Amicus Curiae Brief — Kremen v. Maine

(D DEC 21 2000

No. 00-8372 (_SPRBOF Tae cumex

IN THE

SUPREME COURT OF THE UNITED STATES

+

BARBARA M. KREMEN,

Petitioner,

V.

STATE OF MAINE,

Respondent.

+

On Petition For Writ of Certiorari to the

Supreme Judicial Court of Maine

‘

BRIEF AMICUS CURIAE OF THE RUTHERFORD

INSTITUTE IN SUPPORT OF PETITIONER

e

John W. Whitehead David Rudovsky

Steven H. Aden KAIRYS, RUDOVSKY,

Counsel of Record EPSTEIN, MESSING & RAU

THE RUTHERFORD INSTITUTE 924 Cherry St., Suite 500

1445 East Rio Road Philadelphia, PA 19107

Charlottesville, Virginia 22901 (215) 925-4400

(804) 978-3888

December 21, 2000

QUESTIONS PRESENTED FOR REVIEW

. Whetner an officer may, during the course of a seizure for

a traffic offense, question the detained motorist about

crimes which are unrelated to the traffic stop and which he

has no articulable basis to suspect.

. Whether an officer may, during the course of a seizure for

a traffic offense, request the detained motorist to consent to

a search of her automobile where the officer has no basis

to suspect any wrongdoing beyond the traffic infraction.

sii-

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ............ i

TABLE OF AUTHORITIOS ... csvcccasdeswesccaees

STATEMENT OF AMICUS CURIAE INTEREST

AND INTRODUCTION +... ..scecstessaveseusensenees

ARGUMENT .....2:<0s500e00 eee ene aan es

.

CERTIORARI IS APPROPRIATE IN THIS

CASE BECAUSE APPELLATE COURTS

HAVE ENUNCIATED CONFLICTING

STANDARDS FOR THE PERMISSIBLE

SCOPE OF A VALID TRAFFIC STOP IN THE

WAKE OF OHIO V. ROBINETTE, 519 U.S. 33

(1996) ... . 0.50505, 5 wee ee

The Minority View, As Represented by the

Opinion Below, Permits Investigating Officers to

Seek Expansion of the Scope of a Traffic Seizure

Absent Any Cognizable Government Interest in

bo rr ee

Permitting Investigating Officers to Seek to Expand

the Scope of a Traffic Seizure by Requesting

Consent to Search from a Detained Motorist

Provides Law Enforcement Authorities With a

Standardless, Intrusive Investigational Tool ........

“ii

Il. REVIEW OF THE QUESTIONS PRESENTED

IN PETITIONER’S CASEIS PARTICULARLY

URGENT IN LIGHT OF THE FACT THAT

AUTHORITY TO PERFORM “CONSENT”

SEARCHES DURING ROUTINE TRAFFIC

SEIZURES HAS BEEN SHOWN TO BE

OE CUP SUE 6 0 65 occa red cetesseuner

INE wine 65a bbw EV els d a civdbescdaseccecns

-iV-

TABLE OF AUTHORITIES

CASES

Adams v. Williams, 407 U.S. 143 (1972) ............... 7

Almond v. State, 530 S.E.2d 750 (Ga. Ct. App. 2000) ..... 9

Arizona v. Hicks, 480 U.S. 321 (1987)................. 7

Arkansas Educational Television Comm'n. v.

FOGG, Fae Ue GO UOEE sar cn esse secvsvcéaceceva l

Berkemer v. McCarty, 468 U.S. 420 (1984) .......... 5,9

Brinegar v. United States, 338 U.S. 160 (1949) ........ 17

Brown v. Texas, 443 U.S. 47 (1979) ............... 8,17

California v. Hodari, 499 U.S. 621 (1991) ............ 13

Charity v. Maryland, 132 Md. App. 598,

IIE Te SO gS eb xeekg bk Vaeads shu eueeoaeses 8

Delaware v. Prouse, 440 U.S. 648 (1979) ...... 2,4, 10, 12

Dunaway v. New York, 442 U.S. 200 (1979) ............ 6

Ferguson v. City of Charleston, S.Ct. No. 99-0936

(oral argument October 4, 2000) ..............0...058.5. l

Preride @. Ein, TID GEA. TSIS OOO ov asec ccvwasvens l

mk wert

-\-

Florida v. Royer, 460 U.S. 491 (1983) .............. 4-7

Frazee v. Dept. of Employment Sec., 489 U.S. 829 (1989)

Soe s 0aws's 0a0 eds bee eb dR MO USLT Lee l

Good News Club v. Milford Central School, Sup. Ct.

No. 99-2036 (October 2000 Term) ...................0. ]

Gouled v. United States, 255 U.S. 303 (1921) .......... 19

Illinois v. Wardlow, 120 S.Ct. 673 (2000) ......... > ey.

Indianapolis v. Edmond, 121 S.Ct. 447 (2000) ..... 1,3, 10

Johnson v. United States, 333 U.S. 10 (1948) ........ 7,19

Knowles v. Iowa, 525 U.S. 113 (1999) ............... 1]

Mapp v. Ohio, 367 U.S. 643 (1961) .................. 16

Michigan Dept. of State Police v. Sitz, 496 U.S. 444

SOOPEE au cke cols Cebse ne eeteerueen eae oe 10

Michigan v. Long, 463 U.S. 1032 (1982) .............. 12

Minnesota v. Dickerson, 508 U.S. 366 (1993) ........... 7

New York v. Class, 475 U.S. 106 (1986) ............... 2

New Jersey v. T.L.O., 469 U.S. 325 (1985) ............. 3

-vi-

Ohio v. Retherford, 639 N.E.2d 498 (Ohio Ct. App. 1994)

oc cccnccnseecetsaseueees euaee nad nae 16

Ohio v. Robinette, 519 U.S. 33 (1996) .......... 2, 3, 5, 19

Pennsylvania v. Mimms, 434 U.S. 106 (1977) .......... 1]

Reid v. Georgia, 448 U.S. 438 (1980) ................ 19

Sacramento v. Lewis, 523 U.S. 833 (1998) ............ 17

Sibron v. New York, 392 U.S. 40 (1968) ............ 7,12

State v. Kremen, 754 A.2d 964 (Me. 2000) ............. 3

State of Kansas v. Mitchell, 960 P.2d 200,

265 Kam. 236 Glam. S50GD sc scdvcdcvcenéesctnsssenee 6

Terry u Gille, Fae Ue. 8 Cie cx wachebsdecnaue passim

United States v. Brignoni-Ponce, 422 U.S. 873

CIDTS) 0 0 Svcccccnucdduseenaae eee 3, 5, 18-19

United States v. Holt, 229 F.3d 931 (10 2000) ......... 9

United States v. M ~tinez-Fuerte, 428 U.S. 543 (1976)

WITTTTTTITC Tre 10-11

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

PTT TTT TTT a

Vii-

United States v. Pruitt, 174 F.3d 1215 (11" Cir. 1999)

WEYTTTITITT TTT rrr ee er ree 9

United States v. Walden, 146 F.3d 487 (7 Cir. 1998)

,oseponswedsaddséhaeatabudenekkevesssisaeaeen 12

Warden v. Hayden, 387 U.S. 294 (1967) ............... 5

Whren v. United States, 517 U.S. 806 (1996) .......... 10

Wyoming v. Houghton, 526 U.S. 295 (1999) ............ l

Ybarra v. Illinois, 444 U.S. 85 (1979) ..........0....... 7

CONSTITUTIONAL AND STATUTORY PROVISIONS

UNITED STATES CONST., AMEND.IV .............. passim

OTHER AUTHORITIES

David Cole, No Equal Justice: Race and Class in the American

Criminal Justice System (New Press, 1999)

George M. Dery III, “When Will this Traffic Stop End?”: The

United States Supreme Court's Dodge of Every Detained

Motorist’s Central Concern — Ohio v. Robinette, 25 Fla. State

Ri DUNE Vevinducbh eon dented cusebesbedes 4

David A. Harms, The Stories, the Statistics, and

the Law: Why ‘Driving While Black’ Matters,

Pe at AEE Gonson canudenaucende<a 15, 16

anu

Randall Kennedy, Race, Crime, and the Law

tts sede eee Ahan eeneekeadenseneebnn ween 18

4 W. LaFave, Search and Seizure § 9.3(a) ............... 5

Tracey Maclin, Race and the Fourth Amendment,

51 Vanderbilt L.Rev. 333 (1988) ................5000- 15

Tracey Maclin, The Fourth Amendment on the

Freeway, Rutgers Race & the Law Rev., Vol. 3,

we re Teer Tee T eee TT ere 13, 14

H. Richard Uviller, Tempered Zeal (1988) ............... 5

Peter Verniero & Paul H. Zoubek, Interim Report of

the State Police Review Team Regarding Allegations

of Racial Profiling, N.J. Att’y Gen. Rep. (April 20, 1999)

PET EET EEE COLE PTT POP ST ECT Eee OL EE TE 8, 13-15

J. Wilgoren, “Public Profiling Debate: Acting on Experience,

or on Bias,” The New York Times, April 9, 1999 ......... 16

a Ty

TO THE HONORABLE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THESUPREMECOURT OF THE

UNITED STATES:

STATEMENT OF AMICUS CURIAE

INTEREST AND INTRODUCTION’

The Rutherford Institute is a non-profit civil liberties

organization with offices in Charlottesville, Virginia and

internationally. The Institute, founded in 1982 by its President, John

W. Whitehead, educates and litigates on behalf ofconstitutional and

civil liberties. Attorneys affiliated with the Institute have appeared

as counsel before the Court in significant civil liberties cases, e.g.,

Frazee v. Dept. of Employment Sec., 489 U.S. 829 (1989),

Arkansas Educational Television Comm'n. v. Forbes,523 U.S.

666 (1998), and Good News Club v. Milford Central School,

Sup. Ct. No. 99-2036 (October 2000 Term), and have filed

amicus curiae briefs in numerous Fourth Amendment cases,

including Wyoming v. Houghton, 526 U.S. 295 (1999), Illinois

v. Wardlow, 120 S.Ct. 673 (2000), Florida v. J.L., 120 S.Ct.

1375 (2000), Indianapolis v. Edmond, 121 S.Ct. 447 (2000) and

Ferguson v. City of Charleston, S.Ct. No. 99-0936 (oral

argument October 4, 2000). Institute attorneys currently handle

several hundred civil rights cases nationally, including numerous

Fourth Amendment cases. The Institute has published educational

materials and taught continuing legal education classes in this area

as well.

Amicus curiae The Rutherford Institute files this brief by

consent of counsel for both parties. Copies of the letters of consent

areon file with the Clerk of the Court. Counsel for The Rutherford

Institute authored this brief in its entirety. No person or entity, other

than the Institute, its supporters, or its counsel, made a monetary

contribution to the preparation or submission of this brief.

i ic

2

The Rutherford Institute supports the Petitioner’s request for a

writ of certiorari because it regards the case as an opportunity for

the Court to clarify vital issues of Fourth Amendment jurisprudence

that remain extant. The Institute recognizes that government at all

levels, as well as the public as a whole, has a vital interest in the

eradication of illegal activity, and particularly activity which

threatens highway safety such as drug abuse. New York v. Class,

475 U.S. 106, 112 (1986) (citing Delaware v. Prouse, 440 U.S.

648, 658 (1979)). Nevertheless, the Court has a corresponding

duty to resist the “hydraulic pressures” that the interests of effective

law enforcement exert upon the nghts of citizens, and to ensure that

in seeking to further this interest, police officials continue to respect

the constitutional limits oftheir authority. Terry v. Ohio, 392 U.S.

1, 60-61 (1968) (Douglas, J., dissenting). Cf Indianapolis v.

Edmond, 121 S. Ct. 447 (2000) (suspicionless traffic roadblocks

for detecting drug activity held violative of the Fourth Amendment).

ARGUMENT

I. CERTIORARI IS APPROPRIATE IN THIS CASE

BECAUSE APPELLATE COURTS HAVE

ENUNCIATED CONFLICTING STANDARDS FOR

THE PERMISSIBLE SCOPE OF A VALID TRAFFIC

STOP IN THE WAKE OF OHIO V. ROBINETTE, 519

U.S. 33 (1996).

The Petitioner seeks clarification of a constitutional issue that

has caused both the federal Circuit Courts of appeals and state

appellate courts to irreconcilably diverge? whether, in the course

- See Petition for Writ of Certiorari at 9-10 (citing court

decisions in the majority) and 12 (minority decisions).

3

ofa valid traffic seizure, whena reasonable motorist would not have

felt “free to leave,” United States v. Mendenhall, 446 U.S. 544,

553 (1980); Terry, 392 U.S. at 19, n.16, the investigating officer

may seek to expand the scope of the purpose for the traffic seizure

or its duration by requesting consent to search the vehicle. Amicus

respectfully submits that the deep division on this issue among the

courts is a result of the lack of clarification as to the meaning of the

Court’s limitation of an investigative stop conducted pursuant to

Terry v. Ohio, supra, in “scope to the justification for [its]

initation.” Terry, 392 U.S. at 20; see State v. Kremen, 754 A.2d

964, 967 (Me. 2000) (citing United States v. Brignoni-Ponce,

422 U.S. 873, 881 (1975)). This issue was left open to

interpretation following the Court’s decision in Ohio v. Robinette,

519 U.S. 33 (1996). See id. at 46 (Stevens, J., dissenting) (noting

that case raised two questions not decided by the Court, whether

Robinette “was still being detained when the [officer questioned

him], and, if so, whether that detention was unlawful’). Recently,

in a similar context, nm /ndianapolis v. Edmond, the Court

expressed no view on an analogous question, “whether police may

expand the scope of a license or sobriety checkpoint seizure in

order to detect the presence of drugs ma stopped car.” 121 S.Ct.

at__-, slip op. at 27 (quoting New Jersey v. T.L.O., 469 U.S.

325, 341 (1985) (a search must be “‘reasonably related in scope

to the circumstances which justified the interference in the first

place” (quoting Terry, 392 U.S. at 20)). This case presents the

Court with an opportunity to clarify whether an attempt to broaden

the “scope” of a traffic seizure, whether in purpose or duration,

absent reasonable suspicion of criminal activity, contravenes the

rationale of Terry as itthas beenapplied to automobile searches and

A. The Minority View, As Represented by the

i I ii Na

4

Opinion Below, Permits Investigating Officers to

Seek Expansion of the Scope of a Traffic Seizure

Absent Any Cognizable Government Interest in

Doing So.

This Court has held that a traffic stop constitutes a seizure for

Fourth Amendment purposes, even where “the purpose of the stop

is limited and the resulting detention quite brief.” Delaware v.

Prouse, 440 U.S. 648, 653 (1979). A traffic stop is initiated and

sustained by means of an official show of force, under coercive

circumstances. See generally George M. Dery III, “When Will

this Traffic Stop End?”: The United States Supreme Court's

Dodge of Every Detained Motorist’s Central Concern — Ohio

v. Robinette, 25 Fla. State U. L.Rev. 519, 555 (1998) (“The very

fact of a pre-existing seizure enhanced the police domination of the

situation, and, therefore, increased the potency of all the other

factors pointing toward the restriction of [a motorist’s] liberty.”’).

“Stopping or diverting an automobile in transit... is materially more

intrusive than a question put to a passing pedestnian....” United

States v. Mendenhall, 446 U.S. at 556-57 (opinion of Stewart, J.,

concurring). Even a routine traffic seizure interrupts the “freedom

of movement” of the motorist and his passengers, is annoying and

time-consuming, and frequently generates “substantial anxiety,”

even for an innocent, law-abiding motorist. Prouse, 440 U.S. at

657.

Because a traffic stop is accomplished by a show of authority,

which authority is not dissipated unless and until, at a mimimum, the

subject’s papers are returned and the driver is informed whether a -

de ision to issue a citation has been made, Florida v. Royer, 460

U.S. 491 (1983), a motorist will ordinarily accede to official

requests posed during a stop, including a request to search his

5

vehicle. Cf. Berkemer v. McCarty, 468 U.S. 420, 436 (1984)

(“Certainly few motorists would feel free to either disobey a

directive to pull over or to leave the scene of a traffic stop without

being told they might do so.”); see also H. Richard Uviller,

TEMPERED ZEAL 16 (1988) (“In virtually every encounter I have

witnessed, the response of the person [to a police officer’s

approach] was docile, compliant, and respectful.”). In fact, the

mere request to search in the context of a traffic stop may create a

presumption that the seizure continues. Robinette, 519 U.S. at 47

(Stevens, J., dissenting); id. at n. 4, citing 4 W. LaFave, SEARCH

AND SEIZURE § 9.3(a), p. 112 (3d ed. 1996 and Supp. 1997)

(“Given the fact that [defendant] quite clearly had been seized when

his car was pulled over, the return of the credentials hardly

manifests a change in status when it was immediately followed by

interrogation concerning other criminal activity.”’).

The minority view, permitting use of a traffic stop to gain

consent to search absent reasonable suspicion of criminality, flouts

the central rule of Terry stop jurisprudence, that “[t]he scope of the

search must be ‘strictly tied to and justified by’ the circumstances

which rendered its initiation permissible.” Terry, 392 U.S. at 19

(quoting Warden v. Hayden, 387 U.S. 294, 310 (1967)); United

States v. Brignoni-Ponce, 422 U.S. 873; United States v.

Mendenhall, 446 U.S. 554; Florida v. Royer, 460 U.S. at 500

(“The scope of the detention must be carefully tailored to its

underlying justification.”’). “The manner in which the seizure and

search were conducted is, of course, as vital a part of the inquiry as

whether they were warranted at all.” Terry, 392 U.S. at28. The

investigative methods employed pursuant to a Terry stop “should

be the least intrusive means reasonably available to verify or dispel

the officer’s suspicion ina short period of time.” Royer, 460 U.S.

at 500. In reviewing police conduct in this area, the burden is upon

6

the state to demonstrate the reasonableness of the duration and

scope of the search in relation to its legitimate purpose. /d.

It is clear that an investigatory seizure may not exceed in

duration of time required to reasonably dispel the suspicion that

validated its initiation. For example, the Court held in Florida v.

Royer that an investigation that was permissible at its inception

became an impermissible seizure by virtue of its extended duration

and the coercive effect of taking the subject’s airline tickets away,

recovering his luggage and questioning him in a small, bare room.

460 U.S. at 502. Royer thus stands for the proposition that a

restriction on a subject’s ability to depart from the area within a

reasonable period of time prevents the search from being

reasonably limited in scope to the purposes which justified it.

Similarly, in Dunaway v. New York, an hour-long detention of the

defendant was held to be “in important respects indistinguishable

from a traditional arrest,” since the defendant was never informed

that he was “free to go,” and would have been physically restrained

if he had refused to accompany the officers or had tried to escape

their custody. 442 U.S. 200, 212 (1979). Cf. United States v.

Place, 462 U.S. 696, 699 (1983) (seizure of an air passenger’s

baggage for the purpose of conducting a canine sniff excessive,

where bags were held for ninety minutes).

The restrictive view enunciated by a bare majority of circuits,

see Petition at 9, which interprets the permissible “scope” of an

investigative traffic stop as intending the purpose of police

questioning as well as its duration, is consistent with general Fourth

Amendment safeguards laid down by the Court in other contexts.

A search incident to a lawful arrest must be limited in scope to that

which is justified by the purposes served by that exception to the

warrant requirement. Florida v.Royer ,460 U.S. 498. Likewise,

7

the “hot pursuit” exception to the warrant requirement permits the

warrant requirement to be abandoned in the context of probable

cause to arrest a fleeing suspect, but not reasonable suspicion to

interrogate. Johnson v. United States, 333 U.S. 10 (1948). Cf.

Arizona v. Hicks, 480 U.S. 321 (1987) (actions of police officer

in executing an otherwise lawful “exigent circumstances” search of

an apartment for evidence relating to shooting incident, by moving

a stereo turntable to read its serial number to ascertain whether it

was stolen, “produce[d] a new invasionof[the defendant’s] privacy

unjustified by the exigent circumstances that validated the entry’”’).

Even a search for weapons under Terry and its progeny “must be

strictly circumscribed by the exigencies which justify its initation,”

and cannot be used to pursue a search for other evidence of

criminal activity. Adams v. Williams, 407 U.S. 143, 146 (1972);

Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979); Sibron v. New

York, 392 U.S. 40, 65 (1968). As the Court explained in

Minnesota v. Dickerson, 508 U.S. 366 (1993):

[TJhis Court rightly "has been sensitive to the danger... that

Officers will enlarge a specific authorization, furnished by a

warrant or an exigency, into the equivalent of a general

warrant to rummage and seize at will." Here, the officer's

continued exploration of respondent's pocket after having

concluded that it contained no weapon was unrelated to

"the sole justification of the search [under Terry:] ...the

protection of the police officer and others nearby." It

therefore amounted to the sort of evidentiary search that

Terry expressly refused to authorize and that we have

condemned in subsequent cases.

508 U.S. at 378 (citations omitted).

8

A reading of the permissible scope ofa traffic seizure to restrict

inquiry to the facts material to the purpose of the stop is reasonable

in view of the fact that where no reasonable suspicion of criminality

exists, authorities lack a legitimate government interest in searching

the subject’s vehicle. The Court has stated that “in the absence of

any basis for suspecting [the defendant] of misconduct, the balance

between the public interest and [defendant’s] right to personal

security and privacy tilts in favor of freedom from police

interference.” Brown v. Texas, 443 U.S. 47, 52 (1979). Police

questioning ofmotorists regarding matters unrelated the reasons for

the stop “has nothing to do with serving the purpose of the traffic

stop.” Charity v. Maryland, 132 Md. App. 598, 753 A.2d 556,

569 (2000). The interrogation is designed to elicit inconsistencies

or anomalies in the answers of the driver and his or her passengers

that mayprovide grounds to search the vehicle. Charity, 753 A.2d

at 569; see Peter Verniero & Paul H. Zoubek, INTERIM REPORT

OF THE STATE POLICE REVIEW TEAM REGARDING ALLEGATIONS

OF RACIAL PROFILING, N.J. Att’y Gen. Rep. at 17 (April 20,

1999) (“The officer may ask a series of polite questions of the

driver and/or the occupant(s), mquiring as to where they are

traveling from and as to their final destination. The officer in asking

these ‘routine’ questions will be looking for discrepancies or

anomalies that suggest that the occupants are lying, which might, in

turn, suggest ongoing criminal activity.”)’

. The New Jersey Attorney General’s report, after an

extensive survey of the practice of racial profiling, which concluded

that most consent searches conducted by state troopers on the New

Jersey turnpike did not result mn the discovery of criminal evidence.

N.J. ATT’ Y GEN. REP., supra, at 26. This finding was in spite of the

fact that New Jersey does not permit officers to request consent to

search a vehicle in the absence of reasonable suspicion of criminal

9

In view of the lack ofany countervailing government interest in

searching where no particularized suspicion exists, the better

reasoned rule would appear to be a restriction on the permissible

scope of questioning. For example, in United States v. Pruitt,

174 F.3d 1215 (11™ Cir. 1999), the court held that police

questions after the processing of a motorist’s documentation such

as “What do you do for a living?’ and “How much money did your

van cost?”’ were held simply irrelevant as a “fishing expedition,” and

hence violative of the Terry rationale. 174 F.3d at 1221. See also

United States v. Holt, 229 F.3d 931-(10" 2000); Almond v.

State, 530 S.E.2d 750, 752 (Ga. Ct. App. 2000) (if an officer,

lacking reasonable suspicion, “proceeds to ask questions unrelated

to the reason for the stop, the officer goes beyond the permissible

scope ofthe investigation, and the further detention of the car driver

exceeds that permitted by Terry v. Ohio and its progeny’); State

of Kansas v. Mitchell, 960 P.2d 200, 265 Kan. 238 (Kan. 1998)

(after motorists provides license and proof of registration, he must

be allowed to proceed; “to justify a temporary detention for

questioning, the officer must also have reasonable suspicion of

illegal transactions in drugs or any other serious crime’’). Nor does

Berkemer v. McCarty, supra, suggest a different rule, since in

Berkemer, the investigating officer had more than ample articulable

facts upon which to ground a reasonable suspicion that the subject

motorist was operating under the influence of alcohol or drugs. 468

U.S. at 423 (vehicle observed weaving in and out of a lane, driver

failed field sobriety test).

B. Permitting Investigating Officers to Seek to Expand

activity. Jd. The report likewise concluded that “most arrests are for

less serious offenses, and ‘major’ seizures of significant drug

shipments are correspondingly rare.” /d. at 33.

10

the Scope of a Traffic Seizure by Requesting

Consent to Search from a Detained Motorist

Provides Law Enforcement Authorities With a

Standardless, Intrusive Investigational Tool.

The traffic stop in Delaware v. Prouse, a discretionary,

suspicionless stop for a spot check of license and registration, was

ruled unconstitutional “primarily on account of [the officer’s]

exercise of ‘standardless and unconstrained discretion.”” Edmond,

121 S.Ct. at___, slip op. at 13-14. Cf. Michigan Dept. of State

Police v. Sitz, 496 U.S. 444 (1990) (traffic checkpoints for drivers

under the influence of alcohol constitutionally permitted where

standard procedures were in place). “{Sjtandardless and

unconstrained discretion is the evil the Court has discerned when in

previous cases it has insisted that the discretion of the official in the

field be circumscribed, at least to some extent.” Prouse, 440 U.S.

at 661 (citations omitted). Permitting searches in the absence of a

reasonable suspicion that a driver is hiding contraband contravenes

the Court’s chief concern in Terry and its progeny that invasive

police actions be predicated upon more than mere hunch. “The

demand for specificity in the information upon which police action

is predicated is the central teaching of this Court’s Fourth

Amendment jurisprudence.” Terry, 392 U.S. at 21, n. 18.

Individualized suspicion is “necessary to ensure that police

discretionis sufficiently constrained.” Whren v. United States, 517

U.S. 806, 817-18 (1996). As the Court observed in United

States v. Martinez-Fuerte.

In Brignoni-Ponce, [the Court]... concluded there that

random roving-patrol stops could not be tolerated because

they "would subject the residents of... [border] areas to

potentially unlimited interference with their use of the

11

highways, solely at the discretion of Border Patrol

officers.... There also was a grave danger that such

unreviewable discretion would be abused by some officers

in the field.

428 U.S. 543, 558-59 (1976), citing Brignoni-Ponce, 422 U.S.

at 882-83.

The facts adduced at the suppression hearing in Petitioner’s

case are illustrative of the clear propensity of“‘consent” searches in

traffic seizures to be borne of subtly coercive circumstances. The

responding officer testified that while patrolling in uniform in his

marked police cruiser, he stopped Petitioner for traveling in excess

of the speed limit. Petition Appendix at 44a - 45a. (Testimony of

Pierre Boucher). He promptly notified her that he would be issuing

her a summons for the violation. Pet. Appx. at 45a. He ordered

her to exit the vehicle, a permissible tactic in traffic seizures in the

interests of officer safety. Pennsylvania v. Mimms, 434 U.S. 106

(1977). He directed her to sit in the police cruiser cruiser with him

while he issued the citation. Pet. Appx. at 45a. Once in the

cruiser, Ms. Kremen, a young woman just out of high school, was

made to remain seated in the front seat of the patrol vehicle while

the officer made out the citation. Pet. Appx. at 46a. It was while

making out the citation, and after Ms. Kremen denied that she that

anything illegal in the car, that the officer nonetheless requested

consent to search the vehicle. /d.

As the Court was to subsequently clarify in Knowles v. Iowa,

525 U.S. 113 (1999), the mere citation Officer Boucher gave Ms.

Kremen did not provide a constitutional basis for searching her

vehicle. However, ifthe officer had been able to articulate facts to

establish that Ms. Kremen had shown nervousness, hostility, or

12

furtive behavior as opposed to pleasant cooperation, the officer

may then have contended he had “reasonable suspicion” on which

to base a search for weapons. Michigan v. Long, 463 U.S. 1032

(1982). United States v. Walden, 146 F.3d 487, 491 (7" Cir.

1998) (questioning of motorist unrelated to broken tail light which

justified the stop was held permissible because officer reasonably

feared for his safety). Cf. Illinois v. Wardlow, 120 S.Ct. 673

(2000); Sibron v. New York, 392 U.S. at 66-67 (“[D]eliberately

furtive actions and flight at the approach of strangers or law officers

are strong indicia of mens rea.”’). The circumstances presented by

Petitioner’s case and similar cases aptly illustrate the Hobson’s

choice facing drivers who are asked to “consent” to a search while

undeniably within the context of a traffic seizure. An investigating

officer can have it both ways; ifthe motorist cooperates agreeably

and accedes to the request for a search, she has “consented.” If

she fails to cooperate or shows the stress and anxiety commonly

associated witha traffic stop, see Delaware v. Prouse, supra, she

may find herself under “reasonable suspicion” for illegal activity and

her car may be searched for weapons. Ultimately, if police are

given free reign to request “consent” to searchin inherently coercive

environments, vehicle searches may become the norm, rather than

the exception. The grave implications of such a regime are

explored below.

Il. REVIEW OF THE QUESTIONS PRESENTED IN

PETITIONER’S CASEIS PARTICULARLY URGENT

IN LIGHT OF THE FACT THAT AUTHORITY TO

PERFORM “CONSENT” SEARCHES DURING

ROUTINETRAFFIC SEIZURES HAS BEEN SHOWN

TO BE SUBJECT TO ABUSE.

As the Court’s amicus discusses above, to vest discretion to

13

seek an extension in the scope ofa traffic seizure absent reasonable

suspicion is to provide police with an investigative tool that ss

inherently subject to abuse. Inevitably, the burden imposed by

allowing “consent” searches during traffic seizures could be

expected to fall disproportionately upon minority citizens. This is

borne out by real-world experiences of minorities subject to such

searches“

Officers will occasionally find drugs while performing traffic

stops, but more often they will not discover illegal

narcotics. What this means in the real world of traffic stops

is that motorists receive different treatment depending upon

their skin color. If an officer does not expect to discover

drugs when a white motorist is stopped for speeding, the

officer is less likely to find them, which means that a white

motorist will not be subjected to tactics designed to

discover narcotics during a traffic stop.

Tracey Maclin, The Fourth Amendment on the Freeway, Rutgers

Race & the Law Rev., Vol. 3, No. 2 (2001) (no page citation

available).

In its seminal study of racial targeting in highway searches, the

Attorney General of New Jersey found that minoritymotorists were

disproportionately targeted for consent searches:

4

As Justice Stevens has noted, “We have previously

considered, and rejected, [an] ivory tower analysis of the real world

for it fails to describe the experience of many residents, particularly

if they are members of a minority.” California v. Hodari, 499 U.S.

621, 630, n.4 (1991) (dissenting).

14

The data presented to us show that minority motorists were

disproportionately subject to consent searches .... We

have concluded, based upon our preliminary review of the

allegation and informationdeveloped ina number of internal

affairs investigations, as well as anecdotal accounts from

interviews with state troopers, that race and ethnicity may

have influenced the exercise of discretion by some officers

during the course of some stops.

N.J. ATT’ Y GEN. REP., supra at 28. Further, as Professor Maclin

observes, the commonly held notion that minorities are

disproportionately represented among those arrested and convicted

for narcotics offenses tends to become a self-fulfilling prophecy.

Maclin, supra. He cites the New Jersey Attorney General’s

report, which observed:

The fact that the arrest rates for whites was comparatively

low does not mean that white motorists are less likely to be

transporting drugs, but rather that they were less likely to

be suspected of being drug traffickers in the first place and,

thus, less likely to be subjected to probing investigative

tactics designed to confirm suspicions of criminal activity

such as, notably, being asked to consent to a search.

N.J. ATT’y GEN. REP., supra at 32. The Attorney General’s

conclusion was based upon data suggesting that the notion that

minority motorists are more likely to be transporting drugs is not

necessarily empirically supportable.° Further, a study of Maryland

. The New Jersey data demonstrated that 10.5% of the

searches involving white motorists resulted m an arrest or seizure of

contraband, while 13.5% of searches involving African-American

15

state troopers suggested that the rate of drug recoveries did not

substantially vary between African-American motorists and white

motorists. Tracey Maclin, Race and the Fourth Amendment, 51

Vanderbilt L.Rev. 333, 351 (1988) (explaining that a plaintiffs’

expert in a civil rights case brought against the Maryland State

Police found that troopers recovered contraband from 28.4% of

African-American motorists searched and from 28.8% of white

motorists searched).

Where length of detention is extended by the giving of

“consent,” but no contraband is discovered, the impact on minority

motorists may remain hidden and largely unredressable. See David

A. Harris, The Stories, the Statistics, and the Law: Why

‘Driving While Black’ Matters, 84 Minn. L.Rev. 265 (1999);

N.J. ATT. GEN. REP., supra, at 15 (“Arrest statistics, by definition,

do not show the number of persons who were detained or

investigated who, as it turned out, were not found to be trafficking

drugs or carrying weapons.”’). The Terry Court urged a restrictive

use of investigative stops in light of the understanding of the

potential impact on innocent citizens:

-{I]t is simply fantastic to urge that such a procedure

performed in public by a policeman while the citizen stands

helpless, perhaps facing a wall with his hands raised, is a

"petty indignity." It is a serious intrusion upon the sanctity of

the person, which may inflict great indignity and arouse

strong resentment, and it is not to be undertaken lightly.

392 U.S. at 16-17. The Court went onto measure the nature and

motorists and 38.1% of searches involving Hispanic motorists

resulted in an arrest or seizure. N.J. ATT’ Y GEN. REP., supra, at 26.

16

quality of the intrusion against police interest in imposing it, noting,

“Evena limited search of the outer clothing for weapons constitutes

a severe, though brief, intrusion upon cherished personal security,

and it must surely be an annoying, frightening, and perhaps

humiliating experience.” 392 U.S. at 24-25. Searches of personal

effects in automobiles are no different in emotional impact. See

Harris, supra; J. Wilgoren, “Public Profiling Debate: Acting on

Experience, or on Bias,” The New York Times, April 9, 1999

(describing experience of African-American motorists whose

vehicles were searched pursuant to a “racial profile’’).

While is certainly true that “the rule excluding evidence seized

in violation of the Fourth Amendment has been recognized as a

principal mode of discouraging lawless police conduct,” Terry, 392

U.S. at 12 (quoting Mapp v. Ohio, 367 U.S. 643, 655 (1961), it

is equally true that “{rjegardless of how effective the [exclusionary]

tule may be where obtaining convictions is an important objective

of the police, it is powerless to deter invasions of constitutionally

guaranteed rights where the police either have no interest in

prosecuting or are willing to forgo successful prosecution in the

interest of serving some other goal.” 392 U.S. at 14. Such is the

case where police conduct “consent” searches mm the absence of

articulable suspicion of illegal activity in the mere hope of pursuing

a “hunch,” or even of “practicing” investigative tactics at the

expense of an innocent motorist. See, e.g., Ohio v. Retherford,

639 N.E.2d 498, 505 (Ohio Ct. App. 1994) (officer declared in

testimony, “all” of the cars he stopped for traffic violations would be

searched, “[m]ore so for any other reason the fact that I need the

practice”).

In sucha regime, police harassment may well take the place of

proper investigation as the principle means of crime control. The

17

dangers of this regime are obvious:

The right to be secure against searches and seizures is one

of the most difficult to protect. Since the officers are

themselves the chief invaders, there is no enforcement

outside of court.... There may be, and I am convinced that

there are, many unlawful searches of homes and

automobiles of innocent people which turn up nothing

incriminating, in which no arrest is made, about which

courts do nothing, and about which we never hear.

Brinegar v. United States, 338 U.S. 160, 181 (1949) (Jackson,

J., dissenting).°

The social costs of such a regime are substantial. The Terry

Court recognized these costs, and cautioned:

Proper adjudication of cases mn which the exclusionary rule

is invoked demands a constant awareness of these

‘ One example of such a case is Brown v. Texas 443 U.S. 47

(1979) in which the defendant was observed in a high-crime area,

stopped and patted down absent reasonable suspicion that he was

armed or engaged in criminal activity. 443 U.S. 47. Ordinarily, the

individual would have gone on his way, intimidated and humiliated but

unable to obtain redress because the actions of the officer were not

susceptible to proof that they were “shocking to the conscience” as

amounting to a “deliberate indifference to” or “reckless disregard

for” the subject’s personal liberty. Sacramento v. Lewis, 523 U.S.

833 (1998). It was only because he was arrested and charged for

refusing to provide his name that his case came to light, a practice

the Court held violative of his right to decline to cooperate. 443 U.S.

at 53.

18

limitations. The wholesale harassment by certain elements

of the police community, of which minority groups,

particularly Negroes, frequently complain, will not be

stopped by the exclusion of any evidence from any criminal

tnal.

392 U.S. at 14-15. Recent research indicates that the “wholesale

harassment” by police of minority groups has intensified in recent

years. See generally David Cole, No EQUALJUSTICE: RACE AND

CLASS IN THE AMERICAN CRIMINAL JUSTICE SYSTEM (New

Press, 1999) (noting that a recent poll found that nearly 90 percent

of African-Americans in New York thought the police force often

engaged in brutality against minonties and two-thirds said such

brutality was widespread).

Numerous commentators have urged that race not play any

routine role in investigative decisionmaking, for the burden of

enduring intrusive police tactics almost inevitably falls upon the

minority members of the community. See, e.g., Randall Kennedy,

RACE, CRIME, AND THE LAW 162 (1977) (“Everyone — ordinary

citizens, legislators, police officials, judges, and so on — should

demand that race play no routine role in decision-making regarding

whom to scrutinize for purposes of law enforcement.”); Cole,

supra, at 50. Professor Cole explains, “Even where race is not an

explicit factor, it will often be an unstated one, and toleration of

loose, race-neutral profiles will therefore have the effect of

tolerating race-based stops.” Jd. at 50-51.

In applying the strictures of the Fourth Amendment to traffic

seizures, this Court has made it clear that race may not be the

primary factor upon which the decision to stop or search is based.

See United States v. Brignoni-Ponce, 422 U.S. at 885-86

‘ peat

19

(disapproving practice of stopping vehicles away from the border

based solely on the apparent Mexican ancestry of occupants).

Nonetheless, the approach taken by a plurality of courts after Ohio

v. Robinette, allowing officers in their own discretion to seek to

extend the scope and duration of stops by requesting “‘consent”’ to

search from stopped motorists, has been shown to consistently

burden minorities to a greater degree than non-minorities. In view

of this, amicus respectfully submits that Petitioner’s appeal offers

an opportunity to consider whether it is appropriate in the context

of this issue to exercise the diligence the Court has wamed is

necessary to ensure that the “very large category of presumably

innocent” citizens who wish not to speak with police officers are not

nonetheless subject to “virtually random seizures.” Reid v.

Georgia, 448 U.S. 438, 441 (1980) (a variety of circumstances

which fell under the “drug courier profile” held insufficient to permit

a stop because they encompassed a very large category of innocent

travelers).

CONCLUSION

It is true that the “often competitive enterprise of ferreting out

- crime” requires that police have the authority to thoroughly

investigate criminal activity and to disarm dangerous citizens.

Terry, 392 U.S. at 12, quoting Johnson v. United States, 333

U.S. at 14. Nonetheless, it is equally true that the Supreme Court

has “repeatedly decided that [the Fourth Amendment] should

receive a liberal construction, so as to prevent stealthy

encroachment upon or ‘gradual depreciation’ of the rights secured

by them, by imperceptible practice of courts or by well-intentioned

but mistakenly over-zealous executive officers.”” Gouled v. United

States, 255 U.S. 303, 304 (1921). “A ruling admitting evidence

in a criminal trial ... has the necessary effect of legitimizing the

20

conduct which produced the evidence, while anapplication of the

exclusionary rule withholds the constitutional imprimatur.” Terry,

392 U.S. at 13 (emphasis supplied). The Court’s amicus suggests

that Petitioner’s appeal is an exceptional opportunity, presented on

a clear record, to review and clarify for the courts, police and the

public whether an officer may seek to extend the scope and

duration of a traffic seizure by requesting consent to search the

vehicle without offending the Fourth Amendment.

Respectfully Submitted,

John W. Whitehead

Steven H. Aden

(Counsel of Record)

THE RUTHERFORD INSTITUTE

1445 East Rio Road

Charlottesville, VA 22906

(804) 978-3888

David Rudovsky

KAIRYS, RUDOVSKY,

EPSTEIN, MESSING & RAU

924 Cherry St., Suite 500

Philadelphia, PA 19107

(215) 925-4400

December 21, 2000

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