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Hosanna-Tabor Amicus Brief No. 17-1349 In the Supreme Court of the United States __________ RANDY N. JOHNSON, PETITIONER v. UNITED STATES OF AMERICA, RESPONDENT __________ ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________ BRIEF OF FOURTH AMENDMENT SCHOLARS AS AMICI CURIAE IN SUPPORT OF PETITIONER __________ PATRICK BANNON LINDA T. COBERLY WINSTON & STRAWN LLP Counsel of Record 200 Park Avenue SEAN H. SUBER New York, NY 10166 NEHA NIGAM (212) 294-6700 WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, IL 60601 (312) 558-5600 [email protected] Counsel for Amici Curiae QUESTION PRESENTED In Whren v. United States, 517 U.S. 806 (1996), this Court held that the Fourth Amendment did not prohibit a pretextual traffic stop, as long as there was probable cause to believe that the driver had commit- ted a moving violation. The majority explained that in that context, “[s]ubjective intentions play no role.” Id. at 813. In this case, the Seventh Circuit extended Whren to allow a pretextual seizure based on probable cause to believe that there had been a civil parking in- fraction. This decision—which conflicts with state court decisions addressing similar infractions—threat- ens to undermine any “reasonableness” limitation on seizures and to create virtually unbridled police power to engage in racial profiling and interfere with the lib- erty of private citizens. With this context, the question presented in this case is: Whether the Fourth Amendment forbids a pre- textual and intrusive seizure based solely on probable cause to suspect a civil parking infraction. ii TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................... iii INTRODUCTION AND INTEREST OF AMICUS CURIAE ....................................................................... 1 STATEMENT ............................................................... 2 REASONS FOR GRANTING THE PETITION .......... 3 I. This Court should grant review to resolve a disagreement about what officers may or may not do based on a minor, non-moving civil infraction. .................................................. 4 A. Courts disagree about whether officers can conduct a seizure and attendant search based on a minor, non-moving civil infraction. ........................................ 5 B. The issue underlying the conflict implicates concerns already identified by members of this Court ....................... 9 II. This case provides the Court with an excellent vehicle to consider the circumstances under which an officer’s subjective motivation should play a role in the analysis. .................. 10 III. If allowed to stand, the Seventh Circuit’s extension of Whren will exacerbate the ill effects that Whren has already created. ........ 16 CONCLUSION .......................................................... 19 APPENDIX iii TABLE OF AUTHORITIES CASES Arizona v. Gant, 556 U.S. 332 (2009) .................................................. 5 Arizona v. Johnson, 555 U.S. 323 (2009) .................................................. 5 Arkansas v. Sullivan, 532 U.S. 769 (2001) .............................................. 4, 9 Atwater v. Lago Vista, 532 U.S. 318 (2001) .................................................. 4 City of Indianapolis v. Edmond, 531 U.S. 32 (2000) .................................................. 15 Colorado v. Bannister, 449 U.S. 1 (1980) ...................................................... 5 Delaware v. Prouse, 440 U.S. 648 (1979) ................................................ 14 District of Columbia v. Wesby, 138 S. Ct. 577 (2018) .......................................... 4, 10 Flores v. Palacios, 381 F.3d 391 (5th Cir. 2004) .................................... 6 Florida v. Jardines, 569 U.S. 1 (2013) .................................................... 11 Heien v. North Carolina, 135 S.Ct. 530 (2014) ................................................. 6 Illinois v. Caballes, 543 U.S. 405 (2005) .................................................. 5 In re Calvin S., 930 A.2d 1099 (Md. Ct. Spec. App. 2007) ................ 8 iv Knowles v. Iowa, 525 U.S. 113 (1998) ................................................ 13 Maryland v. King, 569 U.S. 435 (2013) ................................................ 15 Maryland v. Wilson, 519 U.S. 408 (1997) .......................................... 1, 5, 9 Michigan v. Long, 463 U.S. 1032 (1983) ................................................ 5 Rodriguez v. United States, 135 S. Ct. 1609 (2015) ...................................... 12, 13 State v. Duncan, 43 P.3d 513 (Wash. 2002) ........................................ 8 State v. Holmes, 569 N.W.2d 181 (Minn. 1997) .......................... 6, 7, 8 Terry v. Ohio, 392 U.S. 1 (1968) ...................................................... 5 United States v. Choudhry, 461 F.3d 1097 (9th Cir. 2006) .................................. 6 United States v. Copeland, 321 F.3d 582 (6th Cir. 2003) .................................... 6 United States v. Johnson, 874 F.3d 571 (7th Cir. 2017) .......................... passim Utah v. Strieff, 136 S. Ct. 2056 (2016) ............................................ 17 Whren v. United States, 517 U.S. 806 (1996) ........................................ passim v OTHER AUTHORITIES David A. Harris, Addressing Racial Profiling in the States: A Case Study of the “New Federalism” in Constitutional Criminal Procedure, 3 U. PA. J. CONST. L. 367 (2001) ............................. 17 David A. Harris, “Driving While Black” and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. CRIM. L. & CRIMINOLOGY 544 (1997) ........................................ 16 Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 CALIF. L. REV. 125 (2017)....................................................... 19 How Does Chicago Make $200 Million A Year on Parking Tickets? By Bankrupting Thousands of Drivers, MOTHER JONES, Feb. 27, 2018 ................. 17 John Byrne, Emanuel wants more weekend parking tickets, CHICAGO TRIBUNE, Oct. 24, 2017 .............. 17 Jonathan Blanks, Thin Blue Lies: How Pretextual Stops Undermine Police Legitimacy, 66 CASE W. RES. L. REV. 931 (2016) .......................................... 18 Jonathan Witmer-Rich, Arbitrary Law Enforcement Is Unreasonable: Whren’s Failure to Hold Police Accountable for Traffic Enforcement Policies, 66 CASE W. RES. L. REV. 1059 (2016) .......................... 18 Jordan B. Woods, Decriminalization, Police Authority, and Routine Traffic Stops, 62 UCLA L. REV. 672 (2015) ....................................... 12 Robert H. Jackson, THE FEDERAL PROSECUTOR, ADDRESS DELIVERED AT THE SECOND ANNUAL CONFERENCE OF UNITED STATES ATTORNEYS (Apr. 1, 1940) .......................................................... 16 vi Sarah A. Seo, The New Public, 125 YALE L.J. 1616 (2016) ........................................ 6 Seth W. Stoughton, Principled Policing: Warrior Cops & Guardian Officers, 51 WAKE FOREST L. REV. 611 (2016) .................................................. 19 U.S. Dep’t of Just., INVESTIGATION OF THE BALTIMORE CITY POLICE DEPARTMENT (2016) ........................... 17 U.S. Dep’t of Just., INVESTIGATION OF THE FERGUSON CITY POLICE DEPARTMENT (2015) ........................... 18 INTRODUCTION AND INTEREST OF AMICUS CURIAE* A bare majority of the en banc Seventh Circuit has held that the Fourth Amendment does not prohibit a dramatic and intrusive seizure of a passenger in a parked car as long as the objective circumstances ena- ble the officer to rely on the pretext of a parking viola- tion. United States v. Johnson, 874 F.3d 571 (7th Cir. 2017). This decision represents a significant extension of Whren v. United States, 517 U.S. 806 (1996), which permits a pretextual stop if the officer has probable cause to believe that the driver committed a moving violation. The Seventh Circuit’s decision stands in conflict with state court decisions that have held that minor civil infractions require a different Fourth Amendment analysis. Indeed, the Seventh Circuit’s approach threatens to remove any sense of “reasona- bleness” in Fourth Amendment analysis and poses a serious “risk of arbitrary control by the police.” Mary- land v. Wilson, 519 U.S. 408, 423 (1997) (Kennedy, J., dissenting). Amici are legal scholars with decades of experience studying the Fourth Amendment and its impact on American society. See Appendix (listing the scholars joining this brief). They respectfully submit this brief to alert the Court to the Seventh Circuit’s problematic * Pursuant to Rule 37.2, counsel for amici provided ten days’ notice of its intention to file this brief. All parties have consented, and letters evidencing that consent are on file with the Clerk. No counsel for any party authored this brief in whole or in part, and no person or entity has made a mon- etary contribution intended to fund the preparation or sub- mission of this brief. See R. 37.6. 2 extension of Whren, and they urge this Court to grant review to resolve the conflict. Amici further urge the Court to use this case as an opportunity to consider the issue of pretextual seizures more broadly, exploring when it may be appropriate to consider the officer’s true motivation. At a minimum, when the only available basis for the seizure is a civil parking violation—which normally requires the officer to do nothing more than write out a parking citation and drop it on the windshield of an unoccupied vehi- cle—the fact that
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