Petition for Writ of Certiorari — Jacob Matthew Johnson, Petitioner v. Texas

Supreme Court briefOct 7, 2021

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No.______________

In The

Supreme Court of the United States

Jacob Matthew Johnson

Petitioner,

The State of Texas

Respondent.

On Petition for Writ of Certiorari

to the

Texas Court of Criminal Appeals

PETITION FOR A WRIT OF CERTIORARI

JONATHAN D. LANDERS

917 Franklin St., Ste. 300

Houston, TX 77002

(713) 685-5000

Jlanders.law@gmail.com

October 8, 2021

WILLIAM P. DEMOND

DEMOND LAW, PLLC

1520 Rutland St.

Houston, TX 77008

(713) 701-5240

william@demondlaw.com

Counsel of Record

for Petitioner

QUESTION PRESENTED

Can three or four unadorned “calls for service”

to an area (1) constitute a specific and articulable fact

significantly associating said area with criminal

activity, (2) support an officer’s reasonable suspicion

of those found therein, and (3) justify a warrantless

search and seizure despite the plain text of the Fourth

Amendment and “no indication that the person was

engaged in criminal activity other than sitting there

in the dark”?

LIST OF PARTIES

The caption of the case contains the names of

all the parties. See Sup. Ct. R. 14(1)(b)(i).

RULE 29.6 STATEMENT

Petitioner is not a corporate entity.

LIST OF PROCEEDINGS



On August 2, 2017, in cause number 224018

pending in County Court at Law no. 1 of Brazoria

County, Texas, the trial court denied Mr. Johnson’s

motion to suppress evidence after signing the

State’s proposed findings of facts and conclusions

of law. On May, 8, 2018, Mr. Johnson was found

guilty of possessing marijuana and sentenced to

three days in jail and a fine of $500.



Texas’ Fourteenth Court of Appeals reversed the

trial court’s ruling on Mr. Johnson’s motion to

suppress evidence on May 28, 2020. Johnson v.

State, 602 S.W.3d 50 (Tex. App.—Houston [14th

Dist.] 2020), rev'd, 622 S.W.3d 378 (Tex. Crim.

App. 2021).



The Texas Court of Criminal Appeals reversed the

opinion of the court of appeals and affirmed the

judgment of the trial court, over dissent, on May

12, 2021. Johnson v. State, 622 S.W.3d 378 (Tex.

Crim. App. 2021).

iii

TABLE OF CONTENTS

Question Presented…………………………………………..i

List of Parties……………………………………………..ii

Rule 29.6 Statement……………………………………..ii

List of Proceedings……………………………………….ii

Table of Authorities…………………………………….vii

Opinions Below…………………………………………...1

Jurisdiction………………………………………………..1

Constitutional Provision at Issue……………………...1

Statement………………………………………………….2

Factual Background………………………….…………..2

Proceedings Below………………………………………..4

Reasons for Granting the Petition…………………….10

Granting certiorari is

necessary to address an

important constitutional

question that other courts

would have resolved differently………11

a. CONTRARY DECISIONS FROM

UNITED STATES COURTS OF

APPEALS…………………………………...11

i. The First Circuit has held

illumination in a vehicle in

a “high crime area” at night

creates reasonable suspicion…...11

ii. The First Circuit’s framework

concerning the designation of

“high crime areas”…………………13

iii. The Second Circuit’s opinion

that a “high crime area”

designation is not a substitute

for analyzing underlying

testimony……………………………..15

iv. Circuits relying upon

sufficient quanta of alleged

crime..................................................17

v. Circuits relying upon

sufficient nexuses………………….19

b. STATE COURTS OF LAST RESORT………..20

Random stops areas

are unconstitutional…................20

ii.

Courts relying upon

sufficient quanta of

alleged crime………………………21

iii.

Courts relying upon

temporal proximity………………22

iv.

Courts relying upon facts

known to the officer……………..23

II.

Unanswered important federal

question: how should courts

determine whether areas are

sufficiently associated with

criminal activity to warrant

the suspension of Fourth

Amendment protections therein?............26

Conclusion………………………………………………..33

TABLE OF CONTENTS FOR THE APPENDIX

Appendix A (Texas Court of Criminal Appeals

Decision, filed May 12, 2021) ………………………..1a

Appendix B (Texas Fourteenth Court of Appeals

Decision, filed May 28, 2020)………………………..31a

Appendix C (Motion to Suppress Hearing

Transcript (excerpts), conducted June 25, 2017)…67a

vii

TABLE OF AUTHORITIES

Cases

Almeida-Sanchez v. U.S.,

413 U.S. 266 (1973)………………………………...33

Amador v. State,

221 S.W.3d 666 (Tex. Crim. App. 2007)…………..3

Bailey v. State,

987 A.2d 72 (Md. 2010)…………………………….23

Brown v. Texas,

443 U.S. 47 (1979)……………………………..10, 12

Coffin v. U.S.,

156 U.S. 432 (1895)…………………………………27

Commw. v. Helme,

503 N.E.2d 1287 (Mass. 1989)…………………….12

Commw. v. Santaliz,

596 N.E.2d 337 (Mass. 1992)………………………21

Hill v. State,

2021 WL 3411864 (Tex. App.—Austin

Aug. 5, 2021, no pet. h.)…………………………….25

Illinois v. Wardlow,

528 U.S. 119 (2000)…………………………….10, 12

In re Tony C.,

582 P.2d 957 (Cal. 1978)……………………….31, 32

viii

Johnson v. State,

602 S.W.3d 50 (Tex. App.––Houston

[14th Dist.] 2020), rev’d,

622 S.W.3d 378 (Tex. Crim. App. 2021)……passim

Johnson v. State,

622 S.W.3d 378 (Tex. Crim. App. 2021)……passim

Maryland v. Buie,

494 U.S. 325 (1990)……………………………10, 12

Moberly v. Commw.,

551 S.W.3d 26 (Ky. 2018)………………………….24

Nelson v. Colorado,

137 S. Ct. 1249 (2017)……………………………...28

Pennsylvania v. Dunlap,

128 S. Ct. 448 (2008)……………………………….10

People v. Aldridge,

674 P.2d 240 (Cal. 1984)…………………………..21

People v. Bower,

597 P.2d 115 (Cal. 1979)………………24, 26, 27, 33

People v. Freeman,

320 N.W.2d 878 (Mich. 1982)………………...12, 24

People v. Thomas,

660 P.2d 1272 (Colo. 1983)………………………...24

Remers v. Superior Court,

470 P.2d 11 (Cal. 1970)……………………………27

Schneckloth v. Bustamonte,

412 U.S. 218 (1973)………………………………...32

State v. Anderson,

783 S.E.2d 51 (S.C. 2016)…………………………20

State v. Chisum,

200 A.3d 1279 (N.J. 2019)…………………………14

State v. Dean,

645 A.2d 634 (Me. 1994)…………………………..21

State v. Donnell,

239 N.W.2d 575 (Iowa 1976)……………………...22

State v. Edmonds,

145 A.3d 861 (Conn. 2016)………………………..31

State v. Fisher,

714 N.W.2d 495 (Wis. 2006)………………………33

State v. Genous,

961 N.W.2d 41 (Wis. June 4, 2021)………………26

State v. Hamdan,

665 N.W.2d 785 (Wis. 2003)………………………21

State v. Johnson,

861 S.E.2d 474 (N.C. 2021)……………………….28

State v. Larson,

611 P.2d 771 (Wash. 1980)……………………23, 31

State v. Legg,

536 S.E.2d 110 (W. Va. 2000)……………………..20

State v. Martinez,

457 P.3d 254 (N.M. 2020)….………………………32

State v. Morgan,

539 N.W.2d 887 (Wis. 1995)……………………….27

State v. Pineiro,

853 A.2d 887 (N.J. 2004)…………………………..16

State v. Richardson,

501 N.W.2d 495 (Iowa 1993)……………………...21

State v. Weyand,

399 P.3d 530 (Wash. 2017)………………………..20

Terry v. Ohio,

392 U.S. 1 (1968)……………………………………16

U.S. v. Alvin,

701 F. App’x 151 (3d Cir. 2017)…………………..13

U.S. v. Bonner,

363 F.3d 213 (3d Cir. 2004)…………………..17, 27

U.S. v. Caruthers,

458 F.3d 459 (6th Cir. 2006)……………………...28

U.S. v. Evans,

994 F.2d 317 (7th Cir. 1993)……………………...17

U.S. v. Flowers,

6 F.4th 651 (5th Cir. July 30, 2021)……17, 18, 24,

29, 33

U.S. v. Four Million, Two Hundred

Fifty-Five Thousand,

762 F.2d 895 (11th Cir. 1985)……………………..18

U.S. v. Freeman,

735 F.3d 92 (2d Cir. 2013)……………………15, 18

U.S. v. Gomez,

633 F.2d 999 (2d Cir. 1980)……………………….18

U.S. v. Goodrich,

450 F.3d 552 (3d Cir. 2006)………………………..18

U.S. v. Juvenile TK,

134 F.3d 899 (8th Cir. 1998)……………………..14

U.S. v. Montero-Camargo,

208 F.3d 1122 (9th Cir. 2000) (en banc),

cert. denied, 531 U.S. 889 (2000)………...15, 28, 31

U.S. v. Ogden,

703 F.2d 629 (1st Cir. 1983)………………………19

U.S. v. Rickus,

737 F.2d 360 (3d Cir. 1984)…………………...17, 19

U.S. v. See

574 F.3d 309 (6th Cir. 2009)………………………11

xii

U.S. v. Stanley,

915 F.2d 54 (1st Cir. 1990)………………………..11

U.S. v. Thornton,

197 F.3d 241 (7th Cir. 1999)……………………...17

U.S. v. Trullo,

809 F.2d 108 (1st Cir. 1987)………………………18

U.S. v. Williams,

808 F.3d 238 (4th Cir. 2015)……………………...19

U.S. v. Wright,

485 F.3d 45 (1st Cir. 2007)………13, 14, 15, 17, 19

Welsh v. Wisconsin,

466 U.S. 740 (1984)………………………………...32

Woody v. State,

765 A.2d 1257 (Del. 2001)…………………….21, 22

Constitutions

TEX. CONST. art. V, § 6(a)...…………………………6, 22

U.S. CONST. amend. IV……………..…………………...1

Statutes

28 U.S.C. § 1254………………………………………….1

xiii

Law Review Articles

Andrew G. Ferguson & Damien Bernache,

The High-Crime Area Question:

Requiring Verifiable and Quantifiable

Evidence for Fourth Amendment Reasonable

Suspicion Analysis,

57 Am. U. L. Rev. 1587 (2008)…………………….32

L. Song Richardon,

Cognitive Bias, Police Character,

and the Fourth Amendment,

44 Ariz. St. L. J. 267 (2012)……………………….29

Margaret Raymond,

Down on the Corner, Out in

the Street: Considering the

Character of the Neighborhood

in Evaluating Reasonable Suspicion,

60 Ohio St. L.J. 99 (1999)……………………..25, 30

Other

N. Mariana Islands v. Crisostomo,

No. 2013-SCC-0008-CRM,

2014 WL 7072149

(N. Mar. I. Dec. 12, 2014)…………………22, 26, 30

PETITION FOR A WRIT OF CERTIORARI

Petitioner Jacob Matthew Johnson respectfully

petitions for a writ of certiorari to review the judgment

of the Texas Court of Criminal Appeals in this case.

OPINIONS BELOW

The opinion of the Texas Court of Criminal

Appeals (App., infra, 1a-19a) is reported at 622 S.W.3d

378; there was one concurrence without opinion, one

dissent without opinion, and one dissenting opinion

(App., infra, 20a-30a). Texas’ Fourteenth Court of

Appeals’ opinion (App., infra, 31a-49a) is reported at

602 S.W.3d 50; there was one concurring opinion

(App., infra, 50a-66a).

JURISDICTION

The judgment of the Texas Court of Criminal

Appeals was filed on May 12, 2021. This Court’s

jurisdiction rests on 28 U.S.C. section 1254(1).

CONSTITUTIONAL PROVISION AT ISSUE

The Fourth Amendment to the United States

Constitution provides:

The right of the people to be secure in

their persons, houses, papers, and

effects, against unreasonable searches

and seizures, shall not be violated, and

no warrants shall issue, but upon

probable cause, supported by oath or

affirmation,

and

particularly

describing the place to be searched, and

the persons or things to be seized.

U.S. CONST. amend. IV.

STATEMENT

The Court should clarify the contours of

constitutionally permissible warrantless arrests in

areas with allegedly high levels of crime. The Chief

Justice of this Court has acknowledged a split among

the states concerning “high crime area” analyses,

lower courts and scholars acknowledge there is

neither a definition of such areas nor an accepted test

to identify them, and an area’s “significant association

with criminal activity” is even more nebulous than

“high crime”. This case presents a compelling

opportunity for the Court to identify how such areas

are identified under the Fourth Amendment and to

establish whether a nexus must exist between such

designations and the specific facts articulated to

justify Terry stops.

A. Factual Background

Sergeant Robert Cox of the Brazoria County

(Texas) Sheriff’s Office was patrolling a 24-hour parkand-ride in the early morning hours of August 28,

2016 when he saw Johnson’s parked vehicle with its

lights off. Sergeant Cox parked his car 10-15 yards

away from Johnson’s vehicle, turned on his overhead

lights,1 approached the vehicle, and identified himself.

As Mr. Johnson lowered his car window, Sergeant Cox

detected the odor of marijuana, saw Johnson’s pants

were unbuttoned, and arrested him.

App., infra, 76a (“Q: . . . [S]o if you turned on your

overhead lights, it would be like a normal police car pulling

somebody over if you got a traffic ticket. Right? I mean,

that’s what your vehicle looked like? A [Sergeant Cox]: Yes,

sir.”).

At the suppression hearing, the State

stipulated that “it was a warrantless arrest.”2

Sergeant Cox (the State’s sole witness) then testified:

(1) while working the night of August 28, 2016, he

noticed “a suspicious vehicle in a park-and-ride, FM

2004 and FM 523”;3 (2) he patrolled that area “every

night” that he works4 and had done so for ten years;5

(3) the park-and-ride had “a variety of criminal

activities” (including “burglaries of motor vehicles,

public lewdness, [and] illicit drugs”);6 (4) he responded

to calls there on “several occasions”7 (but could not say

how many times “without pulling up our call history

on it”);8 (5) he personally responded to “maybe three

or four” calls for service to the park-and-ride “in the

months around August 28th of 2016”;9 (6) the parkand-ride was open twenty-four hours a day;10 (7)

patrons of a nearby bar also utilized the park-andApp., infra, 67a. The State therefore had the burden

to prove that the search or seizure was reasonable under

the totality of the circumstances. Amador v. State, 221

S.W.3d 666, 672–73 (Tex. Crim. App. 2007).

App., infra, 68a.

App., infra, 69a-70a.

App., infra, 70a.

App., infra, 70a-71a.

App., infra, 71a. Upon questioning from the trial

court, Sergeant Cox stated that in the ten years he had

been going to the park-and-ride, he had been out there “a

lot”. Ibid.; see also App., infra, 70a (Sergeant Cox went to

the park-and-ride every night he was on duty for

approximately ten years).

App., infra, 71a-72a; see also App., infra, 44a

(“Officer Cox has had to make some calls for service to the

Parking Lot for criminal activity.”).

App., infra, 72a.

App., infra, 78a.

ride;11 (8) during his routine patrols of the park-andride, he would drive around and shine a spotlight on

the vehicles;12 (9) the interior and exterior lights of

Johnson’s vehicle were off;13 (9) he shined his spotlight

on Johnson’s vehicle;14 (10) he saw two individuals

inside and detected movement;15 and (11) based on his

experience, he thought that it was out of the ordinary

for someone to be inside a vehicle at the park-and-ride

after midnight with no one there to give them a ride.16

Sergeant Cox did not testify that the parking lot was

a “high crime area”. Johnson, 602 S.W.3d at 60.

B. Proceedings Below

At the motion to suppress hearing, the State’s

counsel argued:

Sergeant Cox had reasonable suspicion

because there were prior incidences of

burglaries, public lewdness, and drug

use in this park-and-ride and we

believe that the case law shows that

people that are parked in high crime

areas at odd times of night, that – those

facts alone would provide reasonable

suspicion

for

investigative

detention.

Ibid.

App., infra, 73a.

Ibid.

App., infra, 79a.

App., infra, 80a (emphasis added).

The State’s counsel also judicially admitted,

So, basically, Judge . . . in this case

[Sergeant Cox] was simply stopping by

a vehicle that was parked in a

suspicious location to find out what was

going on.18

After hearing the arguments of counsel, the trial court

denied Johnson’s motion to suppress.

The trial court entered findings of fact,

including:

The park and ride at the intersection

of FM 2004 and FM 523 is a high

crime area for burglaries of motor

vehicles, drug crimes, and public

lewdness. Sergeant Cox testified

that he had personally made several

arrests in the months prior to this

offense for such offenses in that park

and ride.

Johnson, 602 S.W.3d at 55.

The trial court also entered conclusions of law:

1. Officers do not need reasonable

suspicion to initiate a consensual

encounter with a citizen. Sergeant

Cox’s initial encounter with the

defendant was a proper consensual

encounter that later evolved into an

investigative detention.

Ibid.

2. The sole fact that Sergeant Cox

activat[ed] his overhead lights alone

did not elevate the consensual

encounter into an investigative

detention.

3. If the initial encounter was a

detention, it was properly supported

by reasonable suspicion of criminal

activity as necessary to detain the

defendant

based

specific,

articulable facts, namely: his

presence in the park and ride, a high

crime area, after the park and ride’s

normal operating hours.

Id. at 55-56.

According to the Texas Court of Criminal Appeals,

“[t]he [intermediate] court of appeals concluded that

[1] a seizure had occurred before Appellant rolled

down his car window . . . . [2] Sergeant Cox lacked

reasonable suspicion to initiate the seizure . . . . [3] the

record does not support the trial court’s finding that

the park-and-ride ‘is a high crime area[’][19] . . . . [and

4] even in the light most favorable to the trial court’s

ruling, the record in this case did not reasonably

support the trial court’s determination that Sergeant

Cox had the requisite reasonable suspicion.”20 The

concurring opinion from the intermediate court

concluded that the time of day was not suspicious

See TEX. CONST. art. V, § 6(a) (decisions from

intermediate courts of appeals “shall be conclusive on all

questions of fact brought before them on appeal or error”).

App., infra, 7a-9a.

[19]

because the park-and-ride was open twenty-four

hours a day.21

The concurrence also rejected the trial court’s

“high crime area” analysis on additional grounds:

First, there is no evidence that anyone

committed a crime during those

[Sergeant Cox’s] service calls; instead,

the reasonable inference is only that

someone called the police for some

unidentified form of assistance.[22]

Second, there is no evidence anyone was

arrested during those service calls.

Third, if it was a high crime area, Officer

Cox’s ten years patrolling it should have

yielded

additional

testimony

establishing that fact. Fourth, three to

four service calls over the course of

several months to an establishment that

is perpetually open does not constitute a

“high crime area”; concluding otherwise

would obliterate the significance of the

Supreme Court’s test, effectively convert

every neighborhood in every sizable

Texas city to a high crime area, and

undermine

the

reasonableness

component of Fourth Amendment

jurisprudence.

Johnson, 602 S.W.3d at 65-66 (Hassan, J.,

concurring) (citing Klare v. State, 76 S.W.3d 68, 75 (Tex.

App.—Houston [14th Dist.] 2002, pet. ref’d) (citing U.S. v.

Nicholas, 104 F.3d 368 (10th Cir. 1996))).

[22]

But see Johnson, 622 S.W.3d at 385 (suggesting the

trial court should have inferred there were crimes).

Id. at 67-68 (Hassan, J., concurring) (citations

omitted).

The Texas Court of Criminal Appeals reversed,

assumed Johnson was seized when Sergeant Cox

activated his overhead lights,23 and accepted the trial

court’s finding that the arresting officer had

reasonable suspicion to seize Johnson based on the

area’s “significant association with criminal activity

and because the occupants of the vehicle engaged in

activity that appeared secretive and was unusual for

the time and place.”24 Only six of nine judges joined

the opinion.

Judge Walker dissented and found (1) the

presence of Johnson’s vehicle “was neither odd nor

out-of-the-ordinary”;25 (2) his vehicle was parked

“during normal operating hours”;26 (3) Johnson’s

“relative seclusion was never testified to”;27 (4) “[f]rom

the vehicle being dark and not parked adjacent to the

other vehicles, the Court sees unusual and secretive

behavior”;28 and (5) “Based upon the totality of the

circumstances, there could not be a reasonable

suspicion that criminal activity was imminent.”29

Judge Walker also opined that, “[i]n essence,

[Johnson] was suspicious because he was not doing

what ‘one might expect’ of an innocent person” and

asked: “Should every place where people are engaged

in hidden—and therefore private—business be

Johnson, 622 S.W.3d at 383.

Id. at 381.

Id. at 389 (Walker, J., dissenting).

Ibid.

Id. at 390 (Walker, J., dissenting).

Id. at 392 (Walker, J., dissenting).

reasonably suspected of containing criminal activity

such that the State has license to poke its nose

inside?”30 Finally, Judge Walker concluded:

Whether

[this]

detention

was

premature or whether it represented a

disregard for the Constitution, the

nearly-immediate decision to detain a

person sitting in a car, with no

indication that the person was engaged

in criminal activity other than sitting

there in the dark, undermines the

public trust in law enforcement and the

entire justice system.31

Id. at 390 (Walker, J., dissenting).

Id. at 392 (Walker, J., dissenting).

REASONS FOR GRANTING THE PETITION

The Court should grant review. The Texas

Court of Criminal Appeals has decided an important

question of federal law concerning warrantless arrests

of people who are present in areas associated with

criminal activity that (1) is contrary to this Court’s

decisions;32 (2) conflicts with decisions from state

courts of last resort33 and United States courts of

appeals; and (3) has not been, but should be, settled

by this Court, i.e., how should courts determine

whether areas are sufficiently associated with

criminal activity to suspend Fourth Amendment

protections therein and must the facts upon which a

stop is based share some nexus with said association?

Finally, the Court should grant review because this

case implicates significant privacy interests for those

living in, working in, traveling through, parking in, or

conducting commerce in areas deemed sufficiently

associated with criminal activity for law enforcement

to suspend Fourth Amendment protections and

warrantlessly seize those found therein.

See, e.g., Brown v. Texas, 443 U.S. 47, 52 (1979),

Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (citing Brown,

443 U.S. 47), and Maryland v. Buie, 494 U.S. 325, 334 n.2

(1990) (“Even in high crime areas, where the possibility

that any given individual is armed is significant, Terry

requires reasonable, individualized suspicion.”).

See Pennsylvania v. Dunlap, 128 S. Ct. 448, 449

(2008) (ROBERTS, C.J., dissenting from denial of cert.)

(“Aside from its importance for law enforcement, this

question [involving probable cause analyses in high crime

areas] has divided state courts, a traditional ground

warranting review on certiorari.”).

Granting certiorari is necessary to

address an important constitutional

question that other courts would have

resolved differently

a. CONTRARY DECISIONS FROM

STATES COURTS OF APPEALS

UNITED

i. The

First

Circuit

has

held

illumination in a vehicle in a “high

crime area” at night creates

reasonable suspicion

In U.S. v. Stanley, 915 F.2d 54 (1st Cir. 1990),

the First Circuit held the defendant’s conduct in a

“slightly illuminated” vehicle after midnight in an

area with a reputation for narcotics transactions

created reasonable suspicion. Id. at 56.34 Here, the

court held there was reasonable suspicion because no

light emanated from the interior of Johnson’s vehicle.

Johnson, 622 S.W.3d at 387 (“One might expect to see

some sort of light in the occupied vehicle, such as from

a cell phone calling the ride or monitoring its progress,

a CD player playing a song while the person waits, an

internal light on to read a book, or the light of a

smartphone occupying one’s time.”).35 According to

“The officers noticed defendant alone in his car, just

after midnight, leaning over the center console which was

slightly illuminated. He was apparently engaged in some

purposeful activity which, under the circumstances, and

given their experience, the officers suspected was drugrelated.”

But see U.S. v. See, 574 F.3d 309 (6th Cir. 2009)

(finding no reasonable suspicion where, “[a]part from the

contextual factors of time and the high-crime status of the

area, all that Williams knew at the time he parked his car

the Texas Court of Criminal Appeals, the absence of

light “would easily facilitate [drug] crimes” or create

“a waiting spot for the commission of some other

crime.” Johnson, 622 S.W.3d at 387-88; see also

Johnson, 622 S.W.3d at 391 (Walker, J., dissenting)

(“It seems to me that . . . the Court has to resort to

stereotypes about light and dark, day and night, good

and evil.”).

These decisions reveal that despite this Court’s

holdings in Brown, Wardlow, and Buie, courts are

utilizing

trivial

facts

uphold

officers’

unconstitutional searches and seizures based on the

People’s presence in certain areas alone. Here, Texas’

highest criminal court did so by (1) adopting the trial

court’s unsubstantiated finding that the park-andride had a “significant association with criminal

activity” and (2) reverse engineering a new test for

reasonable suspicion based thereon. Without

clarification from this Court, people in such areas will

continue to have diminished rights under the Fourth

was that there were three men in an unlit car in the

parking lot of a housing complex and that they had not

chosen to park in one of the spots closer to the building.”);

Commw. v. Helme, 503 N.E.2d 1287, 1289-90 (Mass. 1987)

(“The use of interior lights in an automobile raises no

reasonable suspicion of criminal activity nor indicates

potentially hazardous conditions confronting the occupants

of the vehicle.”); cf. People v. Freeman, 320 N.W.2d 878, 880

(Mich. 1982) (illegal stop because “(1) an idling, occupied

vehicle with its parking lights on, parked in an otherwise

darkened, deserted parking lot, (2) near a darkened house,

(3) at 12:30 a.m.” did not provide a sufficient basis for the

officer’s suspicion that criminal activity might be afoot).

Amendment despite the absence of any constitutional

text authorizing such diminution.

ii. The First Circuit’s framework

concerning the designation of “high

crime areas”

The First Circuit appears to be a minority

jurisdiction because it has formulated a three-part

framework to determine whether an area is “high

crime”. See U.S. v. Wright, 485 F.3d 45, 53-54 (1st Cir.

2007).

In most cases, the relevant evidence for

this factual finding will include some

combination of the following: (1) the

nexus between the type of crime most

prevalent or common in the area and

the type of crime suspected in the

instant case, . . . (2) limited geographic

boundaries

the

“area”

“neighborhood” being evaluated, and

(3) temporal proximity between

evidence of heightened criminal

activity and the date of the stop or

search at issue . . . . Evidence on these

issues could include a mix of objective

data and the testimony of police

officers, describing their experiences in

the area.

Id. (internal citations omitted); see also U.S. v. Alvin,

701 F. App’x 151, 154 (3d Cir. 2017) (unpub.)

(“Ultimately, it was not just the high-crime area or the

hour, but also the relationship between what the

officers observed and the informant's knowledge—i.e.,

the temporal and geographical proximity—as well as

the number of persons in the area that ‘place[d] th[at]

case squarely on the constitutional side of the divide

[between reasonable and unreasonable suspicion].’”)

(citation omitted).36

Here, there is no nexus available because the

officer’s “maybe three or four” service calls over

several months reveal no evidence of any crime, much

less “the type of crime most prevalent or common in

the area.” See Johnson, 602 S.W.3d at 60.37 No

evidence tends to show that an occupied car (with or

without lights) was related to any type of crime in the

area, much less the type that was allegedly prevalent

at any relevant time. Similarly, there is no “temporal

Cf. U.S. v. Juvenile TK, 134 F.3d 899, 903 (8th Cir.

1998) (focusing in part on “temporal and geographic

proximity of the car to the scene of the crime”); State v.

Chisum, 200 A.3d 1279, 1289 (N.J. 2019) (no reasonable

suspicion where reputation for previous criminal activity

“is unconnected to the circumstances surrounding” the

complaint at issue).

“Officer Cox testified that in the months around the

time of the charged offense, he had gone to that Parking

Lot three of four times ‘[f]or calls of service.’ He did not

identify the nature of the service calls, nor did he say

whether he made an arrest during any of these calls.” See

also Johnson, 622 S.W.3d at 385 (“[A]s the court of appeals

pointed out, Sergeant Cox did not explicitly testify that his

calls to the park-and-ride were for those crimes or that he

made arrests during those calls.”); Johnson, 602 S.W.3d at

67-68 (Hassan, J., concurring) (“[T]here is no evidence that

anyone committed a crime during [Sergeant Cox’s] service

calls; instead, the reasonable inference is only that

someone called the police for some unidentified form of

assistance.”).

proximity” possible because there is no evidence of

criminal activity at any specific time, much less

evidence of “heightened criminal activity” at any time.

See Wright, 485 F.3d at 54.

Johnson respectfully asks this Court to either

adopt the First Circuit’s Wright framework or to

provide additional guidance that identifies the

necessary nexus(es) between areas with allegedly

sufficient levels of crime and the conduct of those

therein before Terry stops are constitutionally

permissible.

iii. The Second Circuit’s opinion that a

“high crime area” designation is not

substitute

for

analyzing

underlying testimony

The Second Circuit recognizes the danger at

issue.

After acknowledging, “the fact that the

encounter occurred late at night is a relatively weak

and generic factor,” it specifically warned that “the

general label ‘high crime area’ is not a substitute for

analysis of the underlying testimony.”

U.S. v.

Freeman, 735 F.3d 92, 101 (2d Cir. 2013) (no

reasonable suspicion where officer “gave no sense of

the length of time over which those incidents occurred

or whether the number of incidents was atypical . . .

little elaboration on the basis” for police treatment of

the area as “high crime” was provided); accord U.S. v.

Montero-Camargo, 208 F.3d 1122, 1138-39 & n.32 (9th

Cir. 2000) (en banc) (“[C]ourts should examine with

care the specific data underlying” the assertion that

an area is one in which “particular crimes occur with

unusual regularity.”), cert. denied, 531 U.S. 889

(2000); State v. Pineiro, 853 A.2d 887, 898 (N.J. 2004)

(“The words ‘high crime area’ should not be invoked

talismanically by police officers to justify a Terry stop

that would not pass constitutional muster in any other

location.”) (citations omitted).

Here, the Texas Court of Criminal Appeals

accepted the trial court’s characterization of the area

as “significantly associated with criminal activity”

without recognizing that “maybe three or four”38

service calls over several months to a 24-hour business

do not tend to prove any fact relevant to a reasonable

suspicion analysis; in fact, it fails to even imply

officers had any suspicion anyone was engaged in any

type of crime at any specific or relevant time. See

Johnson, 622 S.W.3d at 385; Johnson, 602 S.W.3d at

59; id. at 67-68 (Hassan, J., concurring). The Texas

Court of Criminal Appeals therefore substituted an

unsubstantiated characterization of the area for the

requisite analysis of specific and articulable facts

justifying a warrantless seizure. Compare Terry v.

Ohio, 392 U.S. 1, 21 n. 18 (1968) (“This demand for

specificity in the information upon which police action

is predicated is the central teaching of this Court’s

Fourth Amendment jurisprudence.”) (citations

omitted) with Johnson, 622 S.W.3d at 382 (trial court

concluded the specific and articulable fact at issue was

Johnson’s “presence in the park and ride, a high crime

area, after the park and ride’s normal operating

hours.”). This Court should grant review to determine

whether such substitution is reasonable and

authorized under the Fourth Amendment.

Emphasis added.

iv. Circuits relying upon

quanta of alleged crime

sufficient

Several United States courts of appeals have

designated areas to be sufficiently associated with

criminal activity to justify Terry stops of those therein

based upon a sufficiently alleged quantum of crime.

See, e.g., Wright, 485 F.3d at 49 (where the “high crime

area” finding was supported by weekly and biweekly

reports, biweekly meetings analyzing statistics, and

where the defendant was provided detailed discovery

supporting the finding); U.S. v. Evans, 994 F.2d 317,

321 (7th Cir. 1993) (high crime area finding supported

by daily reports of gunfire, auto theft, and other

crimes proven by entries from a police logbook

detailing citizen complaints at a particular residential

duplex); U.S. v. Thornton, 197 F.3d 241, 248 (7th Cir.

1999) (“In less than one year there had been some

2,500 drug arrests in the five-block- by-five-block area

where the incident occurred.”);39 contra U.S. v.

Bonner, 363 F.3d 213, 216 (3d Cir. 2004) (district court

did not err when it found an area was not “high crime”

based on an examination of logbooks over a three-year

period yielding an average of 1.3 arrests per week).

This lack of clarity concerning constitutional

standards for identifying such areas is further

evidenced via holdings based on generalized quanta of

alleged crime. See U.S. v. Flowers, 6 F.4th 651, 654,

657 (5th Cir. July 30, 2021) (examining a warrantless

arrest in “an area of Jackson, around Capitol Street

Cf. U.S. v. Rickus, 737 F.2d 360, 362 (3d Cir. 1984)

(where officers were aware that the area had recently been

victimized by as many as twelve unsolved nighttime

burglaries).

and Road of Remembrance, where ‘recent violent

crime and burglaries’ had occurred” and utilizing said

fact to conclude said area had a “pervasive and

continuous criminal pattern”); see also U.S. v. Trullo,

809 F.2d 108, 111 (1st Cir. 1987) (stop performed in

Boston’s “Combat Zone” was “unquestionably” in “a

high crime area and had “been the scene of many

stabbings and shootings, often fatal.”); U.S. v. Gomez,

633 F.2d 999, 1005 (2d Cir. 1980) (“The car was halted

in an area of high narcotics activity—a factor

appropriate in considering whether an investigatory

stop was proper.”), cert. denied, 450 U.S. 994 (1981).40

The Texas Court of Criminal Appeals’ opinion

that “maybe three or four” generalized “service calls”

to an area can justify warrantless seizures and

searches diminishes the Fourth Amendment rights of

those therein. See Flowers, 6 F.4th at 662 (5th Cir.

July 30, 2021) (Elrod, J., dissenting) (“For citizens to

become suspects, they must do more than merely exist

in an ‘unsavory’ neighborhood.”). This holding from

Texas’ highest criminal court is contrary to United

States courts of appeals’ opinions that have explicitly

See also U.S. v. Four Million, Two Hundred FiftyFive Thousand, 762 F.2d 895, 904 (11th Cir. 1985) (court

could observe as a “common experience consideration” that

Miami had become a center for drug smuggling and money

laundering), cert. denied, 474 U.S. 1056 (1985); U.S. v.

Goodrich, 450 F.3d 552, 553 (3d Cir. 2006) (concluding an

area was “high crime” where police “had responded to ten

to fifteen reported thefts of anhydrous ammonia” from the

tanks at issue preceding defendant’s arrest); contra

Freeman, 735 F.3d at 101 (officer “recited some of the

crimes that took place in the area, but gave no sense of the

length of time over which those incidents occurred or

whether the number of incidents was atypical.”).

depended upon substantially higher (or generalized)

numbers of alleged crimes, neither of which is present

herein. See Johnson, 602 S.W.3d at 60 (“Officer Cox

also testified that he has had to make some calls for

service to the Parking Lot for criminal activity. He did

not state how many times he made these calls or for

what criminal activity.”).

v. Circuits

nexuses

relying

upon

sufficient

United States courts of appeals have also found

areas are sufficiently associated with criminal activity

to justify Terry stops when there was a sufficient

nexus between previous criminal acts and the

circumstances creating reasonable suspicion. See

Wright, 485 F.3d at 53-54 (discussing the nexus

requirement); U.S. v. Rickus, 737 F.2d 360, 365 (3d

Cir. 1984) (reasonable suspicion to stop vehicle

aimlessly and slowly driving through area with

multiple recent burglaries); U.S. v. Ogden, 703 F.2d

629, 633 (1st Cir. 1983) (four out-of-state tractor

trailer trucks at deep-water docking facility at night

in area of Maine coast where authorities knew that

drug smuggling was going on and “there was no

legitimate reason for the trucks being there”).

Sergeant Cox’s testimony revealed that in his ten

years of nightly patrols, he was aware of burglaries,

lewdness, and illicit drugs at the park-and-ride. App.,

infra, 70a-71a. However, Sergeant Cox failed to

explain how sitting in a car with the lights off was

related to any criminal activity. See, e.g., U.S. v.

Williams, 808 F.3d 238, 249 (4th Cir. 2015) (“This

record does not make an evidentiary connection

between nocturnal travel and drug trafficking . . . .

Absent such a connection, that the traffic stop of [the

defendant] occurred at about 12:37 a.m. does not

contribute to a reasonable, articulable suspicion . . .”).

Therefore, the Texas Court of Criminal Appeals’

holding is also contrary to United States courts of

appeals that require a nexus between previous

criminal acts and the suspected criminal act at issue.

b. STATE COURTS OF LAST RESORT

i. Random stops are unconstitutional

In State v. Legg, the Supreme Court of Appeals

of West Virginia held that there was no reasonable

suspicion where conservation officers “patrolled what

they believed to be a ‘high crime’ area, and randomly

stopped vehicles to determine if the occupants of the

vehicles were committing any crimes.” 536 S.E.2d 110,

117 (W. Va. 2000). Compare ibid. with App., infra, 80a

(counsel for the State: “So, basically, Judge . . . in this

case [Sergeant Cox] was simply stopping by a vehicle

that was parked in a suspicious location to find out

what was going on.”). The court concluded, “[s]uch

unbridled use of authority by a law enforcement

officer is precisely what the State and Federal

Constitutions intended to prohibit.” Legg, 536 S.E.2d

at 117; see also State v. Anderson, 783 S.E.2d 51, 55

(S.C. 2016) (“Certainly being in a high crime area does

not provide police officers carte blanche to stop any

person they meet on the street.”); State v. Weyand, 399

P.3d 530, 536 (Wash. 2017) (“Police cannot justify a

suspicion of criminal conduct based only on a person’s

location in a high crime area.”). The Texas Court of

Criminal Appeals’ holding that Johnson could be

seized because he was sitting and moving in an

unilluminated parked car in an area with an

unquantified “association with criminal activity”

conflicts with numerous other state courts of last

resort concerning an important federal question

arising under the Fourth Amendment.

ii. Courts relying upon

quanta of alleged crime

sufficient

Some state courts of last resort that conclude an

area is sufficiently associated with criminal activity to

justify Terry stops appear to do so based on officers’

representations concerning the number of crimes that

allegedly occurred therein. See, e.g., State v. Hamdan,

665 N.W.2d 785, 791 (Wis. 2003) (finding a “high

crime neighborhood” based upon a specific number of

crimes, during a limited time period, in a specific

area). Other states rely on an officer’s personal

arrests. See, e.g., Commw. v. Santaliz, 596 N.E.2d

337, 338 (Mass. 1992) (officer involved in 50 drugrelated arrests in the neighborhood over an

undisclosed period of time); People v. Aldridge, 674

P.2d 240, 241 (Cal. 1984) (officer “made more than two

hundred arrests in the area”). Similar to the federal

courts, some state courts of last resort also allow

generalizations concerning the quantum of alleged

crime when they are sufficiently connected to other

relevant facts. See, e.g., Woody v. State, 765 A.2d

1257, 1259-60 (Del. 2001) (area linked with drug

dealing and officers noticed bulge in clothing of man

who fled upon seeing them); State v. Richardson, 501

N.W.2d 495, 496 (Iowa 1993) (officer had reasonable

suspicion to stop automobile parked in the middle of

night near chain link fence in a nonresidential

neighborhood that had been frequently burglarized);

but see State v. Dean, 645 A.2d 634, 636 (Me. 1994)

(reasonable suspicion based upon vague “high crime”

finding and defendant’s presence in the area).

The Texas Court of Criminal Appeals’ opinion

conflicts with the foregoing authorities because

Sergeant Cox’s “maybe three or four” service calls

reveal no quantum of crime at any specific or relevant

time. Compare Johnson, 602 S.W.3d at 60 (“Officer

Cox never specified how many of these criminal

offenses had occurred there.”) with TEX. CONST. art. V,

§ 6(a) (factual conclusivity clause); see also Johnson,

602 S.W.2d at 67-68 (Hassan, J., concurring).41

iii. Courts relying

proximity

upon

temporal

Some state courts of last resort further analyze

the amount of alleged crime within a relevant time

period. See, e.g., Woody, 765 A.2d at 1260 (arrest

made just two weeks earlier); State v. Donnell, 239

N.W.2d 575, 577 (Iowa 1976) (hundreds of break-ins

during the past year). The Texas Court of Criminal

Cf. N. Mariana Islands v. Crisostomo, No. 2013SCC-0008-CRM, 2014 MP 18, 2014 WL 7072149, at *3 (N.

Mar. I. Dec. 12, 2014) (“In each instance, the testimony

relied on the area's reputation. The officers never said how

many arrests took place at the beach, how many of those

arrests led to convictions, or how those rates differed from

other areas. In other words, they never provided the court

the data necessary to independently review whether the

beach was, in fact, a high-crime area. In sum, it was an

error to label the beach as a high-crime area solely on

generalized assertions that an area was well-known for

certain illegal activities.”).

Appeals’ opinion is also contrary to these states

because there is no evidence of the last time any crime

occurred at the park-and-ride. See Johnson, 602

S.W.3d at 67-68 (Hassan, J., concurring); see also

Bailey v. State, 987 A.2d 72, 93 (Md. 2010) (“[T]he

testimony about the high drug crime area did not

provide any specific information . . . Rather, the

testimony indicated that there were general

complaints about criminal or drug activity in the area,

of unknown frequency, made at unknown points in

time.”).

iv. Courts relying upon facts known to

the officer

Other state courts of last resort have concluded

there was an absence of reasonable suspicion in “high

crime areas” even when the officers had personal

knowledge of specific facts that substantially exceeded

those herein.

See id. at 77–78 (no reasonable

suspicion where defendant was standing in a “high

crime drug area” despite the odor of ether emanating

from his person and his failure to respond to police

questions); State v. Larson, 611 P.2d 771, 775 (Wash.

1980) (no reasonable suspicion where a car was

parked contrary to local ordinance in a “high crime

area” at 3 a.m. and officers knew about recent

burglaries; “it appears that she was detained because

of her presence in a particular location, even though

she had a lawful right to be there, rather than because

of any suspicious conduct.”); see also Johnson, 602

S.W.3d at 59 (quoting Martinez v. State, 348 S.W.3d

919, 923 (Tex. Crim. App. 2011)).

The Texas Court of Criminal Appeals approved

Sergeant Cox’s Terry stop despite the generalized

information presented via (1) “maybe three or four”

service calls to a 24-hour park-and-ride “in the months

around August 28th of 2016”, (2) nightly patrols

revealing three forms of crime over 10 years, and (3)

Johnson’s presence and movement in a vehicle with its

lights off. “In essence, [Johnson] was suspicious

because he was not doing what ‘one might expect’ of

an innocent person.” Johnson, 622 S.W.3d at 390

(Walker, J., dissenting); see also Moberly v. Commw.,

551 S.W.3d 26, 32 (Ky. 2018) (“The fact is that many

honest, decent, law-abiding citizens live in highcrime areas under similar circumstances and would

behave the same way . . . . [The arresting officer]

articulated nothing about Appellant's behaviors,

individually or collectively, to connect him to criminal

behavior beyond what may be ordinarily expected of a

driver stopped for a traffic violation.”); People v.

Freeman, 320 N.W.2d 878, 881 (Mich. 1982) (“[T]he

record in this case is devoid of any reference to other

specific facts which would cast a suspicious light upon

the presence of Freeman's vehicle in the parking

lot.”).42 The Texas Court of Criminal Appeals’ new

Cf. Flowers, 6 F.4th at 662 (Elrod, J., dissenting)

(“As my able colleague once put it, ‘it defies reason to base

a justification for a search upon actions that any similarlysituated person would have taken.’”) (quoting U.S. v.

Rideau, 969 F.2d 1572, 1581 (5th Cir. 1992) (en banc)

(Smith, J., dissenting)); People v. Thomas, 660 P.2d 1272,

1276 n.2 (Colo. 1983) (“Considering the universal character

of the suspected activity . . . any conclusion to be drawn

from that activity alone would not be the type of reasonable

inference from specific and articulable facts that Terry and

its progeny require, regardless of the officer's opinion of the

area as a ‘high crime area.’”) (emphasis in the original);

People v. Bower, 597 P.2d 115, 119 (Cal. 1979) (rejecting

threshold for Terry stops will be mercilessly

replicated, thereby exposing countless people to

diminished constitutional protections based on

subjective expectations of specific environments that

are derived from subjective experiences and

prejudices. See, e.g., Hill v. State, 2021 WL 3411864,

at *3 (Tex. App.—Austin Aug. 5, 2021, no pet.) (“A

setting that ‘ha[s] a significant association with

criminal activity’ can support reasonable suspicion[.]”)

(quoting Johnson, 622 S.W.3d at 387).

The Texas Court of Criminal Appeals’ holding

that the stop at issue was supported by reasonable

suspicion despite the absence of any specific or

articulable facts linking Johnson (or anyone) to any

type of crime committed at any specific or relevant

time appears contrary to every state court of last

resort that has addressed this issue. This material

divergence warrants review and presents an

opportunity to identify a uniform set of guiding

principles with respect to Terry stops in areas with

constitutionally significant levels of crime.

“that a location's crime rate transforms otherwise innocentappearing circumstances into circumstances justifying the

seizure of an individual”) (citations omitted); Margaret

Raymond, Down on the Corner, Out in the Street:

Considering the Character of the Neighborhood in

Evaluating Reasonable Suspicion, 60 Ohio St. L.J. 99, 143

(1999) (arguing that “the character of the neighborhood for

criminality should be considered only where the behavior

that is relied upon to establish reasonable suspicion is

behavior not commonly observed among law-abiding

persons at the time and place observed.”).

II.

Unanswered important federal question:

how should courts determine whether

areas are sufficiently associated with

criminal

activity

warrant

the

suspension

Fourth

Amendment

protections therein?

“The concept of a high-crime area is easy

enough to imagine, but lacks a generally accepted

definition.” N. Mariana Islands v. Crisostomo, No.

2013-SCC-0008-CRM, 2014 WL 7072149, at *2 (N.

Mar. I. Dec. 12, 2014);43 see also People v. Bower, 597

P.2d 115, 120 n.8 (Cal. 1979) (“[T]here is as yet no

consistent or predictable agreement as to what ‘rate’

of crime is a ‘high’ one for this purpose.”); State v.

Genous, 961 N.W.2d 41, 47 (Wis. June 4, 2021) (Dallet,

J., dissenting) (“Without a generally accepted

understanding of what ‘high-crime area’ means, its

definition (and its boundaries) will shift from court to

court.”) (citing Andrew G. Ferguson, Crime Mapping

and the Fourth Amendment, 63 Hastings L.J. 179,

203-05 (2011)); ibid. (“[I]t is unclear what the term

‘high-crime area’ actually means, making it difficult

for circuit courts to know how much weight to give a

location's characteristics in any particular analysis.

We should therefore adopt objective criteria for

evaluating an assertion that an area is high in

Citing Andrew Guthrie Ferguson & Damien

Bernache, The “High–Crime Area” Question: Requiring

Verifiable and Quantifiable Evidence for Fourth

Amendment Reasonable Suspicion Analysis, 57 Am. U. L.

Rev. 1587, 1590 (2008) (“The Supreme Court has never

provided a definition. Lower courts are equally

imprecise.”).

crime.”).44

The complications arising from this

absence of a uniform definition are compounded by the

absence of guidance as to whether lower courts should

consider (1) the number of arrests performed by

officers in a particular area, (2) the relative number of

convictions based on those arrests, (3) the number of

criminal complaints in an area, (4) indictments, (5)

911 calls, or (6) some other metric (or combinations

thereof).

Worse still, relying upon arrests alone (without

evidence of relevant convictions) to impose such

designations improperly presumes that those who

were arrested are guilty contrary to a long-treasured

Further, “giving substantial

presumptio juris.45

weight to the perceived crime rate of an area [based

on arrests alone] may constitute a self-fulfilling

prophecy.” Bower, 597 P.2d at 120 n.8 (citation

omitted); see also Remers v. Superior Court, 470 P.2d

Cf. State v. Morgan, 539 N.W.2d 887, 891 (Wis.

1995) (quoting the trial court judge: “[I]f the state wants

the Court to rely on a high-crime area theory in justifying

a Terry pat down, there has to be a clear and specific record

made.”); Bonner, 363 F.3d at 218 (Smith, J., concurring) (“I

write separately only to highlight an issue implicated in

the District Court’s fact-finding which we have not been

required to address: whether under the flight ‘plus’

analysis of Wardlow . . . the government is required to

prove the existence of objective criteria for what constitutes

a high crime area and that the stop occurred in such an

area, or rather that the government is required to prove

that officers effecting the stop had a reasonable articulable

basis to believe that they were in a ‘high-crime area’.”).

See Coffin v. U.S., 156 U.S. 432, 460 (1895); see also

Nelson v. Colorado, 137 S. Ct. 1249, 1252 (2017) (“Absent

conviction of a crime, one is presumed innocent.”).

11, 16 (Cal. 1970) (“[P]olice officers cannot utilize

invalid arrests as a basis for estimating a particular

location’s crime rate and then utilize the resulting

estimate in determining the reasonableness of an

arrest and search in that location.”) (citation omitted).

Relatedly, labeling an area as “high crime”

“raises special concerns of racial, ethnic, and

socioeconomic profiling.” U.S. v. Caruthers, 458 F.3d

459, 467-68 (6th Cir. 2006) (citing Montero-Camargo,

208 F.3d at 1138); David A. Harris, Factors for

Reasonable Suspicion: When Black and Poor Means

Stopped and Frisked, 69 Ind. L.J. 659 (1994));

Montero-Camargo, 208 F.3d at 1138 (“We must be

particularly careful to ensure that a ‘high crime’ area

factor is not used with respect to entire neighborhoods

or communities in which members of minority groups

regularly go about their daily business[.]”); see also

State v. Johnson, 861 S.E.2d 474, 489-90 (N.C. Aug.

13, 2021) (Earls, J., dissenting).46 This “high crime

“I share the concern expressed by many

courts that encouraging reliance on

undefined, amorphous signifiers like ‘high

crime area’ as a proxy for suspected

criminal

activity

risks

subjecting

identifiable racial minority communities to

disproportionate, invasive, and unlawful

searches . . . There is research

demonstrating that the reported rate of

crime in a particular geographic area is

driven not only by the actual incidence of

criminal conduct in that area, but also by

law enforcement's choices regarding where

and how to conduct enforcement activities.

See Sandra G. Mayson, Bias in, Bias Out,

128 Yale L.J. 2218, 2253 (2019) (‘Blacks

area” justification is frequently utilized to judicially

rubber

stamp

warrantless

(and

therefore

presumptively unreasonable) searches and seizures.

Compare Flowers, 6 F.4th at 658 (“If this course of

conduct is constitutionally impermissible, then it is

difficult to see how any active policing can take place

in communities endangered and impoverished by high

crime rates.”) with id. at 662 (Elrod, J., dissenting)

(“[W]e must ensure that Americans living in

disadvantaged or high crime communities still have

Fourth Amendment protections.”); see also L. Song

Richardson, Cognitive Bias, Police Character, and the

Fourth Amendment, 44 Ariz. St. L.J. 267, 279 (2012)

(“The conclusion in legal opinions, among scholars,

are more likely than others to be arrested

in almost every city for almost every type

of crime. Nationwide, black people are

arrested at higher rates for crimes as

serious as murder and assault, and as

minor as loitering and marijuana

possession.’); see also K. Babe Howell,

Prosecutorial Discretion and the Duty to

Seek Justice in an Overburdened Criminal

Justice System, 27 Geo. J. Legal Ethics

285, 298 (2014) (‘It is the police who choose

what areas to target, who respond to calls,

and who make the initial decision whether

to make an arrest or issue an informal

warning when minor misconduct occurs.’).

My concern is especially acute in this case

because Officer Whitley ‘did not observe

[defendant] engage in any type of behavior

that is consistent with [the criminal]

activity’ thought to occur with greater

frequency in the area where he was

apprehended.”

and on the street is the same: a high-crime area

designation almost always shifts the analytical

balance toward a finding of reasonable suspicion.”);

Margaret Raymond, Down on the Corner, Out in the

Street: Considering the Character of the Neighborhood

in Evaluating Reasonable Suspicion, 60 Ohio St. L.J.

99, 99 (1999) (high crime area designations have

“become a significant and frequently invoked basis on

which to argue that highly ambiguous conduct is

sufficiently suspicious to justify a stop.”).47

As summarized by one court:

Allowing such a finding [of a “high

crime

area”]

solely

through

unsubstantiated testimony (no matter

how confidently stated) would give

police the power to transform “any area

into a high crime area based on their

unadorned personal experiences.” . . .

Yet those experiences can exaggerate

the criminality of an area because

“[j]ust as a man with a hammer sees

every problem as a nail, so a man with

a badge may see every corner of his

beat as a high crime area.” . . . This is

natural—even

expected—because

police “are trained to detect criminal

activity”; they view “the world with

suspicious eyes.”

Cf. N. Mariana Islands, 2014 WL 7072149, at *2

(“[I]ndeed, the mere mention that a place is a high-crime

area ‘almost always shifts the analytical balance toward a

finding of reasonable suspicion.’”) (quoting Ferguson, 57

Am. U. L. Rev. at 1590).

N. Mariana Islands, 2014 WL 7072149, at *2 (quoting

Montero–Camargo, 208 F.3d at 1143 (Kozinski, J.,

concurring)); see also Montero–Camargo, 208 F.3d at

1143 (Kozinski, J., concurring) (“But to rely on every

cop’s repertoire of war stories to determine what is a

‘high-crime area’—and on that basis to treat otherwise

innocuous behavior as grounds for reasonable

suspicion—strikes me as an invitation to trouble.”).

These are important federal questions because

many people live, work in, visit, travel through, park

in, or conduct commerce in areas that are foreseeably

designated as sufficiently “associated with criminal

activity” to suspend full Fourth Amendment

protections. See Larson, 611 P.2d at 775 (“It is beyond

dispute that many members of our society live, work,

and spend their waking hours in high crime areas, a

description that can be applied to parts of many of our

cities. That does not automatically make those

individuals

proper

subjects

for

criminal

investigation.”); In re Tony C., 582 P.2d 957, 959 (Cal.

1978) (“Yet the interest at stake is far from

insignificant: it is the right of every person to enjoy

the use of public streets, buildings, parks, and other

conveniences without unwarranted interference or

harassment by agents of the law.”). This two-tiered

system of constitutional rights has “no place in a

constitutional democracy.” State v. Edmonds, 145

A.3d 861, 888-89 (Conn. 2016) (Robinson, J.,

concurring) (citation omitted); see also Johnson, 622

S.W.3d at 391 (Walker, J., dissenting) (“If such a

suspicion were a reasonable inference from standing

on a street corner in this neighborhood, all citizens

passing through victimized neighborhoods would be

suspects, and pedestrian checkpoints could be set up

to monitor their comings and goings. Practices of this

kind are repugnant to a free society.”) (quoting

Johnson, 602 S.W.3d at 68 (Hassan, J., concurring)

(quoting Ceniceros v. State, 551 S.W.2d 50, 55 (Tex.

Crim. App. 1977))).

This also constitutes an important federal

question because (1) “[g]enerally speaking, arguments

in the Fourth Amendment context predicated upon

allegations that conduct was observed in a ‘high-crime

area’ should be received with ‘circumspection’”;48 (2)

“in relying on the testifying officer for the opinion

about an area[,] courts are shifting the responsibility

to police to make what is a legal conclusion”;49 and (3)

this shift materially diminishes government burdens

concerning presumptively unreasonable warrantless

searches and seizures despite the absence of any

language in the Fourth Amendment authorizing

same. See generally Schneckloth v. Bustamonte, 412

U.S. 218, 219 (1973) (“[A] search conducted without a

warrant issued upon probable cause is ‘per se

unreasonable’ . . .”); Welsh v. Wisconsin, 466 U.S. 740,

748 (1984) (“[P]olice bear a heavy burden when

attempting to demonstrate an urgent need that might

justify warrantless searches or arrests.”). “High crime

area” justifications for warrantless seizures are “far

from insignificant” and “easily subject to abuse.” In re

Tony C., 582 P.2d at 959. Characterizing an area as

sufficiently associated with criminal activity to

suspend Fourth Amendment protections after “maybe

three or four” generalized service calls over several

State v. Martinez, 457 P.3d 254, 261-62 (N.M. 2020)

(citing 4 Wayne R. LaFave, Search and Seizure: A Treatise

on the Fourth Amendment, § 9.5(g) at 644-45 (5th ed.

2012) (citing Ferguson, 57 Am. U. L. Rev. at 1593)).

Ferguson, 57 Am. U. L. Rev. at 1624.

months would erase any meaningful distinction

between such areas and any other area. See State v.

Fisher, 714 N.W.2d 495, 504 (Wis. 2006).50

“The needs of law enforcement stand in

constant tension with the Constitution’s protections of

the individual against certain exercises of official

power. It is precisely the predictability of these

pressures that counsels a resolute loyalty to

constitutional safeguards.” Almeida-Sanchez v. U.S.,

413 U.S. 266, 273 (1973). “How far we have come.”

Flowers, 6 F.4th at 658 (Elrod, J., dissenting).

CONCLUSION

The Court should grant the Petition.

See also Johnson, 602 S.W.2d at 68 (Hassan, J.,

concurring) (“[T]hree to four service calls over the course of

several months to an establishment that is perpetually

open does not constitute a ‘high crime area’; concluding

otherwise would obliterate the significant of the Supreme

Court’s test, effectively convert every neighborhood in

every sizable Texas city to a high crime area, and

undermine the reasonableness component of Fourth

Amendment jurisprudence.”) (citing Klare, 76 S.W.3d at 75

(citing Brown, 443 U.S. at 99)); Bower, 597 P.2d at 120 n.8

(“While it may be valid to say that one burglary a year in a

neighborhood is too many, as a practical matter attaching

a high crime label under such circumstances would do little

to differentiate one location from another in any

meaningful way.”).

Respectfully submitted,

WILLIAM PIERATT DEMOND

DEMOND LAW, PLLC

1520 Rutland St.

Houston, TX 77008

(713) 701-5240

william@demondlaw.com

Counsel of Record for Petitioner

Jacob Matthew Johnson

JONATHAN D. LANDERS

917 Franklin St., Suite 300

Houston, TX 77002

(713) 685-5000

Jlanders.law@gmail.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.