Amicus Curiae Brief — Gilbert Perez, Petitioner v. United States

No. 24-577

In the Supreme Court of the United States

__________

GILBERT PEREZ,

Petitioner,

v.

UNITED STATES,

Respondent.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the First Circuit

__________

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

December 20, 2024

i

QUESTION PRESENTED

Does the Fourth Amendment prohibit the warrantless search of a backpack, piece of luggage, or other bag

carried by an individual at the time of his arrest once

police have secured the bag and eliminated any possibility of reaching a weapon or evidence inside it?

ii

TABLE OF CONTENTS

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

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

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

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

ARGUMENT ................................................................ 3

I. EXPANSION OF THE SEARCH

INCIDENT TO ARREST EXCEPTION

WOULD ALLOW ABUSES AKIN TO

THOSE THAT MOTIVATED THE

FOURTH AMENDMENT. ................................ 3

II. THE RULE EMBRACED IN THE

DECISION BELOW

DISPROPORTIONATELY HARMS

HOMELESS INDIVIDUALS AND

PEOPLE OF COLOR. ....................................... 8

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) ............ 5

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

Chimel v. California, 395 U.S. 752 (1969) .............. 2, 3

City of Grants Pass v. Johnson, 144 S. Ct.

2202 (2024) ............................................................. 13

Florence v. Bd. of Chosen Freeholders, 566

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

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

Heien v. North Carolina, 574 U.S. 54 (2014) .............. 7

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

Kentucky v. King, 563 U.S. 452 (2011) .................... 4, 6

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

Mitchell v. Wisconsin, 588 U.S. 840 (2019) ................. 6

Ohio v. Robinette, 519 U.S. 33 (1996) ......................... 6

Schneckloth v. Bustamonte, 412 U.S. 218

(1973) ........................................................................ 6

Stanford v. Texas, 379 U.S. 476 (1965) ....................... 4

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

United States v. Chadwick, 433 U.S. 1 (1977) ............ 3

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

2001) ....................................................................... 10

iv

United States v. Escalante, 239 F.3d 678 (5th

Cir. 2001) .................................................................. 9

United States v. Johnson, 874 F.3d 571 (7th

Cir. 2017) .............................................................. 6, 7

Whren v. United States, 517 U.S. 806 (1996).......... 8, 9

Other Authorities

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

NYCLU (last visited Dec. 13, 2024) ...................... 11

Ben Poston & Alene Tchekmedyian, Sheriff’s

Department bike stops: How we reported the

story, L.A. TIMES (Nov. 4, 2021) ............................. 10

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) ................................. 11

Emily Peiffer, Five Charts That Explain the

Homelessness-Jail Cycle—and How to

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

Jaimie Ding, Gov. Newsom passed a new

executive order on homeless encampments.

Here’s what it means, AP NEWS (July 25,

2024, 8:34 PM)........................................................ 13

Kevin S. Aldridge, Editorial: Racial

disparities in police stops demands

attention, CINCINNATI ENQUIRER (Dec. 20,

2019) ....................................................................... 11

Martin Kaste, San Francisco ramps up

policing of homeless camps, with the

Supreme Court’s blessing, NPR (Sept. 30,

2024, 1:00 PM)........................................................ 14

v

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

HOUSING NOT HANDCUFFS: ENDING THE

CRIMINALIZATION OF HOMELESSNESS IN U.S.

CITIES (2016) .................................................... 12, 13

Patrick Sisson, California Cities Rethink

Homelessness Tactics After Supreme Court

Ruling, BLOOMBERG (July 22, 2024) ...................... 13

RADLEY BALKO, RISE OF THE WARRIOR COP:

THE MILITARIZATION OF AMERICA’S POLICE

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

Radley Balko, There’s overwhelming evidence

that the criminal justice system is racist.

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

2020) ................................................................. 10, 11

Sam Morgen, Palm Springs to restrict

sleeping in public, allow clearing of

homeless encampments, DESERT SUN (July

10, 2024, 6:02 AM) ................................................. 13

State of Homelessness: 2024 Edition, NAT’L

ALL. TO END HOMELESSNESS (last visited

Dec. 12, 2024) ......................................................... 12

Stephen Rushin & Griffin Edwards, An

Empirical Assessment of Pretextual Stops

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

(2021) ........................................................................ 9

Thomas K. Clancy, The Framers’ Intent: John

Adams, His Era, and the Fourth

Amendment, 86 IND. L. J. 979 (2011) ...................... 4

Wayne A. Logan, An Exception Swallows a

Rule: Police Authority to Search Incident to

Arrest, 19 YALE L. & POL’Y REV. 281 (2001) ........ 5, 7

vi

William J. Stuntz, Warrants and Fourth

Amendment Remedies, 77 VA. L. REV. 881

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

Yusra Farzan, Orange County cities ramp up

anti-camping laws after Supreme Court

ruling and Newsom’s order, LAIST (Sept. 3,

2024, 5:00 AM) ....................................................... 14

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 protect against warrantless—and in some cases even suspicionless—searches

incident to arrest against the backdrop of an overcriminalized society in which many if not most people could

be arrested for one thing or another.

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 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.

In its decision below, the First Circuit elided the

justifications underlying the search incident to arrest

exception by holding that it extends to personal items

outside the area accessible to the arrestee. In doing so,

the court further widened an acknowledged split of authority and opened the door for police to search virtually any purse, backpack, briefcase, or other physical

item found with an arrestee, regardless of how sensitive the contents of that accessory may be and even

when there is no reason to suspect that it contains relevant evidence, contraband, or weapons that might

put officers or others at risk.

As Petitioner explains, the First Circuit’s decision

was no isolated legal error, but was instead part of a

troubling pattern of both state and federal courts disregarding the search incident to arrest exception’s limited application. Pet. at 8–15. The decision below illustrates how decades of excessive deference to the prerogatives of law enforcement have led to increasingly

grave incursions on the purpose and command of the

Fourth Amendment. The warrant requirement, which

3

presumptively applies to all searches and seizures, is

at risk of becoming the exception, rather than the

norm.

The Court should grant certiorari to resolve the

split of authority among lower courts by clarifying that

the search incident to arrest exception is to be narrowly applied in a manner consistent with its animating rationale. 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.

ARGUMENT

I.

EXPANSION OF THE SEARCH INCIDENT

TO ARREST EXCEPTION 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

4

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 engendered by these writs were “[v]ivid in the

memory” of the Framers when the Fourth Amendment

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. Consistent with 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 principle, “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

5

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 Search Incident to Arrest, 19 YALE L. &

POL’Y REV. 281, 384 (2001) [hereinafter Logan, Exception Swallows Rule].

Taken together, the numerous exceptions to the

warrant requirement have severely undermined the

exacting protections that the Framers sought to enshrine in the Fourth Amendment. The accretion and

expansion of exceptions to the warrant requirement

have, over a period of decades, agglomerated into an

ethic of permissiveness that appears increasingly

boundless. 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 largely

obviated the constitutional default of requiring judicial

authorization to conduct intrusive searches of the kind

that so vexed the colonists.

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

6

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

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 investigative expediency. See, e.g., Mitchell v. Wisconsin, 588 U.S. 840, 856 (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” during traffic stop voluntary even

though the motorist did not know he was free to go);

Schneckloth v. Bustamonte, 412 U.S. 218, 248–49

(1973) (upholding “consent search” of vehicle despite

passenger’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

7

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

officer’s mistake of either law or fact.

Heien v. North Carolina, 574 U.S. 54, 68

(2014).

Id. at 578.

When combined, exceptions to the warrant requirement expose to intrusive and even suspicionless

searches people suspected of committing even the most

trivial infractions. See Logan, Exception Swallows

Rule, 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 First Circuit’s decision stretches the law

yet another step further, giving police virtually unlimited authority 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 many other exceptions

to the warrant requirement, the decision below represents an additional incremental step toward a system

8

that mirrors the general warrant regime the Fourth

Amendment was designed to prevent.

The decision below is not an isolated misapplication of this Court’s search incident to arrest doctrine.

Rather, it is a troubling illustration of how easily

Fourth Amendment “exceptions” can expand until

they eclipse the baseline rules they were originally

meant to modify.

II. THE RULE EMBRACED IN THE DECISION

BELOW DISPROPORTIONATELY HARMS

HOMELESS INDIVIDUALS AND PEOPLE

OF COLOR.

It is well established that America’s criminal justice system features substantial racial disparities that

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 investigators,

modern jurisprudence tends to minimize the very real

problem of racially motivated policing. The impact of

the First Circuit’s decision will not be felt equally by

all people.

Decades of extra-constitutional deference to the

judgment and prerogatives 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 asserted probable cause is plainly a pretext for a stop with an

9

entirely different impetus—including such unlawful

motives as “selective enforcement of the law based on

considerations such as race”—the ensuing stops and

searches will nevertheless be deemed “reasonable” under Fourth Amendment precedent. Id.

In effect, Whren drew a roadmap for racially motivated policing even while disclaiming the lawfulness

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

10

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-expedition

practices outside the automobile context as well. According to a Los Angeles Times investigation, deputies

frequently stop and search bike riders, especially Latino cyclists, 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) [hereinafter Balko, Overwhelming Evidence].3 According to the New York affiliate of

the ACLU, “90 percent of people stopped by the NYPD”

between 2003 and 2023 “were people of color.” A Closer

Look at Stop-and-Frisk in NYC, NYCLU (last visited

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

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

11

Dec. 13, 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 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, Overwhelming Evidence. 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.

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

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

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

12

The First Circuit’s expansion of the search incident to

arrest exception will disproportionately impact homeless individuals 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, grocery carts and even garbage bags to secure their personalty.” Id.

This is exceptionally concerning considering that

homelessness in America is becoming endemic. In

2023, “[a] record-high” of 653,104 Americans experienced homelessness. State of Homelessness: 2024 Edition, NAT’L ALL. TO END HOMELESSNESS (last visited

Dec. 12, 2024).7 More than 50 percent of individuals

experiencing homelessness were unsheltered, meaning their primary nighttime residence was a “location[]

unfit 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—

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

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

13

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 arresting or relocating them for harmless, unavoidable behaviors. HOUSING NOT HANDCUFFS, supra, at 8, 10–11.

This past term, the Court upheld a municipal ordinance criminalizing public camping, City of Grants

Pass v. Johnson, 144 S. Ct. 2202 (2024), with the result

that states and cities have felt empowered “to employ

more aggressive measures around the challenge of

homelessness.” Patrick Sisson, California Cities Rethink Homelessness Tactics After Supreme Court Ruling, BLOOMBERG (July 22, 2024).10 Within a few weeks

of that decision, California Governor Gavin Newsom

issued an executive order “direct[ing] state agencies to

remove homeless encampments from state land.”

Jaimie Ding, Gov. Newsom passed a new executive order on homeless encampments. Here’s what it means,

AP NEWS (July 25, 2024, 8:34 PM).11 And cities

throughout California quickly began enacting stricter

policies aimed at policing homelessness. See Sisson,

supra.12

The increasing criminalization of homelessness has

allowed police to arrest people for doing nothing more

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

10 Available at https://bit.ly/3ZBgv9G.

11 Available at https://bit.ly/49Hxmfx.

12 See also Sam Morgen, Palm Springs to restrict sleeping in pub-

lic, allow clearing of homeless encampments, DESERT SUN (July

10, 2024, 6:02 AM), https://bit.ly/49zAUQR (Palm Springs ordinance granting police “new power to arrest people who build encampments or sleep in public areas”); Yusra Farzan, Orange

County cities ramp up anti-camping laws after Supreme Court

14

than trying to exist in public spaces. These people have

no choice but to carry the bulk of their possessions with

them at all times. 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

warrantless searches of bags and backpacks that play

a similar role for homeless people as a desk drawer or

nightstand might for a homeowner, the decision below

strips a vital constitutional protection from a uniquely

vulnerable population.

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

expansion of the search incident to arrest exception.

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

ruling and Newsom’s order, LAIST (Sept. 3, 2024, 5:00 AM),

https://bit.ly/4gsVtke (listing cities in Orange County that have

enacted stricter policies policing homelessness); Martin Kaste,

San Francisco ramps up policing of homeless camps, with the Supreme Court’s blessing, NPR (Sept. 30, 2024, 1:00 PM),

https://bit.ly/3ZxKRcX (San Francisco officials authorizing arrests for violations of a California state law prohibiting “lodging”

in public).

15

ensuring that all citizens enjoy the full protection of

the Fourth Amendment.

CONCLUSION

For these reasons, and those described by the

Petitioner, this Court should grant the petition.

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

December 20, 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