New Cert Petition: Does the Fourth Amendment Allow “Information Seeking” Stops of Suspects?

I blogged about this case last year, and now I've filed a cert petition in the case.

|The Volokh Conspiracy |

I recently wrote a long and detailed blog post about a new Fourth Amendment case from the Nebraska Supreme Court, State v. Sievers, that permitted the stop of a criminal suspect without reasonable suspicion on the ground that the stop was "information seeking." The Nebraska court applied the reasonableness framework from a U.S. Supreme Court decision on traffic stops of eyewitnesses, Illinois v. Lidster, and extended that framework to the stop of a suspect. The result allowed a traffic stop seeking evidence of crime from a criminal suspect without reasonable suspicion. In my blog post, I wrote about why I thought the decision was "wrong" and "unpersuasive." The decision gutted the reasonable suspicion requirement by taking the exception to that requirement from Lidster out of context: "I don't see how the Lidster reasonableness framework can apply."

Last week, I put my money pro bono time where my mouth is by filing a cert petition in Sievers before the U.S. Supreme Court. Together with my co-counsel from Munger Tolles and the Lancaster County Public Defender, we have asked the Court to grant cert to answer the following question:

Whether Illinois v. Lidster, 540 U.S. 419 (2004), allows the police to stop a criminal suspect in the absence of reasonable suspicion on the ground that the stop is merely "information-seeking."

In addition to asking the Supreme Court to grant the petition for certiorari, we ask the Court to grant cert and summarily reverse the court below.

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54 responses to “New Cert Petition: Does the Fourth Amendment Allow “Information Seeking” Stops of Suspects?

  1. Sounds like the correct position, although it’s rather sloppy of the cops not to bother to find a pretext for the stop.

    1. Yeah, learn how to properly violate someone’s constitutional rights already, you silly police!

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  2. “Am I under arrest?”
    “Then good day to you, officers”

    1. Shouldn’t that be “Am I being detained?”

      Police can detain you for a variety of reasons and durations without arresting you.

      1. “Arrest” is a French word for “stop”. Irrespective of what SCOTUS has ruled, if you are detained for any reason, for any amount of time whatsoever, you have been arrested, i.e., stopped.

        1. Modern French has replaced the “s” with the circumflex. So the court is free to rule as it sees fit.

        2. No doubt the cops will be impressed by your erudition.

          If not, you may end up in l’hopital.

          1. I guess that’s one way to find out what the limit is.

          2. l’hopital? Is that short for Lop It All? 😉

  3. Admirable work Professor Kerr!

  4. ‘why I thought the decision was “wrong” and “unpersuasive.” ‘

    What’s up with the quotation marks? Are they ‘scare quotes,’ or ‘so-called quotes?’ If not, they’re unnecessary.

  5. I’m guessing he’s quoting what he said in his earlier blog post.

    1. “Quoting yourself is the sincerest form of flattery”

      Robert Beckman, 2019 (recursive)

  6. Richard the Butcher would be proud of that innovative use of the English language. If you’re stopping a *suspect* then it is not “information gathering,” but an “investigation.” Sheesh.

    1. That’s a winner! I was wondering why this seemed all wrong.

      Unless we’re all guilty until proven innocent…then suspect and person are synonyms.

      1. That’s why they invented the term “person of interest” AKA preliminary suspect AKA suspect.

  7. I’d have liked more information about the facts of the case…

    How did the cops go about stopping him, and why did they want to stop him if they didn’t have reasonable suspicion?

    On the one hand, I’m fairly sure that the information I want can be found in the link to the “long and detailed” blog post. On the other hand, I don’t want to go searching.

    THIS blog post doesn’t contain enough information to tell me if there’s something here that interests me or not. YMMV.

    1. Oh, come on. This is literally the second paragraph of the linked post:

      The question in Sievers is whether the police could stop a truck that had recently left a house that was suspected of being a place where drugs were sold and stolen firearms were being stored. The police were watching the house and were in the process of getting a warrant to search it. They saw a truck leave the premises and drive away, so they stopped the truck five blocks away. They did not observe any traffic violations that might have independently permitted the stop. A subsequent search of the car revealed two small baggies of meth in the front console of the car, and the driver’s was convictied of possessing the meth.

      Simply looking would have taken a good deal less time than it took to write your whiny comment.

      1. Fuck off.

        1. Ooooo — it doesn’t take much for your true colors to come out. How can the shoe hurt so much when it fits so well, my dear troll?

          1. You have to forgive poor Jamie. He can’t be bothered with actually finding the facts before expressing his expert opinion. 😉

        2. Well that escalated quickly.

          1. Poor Jamie appears to be an easily triggered individual.

            In the words of the great philosopher, Forrest Gump:
            Progressive is as Progressive does!

      2. Reading is really hard for some people. Being proud of not reading is apparently easy.

  8. New Cert Petition: Does the Fourth Amendment Allow “Information Seeking” Stops of Suspects?

    Yes, with a WARRANT!

    The government needs a warrant for any search and seizure that is unreasonable. Government can talk to people if the people want to talk to them.

    Any other search or seizure is unreasonable. Unreasonable is a very low standard too. Really the only reasonable searches are at the US border or for entering US government buildings to check for bombs etc.

    1. So if a cop watches a man shoot another man in the back of the head, and then immediately throw his gun down a storm drain (no longer an imminent threat), he should need a warrant to seize him?

      1. Well, no. If he’s not an imminent threat, the cop shouldn’t shoot him unless he attempts to flee against orders to halt and be arrested (without a warrant).

        1. Right, so an arrest (aka seizure) is sometimes constitutional even without a warrant.

          1. Only if there are “exigent circumstances” (an ever expanding definition) or the crime constitutes a breach of the peace and is committed in the presence of the person performing the arrest.

          2. No you’re right junkie. That should be added to a reasonable search and seizure.

            Committing a crime in front of a law enforcement officer allows for that officer to stop the crime by seizing the person.

            A grand jury is supposed to be empaneled to indict the person. Plus, you have guaranteed non-excessive bail as two other checks to government power.

            1. My list of ‘reasonable’ search and seizures was not exclusive.

              The point is still that the government always expands on limits set forth in the Constitution. Any ‘reasonable’ search and seizure should be very limited. All other searches and seizures should require a warrant.

              1. I interpreted your post as stating that voluntary and warrant were the only options, and was interpreting it as what you think it should be rather than how it’s currently interpreted by the courts

        2. Attempting to flee is a capital offense?

          1. If in possession of any object or exhibiting any movement that a jury of your peers might think a “reasonable” cop can mistake for a weapon or life-threatening gesture, yes. Don’t you read the paper?

          2. Deadly force, or the threat thereof, can be used against another who has committed murder and is attempting to flee to escape arrest. In many cases a non-LEO can also use such deadly force, including rape and arson.

            So attempting to fflee itself is not a capital offense, no. It’s the nature of what one flees from that determines the action justified in preventing the fleeing. In fact, after having successfully fled, a LEO can still use deadly force, having encountered a killer, rapist, arsonist if that person again attempt to flee from arrest.

            But it seems you had a different point in mind?

      2. No, the cop (or anyone else) doesn’t need a warrant to arrest someone for a crime that constitutes a breach of the peace committed in their presence.

      3. In your scenario, the cop saw someone commit a crime and could have seized him, by arresting him, presumably in public, that is, on the street. The courts have long held that an officer does not need a warrant to arrest a person in public.

    2. SCOTUS has ruled that, in general, ANY search or seizure w/o a warrant is unreasonable, absent “exigent circumstances.”

      1. Well, that’s certainly not true.

      2. To quote Scalia:

        Even before today’s decision, the “warrant requirement” had become so riddled with exceptions that it was basically unrecognizable. In 1985, one commentator cataloged nearly 20 such exceptions, including “searches incident to arrest . . . automobile searches . . . border searches . . . administrative searches of regulated businesses . . . exigent circumstances . . . search[es] incident to nonarrest when there is probable cause to arrest . . . boat boarding for document checks . . . welfare searches . . . inventory searches . . . airport searches . . . school search[es]. . . .” Bradley, Two Models of the Fourth Amendment, 83 Mich.L.Rev. 1468, 1473-1474 (1985) (footnotes omitted). Since then, we have added at least two more. California v. Carney, [500 U.S. 565, 583] 471 U.S. 386 (1985) (searches of mobile homes); O’Connor v. Ortega, 480 U.S. 709 (1987) (searches of offices of government employees). Our intricate body of law regarding “reasonable expectation of privacy” has been developed largely as a means of creating these exceptions, enabling a search to be denominated not a Fourth Amendment “search,” and therefore not subject to the general warrant requirement. Cf. id., at 729 (SCALIA, J., concurring in judgment).

  9. So how does not being able to stop a suspect for information gathering square with being able to approach a house (where legal protections are generally far stronger) and do a “knock and ask”? Is it because a public stop (where coercive force (in the form of lights and siren)has already been used to effectuate the encounter is so much more disadvantageous to the suspect?

    If you haven’t thought about that question I suggest you do so.

    1. It’s because the stop is a seizure, while the knock on the door can be ignored (setting aside “knocking” that’s actually pounding and shouting threats of violence unless you open the door).

      If the police had a green light and Santa Claus music that was publicly understood to indicate a friendly request for a chat that could be safely ignored if one so chose, rather than the red and blue that ends in your violent death if ignored, that would probably be ok too.

    2. Under Delaware v. Prouse, the stop of the vehicle is a seizure under the Fourth Amendment while knocking on someone’s door is not a search or seizure. If your neighbor knocks on your door to borrow sugar, it’s not a seizure but if they impersonate a police officer and signal for you to pull over, it is.

  10. Serious question for the lawyers here:

    “In addition to asking the Supreme Court to grant the petition for certiorari, we ask the Court to grant cert and ”

    IANAL, and all the years reading this blog I though “grant cert” was short for “grant the petition for certiorari”. Is that wrong, or was the sentence just redundant.

    1. A case for the Department of Redundancy Department.

    2. Moderately redundant. They asked the Court to grant cert, AND they asked the Court to grant cert and reverse the lower court decision.

      Not quite the same, logically, as asking to grant cert, AND asking to reverse, because it excludes the “not grant cert but reverse anyway” corner of the matrix.

    3. The Supreme Court can grant cert and immediately issue a summary reversal of the lower court’s opinion, without briefing or oral argument. So a grant/reverse is a different procedural form of relief than simply granting cert. Orin et al. no doubt hope the court will see this issue as clearcut enough to warrant summary reversal, but are asking for a conventional cert grant in the alternative.

      1. Thanks to everyone, it makes more sense now.

  11. Odd that so many cases talk about the anxiety level of those stopped, and that a sense of normalcy and being treated like everyone else somehow obviates the stop. Say there’s an informational roadblock, and in addition the “wanted” flyer and the ice cream cone, the faces of the passengers are scanned by the police bodycams. Or, one step further, each passing car is automatically stopped by a signal in order to read information on an electronic sign by the road, with the same scanning in play. (The scanning simply automates what a county sheriff could do with his own eyes.) Larger question, perhaps.

    Intent and “mission” are messy. Perhaps the limiting principle isn’t who it is that’s suspected, but the location. This stop was far from the crime, and the only factor behind the stop in this distant location was the particularized suspicion of the deft. If a diamond store is robbed, stopping people to hand out information sheets nearby is one thing — stopping people to hand them out in front of the prime suspect’s house is another. (But if the prime suspect walks past the diamond district, or the jewelry pawn shops in town, different matter, perhaps.)

    1. Just watched a Dexter episode where they had a roadblock and were swabbing men over 60 to see if they were the Trinity killer. They were getting fought by the ACLU, but they found a bunch of other crooks, including two robbers and a different killer, so they could use that because they got it before the ACLU could stop them.

  12. Bravo to you for getting personally involved in an area where you have expertise!

  13. This is downright chilling ! The Supreme Court of a US State !

    Summary judgement please . . .

  14. The author of this article, Orin S. Kerr, was one of the attorneys who represented the city in City of Los Angeles v. Patel. The city had enacted a local ordinance which made “Failure to comply with an officer’s inspection demand is a misdemeanor, punishable by up to six months in jail and a $1000 fine. L.A. Mun.Code ? 11.00(m).”

    If the Fourth Amendment means anything then making refusal to consent to the search or seizure of one’s person or property a crime is always (facially) unconstitutional. Not only did Mr. Kerr take the position that it is not facially unconstitutional, his position was (and probably still is) that facial challenges to ordinances and statutes are never permitted under the Fourth Amendment.

    Fortunately, he lost. The Supreme Court held “that facial challenges under the Fourth Amendment are not categorically barred or especially disfavored.”

    This is an important case (Sievers). I wish he had someone less hostile to the Fourth Amendment representing him.

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