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

Supreme Court briefApr 18, 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

REPLY BRIEF FOR PETITIONER

J. SCOTT GILBERT

WATKINS & EAGER

400 E. Capitol St.

Suite 300

Jackson, MS 39201

DANIEL R. ORTIZ

UNIVERSITY OF

VIRGINIA SCHOOL OF

LAW SUPREME COURT

LITIGATION CLINIC

580 Massie Road

Charlottesville, VA

22903

JEREMY C. MARWELL

Counsel of Record

JAMES T. DAWSON

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6507

jmarwell@velaw.com

TABLE OF CONTENTS

Page

Table Of Authorities ...................................................II

Lower Courts Are Sharply Divided Over the

Question Presented. ............................................ 2

II. The Decision Below Is Wrong. ............................ 8

Conclusion ................................................................. 13

(I)

TABLE OF AUTHORITIES

Cases

Page(s)

Carpenter v. United States,

138 S. Ct. 2206 (2018) .......................................... 11

Crain v. State,

315 S.W.3d 43 (Tex. Crim. App. 2010) .................. 6

Delaware v. Prouse,

440 U.S. 648 (1979) .......................................... 9, 12

Dist. of Columbia v. Wesby,

138 S. Ct. 577 (2018) ........................................ 9, 10

Garza v. State,

771 S.W.2d 549 (Tex. Crim. App. 1989)

(en banc).................................................................. 6

Illinois v. Wardlow,

528 U.S. 119 (2000) ...................................... 7, 8, 10

Maryland v. Pringle,

540 U.S. 366 (2003) ................................................ 6

Ornelas v. United States,

517 U.S. 690 (1996) ........................................ 2, 3, 7

Reid v. Georgia,

448 U.S. 438 (1980) .......................................... 9, 12

State v. Andrade-Reyes,

442 P.3d 111 (Kan. 2019) ....................................... 7

State v. Edmonds,

145 A.3d 861 (Conn. 2016) ..................................... 6

State v. Weyand,

399 P.3d 530 (Wash. 2017) ..................................... 6

III

Cases—Continued:

Page(s)

Terry v. Ohio,

392 U.S. 1 (1968) .......................... 1, 2, 5, 7, 8, 9, 11

United States v. Arvizu,

534 U.S. 266 (2002) ........................................ 10, 11

United States v. Brignoni-Ponce,

422 U.S. 873 (1975) ................................................ 9

United States v. Dell,

487 F. App’x 440 (10th Cir. 2012) .......................... 4

United States v. Dortch,

868 F.3d 674 (8th Cir. 2017) .................................. 4

United States v. Hernandez,

847 F.3d 1257 (10th Cir. 2017) .............................. 4

United States v. Jones,

606 F.3d 964 (8th Cir. 2010) .............................. 3, 4

United States v. Slocumb,

804 F.3d 677 (4th Cir. 2015) .................................. 5

United States v. Sokolow,

490 U.S. 1 (1989) ................................................ 1, 8

Walker v. Donohue,

3 F.4th 676 (4th Cir. 2021) ..................................... 5

REPLY BRIEF FOR PETITIONER

A sharply divided Fifth Circuit panel held that police had reasonable suspicion for a Terry stop after

observing two men sitting for a mere 10-15 seconds in

a legally parked car outside an open convenience store,

in a bad part of town. As Petitioner showed, the panel

got that extremely important conclusion egregiously

wrong. What is more, this case would come out differently in the vast majority of circuits and state high

courts to address whether conduct of this kind—i.e.,

potentially ambiguous but widely exhibited by lawabiding members of the general public—can justify a

significant intrusion on Fourth Amendment rights.

In response, the government only barely defends the

outcome, with a carefully worded protest that the

panel “did not legally err.” Opp. 7. Instead, the government suggests reasonable-suspicion cases are

effectively cert-proof; by the government’s telling, a

“totality of the circumstances” inquiry does not give

rise to a split unless cases have identical facts. But

that Terry contemplates a “totality of the circumstances” inquiry (Opp. 13) by no means extinguishes

the possibility of a split about how to apply that framework. And if the government were right, this Court

would not have granted certiorari in United States v.

Sokolow, 490 U.S. 1 (1989), or other reasonable-suspicion cases.

Petitioner painstakingly catalogued a split of authority on the legal question of whether ambiguous but

widely shared behavior, occurring in a high-crime

area, supports reasonable suspicion. In response, the

government

deploys

that

well-worn

Fourth

(1)

Amendment defense, emphasizing the fact-intensive

nature of the inquiry, and positing factual distinctions

between cases without showing they are material. But

this Court long ago held that “the legal rule[] for * * *

reasonable suspicion acquire[s] content only through

application”; certiorari review plays a critical role to

“unify precedent” and provide law enforcement with

an administrable “set of rules.” Ornelas v. United

States, 517 U.S. 690, 697 (1996).

On the merits, the government mainly attacks a

strawman. Petitioner did not argue that “an innocent

explanation for conduct precludes a finding of reasonable suspicion.” Opp. 9. Rather, the question is

whether ambiguous actions of the kind “that any lawabiding citizen might do,” Pet. App. 18a (Elrod, J., dissenting)—here, lingering for a few seconds in a parked

car before patronizing a roadside shop—can justify a

Fourth Amendment intrusion merely because they occur in a high-crime area. On that issue, lower courts

are in disarray, and this Court’s guidance is urgently

needed.

Lower Courts Are Sharply Divided Over

the Question Presented.

The Government’s central objection to certiorari is

that the irreconcilable decisions and outcomes documented in the Petition are merely fact-dependent

applications of Terry v. Ohio, 392 U.S. 1 (1968), and do

not diverge on any legal question. Opp. 11-16. The

Government offers a range of factual distinctions without attempting to show that they were material to

outcomes. Moreover, the implication of the Government’s position is that because the reasonablesuspicion inquiry is context-specific, no case involving

application of that standard could be cert-worthy. But

“independent review [by this Court] is * * * necessary

* * * to maintain control of, and to clarify, the legal

principles” underlying reasonable suspicion. Ornelas,

517 U.S. at 697. The cases in the split diverge on a

concrete question of law.

The Eighth Circuit sits at the heart of the split.

The Government’s paper-thin factual distinctions

(Opp. 13-14) cannot reconcile that Circuit’s governing

legal principles with the Fifth Circuit’s rationale and

ruling here. Even the government concedes that the

Eighth Circuit has repeatedly articulated a crisp legal

rule disfavoring reasonable-suspicion findings based

on widely shared but ambiguous conduct. Id. at 13

(quoting cases). In United States v. Jones, 606 F.3d

964, 967 (2010), the Eighth Circuit found no reasonable suspicion where the supposedly “suspicious

circumstances” occurring in a high-crime area were

“shared by countless, wholly innocent persons.” That

court reasoned that because “nearly every person has,

at one time or another,” undertaken the conduct in

question, simply “[t]oo many people fit this description

for it to justify a reasonable suspicion of criminal activity.” Id. at 967-968 (citation omitted). The Fifth

Circuit here, by contrast, upheld reasonable suspicion

based on conduct in which “any law-abiding citizen

might” engage. Pet. App. 18a (Elrod, J., dissenting);

see also id. 7a-8a. The government proffers slight factual distinctions between Jones and Petitioner’s case.

See Opp. 14. But what matters is each court’s stated

rationale; on that point, the government is virtually silent.1

The Tenth Circuit has rejected reasonable suspicion on the ground that if the proffered “innocuous”

conduct “were sufficient to confer reasonable suspicion,” then “the ambling public [could be subject to]

* * * virtually random seizures, inquisitions to obtain

information which could then be used to suggest reasonable suspicion, and arbitrary exercises of police

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

1268-1269 (10th Cir. 2017); accord United States v.

Dell, 487 F. App’x 440, 444-446 (10th Cir. 2012) (under

circuit law, no reasonable suspicion exists where conduct in high-crime area was “very much in the realm

of ordinary behavior”). Instead of engaging with the

Tenth Circuit’s legal reasoning, the Government

draws factual distinctions. See, e.g., Opp. 12 (defendant was “wearing black clothing” and “walking by a

recently victimized area,” rather than sitting in a

1 Nothing in

United States v. Dortch, 868 F.3d 674 (8th Cir.

2017), displaced Eighth Circuit law on widely shared conduct.

Dortch upheld a protective frisk where officers observed two cars

“unquestionably parked illegally” “on the wrong side of the

street,” and a defendant dressed in a manner “conspicuously inappropriate for the weather.” Id. at 678, 676. Indeed, Dortch

distinguished Jones on precisely the relevant ground: Dortch’s

outfit (“a winter coat worn in June”) was “ ‘significantly

stranger—that is, significantly less likely to be ‘shared by countless, wholly innocent persons’ ”—than [Jones’s] hoodie in

September.” Dortch, 868 F.3d at 679-680 (quoting Jones, 606

F.3d at 967); accord ibid. (unlike in Jones, Dortch “responded to

the sight of an approaching police officer” by taking actions to

“conceal what * * * he had in his coat” and “free[] his hands to

reach for any weapon he might be carrying”).

parked car). But that misses the point: It was because

the observed conduct in Hernandez was shared by the

“ambling public” that the Tenth Circuit rejected reasonable suspicion, not the color of the defendant’s

clothing. Cf. Pet. App. 22a (Elrod, J., dissenting)

(panel here improperly “base[d] a justification for a

[seizure] upon actions that any similarly-situated person [may] have taken”).

United States v. Slocumb, 804 F.3d 677 (4th Cir.

2015), is also irreconcilable with the Fifth Circuit’s analytical approach. In the government’s view, Slocumb

applied a totality-of-the-circumstances test and simply

reached a different outcome on less suspicious facts.

Opp. 12-13. But that ignores Slocumb’s gloss on Terry:

“The government must do more than simply label a behavior as ‘suspicious’ to make it so.” Slocumb, 804 F.3d

at 684 (citations omitted). On that basis, the Fourth

Circuit held that “seemingly innocent acts” occurring

late at night in a high-crime area were not “indicative

of some more sinister activity.” Ibid. (internal quotation marks omitted). The government’s reliance on

Walker v. Donohoe, 3 F.4th 676 (4th Cir. 2021) (cited

at Opp. 13), is self-rebutting: There, unlike in Slocumb, reasonable suspicion existed because the

observed conduct—open carry of an AR-15 rifle by a

young man dressed in military-style clothing in the

close vicinity of a high-school just days after the mass

shooting in Parkland, Florida—was, the Fourth Circuit explained, “unusual and alarming,” id. at 685

(emphasis added), not common and innocuous.

As to state courts, the government again draws factual distinctions without showing materiality. Nor

does the government acknowledge—never mind

attempt to reconcile—the courts’ sharply conflicting legal reasoning. See Opp. 13. To take just one example,

State v. Edmonds bears uncanny similarity to this

case: A defendant was observed lingering “outside a

restaurant * * * for a few seconds at 7 p.m., in a city

with a generally high crime rate.” 145 A.3d 861, 882

(Conn. 2016). The Connecticut Supreme Court found

no reasonable suspicion because “[t]oo many people”

engaged in lawful conduct of that kind, and the “crime

rate of a particular area cannot transform otherwise

innocent-appearing circumstances” into reasonable

suspicion. Id. at 882, 883 (citation omitted). The cited

state-court decisions cannot be explained away by factual distinctions—rather, they reflect and apply a

legal rule inconsistent with the panel here.

The Government suggests that in some of the state

cases, prosecutors “conce[ded] * * * that the officers

lacked particularized suspicion.” Opp. 14-15. Not so.

While officers acknowledged in some cases that they

did not witness direct evidence of a crime, see Opp. 1415, that is hardly a concession they lacked reasonable

suspicion.2 Whether the facts showed reasonable suspicion was the relevant—and litigated—question. See

Edmonds, 145 A.3d at 884 (state argued that the “officers reasonably * * * suspect[ed] the defendant of

criminal activity”); accord Crain v. State, 315 S.W.3d

43, 52-53 (Tex. Crim. App. 2010); Garza v. State, 771

S.W.2d 549, 558-559 (Tex. Crim. App. 1989) (en banc);

State v. Weyand, 399 P.3d 530, 532, 536 (Wash. 2017);

2 Direct observation of a crime would of course support a finding

of probable cause, see Maryland v. Pringle, 540 U.S. 366, 370

(2003), beyond reasonable suspicion under Terry.

State v. Andrade-Reyes, 442 P.3d 111, 119 (Kan.

2019).3

Ultimately, the government is left arguing that in

a “totality of the circumstances” context, even sharply

disparate rationales and outcomes do not justify certiorari. But the truism that “each [Fourth Amendment]

case must be evaluated on its own facts,” Opp. 16 (citation omitted), hardly forecloses the possibility of

disagreement about how to apply that framework. Indeed, the basic reasonable-suspicion inquiry has been

unchanged since Terry, but this Court has repeatedly

granted certiorari to refine its application. E.g., Illinois v. Wardlow, 528 U.S. 119 (2000). And while “the

mosaic which is analyzed for a reasonable-suspicion

* * * inquiry is multi-faceted,” some cases are “so alike”

that appellate review is essential to ensure uniformity.

Ornelas, 517 U.S. at 698. This Court’s review would

“unify precedent” and “come closer to providing law enforcement officers with a defined set of rules” to guide

ex ante decisions about “whether an invasion of privacy is justified in the interest of law enforcement.” Id.

at 697-698.

3 Andrade-Reyes did say the government had “implicitly con-

ceded” that officers could not justify a seizure merely because a

defendant “sat in a car legally parked in a high-crime area” and

“appeared nervous.” 442 P.3d at 112, 118, 119. But the state

vigorously defended the Terry stop on the ground that officers had

observed other supposedly evasive activity. Id. at 118. In finding

no reasonable suspicion, the Kansas Supreme Court cited its own

precedent reasoning that a defendant’s “car was lawfully parked

in an area where cars of customers * * * frequently parked.” Id.

at 118-119 (citation omitted).

II.

The Decision Below Is Wrong.

On the merits, the government makes two basic

points: first, that the panel correctly identified the

governing standard under Terry and did not commit

“legal error” (other potential errors are left unaddressed), Opp. 9, 7; and second, that Petitioner’s

proposed rule is difficult to administer and inconsistent with precedent. Both arguments fail, as

explained below. But as an initial matter, much of the

Brief in Opposition can be discarded, as it rests on mischaracterizing Petitioner’s position.

Opp. 9.

Petitioner does not contend that reasonable suspicion

was absent merely because his conduct was “susceptible of an innocent explanation,” Opp. 7 (quoting

Wardlow, 528 U.S. at 125). Rather, Petitioner presents a narrower, more focused (and troubling)

concern: whether innocuous but potentially ambiguous conduct that is widespread among law-abiding

members of the public can support a finding of reasonable suspicion, merely because it occurs in a highcrime area. On that question, this Court’s cases weigh

heavily in Petitioner’s favor.

1. Since Terry, a core precept of this Court’s

Fourth Amendment doctrine has been that officers

may perform investigatory stops when they “observe[]

unusual conduct.” Terry v. Ohio, 392 U.S. 1, 30 (1968)

(emphasis added); accord United States v. Sokolow,

490 U.S. 1, 8 (1989) (defendant’s conduct was “out of

the ordinary”); see also Pet. 21-30. Ambiguous conduct

of the kind routinely undertaken by law-abiding citizens does not meet that requirement. Indeed, Terry

itself contrasted the “unusual” conduct supporting a

stop in that case—two men pacing in front of a shop

window, staring inside, conferring, and repeating that

cycle 24 times—with common behavior of merely

standing on a street corner. 392 U.S. at 22-23, 34.

While the former pattern created reasonable suspicion, the result would have been “quite different” if

officers observed “nothing unusual.” Id. at 22-23; see

also United States v. Brignoni-Ponce, 422 U.S. 873,

886 (1975) (defendant’s Mexican ancestry did not support a reasonable belief that defendant was in the

country illegally because people with Mexican ancestry are commonly U.S. citizens); Delaware v. Prouse,

440 U.S. 648, 661 (1979) (police had no “articulable basis” for determining that “stopping a particular driver

for a spot check would be more productive than stopping any other driver”). On this point, Petitioner cited

Reid v. Georgia, which held that circumstances “describ[ing] a very large category of * * * innocent

travelers” could not generate reasonable suspicion.

448 U.S. 438, 441 (1980); see Pet. 22. The Government

offers no response. In sum, the distinction between

ambiguous behavior that is “unusual” enough to support reasonable suspicion, and conduct widely

exhibited by the general public (which is not), has been

present since Terry’s inception.

The government unsuccessfully seeks refuge in offpoint cases. District of Columbia v. Wesby, 138 S. Ct.

577, 587 (2018), did not involve a reasonable suspicion

inquiry. If anything, the case underscores the relevance of conduct’s unusual nature, to a Fourth

Amendment analysis. Wesby found probable cause to

believe that partygoers knew they were trespassing,

because “most homeowners” neither “live in near-barren houses” nor invite others to use their houses for

lurid parties. Ibid. Further, this Court observed, “people normally do not throw a bachelor party without a

bachelor.” Ibid.

The government also cites Illinois v. Wardlow and

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

uncontroversial proposition that the mere “existence of

an innocent explanation for conduct” does not “preclude[] a finding of reasonable suspicion.” Opp. 9. But

neither case dealt with routine conduct, widely shared

among law-abiding members of the general public.

The conduct in Wardlow—unprovoked flight—was inherently unusual.

528 U.S. at 124.

Arvizu

characterized the relevant conduct as “unusual[],” “abnormal,” and “odd.” 534 U.S. at 270-271. There, a

minivan was traveling near the US-Mexico border, on

a route used by smugglers, the driver slowed down

rapidly upon seeing an officer, and the car’s occupants

sat with elevated knees and waved mechanically for

four minutes. Id. at 269-272. Here, by contrast,

“[p]arking in one of only a few available parking spots

in front of a convenience store at an unextraordinary

time of evening—8:30 p.m.—is something that any

law-abiding citizen might do in order to patronize the

store.” Pet. App. 18a (Elrod, J., dissenting).4

4 The government suggests the location of Petitioner’s car sup-

ported reasonable suspicion. Opp. 8. But the district court made

no such finding (see Pet. App. 104a-105a; Opp. 3), and the row of

available spots all located a few feet from the public roadway belies the government’s suggestion (Opp. 8) that Petitioner parked

“suspiciously close” to the store. Pet. 6-8. It is undisputed that

Petitioner chose one of five or six available spots directly in front

of an open convenience store on a Saturday night. Pet. App. 14a

(Elrod, J., dissenting); accord id. at 3a.

2. The government next says Petitioner’s rule is

difficult to administer. But the government vacillates

between criticizing Petitioner for advancing both a

“bright-line rule[]” and an “essentially standardless”

test. Opp. 9-10. Both cannot be true. The government

also frets that “[d]ifferent courts would inevitably

reach divergent results” under Petitioner’s test, creating “confusion and indeterminacy.” Opp. 10. But in

its next breath, the government extols the virtues of

“holistic and case-specific assessment[s]” based on

each case’s “particular facts.” The government does

not bother to explain how its own preferred standard

will avoid divergent results. See ibid.

No administrability concerns will arise from adopting a common-sense rule that ambiguous, widely

shared conduct—of the type engaged in by countless

members of the general public—does not support a

finding of reasonable suspicion merely because it is observed in a high-crime area. Since Terry, this Court

has without difficulty determined whether conduct

was “unusual.” Officers are well-equipped to make the

same commonsense judgments from their experience

and training. See Arvizu, 534 U.S. at 275-276.

If the kind of routine, widely shared conduct at issue here justifies reasonable suspicion, there is

virtually no place in a high-crime area where law-abiding citizens are secure from seizure. The Fourth

Amendment’s essential purpose is to “safeguard the

privacy and security of individuals against arbitrary

invasions by governmental officials.” Carpenter v.

United States, 138 S. Ct. 2206, 2213 (2018). But if police may seize individuals engaging in conduct “that

any law-abiding citizen might do,” Pet. App. 18a (Elrod, J., dissenting), arbitrary invasions will inevitably

follow. See Reid, 448 U.S. at 441 (“reasonable suspicion” inquiry must guard against “virtually random

seizures”). Absent this Court’s review, it is Fifth Circuit law that anyone sitting in a parked car for 10

seconds outside an open convenience store in a bad

neighborhood may be set upon by a convoy of armed

police cruisers.

Such “standardless and unconstrained” enforcement poses a “grave danger of abuse

of discretion.” Prouse, 440 U.S. at 661-662 (internal

quotation marks omitted). This Court’s intervention

is necessary to clarify and reaffirm the limiting principle: Conduct in which law-abiding members of the

public routinely engage cannot create “reasonable suspicion” for an investigatory stop, merely because it

occurs in a high-crime area.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.