Opposition Brief — Xzavione Taylor, Petitioner v. United States

No. 23-5743

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

XZAVIONE TAYLOR, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

NICOLE M. ARGENTIERI

Assistant Attorney General

BRENDAN B. GANTS

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether

the

court

of

appeals

correctly

determined

that

petitioner’s traffic stop was not unreasonably prolonged when

officers asked him to exit his car.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 23-5743

XZAVIONE TAYLOR, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3a-21a) is

reported at 60 F.4th 1233.

The order of the district court (Pet.

App. 22a-34a) is not published in the Federal Supplement but is

available at 2021 WL 664835.

JURISDICTION

The judgment of the court of appeals was entered on March 1,

2023.

A petition for rehearing was denied on July 7, 2023 (Pet.

App. 1a-2a).

The petition for a writ of certiorari was filed on

October 5, 2023.

28 U.S.C. 1254(1).

The jurisdiction of this Court is invoked under

2

STATEMENT

Following a conditional guilty plea in the United States

District Court for the District of Nevada, petitioner was convicted

on one count of possessing a firearm following a felony conviction,

in violation of 18 U.S.C. 922(g)(1) and 924(a)(2).

Judgment 1.

The district court sentenced him to 20 months of imprisonment, to

be followed by three years of supervised release.

Judgment 2-3.

The court of appeals affirmed petitioner’s conviction and remanded

to the district court to conform the written judgment to its oral

pronouncement of sentence with respect to two special conditions

of petitioner’s supervised release.

1.

Gariano

Pet. App. 3a-21a.

On July 10, 2020, Las Vegas police officers Anthony

and

Brandon

Alvarado

initiated

a

traffic

stop

after

observing a car with no license plates or temporary registration

tags.

Pet. App. 7a.

Officer Gariano spoke with petitioner, the

driver and sole occupant of the car, who was wearing a fanny pack

slung across his upper body.

Id. at 7a-8a, 23a-24a.

Petitioner

acknowledged that he knew why he had been stopped and claimed that

he had just acquired the car from his aunt.

could

not

provide

identification.

a

Ibid.

driver’s

license

Id. at 7a.

or

any

Petitioner

other

form

of

Officer Gariano asked petitioner if there

were any “guns/knives/drugs” in the car, and petitioner said that

there were not.

Ibid.

Officer Gariano asked petitioner if he had

been arrested before, and petitioner said he was on parole after

a conviction for possessing a firearm as a felon.

Ibid.

3

After taking down petitioner’s name, Social Security number,

and date of birth, Officer Gariano asked petitioner to step out of

the car, which he did.

Pet. App. 7a-8a.

When petitioner did so,

the officers observed that petitioner’s fanny pack was unzipped

and apparently empty and asked him to remove it.

Id. at 8a.

Officer Gariano then returned to the patrol car and ran a records

check while Officer Alvarado spoke with petitioner and patted him

down.

Id. at 8a-9a.

The records check confirmed petitioner’s

identity and prior felony convictions. Id. at 9a. Officer Gariano

exited the patrol car and asked petitioner for consent to search

the

car,

which

petitioner

gave.

Ibid.

After

searching

petitioner’s car for less than a minute, Officer Gariano found a

handgun under the driver’s seat, at which point the officers placed

petitioner under arrest and read him his Miranda rights.

Ibid.

Petitioner admitted that the gun was his, explaining that he

normally placed it in the fanny pack but kept it under the seat

while driving.

2.

Ibid.

A federal grand jury returned an indictment charging

petitioner with one count of possessing a firearm following a

felony

conviction,

924(a)(2).

the

gun

in

violation

Indictment 1-2.

and

his

of

18

U.S.C.

922(g)(1)

and

Petitioner filed a motion to suppress

incriminating

statements,

claiming

that

the

officers had violated the Fourth Amendment by prolonging the

traffic stop to investigate non-traffic offenses for which they

lacked reasonable suspicion.

C.A. E.R. 482-484.

4

A magistrate judge held an evidentiary hearing at which both

officers testified.

Officer Gariano testified that when a driver

has no license, he typically asks the driver to exit the car and

stand in front of his patrol vehicle while he checks the driver’s

information for flight-prevention and safety reasons, and so that

he can see the person whose identity he is attempting to confirm.

11/30/20 Tr. (Tr.) 16-17.

Officer Gariano also testified that he

runs a records check on “every single traffic stop,” Tr. 61, and

that when he is concerned a person might have a gun, he typically

asks that person to exit the car while he does so, Tr. 79-80.

As to the stop of petitioner, Officer Gariano agreed with

defense counsel’s characterization that “everything changed” for

him after learning that petitioner was on parole for a felon-inpossession conviction because he had a heightened concern that

petitioner might have a gun, explaining that “with firearms, it’s

a little different because

* * *

we want to be safe and we want

to confirm that there’s actually no firearms.”

Tr. 47.

Officer

Gariano testified that he asked petitioner to exit the car so that

he could see if petitioner had a gun and safely investigate

further.

Tr. 54.

testified

that

And Officer Gariano and Officer Alvarado both

they

considered

the

fanny

pack

slung

around

petitioner’s upper body suspicious because, in their experience,

people often, and lately in increasing numbers, conceal firearms

in such packs.

Tr. 25-26, 95.

5

The

suppress

magistrate

on

the

judge

theory

recommended

that

the

granting

officers

the

lacked

motion

to

reasonable

suspicion of a gun crime when Officer Gariano “admitted his focus

changed from a traffic stop to a concern that Defendant was

illegally in possession of a gun.”

C.A. E.R. 100.

The magistrate

judge also recognized, however, that Officer Gariano was lawfully

permitted to order petitioner out of the car, and found that when

he did so, Officer Gariano wanted to determine whether petitioner

had a gun both for safety reasons and to investigate a possible

weapons offense.

3.

motion,

The

Id. at 90, 103.

district

finding

prolonged.

that

court

the

denied

traffic

Pet. App. 22a-34a.

petitioner’s

stop

was

not

suppression

impermissibly

Observing that “Officer Gariano’s

shift in focus does not necessarily equate to a deviation from the

traffic stop’s mission,” the court saw “[n]othing about” the

records searches that Officer Gariano ran that “deviated from the

ordinary inquiries made by officers during a typical traffic stop;

Officer

Gariano

was

checking

for

outstanding

warrants

and

identifying the driver, both of which are actions aimed at ensuring

road safety.”

Id. at 27a-28a.

The court also found that the

patdown did not prolong the stop because it occurred simultaneously

with the records search.

Id. at 29a.

And the court determined

that, in any event, even if the traffic stop had been prolonged,

“the

facts

known

to

Officer

suspicion to prolong it.

Gariano”

Id. at 32a.

amounted

to

reasonable

6

Petitioner subsequently entered a conditional guilty plea,

preserving his right to appeal the district court’s denial of his

suppression motion.

Pet. App. 10a.

The court sentenced him to 20

months of imprisonment, to be followed by three years of supervised

release.

4.

Judgment 2-3.

The

court

suppression motion.

of

appeals

affirmed

the

denial

of

the

Pet. App. 3a-21a.

The court of appeals agreed with the district court that the

officers did not unreasonably prolong the stop.

12a, 14a-17a.

Pet. App. 11a-

The court of appeals noted that Officer Gariano

“became concerned that [petitioner] might be armed” when he learned

that petitioner had a felon-in-possession conviction, id. at 8a,

and observed that this Court’s precedents “made clear that officers

could have [petitioner] exit his vehicle in the interest of officer

safety,” id. at 13a.

The court emphasized that it did not matter

whether the officers “may have subjectively believed they were on

to something more than a vehicle lacking license plates” because

the relevant point for Fourth Amendment purposes was “the objective

reasonableness of their actions.”

Ibid.

The court of appeals also determined that the officers’

conduct after petitioner exited the vehicle -- including the

patdown and criminal history check -- was consistent with the

Fourth Amendment for two independent reasons.

Pet. App. 14a.

First, the court explained that under this Court’s decisions in

Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam) and Arizona

7

v. Johnson, 555 U.S. 323 (2009), such precautions are permissible

as part of a traffic stop “‘if the officer reasonably concludes

that the driver “might be armed and presently dangerous.”’”

App. 15a (quoting Johnson, 555 U.S. at 331).

observed

that

the

reasonable

suspicion

Pet.

The court of appeals

necessary

under

those

decisions “is less than probable cause,” and found that reasonable

suspicion existed here in light of the “circumstances taken as a

whole,” including petitioner’s past conviction for possessing a

firearm as a felon, his “curiously empty and unzipped” fanny pack,

and the officers’ experience that fanny packs “are commonly used

to store weapons.”

Id. at 15a-16a.

Second, the court of appeals found that “even if officers

prolonged the encounter beyond the original mission of the traffic

stop, they had a sufficient basis to do so.”

Pet. App. 17a.

Specifically, the court determined that “under the totality of the

circumstances,”

the

independent offense:

gun.”

officers

had

“reasonable

suspicion

of

an

[petitioner’s] unlawful possession of a

Ibid.

Having affirmed petitioner’s conviction, the court of appeals

remanded to allow the district court to modify its written judgment

regarding certain conditions of supervised release in order to

conform to the oral pronouncement of sentence.

21a.

Pet. App. 20a-

8

ARGUMENT

Petitioner contends (Pet. 5-16) that the decision below is

inconsistent with this Court’s decision in Rodriguez v. United

States, 575 U.S. 348 (2015), and conflicts with the decisions of

other courts applying that precedent.

lack merit.

Petitioner’s contentions

The court of appeals correctly applied this Court’s

precedents, and its factbound decision does not conflict with any

decision of this Court, another court of appeals, or a state court

of last resort.

1.

No further review is warranted.

The court of appeals correctly determined that Officer

Gariano did not violate petitioner’s Fourth Amendment rights when

he asked petitioner to exit his car.

a.

In Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per

curiam), this Court held that a police officer may as a matter of

course order the driver of a lawfully stopped car to exit his

vehicle.

the

See id. at 111 n.6.

“legitimate

and

In so holding, the Court emphasized

weighty”

interest

in

officer

safety,

especially in light of the “inordinate risk” posed by traffic

stops, and found the additional intrusion of being ordered out of

a vehicle that was lawfully stopped to be “de minimis.”

110-111 (emphasis omitted).

Id. at

The Court also addressed a “second

question” of whether an officer may conduct a patdown after the

person has exited the vehicle, and explained that such a patdown

is justified so long as the totality of the facts known to the

officer -- from both before and after the person exited the car

9

-- allows the officer to “reasonably conclude[] that the person

whom he had legitimately stopped might be armed and presently

dangerous.”

Id. at 111-112; see id. at 109; see also Arizona v.

Johnson, 555 U.S. 323, 332 (2009).

In Rodriguez v. United States, the Court held that “the

tolerable duration of police inquiries in the traffic-stop context

is determined by the seizure's ‘mission’ -- to address the traffic

violation that warranted the stop and attend to related safety

concerns.”

575 U.S. at 354 (citations omitted).

The Court made

clear that “[b]eyond determining whether to issue a traffic ticket,

an officer's mission includes ‘ordinary inquiries incident to the

traffic

stop,’”

driver’s

license,

warrants

against

which

“[t]ypically”

determining

the

driver,

encompass

whether

and

“checking

the

there

are

outstanding

inspecting

the

automobile’s

registration and proof of insurance.”

Id. at 355 (brackets and

citation omitted).

The Court further explained -- reiterating its holding in

Mimms allowing officers to “requir[e] a driver, already lawfully

stopped, to exit the vehicle” --

that actions in furtherance of

the

interest

“‘legitimate

and

weighty’

in

officer

safety,”

including “criminal record and outstanding warrant checks” as well

as asking the driver to step out of his car, likewise “stem[] from

the mission of the stop itself,” and are accordingly permissible.

575 U.S. at 356 (quoting Mimms, 434 U.S. at 110-111).

Court held that “[a]uthority for the seizure

* * *

But the

ends when

10

tasks tied to the traffic infraction are -- or reasonably should

have been -- completed.”

Id. at 354.

Thus, where officers prolong

a stop to conduct “[o]n-scene investigation into other crimes,”

they must have “reasonable suspicion of criminal activity” to

justify continued detention “beyond completion of the traffic

infraction investigation.”

b.

Id. at 356-358.

The court of appeals correctly applied this Court’s

precedents to the facts of this case in determining that Officer

Gariano did not unreasonably prolong the traffic stop when he asked

petitioner to exit the vehicle.

The court explained that “[i]n

this case, Mimms and its progeny made clear that officers could

have [petitioner] exit his vehicle in the interest of officer

safety” because, regardless of their subjective motivations or

beliefs, that action was objectively reasonable.

Pet. App. 13a.

While petitioner (Pet. 8) characterizes the court of appeals’

decision as holding “that an officer may always order a driver out

of his car, regardless of whether the order served solely as a

safety precaution for an unrelated investigation,” the court in

fact determined that the order was part of the traffic stop itself.

See Pet. App. 14a-15a. Specifically, it found that “[t]he officers

here did not abandon the traffic stop,” continued to “perform[]

actions that are permissibly within the mission of a traffic stop,”

and “were within the lawful scope of” the traffic stop when they

required him to step out of his car.

Ibid.

Petitioner likewise

errs in suggesting (e.g., Pet. 8) that the court disregarded

11

Rodriguez; in fact, the court cited that decision repeatedly in

determining that the officers’ actions were within the lawful scope

of the stop.

Pet. App. 10a-12a, 14a.

The same mistaken premises undermine petitioner’s contention

(Pet. 8) that the court of appeals “[u]ntether[ed] Mimms’s rule

from its predicate requirement” of “continued lawful detention,”

so as to give officers “carte blanche to remove a driver anytime

once stopped.”

The Constitution did not require the officers in

this case to allow petitioner -- who was driving, without a

license, a car displaying no plates -- to leave before they had

even verified his identity.

In contrast, the court of appeals has

separately concluded post-Rodriguez -- in a decision that it cited

below, Pet. App. 11a, 17a -- that the Fourth Amendment was violated

where a stop “was no longer lawful by the time the officers ordered

[the defendant] to leave the car.”

F.3d 862, 870 (9th Cir. 2019).

circumstance;

detention

as

remained

the

But this case did not present that

decision

lawful

United States v. Landeros, 913

below

throughout

explains,

because

continued to pursue the traffic stop’s mission.

petitioner’s

the

officers

Pet. App. 14a-

15a.

Nor did the court of appeals err, as petitioner contends (Pet.

10-12), by finding his argument about Officer Gariano’s subjective

motivations to be “misplaced.”

As an initial matter, petitioner

is incorrect in contending (Pet. 12) that the court accepted his

disputed factual claim that “the exit order was given solely as a

12

safety measure to facilitate a separate investigation.”

To the

contrary, the court of appeals viewed Officer Gariano’s testimony

about his reaction to learning of petitioner’s felon-in-possession

conviction as a reason that Officer Gariano “became concerned that

[petitioner] might be armed.”

Pet. App. 8a.

Concern that a person

encountered during a traffic stop might be armed is a wellrecognized officer-safety concern.

See, e.g., Rodriguez, 575 U.S.

at 356; Mimms, 434 U.S. at 110-111; Terry v. Ohio, 392 U.S. 1, 27

(1968).

In this case, petitioner had a criminal history that would

render any current gun possession a crime.

But that fact did not

have the perverse effect of depriving officers of their ability to

protect

themselves,

or

otherwise

convert

an

otherwise

lawful

safety precaution into an impermissible “separate investigation.”

Pet. 12.

Instead, as the court of appeals correctly stated,

“officers could have [petitioner] exit his vehicle in the interest

of officer safety

* * *

regardless of whether the officers may

have subjectively believed” that some crime other than a traffic

violation might also be afoot.

2.

Pet. App. 13a (citation omitted).

Contrary to petitioner’s contention (Pet. 13-15), the

decision below does not conflict with the decision of any other

court of appeals or any state court of last resort.

officers’

safety-related

attempt

here

to

Unlike the

determine

whether

petitioner was armed, the decisions on which petitioner relies all

13

involved investigations into drug-related offenses unrelated to

the lawful purposes of a traffic stop.

In United States v. Whitley, 34 F.4th 522 (2022), the Sixth

Circuit

concluded

that

a

defendant’s

detention

“objectively

exceeded the relevant scope of the traffic stop” when officers had

“totally abandoned their investigation of the traffic violation”

immediately prior to the exit order.

Id. at 530.

The officers

there had collected the defendant’s identification documents, but

after noticing a scale on his lap they never examined those

documents, nor did they run the defendant’s name through a database

or do anything else to investigate the traffic violation.

Ibid.

The Sixth Circuit found that when officers explicitly identified

their purpose by telling the defendant they “wanted to ‘investigate

the scale real quick,’” they had “left the materials relevant to

the traffic stop behind.”

Ibid.

Significantly, Whitley distinguished an earlier decision,

United States v. Lash, 665 Fed. Appx. 428 (6th Cir. 2016), in which

an officer’s request to review a driver’s rental-car agreement was

within the scope of the initial traffic stop.

As Whitley noted,

the officer in Lash testified that he had been about to let the

driver go when he noticed a plastic bag sticking out of the

driver’s

trousers,

and

that

he

asked

to

see

the

rental-car

agreement to give himself the time and opportunity to “investigate

a little further.”

Whitley, 34 F.4th at 531 (quoting Lash, 665

Fed. Appx. at 429-430). That request, the Whitley court explained,

14

nevertheless did not “objectively exceed[] the scope of the traffic

stop” because the officer did not (as in Whitley itself) abandon

any traffic-related purpose; rather, the request to review the

rental agreement “was directly related to the traffic violation.”

Id. at 532.

consistent

The Sixth Circuit’s decision in Whitley is thus

with

the

decision

below,

which

found

that

asking

petitioner to exit the car was part of the traffic stop itself,

not a separate investigation.

Similarly to Whitley, the Eleventh Circuit in Baxter v.

Roberts, 54 F.4th 1241 (2022), concluded that a reasonable jury

could find that by the time the deputy sheriff gave an exit order

there, he had already finished checking the driver’s registration,

license, and insurance, run a records check, and written a warning

citation -- and that when the deputy held off on issuing the

citation and instead ordered the driver out of the car for a dog

sniff, that constituted an impermissible extension to pursue an

unjustified

detour.

See

id.

at

1260-1262.

In

an

earlier

(nonprecedential) case, in contrast, the Eleventh Circuit had

recognized that an officer’s exit order and call for backup were

“related to the mission of the traffic stop, that is, ensuring

officer safety,” and that the officer’s testimony that one reason

he called for backup was “because he thought something was up and

he

wanted

to

investigate

it

further”

was

irrelevant

to

the

reasonableness of the officer’s actions. United States v. Burwell,

15

763 Fed. Appx. 840, 851 & n.5 (per curiam), cert. denied, 140

S. Ct. 579 (2019).

Petitioner’s cursory and largely undeveloped suggestion (Pet.

14-15) of a conflict involving state courts of last resort is also

mistaken.

The decisions that petitioner cites simply reached

different outcomes based on the different fact patterns presented

in particular cases, upholding exit orders issued while a detention

remained lawful, see State v. Pylican, 477 P.3d 180, 189 (Idaho

2020); State v. Brown, 945 N.W.2d 584, 592 (Wis.), cert. denied,

141 S. Ct. 881 (2020), but finding a constitutional violation where

exit orders were given after a stop already had been unlawfully

prolonged, see Mills v. State, 458 P.3d 1, 11 (Wyo. 2020).*

None

of those decisions supports petitioner’s position or establishes

any conflict of authority.

*

Petitioner also characterizes two Montana Supreme Court

decisions as holding that “an exit order remains subject to

Rodriguez’s purpose-driven inquiry” (Pet. 14), but one predates

Rodriguez, which reiterated the validity of officer-safety

concerns during a stop, and in the other the exit order was

irrelevant because the issue pertained to what happened after the

driver had already exited the vehicle and was seated in the

officer’s patrol car.

State v. Noli, 529 P.3d 813, 842 (Mont.

2023).

16

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

NICOLE M. ARGENTIERI

Assistant Attorney General

BRENDAN B. GANTS

Attorney

JANUARY 2024