Amicus Curiae Brief — Casondra Pollreis, on Behalf of Herself and Her Minor Children, W. Y. and S. Y., Petitioner v. Lamont Marzolf

No. 21-901

In The

Supreme Court of the United States

CASONDRA POLLREIS, ON BEHALF OF HERSELF AND HER

MINOR CHILDREN, W.Y. AND S.Y.,

Petitioner,

v.

LAMONT MARZOLF,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

MOTION FOR LEAVE AND BRIEF OF

LAURENT SACHAROFF AS AMICUS CURIAE

SUPPORTING PETITIONER

COURTNEY ELGART

SULLIVAN & TRIGGS,

LLP

Washington, DC 20011

(310) 272-7732

SHELDON EISENBERG

Counsel of Record

GILLIAN KUHLMANN

NAIRI SHIRINIAN

D. THOMAS TRIGGS

SULLIVAN & TRIGGS, LLP

1230 Montana Ave., # 201

Santa Monica, CA 90403

(310) 451-8300

seisenberg@sullivantriggs.com

Counsel for Amicus Curiae

1

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF

Laurent Sacharoff is a law professor at the

University of Arkansas. Professor Sacharoff timely

notified the parties of his intent to submit an amicus

brief in this case, as required by Supreme Court Rule

37.2(a). Petitioner consented. Respondent refused

consent. Professor Sacharoff respectfully moves this

Court, under Supreme Court Rule 37.2(b), for leave to

file the attached brief in support of Petitioner.

Professor Sacharoff submits this amicus brief to

expand on the circuit split identified in the petition.

Professor Sacharoff situates the Eighth Circuit’s

opinion in a doctrinal divide that has emerged in the

circuit courts over what happens when the police’s

conduct exceeds the limited scope of the investigative

stop approved of in Terry v. Ohio, 382 U.S. 1 (1968).

In short, Professor Sacharoff argues that the Eighth

Circuit has chosen the wrong side of that divide by

treating Terry as boundless authority for police

officers to take whatever steps necessary to further

their brief investigation—no matter how intrusive—

once an officer can establish specific and articulable

facts that wrongdoing may have occurred. Other

circuit courts have rejected the Eighth Circuit’s fixed,

yet expansive position in favor of one that balances the

level of intrusiveness against the level of suspicion. It

is this latter position—and not the one taken by the

2

Eighth Circuit below—that complies with Terry and

with this Court’s cases interpreting Terry.

Professor Sacharoff studies, teaches, and writes

about the Fourth Amendment. His works on the

subject include The Broken Fourth Amendment Oath,

74 Stan. L. Rev. __ (forthcoming); The Fourth

Amendment Inventory as a Check on Digital Searches,

105 Iowa L. Rev. 1643 (2020); Trespass and Deception,

2015 B.Y.U. L. Rev. 359 (2015); Constitutional

Trespass, 81 Tenn. L. Rev. 877 (2014); The Binary

Search Doctrine, 42 Hofstra L. Rev. 1139 (2014); and

The Relational Nature of Privacy, 16 Lewis & Clark L.

Rev. 1249 (2012). His scholarly works have been cited

to establish background principles of Fourth

Amendment law. See United States v. Sweeney, 821

F.3d 893, 899 (7th Cir. 2016). He offers this brief to

highlight the doctrinal problems with the Eighth

Circuit’s opinion below.

3

Respectfully Submitted.

COURTNEY ELGART

SULLIVAN & TRIGGS, LLP

Washington, DC

20011

(310) 272-7732

SHELDON EISENBERG

Counsel of Record

GILLIAN KUHLMANN

NAIRI SHIRINIAN

D. THOMAS TRIGGS

SULLIVAN & TRIGGS, LLP

1230 Montana Ave., # 201

Santa Monica, CA 90403

(310) 451-8300

seisenberg@sullivantriggs.com

Counsel for Amicus Curiae

i

BRIEF OF PROFESSOR LAURENT

SACHAROFF AS AMICUS CURIAE

IN SUPPORT OF PETITIONER



TABLE OF CONTENTS

Page

INTERESTS OF AMICUS CURIAE .......................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 3

I. Terry was a limited departure from the

probable cause requirement. ................................... 4

II. Terry did not create standing authority for

police officers to use any degree of restraint or

threat of force to detain a person. ........................... 6

CONCLUSION.......................................................... 10

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Atwater v. Lago Vista,

532 U.S. 318 (2001)................................................ 10

Dunaway v. New York,

442 U.S. 200 (1979).........................................passim

Florida v. Bostick,

501 U.S. 429 (1991).................................................. 5

Henry v. United States,

361 U.S. 98 (1959) ................................................... 3

Michigan v. Summers,

452 U.S. 692 (1981).........................................passim

Ohio v. Robinette,

519 U.S. 33 (1996) ................................................... 5

Terry v. Ohio,

382 U.S. 1 (1968) ............................................passim

United States v. Brignoni-Ponce,

422 U.S. 873 (1975)............................................ 4, 10

United States v. Chaidez,

919 F.2d 1193 (7th Cir. 1990) ........................... 9, 10

United States v. Edwards,

761 F.3d 977 (9th Cir. 2014) ................................... 9

iii

United States v. Quinn,

815 F.2d 153 (1st Cir. 1987). ................................... 9

United States v. Sweeney,

821 F.3d 893 (7th Cir. 2016) ................................... 1

United States v. Watson,

423 U.S. 411 (1976).................................................. 3

Other Authorities

Laurent Sacharoff, Constitutional Trespass,

81 Tenn. L. Rev. 877 (2014) .................................... 1

Laurent Sacharoff, The Binary Search Doctrine,

42 Hofstra L. Rev. 1139 (2014) ............................... 1

Laurent Sacharoff, The Broken Fourth Amendment

Oath, 74 Stan. L. Rev. __ (forthcoming) ................. 1

Laurent Sacharoff, The Fourth Amendment Inventory

as a Check on Digital Searches,

105 Iowa L. Rev. 1643 (2020) .................................. 1

Laurent Sacharoff, The Relational Nature of Privacy,

16 Lewis & Clark L. Rev. 1249 (2012) .................... 1

Laurent Sacharoff, Trespass and Deception,

2015 B.Y.U. L. Rev. 359 (2015) ............................... 1

1

INTERESTS OF AMICUS CURIAE

Laurent Sacharoff is a law professor at the

University of Arkansas. 1 He studies, teaches, and

writes about the Fourth Amendment. His works on

the subject include The Broken Fourth Amendment

Oath, 74 Stan. L. Rev. __ (forthcoming); The Fourth

Amendment Inventory as a Check on Digital Searches,

105 Iowa L. Rev. 1643 (2020); Trespass and Deception,

2015 B.Y.U. L. Rev. 359 (2015); Constitutional

Trespass, 81 Tenn. L. Rev. 877 (2014); The Binary

Search Doctrine, 42 Hofstra L. Rev. 1139 (2014); and

The Relational Nature of Privacy, 16 Lewis & Clark L.

Rev. 1249 (2012). His scholarly works have been cited

to establish background principles of Fourth

Amendment law. See United States v. Sweeney, 821

F.3d 893, 899 (7th Cir. 2016). Professor Sacharoff

offers this amicus brief to situate the Eighth Circuit’s

opinion in a doctrinal divide that has emerged in the

circuit courts over what happens when the police’s

conduct exceeds the limited scope of the investigative

stop approved of in Terry v. Ohio, 382 U.S. 1 (1968). 2

1 The views reflected in this amicus brief are Professor

Sacharoff’s and not necessarily those of the University

of Arkansas.

Under Supreme Court Rule 37.6, amicus curiae

states that no party’s counsel authored this brief in

2

2

SUMMARY OF ARGUMENT

Officer Lamont Marzolf was searching for suspects

who fled running from a traffic stop when he spotted

14-year-old W.Y. and 12-year-old S.Y. walking home

from their grandparents’ house. He stopped the boys,

held them at gunpoint, forced them to the ground,

handcuffed them, and then searched them. The

Eighth Circuit approved Marzolf’s actions by treating

this Court’s decision in Terry v. Ohio, 382 U.S. 1

(1968), as standing authority for police officers to use

any degree of restraint or threat of force to detain a

person no matter how slender their suspicion of

criminal activity. By doing so, the Eighth Circuit has

chosen the wrong side of a divide that strikes at the

heart of the Terry-stop doctrine: what happens when

police officers’ conduct exceeds the limited scope of the

investigative stop approved of in Terry?

The Eighth Circuit’s answer: nothing. In the

opinion below, the court treats Terry as standing

authority for all intrusive police action short of formal

arrest, so long as the stop does not take too long in

minutes and hours. But this approach expands Terry

beyond its boundaries and conflicts with this Court’s

jurisprudence. Instead, the Eighth Circuit should

whole or in part, and that no party or person other

than amicus curiae contributed money towards the

preparation or filing of this brief.

3

have adopted the approach of the Seventh and Ninth

Circuits, which is to balance the level of intrusiveness,

including the tactics used by the officers, against the

level of suspicion. This latter position complies with

Terry and with this Court’s cases interpreting Terry.

For these reasons, this Court should grant certiorari

to address the doctrinal divide in the circuit courts

and correct the Eighth Circuit’s mistake below.

ARGUMENT

The Fourth Amendment establishes a default rule

and starting point: police must have probable cause to

detain a person in most instances. E.g., Michigan v.

Summers, 452 U.S. 692, 696 (1981); Dunaway v. New

York, 442 U.S. 200, 208, 212–13 (1979). This probable

cause requirement “has roots that are deep in our

history.” Dunaway, 442 U.S. at 213 (quoting Henry v.

United States, 361 U.S. 98, 100 (1959)); United States

v. Watson, 423 U.S. 411, 418–22 (1976). It represents

not merely a balance based on policy suiting a

particular era, but a balance that the framers and

ratifiers of the Fourth Amendment intended.

Dunaway, 442 U.S. at 208, 213; Watson, 423 U.S. at

418–22. Indeed, “[h]ostility to seizures based on mere

suspicion was a prime motivation for the adoption of

the Fourth Amendment.” Dunaway, 442 U.S. at 213.

4

I.

Terry was a limited departure from the

probable cause requirement.

A. Terry represents a limited departure from the

probable cause requirement for “brief and narrowly

circumscribed intrusions” on individuals’ Fourth

Amendment rights. Dunaway, 442 U.S. at 212;

Summers, 452 U.S. at 698; United States v. BrignoniPonce, 422 U.S. 873, 881–82 (1975). In Terry, a police

officer observed two men “hover about a street corner

for an extended period of time”; “pace alternately

along an identical route, pausing to stare in the same

store window roughly 24 times”; stop at the end of

each loop to confer with one another; and then meet

up with a third man. 392 U.S. at 23. On that basis and

relying on his thirty years’ experience patrolling that

neighborhood for potential thievery, the officer

suspected the men of casing the place for a robbery.

Id. The officer stopped the three men, ordered them to

place their hands against a wall, and patted down the

outside of their clothing for weapons. Id. at 6–7.

This Court held that the officer’s conduct was

permissible because the officer had “specific and

articulable facts” that “warrant[ed] that intrusion.”

Id. at 21. Terry also held that the officer could make a

limited search of the individuals he detained because

a “reasonably prudent man in the circumstances

would be warranted in the belief that his safety or that

5

of others was in danger.” Id. at 27. By endorsing the

officer’s behavior, Terry did not abandon the general

probable cause requirement. This Court simply

sanctioned stops “so substantially less intrusive than

arrests that the general rule requiring probable cause

* * * could be replaced by a balancing test.” Dunaway,

442 U.S. at 210; Summers, 452 U.S. at 699. In judging

whether an encounter falls within Terry, “a court

must consider all the circumstances surrounding the

encounter.” See Florida v. Bostick, 501 U.S. 429, 439

(1991); Ohio v. Robinette, 519 U.S. 33, 39 (1996).

B. Officer Marzolf’s actions here are far afield from

the limited detention that occurred in and was

approved by Terry. First, Marzolf trained his high

beam on the two boys, pointed his car in their

direction, and verbally stopped them. App. 36a–37a.

Then, Marzolf pointed his gun at the boys and ordered

them to the ground in the prone position. App. 37a–

40a. Next, Marzolf requested backup and was joined

by a second officer who also pointed his gun at the

boys. App. 40a. Finally, Marzolf handcuffed the boys,

frisked them, and searched their backpack. App. 40a–

41a. The actions Marzolf took—holding the boys at

gunpoint and restraining them with handcuffs—are

quintessential emblems of arrest. In the ordinary

human experience, they are frightening, they are

intimidating, and they heighten the risk of harm to

citizens.

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The Eighth Circuit justified this encounter as a

Terry stop. In doing so, the court ignored the basic

premise of Terry: that the stop be “narrowly

circumscribed.” E.g., Dunaway, 442 U.S. at 212.

II.

Terry did not create standing authority

for police officers to use any degree of

restraint or threat of force to detain a

person.

Faced with a police officer whose actions exceeded

the limited scope of a Terry stop, the Eighth Circuit

had two options. First, it could consider whether there

was fit between Marzolf’s actions and his level of

suspicion. Or second, it could treat Terry as carte

blanche for police officers to take any actions, no

matter how intrusive and no matter how slender their

suspicion of criminal activity. The Eighth Circuit

chose the wrong option.

A. The Eighth Circuit did not consider whether the

intrusiveness of Marzolf’s conduct was justified by the

facts supporting his suspicion that the boys were

involved in wrongdoing and were armed. If it had, it

could not have approved of Marzolf’s actions because

nothing about his actions was proportional. First,

Marzolf used escalating restraints and threat of force

to detain 14-year-old W.Y. and 12-year-old S.Y. even

as his cause for stopping the boys dissipated. Marzolf

was searching for persons who fled, running, from a

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traffic stop. App. 36a. He spotted W.Y. and S.Y.

walking down the street, not running; Marzolf trained

his high beam on them and pointed his car in their

direction, App. 36a–37a. The boys were calm, not out

of breath; Marzolf detained them. App. 37a. The boys

complied with Marzolf’s commands; Marzolf trained

his gun on them. App. 37a. The boys were Caucasian

and wearing khakis and jeans while a radio

transmission stated that the suspect was Hispanic

and wearing black jeans; Marzolf ordered the boys to

the ground, on their stomachs, in the prone position.

App. 38a–40a, 54a n. 9. The boys’ parents, first their

mother, then their stepfather, identified W.Y. and

S.Y. as their minor children who had been with them

while the traffic stop in question occurred; Marzolf

requested backup and was joined by a second officer

who also pointed his gun at the boys. App. 40a. The

boys wore black hoodies while dispatch stated that the

only remaining suspects were a woman and her male

companion in a grey hoodie and blue jacket; Marzolf

handcuffed the boys, frisked them, and searched their

backpack. App. 40a–41a. At each step, as his reason

for suspicion lessened, Marzolf’s intrusions escalated.

Second, Marzolf’s suspicion that the boys were

armed was attenuated. His suspicion rested on the

premise that the boys were the fleeing suspects and

that one of the suspects, at one point previously, had

carried a firearm. App. 51a. Thus, as Marzolf’s

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suspicion that the boys were the fleeing suspects

dissipated so went his basis for believing that they

might be armed. Yet, with little cause to detain the

boys and even less cause to believe that they were

armed, Marzolf escalated.

Instead of balancing Marzolf’s actions against the

facts supporting the detention and search, the Eighth

Circuit treated Terry as standing authority for police

officers to use any degree of restraint or threat of force

to detain a person no matter how slender their

suspicion of criminal activity. Although the opinion

below notes that the level of suspicion matters, the

Eighth Circuit ignored this factor in favor of a singleminded focus on duration. App. 8a–11a. Duration does

matter—Terry stops must generally be brief—but

Terry and later cases all make clear that tactics

matter too. E.g., Dunaway, 442 U.S. at 212; Terry, 392

U.S. at 18 n. 15, 21. The opinion below also ignored

the

totality

of

circumstances—which

show

diminishing justification and escalating restraints

and threat of force to carry out the seizure—treating

the facts in piecemeal fashion. At the same time, the

court took maximum advantage of bootstrapping

when accessing the appropriateness of Marzolf’s

actions, relying on his slight suspicion that the boys

were armed to justify intrusive restraints that violate

the premise of Terry. By focusing on duration and

ignoring the totality of the restraints and threat of

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force Marzolf used, the Eighth Circuit’s opinion

effectively gives cover to police officers to use any

tactics to detain a person, so long as they keep the

encounter relatively short.

B. The Eighth Circuit should have considered

whether there was a fit between the intrusiveness of

Marzolf’s actions and the facts supporting his

suspicion that the boys were involved in wrongdoing

and were armed. Other circuits have adopted this

approach in one of two ways. Some have placed this

balancing in the analysis of whether there was

reasonable suspicion. United States v. Edwards, 761

F.3d 977, 981 (9th Cir. 2014). This approach finds

some support in Terry itself. The case’s seminal ruling

is articulated as a balancing test that places the

“particular intrusion” against the specific facts

“warrant[ing] that intrusion.” Terry, 382 U.S. at 21;

Dunaway, 442 U.S. at 210 (describing Terry as

creating a balancing test).

Other circuits have also acknowledged that highly

intrusive stops exceed the boundaries of Terry and its

reasonable suspicion standard. United States v.

Chaidez, 919 F.2d 1193, 1197 (7th Cir. 1990); cf.

United States v. Quinn, 815 F.2d 153, 158 (1st Cir.

1987). The Seventh Circuit’s opinion in Chaidez

illustrates this latter approach. When the police

officer’s actions fall between “a brief detention”

10

requiring reasonable suspicion and “a traditional

arrest, where the defendant is handcuffed, trundled

into a paddy wagon, carted to the station,

fingerprinted, and held in a 12’ v 8’ cell,” the circuit

looks at whether the “degree of suspicion is adequate

in light of the degree and duration of restraint.” Id. at

1197–98. This approach aligns with this Court’s

opinions acknowledging that Terry is a cabined

exception to the probable cause requirement and does

not cover the field of all seizures falling short of formal

arrest. E.g., Dunaway, 442 U.S. at 212; Summers, 452

U.S. at 698, 702; Brignoni-Ponce, 422 U.S. at 881–82.

Both approaches—requiring a fit between the

cause for a seizure or search and the intrusiveness of

its execution—reflect Terry’s admonition that the

scope of the search, as much as its initiation, must be

reasonable. Terry, 382 U.S. at 17–18, 28–29; Atwater

v. Lago Vista, 532 U.S. 318, 364, 372 (2001) (O’Connor,

J. dissenting).

CONCLUSION

For these reasons, the petition for writ of

certiorari should be granted.

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Respectfully submitted.

COURTNEY ELGART

SULLIVAN & TRIGGS, LLP

Washington, DC

20011

(310) 272-7732

SHELDON EISENBERG

Counsel of Record

GILLIAN KUHLMANN

NAIRI SHIRINIAN

D. THOMAS TRIGGS

SULLIVAN & TRIGGS, LLP

1230 Montana Ave., # 201

Santa Monica, CA 90403

(310) 451-8300

seisenberg@sullivantriggs.com

Counsel for Amicus Curiae

Dated: January 18, 2022