Opposition Brief — Otha Ray Flowers, Petitioner v. United States

Supreme Court briefApr 1, 2022

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No. 21-835

In the Supreme Court of the United States

OTHA RAY FLOWERS, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

ANDREW C. NOLL

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the lower courts correctly determined that

an officer had reasonable suspicion to stop petitioner

when, as part of a special task force assigned to patrol

a specific area due to its history of burglaries and violent crimes, the officer observed that the vehicle petitioner was driving was the lone car parked in a convenience store parking lot at night; the vehicle was parked

in one of the only spots where it would be difficult for

individuals inside the store to see it; and neither petitioner nor his passenger exited the vehicle or otherwise

appeared to patronize the store.

(I)

TABLE OF CONTENTS

Page

Opinion below ................................................................................ 1

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

Statement ...................................................................................... 1

Argument....................................................................................... 5

Conclusion ................................................................................... 16

TABLE OF AUTHORITIES

Cases:

Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) .............. 6

Brown v. Texas, 443 U.S. 47 (1979) ..................................... 10

Crain v. State, 315 S.W.3d 43

(Tex. Crim. App. 2010) ................................................. 15, 16

District of Columbia v. Wesby,

138 S. Ct. 577 (2018) ................................................... 7, 9, 13

Garza v. State, 771 S.W.2d 549

(Tex. Crim. App. 1989) ....................................................... 15

Illinois v. Wardlow, 528 U.S. 119 (2000) ............... 4, 6, 7, 8, 9

State v. Andrade-Reyes, 442 P.3d 111 (Kan. 2019) ............ 15

State v. Edmonds, 145 A.3d 861 (Conn. 2016) .................... 15

State v. Weyand, 399 P.3d 530 (Wash. 2017) ................ 15, 16

Terry v. Ohio, 392 U.S. 1 (1968) ............................... 3, 4, 6, 10

United States v. Arvizu, 534 U.S. 266 (2002)............. passim

United States v. Black, 707 F.3d 531

(4th Cir. 2013)...................................................................... 13

United States v. Crawford, 891 F.2d 680

(8th Cir. 1989)................................................................ 13, 14

United States v. Dell, 487 Fed. Appx. 440

(10th Cir. 2012) .................................................................... 12

United States v. Dortch, 868 F.3d 674

(8th Cir. 2017)...................................................................... 14

(III)

Cases—Continued:

Page

United States v. Gray,

213 F.3d 998 (8th Cir. 2000) ......................................... 13, 14

United States v. Hernandez, 847 F.3d 1257

(10th Cir. 2017) .............................................................. 11, 12

United States v. Jones, 606 F.3d 964

(8th Cir. 2010)................................................................ 13, 14

United States v. Slocumb, 804 F.3d 677

(4th Cir. 2015)...................................................................... 12

Walker v. Donahoe, 3 F.4th 676 (4th Cir. 2021) ................. 13

Constitution, statute, and rule:

U.S. Const. Amend. IV.................................................. 3, 5, 13

18 U.S.C. 922(g)(1) ............................................................... 1, 3

Sup. Ct. R. 10 ......................................................................... 16

In the Supreme Court of the United States

No. 21-835

OTHA RAY FLOWERS, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-22a)

is reported at 6 F.4th 651.

JURISDICTION

The judgment of the court of appeals was entered on

July 30, 2021. On October 18, 2021, Justice Alito extended the time within which to file a petition for a writ

of certiorari to and including November 30, 2021, and

the petition was filed on that date. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of Mississippi, petitioner was convicted of possessing a firearm following

a felony conviction, in violation of 18 U.S.C. 922(g)(1).

Judgment 1. The court sentenced petitioner to 96

(1)

months of imprisonment, to be followed by three years

of supervised release. Judgment 2-3. The court of appeals affirmed. Pet. App. 1a-22a.

1. On February 18, 2017, Officer Eric Stanton and a

number of other police officers were patrolling the area

of Capitol Street and Road of Remembrance in Jackson,

Mississippi. Pet. App. 2a-3a, 26a-27a. The officers were

members of the Jackson Police Department’s “Direct

Action Response Team,” a “proactive unit” that patrols

areas “where crime is deemed to be increasing.” Id. at

26a-27a; see id. at 2a-3a. A supervisor had directed the

officers to patrol the area that night because of “recent

violent crime and burglaries in that area.” Id. at 27a;

see id. at 3a.

At about 8:30 p.m., while turning onto the Road of

Remembrance, Officer Stanton observed a silver Cadillac parked in a convenience store parking lot. Pet. App.

2a-3a. It was dark outside, and the Cadillac was parked

in the spot farthest from the cross-street with Capitol

Street, beyond the store’s entrance, and at a point of the

storefront fully covered by brick—where it would be

difficult for anyone inside the store to see the car. Id.

at 3a, 8a, 27a, 29a; see Pet. 8 (reproduction of exhibit

depicting location).

Officer Stanton saw two men sitting in the Cadillac.

Pet. App. 3a. He observed the vehicle for 10 to 15 seconds, during which time neither man exited the vehicle.

Ibid. And in Officer Stanton’s judgment, neither man

“ ‘appear[ed] to be patronizing the establishment.’ ”

Ibid. Because he believed that the men might be “casing the business,” Officer Stanton stopped to conduct a

field interview and to confirm “that they had legitimate

reasons [to be] at the business.” Id. at 32a; see id. at

50a. He stopped his cruiser close to the Cadillac and

activated his blue lights; separate cruisers with five or

six other members of his patrol also parked close to the

Cadillac. Id. at 3a, 27a, 30a, 35a-37a.

Officer Stanton approached the Cadillac in a “nonthreatening” manner, and petitioner, who was in the

driver’s seat, rolled down his window. Pet. App. 11a;

see id. at 4a. Officer Stanton immediately smelled “the

strong odor of marijuana coming from the vehicle.” Id.

at 4a. The Cadillac’s passenger then placed an object

into his mouth. Ibid. Officer Stanton ordered both men

to exit the vehicle and, after they did so, observed a .32

caliber revolver on the driver’s seat. Ibid. The gun contained five live rounds and two spent shell casings. Id.

at 4a n.2, 32a. A records check disclosed an outstanding

arrest warrant for petitioner, and Officer Stanton

placed him under arrest. Id. at 33a-34a.

2. A federal grand jury in the Southern District of

Mississippi returned an indictment charging petitioner

with possessing a firearm following a felony conviction,

in violation of 18 U.S.C. 922(g)(1). Indictment 1. Before

trial, petitioner moved to suppress the firearm on the

theory that the officers violated the Fourth Amendment

by detaining him without reasonable suspicion. See Pet.

App. 4a.

Following an evidentiary hearing, the district court

denied petitioner’s motion to suppress. Pet. App. 109a.

The court found that the “investigatory aspect” of the

officers’ initial approach to the Cadillac did not “evolve[]

into a seizure.” Id. at 106a. The court also indicated

that the circumstances provided the officers with grounds

to “resolve a suspicious circumstance,” and thus reasonable suspicion to make a stop under Terry v. Ohio,

392 U.S. 1 (1968). Pet. App. 105a; see id. at 7a. And

the court determined that before the officers took any

further action, Officer Stanton smelled marijuana coming from the vehicle, which established a basis for petitioner’s removal from the car and arrest. Id. at 106a107a. The court also noted that, after petitioner was removed from the car, the firearm was in the officers’

plain view on the seat where petitioner had been seated.

Id. at 107a.

The case proceeded to trial, and the jury found petitioner guilty. Judgment 1. The district court sentenced

petitioner to 96 months of imprisonment, to be followed

by three years of supervised release. Judgment 2-3.

3. The court of appeals affirmed. Pet. App. 1a-22a.

a. “[A]ssum[ing] arguendo” that petitioner had been

seized, Pet. App. 7a, the court of appeals recognized

that such a “temporary, warrantless detention of an individual * * * may only be undertaken if the law enforcement officer has reasonable suspicion to believe

that a crime has occurred or is in the offing,” id. at 5a

(citing Terry, 392 U.S. at 30-31). And the court found

that, in the specific circumstances here, reasonable suspicion supported petitioner’s seizure, highlighting a set

of facts that it found “determinative.” Id. at 7a; see id.

at 7a-8a.

The court of appeals noted that the officers had been

patrolling the area “because of the prevalence of ‘violent

crime and burglaries’ ” and that this Court has found

such facts “ ‘among the relevant contextual considerations’ ” when determining whether reasonable suspicion

exists. Pet. App. 7a (quoting Illinois v. Wardlow, 528

U.S. 119, 124 (2000)). The court also focused on the role

that this Court has given to the experience of law

enforcement—ten years of experience for Officer

Stanton—in evaluating the circumstances of a particular case. Ibid. (citing Terry, 392 U.S. at 27). The court

then observed that Officer Stanton, in conducting his

special-patrol duties, had seen the Cadillac parked in

the spot farthest from the store’s glass storefront, “facing [the store’s] brick wall rather than the glass door,

so [that] its occupants could not easily be viewed from

within the store,” id. at 8a, and thus “in a manner that

suggested to [a] seasoned officer that its occupants

might be casing the store or preparing to prey on patrons,” id. at 10a. The court also took note that the men

in the car did not step out of the previously parked vehicle while Officer Stanton observed them. Id. at 8a.

Emphasizing that “[e]very case that turns on reasonable suspicion is intensely fact specific,” and identifying

differences from the scenarios in prior circuit decisions

on which petitioner relied, the court found that the “reasonable, articulable facts taken in context here supported” Officer Stanton’s decision to briefly seize petitioner and have a discussion with him to “dispel[] the

ambiguity in the situation.” Ibid.; see id. at 9a-11a.

b. Judge Elrod dissented in relevant part. Pet. App.

14a-22a. In her view, the officers seized petitioner, id.

at 15a-17a, and Officer Stanton lacked reasonable suspicion to justify the stop, id. at 17a-22a.

ARGUMENT

Petitioner renews his contention (Pet. 26-28) that he

was seized in violation of the Fourth Amendment between the time when the officers parked and approached the Cadillac and the time when Officer Stanton smelled marijuana. But petitioner fails to identify

any legal error in the lower courts’ factbound assessments, conflict with a decision of this Court, or any decision of another court of appeals or state court of last

resort that has reached a contrary result on analogous

facts. The petition for a writ of certiorari should be denied.

1. As this Court explained in Terry v. Ohio, 392 U.S.

1 (1968), “the central inquiry under the Fourth Amendment [is] the reasonableness in all the circumstances of

the particular governmental invasion of a citizen’s personal security.” Id. at 19; see Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016) (“[R]easonableness is

always the touchstone of Fourth Amendment analysis.”). Accordingly, in Terry, this Court held that a police officer may make an investigatory stop of a suspect

based upon a reasonable and articulable suspicion that

the suspect is engaged in potentially criminal activity.

392 U.S. at 21, 30-31.

In determining whether an officer had reasonable

suspicion, a court “must look at the totality of the circumstances of each case to see whether the detaining

officer has a particularized and objective basis for suspecting legal wrongdoing.” United States v. Arvizu,

534 U.S. 266, 273 (2002) (citation and internal quotation

marks omitted). That “process allows officers to draw

on their own experience and specialized training to

make inferences from and deductions about the cumulative information available to them that might well

elude an untrained person.” Ibid. (citation and internal

quotation marks omitted). To establish reasonable suspicion, “the likelihood of criminal activity need not rise

to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Id. at 274.

In Illinois v. Wardlow, 528 U.S. 119 (2000), this

Court emphasized that one fact that is “among the relevant contextual considerations in a Terry analysis” is

whether a “stop occurred in a ‘high crime area.’ ” Id. at

124 (citation omitted). As the Court explained in Wardlow, officers “are not required to ignore the relevant

characteristics of a location in determining whether the

circumstances are sufficiently suspicious to warrant

further investigation.” Ibid. Instead, those characteristics can support the context-specific reasonableness of

a brief investigatory stop, as they did in Wardlow itself.

Ibid.

The Court has also emphasized that officers “need

not rule out the possibility of innocent conduct” in order

to have reasonable suspicion. Arvizu, 534 U.S. at 277;

see District of Columbia v. Wesby, 138 S. Ct. 577, 588589 (2018) (applying same rule in analyzing probable

cause). The Court has explained that “the Fourth

Amendment” “accepts the risk that officers may stop

innocent people” as long as an individual who is stopped

is permitted “to go on his way” if the suspicion is dispelled. Wardlow, 528 U.S. at 126. Indeed, even when

“each of the[] factors” that a court is considering “alone

is susceptible of innocent explanation,” they may,

“[t]aken together, * * * suffice[] to form a particularized and objective basis for” reasonable suspicion.

Arvizu, 534 U.S. at 277; see Wardlow, 528 U.S. at 125

(“Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation.”).

Accordingly, the Court has explained that a Terry stop

following ambiguous conduct does not “establish a violation of the Fourth Amendment”; rather, officers may

detain an individual “to resolve the ambiguity.” Wardlow, 528 U.S. at 125.

2. a. The lower courts did not legally err in their application of those principles to the specific facts of this

case. The court of appeals properly recognized that the

stop’s occurrence in a high-crime area was a “relevant

contextual consideration[] in [the] Terry analysis,” Pet.

App. 7a (quoting Wardlow, 528 U.S. at 124), emphasizing that here the officers were on patrol as part of a special task force assigned to that area precisely because

of the prevalence of burglaries and other violent crime,

id. at 7a, 10a. It then highlighted several particularized

observations by Officer Stanton that, “taken in context,” suggested that petitioner and his passenger

might be casing the convenience store for the very type

of crime that the patrol was created to prevent. Id. at

8a. The Cadillac was the only car parked in the lot and

was parked in one of the only spots facing the store’s

brick wall, rather than its glass storefront. Id. at 8a,

10a. That position ensured that individuals inside the

store could not easily see the Cadillac or its occupants—

while petitioner and his passenger could watch the entrance. Id. at 8a, 11a. Officer Stanton—who first spotted the Cadillac only sometime after it had initially

parked there—observed the car for an additional 10 to

15 seconds and saw neither the driver nor the passenger

exit the car or otherwise appear to patronize the business. Id. at 3a, 8a.*

“Taken together,” the court of appeals found those

facts “suffic[ient] to form a particularized and objective

basis for” reasonable suspicion, Arvizu, 534 U.S. at 277,

such that it was reasonable for the officers to briefly detain petitioner “at least to the point of * * * dispelling

Petitioner incorrectly contends (Pet. 26 n.3) that the court of appeals made inconsistent observations about the Cadillac’s location

in the parking lot. The Cadillac was parked alongside the convenience store, and therefore “close” to the store. Pet. App. 10a. And

the Cadillac was parked in the only location where the wall was fully

covered by bricks, and therefore “as far as possible from the storefront.” Id. at 8a.

the ambiguity in the situation,” Pet. App. 8a. The court

noted that Officer Stanton made a “non-threatening”

approach to the Cadillac “to ask some questions” and

found it “difficult to see how any active policing can take

place” if such conduct is “constitutionally impermissible.” Id. at 11a-12a.

b. Petitioner’s assertions of legal error lack merit.

Petitioner acknowledges (Pet. 23) that the lower

courts appropriately considered the area’s high rate of

crime in evaluating whether the circumstances were

sufficiently suspicious to warrant further investigation.

See Wardlow, 528 U.S. at 124. He argues, however, that

this Court’s decisions foreclose a finding that the circumstances were sufficiently suspicious, on the theory

that the conduct could potentially be described as “common” or “ambiguous.” Pet. 23-24; see Pet. 21-26. But

the Court has repeatedly rejected the contention that

the existence of an innocent explanation for conduct precludes a finding of reasonable suspicion. See Arvizu, 534

U.S. at 277 (“A determination that reasonable suspicion

exists * * * need not rule out the possibility of innocent

conduct” even when “each of the[] factors alone is susceptible of innocent explanation.”); Wardlow, 528 U.S.

at 125 (explaining that even when “the conduct justifying [a] stop [i]s ambiguous and susceptible of an innocent explanation * * * officers c[an] detain the individual[] to resolve the ambiguity”); see also Wesby, 138

S. Ct. 588-589.

The Court likewise has rejected efforts to impose

bright-line rules—like the one that petitioner proposes

here—that “ ‘clearly delimit’ an officer’s consideration

of certain factors.” Arvizu, 534 U.S. at 275 (citation

omitted). The Court has explained that imposing such

rules would “seriously undercut the ‘totality of the

circumstances’ principle which governs the existence vel

non of ‘reasonable suspicion.’ ” Ibid. And petitioner’s

rule would require courts to make essentially standardless judgments about the set of actions that can be described as “lawful” conduct in which members of the

public “routinely engage.” Pet. I. Different courts

would inevitably reach divergent results on broad classes of conduct, and the regime would create confusion

and indeterminacy for officers in the field. The sound

course is the one that this Court’s precedent already

specifies—namely, a holistic and case-specific assessment that views particular facts in light of the officer’s

experience. See Terry, 392 U.S. at 27.

Contrary to petitioner’s suggestion (Pet. 24), the

court of appeals’ decision does not conflict with this

Court’s decision in Brown v. Texas, 443 U.S. 47 (1979).

In Brown, the Court found no reasonable suspicion to

support stopping an individual who was walking in an

alley during the afternoon in a high-crime area. Id. at

48-53. The Court based its finding on a number of factors: “the officers did not claim to suspect appellant of

any specific misconduct,” but instead stopped him only

“to ascertain his identity”; although the officers thought

“that the situation in the alley ‘looked suspicious,’ ” they

were “unable to point to any facts supporting that conclusion”; and “[t]here [wa]s no indication in the record

that it was unusual for people to be in the alley.” Id. at

49, 52. Here, in contrast, the officers suspected petitioner of specific misconduct—that he might be casing

the convenience store. That suspicion rested on a number of factors, including the time of day; the location

in which petitioner had parked the Cadillac; the occupants’ lack of any apparent interest in patronizing the

business; and the recent spate of burglaries and violent

crime in the area.

Petitioner advances (Pet. 26-28) innocent explanations for each of the factors that collectively led the officers to suspect that petitioner might be casing the convenience store. But this Court’s decisions “preclude[]

this sort of divide-and-conquer analysis” which describes each observation as “by itself readily susceptible to an innocent explanation” and thus “entitled to ‘no

weight.’ ” Arvizu, 534 U.S. at 274 (citation omitted). At

bottom, petitioner simply disagrees with the lower

courts’ application of the framework approved by this

Court to the facts of his case. No reason exists to review

that “intensely fact specific” determination, Pet. App.

8a, which the court of appeals took care to distinguish

from other cases that petitioner claimed to be analogous, see id. at 9a-11a.

3. Petitioner contends (Pet. 16-21) that the decision

below conflicts with decisions of the Fourth, Eighth,

and Tenth Circuits and several state courts. But petitioner identifies no decision holding that ambiguous,

“potentially suspicious, yet widely shared, conduct,”

Pet. 16, can never support a finding of reasonable suspicion. And none of those decisions demonstrates that

another court of appeals or state court would have

reached a different outcome on the particular facts of

this case.

a. The Tenth Circuit decisions that petitioner cites

(Pet. 17-18) each turned on case-specific evaluations of

the relevant facts—and not on the conclusion that officers are barred from considering particular types of conduct when determining whether there is reasonable

suspicion to support a Terry stop. In United States v.

Hernandez, 847 F.3d 1257 (2017), the Tenth Circuit

found no reasonable suspicion where the defendant,

who was wearing black clothing and carrying two backpacks while walking in a high-crime area next to a

fenced construction site that had previously been the

target of theft, reasoning, inter alia, that the defendant

was “merely walking next to a construction site that was

previously the target of thefts” and “was not, for example, inside the fence, carrying construction materials, or

acting as a lookout.” Id. at 1268; see id. at 1260-1261,

1268-1269. And in its non-precedential decision in

United States v. Dell, 487 Fed. Appx. 440 (2012), the

Tenth Circuit found that the officer “never articulated

why” his observation of the defendant and a companion

peering into the windows of a parked car “led him to

suspect criminal activity,” and the court found that the

officer’s assertions about the area’s high crime rate

were “generalized,” “ambiguous,” “anecdotal,” and “not

particularly probative or persuasive.” Id. at 444-445,

447. Neither decision would be controlling on the facts

here, where petitioner was not merely walking by a recently victimized area, and where Officer Stanton articulated why petitioner’s actions led him to believe that

petitioner might be casing the convenience store.

The Fourth Circuit decisions on which petitioner relies (Pet. 18-19) likewise turned on case-specific circumstances. In United States v. Slocumb, 804 F.3d 677 (4th

Cir. 2015), the court recognized that facts “ ‘susceptible

to innocent explanation’ individually may ‘suffice’ ” to

establish reasonable suspicion “when taken together,”

but found no reasonable suspicion under “the totality of

the circumstances” because an officer had spoken with

the defendant before he was seized and received “answers consistent with [the defendant’s] actions” that

“dispelled” any reasonable suspicion. Id. at 682, 684

(quoting Arvizu, 534 U.S. at 277) (brackets omitted).

And in United States v. Black, 707 F.3d 531 (2013), the

Fourth Circuit reiterated the same point about potentially innocent explanations, see id. at 539, but concluded that the lawful open carry of a firearm by the

defendant’s associate and another associate’s previous

arrest did not support individualized reasonable suspicion that justified stopping the defendant, id. at 540.

Neither decision addressed facts like the ones here, let

alone adopted a rule governing them. Moreover, Slocumb predates this Court’s discussion of a suspect’s

contemporaneous assertions of innocence in Wesby, supra, and the Fourth Circuit has made clear that Black

did not hold that lawful conduct can never support reasonable suspicion, Walker v. Donahoe, 3 F.4th 676, 682686 (2021), explaining that “[t]he notion that lawful conduct can contribute to reasonable suspicion is hardly

shocking or controversial,” id. at 683; see Wesby, 138

S. Ct. at 588 (“[P]robable cause does not require officers

to rule out a suspect’s innocent explanation for specific

facts.”).

Petitioner also cites (Pet. 16-17) decisions in which

the Eighth Circuit has declined to find reasonable suspicion where the court believed that a defendant’s conduct was shared “by countless, wholly innocent persons,” United States v. Jones, 606 F.3d 964, 967 (2010)

(per curiam), was “typical of countless innocent people,”

United States v. Crawford, 891 F.2d 680, 682 (1989), or

“fit” “[t]oo many people,” United States v. Gray, 213

F.3d 998, 1001 (2000) (citation omitted). But that court

has reiterated that the Fourth Amendment requires

consideration of the totality of the circumstances

confronting an officer. See Jones, 606 F.3d at 965967; Gray, 213 F.3d at 1000. And the court has more

recently confirmed that even “factors” that “hardly

seem suspicious taken on their own” can support a finding of reasonable suspicion and emphasized that

“[t]here is no place in” the reasonable-suspicion “analysis for a ‘divide-and-conquer’ approach that would isolate each cited factor and disregard it if a court could

‘conceive of an innocent explanation.’ ” United States v.

Dortch, 868 F.3d 674, 680 (8th Cir. 2017) (brackets, citations, and internal quotation marks omitted).

In any event, the facts in the Eighth Circuit cases on

which petitioner relies bear little resemblance to the

facts here. See Jones, 606 F.3d at 965-967 (defendant

was crossing a parking lot in a high-crime area while

clutching the outside of his sweatshirt pocket, and the

government never identified “what criminal activity”

the officer suspected before stopping and frisking the

defendant); Gray, 213 F.3d at 1000-1001 (defendant

crossed the street “in a hurried fashion” around 10 p.m.

in an area known for drug activity and prostitution, and

the officers “conceded they saw nothing out of the ordinary or criminal” before frisking the defendant); Crawford, 891 F.2d at 680-682 (defendant ran into an apartment building where an individual previously arrested

on drug charges lived, carried a bicycle and several

coats to a car, and drove away in the car after looking

up and down the street numerous times). They therefore do not show that, if presented with the specific facts

of this case, the Eighth Circuit would reach a different

conclusion than the court of appeals reached below.

b. Petitioner also contends (Pet. 19-21) that the decisions of several state courts of last resort conflict with

the decision below. But the state-court decisions on

which petitioner relies involve facts materially different

from the ones here, or concessions by the State that the

officers lacked particularized suspicion. See State v.

Edmonds, 145 A.3d 861, 867-868, 882 (Conn. 2016) (defendant was standing alone in a parking lot behind a

sandwich shop at 7 p.m. “for a few seconds” and began

to walk away and move his hands near his waist when

officers approached, and “[t]here was no testimony suggesting that [the officers] had any reason to believe that

* * * any sort of criminal activity was underway or

recently had transpired at that location”); State v.

Andrade-Reyes, 442 P.3d 111, 118-119 (Kan. 2019) (per

curiam) (State “implicitly conceded” that the officers

“lacked reasonable suspicion” when the defendant “sat

in a car legally parked in a high-crime area,” appeared

nervous, clenched his hands and reached toward the

floor, and did not respond to an officer’s questions);

Crain v. State, 315 S.W.3d 43, 46-47, 53 (Tex. Crim. App.

2010) (officer observed the defendant, who was walking

late at night in a residential area, “grab[] at his waist,”

and the officer conceded that “he had not observed the

[defendant] do anything that could be construed as

criminal activity”); Garza v. State, 771 S.W.2d 549, 558559 (Tex. Crim. App. 1989) (en banc) (officer knew that

the defendant “ ‘had been seen at some unspecified

times in an area where some unspecified burglaries had

been committed at some unspecified times’ ” but “had

observed nothing to indicate that an offense was being

committed or had been committed and nothing to suggest that any illegal activity was about to take place”)

(citation omitted); State v. Weyand, 399 P.3d 530, 532,

536 (Wash. 2017) (defendant walked quickly when leaving a residence known for drug activity and looked up

and down the street before entering a car, and the officer “failed to articulate a reasonable suspicion that

[the defendant] was involved in criminal activity at that

house based on [the defendant’s] conduct”).

Consistent with this Court’s decisions, those courts

generally acknowledge that the reasonable-suspicion

determination must be based on the totality of the circumstances. See, e.g., Crain, 315 S.W.3d at 53 (considering “the totality of the circumstances” before finding

no reasonable suspicion); Weyand, 399 P.3d at 534-535

(indicating that a court must examine the “totality of the

circumstances” and “each case must be evaluated on its

own facts”). And the fact-specific state decisions provide no better basis than the cited circuit decisions for

deeming lower courts to be in conflict on the principles

applicable to a situation like the one here. Further review of the factbound decision in this case is accordingly

unwarranted. See Sup. Ct. R. 10 (“A petition for a writ

of certiorari is rarely granted when the asserted error

consists of erroneous factual findings or the misapplication of a properly stated rule of law.”).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.