Petition for Writ of Certiorari — Joshua Brown, Petitioner v. United States

NO. _______

__________________________________________________

IN THE

Supreme Court of the United States

__________ TERM, 20__

__________________________________________________

JOSHUA BROWN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

__________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

__________________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________________

Brad Hansen

Federal Public Defender

FEDERAL PUBLIC DEFENDER’S OFFICE

400 Locust Street, Suite 340

Des Moines, Iowa 50309

Phone: (515) 309-9610

Email: brad_hansen@fd.org

ATTORNEY FOR PETITIONER

QUESTION PRESENTED

A vehicle might appear to be a certain color, but its registration says that it

should be a different color. This might happen if a motorist decided to repaint the

vehicle. This might also occur if a vehicle has a paint job that cannot be described as

one color or another, because it looks like one color in a certain light and a different

color in another light. Or it might even happen if the department of motor vehicles

makes a clerical error when recording the information for the registration. In sum,

it is not a big deal—and it is not a crime—if there is such a discrepancy.

Many such vehicles pass through so-called “high-crime areas,” generally in

urban areas.

The question presented is whether an officer patrolling in a “high-crime area”

has reasonable suspicion to stop any vehicle that does not appear to be the color listed

in its registration. The Eighth Circuit said yes; the correct answer is no.

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PARTIES TO THE PROCEEDINGS

The caption lists all parties to the proceedings.

DIRECTLY RELATED PROCEEDINGS

This case arises from the following proceedings in the United States District

Court for the Northern District of Iowa and the United States Court of Appeals for

the Eighth Circuit:

United States v. Brown, No. 1:21-cr-14-CJW-MAR (N.D. Iowa) (criminal

proceedings), judgment entered May 16, 2022.

United States v. Brown, No. 22-2133 (8th Cir.) (direct criminal appeal),

judgment and opinion entered February 27, 2023.

There are no other proceedings in state or federal trial or appellate courts or

in this Court directly related to this case.

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TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDINGS ............................................................................ ii

DIRECTLY RELATED PROCEEDINGS ..................................................................... ii

TABLE OF AUTHORITIES .......................................................................................... v

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

RELEVANT CONSTITUTIONAL PROVISION .......................................................... 1

STATEMENT OF THE CASE....................................................................................... 2

REASONS FOR GRANTING THE WRIT .................................................................... 4

I.

THE EIGHTH CIRCUIT’S DECISION WAS INCORRECT

BECAUSE A DISCREPANCY BETWEEN THE COLOR THAT A

VEHICLE APPEARS TO BE AND THE COLOR LISTED IN ITS

REGISTRATION DOES NOT AMOUNT TO REASONABLE

SUSPICION FOR A TRAFFIC STOP, EVEN IN A

SUPPOSEDLY HIGH-CRIME AREA ..................................................... 4

II.

THIS COURT SHOULD GRANT THE PETITION TO RESOLVE

A SPLIT AMONG THE STATE AND FEDERAL COURTS ON A

RECURRING ISSUE ............................................................................... 6

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

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INDEX TO APPENDICES

APPENDIX A:

United States v. Brown, No. 22-2133 (8th Cir.) (direct

criminal appeal), Opinion and Judgment dated February

27, 2023 .......................................................................................... 1

APPENDIX B:

United States v. Brown, No. 1:21-cr-14-CJW-MAR (N.D.

Iowa), Judgment dated May 16, 2022 ........................................... 9

APPENDIX C:

United States v. Brown, No. 1:21-cr-14-CJW-MAR (N.D.

Iowa), Report and Recommendation on Motion to Suppress

dated September 28, 2021 1.......................................................... 16

APPENDIX D:

United States v. Brown, No. 1:21-cr-14-CJW-MAR (N.D.

Iowa), Order on Motion to Suppress dated November 5,

2021 .............................................................................................. 36

APPENDIX E:

United States v. Brown, No. 1:21-cr-14-CJW-MAR (N.D.

Iowa), Order on Motion to Suppress dated December 6,

2021 .............................................................................................. 50

The Report and Recommendation was originally filed under seal. It was later

unsealed by order of the court dated August 9, 2022.

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TABLE OF AUTHORITIES

Constitutional Amendment

U.S. Const. amend. IV ............................................................................................... 1, 4

Federal Cases

Supreme Court

Illinois v. Wardlow, 528 U.S. 119 (2000) ...................................................................... 4

Reid v. Georgia, 448 U.S. 438 (1980) (per curiam) ....................................................... 5

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

United States v. Arvizu, 534 U.S. 266 (2002)................................................................ 4

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) ............................................. 5, 6

United States v. Cortez, 449 U.S. 411 (1981) ................................................................ 4

Courts of Appeals

United States v. Brown, 60 F.4th 1179 (8th Cir. 2023) ................................................ 1

United States v. Caro, 248 F.3d 1240 (10th Cir. 2001) ................................................ 9

United States v. Cooper, 431 F. App’x 399 (6th Cir. 2011) (unpublished) ................... 9

United States v. Rodgers, 656 F.3d 1023 (9th Cir. 2011) ............................................. 8

United States v. Uribe, 709 F.3d 646 (7th Cir. 2013) ............................................... 7, 8

District Court

United States v. Clarke, 881 F. Supp. 115 (D. Del. 1995) ............................................ 9

State Cases

Andrews v. State, 658 S.E.2d 126 (Ga. Ct. App. 2008) ................................................. 7

City of Billings v. Rodriguez, 456 P.3d 570 (Mont. 2020) ............................................ 7

Commonwealth v. Mason, No. 1956-09-2, 2010 WL 768721

(Va. Ct. App. Mar. 9, 2010) (unpublished) ......................................................... 7

v

Schneider v. State, 459 S.W.3d 296 (Ark. 2015) ........................................................... 7

Smith v. State, 713 N.E.2d 338 (Ind. Ct. App. 1999).................................................... 7

State v. Hawkins, 140 N.E.3d 577 (Ohio 2019) ............................................................ 7

State v. O’Neill, Nos. 06-S-3456, 06-S-3457, 2007 WL 2227131

(N.H. Super. Ct. Apr. 17, 2007) (unpublished) .................................................. 7

State v. Teamer, 151 So. 3d 421 (Fla. 2014).................................................................. 6

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PETITION FOR WRIT OF CERTIORARI

Petitioner Joshua Brown respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Eighth Circuit.

OPINIONS BELOW

The Eighth Circuit’s published opinion in Mr. Brown’s case is available at 60

F.4th 1179 and appears in the appendix to this petition at page 1.

The U.S. Magistrate Judge’s report and recommendation on Mr. Brown’s

motion to suppress and the U.S. District Judge’s two orders regarding the same are

unpublished and appear in the appendix at pages 16, 36, and 50, respectively.

JURISDICTION

The Eighth Circuit entered judgment in Mr. Brown’s case on February 27,

2023. Mr. Brown did not file a petition for rehearing by the panel or by the en banc

court.

This Court has jurisdiction over this case under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL PROVISION

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be

violated, and no warrants shall issue, but upon probable cause,

supported by oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

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STATEMENT OF THE CASE

An indictment filed in the United States District Court for the Northern

District of Iowa charged Joshua Brown with being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1). The district court denied his motion to suppress

(Apps. C-E), and he pled guilty conditioned on preserving his right to appeal that

ruling. The Eighth Circuit affirmed the district court’s order denying the motion to

suppress. (App. A.)

Mr. Brown’s federal charge stemmed from a traffic stop that occurred in the

early morning hours of July 18, 2020, in Cedar Rapids, Iowa. The police officer who

made the stop observed Mr. Brown driving an orange motorcycle. The motorcycle

caught the officer’s eye simply because it was the only vehicle on the road at that

early hour, and it was traveling in a neighborhood where vehicle-related crimes had

occurred in the past. Mr. Brown did not commit any traffic violations, nor was it

illegal under Iowa law to change the color of a vehicle without updating its

registration. (See App. A, p. 2.)

Despite factors suggesting that no criminal activity was afoot, merely two

considerations led the officer to stop the motorcycle. One, when the officer ran the

license plate, he learned that the plate was registered to a blue (not orange)

motorcycle. (Id.) Two, as the officer closely followed the motorcycle, Mr. Brown pulled

into a residence where, in the officer’s view, “narcotics, stolen property, and stolen

vehicles were frequently found.” (Id.)

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During the traffic stop, a pat-down search led to the discovery of a handgun

with an obliterated serial number (and other items) on Mr. Brown’s person. That

handgun seized from Mr. Brown led directly to the federal case against him. As noted,

the circumstances of the traffic stop prompted a motion to suppress. (See id.)

After an evidentiary hearing, a U.S. Magistrate Judge recommended that Mr.

Brown’s motion to suppress be denied. (App. C.) The U.S. District Judge accepted

that recommendation. (Apps. D, E; see also App. A, p. 3.)

The Eighth Circuit affirmed. (App. A.) The Eighth Circuit held that despite

the many innocuous reasons why the actual color of a vehicle might not match its

registration, the officer’s “partial reliance on the color discrepancy” was reasonable

under the circumstances. (Id., p. 6.) According to the court, the officer’s “personal

knowledge and experience with license-plate anomalies and vehicular crimes both at

the specific location of the stop and in the surrounding neighborhood” provided

reasonable suspicion. (Id.)

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REASONS FOR GRANTING THE WRIT

This Court should grant Mr. Brown’s petition because (1) the Eighth Circuit’s

decision was incorrect, and (2) there is a split of authority on this issue.

I.

THE EIGHTH CIRCUIT’S DECISION WAS INCORRECT BECAUSE A

DISCREPANCY BETWEEN THE COLOR THAT A VEHICLE APPEARS

TO BE AND THE COLOR LISTED IN ITS REGISTRATION DOES NOT

AMOUNT TO REASONABLE SUSPICION FOR A TRAFFIC STOP,

EVEN IN A SUPPOSEDLY HIGH-CRIME AREA.

The Fourth Amendment protects persons from unreasonable seizure. U.S.

Const. amend. IV. Accordingly, an officer conducting an investigative traffic stop

must have “reasonable suspicion that criminal activity may be afoot.” United States

v. Arvizu, 534 U.S. 266, 273 (2002) (quotation marks omitted). This requires “a

particularized and objective basis for suspecting the particular person stopped of

criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18 (1981). A mere

hunch of criminal activity is insufficient. Illinois v. Wardlow, 528 U.S. 119, 123-24

(2000); see also Terry v. Ohio, 392 U.S. 1, 27 (1968).

In this case, Mr. Brown produced credible evidence at the suppression hearing

that changing the color of a vehicle is commonplace. Moreover, there is no Iowa law

requiring a motorist to report to authorities when she or he changes the color of a

vehicle. Additionally, such “discrepancies” might be the result of a clerical error by

the department of motor vehicles. Or they might not be discrepancies at all if a

vehicle has a paint job that gives the appearance of different colors depending on the

light. And the government produced no evidence establishing how frequently color

discrepancies are associated with criminal behavior versus innocent behavior (even

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in a supposedly high-crime area). Despite that, the Eighth Circuit concluded that a

discrepancy between a vehicle’s actual color and the color listed on its registration

contributes to reasonable suspicion for a traffic stop.

The Eighth Circuit’s decision contravenes this Court’s precedent. For instance,

in Reid v. Georgia, 448 U.S. 438 (1980) (per curiam), this Court held a DEA agent

unlawfully seized the petitioner while investigating drug activity at the Atlanta

airport.

The government attempted to justify the seizure by arguing that the

petitioner had flown from Fort Lauderdale (supposedly then the hub of cocaine

distribution in the country) early in the morning and without luggage. Id. at 441.

This Court rejected this argument, reasoning (without empirical data) that more

innocent people than drug couriers fly from Fort Lauderdale in the morning without

luggage. As the Court wrote, these circumstances describe a “very large category of

presumably innocent travelers, who would be subject to virtually random seizures

were the Court to conclude that as little foundation as there was in this case could

justify a seizure.” Id.

United States v. Brignoni-Ponce, 422 U.S. 873 (1975), is also apposite. In that

case, the Court held that the Fourth Amendment prohibits law enforcement from

stopping a vehicle to investigate a potential immigration crime based solely on the

“apparent Mexican ancestry” of its occupants. Id. at 885-87. Again, the Court focused

the inquiry on proportionality:

“Large numbers of native-born and naturalized

citizens have the physical characteristics identified with Mexican ancestry, and even

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in the border area a relatively small proportion of them are aliens.” Id. at 886. In

other words, the illegal activity of a “small proportion” of people fitting certain

characteristics does not give police license to stop all people fitting those

characteristics.

If the Eighth Circuit’s decision stands, it gives officers license to stop motorists

whenever they believe that a vehicle’s color does not match its registration, simply

because they are driving through an allegedly high-crime area. Yes, the explanation

for a color discrepancy could be that a vehicle is stolen or that its registration is

fraudulent. But the explanation could also be completely benign, and traffic stops of

such vehicles would often ensnare innocent motorists. The Fourth Amendment, as

interpreted by this Court in Reid and Brignoni-Ponce, requires more.

II.

THIS COURT SHOULD GRANT THE PETITION TO RESOLVE A

SPLIT AMONG THE STATE AND FEDERAL COURTS ON A

RECURRING ISSUE.

Whether a color discrepancy provides a lawful basis for a traffic stop has

divided state and federal courts.

Several state courts have held that a color discrepancy does not provide a basis

for reasonable suspicion. For instance, in State v. Teamer, 151 So. 3d 421 (Fla. 2014),

the Florida Supreme Court held that a color discrepancy does not lead to reasonable

suspicion of criminal activity. The court concluded that a color discrepancy “is not

inherently suspicious or unusual enough or so out of the ordinary as to provide an

officer with . . . reasonable suspicion.” Id. at 427-28 (quotation marks omitted). The

Arkansas and Montana Supreme Courts (and lower courts in other states) have made

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similar decisions. See Schneider v. State, 459 S.W.3d 296, 299 (Ark. 2015) (adopting

Teamer); City of Billings v. Rodriguez, 456 P.3d 570, 573 (Mont. 2020);

Commonwealth v. Mason, No. 1956-09-2, 2010 WL 768721, at *3 (Va. Ct. App. Mar.

9, 2010) (unpublished); State v. O’Neill, Nos. 06-S-3456, 06-S-3457, 2007 WL 2227131

(N.H. Super. Ct. Apr. 17, 2007) (unpublished) (“This court will not sanction traffic

stops for those citizens who simply decide to paint their cars without some

particularized suspicion of criminal wrongdoing such as, for example, the theft and

subsequent repainting of a vehicle.”).

Other state courts have reached the contrary conclusion, thus showing that a

split exists at the state level. See, e.g., State v. Hawkins, 140 N.E.3d 577, 582 (Ohio

2019) (concluding, over a dissent, that “when an officer encounters a vehicle the whole

of which is painted a different color from the color listed in the vehicle-registration

records and the officer believes, based on his experience, that the vehicle or its

displayed license plates may be stolen, the officer has a reasonable, articulable

suspicion of criminal activity and is authorized to perform an investigative traffic

stop”); Andrews v. State, 658 S.E.2d 126, 128 (Ga. Ct. App. 2008); Smith v. State, 713

N.E.2d 338, 342 (Ind. Ct. App. 1999).

A split also exists at the federal level. On the one hand, United States v. Uribe,

709 F.3d 646 (7th Cir. 2013), held that “driving a car of one color with a registration

number attached to a car of a different color” does not give rise to reasonable suspicion

for a traffic stop. Id. at 648. Police had stopped the defendant in Indiana while he

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was driving a Utah-registered vehicle. Id. In so holding, the court observed that, as

in Iowa, “the color discrepancy itself was lawful, because neither Indiana nor Utah

requires a driver to update his vehicle registration when he changes the color of his

car.”

Id. at 650.

The court also rejected the government’s argument that the

discrepancy provided reasonable suspicion to investigate a violation of an Indiana

provision forbidding registration-swapping because the government failed to prove

its applicability to a nonresident vehicle. Id. at 652-53. Thus, the court held that a

registration-related infraction “could not be the criminal activity at the heart of the

objective reasonable suspicion analysis.” Id. at 654. 2

United States v. Rodgers, 656 F.3d 1023 (9th Cir. 2011), is in line with Uribe.

In Rodgers, law enforcement stopped the defendant’s car based on a color discrepancy.

The court ultimately reversed the denial of the motion to suppress on another ground,

but not before commenting on the issue at hand.

The court noted that “color

discrepancy and high-crime location, even when considered cumulatively, at best

provide a thin basis for reasonable suspicion that the car was stolen.” Id. at 1027

(calling it an “exceedingly close question”).

The Eighth Circuit attempted to distinguish Uribe on the basis that the “color

discrepancy was not the sole basis for [the officer’s] suspicion.” (App. A, p. 5.) But

Uribe did not suggest that a color discrepancy plus driving through a high-crime area

(which are ubiquitous in cities) would suffice for reasonable suspicion. Rather, Uribe

noted that “[w]here our sister circuits have considered color discrepancies, they have

relied on the discrepancy as only one of several factors establishing reasonable

suspicion.” 709 F.3d at 651 (emphasis added).

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2

On the other hand, as the Eighth Circuit noted, “United States v. Cooper, 431

F. App’x 399, 402 (6th Cir. 2011) [(unpublished)], upheld a finding of reasonable

suspicion based on an officer’s testimony about his knowledge and experience with

vehicle-related crime and the fact that the vehicle [with a color discrepancy] was

spotted in a high-crime area.” (App. A, p. 5.) See also United States v. Caro, 248 F.3d

1240, 1246-47 (10th Cir. 2001); United States v. Clarke, 881 F. Supp. 115, 117 (D. Del.

1995).

Thus, there is a split for this Court to address. This issue is recurring because,

as Mr. Brown established, changing the color of a vehicle is commonplace, not all

vehicles can be described as being one particular color or another, and sometimes a

department of motor vehicles will make a mistake. This Court should grant the writ

to weigh in.

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CONCLUSION

For these reasons, Mr. Brown respectfully requests that his petition for writ of

certiorari be granted.

RESPECTFULLY SUBMITTED,

/s/ Brad Hansen

Federal Public Defender

FEDERAL PUBLIC DEFENDER’S OFFICE

400 Locust Street, Suite 340

Des Moines, Iowa 50309

Phone: (515) 309-9610

Email: brad_hansen@fd.org

ATTORNEY FOR PETITIONER

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