Opposition Brief — Ford v. United States (No. 08-1176)

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Supreme Court. U.S.

FILED

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| JUN 17 2009

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No. 08-1176 OFFICE OF THE CLERK

Jn the Supreme Court of the Gnited States

TYSON FORD, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN

Solicitor General

Counsel of Record

LANNY A. BREUER

Assistant Allorney General

JOSEPH C. WYDERKO

Attorney

Department of Justice

Washington, D.C. 20580-0001

(202) 514-2217

QUESTION PRESENTED

7

Whether petitioner was “seized” within the meaning

of the Fourth Amendment when, after petitioner volun-

tarily gave police officers his driver’s license, the offi-

cers retained the license as they spoke to petitioner

while he was standing on a public street.

TABLE OF CONTENTS

Page

CRE I ia vac ae ccc kkkca ge c4eee ea au eerie |

PUNE co eb ake oak bweee ue Cau poke eee eee l

Pe Sw 9-0 ook ob ae ee Se Oe oe ee l

Argument ..... sas Ae Tears 6

CEE on sk 5.5 a in 4 We ee ee eee eee 18

TABLE OF AUTHORITIES

Cases:

Brendlin v. California, 127 8. Ct. 2400 (2007) ........ 7,10

California v. Hodari D., 499 U.S. 621 (991)... 2.2.2... 10

Finger v. State, 799 N.E.2d 528 (Ind. 2003) ............ 14

Florida v. Bostick, 501 U.S. 429 (1991) .......... 6, 7,8, 10

Florida v. Royer, 460 U.S. 491 (1983) .............. 5,8,9

Hiibel v. Sixth Judicial Dist. Ct., 542 U.S. 177 (2004) .... 6

INS v. Delgado, 466 U.S. 210 (1984) ................ 6, 10

Michigan v. Chesternut, 486 U.S. 567 (1988) ........ 10, 11

Ohio v. Robinette, 519 U.S. 33 (1996) .......... ye

Piggott v. Commonwealth, 537 S.E.2d 618 (Va. App.

| er emer tre mirk desc tok tr6 Sapa Peay 14

Rogers v. State, 426 S.E.2d 209 (Ga. App. 1992) ........ 14

State v. Daniel, 12 S.W.3d 420 (Tenn. 2000) ............ 14

Terry v. Gnw, 392 U.S. 1 CISGS) 2s cs cece was 6,8

United States v. Chavez-Villarreal, 3 F.3d 124

CBEt SAP, Bed: bik nat pee eae eee 1,15

United States v. Cordell, 723 F.2d 1283 (7th Cir.

1983), cert. denied, 465 U.S. 1029 (1984) ......... 15,16

United States v. De La Rosa, 922 F.2d 675 (11th Cir.

SOR) shiek ehh ska eae oer bal eee a ee 17

Cases—Continued: Paye

United States v. Drayton, 536 U.S. 194 (2002) ..... 6, 7, 10

United States v. Gonzalez-Lerma, 14 F.3d 1479

(10th Cir.), cert. denied, 511 U.S. 1095 (1994) ........ Ld

l/nited States v. Goodwin, 449 F.3d 766 (7th Cir.

Se eg haere ad era pe 16

United States v. Jordan, 958 F.2d 1085 (D.D. Cir

RNS Tahsin yp ale -wale kre Cea ee ata a ee A OS 12

United States v. Lambert, 46 F.3d 1064 (10th Cir.

SN Ss os ac ee es Te as 13, 14,15

United States v. Lopez, 443 F.3d 1280 (10th Cir.

I on ce oan a hte LNG ea Ce a ee ea 12,13

United States v. Mendenhall, 446 U.S. 544 (1980) .. 5, 7,10

United States v. Thompson, 712 F.2d 13856 (11th Cir.

| __, IE A RT a tare ga. Oe eee LPR FAs 8 RL Meee tho 15, 16, 17

Wisniewski v. United States, 353 U.S. 901 (1957) ...... 15

Constitution and statutes:

Cr 6 ee eee 8 "noc vce beac ude eu 6,8, 10,11, 12

i Oe eT alr 14

18 U.S.C. 922()(1) me Pers

Jn the Supreme Court of the Cnited States

No. 08-1176

TYSON FORD, PETITIONER

?).

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

T0 THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-15a)

is reported at 548 F.3d 1. The opinion of the district

court (Pet. App. 16a-34a) is reported at 440 F. Supp. 2d

16.

JURISDICTION

The judgment of the court of appeals was entered on

November 5, 2008. On December 22, 2008, Justice

Souter extended the time within which to file a petition

for a writ of certiorari to and including March 20, 2009,

and the petition was filed on that date. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

After a conditional guilty plea in the United States

District Court for the District of Massachusetts, peti-

(1)

»)

tioner was convicted of possessing a firearm after having

been convicted of a felony, in violation of 18 U.S.C.

922(y)(1). He was sentenced to 15 years of imprison-

ment, to be followed by three years of supervised re-

lease. The court of appeals affirmed. Pet. App. la-15a.

1. In September 2005, two Boston police officers,

Daran Edwards and Daniel Griffin, were on patrol in a

high-erime area of Dorchester, Massachusetts. The offi-

cers, who were in uniform and in a marked police cruis-

er, regularly patrolled the area and were familiar with

many of the neighborhood’s residents. Pet. App. 2a,

l7a-1&a.

Around 3 p.m., the officers saw petitioner, whom they

did not recognize, walking alone down Harvard Street.

The officers saw petitioner look over his shoulder in the

direction of the cruiser. Petitioner then lowered his

head, began walking rapidly, and turned onto Gleason

Street. Without activating the cruiser’s siren or flashing

lights, the officers followed petitioner, turning the

wrong way onto the one-way Gleason Street. Pet. App.

2a, 18a, 20a.

When the cruiser came abreast of petitioner, the offi-

cers pulled over to the curb but did not block petitioner’s

path. Officer Griffin leaned out the passenger side win-

dow and said: “Can I speak to you for a minute?” Pet.

App. 2a, 19a. Petitioner stopped walking. Without a

request from the officers, he took his driver’s license out

of his pocket, handed it to Officer Griffin, and volun-

teered that he had no outstanding warrants and was not

on probation.' While Officer Edwards used petitioner’s

Petitioner's statement of the case (Pet. 2-4) rests, in part, on his

own testimony at the suppression hearing that was not credited by the

district court. For example, petitioner testified on direct examination

that the officer called out to him, “| Hjey James, where you been?” and

driver’s license to run a computer search for war-

rants, Officer Griffin asked petitioner what the district

court described as “various routine questions,” including

“[wljhere do you live?” and “[w]Jhere are you headed?”

Id. at 19a (brackets in original). Although petitioner

answered all of these questions, the officers observed

that he was stuttering and breathing rapidly, that his

hands were shaking, and that he seemed annoyed and

hostile. /d. at 3a, 19a.

About 45 seconds after being handed petitioner’s

identification, both officers got out of the cruiser and

approached petitioner from the same direction. Neither

officer unholstered his weapon. Petitioner began shak-

ing more severely, raised his hands in the air, and asked:

“Come on man, what’s this all about?” Pet. App. 3a, 20a.

Officer Griffin asked petitioner if he had any weapons,

and petitioner said: “Yeah, I got a gun in my pocket, but

it don’t fire.”* bid. The officers placed petitioner in

handcuffs, frisked him, and found a semiautomatic hand-

gun in a pants pocket. The entire encounter lasted be-

tween two and three minutes. At no point did either

officer tell petitioner that he was not free to leave. /d.

at 3a, 20a.

that he gave the officer his identification to show that he was not

“James.” Pet. App. 45a. The district court, however, credited the police

officers’ account, rather than petitioner’s, in its factual findings. See 7d.

at 18a-19a

* At the suppression hearing, petitioner claimed that he asked the

officers to return his identification when they got out of the cruiser.

Pet. App. 47a-48a; 4/25/06 Tr. 96-97, and he denied telling the officers

that he had a gun in his pocket, ?¢d. at 98. Petitioner also claimed that

the officers grabbed him after he refused their request to consent to a

frisk. /d. at 92, 97-98. As noted earlier, however, the district court

credited the police officers’ version of events in its factual findings. See

Pet. App. 19a-20a.

4

2. The district court denied petitioner’s motion to

suppress the firearm. Pet. App. 16a-34a. The court con-

cluded that the “initial interaction” between petitioner

and the officers—that is, the period before the officers

got out of the cruiser—‘“did not rise to the level of a

Fourth Amendment seizure.” /d. at 29a. The court stat-

ed that “[t]he most important factor|s]” supporting its

conclusion were that petitioner “voluntarily stopped

walking and voluntarily produced his identification.”

Thid.

The district court also held that the officers had not

“seized” petitioner during the period after the officers

got out of the cruiser but before petitioner admitted that

he was armed. Pet. App. 29a-38a. The court found that

portion of the encounter had “none of the objective fac-

tors that traditionally raise police encounters to the

level of a seizure,” and it noted that the officers did not

touch petitioner, physically block petitioner’s ability to

walk away, or draw their weapons. /d. at 30a. The court

acknowledged that the officers still had petitioner’s

identification at that point, and “that the retention of a

suspect’s identification is one factor that weighs in favor

of finding a seizure.” /Jbid. But the district court con-

cluded that “[tJhe most important fact” in this case was

that petitioner “voluntarily gave the officers his identifi

cation without any request by the officers,” and it also

determined that “the encounter happened so quickly

that [the officers] never had an opportunity to return

[petitioner’s] identification to him.” /d.at 32a; see zbid.

(explaining that the officers had retained petitioner’s

identification for purposes of running a computer check

and that the check had not yet been completed when the

officers got out of the car). Under those circumstances,

the district court determined that “(t]he retention of [pe-

5

titioner’s| identification” did “not convert this otherwise

consensual encounter into a Fourth Amendment sei-

zure.” Ibid.

3. The court of appeals affirmed. Pet. App. la-15a.

Applying the test established in United States v.

Mendenhall, 446 U.S. 544 (1980) (plurality opinion), and

applied by this Court in later cases, the court of appeals

held that petitioner was not seized until after “he dis-

closed that he was in possession of a firearm.” Pet. App.

10a. The court noted that the officers “drove a short

distance the wrong way on Gleason Street for the pur

pose of asking [petitioner] questions but activated nei-

ther the cruiser’s siren or flashing lights.” /d. at lla.

The court stated that the officers’ questions were “large-

ly general and non-threatening” and that the officers did

not draw their guns or touch petitioner until he admitted

having a gun. J/bid. The court also observed that

“(while the [olfficers retained [petitioner’s] license dur-

ing the two- to three-minute exchange, they did not oth-

erwise restrict [petitioner’s] movement.” /bid.

The court of appeals distinguished this case from

Florida v. Royer, 460 U.S. 491, 501-502 (1983), where

this Court held that a suspect had been seized at an air

port when two detectives retained his driver’s license

and airplane ticket while directing him to accompany

them to a private room. Pet. App. lla-12a. ‘The court of

appeals concluded that “the concerns of the airport

cases, where citizens need documentation to move from

place to place, differ from” those that arise in a case, like

this one, where a defendant “was on foot on a public

street.” /d. at 12a. The court also emphasized that peti-

tioner “produced his license voluntarily, not at the re-

quest of one of the [olfficers, and was not removed from

the street to a confined space while the [olfficers ran the

6

background check.” /bid. The court of appeals stated

that “the retention of [petitioner’s] license [wa]s an im

portant factor in [its] analysis,” but the court “decline|d]

to elevate it above other considerations.” J/bid. “Evalu-

ating the totality of circumstances,” the court of appeals

thus held “that [petitioner] was not seized for purposes

of the Fourth Amendment protections when he told the

|ojfficers he possessed a handgun.” /d. at 18a.

ARGUMENT

Petitioner contends (Pet. 9-35) that he was seized for

Fourth Amendment purposes when the officers got out

of their car without returning his identification or telling

him that he was free to leave. The court of appeals cor-

rectly rejected that contention, and further review is

unwarranted.

1. a. “Law enforcement officers do not violate the

Fourth Amendment’s prohibition of unreasonable sei-

zures merely by approaching individuals on the street or

in other public places and putting questions to them if

they are willing to listen.” United States v. Drayton,

536 U.S. 194, 260 (2002). In particular, “interrogation

relating to one’s identity or a request for identification

by the police does not, by itself, constitute a Fourth

Amendment seizure.” JNS v. Delgado, 466 U.S. 210, 216

(1984); accord Hitbel v. Sixth Judicial Dist. Ct., 542

N.S. 177, 185 (2004); Florida v. Bostick, 501 U.S. 429,

434-435 (1991). Rather, “[oJnly when the officer, by

means of physical force or show of authority, has in

some way restrained the liberty of a citizen may we con-

clude that a ‘seizure’ has occurred.” Terry v. Ohio, 392

U.S. 1, 19 n.16 (1968).

Where an officer’s actions do not show “an unambig

uous intent to restrain or when an individual’s submis-

7

sion to a show of governmental authority takes the form

of passive acquiescence,” the appropriate inquiry is

“whether ‘a reasonable person would feel free to decline

the officers’ requests or otherwise terminate the encoun-

ter.’” Brendlin v. California, 1278S. Ct. 2400, 2405-2406

(2007) (quoting Bostick, 501 U.S. at 436); see Drayton,

5386 U.S. at 201-202. Relevant circumstances include

whether the officers displayed weapons, physically

touched a citizen, gave any commands or conveyed any

type of threat, or used language or a tone of voice that

indicated that compliance was required, as well as the

location of the encounter, the number of officers, the offi-

cers’ proximity to the citizen, and the timing of the offi-

cers’ arrival. See Bostick, 501 U.S. at 432, 437; United

States v. Mendenhall, 446 U.S. 544, 554 (1980) (plurality

opinion). The reasonable person test “is objective and

‘presupposes an innocent person.’” Drayton, 5386 U.S.

at 202 (quoting Bostick, 501 U.S. at 438).

b. The court of appeals correctly held that, under

the circumstances of this case, petitioner was not seized

until after he told the officers that he had a gun. Pet.

App. 9a-l4a. The officers did not activate their cruiser’s

lights or siren or otherwise order petitioner to stop.

Instead, Officer Griffin said: “Can 1 speak to you for a

minute?” /d. at 2a, 19a. Without being asked, petitioner

voluntarily produced his identification and claimed that

he had no outstanding warrants and was not on proba-

tion. /d. at 2a-3a, 19a. The officers then used petition-

er’s identification for a brief period in order to run a

computer check to verify petitioner’s statements. The

use of the identification volunteered by petitioner, pre-

sumably to permit the officers to verify his identity,

would not have communicated to a reasonable person in

petitioner’s position that the encounter was no longer

Ss

consensual. When the two officers got out of the cruiser,

they did not tell petitioner that he was under arrest, un-

holster their weapons, or attempt to restrict petilioner’s

movements. /d. at 20a. Instead, they asked petitioner

if he had any weapons. /bid. Because the officers did

not employ “physical force” or make a “show of author-

ity” that would have communicated to a reasonable per-

son in petitioner’s position that he was not free to de-

cline the officers’ requests and terminate the encounter,

Bostick, 501 U.S. at 434 (quoting Terry, 392 U.S. 19

n.16), no Fourth Amendment seizure occurred until af-

ter petitioner admitted that he had a firearm.

2. a. The court of appeals’ decision in this case does

not conflict with Florida v. Royer, 460 U.S. 491 (1983).

As the court of appeals correctly explained (Pet. App.

12a), Royer is distinguishable for at least two reasons.

I‘irst, in Royer, the officers retained both the passen-

yver’s ticket and his driver’s license in an airport, which

is a place “where citizens need documentation to move

from place to place.” /bid. Here, petitioner “was on foot

on a public street.” /bid. Second, after the suspect in

Royer produced his identification, and before his identi-

fication was returned, the suspect was informed that the

officers suspected that he was transporting narcotics

and he was asked to accompany the officers to a private

room that was located 40 feet away. Royer, 460 U.S. at

494 (plurality opinion). Here, petitioner “produced his

license voluntarily, not at the request of one of the [o}f-

ficers, and was not removed from the street to a con-

fined space while the [oJfficers ran the background

check.” Pet. App. 12a.

b. Petitioner asserts that Royer “established” a

broad rule “that a consensual encounter between the

police and an individual escalates into a Fourth Amend-

9

ment ‘seizure’ when the police retain the individual’s

identification beyond the time necessary to conduct an

initial inquiry into the person’s identity, using that re-

tention as leverage to conduct or continue an investiga-

tion.” Pet. 8. Based on that reading of Royer, petitioner

advocates a “categorical rule” that “police questioning

during the retention of personal identification, coupled

with the failure to inform the individual that [he] re-

main|s| free to leave, transform|s] [an] initially volun-

tary encounter into a seizure.” Pet. 29; see Pet. 31.

That argument is without merit.

First, petitioner’s argument is based on a single sen-

tence from Justice White’s plurality opinion in Royer

that rejected the State’s argument that “the entire en-

counter [in that case] was consensual.” 460 U.S. at 501

(plurality opinion). Petitioner is correct that, in that

sentence, Justice White cited the fact that the officers

had “retain[ed] [the defendant’s] ticket and driver’s li-

cense” and had not “indicat[ed] in any way that he was

free to depart.” /bé:d. But that very same sentence also

notes that “[al]sking for and examining Royer’s ticket

and driver’s license were no doubt permissible in them-

selves,” 7bid. (emphasis added); it was only when the

officers retained those items, “identified themselves as

narcotics agents, told Royer that he was suspected of

transporting narcotics, and asked him to accompany

them to the police room” that the encounter became

non-consensual. /bid. Because the plurality opinion in

Royer found that Royer had been seized based on a vari-

ety of factors, it neither establishes nor supports the

establishment of a “categorical rule” (Pet. 29) that would

place “primacy upon retention of a person’s identifica-

tion” (Pet. 30).

10

Second, the “categorical rule” (Pet. 29) that petiticn-

er proposes would be inconsistent with this Court’s oth-

er cases. This Court has stated that “for the most part

per se rules are inappropriate in the Fourth Amendment

context.” Drayton, 536 U.S. at 201; aceord Bostick, 501

U.S. at 439-440 (rejecting per se rule that all police-citi-

zen encounters inside a bus constitute “seizures” for

purposes of the Fourth Amendment); see Ohio v.

Robinette, 519 U.S. 33, 39-40 (1996) (rejecting per se

rule that police officers must tell motorists stopped for

traffic violation that they are free to go before they may

obtain valid consent to search the vehicle). The Court

also has emphasized repeatedly that the determination

of whether a seizure has occurred must be based on “all

of the circumstances” of an encounter. Brendlin, 1278S.

Ct. at 2405 (quoting Mendenhall, 446 U.S. at 554);*® see

Drayton, 536 U.S. at 201; Bostick, 501 U.S. at 439; Calt-

fornia v. Hodari D., 499 U.S. 621, 627-628 (1991); Del-

gado, 466 U.S. at 215. As the Court explained in Michi-

gan Vv. Chesternut, 486 U.S. 567, 573 (1988), the test for

whether a seizure has occurred is “necessarily impre-

cise, because it is designed to assess the coercive effect

of police conduct, taken as a whole, rather than to focus

on particular details of that conduct in isolation.”

* In Brendlin, this Court held that a passenger is “seized” within the

meaning of the Fourth Amendment whenever a car in which he is riding

is pulled over by the police. But the Court reached that conclusion only

after applying the Mendenhall test and concluding that “any reasonable

passenger” would understand that, once a car is stopped, “no one in the

car [is] free to depart without police permission.” 127 S. Ct. at 2406-

2407.

* Petitioner quotes (Pet. 32-33) language from Chesternut stating

that the test for determining whether a seizure has occurred “ealls for

consistent application from one police encounter to the next.” 486 U.S.

11

3. Petitioner asserts (Pet. 9-22) that the lower

courts are divided over whether a person is seized when-

ever a law enforcement officer retains his identification

beyond the time necessary to conduct an initial inquiry

into his identity and then engages in “investigatory

questioning” or “fail|s] to disclose that the individual is

free to leave.” Pet. 8. It is true that, in distinguishing

consensual encounters from seizures, many courts of

appeals have considered an officer’s retention of a per-

son’s identification to be a significant factor. But the

court of appeals likewise treated the officer’s retention

of petitioner’s identifieation as a significant, though not

dispositive, factor. See Pet. App. 12a (describing “the

retention of [petitioner’s] license” as “an important fac-

tor in our analysis”). In addition, none of the cases upon

which petitioner relies involved an individual who volun-

tarily gave his identification to officers without being

asked, and both the district court (2d. at 29a, 32a) and

the court of appeals (@d. at 12a) described the fact that

petitioner did so as highly significant to their analysis.

Thus, the eases on which petitioner relies are all distin-

guishable based on their different facts. Far from dem-

onstrating a conflict in the circuits, the cases demon-

strate that each case turns on its own facts, which ac-

cords with the Court’s general approach to Fourth

Amendment cases.

at 574. But the full sentence makes clear that what the Court was re-

jecting was a swbjective standard that would make whether a seizure

has occurred depend on “the particular individual's response to the ac-

tions of the police.” /bid. As the Court explained in the next sentence

of its opinion, it is “[t]he |{Mendenhall’s} test’s objective” character that

“allows the police to determine in advance whether the conduct contem-

plated will implicate the Fourth Amendment.” /did.

12

For example, in United States v. Jordan, 958 F.2d

1085 (D.C. Cir. 1992) (see Pet. 10-11), which predated

this Court’s decision in Drayton, a police officer ap-

proached the defendant and asked for his bus ticket and

identification as he was getting into his car to leave the

bus terminal. Jordan, 958 F.2d at 1086. As petitioner

acknowledges (Pet. 10-11), the D.C. Circuit specifically

noted that the case before it, like previous cases, in-

volved a situation where a person who had been

“stopped by the police” was “asked to hand over critical

identification or travel documents.” Jordan, 958 F.2d at

1087 (emphasis added); see 267d. (“The police asked for,

took, and retained Jordan’s driver’s license while they

continued questioning him.”) (first emphasis added).

The D.C. Cireuit also emphasized that, in determining

“whether a reasonable person would feel free to ‘disre-

gard the police and go about his business,’” it is “crucial

to focus on what the person’s immediate ‘business’ is,”

and it reasoned that, for an individual who “was intent

on getting into a waiting car at six o’clock at night in

order to leave the scene altogether,” the officer’s reten-

tion of the defendant’s driver’s license was highly signif-

icant. /d. at 1088 (citation omitted). Here, in contrast,

the court of appeals specifically relied on the fact that

petitioner “produced his license voluntarily, not at the

request of one of the [o]fficers,” Pet. App. 12a, and peti-

tioner was walking along a public street when the offi-

cers approached him.

Nor has the Tenth Circuit adopted (see Pet. 11-13) a

categorical rule that a Fourth Amendment seizure oc-

curs whenever an officer engages in unrelated investiga-

tory questioning while still in possession of an individ-

ual’s identification. In United States v. Lopez, 443 F.3d

1280, 1282 (10th Cir. 2006), a police officer approached

13

Lopez and another man while they were standing next

to a parked car whose engine was running. Lopez

claimed that the car belonged to him, at which point the

officer “asked [the men] for identification.” Jbid. Al-

though the officer quickly determined that the address

on Lopez’s driver’s license matched the address of the

car’s registered owner, the officer “took Lopez’s license

to his patrol car and ran a warrants check” and “told the

men to wait by the rear of the parked car.” /bid. (quot-

ing district court decision). Examining the totality of

the circumstances, id. at 1284, the court concluded that

Lopez was “seized” when the officer took the driver’s

license back to his patrol car to check for outstanding

warrants, because the officer’: .ctions had “render[ed]

Lopez unable to leave.” Jd. at 1286. Like Jordan, Lopez

did not involve a person who voluntarily handed his

identification to the police. Nor did anything occur in

this case similar to the statement by the officer in Lopez,

who “specifically instructed Lopez to remain by his vehi-

cle.” Ibid.

For similar reasons, the Tenth Circuit’s decision in

United States v. Lambert, 46 F.3d 1064 (1995), which

was decided before this Court’s decision in Drayton, is

also inapposite. In that case, two officers approached

the defendant as he was “preparing to open the door to

his car and drive away” after leaving an airport. /d. at

1068. The officers identified themselves as DEA agents,

told the defendant that “they wanted to speak with him,”

and then, in sequence, asked for and obtained the defen-

dant’s airline ticket and his driver’s license. /d. at 1066.

The officers then retained the defendant’s driver’s li-

cense for a period of “twenty to twenty-five minutes.”

Ibid. The Tenth Circuit concluded that the defendant

‘

was “seized” when the officer failed to return the li-

14

cense, and it specifically noted that the defendant “could

not lawfully leave the parking lot in his car without his

driver’s license.” /d. at 1068. That is quite different

from the brief retention of petitioner’s license that he

volunteered to the officers as they conversed on the

street.”

The Fifth Circuit’s decision in United States v.

Chavez-Villarreal, 3 F.3d 124 (1993) (see Pet. 14), which

was decided before Drayton and Robinette, is also of

no help to petitioner. As petitioner acknowledges (Pet.

14), Chavez-Villarreal involved “a non-consensual en-

counter arising out of a traffic stop.” During the stop,

the defendant consented to a search of his car. Because

the court concluded that the stop was illegal, the ques-

tion was whether the defendant’s consent sufficiently

“dissipate[d] the taint of” the initial violation. Chavez-

Villarreal, 3 F.3d at 127. In finding that it did not, the

court relied on the short amount of time between the

seizure and the request for consent, as well as the ab-

sence of intervening circumstances. The court also

stated that the officer’s “retention of the [defendants’ |

preen cards” reinforced the officer’s continued authority

over them and limited the extent to which the taint of

the initial seizure dissipated. Jd. at 128; see 8 U.S.C.

* The state cases upon which petitioner relies (Pet. 22-26) are

similarly distinguishable. Most of those cases involve encounters with

people in or around parked vehieles where police officers specifically

asked the people for, and then retained, their driver’s licenses. See

Finger v. State, 799 N.I5.2d 528, 530-531 (Ind. 2008); State v. Daniel, 12

S.W.3d 420, 423 (Tenn. 2000); Rogers v. State, 426 S.E.2d 209, 210-211

(Ga. App. 1992). The other state case on which petitioner relies, Piggott

v. Commonwealth, 5387 S.E.2d 618, 619 (Va. App. 2000), is not a decision

of the state’s highest court and it involved a passenger of a stopped

vehicle who had himself been asked by the police to hand over his

identification.

15

1304(e) (requiring every alien who is more than 18 years

old to “carry” his alien registration card “with him” and

have it “in his personal possession” at “all times”).

There is a basic difference between cases like

Chavez-Villareal and this one. In those cases, the ques-

tion is not whether a seizure has occurred; it is whether,

notwithstanding seizure, the circumstances demonstrate

that a defendant’s consent was voluntarily given. Cf.

United States v. Gonzalez-Lerma, 14 F.3d 1479, 1488

(10th Cir.) (“This Circuit follows the bright-line rule that

an encounter initrated by a traffic stop may not be

deemed consensual unless the driver’s documents have

been returned to him.”) (emphasis added), cert. denied,

511 U.S. 1095 (1994). Here, in contrast, the question is

not whether the taint of an unlawful seizure had suffi-

ciently dissipated but rather whether there was ever a

“seizure” in the first place. For the same reason, the

Tenth Circuit’s observation in Lambert (see Pet. 13) that

it “has consistently held that the undue retention of an

individual’s driver’s license during a traffic stop renders

the encounter nonconsensual,” 46 F.3d at 1068 (empha-

sis added), is of no help to petitioner.

Petitioner also asserts (Pet. 19) that the Seventh and

Eleventh Circuits “have previously adopted the bright-

line rule advanced by petitioner[}” here but “have also

departed from that rule in recent cases.” An intracircuit

conflict would not warrant this Court’s review. Wis-

niewski v. United States, 353 U.S. 901, 902 (1957) (per

curiam). In addition, the decisions upon which peti-

tioner relies—United States v. Cordell, 723 F.2d 1283

(7th Cir. 1983), cert. denied, 465 U.S. 1029 (1984) (see

Pet. 19-20), and United States v. Thompson, 712 F.2d

1356 (11th Cir. 1983) (see Pet. 21-22)—both predated

this Court’s decisions in Bostick and Drayton.

16

At any rate, there is no conflict between the court of

appeals’ decision in this case and Cordell or Thompson.

Like Royer, Cordell involved an encounter in an airport.

Two officers followed the defendant after he got off a

flight, approached him in an area that connected the

terminal to a parking garage, and asked him for his

ticket and identification. Cordell, 723 F.2d at 1284. Af-

ter the defendant handed one officer his driver’s license

and ticket, the officer handed them to the other officer,

told the defendant they were conducting a narcotics in-

vestigation, and asked him whether he was carrying nar-

cotics. Jbid. Without explaining its analysis, the Sev-

enth Circuit concluded in a single sentence that, “when

[the first officer] handed [the defendant’s] driver’s li-

cense and airline ticket to [the second officer], and told

[the defendant] they were conducting a narcotics investi-

gation, the encounter had become a detention.” J/d. at

1285. Cordell did not purport to establish any “categor-

ical rule” (Pet. 29) about when a seizure occurs; it simply

held that the combination of circumstances at issue in

that case amounted to a seizure. See United States v.

Goodwin, 449 F.3d 766, 768 (7th Cir. 2006) (holding that

no seizure occurred during an interval between when

officers retained the defendant’s identification and

ticket for a departing train and the defendant’s incrimi-

nating statement because the interval “was too brief to

amount to a seizure’”’).

The Eleventh Circuit’s decisions are similar. In

Thompson, an officer approached a person who was sit-

ting in a car that had been parked in an airport’s short-

term parking lot for two weeks. 712 F.2d at 1858. As

the officer approached, he saw the person hold a light-

colored circular object to his nose, place it in his lap,

and then move the object to his side when he saw the

17

officer. The officer “knocked on the window [of the car]

and asked [the defendant] for identification,” which the

defendant provided and which appeared valid. J/bid.

The officer then asked the defendant to hand the officer

the object that he had placed beside him. /bid. The

Eleventh Circuit held that the defendant was seized at

the moment the officer requested the object. Although

the court stated that “[w]hen {the officer] retained [the

defendant’s] license, the encounter matured into an in-

vestigative stop protected by the Fourth Amendment,”

id. at 1359, it did not purport to hold that an individual

is seized whenever a police officer is holding his identifi

eation. Instead, the Eleventh Circuit concluded that “[a]

reasonable person in these circumstances would not have

believed himself free to leave,” and it specifically noted

that if the defendant “had tried to drive away he could

have been arrested for driving without a license.” /bid.

(emphasis added); accord United States v. De La Rosa,

922 F.2d 675, 678 & n.2 (11th Cir. 1991) (distinguishing

Thompson and holding that no seizure occurred where

an officer retained the license of a person who had

parked his vehicle and started walking to his apart-

ment). As a result, there is no conflict between the court

of appeals’ decision in this case and Thompson.

1S

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KLENA KAGAN

Solicitor General

LANNY A. BREUER

Assistant Attorney General

JOSEPH C. WYDERKO

Attorney

JUNE 2009