Amicus Curiae Brief — William Bembury, Petitioner v. Kentucky

No. 23-802

In the Supreme Court of the United States

__________

WILLIAM BEMBURY,

Petitioner,

v.

COMMONWEALTH OF KENTUCKY,

Respondent.

__________

On Petition for a Writ of Certiorari to the

Supreme Court of the Commonwealth of Kentucky

__________

BRIEF OF THE CATO INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

__________

Clark M. Neily III

Counsel of Record

Laura A. Bondank

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 425-7499

cneily@cato.org

February 26, 2024

i

QUESTION PRESENTED

Does the exception to the Fourth Amendment’s

warrant requirement for searches incident to arrest

permit a warrantless search of a backpack, purse, luggage, or other external container in the arrestee’s possession at the time of arrest if, at the time of the

search, the container is separated from the person and

there is no reasonable possibility that the arrestee

could access the container to obtain a weapon or destroy evidence?

ii

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICUS CURIAE ............................. 1

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

ARGUMENT ................................................................ 4

I. THE KENTUCKY SUPREME

COURT’S DECISION WOULD

ALLOW ABUSES AKIN TO THOSE

THAT MOTIVATED THE FOURTH

AMENDMENT. ................................................. 4

II. THE RULING BELOW

DISPROPORTIONATELY HARMS

HOMELESS INDIVIDUALS AND

PEOPLE OF COLOR. ....................................... 9

CONCLUSION .......................................................... 15

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Atwater v. City of Lago Vista, 532 U.S. 318

(2001) ........................................................................ 7

Carroll v. United States, 267 U.S. 132 (1925) ............ 6

Chambers v. Maroney, 399 U.S. 42 (1970) .................. 6

Chimel v. California, 395 U.S. 752 (1969) .............. 2, 4

Commonwealth v. Bembury, 677 S.W.3d 385

(Ky. 2023) ............................................... 2, 12, 13, 14

Florence v. Bd. of Chosen Freeholders, 566

U.S. 318 (2012) ......................................................... 7

Florida v. Meyers, 466 U.S. 380 (1984) ....................... 6

Heinen v. North Carolina, 135 S. Ct. 530

(2014) ........................................................................ 8

Katz v. United States, 389 U.S. 347 (1967) ................. 5

Kentucky v. King, 563 U.S. 452 (2011) .................... 5, 7

Maryland v. King, 569 U.S. 435 (2013) ...................... 7

Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019) ............. 7

Ohio v. Robinette, 519 U.S. 33 (1996) ......................... 7

Schneckloth v. Bustamonte, 412 U.S. 218

(1973) ........................................................................ 7

Stanford v. Texas, 379 U.S. 476 (1965) ....................... 5

Texas v. White, 423 U.S. 67 (1975) .............................. 6

United States v. Chadwick, 433 U.S. 1 (1977) ............ 4

United States v. Chhien, 266 F.3d 1

(1st Cir. 2001) ......................................................... 10

iv

United States v. Escalante, 239 F.3d 678

(5th Cir. 2001) ........................................................ 10

United States v. Johnson, 874 F.3d 571

(7th Cir. 2017) ...................................................... 7, 8

Whren v. United States, 517 U.S. 806 (1996).............. 9

Other Authorities

A Closer Look at Stop-and-Frisk in NYC,

NYCLU (last visited Jan. 22, 2024) ...................... 11

Ben Poston & Alene Tchekmedyian, Sheriff’s

Department bike stops: How we reported the

story, L.A. TIMES (Nov. 4, 2021) ............................. 11

Ben Poston & Cindy Chang, LAPD searches

black and Latinos more. But they’re less

likely to have contraband than whites, L.A.

TIMES (Oct. 8, 2019 3:52 PM) ................................. 12

Emily Peiffer, Five Charts That Explain the

Homelessness-Jail Cycle—and How to

Break It, URBAN INST. (Sept. 16, 2020) .................. 13

Kevin S. Aldridge, Editorial: Racial

disparities in police stops demands

attention, CINCINNATI ENQUIRER (Dec. 20,

2019) ....................................................................... 12

NAT’L L. CTR. ON HOMELESSNESS & POVERTY,

HOUSING NOT HANDCUFFS: ENDING THE

CRIMINALIZATION OF HOMELESSNESS IN U.S.

CITIES (2016) .................................................... 13, 14

RADLEY BALKO, RISE OF THE WARRIOR COP:

THE MILITARIZATION OF AMERICA’S POLICE

FORCES (2013)........................................................... 4

v

Radley Balko, There’s overwhelming evidence

that the criminal justice system is racist.

Here’s the proof., WASH. POST (June 10,

2020) ................................................................. 11, 12

State of Homelessness: 2023 Edition, NAT’L

ALL. TO END HOMELESSNESS (last visited

Jan. 23, 2024) ......................................................... 13

Stephen Rushin & Griffin Edwards, An

Empirical Assessment of Pretextual Stops

and Racial Profiling, 73 STAN. L. REV. 637

(2021) ...................................................................... 10

Thomas K. Clancy, The Framers’ Intent: John

Adams, His Era, and the Fourth

Amendment, 86 IND. L. J. 979 (2011) ...................... 5

Wayne A. Logan, An Exception Swallows a

Rule: Police Authority to Search Incident to

Arrest, 19 YALE L. & POL’Y REV. 281 (2001) ........ 6, 8

William J. Stuntz, Warrants and Fourth

Amendment Remedies, 77 VA. L. REV. 881

(1991) ........................................................................ 5

1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Project on

Criminal Justice was founded in 1999 and focuses in

particular on the scope of substantive criminal liability, the proper and effective role of police in their communities, the protection of constitutional and statutory safeguards for criminal suspects and defendants,

citizen participation in the criminal justice system,

and accountability for law enforcement officers.

Cato’s interest in this case arises from its mission

to support the rights that the Constitution guarantees

to all citizens. Amicus has a particular interest in this

case as it concerns the continuing vitality of the Fourth

Amendment and its ability to act as a meaningful restraint on the exercise of government power.

1 Rule 37 statement: All parties were timely notified before the

filing of this brief. No part of this brief was authored by any

party’s counsel, and no person or entity other than amicus funded

its preparation or submission.

2

SUMMARY OF ARGUMENT

When the Supreme Court created an exception to

the Fourth Amendment’s warrant requirement in

Chimel v. California, 395 U.S. 752 (1969), it took great

care to carve it narrowly. Chimel held that the Fourth

Amendment permits limited, warrantless searches of

the arrestee’s person and the area within his immediate control, which the Court defined as “the area from

within which he might gain possession of a weapon or

destructible evidence.” Id. at 763. Chimel explained

that such searches are reasonable to disarm the arrestee and prevent the destruction or concealment of

evidence. Id.

However, in its decision below, the Kentucky Supreme Court flouted the justifications underlying the

search incident to arrest exception by holding that it

extends to personal items outside the area accessible

to the arrestee. By the time Officer Kennedy searched

Petitioner’s backpack, Petitioner was handcuffed and

the backpack was secured. Commonwealth v. Bembury, 677 S.W.3d 385, 388–89 (Ky. 2023). But the court

found these facts immaterial, and upheld the search

pursuant to its adoption of the “time of arrest” rule.

The rule embraced below considers an item part of

the arrestee’s person for the purposes of a search incident to arrest if it is “in the arrestee’s actual and exclusive possession . . . at or immediately preceding the

time of arrest such that the item must necessarily accompany the arrestee into custody.” Id. at 406. But the

practical application of this rule would result in virtually any container, accessory, or other physical item

found with the arrestee being fair game for a warrantless search. As the principle dissent correctly

3

reasoned, this Court’s precedents require a different

rule and a different result. Pet. App. 58a–60a.

As Petitioner explains, the Kentucky Supreme

Court’s decision was no isolated legal error, but was

instead part of a troubling pattern of lower courts disregarding the search incident to arrest exception’s limited application. The decision below illustrates how

decades of excessive judicial deference to the judgment

of law enforcement have led to increasingly grave incursions on the purpose and command of the Fourth

Amendment. The warrant requirement, which presumptively applies to all searches and seizures, has itself become the exception, rather than the norm.

The Court should grant certiorari to rebuff this

trend and clarify that the search incident to arrest exception is meant to be narrowly applied. That correction is especially urgent considering how the decision

below will disproportionately affect people of limited

financial means with scant ability to influence the levers of public policy. Unfortunately, conscious and unconscious biases in policing practices are longstanding

and well-established, and affect virtually every facet of

the criminal justice system. Studies show that people

of color and homeless individuals are frequently singled out for disfavorable treatment by law enforcement, whether intentionally or not, and not always

with adequate legal cause. The time of arrest rule embraced by the majority below and by various other

state and federal courts gives police even more power

to engage in warrantless searches based on bias and

stereotypes and leaves some of our most vulnerable citizens with less protection of their persons and effects

than the Fourth Amendment in fact provides.

4

ARGUMENT

I. THE KENTUCKY SUPREME COURT’S DECISION WOULD ALLOW ABUSES AKIN TO

THOSE THAT MOTIVATED THE FOURTH

AMENDMENT.

The Fourth Amendment’s protections against unreasonable searches and seizures “grew in large measure out of the colonists’ experience with the writs of

assistance and their memories of the general warrants

formerly in use in England.” United States v. Chadwick, 433 U.S. 1, 7–8 (1977), abrogated on other

grounds by California v. Acevedo, 500 U.S. 565 (1991).

These writs “granted sweeping power to customs officials and other agents of the King to search at large for

smuggled goods.” Id. at 8. The Fourth Amendment is

“a reaction to the general warrants and warrantless

searches that so alienated the colonists and had helped

speed the movement for independence.” Chimel v. California, 395 U.S. 752, 761 (1969).

The form of general warrant that most roused the

colonists’ ire was the so-called “writ of assistance”—a

tool used to aid the British in combatting colonial resistance to rising taxation by giving law enforcement

carte blanche authority to search for smuggled goods.

See, e.g., RADLEY BALKO, RISE OF THE WARRIOR COP:

THE MILITARIZATION OF AMERICA’S POLICE FORCES 8

(2013). These writs were perpetual and general search

authorizations that permitted the holder (and any

transferees) to search a person or place at whim. The

abuses that came from these writs were “[v]ivid in the

memory” of the Framers when the Fourth Amendment

5

was crafted. Stanford v. Texas, 379 U.S. 476, 481

(1965).

While “framing-era sources did not always agree on

the details of the criteria for regulated searches and

seizures, they were united in seeking objective criteria

to measure the propriety of government actions.”

Thomas K. Clancy, The Framers’ Intent: John Adams,

His Era, and the Fourth Amendment, 86 IND. L. J. 979,

980 (2011). The language they settled upon for the

Fourth Amendment was “precise and clear” and “reflect[ed] the determination of those who wrote the Bill

of Rights” that Americans should be secure “from intrusion and seizure by officers acting under the unbridled authority of a general warrant.” Stanford, 379

U.S. at 481. Given this historical backdrop, precedent

reflects that “[a]lthough the text of the Fourth Amendment does not specify when a search warrant must be

obtained,” a “warrant must generally be secured” for a

search to be “reasonable.” Kentucky v. King, 563 U.S.

452, 459 (2011).

In theory, “searches conducted outside the judicial

process, without prior approval by judge or magistrate,

are per se unreasonable under the Fourth Amendment—subject only to a few specifically established

and well-delineated exceptions.” Katz v. United States,

389 U.S. 347, 357 (1967). In practice, however, these

“exceptions” have become so expansive that “warrants

are the exception rather than the rule.” William J.

Stuntz, Warrants and Fourth Amendment Remedies,

77 VA. L. REV. 881, 882 (1991); see also Wayne A. Logan, An Exception Swallows a Rule: Police Authority to

6

Search Incident to Arrest, 19 YALE L. & POL’Y REV. 281,

384 (2001).

The many exceptions to the warrant requirement

have severely undermined the exacting protections

that the Framers sought to enshrine. Decades of concessions made in the interest of protecting law enforcement have led to exceptions applicable to “limited circumstances” that are themselves virtually limitless.

From pretextual stops, to the “good-faith” exception to

the exclusionary rule, to exceedingly permissive interpretations of Terry v. Ohio, court-created exceptions to

the warrant requirement have almost completely

swallowed the warrant rule.

Consider, for example, the practical evolution of

this Court’s jurisprudence regarding the vehicle exception. In Carroll v. United States, 267 U.S. 132, 153–54

(1925), the Court found that the warrantless search of

a vehicle is reasonable so long as law enforcement has

probable cause to believe the vehicle contains contraband, given that it often “is not practicable to secure a

warrant because the vehicle can be quickly moved out

of the locality or jurisdiction in which the warrant

must be sought.” Over time, however, the vehicle exception has been extended to include “vehicles” that

are not functionally mobile, in situations that do not

appear to implicate any of Carroll’s practical concerns.

See Florida v. Meyers, 466 U.S. 380, 382–83 (1984) (approving warrantless search of impounded car in secured area); Texas v. White, 423 U.S. 67, 68–69 (1975)

(per curiam) (upholding warrantless search of seized

car parked at police station); Chambers v. Maroney,

399 U.S. 42, 51–52 (1970) (approving warrantless

7

search and seizure despite car being impounded and

occupants jailed).

Exigency, another exception to the warrant requirement, has likewise been applied liberally in favor

of police expediency. See, e.g., Mitchell v. Wisconsin,

139 S. Ct. 2525, 2531 (2019) (permitting warrantless

blood test where driver is unconscious and cannot give

breath test); Kentucky v. King, 563 U.S. 452, 455

(2011) (allowing warrantless entry even though it was

officer’s knock that caused defendants to attempt destruction of evidence). The same can also be said of the

circumstances necessary to obtain consent to search.

See, e.g. Ohio v. Robinette, 519 U.S. 33 (1996) (finding

“consent search” voluntary even though consenter did

not know he was free to go); Schneckloth v.

Bustamonte, 412 U.S. 218, 248–49 (1973) (upholding

“consent search” of vehicle despite consenter’s lack of

knowledge that he could refuse).

The aggregation of these and other doctrines “already enables a host of aggressive and intrusive police

tactics.” United States v. Johnson, 874 F.3d 571, 577

(7th Cir. 2017) (en banc) (Hamilton, J., dissenting):

The Fourth Amendment . . . allows police

to arrest suspects for minor traffic infractions even if a court could impose only a

fine, Atwater v. City of Lago Vista, 532

U.S. 318 (2001), and arrested persons can

be strip-searched, Florence v. Board of

Chosen Freeholders, 566 U.S. 318, 339

(2012), fingerprinted, photographed, and

perhaps even subjected to a DNA test, see

Maryland v. King, 569 U.S. 435, 481

(2013) (Scalia, J., dissenting). Moreover,

a Terry stop can even be justified by an

8

officer’s mistake of either law or fact. Heinen v. North Carolina, 135 S. Ct. 530, 536

(2014).

Id. at 578.

When combined, exceptions to the warrant requirement enable a cascade of severe consequences for anyone committing even a trivial infraction. On its own,

the search incident to arrest exception already serves

as a powerful tool for law enforcement by empowering

police to rely on minor offenses as justification for invasive warrantless searches. Logan, supra, at 404

(noting that courts have condoned searches incident to

arrest for littering, civil contempt, riding a bike on a

sidewalk, juvenile curfew violation, truancy, speeding,

driving with a suspended license, seatbelt violations,

underage possession of alcohol, urinating in public,

and riding a bike with a suspended driver’s license).

But the Kentucky Supreme Court’s decision stretches

the law yet another step further, giving police virtually

unlimited power to search physical items found with

the arrestee, regardless of whether there is a particularized concern about officer safety or destructible evidence. When combined with the other exceptions to

the warrant requirement, the decision below takes us

one step closer to a system that mirrors the general

warrant regime the Fourth Amendment was designed

to prevent.

The Kentucky Supreme Court’s decision should not

be seen as an isolated misapplication of this Court’s

search incident to arrest doctrine. Rather, it is a troubling illustration of how easily Fourth Amendment

9

“exceptions” can expand until they eclipse the baseline

rules they were originally meant to modify.

II. THE RULING BELOW DISPROPORTIONATELY HARMS HOMELESS INDIVIDUALS

AND PEOPLE OF COLOR.

It is no secret that America’s criminal justice system features massive and widespread racial disparities. Those disparities include everything from the frequency of traffic stops and vehicle searches to the

length of prison sentences. While the Fourth Amendment is supposed to act as a shield between citizens

and overzealous police officers, modern jurisprudence

ignores the very real problem of racially motivated policing. The impact of the Kentucky Supreme Court’s

decision will not be felt equally by all Kentuckians.

Decades of excessive deference to the judgment of

law enforcement have created doctrinal loopholes that

encourage racial profiling in policing. Consider, for example, the practical evolution of this Court’s case law

on pretextual traffic stops. In Whren v. United States,

517 U.S. 806, 813 (1996), this Court “foreclose[d] any

argument that the constitutional reasonableness of

traffic stops depends on the actual motivations of the

individual officers involved.” In other words, even

where the alleged probable cause is merely pretext for

a stop motivated by an entirely separate concern—including unlawful motives, such as “selective enforcement of the law based on considerations such as

race”—such stops are nevertheless still “reasonable”

under Fourth Amendment precedent. Id.

Whren created a judicially approved method for racially motivated policing, even while disclaiming the

lawfulness of that practice. Id. (“We of course agree

10

with petitioners that the Constitution prohibits selective enforcement of the law based on considerations

such as race.”). A quarter century later, the practical

results have proven both predictable and disturbing.

Allowing pretextual traffic stops led to a statistically

significant increase in stops of drivers of color relative

to white drivers, especially “during the daytime, when

officers could more easily ascertain a driver’s race.”

Stephen Rushin & Griffin Edwards, An Empirical Assessment of Pretextual Stops and Racial Profiling, 73

STAN. L. REV. 637, 644 (2021).

Police have not hesitated to push the boundaries of

Whren even further. For example, in United States v.

Escalante, 239 F.3d 678 (5th Cir. 2001), the Fifth Circuit upheld a search and seizure where the purported

probable cause was that the defendant drove carelessly by “weav[ing] across the lane divider lines two

or three times.” Id. at 679. But this justification was

almost certainly pretextual, as the officer “candidly

acknowledged at the suppression hearing that he suspected drug smuggling when Escalante passed him.”

Id. at 682 (Stewart, J., dissenting). As the dissent

noted, the officer went beyond effecting a pretextual

stop as envisioned by Whren and effectively “manufacture[d] probable cause by tailgating a motorist.” Id.

See also United States v. Chhien, 266 F.3d 1, 4 (1st Cir.

2001) (upholding search and seizure by member of an

elite police team trained to “look beyond the traffic

ticket” and use “routine traffic patrols” to “ferret out

serious criminal activity”).

Officers have used these sorts of fishing practices

outside the automobile context as well. According to a

Los Angeles Times investigation, deputies frequently

stop and search bike riders, especially Latino cyclists,

11

when there is no reason to suspect criminal activity.

Ben Poston & Alene Tchekmedyian, Sheriff’s Department bike stops: How we reported the story, L.A. TIMES

(Nov. 4, 2021).2 Los Angeles deputies use obscure,

rarely enforced bicycle traffic laws as pretext for stops

often ending with a search of riders and their belongings. Id. The Times’ analysis of more than 44,000 bike

stops logged by the Sheriff’s Department since 2017

found that seven out of every ten involved Latino cyclists, and bike riders in poorer communities with

large nonwhite populations were stopped and searched

grossly disproportionately. Id.

Recent studies consistently demonstrate that people of color are more likely to be stopped and searched

by police than their white counterparts. See Radley

Balko, There’s overwhelming evidence that the criminal justice system is racist. Here’s the proof., WASH.

POST (June 10, 2020).3 According to the New York affiliate of the ACLU, “90 percent of people stopped by

the NYPD” between 2003 and 2022 “were people of

color.” A Closer Look at Stop-and-Frisk in NYC,

NYCLU (last visited Jan. 22, 2024).4 Black people in

New York “were stopped at a rate nearly eight times

greater than white people, and Latinx people were

stopped at a rate four times greater.” Id. A similar examination of police stops in Cincinnati revealed that

“blacks were stopped at a 30% higher rate than whites”

and made up “52% of all vehicle and pedestrian stops

between 2012 and 2017, despite being 43% of the city’s

population.” Kevin S. Aldridge, Editorial: Racial

2 Available at https://lat.ms/3SvZdIQ.

3 Available at http://bit.ly/4b7LrU0.

4 Available at https://bit.ly/3SrbyxB.

12

disparities in police stops demands attention, CINCINNATI ENQUIRER (Dec. 20, 2019).5 Additionally, Cincinnati police “arrested more than three times the number of blacks pulled over as whites, 15,127 compared

to 4,315,” and black individuals accounted for “76% of

all arrests.” Id. In Washington, D.C., a study examining 11,000 police stops revealed that black individuals

accounted for “70 percent of police stops, and 86 percent of stops that didn’t involve traffic enforcement,”

even though black people account for only “46 percent

of the city’s population.” Balko, supra. A similar report

from the Los Angeles Times revealed that during traffic stops, “24% of black drivers and passengers were

searched, compared with 16% of Latinos and 5% of

whites,” even though white people were likeliest to

have contraband. Ben Poston & Cindy Chang, LAPD

searches black and Latinos more. But they’re less likely

to have contraband than whites, L.A. TIMES (Oct. 8,

2019 3:52 PM).6

People of color are not the only ones who will disproportionately bear the weight of the decision below.

In his dissent, Justice Thompson correctly points out

how the majority’s rule will disproportionately impact

the homeless population because “[s]uch persons do

not have the luxury of fences, doors, and locks found in

traditional residences wherein they can secure their

possessions.” Commonwealth v. Bembury, 677 S.W.3d

385, 414–15 (Ky. 2023) (Thompson, J. dissenting). Instead, they “are dependent upon suitcases, backpacks,

5 Available at https://bit.ly/3SrdFBx.

6 Available at https://bit.ly/48FchkD.

13

grocery carts and even garbage bags to secure their

personalty.” Id.

This is exceptionally concerning considering the

fact that homelessness in America is at an all-time

high. In 2022, more than half a million Americans experienced homelessness. State of Homelessness: 2023

Edition, NAT’L ALL. TO END HOMELESSNESS (last visited Jan. 23, 2024).7 Of those people, “40 percent . . .

live unsheltered, which means their primary

nighttime residence is a place not suitable for human

habitation.” Id.

Increasing rates of homelessness have caused state

and local governments to react by adopting laws and

policies aimed at vanishing the homeless population

from public view. Over the last decade, “[l]aws criminalizing homelessness have dramatically increased.”

NAT’L L. CTR. ON HOMELESSNESS & POVERTY, HOUSING

NOT HANDCUFFS: ENDING THE CRIMINALIZATION OF

HOMELESSNESS IN U.S. CITIES 10 (2016).8 Police have

broad authority to arrest and cite homeless individuals

“for minor ‘public nuisance’ crimes—such as camping,

loitering, and public urination.” Emily Peiffer, Five

Charts That Explain the Homelessness-Jail Cycle—

and How to Break It, URBAN INST. (Sept. 16, 2020).9

Local governments rely on law enforcement to remove

visibly homeless people from public spaces by

7 Available at https://bit.ly/492kLlr.

8 Available at https://bit.ly/3OfYTvb.

9 Available at https://bit.ly/3Odpt86.

14

arresting or relocating them for harmless, unavoidable

behaviors. HOUSING NOT HANDCUFFS, supra, at 8, 10–

11.

The criminalization of homelessness has allowed

police to arrest people for doing nothing more than trying to exist in public spaces. These people have no

choice but to carry “all the privacies of life” with them

at all times. Bembury, 677 S.W.3d at 415 (Thompson,

J., dissenting). They do not have the luxury of guarding the most intimate details of their lives behind a

closed door, and by allowing officers to conduct overly

expansive searches of personal items without a warrant, the decision below strips some of our most vulnerable citizens of a vital constitutional protection.

The level of security provided by the Fourth

Amendment should not vary based on a person’s race

or economic status; but given the prevalence of racemotivated policing tactics and the seemingly intractable problem of homelessness, it is inevitable that certain groups will be disproportionately harmed by the

Kentucky Supreme Court’s decision.

There is no panacea for the systemic problems

plaguing the American criminal justice system—there

are serious structural issues that exceed the bounds of

any one case or doctrine. But by reversing the decision

below and ensuring that the search incident to arrest

doctrine is not expanded beyond its original scope, this

Court can take a small but significant step toward

15

providing all citizens with meaningful protection under the Fourth Amendment.

CONCLUSION

For these reasons, and those described by the

Petitioner, this Court should grant the petition.

........................................... Respectfully submitted,

February 26, 2024

Clark M. Neily III

Counsel of Record

Laura A. Bondank

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 425-7499

cneily@cato.org