Petition for Writ of Certiorari — Nikky Nicole Lujan, Petitioner v. United States

No. __________

IN THE

SUPREME COURT OF THE UNITED STATES

NIKKY NICOLE LUJAN,

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

______________

PETITION FOR A WRIT OF CERTIORARI

____________

J. Dennis Hester

Counsel of Record

4801 Woodway Drive, Suite 300

Houston, Texas 77056

Tel. 325-212-8272

dennis_hester@outlook.com

QUESTION PRESENTED

In Rodriguez v. United States, 575 U.S. 348, 354 (2015), this Court held that

an officer needs reasonable suspicion to prolong a traffic stop beyond its mission.

As part of the mission of a traffic stop, an officer may ask a driver about the purpose

of their travel, and suspicious answers might contribute to reasonable suspicion. The

issue here is whether reasonable suspicion existed when a primary factor relied on

by the government was the Petitioner’s allegedly suspicious answer to a question

about her itinerary, but the explanation was objectively reconcilable with police

surveillance and the questioning officer failed to inquire further.

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RELATED PROCEEDINGS

The following proceedings are directly related to this case:

• United States v. Nikky Lujan, No. 7:23-CR-98-1, United States District Court

for the Western District of Texas.

• United States v. Nikky Lujan, No. 24-50030, United States Court of Appeals

for the Fifth Circuit.

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TABLE OF CONTENTS

Question Presented ……………………………………………………………….. ii

Related Proceedings ……………………………………..………………………. iii

Table of Authorities ………………………………………………………………. v

Petition for Writ of Certiorari ………………………….…………………………. 1

Opinions Below …………………………………...……………………………… 1

Jurisdiction …………………………………………..……………………………. 1

Relevant Constitutional Provision ………………………….…………………….. 1

Statement of the Case …………………………………………………………….. 2

Reasons for Granting the Petition ……………………...…………………………. 4

Conclusion ……………………………………………..…………………………. 6

Appendix

(Court of Appeals Opinion and Order Denying Motion for Rehearing) ……...…..1a

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TABLE OF AUTHORITIES

Cases

Muehler v. Mena, 544 U.S. 93 (2005) …………………………………….……… 4

Ornelas v. United States, 517 U.S. 690 (1996) ……………………...……………. 5

Rodriguez v. United States, 575 U.S. 348 (2015) ……………………...……. ii, 2, 4

United States v. Cole, 21 F.4th 421 (7th Cir. 2021) …………………….………… 4

United States v. Jenson, 426 F.3d 399 (5th Cir. 2006) ……………………………. 5

United States v. Simpson, 609 F.3d 1140 (10th Cir. 2010) ……………………….. 4

United States v. Spears, 636 F. App’x 893 (5th Cir. 2016) …………….…………. 5

United States v. Stewart, 92 F.4th 461 (3d Cir. 2024) …………………….………. 4

Statutes and Amendments to the U.S. Constitution

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

U.S. Const. Am. IV ……………………………………………………………….. 1

v

PETITION FOR WRIT OF CERTIORARI

Petitioner Nikky Nicole Lujan petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The Fifth Circuit’s opinion (Pet. App. 1a) is unreported but available at 2025

WL 673435.

STATEMENT OF JURISDICTION

The Fifth Circuit entered judgment on March 3, 2025, and denied the

petitioner’s timely petition for rehearing on March 28, 2025. Pet. App. 19a. The

Court has jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL PROVISION

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to

be seized.

U.S. CONST. AM. IV

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STATEMENT OF THE CASE

Nikki Lujan was arrested after officers found methamphetamine in her vehicle

pursuant to a traffic stop and K-9 search. C.A. Record on Appeal (ROA).14. She

pleaded guilty to conspiracy to possess with intent to distribute and possession with

intent to distribute 50 grams or more of actual methamphetamine and was sentenced

to two concurrent terms of 340 months of incarceration in the Midland Division of

the Western District of Texas. C.A. ROA.77-78.

Prior to pleading guilty, Ms. Lujan moved to suppress evidence alleging that

the search of her vehicle following a traffic stop violated the Fourth Amendment as

officers unlawfully prolonged the traffic stop to conduct a dog sniff. C.A. ROA.3536. The district court denied the motion to suppress, finding that prolonging the

mission of the traffic stop for approximately seven minutes for a drug dog sniff was

per se reasonable, and in the alternative, that prolonging the stop was supported by

reasonable suspicion. C.A. ROA.58-60.

The Fifth Circuit found that the district court’s per se reasonableness finding

was in error and contrary to Rodriguez v. United States, 575 U.S. 348 (2015). Pet

App. 6a. But, characterizing the matter as a “close call,” it held that there was

reasonable suspicion to prolong the traffic stop. Pet. App. 17a. In doing so, the Fifth

Circuit relied on the totality of the circumstances—noting that no factor alone was

sufficient to establish reasonable suspicion. Pet. App. 8a-9a.

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The court found that a few factors lent to reasonable suspicion, including that

Ms. Lujan (1) had a prior drug conviction, (2) had been observed leaving a house

under suspicion of drug dealing, and (3) had omitted a stop when asked about her

travel itinerary. Opinion at 17. Regarding the third factor, Ms. Lujan told officers

that she was coming from her home when surveillance showed that she had stopped

at the home of Raul Gonzalez, the passenger in the vehicle, and picked him up.

Importantly, surveillance showed that Ms. Lujan did not exit her vehicle at Mr.

Gonzalez’s home. Pet. App. 2a. She pulled in front of the home and Mr. Gonzalez

exited his own vehicle—which he had arrived in moments before—and got into Ms.

Lujan’s vehicle. Pet. App. 2a. The officer did not ask any follow-up questions so that

Ms. Lujan could explain any brief stops. Questions such as “did you stop anywhere

after you left home?” Despite this, the officer’s suspicion that her answer was false

was credited by the court. Pet. App. 13a-14a.

Ms. Lujan filed a petition for rehearing in the Fifth Circuit arguing, inter alia,

that the court’s conclusion that her omission of the stop supported reasonable

suspicion because the answer was reconcilable with what officers had observed and

the officer failed to ask reasonable follow-up questions. The petition for rehearing

was denied.

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REASONS FOR GRANTING THE PETITION

The mission of a traffic stop is for an officer to address the traffic violation

and attend to any safety concerns. Rodriguez v. United States, 575 U.S. 348, 354

(2015). A dog sniff for narcotics is not a part of the mission of a routine traffic stop.

Id. Thus, an officer must have reasonable suspicion that there is contraband in the

vehicle to extend a traffic stop for a dog sniff. Id.

Here, the dog sniff was not supported by reasonable suspicion and analysis of

the totality of the circumstances raises an important issue about officer conduct in

road-side investigations that is worth this Court’s attention. The issue is to what

extent officers must inquire further about a motorist’s travel plans before the officer

may reasonably conclude that the motorist is being evasive.

In a routine traffic stop, officers may question a driver about the purpose of

their trip and their itinerary. See Muehler v. Mena, 544 U.S. 93, 100-01 (2005). And

when a driver’s explanation of their travel plans is suspicious or inconsistent this is

a factor that supports reasonable suspicion. United States v. Stewart, 92 F.4th 461,

469 (3d Cir. 2024); United States v. Simpson, 609 F.3d 1140, 1150 (10th Cir. 2010).

Additionally, “every circuit to address the issue post-Rodriguez” has concluded that

officers are permitted to ask reasonable follow up questions to suspicious answers

about travel plans. United States v. Cole, 21 F.4th 421, 430 (7th Cir. 2021).

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But when—as here—the explanation is objectively reconcilable with the

observations of the officer there is no basis for reasonable suspicion unless the

officer investigates further and asks follow-up questions. See United States v.

Jenson, 426 F.3d 399, 404 (5th Cir. 2006) (discounting officer’s claim of dishonesty

where he “easily could have dispelled his suspicions by asking a follow-up question

. . . but failed to do so”); United States v. Spears, 636 F. App'x 893, 902 (5th Cir.

2016) (same, where “the officer did not ask Spears anything [to confirm or dispel

suspicions]”). That should be the case even if—also as here—the questioning officer

subjectively finds that the answer was suspicious. After all, matters of reasonable

suspicion are determined by a standard of objective reasonableness. Ornelas v.

United States, 517 U.S. 690, 696 (1996).

The Fifth Circuit disregarded its own precedent on this matter. Ms. Lujan told

officers that she had just “left [her] house” when asked where she was coming from.

The officer found this suspicious because a surveillance team had seen her make a

stop at Mr. Gonzalez’s home. But the evidence showed that it was a brief stop merely

to pick up Mr. Gonzalez from his driveway. Ms. Lujan did not exit her vehicle and

much less did she enter the home. Her explanation that she was coming from her

own home, therefore, was reconcilable with the observations of the surveillance

team and the officer should have asked additional questions before concluding she

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was being dishonest or evasive. Because the officer failed to do so, the Fifth Circuit

should not have considered Ms. Lujan’s travel explanation suspicious.

This is an excellent case to address this important issue. As the Fifth Circuit

stated, reasonable suspicion was a “close call” and, without the travel explanation,

the primary factors are Ms. Lujan’s prior arrest for methamphetamine and her brief

stop at a house under surveillance for drug dealing. Under those circumstances, the

balance is very likely tipped against reasonable suspicion.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

/s/ Dennis Hester

J. Dennis Hester

Counsel of Record

4801 Woodway Drive, Suite 300

Houston, Texas 77056

Tel. 325-212-8272

dennis_hester@outlook.com

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