Petition for Writ of Certiorari — Jace Emerson Fesler, Petitioner v. United States

No. 23-___________

IN THE SUPREME COURT OF THE UNITED STATES

____________________________

____________________________

JACE EMERSON FESLER,

Petitioner,

-vUNITED STATES OF AMERICA,

Respondent.

____________________________

____________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

____________________________

____________________________

PETITION FOR A WRIT OF CERTIORARI

MICHAEL MARKS

Assistant Federal Public Defender

FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF ALASKA

188 W. Northern Lights Blvd., Suite 700

Anchorage, AK 99503

Telephone: (907) 646-6400

Facsimile: (907) 646-3480

Michael_Marks@fd.org

QUESTION PRESENTED FOR REVIEW

Does a citizen’s noncompliance with an unlawful order from law enforcement

create reasonable suspicion to conduct a Terry frisk?

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TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ........................................................................ prefix

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

RELEVANT PROVISIONS ................................................................................................... 2

DIRECTLY RELATED PROCEEDINGS .................................................................................. 2

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

A.

Background. .............................................................................................. 2

B.

District Court Proceedings. ...................................................................... 5

C.

Appeal to the Ninth Circuit. .................................................................... 5

REASONS FOR GRANTING THE PETITION .......................................................................... 6

A.

Verbal protest against an unlawful police order cannot justify a Terry

frisk. .......................................................................................................... 6

B.

The Ninth Circuit Erroneously Concluded that Petitioner’s Demeanor

in Refusing to Comply with an Unlawful Order Gave Rise to

Reasonable Suspicion that He Was Dangerous. ..................................... 7

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

APPENDIX A – United States v. Fesler, Ninth Cir. Case No. 22-30029, Mar. 1, 2023

PROOF OF SERVICE

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TABLE OF AUTHORITIES

CASES

City of Houston, Tex. v. Hill, 482 U.S. 451 (1987) ................................................... 7, 9

Terry v. Ohio, 392 U.S. 1 (1968) ............................................................................ 6, 8, 9

United States v. Fesler, __ F. App’x ___, 2023 WL 2301435 (9th Cir. 2023) ..... passim

STATUTES

18 U.S.C. § 3231 ......................................................................................................... 1, 5

28 U.S.C. § 1254 ............................................................................................................. 1

28 U.S.C. § 1291 ......................................................................................................... 1, 5

RULES

S. Ct. R. 10 ..................................................................................................................... 9

S. Ct. R. 14(b)(iii) ........................................................................................................... 2

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I .................................................................................................. 2, 7

U.S. Const. amend. IV ....................................................................................... 2, 6, 7, 9

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IN THE SUPREME COURT OF THE UNITED STATES

____________________________

____________________________

JACE EMERSON FESLER,

Petitioner,

-vUNITED STATES OF AMERICA,

Respondent.

____________________________

____________________________

Petitioner Jace Emerson Fesler respectfully prays that a writ of certiorari

issue to review the decision of the United States Court of Appeals for the Ninth

Circuit entered on March 1, 2023.

JURISDICTION

The District Court for the District of Alaska had original jurisdiction over the

criminal offense against the United States under 18 U.S.C. § 3231. Reviewing the

judgment under 28 U.S.C. § 1291, the Ninth Circuit affirmed Petitioner’s conviction

in an unpublished disposition on March 1, 2023. See United States v. Fesler, __ F.

App’x ___, 2023 WL 2301435 (9th Cir. 2023) (App. A). This Court has jurisdiction to

review the Ninth Circuit’s decision under 28 U.S.C. § 1254(1).

RELEVANT PROVISIONS

U.S. Const. amend. I: Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof; or abridging the

freedom of speech, or of the press; or the right of the people peaceably to assemble,

and to petition the Government for a redress of grievances.

U.S. Const. amend. IV: 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.

DIRECTLY RELATED PROCEEDINGS

There are no directly related proceedings under Rule 14(b)(iii).

STATEMENT OF THE CASE

A.

Background.

In Wasilla, Alaska, a police offer responded to a report of shoplifting at a

supermarket. The store had reported that a man stole donuts and then walked to a

black Mercedes sedan parked in front of the door. When the officer arrived at the

supermarket parking lot, he parked his police cruiser facing a parked black

Mercedes.

As he walked toward the car, the officer saw a man standing next to the open

passenger-side door eating a donut. Petitioner was sitting in the driver’s seat. The

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officer said hello to Petitioner using his first name, indicating the officer already

knew him. A third man was sitting in the back seat.

As the officer waited for information from dispatch, a supermarket employee

walked up. The employee pointed at the passenger and said, “I didn’t see this guy do

anything.” He then pointed toward the driver’s side of the car and said, “He stole

the donuts.” The employee proclaimed they were “trespassed for life” and walked

away.

Four minutes after the encounter began, the officer called in the Mercedes’

license plate to dispatch. The car was not registered, and the title was under a

name not matching Petitioner. A second officer arrived, and the first officer asked

him to “keep an eye” on Petitioner while he investigated the passenger. When the

first officer returned to the car to talk to Petitioner, he noticed a knife in the car. He

took it and placed it on the roof of the car. Petitioner stayed seated in the driver’s

seat.

The officer addressed Petitioner with a number of accusations. He told

Petitioner he was trespassing, he had transported somebody to steal for him, the car

had the wrong license plates, the car was not insured, and Petitioner did not have a

driver’s license. Petitioner claimed to have proper registration and title, but the

officers were not convinced. The second officer remarked, “I’ve had the pleasure of

arresting [Petitioner] in the past.”

About 17 minutes after the first officer had arrived, the police informed

Petitioner they were going to impound the car. They told him to gather his things

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and go. The officer repeated, “You gotta go. You gotta gather your things and go.”

Petitioner calmly agreed and began to gather his belongings inside the car. The two

officers stood next to the car as Petitioner collected his possessions. A third officer

arrived on the scene and asked if he could help. The second officer then left. The

first officer observed Petitioner handle a knife and told the third officer, “Just make

sure he puts it away before he gets out of the car.”

The two officers walked to the back of the car and opened the trunk. With the

trunk up, they had no view of Petitioner. The first officer took Petitioner’s backpack

from the trunk and brought it back to him. Petitioner said, “I’ll just come out and go

around.” The officer told him to put any knives away in the backpack. The officer

said, “I’ll let you take care of that, but just make sure, like, it stays wrapped up in

the coat, alright?”

Before Petitioner could get out of the car, the officer said, “I’ll take the key.”

Petitioner responded, “No, you can’t have the keys to my car.” The officer said, “No,

that key goes to this car; this car’s gettin’ impounded.” Petitioner answered, “That

doesn’t mean I have to give you the keys, do it?” Petitioner opened the door and got

out of the car. The first officer was still standing next to the trunk and the other

officer was standing on the side of the car, a few feet away. The other officer asked,

“You’re not leaving the key to the car?” Petitioner again refused. Neither officer

approached or frisked him as he got out of the car. Outside of the car, Petitioner

raised his voice and expressed his displeasure with the officers and the seizure of

his car.

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About 30 seconds after Petitioner got out, he walked past the first officer

toward the rear of the Mercedes. The first officer said, “I want to make sure there

are no knives on you, alright?” He grabbed Petitioner by the elbow. Petitioner

stated, “I have a firearm on me.” The officers took the gun from him and placed him

under arrest.

B.

District Court Proceedings.

The government charged Petitioner with one count of being a felon in

possession of a firearm and ammunition. The district court had jurisdiction over the

case under 18 U.S.C. § 3231.

Petitioner moved to suppress the gun and ammunition, arguing that the

officers did not have reasonable suspicion to conduct a Terry frisk. The district court

denied the motion without an evidentiary hearing, adopting the magistrate judge’s

finding that Petitioner’s “understandable” reaction to the seizure of his car and his

handling of two knives created reasonable suspicion for the search.

Petitioner waived his right to a jury and the district court convicted him after

a stipulated-facts bench trial. Petitioner timely appealed.

C.

Appeal to the Ninth Circuit.

On appeal, Petitioner argued that the district court had erred in denying his

motion to suppress. Reviewing the judgment under 28 U.S.C. § 1291, the Ninth

Circuit affirmed the conviction in an unpublished memorandum. See App. A. The

panel agreed with Petitioner that he was “calm, compliant, and seated in his vehicle

for much of the investigatory stop.” Id. But they ultimately concluded that

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reasonable suspicion existed because the officers knew Petitioner had knives and he

“raised his voice and refused to give the officers his keys as they approached him.”

Id. The Court held, “Considering the officers’ knowledge of Fesler’s knife possession,

together with Fesler’s demeanor after he exited the vehicle, we hold that the frisk

was supported by a reasonable suspicion that he was armed and dangerous.” Id.

REASONS FOR GRANTING THE PETITION

This Court should grant certiorari to correct the Ninth Circuit’s error in

concluding that officers had reasonable suspicion to conduct a Terry frisk. Terry

provides a limited exception to the warrant requirement, requiring reasonable

suspicion that a person is armed and dangerous to justify a search for weapons. See

Terry v. Ohio, 392 U.S. 1 (1968). Here, the Ninth Circuit concluded that Petitioner’s

failure to obey an unlawful order—that he surrender the keys to his car—created a

reasonable suspicion that he posed a danger to police. This conclusion was error.

Non-violent refusal to comply with an unlawful order from law enforcement cannot

form the basis of reasonable suspicion for a Terry frisk

A.

Verbal protest against an unlawful police order cannot justify a

Terry frisk.

The Fourth Amendment requires that “the police must, whenever practicable,

obtain advance judicial approval of searches and seizures through the warrant

procedure.” Terry, 392 U.S. at 20. In Terry v. Ohio, however, the Court announced a

“narrowly drawn authority to permit a reasonable [warrantless] search for weapons

for the protection of the police officer, where he has reason to believe that he is

dealing with an armed and dangerous individual.” 392 U.S. 1, 27 (1968). Under this

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rule, an officer may perform a limited frisk when he has reasonable suspicion that

the person he is investigating is “armed and presently dangerous to the officer or to

others[.]” Id. at 24. “[T]he issue is whether a reasonably prudent man in the

circumstances would be warranted in the belief that his safety or that of others was

in danger.” Id. at 27.

Against this backdrop is the notion that “the First Amendment protects a

significant amount of verbal criticism and challenge directed at police officers.” City

of Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987). This “reflects the constitutional

requirement that, in the face of verbal challenges to police action, officers and

municipalities must respond with restraint.” Id. at 471. Together, the First and

Fourth Amendments thus protect against a particular, egregious form of police

misconduct: a suspicionless search in retaliation against protected speech.

The police, then, may not justify a warrantless search by pointing to a

person’s angry or even profane reaction to an unlawful order. A person who does not

use ‘fighting words’ or engage in any conduct is not a danger. A contrary rule would

pile one harm on top of another; the police would be permitted to unlawfully

provoke a citizen with an unlawful order and then search the citizen without a

warrant in the face of a reasonable refusal.

B.

The Ninth Circuit Erroneously Concluded that Petitioner’s Demeanor in

Refusing to Comply with an Unlawful Order Gave Rise to Reasonable

Suspicion that He Was Dangerous.

The Ninth Circuit’s reasoning in affirming the denial of Petitioner’s motion to

suppress cannot be squared with the First or Fourth Amendment. None of the facts

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identified by the court gives rise to a reasonable suspicion of dangerousness.

Importantly, the police expressly told Petitioner to handle the knives and get out of

the car, so his compliance with those orders hardly showed him to be dangerous. In

addition, the police unlawfully ordered him to surrender the keys to his car, so his

reasonable refusal did not make him dangerous either. The Ninth Circuit erred in

concluding that these circumstances justified a Terry frisk.

As the Ninth Circuit conceded, Petitioner was “calm, compliant, and seated in

his vehicle for much of the investigatory stop.” App. A. The officers were so

unconcerned about any danger during those first twenty or so minutes that they

specifically told Petitioner to gather his knives and put them away. Certainly, no

suspicion of dangerousness arose during this initial period, and the police,

accordingly, did not frisk Petitioner. They had ordered him to collect his things and

go after deciding not to detain him.

The Ninth Circuit ruled, however, that Petitioner’s dangerousness became

apparent when he got out of the car. This danger arose from three facts: 1)

Petitioner was armed with two knives; 2) he had “enhanced freedom of motion” once

outside the car; and 3) he had become “emotional and noncompliant” in response to

the request that he surrender his keys. App. A. None of these facts, however,

justifies a warrantless search for weapons.

First, Petitioner can’t be faulted for holding knives or getting out of the car.

The police ordered him to do both. They easily could have asked Petitioner to leave

the knives in the car and get out, but they did not. Alternatively, they could have

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taken the knives and told Petitioner to remain inside the car, but they did not.

Instead, they ordered him to collect his knives and exit the car. He calmly complied

with those orders. Up to that point, Petitioner was only guilty of doing exactly what

he was asked to do.

The supposed danger arose from Petitioner’s “demeanor after he exited the

vehicle.” App. A. The Ninth Circuit panel reasoned that the frisk “ensure[d] officer

safety” because Petitioner “raised his voice and refused to give the officers his keys

as he approached them.” Id. But the panel never explains how that conduct

translates into dangerousness.

Notably, the panel never asserts that the police had any right to the keys.

Not at any point during the litigation in front of the magistrate judge, district judge,

or appellate court did the government ever state that the police had the right to

seize the keys. Accordingly, Petitioner had every right to get upset, raise his voice,

and say “No!” Petitioner was not noncompliant in general; he only refused to comply

with that lone, unlawful order. Petitioner did not take off running when told to sit,

refuse to show his hands, or refuse to lower a weapon. He simply protested with

non-threatening words, “No, you can’t have the keys to my car.” In fact, the

magistrate judge called his reaction “understandable.” The response to this sort of

protected speech should be “restraint,” not a warrantless search. Hill, 482 U.S. at

471. The Ninth Circuit erred in ruling otherwise.

This is the rare case in which this Court should grant certiorari based on

“misapplication of a properly stated rule of law.” S. Ct. R. 10. “[T]he rule excluding

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evidence seized in violation of the Fourth Amendment has been recognized as a

principal mode of discouraging lawless police conduct.” Terry, 392 U.S. 1, 12 (1968).

Were this Court to leave the Ninth Circuit’s decision in place, it would go further

than condoning Petitioner’s conviction based on illegally discovered evidence. It

would broadcast to law enforcement that they may frisk people based solely on their

exercise of a constitutionally protected right to refuse cooperation with unlawful

orders. This Court should not send that message.

CONCLUSION

The Ninth Circuit erred in affirming the denial of Petitioner’s motion to

suppress. This Court should grant this Petition for a Writ of Certiorari and correct

the Ninth Circuit’s error.

Respectfully submitted,

Dated: May 30, 2023

s/ Michael Marks

MICHAEL MARKS

Assistant Federal Public Defender

FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF ALASKA

188 W. Northern Lights Blvd. Suite 700

Anchorage, AK 99503

Telephone: (907) 646-6400

Facsimile: (907) 646-3480

Michael_Marks@fd.org

Attorney for Petitioner

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