Petition for Writ of Certiorari — Pizarro Thomas, Petitioner v. United States

Supreme Court briefNov 22, 2021

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No. _____

____________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

_________________________

PIZARRO THOMAS,

Petitioner

UNITED STATES OF AMERICA,

Respondent.

_________________

On Petition for a Writ of Certiorari

To The United States Court of Appeals

For the Fifth Circuit

____________________________

PETITION FOR A WRIT OF CERTIORARI

____________________________

Robert Clary

Counsel of Record

405 Windward Dr.

Murphy, Texas 75094

(972) 757-5690

rclary662@gmail.com

QUESTIONS PRESENTED

Petitioner moved to suppress evidence seized during a purported Terry stop.

His motion was denied. Thereafter, he was convicted of being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1). The Questions Presented are as

follows:

QUESTION 1: WAS THERE “REASONABLE SUSPICION” JUSTIFYING

PETITIONER’S STOP AND FRISK UNDER TERRY WHEN THE

OFFICERS EFFECTING THE “STOP” DID NOT OBSERVE PETITIONER

ENGAGED IN ANY CRIMINAL CONDUCT, BUT DID SEE HIM

SOCIALIZING AMONG A GROUP OF PEOPLE WHILE STANDING IN

CLOSE PROXIMITY TO A VEHICLE OCCUPIED BY OTHERS THAT

HAD BEEN STOLEN TEN DAYS’ EARLIER?

QUESTION 2: WAS PETITIONER CONSTITUTIONALLY SEIZED AND

FRISKED UNDER TERRY v. OHIO WHEN THE OFFICERS EFFECTING

PETITIONER’S SEIZURE KNEW BEFORE THEY SEIZED HIM THAT

POLICE DEPARTMENT POLICY PROHIBITED THE OFFICERS FROM

QUESTIONING PETITIONER ABOUT HIS INVOLVEMENT IN THE

TEN-DAY OLD CRIMINAL OFFENSE THAT PROMPTED HIS

SEIZURE?

QUESTION 3: IS A WARRANTLESS SEIZURE CONSTITUTIONAL

UNDER TERRY v. OHIO WHERE, WITHOUT AN INVESTIGATORY

PURPOSE, THE POLICE ORDER AN INDIVIDUAL AT GUNPOINT TO

LIE FACE-DOWN ON A PAVED PARKING LOT AND THEN HANDCUFF

THAT INDIVIDUAL BEHIND HIS BACK?

LIST OF PARTIES BELOW

The parties in the proceedings below were Petitioner, Pizarro Thomas and

the United States.

Petitioner was the appellant in the court below; Respondent United States

was the appellee in the court below.

LIST OF DIRECTLY RELATED PROCEEDINGS

The following proceedings are directly related to the case in this Court:

1. United States Court of Appeals for the Fifth Circuit:

United States v. Pizarro Thomas, Case No. 20-10757 (5th Cir. May 17,

2021) (reported at 997 F.3d 603), reh’g denied (5th Cir. June 25,

2021).

2. United States District Court for the Northern District of Texas:

United States v. Pizarro Thomas, 3:18-cr-00428-N (N.D. Tex. Judgment entered on 5/17/2021).

3. United States District Court for the Northern District of Texas:

United States v. Pizarro Thomas, 3:18-cr-00428-N (N.D. Tex. –

Motion to Suppress Denied On February 4, 2020).

TABLE OF CONTENTS

QUESTIONS PRESENTED…………………………………………….

LIST OF PARTIES BELOW……………………………………………

LIST OF DIRECTLY RELATED PROCEEDINGS……………………

TABLE OF AUTHORITIES……………………………………………

CITATION OF REPORTS OF ORDERS

AND OPINIONS BELOW………………………………………………

STATEMENT OF JURISDICTION…………………………………….

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THE CASE………………………………

STATEMENT OF THE CASE………………………………………….

REASONS FOR ALLOWING THE WRIT……………………………..

THERE WERE NO INDIVIDUALIZED AND

PARTICULARIZED FACTS TYING PETITIONER

TO THE TEN-DAY OLD ROBBERY……………………

PETITIONER’S ALLEGED TERRY SEIZURE WAS

NOT FOR THE PURPOSE OF INVESTIGATING

HIS SUSPECTED INVOLVEMENT IN A CRIMINAL

OFFENSE …………………………………………………

THE COURT SHOULD TAKE THIS CASE TO RESOLVE

WHAT FACTS ARE “AVAILABLE” TO INFORM THE

“REASONABLE SUSPICION” OF OFFICERS WHO RELY

ON TERRY TO SEIZE AN INDIVIDUAL IN CONNECTION

WITH A COMPLETED OFFENSE………………………… 27

CONCLUSION…………………………………………………………….. 30

iii

APPENDIX:

Opinion of the United States Court of Appeals For

The Fifth Circuit in United States v. Thomas, Case No. 20-10757 …. Pet. Appx. A

Order of the United States Court of Appeals For The

Fifth Circuit Denying Petitioner’s Petition for Rehearing…………… Pet. Appx. B

Amended Final Judgment of the United States District Court for the Northern

District of Texas Entered on July 22, 2020………………………….. Pet. Appx. C

TABLE OF AUTHORITIES

Cases:

Page(s)

Carpenter v. United States,

138 S.Ct. 2206, 2221 (2018)…………………………………….

Carter v. State,

143 Md. App. 670, 795 A.2d 790 (Md. App. 2002)……………..

Commonwealth v. Grahame,

7 A.3d 810 (Pa. 2010)……………………………………………

Florida v. Royer,

460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)…………………

Illinois v. Wardlow,

528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)……………… 17

Kansas v. Glover,

140 S. Ct. 1183, 206 L.Ed.2d 412 (2020)…………………………… 16

Maryland v. Pringle,

540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003)……………… 19-22

Michigan v. Summers,

452 U.S. 692 (1981)…………………………………………………. 23

Navarette v. California,

572 U.S. 393, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014)…………….. 28

People v. Elliot,

732 N.E.2d 30, 247 Ill. Dec. 314 (Ill. App. 2000)…………………… 17

Rehaif v. United States,

131 S.Ct. 2191 (2019)……………………………………………….. 12

Reid v. Georgia,

448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980)……………… 15

State v. Armenta,

134 Wn.2d 1, 948 P.2d 1280 (Wash. 1997)……………………….

State v. Diede,

795 N.W.2d 836 (Minn. 2011) ……………………………………

State v. Lewis,

333 Conn. 543, 217 A.3d 576 (Conn. 2019) ………………………

State v. Primous,

394 P.3d 646 (Ariz. 2017)………………………………………….

State v. Thompson,

93 Wn.2d 838, 613 P.2d 525 (Wash. 1980)………………………..

State v. Tyler,

830 N.W.2d 288, 293 (Iowa 2013) ………………………………...

State v. Weyand,

399 P.3d 530, 188 Wash.2d 804 (Wash. 2017)…………………….

Terry v. Ohio,

U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)…………………...

passim

United States v. Basher,

629 F.3d 1161 (9th Cir. 2011)……………………………………

United States v. Bey,

911 F.3d 139 (3rd Cir. 2018)…………………………………….

United States v. Black,

707 F.3d 531 (4th Cir. 2013)…………………………………….

United States v. Cortez,

449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)……………

United States v. Darrell,

945 F.3d 929 (5th Cir. 2019)…………………………………….

United States v. Di Re,

332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948)………………….

United States v. Hensley,

469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)………………

16, 28

United States v. Najera,

915 F.3d 997 (5th Cir. 2019) ………………………………………

United States v. Navedo,

694 F.3d 463 (3rd Cir. 2012)……………………………………….

United States v. Sharpe,

470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) ..…………..

U.S. v. Snow,

656 F.3d 498 (7th Cir. 2011) ………………………………………

United States v. Thomas,

997 F.3d 603 (5th Cir. 2021)……………………………………….... passim

United States v. Wilbourn,

799 F.3d 900, 909 (7th Cir. 2015)…………………………………..

Ybarra v. Illinois,

444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979)………………..

19, 20

Statutes:

18 U.S.C. § 922(g)(1)……………………………………………………

vii

1, 13, 11

PETITION FOR WRIT OF CERTIORARI

Following a bench trial, Petitioner Pizarro Thomas was found guilty of one

count of being a felon in possession of a firearm in violation of 18 U.S.C. §

922(g)(1). Thomas had previously moved to suppress the firearm and other

evidence found on his person, contending, inter alia, that (I) he was

unconstitutionally seized in violation of the Fourth Amendment’s proscription

against unreasonable searches and seizures; (ii) the evidence collected from his

person pursuant to a search conducted immediately following his seizure, including

the derringer pistol found in his pocket, was fruit of the illegal seizure and must be

suppressed; and (iii) the seizure in question was not an investigatory Terry stop,

but, instead, a de facto warrantless arrest carried out without probable cause. A

three-Judge panel of the Fifth Circuit, with Judge Costa dissenting, affirmed the

District Court’s ruling denying Petitioner’s motion to suppress.

Petitioner respectfully requests that the Court grant his Petition for a Writ of

Certiorari and review the Fifth Circuit’s ruling in this case.

CITATION OF REPORTS OF ORDERS AND OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fifth Circuit is

reported at United States v. Thomas, 997 F.3d 603 (5th Cir. 2021). Pet. Appx. A.

The Fifth Circuit’s Order denying Petitioner’s Petition for Rehearing was entered

on June 25, 2021 and is reflected in the docket sheet of Fifth Circuit Case No. 2010757. Pet. Appx. B.

The United States District Court for the Northern District of Texas assigned

case number 3:18-cr-00428-N to Petitioner’s case. The District Court’s opinions

and orders are unreported. There are two orders of the District Court that are

relevant:

(i)

The District Court’s order denying Petitioner’s motion to suppress

entered on February 4, 2020. The District Court’s minute entry reflecting

its order is at docket # 39;

(ii)

The District Court’s Amended Final Judgment entered on July 22, 2020

sentencing Petitioner to 30 months in prison, to be followed by three

years of supervised release is at docket # 68. Pet. Appx. C.

STATEMENT OF JURISDICTION

Petitioner seeks review of a final judgment of the United States Court of

Appeals for the Fifth Circuit entered on May 17, 2021. Pet. Appx. A. Petitioner

filed a timely petition for rehearing and a separate petition for rehearing en banc.

Both petitions were denied on June 25, 2021. Pet. Appx. B. In accordance with

the orders of this Court dated March 19, 2020 and July 19, 2021, Petitioner’s

deadline to file a Petition for a Writ of Certiorari is 150 days from the denial of

Petitioner’s Petition for Rehearing (i.e. November 22, 2021). In accordance with

those Orders, this Petition is timely filed.

This Court has jurisdiction to entertain this Petition for a Writ of Certiorari

pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THE CASE

The following Constitutional provisions and statutes are involved in this

case:

Fourth Amendment To The Constitution of the United States:

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.

18 U.S.C. § 922(g)(1):

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year…

to ship or transport in interstate or foreign commerce, or possess in

or affecting commerce, any firearm or ammunition; or to receive

any firearm or ammunition which has been shipped or transported

in interstate or foreign commerce.

18 U.S.C. § 924(a)(2):

(2) Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i),

(j), or (o) of section 922 shall be fined as provided in this title,

imprisoned not more than 10 years, or both.

STATEMENT OF THE CASE

On June 18, 2018, Dallas Police Department officers Alan Hovis and Benito

Garcia (collectively, the “Officers”) were on a “directed patrol” in the area of 6050

Melody Lane in Northeast Dallas, Texas. ROA.339.1 That is the address of the

“Tealwood on the Creek” apartment complex.

ROA.339. The Officers had

received a report at the very beginning of their shift that a car stolen in an

aggravated robbery committed ten days earlier “was parked in the apartment

complex.” ROA.281-283, 340.

The Officers entered the parking lot of the apartment complex in a marked

Dallas Police Department patrol car; the patrol car was traveling at approximately

ten miles an hour as it passed through the lot. ROA.296, 300. The Officers spotted

the stolen vehicle, confirmed that it was the correct license plate, “and ran it again

to make sure the hit was still there.” ROA.283-284. As they passed by the vehicle

Officer Hovis testified that the Officers “were not on a general patrol.” ROA.300. He

explained that they proceeded to 6050 Melody Lane for the specific purpose of locating a vehicle

that had been stolen in an aggravated robbery that had occurred ten days earlier. A fellow officer

had reported that there had been a “hit” on the stolen vehicle placing it at the Melody Lane

address from a database generated by an “ALPR camera”, a type of camera that automatically

scans license plates and “saves all of that in a database.” ROA.283.

in question, they noticed that it was occupied by two people, with four other

individuals standing outside in close proximity. ROA.284. At the suppression

hearing, Officer Hovis identified Pizarro Thomas as one of the four people

standing outside of the vehicle and conversing with those inside and outside the

car. ROA.288, 300-301.

After the Officers passed by the stolen vehicle and the group of people

standing around it, they made a U-turn and came back down the other side of the

alleyway. ROA.285.2 They stopped “behind” the stolen vehicle and exited with

their guns drawn.

ROA.285.3

The Officers ordered “everyone to get on the

ground.” ROA.286.4 They all immediately complied; no one fled. ROA.286, 302.

According to Officer Hovis, approximately “20 seconds” elapsed from the time the Officers

first passed the group standing around the stolen car and the time “we came back around it.”

ROA.304.

Defendant’s Exhibit 2 admitted at the suppression hearing shows Officer Garcia holding his

gun on the six seized individuals. ROA.298, ROA.336. The Officers’ patrol car is located on

the other side of the bushes that are shown in Exhibit 1. ROA.335.

At no time did any of the individuals allegedly “detained” by the Officers attempt to flee the

scene:

Q. I think your testimony was that all of these people

followed your command to get down on the ground.

A. Yes, sir.

Q. Okay. Nobody tried to flee.

A. Correct, sir.

Q. My client -- Mr. Thomas did not try to walk away or

otherwise remove himself from the area.

A. Correct, sir. ROA.302.

The Officers had four sets of handcuffs, “so we handcuffed four of them and

waited for cover to show up.” ROA.286.

The “Particularized Facts” Relating To Thomas:

Officer Hovis testified that the Officers did not have descriptions of the

individuals involved in the aggravated robbery in which the car was stolen. ROA.

298.5 The Officers saw two people inside the stolen car and four people, including

Petitioner, standing outside the car. They appeared to be engaged in conversation

amongst themselves, but Officer Hovis acknowledged that he did not hear any part

of “the conversation those individuals were having.” ROA.300-301. He also

acknowledged that he had never had an encounter with Petitioner before, and “did

not recognize him that day.” ROA.301. Petitioner obeyed the Officers’ command

to get on the ground; he did not attempt to flee and did not make any moves

“toward his pants” or otherwise do anything else to suggest that he posed a threat.

ROA.302.

Officer Hovis testified that he did not observe Thomas engage in any

criminal conduct as the Officers passed by in their patrol car:

Q. Did you observe any of the individuals, including my client,

engaged in any criminal conduct as you passed by?

A. I don’t believe so, sir.

Officer Hovis testified that he did not know whether Thomas had been involved in that crime.

ROA.299-300.

ROA.303. In the following exchange, Officer Hovis explained that Thomas (i)

was seized only because he was standing next to the stolen vehicle; and (ii) was

suspected of being armed only because he was standing next to the stolen vehicle:

Q. Okay. So before you ordered my client on the ground, Mr.

Thomas, and before handcuffing him in the prone position,

the only thing you actually saw him doing was standing near

that vehicle and talking to the other people there.

A. Yes, sir.

Q. What about Mr. Thomas in particular gave you some

indication that you thought he might be armed?

A. Just the nature of the crime and that he was standing next to

the vehicle.

Q. The fact that he was just standing next to that vehicle and you

knew that vehicle had been involved sometime earlier in an

aggravated robbery.

A. Yes, sir. So we thought it was very likely that any or all of

them were armed.

Q. Okay. But there was nothing in particular—if he had been

standing somewhere else, not next to that car, you would have

no reason to suspect that he was armed.

A. Correct, sir.

ROA.305. There were no “particularized facts” tying Petitioner to the dated

robbery. The Officers saw Petitioner standing in the parking lot among a group of

people positioned in close proximity to the stolen vehicle. ROA.300. The Officers

also saw two other individuals occupying the stolen vehicle. Accordingly, while

the occupants of the vehicle may have provided the Officers with probable cause to

arrest them (or at least with reasonable suspicion to temporarily seize them under

Terry), there is nothing in the record that would give rise to the reasonable

suspicion required to validate a Terry Petitioner Thomas’s Terry seizure.

An Alleged “Investigatory” Stop With No Questions Asked:

According to Officer Hovis, the people lying prone on the parking lot

ground and handcuffed from behind at gunpoint were not under arrest; instead, he

testified that they were merely “detained” so that the Officers could “do a further

investigation regarding that stolen car.” ROA.292. That purported objective is at

odds with Officer Hovis’s subsequent testimony in which he explained that none of

the police officers who were involved in Petitioner’s seizure questioned Thomas

(or any of the other five people seized that day) about the stolen car or the ten-dayold aggravated robbery in which the car was stolen:

Q. Okay. You wanted to investigate the stolen car. Is that

correct?

A. Yes, sir.

Q. That's why these people were subjected to what you

referred to as a Terry stop.

A. As a detention, yes, sir.

Q. And what conversations did you have with my client about

the stolen vehicle?

A. I'm not sure I asked him anything about the stolen

vehicle.

Q. Okay. Do you know whether Officer Garcia asked him

anything about the stolen vehicle?

A. I don't know, sir.

Q. Did -- in fact, did any of the officers there that day question

any of the six individuals about the stolen vehicle, to your

knowledge?

A. Not to my knowledge.

ROA.305-306. On re-direct from the prosecutor, Officer Hovis explained that

Dallas Police Department policy prohibited him from asking any of the handcuffed

individuals about the stolen vehicle or the aggravated robbery:

Q. Okay. And then finally, you were also asked some questions about

why -- whether you asked Mr. Thomas questions about the stolen

vehicle. Let's make sure we understand how it works at the Dallas

Police Department. When there is an aggravated robbery, does that

get assigned to a detective?

A. Yes, sir.

Q. Is that person responsible for that case?

A. Yes, sir.

Q. If you start asking suspects questions without that detective there,

are you going to get in trouble?

A. Yes, sir.

Q. You're not allowed to do that, are you?

A. Correct, sir.

Q. If you did that, you'd be demoted and sent off to the property unit

or something like that. Right?

A. Perhaps, sir.

ROA.308-309. On re-cross, Officer Hovis reiterated that none of the officers on

the scene could have questioned Petitioner Thomas about the robbery that resulted

in the car being stolen:

Q. Okay. And were any of the officers that came and arrived

providing back-up, did any of those officers have the authority

to question any of these six people about the armed robbery or

about the stolen vehicle?

A. Not the way Dallas Police Department operates.

Q. So none of these individuals could have made inquiries to

investigate the offense that gave rise to the Terry stop.

A. Could they have per U.S. law? Yes. Could they have per

DPD policy? No.

ROA.310-311. In fact, Officer Hovis acknowledged that he knew that he was

“most likely” not going to question Petitioner Thomas about the stolen vehicle or

the aggravated robbery even before Petitioner was seized:

Q. Okay. So you didn't ask him any questions and you knew

you weren't going to ask him any questions about the stolen

vehicle or the armed robbery before you handcuffed him.

A. I knew that I was most likely not going to.

ROA.310. In any event, the Government offered no evidence that Officer Hovis or

Officer Garcia, or any of the back-up officers who subsequently arrived, ever

questioned – or even made the effort to question – Petitioner Thomas or any of the

other individuals who had been seized to determine whether they had been

involved with, or knew anything about, the ten-day old aggravated robbery

involving the stolen car.

The Alleged Terry Frisk:

After Petitioner was in the prone position, lying face-down on the parking

lot with his hands cuffed behind his back6, Officer Hovis conducted what he

described as a Terry frisk. ROA.64, 292-293; ROA.339, ¶ 3. The frisk was carried

out notwithstanding the fact that the Officers knew that Dallas Police Department

policy would not permit them to question the seized individuals, including

Petitioner Thomas. During the course of that frisk, Officer Hovis uncovered a

“small gun.” ROA.32.7

Course of Proceedings Below:

A grand jury in the Northern District of Texas indicted Petitioner, charging

him with one count of violating 18 U.S.C. § 922(g)(1) [felon in possession of a

Officer Hovis testified that Thomas was “either touching the vehicle on the driver’s side or he

was within seven feet of the driver’s side of the vehicle.” ROA.288. Later on, he testified that,

when the Officers approached the car with guns drawn, Thomas “was the one standing closest to

the car.” ROA.290. The Exhibits admitted at the suppression hearing show Thomas lying facedown on the parking lot surface with his hands cuffed behind his back. ROA.289, 336-337.

Other officers also searched Thomas’s clothing and discovered a small amount of cocaine in his

hat. ROA.293. As fruit of Thomas’s illegal seizure, the cocaine should have been suppressed as

well.

firearm]. ROA.10.8 The District Court had jurisdiction to adjudicate that charge

pursuant to 18 U.S.C. § 1331.

In the District Court, Petitioner Thomas moved to suppress the handgun that

police seized following their warrantless seizure and search of Thomas’s person.

ROA.42, ROA. 66-80, ROA.130-154. The Government filed a response, supported

by the affidavit of Officer Alan Hovis, asserting that Petitioner’s warrantless

seizure and the subsequent search of his person were consistent with the exception

to the Fourth Amendment’s warrant requirement recognized by this Court in Terry

v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). ROA.53-65.9 After

conducting a hearing on the motion to suppress, the District Court denied

Thomas’s motion to suppress. ROA.324.

After the suppression motion was denied, the parties conducted a bench trial

in front of the District Judge on stipulated facts, with Thomas reserving his right to

assert that the handgun and other evidence should have been suppressed.

ROA.166-169, ROA.178-179.10 At the conclusion of the bench trial, the District

The Indictment was subsequently superseded with an information that charged Thomas with

the same offense, but included, as an element, that Thomas possessed the gun knowing that he

had previously been convicted of a felony. ROA.172. This was done to comply with this Court’s

decision in Rehaif v. United States, 131 S.Ct. 2191 (2019).

The Government has never asserted that the Officers had probable cause to arrest Petitioner

Thomas at the inception of his seizure. Indeed, on appeal to the Fifth Circuit the Government

conceded that probable cause was lacking.

The Government would not authorize a conditional plea under Fed.R.Crim.P. 11(a)(2), but

agreed to try the case to the District Court on stipulated facts, with Thomas reserving his right to

Judge convicted Petitioner of one count of violating 18 U.S.C. §922(g)(1) and

924(a)(2) [felon in possession of a firearm].

ROA.232.11 The District Court

entered its Amended Final Judgment on July 22, 2020. ROA.232. Thomas filed a

timely notice of appeal to the Fifth Circuit on July 23, 2020. ROA.239.

The Issues Raised On Appeal To The Fifth Circuit:

On direct appeal to the Fifth Circuit, Petitioner raised, inter alia, the

following issues:

1. Was there particularized reasonable suspicion sufficient to justify an

investigatory seizure of Thomas pursuant to Terry v. Ohio and its

progeny?

2. Can there be a valid and constitutional “stop and frisk” seizure pursuant

to Terry v. Ohio and its progeny when the officers who effect the Terry

seizure know, in advance of the seizure, that police department policy

prevents them from questioning the person seized about the events that

allegedly created the need for the stop?

pursue the suppression issue. ROA.166-169, ROA.178-179. This is an authorized procedure in

the Fifth Circuit; it preserves the suppression issue for appellate review. United States v. Najera,

915 F.3d 997, 1004 (5th Cir. 2019).

The original Judgment mistakenly provided that Thomas had been convicted on a plea of

guilty. That judgment was subsequently amended to correctly recite that Thomas was convicted

after trial. ROA.232.

3. Was Thomas’s seizure a de facto arrest that required the arresting officers

to have probable cause to believe that Thomas was engaged in criminal

activity or had committed a crime?

4. Did Thomas’s seizure violate the Fourth Amendment to the Constitution

of the United States, requiring the suppression of the handgun recovered

during the subsequent “frisk”?

5. Did the District Court err in denying Thomas’s motion to suppress?

The Ruling Below:

A three-Judge panel of the Fifth Circuit, with Judge Costa dissenting,

rejected Petitioner’s arguments, upheld the District Court’s ruling denying

Petitioner’s motion to suppress and affirmed the District Court’s Judgment. United

States v. Thomas, 997 F.3d 603 (5th Cir. 2021).

REASONS FOR ALLOWING THE WRIT

The Fifth Circuit’s analysis in this case extends investigatory stop and frisk

jurisprudence beyond the boundaries set by this Court in Terry and its progeny. It

embraces a “reasonable suspicion” standard that is so liberal that it utterly

emasculates the “individualized”, “particularized” findings this Court has insisted

on as a prerequisite for validating warrantless seizures under Terry.

It also

eliminates the constitutional predicate for a valid Terry stop: That the stop be

made for the purpose of allowing a police officer to investigate circumstances that

appear suspicious so that the officer can either confirm or dispel the officer’s

suspicions of possible criminal activity.

Although each point below is sufficient, standing alone, to warrant certiorari

review, as a group they focus on a central issue of fundamental importance to

constitutional rights under the Fourth Amendment: Where does the Court draw the

line on allowing warrantless, investigative Terry seizures in the absence of

probable cause?

THERE WERE NO INDIVIDUALIZED AND PARTICULARIZED

FACTS TYING PETITIONER TO THE TEN-DAY OLD ROBBERY

This Court has repeatedly said that "a Terry stop “must be supported at least

by a reasonable and articulable suspicion that the person seized is engaged in

criminal activity.” See, e.g., Carpenter v. United States, 138 S.Ct. 2206, 2221

(2018) (“The Court usually requires ‘some quantum of individualized suspicion’

before a search or seizure may take place. [citation omitted].” (emphasis added));

Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980)

[emphasis added]; United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66

L.Ed.2d 621 (1981) [emphasis added] (“[T]he detaining officers must have a

particularized and objective basis for suspecting the particular person stopped of

criminal activity.").12 Accordingly, the Court has insisted that an officer have

specific, objective facts giving rise to “reasonable suspicion” that an individual has

committed a crime, is currently engaged in committing a crime or is about to

engage in criminal activity before subjecting that individual to a Terry stop and

frisk. That same standard applies when the police are investigating an earlier,

completed felony:

"[I]f police have a reasonable suspicion grounded in specific and

articulable facts, that a person they encounter was involved in or is

wanted in connection with a completed felony, then a Terry stop may

be made to investigate that suspicion."

United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604

(1985). Indeed, the "demand for specificity in the information upon which police

action is predicated is the central teaching of this Court's Fourth Amendment

jurisprudence." Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-1879, 20

L.Ed.2d 889 (1968) [emphasis added].

Courts, both state and federal, have

A “particularized” and “objective” basis justifying an investigative stop is also the

constitutional predicate that must be satisfied when a traffic stop is carried out for investigative

purposes:

"Under this Court's precedents, the Fourth Amendment permits an officer to

initiate a brief investigative traffic stop when he has 'a particularized and objective

basis for suspecting the particular person stopped of criminal activity.'..."

Kansas v. Glover, 140 S. Ct. 1183, 1187, 206 L.Ed.2d 412 (2020). In Glover, the Court

concluded that the police officer drew a reasonable inference that the individual driving the

vehicle was the owner of the vehicle. Similarly, as Judge Costa noted in his dissenting opinion,

the reasonable conclusion in the case sub judice was that the two individuals who were

occupying the stolen vehicle were the individuals involved in the robbery that occurred ten days

earlier.

repeatedly explained that an individual’s mere proximity to a person who has

engaged, or may currently be engaged in, criminal activity does not, without more,

give rise to reasonable suspicion sufficient to support a stop or frisk of that

individual.13

As Judge Costa noted in his dissent, the “particularized” facts supporting the

Officers’ alleged reasonable suspicion are sorely lacking here. Aside from the fact

that the apartment complex where the seizure occurred was in a high crime area,14

See, e.g., United States v. De La Cruz, 703 F.3d 1193, 1199 (10th Cir. 2013) (normal “social

interaction” with another person who is reasonably suspected of violating the law does not create

“reasonable suspicion”); United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013) (“[E]ven if

the officers were justified in detaining Troupe for exercising his constitutional right to bear arms,

reasonable suspicion as to Troupe does not amount to, and is not particularized as to Black, and

we refuse to find reasonable suspicion merely by association."); United States v. Navedo, 694

F.3d 463, 468 (3rd Cir. 2012) ("The Supreme Court has never viewed Terry as a general license

to detain everyone within arm's reach of the individual whose conduct gives rise to reasonable

suspicion."); State v. Primous, 394 P.3d 646, 650 (Ariz. 2017) (Reasonable suspicion absent

where defendant “and his companions were engaged in no apparent concerted action other than

conversation."); Guillory v. Hill, 182 Cal.Rptr.3d 513, 233 Cal.App.4th 240 (Cal. App. 2015)

(must be particularized facts establishing reasonable suspicion as to each individual in a group);

State v. Kingsmith, 256 Or App 762, 302 P3d 471 (Or. App. 2013); State v. Diede, 795 N.W.2d

836, 844 (Minn. 2011) ("Mere proximity to, or association with, a person who may have

previously engaged in criminal activity is not enough to support reasonable suspicion of

possession of a controlled substance."); Com. v. Grahame, 7 A.3d 810 (Pa. 2010) ("[A] police

officer must have a particularized, objective basis for a protective search; an individual's mere

proximity to others engaged in criminal activity is insufficient."); People v. Elliot, 314 Ill. App.

3d 187, 732 N.E.2d 30, 247 Ill. Dec. 314 (Ill. App. 2000) (“Again, Greathouse could point to

nothing suspicious about defendant beyond her mere presence in the apartment. As a result,

Terry is inapplicable here.”); State v. Weyand, 399 P.3d 530, 188 Wash.2d 804 (Wash. 2017)

("The suspicion must be individualized to the person being stopped."); State v. Thompson, 93

Wn.2d 838, 613 P.2d 525 (Wash. 1980) ("The Fourth Amendment requires that the suspicion be

individualized, [citation omitted]. Petitioner's mere proximity to others independently suspected

of criminal activity does not justify the stop.").

Of course, "[a]n individual's presence in an area of expected criminal activity, standing alone,

is not enough to support a reasonable, particularized suspicion that the person is committing a

crime." Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000).

all the Officers had to support Petitioner’s stop and frisk was that he was standing

in close proximity to a car in the possession and control of two others that had been

stolen ten days’ earlier. The Officers saw no active criminal activity involving

Petitioner. There was no evidence or indication that Petitioner was even aware that

the vehicle had been stolen. Further, the police rode past Petitioner and other

members of the group in a marked car before circling back behind them - yet no

member of the group attempted to flee.

In dissent, Judge Costa noted three facts that he viewed as dispositive of the

reasonable suspicion issue:

First, the officers conducting the stop and frisk had no description of

the thieves to go off of. Second, officers saw two men inside the

stolen car, making them (and not Thomas) the reasonable suspects.

Third, the vehicle theft had happened well before police came upon

Thomas standing near the car.

United States v. Thomas, 997 F.3d 603, 616 (5th Cir. 2021). As the dissenting

opinion explained, these factors distinguish this case from every other Terry case

addressing the parameters of “reasonable suspicion”: “[N]o case has found

reasonable suspicion based merely on proximity to stolen property when the

defendant neither possesses the property nor matches a description of the thief."

United States v. Thomas, 997 F.3d at 617.

The panel majority disagreed. It concluded that "[t]he facts of this case can

fairly be viewed as falling somewhere between Ybarra [v. Illinois, 444 U.S. 85,

100 S.Ct. 338, 62 L.Ed.2d 238 (1979)] and Maryland v. Pringle, 540 U.S. 366, 124

S.Ct. 795, 157 L.Ed.2d 769 (2003).” United States v. Thomas, 997 F.3d at 613.

Petitioner submits that this case is nothing like Pringle, and that the circumstances

here are even less supportive of “reasonable suspicion” than those this Court

rejected as a basis for reasonable suspicion in Ybarra.

In Ybarra, an informant told the police that he had observed the bartender at

a tavern with tinfoil packets and had been told by the bartender that he would have

heroin for sale on a specific date. On the basis of that information, the police

secured a search warrant for the tavern and the bartender. When the police

executed the warrant, they announced to the tavern’s patrons that they would be

subjected to a “cursory search for weapons.” Ybarra, 444 U.S. at p. 88. Upon

patting down one of the customers, an officer found a cigarette pack containing

heroin. After being indicted for possession of heroin, the customer moved to

suppress the evidence. This Court held that the police (i) had no “probable cause”

to search the customer, and (ii) lacked any basis to reasonably suspect that the

customer was armed, and, thus, could not subject the customer to a pat down

search for weapons. Hence, it ordered the seized heroin suppressed.

Pringle is a probable cause case. There, a car occupied by three individuals

was stopped for a speeding violation. The driver consented to a search of the

vehicle. The police officer who conducted the search found a wad of cash in the

glove compartment and five baggies of cocaine in the back seat armrest. "The

officer questioned all three men about the ownership of the drugs and money, and

told them that if no one admitted to ownership of the drugs he was going to arrest

them all." Maryland v. Pringle, 540 U.S. at 368. When none of the three admitted

ownership of the contraband, the officer placed all three under arrest.15

Later, at the police station, and after being Mirandized, Pringle gave oral and

written confessions in which he admitted that the cocaine was his. Pringle

subsequently moved to suppress his confession as the fruit of an illegal arrest. This

Court concluded that there was probable cause to arrest all three, including Pringle.

In the course of reaching that conclusion, the Court distinguished the Pringle

scenario from Ybarra for the following reasons:

1. "Pringle and his two companions were in a relatively small automobile,

not a public tavern." Maryland v. Pringle, 540 U.S. at 373;

The Pringle decision was driven, in part, by the fact that passengers in a vehicle will often be

engaged in a common enterprise with the driver, and will have the same incentive to conceal the

fruits or the evidence of their wrongdoing. Maryland v. Pringle, 540 U.S. at 373. Here, in

contrast, Petitioner and three others were standing outside the stolen vehicle in broad daylight

engaged in conversation.

2. A car passenger, in contrast to a patron in a tavern, "will often be

engaged in a common enterprise with the driver, and have the same

interest in concealing the fruits or the evidence of their wrongdoing." Id.;

3. The quantity of drugs and cash in the car suggested that the three

occupants of the vehicle were engaged in the common enterprise of drug

dealing – an enterprise to which a dealer would be unlikely to admit an

innocent person. Ibid.; and

4. Although specifically asked by the officer, "none of the three men

provided information with respect to the ownership of the cocaine or

money." Maryland v. Pringle, 540 U.S. at 374.16

The fact that the three individuals seized in Pringle were cabined in the same car

where the contraband was found, coupled with the refusal of any of the three to

“single out” the owner of the contraband in response to the officer’s questions

provided the requisite probable cause to arrest.

Here, in contrast, Petitioner was one of a group of four individuals standing

outside the vehicle in broad daylight in the open parking lot of an apartment

The Court found this fact to be particularly significant, and used it to distinguish the facts

before it in Pringle from those in United States v. Di Re, 332 U.S. 581, 593, 68 S.Ct. 222, 92

L.Ed. 210 (1947) (1948). In Di Re, the Court explained that a presumption that a bystander is

complicit in criminal activity is “farfetched when the meeting is not secretive or in a suspicious

hide-out but in broad daylight, in plain sight of passersby, in a public street of a large city,' and

'where the alleged substantive crime is one which does not necessarily involve any act visibly

criminal.' Id.

complex. The police had no description of the individuals who actually perpetrated

the ten-day old robbery, but could plainly see that the vehicle was occupied and

under the control of two other individuals.17 Officer Hovis acknowledged that the

police did not see Petitioner engaged in criminal activity; indeed, he agreed that he

would have had no reason to suspect that Petitioner was armed if Petitioner had not

been standing in close proximity to the stolen vehicle. ROA.305. Nothing in the

record suggests that the members of the group were doing anything other than

socializing with each other.

Moreover, irrespective of whether the Officers bothered to access

information about the ten-day old robbery in which the car was taken, it is clear

that that information regarding the timing of the prior offense they were

supposedly “investigating” was readily available to them before Petitioner was

seized. Finally - and perhaps most significantly - the police did not question

Petitioner or any other member of the group about the armed robbery or the stolen

vehicle that purportedly justified their “investigatory” seizure under Terry. While

the panel majority below relied on Pringle, the Officers here did not do what the

officer in Pringle did – they did not ask questions designed to determine what

As discussed in greater detail below, it strains credulity to think that the Officers went on a

directed patrol to locate a vehicle stolen in an armed robbery involving the use of a gun without

knowing the details of the crime committed ten days’ earlier. The contents of the police report

proffered by the prosecutor at the suppression hearing clearly stated that (i) the robbery had

occurred ten days earlier, and (ii) the alleged perpetrators were two African-American males.

involvement, if any, Petitioner or any of the other five individuals they seized had

in the ten-day-old robbery in which the vehicle was taken.

This case stands for the proposition that “reasonable suspicion” to support a

Terry stop and frisk exists with respect to any member of a group of individuals

found to be standing in close proximity to property that was stolen ten days earlier.

As Judge Costa noted, no Terry decision has stretched the “reasonable suspicion”

standard as far as this one.

PETITIONER’S ALLEGED TERRY SEIZURE WAS NOT

FOR THE PURPOSE OF INVESTIGATING HIS SUSPECTED

INVOLVEMENT IN A CRIMINAL OFFENSE

The warrant exception recognized in Terry v. Ohio authorizes a police

officer to seize an individual based on the officer’s reasonable suspicion that the

individual may be involved in or connected to criminal activity. By design, a

Terry stop is a brief, temporary, investigative stop for questioning.18 United States

Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (1983) (plurality

opinion) (“reasonable suspicion authorizes a temporary seizure for the purpose of questioning

limited to the purpose of the stop. [emphasis added]”); United States v. Sharpe, 470 U.S. 675,

685, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (purpose of Terry stop is to investigate criminal

activity); Michigan v. Summers, 452 U.S. 692, 700, n. 12, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981)

(1981) ("investigating possible criminal activity" is purpose underlying Terry stop); United

States v. Bey, 911 F.3d 139, 146 (3rd Cir. 2018) ("The brief investigative stop allowed under

Terry, is just that; a brief stop to allow police to investigate."); United States v. Basher, 629 F.3d

1161, 1166 (9th Cir. 2011) (“'[T]he whole purpose of a Terry encounter is to investigate

suspected criminal activity.'”); U.S. v. Snow, 656 F.3d 498, 503 (7th Cir. 2011) ("Only by

investigating the circumstances further, and in particular by questioning the individual the caller

had seen, could the police determine whether in fact a burglary had been committed or

attempted. And that is the very purpose of a Terry stop.").

v. Darrell, 945 F.3d 929 (5th Cir. 2019) (the purpose of a Terry stop is “inherently

investigatory”); United States v. Wilbourn, 799 F.3d 900, 909 (7th Cir. 2015)

(“The purpose of a Terry stop is to provide law enforcement the opportunity to

stop and question a person briefly when it believes that person may be committing

or may have committed a crime.”); State v. Lewis, 333 Conn. 543, 217 A.3d 576,

596 (Conn. 2019) ("As we explained, the purpose of a Terry stop is to confirm or

dispel the officer's suspicion that an individual has committed or is about to

commit a crime."); State v. Tyler, 830 N.W.2d 288, 293 (Iowa 2013) (“Our

decisions have universally held that the purpose of a Terry stop is to investigate

crime.”); Carter v. State, 143 Md. App. 670, 795 A.2d 790, 798 (Md. App. 2002)

("The fundamental purpose of a Terry-stop, based as it is on reasonable suspicion,

is to confirm or to dispel that suspicion by asking for an explanation of the

suspicious behavior."). Accordingly, even if officers have a reasonable suspicion

that a given individual was involved in an earlier criminal offense, there can be no

valid stop of that individual under Terry if the officers know that the stop is not for

the purpose of investigating the seized individual’s relationship to the prior crime.

State v. Armenta, 134 Wn.2d 1, 948 P.2d 1280 (Wash. 1997) (“In our judgment,

where, as here, the officer has no hope of discovering information regarding the

criminal activity that the officer suspects has occurred or is about to occur, the

detention is unreasonable under the Fourth Amendment.”). Accordingly, where, as

in this case, the Officers were barred by police department policy from questioning

any of the seized individuals about the ten-day old robbery or the stolen vehicle,

and, in fact, did not do so, there was no basis for the Terry stop. See, e.g., United

States v. Barber, 557 F.2d 628, 632 (8th Cir.1977) (holding that seizure was an

arrest, not a Terry stop, because “[t]he officers' purpose in going to the car was

admittedly not investigatory; in fact, they asked no questions of the three

occupants.”); United States v. Eymann, No. 3:15-cr-30021 (C.D. Ill. 2016) ("Not

only is an officer permitted to question the suspect, an officer's failure to do so may

be an indication that the encounter is an arrest, rather than an investigatory stop.");

Mazloum v. District of Columbia Metro. Police, 576 F.Supp.2d 25, 34, n. 6 (D.

D.C. 2008) ("[A]ny suggestion that the officers merely performed an investigative

or Terry stop is belied by their failure to ask Mazloum any questions about the

incident whatsoever.").

Nothing in Terry gives the police a license to seize individuals without an

investigatory purpose in mind. In this case, the Officers knew in advance of their

seizure of Thomas that Dallas Police Department policy barred them from

questioning Thomas about the aggravated robbery and stolen car. ROA.310-311.

Yet, the need to “investigate” that crime is the very reason Officer Hovis offered

for stopping Thomas in the first place. ROA.305-306. On this record, how is there

any indication that the Officers (or the back-up contingent of police that joined

them) conducted any “investigation” of the crime they used as justification for

their seizure of Thomas? All the police did was seize Petitioner in the manner

previously described and frisk him. As Officer Hovis acknowledged, no attempt

was made to question Petitioner Thomas (or, for that matter, any of the other five

individuals seized along with Petitioner) regarding the ten-day old aggravated

robbery that supposedly prompted their seizure.

The record shows that the Officers (i) drew their weapons; (ii) ordered

Petitioner at gunpoint to lie in a prone position, face-down in an apartment

complex parking lot; (iii) handcuffed Petitioner behind his back; and (iv) frisked

Petitioner – all without a warrant and without the investigative purpose mandated

by Terry. Although the lower federal courts have concluded that, in appropriate

circumstances, the police may draw their weapons and handcuff individuals

without converting a Terry seizure into a de facto warrantless arrest,19 counsel has

found no case where such conduct, unaccompanied by an investigatory purpose,

has been deemed a proper Terry stop.

The Court should grant certiorari to reaffirm the principle that a warrantless

Terry stop and frisk is investigative in nature, and will only be upheld where

See, e.g., U.S. v. Martinez, 462 F.3d 903, 907 (8th Cir. 2006) (handcuffs); U.S. v. Hamlin, 319

F.3d 666, 671 (4th Cir. 2003) (handcuffs); Houston v. Clark Cnty. Sheriff Deputy John Does 1-5,

174 F.3d 809, 814-15 (6th Cir. 1999) (handcuffs and guns drawn); U.S. v. Glenna, 878 F.2d 967,

974 (7th Cir. 1989) (handcuffs).

necessary to allow officers to safely confirm or dispel their objectively reasonable

suspicions concerning the seized individual’s involvement in criminal activity.

Here, there was no such investigatory purpose, and Petitioner’s seizure was simply

a warrantless arrest without probable cause in violation of the Fourth Amendment

to the Constitution.

THE COURT SHOULD TAKE THIS CASE TO RESOLVE WHAT FACTS

ARE “AVAILABLE” TO INFORM THE “REASONABLE SUSPICION” OF

OFFICERS WHO RELY ON TERRY TO SEIZE AN INDIVIDUAL IN

CONNECTION WITH A COMPLETED OFFENSE

Terry looks to the information “available to” the officer for purposes of

determining whether a temporary investigative seizure is supported by the requisite

“reasonable suspicion.” Terry, 392 U.S. at 21-22 (“[W]ould the facts available to

the officer at the moment of the seizure or the search warrant a man of reasonable

caution in the belief that the action taken was appropriate?' [internal quotation

marks and citation omitted; emphasis added]."). That raises important questions:

Where the criminal conduct being investigated is a crime that was completed ten

days earlier, does the analysis of whether the Officers acted in an objectively

reasonable manner in seizing an individual include their awareness of facts relating

to the completed offense? Can the officers simply ignore facts that they could

have accessed when determining whether or not to effect a Terry stop?

This Court has never addressed what constitutes “reasonable suspicion” to

support a Terry stop in the context of a completed criminal activity. Navarette v.

California, 572 U.S. 393, 402, n.2, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014)

("Because we conclude that the 911 call created reasonable suspicion of an

ongoing crime, we need not address under what circumstances a stop is justified by

the need to investigate completed criminal activity. Cf. United States v. Hensley,

469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)”). This case raises the

issue.

Here, Officer Hovis testified that the Officers knew certain facts about the

prior offense. They knew (i) the vehicle had been stolen in an earlier armed

robbery20; and (ii) that the investigation of that completed offense had already been

assigned to a detective with the Dallas Police Department. ROA. 308-309.21

Officer Hovis also testified that he knew that information about when the armed

robbery had occurred was available to him on the NCIC report, but could not recall

Officer Hovis testified that the six individuals were handcuffed because the apartment

complex was in a high crime area and because of “the way the car was taken.” ROA.291.

As Officer Hovis testified, the Officers did not question Petitioner (or any of the other five

individuals seized that day) about the completed offense because they knew that the ten-day-old

aggravated robbery had been assigned to a detective with the Dallas Police Department, and that

it was against Department policy for them to question an individual seized about an offense that

had previously been assigned to a detective.

whether he actually accessed that information prior to Petitioner’s seizure.22 The

Officers clearly knew some details of the completed offense because Officer Hovis

testified that he assumed that all six individuals seized that day were armed

because of the nature of the crime under investigation. ROA.305.23

To the extent the Fifth Circuit’s ruling affirming the District Court’s denial

of Petitioner’s motion to suppress relies on the Officers being unaware of certain

facts relating to the ten-day-old prior offense at the time of Petitioner’s seizure, the

question whether they should have been aware of those facts before Petitioner’s

seizure is fairly raised. For example, if they had no description of the alleged

perpetrators of the prior offense, but the Dallas Police Department had assigned a

detective to that offense and had information that the perpetrators were two

African-American males, was it objectively reasonable for the Officers to seize

As Judge Costa noted in dissent, "the officers knew the car theft was not a fresh crime

(because the car was discovered by an automatic license plate reader, which would only generate

an alert on the vehicle after the theft had been reported and the license plate entered into the

system)." United States v. Thomas, 997 F.3d at 617 (Costa, J., dissenting).

Officer Hovis testified that the six individuals were handcuffed because the apartment

complex was in a high crime area and because of “the way the car was taken.” ROA.291. The

record shows that the Dallas Police Department had information regarding the ten-day-old

offense. The prosecutor proffered the details contained in the DPD report, including the fact that

the crime had been committed by two African-American males. If the Officers knew certain

details about the completed offense, it is hard to conceive of why they were unaware that the

dated prior offense had been committed by two African-American males. In any event, as Judge

Costa noted, even in the absence of any descriptions of the perpetrators, the fact that the Officers

saw two individuals occupying the stolen vehicle could only lead to the reasonable inference that

those individuals – not Petitioner – committed the prior offense. Knowing that they were not

going to question Petitioner about the prior offense, how, under Terry, could the Officers have

concluded that Petitioner’s stop and frisk was appropriate?

Petitioner without knowing those details? That information would have made a

significant difference because, before they seized Petitioner, the Officers saw two

individuals – not Petitioner – occupying the car taken in that prior offense.

CONCLUSION

For all the foregoing reasons, the Court should grant Petitioner Pizarro

Thomas’s Petition for a Writ of Certiorari.

Respectfully,

/s/Robert Clary

Robert Clary

Robert Clary, PLLC

State Bar No. 04325300

405 Windward Dr.

Murphy, Texas 75248

Phone: (972) 757-5690

Fax: (972) 692-8212

COUNSEL OF RECORD FOR

PETITIONER PIZARRO THOMAS

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.