Amicus Curiae Brief — Maine v. Patterson

Supreu:c Cuurt, Us.

File)

JUN 6 ~ 2°95

| |

NO. 04-1491 CFRCS OFTHE CLERK |

IN THE SUPREME COURT OF THE UNITED STATES

STATE OF MAINE,

Petitioner,

VS.

JOSHUA PATTERSON,

Respondent.

On Petition For A Writ of Certiorari To

The Maine Supreme Judicial Court Sitting As

The Law Court

BRIEF OF COLORADO, ARIZONA, DISTRICT OF

COLUMBIA, HAWAII, OKLAHOMA, UTAH, AND

VERMONT AS AMICI CURIAE IN SUPPORT OF

PETITIONER

JOHN W. SUTHERS

Attorney General

JOHN J. KRAUSE

Interim Solicitor General

KATHERINE A. HANSEN*

Assistant Attornev General

1525 Sherman Street, 5" Floor

Denver, Colorado 80203

Telephone: (303) 866-5785

* Counsel of Record

TERRY GODDARD

Attorney General

State of Arizona

ROBERT J. SPAGNOLETTI

Attorney General

District of Columbia

MARK J. BENNETT

Attorney General

State of Hawaii

W.A. DREW EDMONDSON

Attorney General

State of Oklahoma

MARK L. SHURTLEFF

Attorney General

State of Utah

WILLIAM SORRELL

Attorney General

State of Vermont

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE

STATEMENT OF THE CASE AND FACTS

REASONS FOR GRANTING THE WRIT

I. There ls A Need For Guidance In The Area

Of When A Seizure Occurs In The Context

Of Street Encounters, Particularly In Light Of

The Maine Law Court’s Decision, Which Is

In Direct Conflict With Decisions Of Other

States And Circuits, And This Court’s Own

Decisions

CONCLUSION

TABLE OF AUTHORITIES

CASES

Adams v. State, 758 S.W.2d 709 (Ark.Ct.App. 1988)

Akins v. State, 596 S.E.2d 719 (Ga.Ct.App. 2004)

Borowicz v. North Dakota Department of

Transportation, 529 N.W.2d 186 (N.D. 1995)

California v. Hodari D., 499 U.S. 621 (1991)

Ex Parte Betterton, 527 So.2d 747 (Ala. 1988)

Florida v. Bostick, 501 U.S. 429 (1991)

Florida v. Rodriguez, 469 U.S. 1 (1984)

Florida v. Royer, 460 U.S. 491 (1983)

ILN.S. v. Delgado, 466 U.S. 210 (1984) 4,6,7, 11, 12

Maine v. Patterson, 868 A.2d 188 (Me. 2005) 3,42

Medley v. State, 630 So.2d 163

(Ala.Crim.App. 1993)

Merideth v. State, 603 S.W.2d 872

(Tex.Cr.App. 1980)

Michigan v. Chesternut, 486 U.S. 567 (1988)

People v. Clark, 541 N.E.2d 199 (IILApp.Ct. 1989)

People v. Murray, 560 N.E.2d 309 (Ill. 1990)

Purce v. United States, 482 A.2d 772 (D.C. 1984)

State v. Boswell, 294 S.E.2d 287 (W.Va. 1982)

State v. Culbreath, 387 S.E.2d 255 (S.C. 1990)

State v. Knox, 939 P.2d 710 (Wash.Ct.App. 1997)

Siate v. Neyrey, 383 So.2d 1222 (La. 1979)

State v. O'Neill, 62 P.3d 489 (Wash. 2003)

il

TABLE OF AUTHORITIES

State v. Zubizareta, 839 P.2d 1237 (Idaho 1992)

Terry v. Ohio, 392 U.S. 1 (1968)

United States v. Barry, 394 F.3d 1070

(8th Cir. 2095)

United States v. Carroll, 591 F.2d 1132

(Sth Cir. 1979)

United States v. Drayton, 536 U.S. 194 (2002) ...4, 6, 7, 9, 11

United States v. Mendenhall, 446 U.S. 544

(1980) 1,6, 11, 12

OTHER AUTHORITIES

4 W. LaFave, Search and Seizure, § 9.4(a)

(4th ed. 2004)

INTEREST OF AMICI CURIAE

Amici States’ interest arises from the fact that this

case implicates one of the most common types of police-

citizen contact: consensual street encounters. In Maine v.

Patterson, 868 A.2d 188 (Me. 2005), the Maine Law Court

addressed such an encounter and determined that a police

Officer’s simple request, without any show of authority,

constitutes a seizure under the Fourth Amendment.' This

decision demonstrates a need for clarity and guidance on the

issue of when a police-citizen encounter that occurs in a

public place involving pedestrians or persons in parked cars

constitutes a Fourth Amendment seizure.

Amici States have a compelling interest in this case,

both because the Maine Law Court’s conclusion is contrary

to this Court’s decisions addressing the issue of when a

seizure occurs, and because it is contrary to numerous

decisions of other courts that have addressed similar facts to

those presented here. Maine v. Patterson undermines the

strong public policy in favor of legitimate police

investigation, and erodes the concept this Court has

recognized that the police may engage in actions that would

otherwise be acceptable if performed by private citizens. See

United States v. Mendenhall, 446 U.S. 544, 553 (1980);

Terry v. Ohio, 392 U.S. 1, 32-33 (1968) (Harlan, J.,

concurring). The Maine Law Court’s holding that a seizure

occurs when a police officer approaches a parked vehicle and

requests that the window be rolled down chills the nght of

' The judgment at issue in this case was rendered by the

Maine Supreme Judicial Court sitting as the Law Court. To

maintain consistency with the terms used by the Maine

Attorney General in the Petition for a Writ of Certiorari to

refer to this court, the term “Maine Law Court” will be used

here as well.

2

the police to engage in lawful conduct, both in investigating

crime and in ensuring the welfare and safety of citizens.

Because this decision could be relied on by other states in

reaching a similarly erroneous conclusion, because this

decision significantly alters the reasonable police officer’s

perception of what conduct he or she may lawfully engage

in, and because this decision is wrong, this Court should

grant certiorari.

STATEMENT OF THE CASE AND FACTS

On January 31, 2004, just after midnight, Officer

Nickerson with the University of Maine Police Department

was on routine patrol when she spotted a car engaged in

legal, yet suspicious, maneuvers, so she decided to follow it.

After the car entered a parking lot on the University of

Maine campus, Officer Nickerson asked Sergeant Norman to

take over. Sergeant Norman was driving an unmarked police

car, and at no point did he activate any of the car’s

emergency lights or spotlights. Sergeant Norman arrived at

the parking lot, and saw the car, parked, with its engine

running. The sergeant parked his patrol car about fifteen

feet behind and observed the car for about five minutes. It

was a very cold night, and as he watched, no one exited the

car, and the windows began to steam up.

Sergeant Norman walked up to the driver’s side of

the car. Although he was in uniform, he did not have his

weapon visible. When the sergeant reached the driver’s side,

he tapped on the window, as neither of the two occupants of

the car appeared to have seen him. In a voice just loud

enough to be heard over the engine, he asked “please roll

down the window.”

The driver, later identified as the Respondent

Patterson, opened the door. At this point, Sergeant Norman

3

noticed a heavy odor of alcohol. Upon smelling the alcohol,

the sergeant asked the Respondent to step out of the car, and

he was thereafter arrested and charged with operating a

vehicle under the influence.

The Respondent filed a motion to suppress all

evidence obtained subsequent to the request. After a

hearing, the District Court granted the motion to suppress.

The District Court held that this was a Fourth Amendment

seizure based on the following three factors: 1) the sergeant

was in uniform; 2) the defendant had an expectation of

privacy in his car; and 3) the sergeant rapped on the driver’s

side window and requested that the window be rolled down.

The District Court concluded that “more probably than not,

defendant perceived the Sergeant’s acts and words as a

command from a police officer and not as a request for a

conversation.”

The Petitioner filed an interlocutory appeal to the

Maine Law Court, which affirmed the order granting the

motion to suppress. See Maine v. Patterson, 868 A.2d 188

(Me. 2005).* The Maine Law Court recognized that the

question centered on the applicable measure of what

constituted a show of authority: “whether [the sergeant’s]

communication was sufficient to effect a seizure depends

? The Maine Law Court indicated that as an appellate court,

it would decline to “review a cold transcript and draw our

own factual inferences about the tone of voice, volume, and

circumstances of Sgt. Norman’s statement.”” However, the

District Court, in finding a seizure and granting the motion to

suppress, did not rely at all on the sergeant’s “tone of voice”

or the “volume” of his statement. The District Court simply

based its ruling on the objective facts that the sergeant

rapped on the window and “requested” that the window be

rolled down.

4

upon whether it was a police request, or a command,” and

later noted that “[t]his is an admittedly close case.” The

Maine Law Court also recognized that “other courts

confronting similar facts have come to differing

conclusions.”

REASONS FOR GRANTING THE WRIT

This Court should grant the petition because courts

and law enforcement officers need guidance in the area of

police-citizen street encounters, with regard to what

constitutes a seizure under the Fourth Amendment. The

question frequently turns on whether there is a show of

authority, and the determination is often based on whether

the officer made a request or a command. Indeed, this case

provides a perfect example of why guidance is needed. A

simple request to roll down a window during a police-citizen

street encounter, without more, now constitutes a Fourth

Amendment seizure in Maine, but such a request will not

likely constitute a seizure in most other states, or where a

federal offense is involved. This disparity is not only

difficult for law enforcement officers, who must deal with

this issue on a frequent basis, but it is potentially damaging

to Fourth Amendment law across this country.

This Court should also grant the petition, not only to

resolve the conflict between the Maine Law Court’s decision

and the decisions of numerous other courts where similar

facts yielded a conclusion that no seizure occurred, but also

the conflict between it and this Court’s decisions in Rover,

I.N.S., Bostick, Rodriguez, and Drayton? Consistency 1s

> United States v. Drayton, 536 U.S. 194 (2002); Florida v.

Bostick, 501 U.S. 429 (1991); Florida v. Rodriguez, 469 U.S.

| (1984); N.S. v. Delgado, 466 U.S. 210 (1984); Florida v.

Royer, 460 U.S. 491 (1983).

important in the area of Fourth Amendment law, as it guides

the future actions of courts and law enforcement officers

nationwide, and serves to protect the rights of citizens and

the legitimate function of law enforcement. This Court

should provide this consistency by granting the petition and

reversing the Maine Law Court’s decision.

1. There Is A Need For Guidance In The Area

Of When A Seizure Occurs In The Context Of

Street Encounters, Particularly In Light Of

The Maine Law Court’s Decision, Which Is In

Direct Conflict With Decisions Of Other

States And Circuits, And This Court’s Own

Decisions.

The Maine decision highlights the need for guidance

from this Court in the area of police-citizen street

encounters. Maine construed the reach of the Fourth

Amendment in an unduly expansive manner, holding that a

knock on a car window accompanied by a request to roll

down the window constituted a seizure. Decisions from

other federal and state courts considering a “show of

authority” by an officer have reached different results.

While this Court has provided general standards for what

constitutes a seizure, these cases demonstrate that further

articulation of the appropriate considerations for what

constitutes a “show of authority” is needed.

This Court has held that the test for deciding whether

an encounter constitutes a “seizure” for Fourth Amendment

purposes is whether a reasonable person under the

circumstances would have believed he or she was free to

leave. Michigan v. Chesternut, 486 U.S. 567, 573 (1988).

When a person is in a place where he or she cannot leave or

desires not to leave, this Court has articulated the test as

follows: “[s]o long as a reasonable person would feel free to

6

‘disregard the police and go about his business,’ the

encounter is consensual and no reasonable suspicion is

required.” Bostick, 501 U.S. at 434. Thus, the appropriate

inquiry for all settings is whether a reasonable person would

feel free to deciine the officer’s requests or otherwise

terminate the encounter. Bostick, 501 U.S. at 436; Drayton,

536 U.S. at 201.

However, “not all personal intercourse between

policeman and citizens involve ‘seizures’ of persons.”

Terry, 392 U.S. at 19 n16. Law enforcement officers do not

violate the Fourth Amendment by merely approaching an

individual in a public place and asking him or her questions.

Instead, it is only when the officer restrains a citizen through

physical force or a show of authority that a seizure has

occurred. /.N.S., 466 U.S. at 215; Mendenhall, 446 U:S. at

552. Circumstances that might indicate a seizure include

“the threatening presence of several officers, the display of a

weapon by an officer, some physical touching of the person

of the citizen, or the use of language or tone of voice

indicating that compliance with the officer’s request might

be compelled.” Mendenhall, 446 U.S. at 554. This last

circumstance was the focus of the Maine Law Court’s

determination, and it is an area that needs further

clarification by this Court.

This Court has addressed guidelines for what

constitutes a seizure in a few discrete contexts: in airports,

on buses, and in workplaces. In Royer, this Court held that

asking for and examining Royer’s airline ticket were

permissible, but when the officers told Royer that he was

suspected of transporting narcotics and asked him to

accompany them to the police room, while retaining his

ticket and driver’s license, Royer was effectively seized at

that point. Royer, 460 U.S. 491. This analysis indicates that

a simple request, without more, does not constitute a seizure.

See also 1.N.S., 466 U.S. at 216 (simple request for

identification not a seizure); Bostick, 501 U.S. at 434,437

(request to examine identification or for consent to search

luggage not a seizure; “no seizure occurs when police ask

questions of an individual ... so long as the officers do not

convey a message that compliance with their requests is

required.”); Rodriguez, 469 U.S. at 5-6 (initial contact where

officers simply asked if defendant would step aside and talk

with them was a consensual encounter); Drayton, 536 U.S. at

203-204 (request for consent to search luggage is not a

seizure).

However, this Court has not yet applied or developed

the analysis in the context of street encounters. As the

instant case pointedly demonstrates, clarification of this test

in the context of street encounters is necessary. What often

arises in this context 1s an issue of whether the officer

engaged in a show of authority, and the lower courts and

members of law enforcement need further guidance from this

Court on this point.

This Court has previously recognized that the general

test for what constitutes a “show of authority” is an objective

one, addressing “not whether the citizen perceived that he

was being ordered to restrict his movement, but whether the

officer’s words and actions would have conveyed that to a

reasonable person. California v. Hodari D., 499 U.S. 621,

628 (1991). “The critical factor is whether the policeman,

even if making inquiries a private citizen would not, has

otherwise conducted himself in a manner which would be

perceived as a nonoffensive contact if it occurred between

two ordinary citizens.” 4 W. LaFave, Search and Seizure,

§ 9.4(a) at 425-426 (4" ed. 2004). LaFave suggests that

there is no seizure if the officer “‘did not order the

defendant’ to do something or ‘demand that he’ do it...”

Id., at 426.

Specifically, with regard to contact with persons in

parked cars, LaFave observes:

[T]he mere approach and questioning of

[persons seated within parked vehicles] does

not constitute a seizure. The result is not

otherwise when the officer utilizes some

generally accepted means of gaining the

attention of the vehicle occupant or

encouraging him to eliminate any barrier to

conversation. The cfficer may tap on the

window and perhaps even open the door if

the occupant is asleep. A request that the

suspect open the door or roll down the

window would seem equally permissible,

but the same would not be true of an order

that he do so.

4 W. LaFave, Search and Seizure, § 9.4(a), at 433 (4" ed.

2004).

By holding that a request to roll down a window

constitutes a seizure, the Maine Law Court has imposed an

unreasonable restriction on when a law enforcement officer

may contact a person in a parked car without reasonable

Suspicion that he or she has engaged in criminal activity. As

indicated above, the sergeant simply knocked on the window

and requested that the driver roll the window down. There

was no other factor present that could be properly considered

a “show of authority.”

The Maine Law Court’s resolution of this issue is

directly contradictory to the conclusion reached by many

courts in this country: that knocking on a window of a

parked car and asking or requesting that the occupant roll the

window down or exit the car is not a seizure. See e.g., Purce

v. United States, 482 A.2d 772, 777 (D.C. 1984) (no seizure

where officer approached car parked in lot, tapped on

window, and asked driver to roll down the window); Medley

v. State, 630 So.2d 163, 165 (Ala.Crim.App. 1993) (no

probable cause or reasonable suspicion required where

officer approached parked car, tapped on window, and

requested that the driver roll down the window); Akins v.

State, 596 S.E.2d 719, 721 (Ga.Ct.App. 2004) (no seizure

where officer approached passenger side of parked car and

asked passenger to roll down her window); People v.

Murray, 560 N.E.2d 309, 314 (Ill. 1990) (no seizure where

two officers approached car parked on side of road, one

officer knocked on window and asked defendant to step out

of the car); People v. Clark, 541 N.E.2d 199, 203

([l.App.Ct. 1989) (no seizure where car was parked in gas

station lot and officer approached driver, knocked on

window and indicated to the driver to roll down window);

State v. Culbreath, 387 S.E.2d 255, 257 (S.C. 1990),

abrogated on other grounds by Horton v. California, 496

U.S. 128 (1990) (no seizure where officer tapped on window

of parked car and motioned for driver to roll down window);

* Contrary to the District Court’s ruling in this case, the fact

that the officer was wearing a uniform does not constitute or

contribute to a conclusion that there was a show of authority.

See Drayton, 536 U.S. at 205; Royer, 460 U.S. at 497 (the

fact that an officer identifies himself as a police officer,

whether it be by the wearing of a uniform or the display of a

badge, does not convert the encounter into a seizure).

10

State v. O'Neill, 62 P.3d 489, 497-498 (Wash. 2003) (where

officer turned spotlight on parked car to see license plate,

then approached car with flashlight directed at the driver’s

face and asked the driver to roll down window, no seizure);

State v. Knox, 939 P.2d 710, 714-715 (Wash.Ct.App. 1997),

overruled on other grounds by State v. O'Neill, 62 P.3d 489

(Wash. 2003) (no seizure where officer motioned for driver

of car parked on ferry to roll down the window).

However, at least two jurisdictions have held, as

Maine has, that a knock on a window accompanied by a

request to roll down the window or open the door, constitutes

a seizure. See United States v. Carroll, 591 F.2d 1132, 1135

(5" Cir. 1979) (stop occurred where officers approached

parked car, tapped on the window, and subsequently

questioned the occupant); Borowicz v. North Dakota

Department of Transportation, 529 N.W.2d 186, 188 (N.D.

1995) (implying seizure occurred where officer approached

> Many courts have also held that approaching a parked car

and simply knocking on the window to gain the occupant’s

attention is not a seizure. See e.g., United States v. Barry,

394 F.3d 1070, 1075 (8" Cir. 2005); Ex Parte Betterton, 527

So.2d 747, 750 (Ala. 1988); Adams v. State, 758 S.W.2d

709, 712 (Ark.Ct.App. 1988); State v. Zubizareta, 839 P.2d

1237, 1241 (Idaho 1992); Merideth v. State, 603 S.W.2d 872,

873 (Tex.Cr.App. 1980); State v. Boswell, 294 S.E.2d 287,

294-295 (W.Va. 1982); see also State v. Neyrey, 383 So.2d

1222, 1224 (La. 1979) (no seizure where officer approached

parked car, knocked on window, and after occupant failed to

respond as he was either asleep or unconscious, officer

opened door and shook occupant awake). There is no

rational basis to distinguish a simple knocking from a

knocking accompanied by a request to roll down the

window: a reasonable inference from the knocking alone is

that the officer desires to speak with the occupant.

i]

parked car, knocked on window, and requested that occupant

open door).

There is simply no rational distinction to explain

how circumstances such as those in the vast majority of the

cases cited above are not seizures, but a request to roll down

a window, as decided by the Maine Law Court, is a Fourth

Amendment seizure. Indeed, the sergeant here prefaced his

request with the word “please.” It is hard to imagine a word

more closely associated with the concept of a request than

the word “please.”

The Maine Law Court’s decision is also contrary to

the pronouncements made by this Court in Royer, 1.N.S.,

Bostick, Rodriguez, and Drayton. This Court has held that,

in general, an officer is entitled to address a citizen and pose

questions to that person. Mendenhall, 446 U.S at 553. As

indicated above, in several cases but in other contexts, this

Court has held that a request, without more, does not

constitute a seizure under the Fourth Amendment. Because a

request, without more, is exactly what occurred in the instant

case, the Maine Law Court decided this case contrary to this

Court’s decisions in Royer, /.N.S., Bostick, Rodriguez, and

Drayton.®

Although the state and federal circuit cases cited

above demonstrate that most courts have properly followed

this Court’s general pronouncements and found no seizure

under similar facts as those presented here, at least three

courts have now reached a contrary conclusion upon

° Again, the District Court and Maine Law Court did not rely

on any aspect of the request to roll down the window other

than the objective fact of the request itself. The District

Court did not rely on the offiver’s tone or volume of voice in

any manner.

12

essentially the same facts. As indicated above, consistency

is important in the area of Fourth Amendment law,

particularly because it provides the most important source of

guidance for law enforcement. Because this Court has not

addressed the concept of a seizure in the context of a street

encounter such as that presented here, inconsistency in

opinions from the lower courts has occurred, and may

continue. This Court should address this area of the law,

reaffirm that a request alone does not constitute a seizure,

and provide guidelines to ensure that no additional courts

reach contradictory and similarly erroneous conclusions as

the one reached in Maine v. Patterson.

The need for guidance and consistency is not only

important for the effective and appropriate resolution of

criminal cases, it is vitally important to law enforcement as

well. The purpose of the Fourth Amendment is not to

eliminate all contact between the police and private citizens,

but to prevent “arbitrary and oppressive interference” by the

police. /.N.S., 466 U.S. at 215; Mendenhall, 446 U.S. at 553.

This Court has often recognized the need for protection of

legi..mate law enforcement practices, and has declined to

create unnecessary restrictions on the police that do not

further the purposes of the Fourth Amendment. Mendenhall,

446 US. at 554 (recognizing the need for police questioning

as a tool in the effective enforcement of the criminal laws).

Indeed, this Court noted that “[w]ithout such investigation,

those who were innocent might be falsely accused, those

who were guilty might wholly escape prosecution, and many

crimes would go unsolved. In short, the security of all would

be diminished.” Mendenhall, 446 U.S. at 554.

And, in addition to law enforcement-related

purposes, the police often contact citizens for reasons wholly

unrelated to a desire to prosecute that person for a crime.

Terry, 392 U.S. at 13. For example, the police may need to

13

contact a person to determine whether that person needs

medical or other assistance. The police may also need to

contact persons to determine if they witnessed some other

crime. Undoubtedly, there are many more instances where

the police may legitimately desire to contact an individua! on

the street for reasons other than investigating that person for

criminal conduct. There can be no real question that police-

citizen street encounters serve many useful and lawful

purposes.

“[A]ny test intended to determine what street

encounters are not seizures must be expressed in terms that

can be understood and applied by the officer.” 4 W. LaFave,

Search and Seizure, § 9.4(a) at 414 (4" ed. 2004); see also

Chesternut, 486 U.S. at 574 (use of objective standard when

determining whether seizure occurred “allows the police to

determine in advance whether the conduct contemplated will

implicate the Fourth Amendment.”). The Maine Law

Court’s conclusion demonstrates that there is a certain

amount of confusion in the area of what constitutes a

command and, consequently, a seizure. For law enforcement

officers in Maine and a few other jurisdictions, the

guidelines as to what constitutes a seizure are significantly

more restrictive than the standards in most other states. And,

it appears as if officers in Maine can now almost never

contact persons in parked cars, unless they remain

completely silent and wait for the individual to speak first - a

restriction particularly unreasonable in situations involving

caretaking or welfare checks where the person inside the car

may be unaware of the officer’s presence and in need of

swift assistance. This cannot be the standard for proper

police conduct.

As indicated above, this Court has recognized the

need for legitimate police contact with private citizens, and

the Maine Law Court’s decision threatens that lawful

14

practice. And, because the Maine Law Court’s decision is

contrary to the significant weight of caselaw across this

country, and 1s fundamentally flawed in that it does not apply

the proper standards set forth by this Court, this Court should

grant certiorari to not only give guidance to other courts

addressing this issue in the future, but also to provide law

enforcement officers with some direction as to when they

may contact citizens when they have insufficient information

to conduct a Jerry investigative detention.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

JOHN W. SUTHERS

Attorney General of Colorado

JOHN J. KRAUSE

Interim Solicitor General of

Colorado

KATHERINE A. HANSEN*

Assistant Attorney General

*Counsel of Record

1525 Sherman Street, 5" Floor

Denver, CO 80203

Telephone: (303) 866-5785

Counsel for Amici States