Reply Brief — Illinois v. Sloup (No. 05-1367)

FILED

a NOV 8 - 2006

#

OFFICE OF THE CLERK

io SUPREME COURT. U.S.

No. 05-1367

In the Supreme Court of the United States

ILLINOIS, PETITIONER,

V.

JOHN L. SLOUP, RESPONDENT.

On Petition for a Writ of Certiorari

to the Appellate Court of Illinois

REPLY IN SUPPORT OF THE PETITION

LISA MADIGAN

Attorney General of Illinois

GARY FEINERMAN*

Solicitor General

ANDERSON M. GANSNER

Assistant Attorney General

100 West Randolph Street

Chicago, Illinois 60601

*Counsel of Record (312) 814-3698

Counsel for Petitioner

i

TABLE OF CONTENTS

Page

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I. [Illinois Did Not Forfeit The Questions Presented ...-. |

II. Respondent’s Other “Vehicle” Arguments Are Without

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TABLE OF AUTHORITIES

Cases: Page

Dewey v. City of Des Moines, 173 U.S. 193 (1899) ...... 2

Harris Trust and Sav. Bank v. Salomon Smith Barney,

Inc., 530 U.S. 238 (2000) .... 2... cee cee eee eee 3

Hartford Fire Ins. Co. v. Peterson, 209 Ill. 112, 70 N.E.

Wii... 2h 4

Illinois v. Bartels, 126 S. Ct. 320 (2006) ............... 5

Illinois v. Caballes, 543 U.S. 405 (2005) ............ 5,7

Lebron v. National R.R. Passenger Corp., 513 U.S. 374

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Mueller v. Elm Park Hotel Co., 391 Ill. 391, 63 N.E.2d

SOOO cu. ieee ee er 4

Mulvihill v. Shaffer, 297 Ill. 549, 131 N.E. 125(1921) ... 4

People v. Caballes, 221 Ill. 2d 282, 851 N.E.2d 26

CURE Mk. casissdvewek ie eee ee 5,6

iPr nninene | bales. Sune 4

OOO ois oe cok sie eae 4

People v. Gonzalez, 204 Ill. 2d 220, 789 N.E.2d

ere rere ror oy & e

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People v. Love, 199 Ill. 2d 269, 769 N.E.2d 10 (2002) .... 4

People v. Rosinski, 351 Ill. App. 3d 459, 813 N.E.2d

DIN GCS Ua Ly pee enks Sa eeco 2,4

Stanley v. Illinois, 405 U.S. 645 (1972) ............04.. 3

Peas Gre, De Sh. TEEPE so ons vn sc tcwnnceaes <2

United States v. Vonn, 535 U.S. 55 (2002) ............. 3

United States v. Williams, 504 U.S. 36 (1992) .......... 3

Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083

) GRRSRRERO RES ape ary erg rt es ee 3

Whren v. United States, 517 U.S. 806 (1996) ........... 6

Yee v. Escondido, 503 U.S. 519 (1992) .............. Z.3

Constitutional Provision:

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Miscellaneous:

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ps Oe I eG oak ES eee yas ee dae dee Xo 7

Se ee as PO EE nk bo oak Anca eens 5

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es ee a I I as ain sé aa he RGR 5

—_

Reply in Supp. of Pet. for Cert., No. 03-923 ............ 7

Reply in Supp. of Pet. for Cert., No. 04-1066 ........... 5

]

REPLY IN SUPPORT OF THE PETITION

There is a deep and enduring split over whether the Fourth

Amendment prohibits a police officer, during a lawful traffic

stop, from asking a motorist questions about contraband or

other matters unrelated to the purpose of the stop. Among

federal courts of appeals and state courts of last resort, four

require no independent justification for such questions; five

prohibit such questions absent reasonable suspicion; and two

require reasonable suspicion if the questions change the

fundamental nature of the stop. Pet. 4-6. This split, which has

been acknowledged by commentators and lower courts alike

(id. 8), is ripe for resolution. So, too, is the related split over

whether the Jerry doctrine governs in this context. /d. 10-16.

Respondent does not deny that the two splits are genuine,

important, mature, and worthy of review. He argues, however,

that this case does not provide an ideal vehicle to resolve them.

As shown below, respondent’s arguments ignore fundamental

certiorari principles and are otherwise meritless.

I. Illinois Did Not Forfeit The Questions Presented.

Respondent’s principal argument is forfeiture. See Opp. 1,

7-13. The pertinent background is as follows. In People v.

Gonzalez, 204 Ill. 2d 220, 789 N.E.2d 260 (2003), the Illinois

Supreme Court established a framework, based upon Jerry v.

Ohio, 392 U.S. 1 (1968), for analyzing Fourth Amendment

challenges to police conduct during probable cause-based traffic

stops. See Pet. 6-7, 10-11. The Illinois Appellate Court must

follow Illinois Supreme Court precedent. See 14 //]. Law and

Prac. Courts § 84. Thus, when respondent appealed his

conviction to the appellate court, Illinois forthrightly

acknowledged that the court was bound by Gonzalez. See Pet.

Ill. App. Br. 4 (“this court is controlled generally * * * by the

framework set forth in Gonzalez.”) (emphasis added). After the

appellate court reversed respondent’s conviction, Illinois urged

2

the state supreme court to revisit and overturn Gonzalez. See

Opp. 6-7. Under Illinois law, that was the only appropriate

forum for the State to press that argument. See People v.

Rosinski, 351 Ill. App. 3d 459, 463, 813 N.E.2d 1078, 1082

(2004) (“After our supreme court has declared the law with

respect to an issue, th{e] [appellate] court must follow that law,

as only the supreme court has authority to overrule or modify its

own decisions.”) (internal quotation marks omitted).

According to respondent, Illinois forfeited the questions

presented by failing to ask the state appellate court to overturn

Gonzalez. Opp. 7-13. Respondent’s argument misunderstands

this Court’s certiorari practice and Illinois forfeiture law.

With respect to certiorari practice, respondent ignores the

difference between (i) a petitioner’s “claim” and (ii) the

“arguments” that a petitioner may make in this Court to support

that claim. Both here and in the state appellate court, Illinois

has advanced precisely the same claim: the police officer’s

conduct at the traffic stop did not violate the Fourth

Amendment. Illinois may support that Fourth Amendment

claim in this Court with arguments that it did not make in the

appellate court — including that the officer needed no

reasonable suspicion to question respondent about matters

unrelated to the purpose of the stop, and that Terry does not

govern the validity of those questions. See Lebron v. National

R.R. Passenger Corp., 513 U.S. 374, 379 (1995) (“Lebron’s

contention that Amtrak is part of the Government is in our view

not a new claim * * * , but anew argument to support what has

been his consistent claim: that Amtrak did not accord him the

rights it was obliged to provide by the First Amendment.”’); Yee

v. Escondido, 503 U.S. 519, 535 (1992) (because petitioners

“raised a taking claim in the state courts,” they “could have

formulated any argument they liked in support of that claim

here”); Dewey v. City of Des Moines, 173 U.S. 193, 198 (1899)

(“Parties are not confined here to the same arguments which

3

were advanced in the courts below upon a federal question there

discussed.”’). As this Court has made clear, “[o]nce a federal

claim is properly presented, a party can make any argument in

support of that claim; parties are not limited to the precise

arguments they made below.” Yee, 503 U.S. at 534; accord,

e.g., Harris Trust and Sav. Bank v. Salomon Smith Barney, Inc.,

530 U.S. 238, 245 n.2 (2000); Stanley v. Illinois, 405 U.S. 645,

658 n.10 (1972).

Even if, as respondent appears to suggest (Opp. 9-10),

Illinois’s position on the appropriate Fourth Amendment

framework for analyzing police conduct at traffic stops were

properly characterized as a “claim” rather than an “argument,”

there still would be no forfeiture. When this matter was before

the state appellate court, the Illinois Supreme Court had just

decided Gonzalez. As noted above, Illinois law precluded the

state appellate court from rejecting Gonzalez. Under

circumstances such as these, where it would have been pointless

to urge a lower court to jettison recent and binding precedent,

there is no forfeiture for purposes of certiorari review. See, e.g.,

United States v. Vonn, 535 U.S. 55, 58 n.1 (2002); Lebron, 513

U.S. at 379; United States v. Williams, 504 U.S. 36, 43-45

(1992); Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083,

1099 n.8 (1991). None of the cases cited by respondent (Opp.

9-10) holds the contrary or considers circumstances comparable

to those here.

Respondent maintains that a different result is warranted

here because this case arises from a state court. Opp. 9-13.

Respondent’s argument rests on the premise that the State’s

failure to challenge Gonzalez in the appellate court forfeited the

issue for purposes of review in the state supreme court.. /d. 7,

12-13. That premise is incorrect. As the Illinois Supreme

Court exnlained:

+

Where the trial court is reversed by the Appellate Court

and the appellee in that court brings the case here for

further review, he may raise any question properly

presented by the record to sustain the judgment of the

trial court, even though those questions were not raised

or argued in the Appellate Court.

People v. Donoho, 204 Ill. 2d 159, 169, 788 N.E.2d 707, 714

(2003) (internal quotations omitted). This principle, which

respondent neglects to mention, has been a fixture of Illinois

law for at least acentury. See, e.g., People v. Cunningham, 212

Ill. 2d 274, 279, 818 N.E.2d 304, 307 (2004); Mueller v. Elm

Park Hotel Co., 391 Ill. 391, 398-399, 63 N.E.2d 365, 368-369

(1945); Mulvihill v. Shaffer, 297 ll. 549, 554, 131 N.E. 125,

126-127 (1921); Hartford Fire Ins. Co. v. Peterson, 209 Il.

112, 119, 70 N.E. 757, 760 (1904).

In this case, Illinois prevailed in the trial court and thus was

the appellee in the appellate court. After losing the judgment in

the appellate court, the State was entitled to raise any legal

argument — including that Gonzalez should be reconsidered

and overruled — in the state supreme court. See People v.

Love, 199 Ill. 2d 269, 274, 769 N.E.2d 10, 14 (2002) (“the State

may raise an issue before this court as an appellant which it did

not raise before the appellate court as an appellee”). This is

particularly true because, as noted above, it would have been

pointless for Illinois to urge the state appellate court to reject

Gonzalez. See Rosinski, 351 Ill. App. 3d at 463, 813 N.E.2d at

1082. Again, none of the Illinois precedents cited by

respondent (Opp. 13) considers comparable circumstances or

holds the contrary.

Accordingly, there was no forfeiture or waiver as a matter

of Illinois law in state court. Nor has there been any forfeiture

5

for purposes of certiorari review. Both questions presented are

properly before this Court. |

II. Respondent’s Other “Vehicle” Arguments Are Without

Merit.

None of respondent’s other “vehicle” arguments requires

much discussion, and none has merit.

A. First, respondent suggests that certiorari is inappropriate

because, even if this Court were to hold the officer’s questions

valid under the Fourth Amendment, the state courts might

conclude otherwise under the state constitution. Opp. 11-12.

The suggestion fails for two reasons. First, the Illinois Supreme

Court recently held that the state constitution provides no

greater protection than the Fourth Amendinent with respect to

police investigatory conduct at traffic stops. See People v.

Caballes, 221 Ill. 2d 282, 314-332, 851 N.E.2d 26, 45-55

' This Court implicitly reached the same conclusion in

Illinois v. Bartels, 126 S. Ct. 320 (2006). The petition in Bartels

presented questions materially identical to those presented here.

See Pet. for Cert., No. 04-1066, at 1. In opposing certiorari,

Bartels contended that the State waived its arguments by failing

to challenge Gonzalez in either the state appellate court or the

state supreme court. See Br. in Opp., No. 04-1066, at 1-2, 7-8, 25.

Illinois replied with arguments similar to those pressed here. See

Reply in Supp. of Pet. for Cert., No. 04-1066, at 5-7. Necessarily

rejecting Bartels’s forfeiture argument, this Court granted the

petition, vacated the appellate court’s judgment, and remanded for

reconsideration in light of J/linois v. Caballes, 543 U.S. 405

(2005). (Unlike the appeilate court’s judgment in Bartels, the

appellate court’s judgment here was issued after this Court

decided Caballes.) The forfeiture argument here is even weaker

than that in Bartels, for here Illinois urged the state supreme court

(the only forum in which it could have pressed the argument) to

overturn Gonzalez.

6

(2006). Second, and more important, if this Court were to

resolve the Fourth Amendment issue in the State’s favor, the

state courts would be free on remand to consider respondent’s

arguments under the state constitution. See id. at 288, 851

N.E.2d at 31 (addressing canine sniff issue under the state

constitution on remand from this Court’s resolution of issue

under Fourth Amendment).

B. Second, respondent maintains the record is unclear as to

whether the traffic stop was based on (i) probable cause that a

traffic violation occurred or (ii) reasonable suspicion that

respondent was driving under the influence. Opp. 13-17.

However, the judgment of the state appellate court — the court

to which certiorari is sought — explicitly rests on the premise

that respondent committed a traffic violation, which necessarily

means that the stop was supported by probable cause. Pet. App.

7a; see Whren v. United States, 517 U.S. 806, 810 (1996) (“the

decision to stop an automobile is reasonable where the police

have probable cause to believe that a traffic violation has

occurred’). Accordingly, this matter comes to this Court as a

probable cause case, not a reasonable suspicion case.

C. Third, respondent argues that this case presents thorny

duration issues because it is unclear whether the traffic stop was

impermissibly extended. Opp. 17-24. In so arguing,

respondent forgets that the state appellate court relied

exclusively upon the scope of the stop, not its duration, in

holding that the officer’s questions violated the Fourth

Amendment. Pet. App. 12a (“Only 10 minutes passed between

the initial stop and the search, but we need not consider whether

Officer Opelt’s request to search the car impermissibly

prolonged the stop, because we conclude that the request to

search violated defendant’s fourth amendment rights by

fundamentally changing the nature of the stop.”).

Consequently, this matter comes to this Court as a pure “scope

of the stop” case, not a “duration of the stop” case, and thus

7

provides an appropriate vehicle to answer the questions

presented. See Illinois v. Caballes, 543 U.S. at 407-408

(distinguishing scope issue from duration issue).’

D. Finally, respondent suggests that this Court should

“allow[] the jurisprudence to develop in the courts below”

before reviewing the questions presented. Opp. 25. But

respondent does not and could not deny that the splits on both

questions are deep and intractable, or that they are particularly

intolerable in Illinois, where the federal and state courts apply

different Fourth Amendment analyses to police questioning and

other investigatory conduct at traffic stops. See Pet. 4-8. The

lower courts have fully explicated their divergent views, and no

conceivable benefit would come from further percolation.

2 Like respondent here, the respondent in Caballes

opposed certiorari on the ground that the case involved duration

issues. See Br. in Opp., No. 03-923, at 4-5, 8. Illinois replied in

Caballes, as it does here, that the state court relied solely upon the

scope of the stop, not its duration, in finding a Fourth Amendment

violation. See Reply in Supp. of Pet. for Cert., No. 03-923, at 1-2.

This Court granted certiorari, and then held that duration, having

played no role in the decision below, did not affect analysis of

whether the canine sniff impermissibly expanded the scope of the

stop. See Caballes, 543 U.S. at 407-408.

8

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

LISA MADIGAN

Attorney General of Illinois

GARY FEINERMAN”

Solicitor General .

ANDERSON M. GANSNER

Assistant Attorney General

100 West Randolph Street

Chicago, Illinois 60601

*Counsel of Record (312) 814-3698

NOVEMBER 2006