# Amicus Curiae Brief — Kremen v. Maine

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1375%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 1079

## Text

(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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1375%3A2. Public record. Not legal advice.