edwards, supra, at 6;

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 if put in place in Georgetown).

The scope and impact of such arbitrary enforcement favors revisiting Whren,

and this case present a good vehicle to do so. The issue is preserved, and the district

court made a clear finding that the traffic stop here was pretextual, but that Whren

barred consideration of that fact in the Fourth Amendment analysis.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be

granted.

Respectfully submitted,