Opposition Brief — Kansas, Petitioner v. Jeremy A. Cline

Supreme Court briefDec 6, 2023

Ask Donna

What actually matters in this document.

Text

No. 23-335

In the Supreme Court of the United States

Kansas,

Petitioner,

Jeremy A. Cline,

Respondent.

On petition for a writ of certiorari to the

Kansas Court of Appeals

BRIEF IN OPPOSITION

Eugene R. Fidell

Yale Law School

Supreme Court Clinic

127 Wall Street

New Haven, CT 06511

Reid T. Nelson

Laura Stratton

Capital/Conflicts

Appellate Defender

Capital Appeals &

Conflicts Office

701 SW Jackson, 3d Fl.

Topeka, KS 66603

Michael B. Kimberly

Counsel of Record

Paul W. Hughes

Sarah P. Hogarth

Andrew A. Lyons-Berg

McDermott Will & Emery LLP

500 North Capitol Street NW

Washington, DC 20001

(202) 756-8000

mkimberly@mwe.com

Counsel for Respondent

TABLE OF CONTENTS

Table of Authorities ..................................................... ii

Brief in Opposition ........................................................ 1

Statement......................................................................3

A. Legal background ...............................................3

B. Factual background ............................................5

C. Proceedings below ............................................. 9

Reasons for Denying the Petition ................................ 13

A. This Court lacks jurisdiction............................. 13

B. This case would not warrant further review

even if the Court had jurisdiction ...................... 15

1. No lower court has adopted a categorical

rule against suppression of evidence

uncovered as a result of excessive force ....... 15

2. The petition seeks mere error correction

and presents facts certain never again to

recur .......................................................... 20

3. The decision below is correct...................... 22

Conclusion ................................................................. 25

TABLE OF AUTHORITIES

Cases

Bateman v. Arizona,

429 U.S. 1302 (1976) ............................................ 13

Brito v. State,

2016 WL 7377180 (Nev. 2016) ............................. 19

Conwell v. State,

714 N.E.2d 764 (Ind. Ct. App. 1999) ............... 19, 20

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975) ........................................ 14, 15

Davis v. United States,

564 U.S. 229 (2011) ............................ 2, 3, 4, 22, 23

Grier v. State,

868 N.E.2d 443 (Ind. 2007) .................................. 19

Herring v. United States,

555 U.S. 135 (2009) .......................................... 4, 23

Huber v. New Jersey Department of

Environmental Protection,

562 U.S. 1302 (2011) ............................................22

Hudson v. Michigan,

547 U.S. 586 (2006)............................................ 3, 4

Mapp v. Ohio,

367 U.S. 643 (1961) ................................................ 3

Murray v. United States,

487 U.S. 533 (1988) ................................................ 4

Nix v. Williams,

467 U.S. 431 (1984) ................................................ 4

Ohio v. Robinette,

519 U.S. 33 (1996) .................................................. 3

iii

Cases—continued

Republic Natural Gas Co. v. Oklahoma,

334 U.S. 62 (1948) ................................................ 13

Segura v. United States,

468 U.S. 796 (1984) ................................................ 3

Serfass v. United States,

420 U.S. 377 (1975) .............................................. 14

Silverthorne Lumber Co. v. United States,

251 U.S. 385 (1920) ................................................ 3

State v. Daniel,

242 P.3d 1186 (Kan. 2010) .................................. 4, 5

State v. Ellis,

469 P.3d 65 (Kan. 2020) ..................................... 4, 5

State v. Henning,

209 P.3d 711 (Kan. 2009)........................................ 4

State v. Herr,

828 N.W.2d 896 (Wis. Ct. App. 2013) ................... 19

State v. Hodson,

907 P.2d 1155 (Utah 1995).............................. 19, 20

State v. Hoeck,

163 P.3d 252 (Kan. 2007) ....................................... 5

State v. Neighbors,

328 P.3d 1081 (Kan. 2014) ...................................... 4

State v. Nelson,

354 So. 2d 540 (La. 1978) ..................................... 19

State v. Sundberg,

611 P.2d 44 (Alaska 1980)..................................... 18

Cases—continued

State v. Tapp,

353 So. 2d 267 (La. 1977)...................................... 19

State v. Ward,

2021 WL 4127189 (Idaho Ct. App. 2021) .............. 19

United States v. Ankeny,

502 F.3d 829 (9th Cir. 2007) ................................ 16

United States v. Garcia-Hernandez,

659 F.3d 108 (1st Cir. 2011) ............................ 17, 18

United States v. Leon,

468 U.S. 897 (1984) ..........................................4, 24

United States v. Morales,

385 F. App’x 165 (3d Cir. 2010) ............................ 19

United States v. Ramirez,

523 U.S. 65 (1998) ................................................ 16

United States v. Watson,

558 F.3d 702 (7th Cir. 2009)........................... 16, 17

Utah v. Strieff,

579 U.S. 232 (2016) ................................................ 4

Wong Sun v. United States,

371 U.S. 471 (1963) ................................................. 3

Other Authorities

28 U.S.C. § 1257(a) ..................................................... 13

S. Shapiro, K. Geller, T. Bishop, E.

Hartnett, & D. Himmelfarb, Supreme

Court Practice (10th ed. 2013) ............................... 21

BRIEF IN OPPOSITION

The facts of this case are shocking, and the Kansas

intermediate court was manifestly correct to apply the

exclusionary rule in these highly unusual circumstances.

This case involved a tactical vehicle intervention, or TVI

maneuver, used by state trooper Justin Dobler to stop

respondent Jeremy Cline’s vehicle during a low-speed

pursuit over a trivial moving violation. This was Dobler’s

sixth vehicle pursuit in fifteen months, and he had a long

history of official discipline for engaging in inappropriate

car chases. The TVI maneuver in this case killed Anita

Benz, Cline’s girlfriend and front-seat passenger. Dobler

was terminated from his job as a state trooper as a result,

for “willful endangerment of lives” and “gross carelessness” in the execution of his job duties.

Dobler began his pursuit of Cline’s car because of a

simple cracked windshield. He chased the vehicle at low

speeds through a residential area, in violation of departmental policy. The video evidence is clear that, during the

three-minute pursuit, Cline was not driving recklessly or

putting any bystanders at risk. He even used his turn

signal and slowed at stop signs. A records check showed

the vehicle was not stolen.

Nonetheless, once the car turned onto a divided-lane

road, Dobler used a TVI maneuver to deliberately send the

vehicle into a telephone pole, seriously injuring Cline and

killing Benz. Because of a cracked windshield.

Having stopped the vehicle with this flagrantly

unreasonable application of force, Dobler uncovered

evidence of certain crimes—principally, according to

state prosecutors, evidence of felony murder for the very

death that Dobler himself had caused.

At the suppression hearing that followed, several of

Trooper Dobler’s supervisors, including his unit captain,

testified for Cline. They explained that Dobler had been

warned repeatedly not to initiate vehicle pursuits within

city limits for anything other than “violent person

felonies,” and they uniformly opined that that the chase

in this case was grossly unreasonable.

When police misconduct is “deliberate, reckless, or

grossly negligent * * * the deterrent value of exclusion is

strong and tends to outweigh the resulting costs,”

warranting suppression. Davis v. United States, 564 U.S.

229, 238 (2011). As the state trial court remarked at the

suppression hearing, this was thus the “very rare” case in

which settled Fourth Amendment principles warranted

exclusion of evidence as a response to excessive force.

In upholding that conclusion, the intermediate state

appellate court expressly recognized the fact-bound

nature of suppression rulings like this and kept its

analysis tightly focused on the highly unusual circumstances of the case.

Kansas disagrees with the bottom-line result below.

In its view, the evidence should not have been suppressed,

and Cline should now be serving a decades-long sentence

for the death caused by Dobler’s willful endangerment of

lives. But this Court lacks jurisdiction to address that

question because the appeal is expressly “interlocutory”

(Pet. App. 15) and thus not final under Section 1257(a).

Even if it were otherwise, review would be unwarranted. Rather than framing its petition as the (illconceived) error-correction request that it is, Kansas mischaracterizes the decision below as creating a “split of

opinion about the application of the exclusionary rule” in

excessive-force cases. That is obviously wrong. No court

has held that excessive-force violations cannot ever

support suppression, nor would such a rule make sense,

as this case makes clear. The disparate outcomes Kansas

identifies in its petition are not the result of a disagreement among the lower courts on a common matter

of law; they are instead the result of courts applying the

same legal standards to disparate facts. In these circumstances, further review would be folly.

STATEMENT

A. Legal background

The exclusionary rule—which prohibits the use of

unlawfully seized evidence in criminal trials—is the

primary means of enforcing Fourth Amendment violations by federal and state courts in criminal proceedings.

See Mapp v. Ohio, 367 U.S. 643, 655 (1961). The

exclusionary rule requires the suppression of evidence

obtained as a direct result of an unlawful search or

seizure, as well as evidence that is derivative of unconstitutional conduct, commonly referred to as “fruit of

the poisonous tree.” See Silverthorne Lumber Co. v.

United States, 251 U.S. 385, 392 (1920); Wong Sun v.

United States, 371 U.S. 471, 484 (1963); Segura v. United

States, 468 U.S. 796, 804 (1984).

The “purpose of the exclusionary rule is to deter

misconduct by law enforcement.” Davis, 564 U.S. at 246.

Like all Fourth Amendment inquiries, it “eschew[s]

bright-line rules, instead emphasizing the fact-specific

nature of the reasonableness inquiry.” Ohio v. Robinette,

519 U.S. 33, 39 (1996). The Court has therefore

explained that exclusion is warranted only “where its

deterrence benefits outweigh its substantial social costs.”

Hudson v. Michigan, 547 U.S. 586, 591 (2006).

In weighing the cost of exclusion against its deterrent

value, the Court focuses “on the ‘flagrancy of the police

misconduct’ at issue.’” Davis, 564 U.S. at 238 (quoting

United States v. Leon, 468 U.S. 897, 911 (1984)). When

police misconduct is “‘deliberate,’ ‘reckless,’ or ‘grossly

negligent’ * * * , the deterrent value of exclusion is strong

and tends to outweigh the resulting costs.” Ibid. (quoting

Herring v. United States, 555 U.S. 135, 144 (2009)).

To have a deterrent effect on law enforcement, there

must be a “causal relationship between the unconstitutional act and the discovery of evidence.” Utah v. Strieff,

579 U.S. 232, 238 (2016). In situations where police

would have discovered the evidence notwithstanding the

unlawful search or seizure, suppression is unwarranted

because exclusion would not serve a deterrent purpose.

See Murray v. United States, 487 U.S. 533, 537-541

(1988) (independent source doctrine); Nix v. Williams,

467 U.S. 431, 444 (1984) (inevitable discovery doctrine).

To be sure, “but-for causality is only a necessary, not a

sufficient, condition for suppression.” Hudson, 547 U.S.

at 592. That is, where the causal connection is “remote

or has been interrupted by some intervening

circumstance” then exclusion would not serve the

deterrent purpose of the rule. Utah, 579 U.S. at 238

(attenuation doctrine).

The Kansas Supreme Court’s approach to the Fourth

Amendment is fully aligned with this Court’s. See, e.g.,

State v. Henning, 209 P.3d 711, 718 (Kan. 2009); State v.

Neighbors, 328 P.3d 1081, 1086 (Kan. 2014); State v.

Ellis, 469 P.3d 65, 70-78 (Kan. 2020); State v. Daniel,

242 P.3d 1186, 1191 (Kan. 2010).

Consistent with this Court’s teachings, the Kansas

Supreme Court holds that the “exclusionary rule operates

to protect Fourth Amendment rights through deterrence,

and it is not the defendant’s personal constitutional

right.” Daniel, 242 P.3d at 1190. And it has therefore

directed Kansas courts—as this Court has—to determine

“whether evidence should be excluded as a sanction for a

Fourth Amendment violation * * * by weighing the costs

and benefits of preventing the prosecution’s use of the

illegally obtained evidence.” Id. at 1190-1191. Likewise,

it has directed Kansas courts to consider the flagrancy of

the police misconduct at issue. See State v. Hoeck, 163

P.3d 252, 265 (Kan. 2007). And Kansas appropriately

requires a close causal relationship between the unlawful

police conduct and the discovery of the evidence sought

to be suppressed before applying the exclusionary rule.

See Ellis, 469 P.3d at 73-74.

B. Factual background

This case concerns Trooper Dobler’s forcible stop of

Cline’s vehicle, killing Anita Benz—his then-girlfriend

and front-seat passenger.

The Kansas Highway Patrol was engaged at the time

in Operation Frontier Justice, a multi-agency task force

aimed at reducing crime in Topeka. Pet. App. 5. Law

enforcement officers who participated in the program

were instructed to avoid vehicle pursuits. Ibid. In the rare

event that an officer felt he had to initiate pursuit, the

operation plan provided that “any pursuits that do occur

should be constantly reevaluated and may be discontinued at any time” and that “paramount consideration

and prioritizing will be given to the safety of the public

and the risk of pursuing individuals.” Ibid. (cleaned up).

Dobler was a member of the task force. He had been

told repeatedly “not to pursue in the City of Topeka

unless * * * chasing a violent felon.” Pet. App. 11. This

rule had been relayed to him in whole-troop meetings, in

private conversations with his supervising captain, and in

numerous emails. Ibid.; see also Resp. C.A. Br. 5, 9, 25.

Dobler had demonstrated an unusual need of these

reminders. At the time he joined the Kansas Highway

Patrol in 2017, he was already facing disciplinary action

by his former employer for violating vehicle pursuit

policies. Resp. C.A. Br. 8. After he joined the Kansas

Highway Patrol, Dobler continued to “receive[] written

warnings for violating [its] pursuit policy.” Pet. App. 10.

On one occasion, he was disciplined for turning off his

lights and siren during an active pursuit. Resp. C.A. Br. 8,

31. On another, he had to be reprimanded for hitting an

innocent vehicle during a pursuit. Id. at 9.

These serial warnings did not take, nor did the clear

terms of departmental policy.

While on patrol in Topeka one afternoon, Dobler

noticed a white sedan with a cracked windshield. Pet.

App. 5. According to Dobler, he believed the windshield

obstructed the driver’s view and presented a safety issue

and moving violation. Ibid. The car also possibly matched

the description of one recently reported stolen, and the

driver (Cline) and its passenger (Benz) looked “nervous”

when they passed his cruiser. Id. at 5-6. Dobler would

later admit that he had “no suspicion” that the occupants

“were felons, nor that they were engaged in any felonious

activity, except for the possible car theft.” Id. at 6.

Based solely on the broken windshield, Dobler turned

on his emergency lights, made a U-turn, and began to

follow the car. Pet. App. 6. Dobler observed the car’s

license plate and reported it to dispatch. Ibid. When the

car did not stop in response to his lights, Dobler turned on

his siren and informed dispatch that he would initiate a

vehicle pursuit, despite being in city limits. Ibid.

Cline continued to drive away from Dobler at low

speeds. Pet. App. 6. Although he did not make complete

stops at stop signs, he continued to use turn signals and

brakes. Ibid. While Dobler would later report that he was

concerned for his and pedestrians’ safety, the dashcam

footage showed that the streets were “almost empty,”

and Dobler later admitted that there was not a single

pedestrian at that point in the pursuit. Ibid. Dobler also

learned from dispatch that the car was not stolen.

Nevertheless, he continued his pursuit. Ibid.

Dobler followed the car into a trailer court. Pet. App.

7. Cline continued to use brakes and turn signals as he

passed through the trailer court, at speeds only “20-30

miles per hour.” Id. Although Dobler would later report

that there were children in the road, the wide-angle video

showed no children. Resp. C.A. Br. 33. And even supposing that Dobler’s version of facts had been true, his

captain later testified that the presence of children in the

trailer court would warrant Dobler stopping his pursuit,

not the other way around. Pet. App. 11. Nonetheless,

Dobler continued to pursue Cline as he drove through the

trailer court and back onto a two-lane street. Id. at 7.

Once on the open road, Dobler decided to perform a

tactical vehicle intervention, or TVI. Pet. App. 7. A TVI

maneuver is intended to make a fleeing vehicle do a

“controlled spin * * * with the intention of disabling [the]

vehicle.” Ibid. Dobler readily admitted that it is a

“dangerous tactic.” Id. at 24.

Dobler chose to do a TVI maneuver because, he would

later claim, there was a car approaching from the other

direction, and Cline might collide with it. Pet. App. 7. And

the state defended Dobler’s decision to initiate the

maneuver as reasonable by arguing that Cline posed an

imminent threat to pedestrians and other cars. Pet. C.A.

Br. 21. But the dashcam footage and photographs in

evidence prove that “the approaching car” had “already

pulled off to the side of the road.” Pet. App. 7. The state

would eventually admit this fact, acknowledging in its

petition for review to the Kansas Supreme Court that

neither pedestrians nor other vehicles faced “immediate

risk.” Id. at 48.

Dobler also admitted that many obstructions on the

side of the road made it a “less than ideal” location for a

tactical vehicle intervention. Pet. App. 7-8, 10. Dobler’s

captain testified that it was a particularly “poor” location

for a TVI due to the “telephone poles, mailboxes, driveways, and parked cars” along the road. Resp. C.A. Br. 27.

And, despite Kansas Highway Patrol generally urging

troopers to seek authorization before performing a TVI

maneuver, Dobler did not bother. Pet. App. 11.

Undeterred by clear departmental policy and many

past warnings, Dobler deliberately struck the back

bumper of Cline’s car. Pet. App. 8. Given his unusually

extensive experience performing these dangerous

maneuvers, Dobler testified that he was “100 percent”

certain where Cline’s car would end up. Resp. C.A. Br. 35.

Cline’s car went “spinning off the road and slamm[ed]

into a telephone pole on its passenger side” (Pet. App. 8),

exactly as Dobler intended.

The pursuit lasted a mere 3 minutes and 35 seconds.

Pet. App. 8. Officers removed Cline through the driver’s

side window and handcuffed him. Ibid. Cline and Benz

were promptly transported to the hospital. Ibid. Officers

eventually found a knife, a bag of methamphetamine, and

drug paraphernalia in Cline’s possession. Ibid.

Benz died of her injuries.

Dobler’s captain and all seven members of the Kansas

Highway Patrol Executive Command agreed that the

pursuit of Cline was more dangerous to the public than the

danger of letting Cline get away. Resp. C.A. Br. 17.

Kansas Highway Patrol Major Sauer testified that the

entire Executive Command—including the Superintendent, the Assistant Superintendent, and five majors in the

Patrol—unanimously agreed that Dobler should be fired.

Id. at 20. Highway Patrol Captain Joseph Witham

testified that Dobler’s “entire pursuit should have been

avoided [and] should not have occurred” because he “was

chasing, ultimately, a windshield violation,” which was

not reasonable. Pet. App. 11.

Despite violating Kansas Highway Patrol policies

and direct orders from his superiors—and those superiors

testifying against his actions—Dobler remained defiant in

court, proudly calling himself “the best of the best.”

Resp. C.A. Br. 11. The Kansas Highway Patrol disagreed

and fired him shortly after he killed Benz. Pet. App. 12.

C. Proceedings below

1. The state charged Cline with felony murder for

Benz’s death, fleeing or attempting to elude, possession

of drug paraphernalia, interference with a law enforcement officer, and several traffic violations. Pet. App. 8-9.

Cline moved to dismiss the felony murder charge and

suppress the evidence obtained after the TVI maneuver.

Cline argued that Dobler had used excessive force to

effect the seizure in violation of the Fourth Amendment,

without which Benz would still be alive. Id. at 9.

After a hearing, the trial court granted Cline’s motion

to suppress. Pet. App. 32-36. First, the trial court found

that Dobler used excessive force in seizing Cline’s

vehicle. Id. at 33-34. Viewing the totality of circumstances for objective reasonableness, the court concluded

that “this indeed was excessive force.” Id. at 33. After

“watch[ing] the videos” and “hear[ing] all the testimony

presented,” the judge explained, “[b]y no means am I

seeing this as anything but a Fourth Amendment violation.” Ibid.

The court described the flagrancy of Dobler’s excessive force. It emphasized that the officer used “deadly

force” over a “traffic infraction,” “which resulted in the

fatality of the passenger” and his “release from Kansas

Highway Patrol.” Pet. App. 33-34. It explained the causal

connection between the violation and the evidence discovery: “the unreasonableness in the seizure[] result[ed]

in the death of the passenger.” Id. at 36. And the court

recognized the deterrence value of suppression, finding

that the “reasonable course would have been to decline

pursuit” and that “vehicle pursuit[s]” like this one should

be “prevent[ed].” Id. at 33-34.

In granting suppression, the district court repeatedly

emphasized the unusual facts of the case: “this is a very

rare case, very rare case, that this court is indeed granting

the Motion to Suppress.” Pet. App. 32 (“I must point out

that this is a very rare case, very rare case”); 34 (“I have

to note this is very rare for this Court to make such a

ruling. But I think the parties can agree this is a rare

case”); 36 (“And like I said, this is a rare decision on my

part to do so.”).

The practical effect of the suppression order was that

the state could proceed with charges against Cline only

for fleeing and attempting to elude, and the traffic

violations. All the evidence related to the felony murder

and drug-related charges was suppressed. Pet. App. 15,

34. Although the charges for the various traffic-related

offenses will ultimately proceed, the state noticed an

interlocutory appeal. Id. at 15.

2. The Kansas Court of Appeals affirmed in an interlocutory appeal. Pet. App. 2-31. The court first addressed

the State’s central argument on appeal, holding that

Dobler indeed used excessive force in violation of the

Fourth Amendment (Pet. App. 15-24), which the State

does not challenge before this Court (Pet. 7 n.2). The

court observed that Dobler had no reason to believe Cline

was a dangerous felon; he knew there was a passenger in

the front seat of Cline’s car; he knew there were other

officers nearby to help; he knew he was performing the

TVI in a risky area; and he had been told explicitly not to

initiate pursuits like the one that took place. Pet. App. 23.

As for a government interest, the court rebuffed the

state’s contention that an approaching car on the road

caused Dobler to execute the TVI. Pet. App. 20. The

dashcam and photographic evidence, the court explained,

squarely contradicted Dobler’s story. Ibid. “If the reason

for Dobler to execute the TVI was to protect the driver of

the car that had pulled off to the side of the road,” the

court said, “this reason does not appear to outweigh the

danger involved in performing the maneuver.” Ibid.

And the court took to task Dobler’s “striking[]” lack

of concern for Benz’s safety, as she “was a member of the

public that Dobler should have been trying to protect,”

given that there was no evidence that she was linked to

Cline’s decision to flee. Pet. App. 20.

The court of appeals then turned to the State’s

argument that the exclusionary rule should not apply. Pet

App. 24-31. It held that “[t]he facts and circumstances of

this case demonstrate that the exclusion of evidence

because of Dobler’s conduct falls within the purpose of

the exclusionary rule”—deterrence. Id. at 28.

The court remarked that Dobler’s actions were not

“isolated” but rather “part of a pattern of intentional

conduct.” Pet. App. 28-29. And it noted that previous

directives and reprimands from multiple employers had

not succeeded in deterring Dobler’s uses of excessive

force in vehicle pursuits. Ibid. Suppressing evidence in

cases like this, the court reasoned, “removes the

incentive for officers such as Dobler to disregard policies

and perform dangerous maneuvers simply to bring a

hastier end to an ill-advised pursuit.” Id. at 29.

Finally, the court found “most importantly” that

there is “a direct causal connection between Dobler’s use

of excessive force and the evidence Cline seeks to

suppress.” Pet. App. 29. Namely, “Dobler’s use of the

TVI maneuver caused the car crash and directly led to

Benz’s death.” Ibid.

Notably, the state did not argue that the exclusionary

rule cannot ever apply in excessive force cases. See Resp.

C.A. Br. 32-37. But for completeness, the court of appeals

referenced a federal case, which the State had “not

cited,” that “suggested” exclusion may be inappropriate

when a defendant alleges that officers used excessive

force during a stop. Pet. App. 28. But the court concluded

that settled exclusionary-rule principles—requiring a

direct causal connection—settled the matter where, on

“[t]he facts and circumstances of this case,” a “direct

causal connection” was present. Id. at 28-29. The court

therefore affirmed suppression.

The State petitioned the Kansas Supreme Court for

further review, which was denied. Pet. App. 1.

REASONS FOR DENYING THE PETITION

Review should be denied foremost because the appeal

below was interlocutory, and this Court accordingly lacks

jurisdiction under Section 1257(a).

Even aside from that jurisdictional defect, this case

involves application of settled law to unique facts unworthy of further review. Given the fact-bound nature of

cases like this, the state’s effort to manufacture a circuit

split falls flat. At bottom, Kansas’s petition is merely a

request for error correction of an intermediate state

appellate court decision. Even if the outcome below were

questionable—it is not—the facts here are unlikely ever

to recur against, and review would be unwarranted.

Regardless, the Kansas Court of Appeals faithfully

applied this Court’s settled exclusionary-rule holdings

and reached the right result. Review should be denied.

A. This Court lacks jurisdiction

The Court should deny review first and foremost

because it lacks jurisdiction.

1. For the judgment of a state court to be reviewable

under Section 1257(a), it must be “final.” Generally, a

state-court judgment is final only when “nothing more

than a ministerial act remains to be done” on remand.

Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 68

(1948); see Bateman v. Arizona, 429 U.S. 1302, 1306

(1976) (applying general rule).

The judgment here is not final, and the appeal here is

expressly “interlocutory.” Pet. App. 15. The Court thus

straightforwardly lacks jurisdiction to entertain the

petition under Section 1257(a).

None of the exceptions to finality recognized by this

Court in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

(1975), applies. Certain evidence has been suppressed by

the trial court, effectively foreclosing the state’s prosecution of some of the charges against Cline, including felony

murder. See Pet. App. 15. But the charges for other

offenses that turn on pre-TVI events (the fleeing and

attempting-to-elude charges and traffic violations) have

not been dismissed, are not foreclosed by the suppression

of evidence, and thus remain live in the case. Ibid. There

are therefore “further proceedings” that are not ministerial and have yet to occur in the state courts, and “the

outcome of [those] further proceedings” is uncertain. Cox

Broadcasting, 420 U.S. at 479.

Nor is this a circumstance “in which the federal issue,

finally decided by the highest court in the State, will

survive and require decision regardless of the outcome of

future state-court proceedings.” Cox Broadcasting, 420

U.S. at 480. To begin, the Kansas Supreme Court denied

review, so it has not decided the case at all. Besides that,

the parties could reach a plea agreement on remand,

ending the case altogether.

This is neither a case “in which later review of the

federal issue cannot be had, whatever the ultimate

outcome of the case” if it is allowed to proceed to a final

judgment in the trial court. Cox Broadcasting, 420 U.S. at

481. On remand, the felony-murder and related charges

will have to be dismissed before jeopardy attaches. See

Serfass v. United States, 420 U.S. 377, 388 (1975). Later

review of the suppression question is therefore not

logically foreclosed if the court recharges Cline with the

crimes that depend on the suppressed evidence.

Finally, this is not a case “where the federal issue has

been finally decided in the state courts with further

proceedings pending in which the party seeking review

here might prevail on the merits on nonfederal grounds,”

foreclosing further litigation of the federal issue by

preclusion. Cox Broadcasting, 420 U.S. at 482-483. On

remand, the sole issue left to be decided are the movingviolation and fleeing charges that depend on the state’s

pre-TVI evidence.

Because the case is expressly “interlocutory” (Pet.

App. 15) and there is an entire trial to be held on remand,

the judgment of the state court remains non-final, and the

Court lacks jurisdiction to proceed under Section 1257(a).

That alone is reason to deny the petition.

B. This case would not warrant further review even

if the Court had jurisdiction

Even if the decision below were final, the case still

would not be worthy of the Court’s attention. There is no

split, and the facts here are exceedingly unusual. Kansas

in fact asks for case-specific error correction, which is

plainly unwarranted in these circumstances.

1. No lower court has adopted a categorical rule

against suppression of evidence uncovered as

a result of excessive force

Kansas has not identified a single case in conflict

with the decision below. To our knowledge, no court has

adopted the categorical rule that the state urges before

this Court—that use of excessive force in violation of the

Fourth Amendment can never warrant suppression. Any

differences in outcomes among the cases cited in the

petition are attributable to differences in facts, not differences in the courts’ approaches to the legal framework.

a. The petition asserts (at 9-10) that a split of

authority has emerged based on dictum from United

States v. Ramirez, 523 U.S. 65 (1998). Not so.

In Ramirez, the Court considered the Fourth Amendment standards for “no knock” home entries that result

in property damage. In the course of considering such

claims, the Court observed that excessive force may

constitute an independent Fourth Amendment violation

“even though the entry itself is lawful and the fruits of the

search are not subject to suppression.” Ramirez, 523 U.S.

at 71. On the facts presented, the Court held that “there

was no Fourth Amendment violation” and determined

that it therefore “need not decide whether, for example,

there was sufficient causal relationship between the

breaking of the window and the discovery of the guns to

warrant suppression of the evidence.” Id. at 74 n.3. The

premise of that dictum is that suppression would be

warranted if the requisite “causal relationship” exists.

Following Ramirez, the lower courts have coalesced

around the necessity of a causal link before an excessiveforce violation calls for suppression. In United States v.

Ankeny, 502 F.3d 829 (9th Cir. 2007), the Ninth Circuit

said so expressly. Id. at 837. After finding the excessiveforce claim to be a “close question,” the Ninth Circuit

held suppression inappropriate because “[t]he alleged

Fourth Amendment violation and the discovery of the

evidence lack[ed] the causal nexus that is required to

invoke the exclusionary rule.” Id. at 836-837.

Kansas contends (Pet. 10) that Ankeny is in conflict

with the Seventh Circuit’s decision in United States v.

Watson, 558 F.3d 702 (7th Cir. 2009). But that is

mistaken. Although Watson expressed some uncertainty

about Ankeny (id. at 705), the outcome in Watson rested

entirely on what Ramirez previewed and Ankeny held:

that the lack of a causal connection between an excessive

use of force and the discovery of evidence bars suppression. Lack of causation was also the holding in

Watson: “The police didn’t obtain the evidence by

pointing their guns at the defendant, but by obtaining the

consent of the driver.” Ibid. The absence of a “causal

connection between the manner in which the police

approached the defendant in this case and the search of

the car that disclosed the weapons used in evidence”

rendered suppression inappropriate. Id. at 704.

Watson’s purported rejection of Ankeny therefore

was not a disagreement in substance, but one concerning

facts. Doctrinally, the outcomes in the two cases are

consistent with each other—when there is no causal

connection between an excessive use of force and

discovery of evidence (as typically will be true), the

exclusionary rule does not apply.

The petition also asserts a conflict with the First

Circuit’s decision in United States v. Garcia-Hernandez,

659 F.3d 108 (1st Cir. 2011), but the court there merely

held that the particular facts—similar to Ankeny’s

facts—did not justify suppression. Id. at 112-113. In

effect, Garcia-Hernandez held that a defendant could not

repackage a knock-and-announce violation as an

excessive-force violation to obtain suppression. Id. at 114.

And in denying suppression, the court emphasized the

central role of “but-for causation” and found it absent. Id.

at 112-113. Regardless of whether the officers had

“knocked, announced, and politely entered” or did so

with “armored vehicle[s], a large complement of officers,

noise-flash accompaniment, and a formidable show of

force,” “the incriminating evidence would have been

found when they conducted the search” pursuant to the

warrant. Ibid.

If anything, Garcia-Hernandez reflects the agreement among lower courts. The First Circuit cited both

Ankeny and Watson without distinguishing between

them—apparently recognizing their compatible reasoning

and outcomes. 659 F.3d at 113-114. These cases all

converge on the central role of causality in application of

the exclusionary rule. The only daylight between the

Seventh and Ninth Circuits is that the Seventh Circuit

appeared to assume as a matter of fact (not law) that

excessive force could never be a but-for cause of evidence

discovery. The instant case proves that assumption

wrong, as a matter of fact. And no case citing Watson or

Garcia-Hernandez has refused to suppress evidence when

the requisite causal nexus between the use of force and

the evidence discovery was present.

The petition next characterizes (at 12) the Alaska

court’s decision in State v. Sundberg, 611 P.2d 44 (Alaska

1980), as “concluding that application of the exclusionary rule is inappropriate sanction for police use of

excessive force.” Pet. 12. But Sundberg only confirms the

highly fact-dependent nature of the exclusionary rule. It

addressed (again, as factual matters) the deterrence value

of suppression given the particular facts of the case, the

relevant history of the challenged misconduct by officers

in the region, and the flagrancy of the violation. 611 P.2d

at 51-52. And it expressly left open the possibility that

suppression could be warranted in excessive force cases

involving different facts. Id. at 52.

Like the other cases just discussed, State v. Herr, 828

N.W.2d 896 (Wis. Ct. App. 2013), an intermediate state

court case, invoked Watson and refused to suppress

evidence because there was “no causal relationship

between the alleged use of unreasonable force and the

evidence sought to be suppressed.” Id. at 898-899.

Beyond those, the petition cites a handful of unpublished cases that (like the decision in this case) do not set

the law for their jurisdictions and thus cannot support a

meaningful division of authority. See United States v.

Morales, 385 F. App’x 165 (3d Cir. 2010); Brito v. State,

2016 WL 7377180 (Nev. 2016); State v. Ward, 2021 WL

4127189 (Idaho Ct. App. 2021). In the end, Kansas has

not identified any court in which the outcome here would

have been different.

b. Courts that have suppressed evidence recovered

following excessive force, in contrast, emphasize the

presence of the requisite causal connection. State v. Tapp,

353 So. 2d 267 (La. 1977), Conwell v. State, 714 N.E.2d

764 (Ind. Ct. App. 1999), and several other state

decisions applied the exclusionary rule to evidence an

officer obtained by choking the defendant. See also State

v. Hodson, 907 P.2d 1155 (Utah 1995); Grier v. State,

868 N.E.2d 443 (Ind. 2007); State v. Nelson, 354 So. 2d

540 (La. 1978). In those cases, officers obtained evidence

as a direct result of applying excessive force to the throat.

E.g., Tapp, 353 So. 2d at 268 (suppressing a packet of

drugs obtained via a “prolonged and brutal struggle to

cause Tapp to disgorge” the evidence).

These cases emphasize the flagrancy and extreme

danger of the force involved with choking. See Tapp, 353

So. 2d at 269 (holding that the extraction was “a

grievous, dangerous, painful and unjustifiable assault

upon a human being in an effort to get physical evidence

from inside his body”); Conwell, 714 N.E.2d at 768

(holding that “[t]he application of force to a person’s

throat is a dangerous and sensitive activity * * * likely to

result in violent resistance by the arrestee” (quoting

Hodson, 907 P.2d at 1158)).

In sum, the decision below would not have come out

any differently in any other jurisdiction. No courts are

taking a categorical approach to the question presented,

and each instead focuses on whether the evidence at issue

was obtained as a direct result of a flagrant use of

excessive force. If not, no suppression; if so, evidence

suppressed. Here, the TVI that killed Anita Benz presents

the rare confluence of flagrancy and causation for which

any court would have found suppression warranted.

Every court cited in the petition would say just that.

2. The petition seeks mere error correction and

presents facts certain never again to recur

a. The question presented here is unworthy of the

Court’s attention because the facts at issue in this case

are very unlikely ever to recur again. The court repeatedly

observed that this case is “a very rare” one. Pet. App. 32,

34. The court felt compelled “to note [that] this is very

rare for this Court to make such a ruling,” and that even

“the parties can agree this is a rare case where the officer

used quite excessive force.” Ibid.

And it is a rare case, indeed. Dobler used deadly force

to apprehend a fleeing suspect solely on account of a

broken windshield. He pursued Cline despite having no

suspicion of a dangerous or violent crime and despite

learning early in the chase that the car was not stolen.

And, ultimately, Dobler chose to initiate a TVI after just

three minutes of low-speed pursuit in an obviously

dangerous location, given the telephone poles and ditches

along the road. Pet. App. 7-8. Add to that Dobler’s

extremely troubling background of recalcitrant and

dangerous behavior initiating car chases, and these facts

are nothing short of anomalous.

b. Even if the question were important (it is not), this

would be a singularly poor vehicle for addressing it. To

begin with, and although the State now frames its petition

around a categorical excessive-force exception to the

exclusionary rule, it never made that argument to the

Kansas Court of Appeals, which noted it only in passing.

There is therefore a threshold question whether Kansas

has adequately preserved the newfound arguments it

makes in its petition.

Beyond that, the intermediate appellate court’s

decision below was self-consciously limited to the “facts

and circumstances of this case” and their unique relation

to “the purpose of the exclusionary rule.” Pet. App. 28. In

seeking further review of that conclusion, the state is, in

truth, asking the Court to correct what it believes to be a

one-off legal error, nothing more. There is not seriously a

conflict of authority here, and the facts are plainly unusual. But the Court’s aim is “to determine questions of

importance” (which is to say questions the recur

frequently and affect many), and “the correctness or

erroneousness of the decision below is not” of itself “the

central focus of the Court’s exercise of its certiorari

jurisdiction.” S. Shapiro, K. Geller, T. Bishop, E.

Hartnett, & D. Himmelfarb, Supreme Court Practice 278

(10th ed. 2013).

That shortcoming is especially notable because the

decision below is of an intermediate state appellate court,

not a state high court. Indeed, the Kansas Supreme Court

has never been presented with an opportunity (other than

this one) to consider Kansas’s newfound categorical rule

against exclusion in excessive-force cases. Likely of the

view that this case is a poor fit to that question, and that

the intermediate court correctly applied well-established

doctrine to the unique facts presented, it denied review.

This Court should do the same. In fact, it regularly

denies review where the state’s highest court has not yet

resolved an issue for the state. See, e.g., Huber v. New

Jersey Department of Environmental Protection, 562 U.S.

1302, 1302 (2011) (Alito, J., joined by Roberts, C.J., and

Scalia and Thomas J.J., statement respecting denial of

certiorari) (“[B]ecause this case comes to us on review of

a decision by a state intermediate appellate court, I agree

that today’s denial of certiorari is appropriate”). The

same outcome is warranted in this case.

3. The decision below is correct

The decision below faithfully applied settled exclusionary rule doctrine to the unique facts of this case to

correctly conclude that suppression was warranted. The

state acknowledges that exclusion is appropriate when

the “deterrent benefits of suppression outweigh the

substantial social costs incurred.” Pet. 9. That is

precisely the test the court of appeals applied, and it

correctly found that settled test satisfied by the “very

rare” facts of this case. Pet. App. 13, 32.

In Davis, this Court recognized that “[w]hen the

police exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the

resulting costs.” 564 U.S. at 238 (quoting Herring, 555

U.S. at 144). Here, Dobler’s conduct was surely reckless,

at a minimum. Dobler performed a TVI—which he

acknowledged under oath is a dangerous maneuver—in a

location he admitted was “less than ideal,” with knowledge that there was an innocent passenger in the car,

without any indication that Cline was a dangerous felon,

without any pedestrians or nearby vehicles in harm’s

way, and all after only a three-minute pursuit at low

speeds prompted by a cracked windshield. Pet. App. 5-8.

As the trial court observed and the appeals court echoed,

Dobler’s flagrant misconduct presents the “very rare

case” where the “drastic remedy” of exclusion is appropriate. Id. at 13-14, 29.

The lower courts also considered and rightly rejected

Kansas’s arguments that the causal chain between the

seizure and the evidence was such that suppression would

not serve to deter. Dobler’s use of the TVI was the direct

and immediate cause of the crash that led to Benz’s death.

Pet. App. 29-30. Evidence related to the felony murder

charge would not have existed (let along been discovered)

absent Dobler’s gross disregard for human life. Ibid. And

the lower court found that Kansas did not meet its burden

to show that Cline necessarily “would have been arrested

and searched leading to the discovery of the drug

evidence” absent the TVI. Id. at 30. That makes sense,

given that departmental policy called for Dobler to

terminate the pursuit under the circumstances.

The lower state courts appropriately concluded that

exclusion here would deter flagrant law enforcement

violations moving forward. In reaching its decision, the

appellate court noted that “officers from all agencies

frequently deal with vehicle pursuits in which they may

need to apprehend fleeing suspects.” Pet. App. 29. Suppression here removes the incentive for officers in similar

situations to use “dangerous maneuvers simply to bring a

hastier end to an ill-advised pursuit.” Ibid. Moreover,

exclusion encourages law enforcement agencies to better

screen, train, and supervise officers like Dobler who have

histories of constitutionally questionable behavior.

Suppression here will also have a specific deterrent

effect on Dobler, who continues to serve as a law

enforcement officer. In Leon, this Court stated that for the

exclusionary rule to have “any deterrent effect * * * it

must alter the behavior of individual law enforcement

officers or the policies of their departments.” 468 U.S. at

918 (emphasis added). Dobler’s reckless actions in this

case were part of an established pattern of misconduct. He

had a history of engaging in unlawful pursuits and

executing dangerous TVIs. Pet. App. 28-29. He had

already received numerous reprimands for his misconduct

before the events of this case. Ibid. Suppression here may

be the only tool left to discourage Dobler from engaging

in further Fourth Amendment violations.

In sum, the exclusionary rule played its deterrent

purposes in this case. The lower court thus correctly

applied this Court’s exclusionary-rule precedents and

rightly concluded that this is the rare case in which

suppression is necessary to discourage future constitutional enforcement violations.

CONCLUSION

The petition should be denied.

Respectfully submitted.