Denial of Appeal to Supreme Court
(Important Consideration for Law Enforcement)
Author’s Commentary: While I don’t often write about Supreme Court orders denying a writ of certiorari because the denial does not create any binding precedent on other courts, the implications of the denial here should at least create discussion for law enforcement. I note that for officers working under the jurisdiction of the United States Court of Appeals for the DC Circuit, the decision stands.
The case involves what most would consider a consensual contact, however due to the race of the subject, being a Black man, and with expert testimony that Black men tend to comply with law enforcement rather than exercise their Constitutional rights, the United States Court of Appeals for the D.C. Circuit, found that an improper seizure had occurred. The case was appealed to the United States Supreme Court and the Court denied hearing an appeal.
Justice Alito wrote a dissent in opposition to the denial of an appeal strongly criticizing the lower court’s holding. Justice Alito described the facts as follows:
“On a September afternoon in 2020, several plain-clothes police officers approached a group of black men who were lounging on a sidewalk. The officers were responding to an ‘uptick in shootings and sounds of gunfire’ in that area. Respondent Donte Carter was among the group. An officer approached Carter and asked him if he was carrying a weapon. When Carter said ‘no,’ the officer asked, ‘do you mind hiking your pants for me real quick?’ As Carter complied, another officers standing a few feet away saw and L-shaped bulge in the front of Carter’s pants. The officer pointed out the bulge, which Carter said was his phone. The officer nonetheless frisked Carter, and, after a brief struggle, the officers recovered a stolen firearm hidden among Carter’s multiple pairs of compression shorts.
Carter was charged with firearm and theft offenses. He moved to suppress the gun and a statement that he had made after his arrest. He argued that the officer seized him in asking him to hike his pants and that the officer lacked reasonable suspicion or probable cause at the time.”
The trial court denied Carter’s motion to suppress the evidence. On appeal to the United States Court of Appeals for the D.C. Circuit, concluded that a seizure had occurred when the officer asked Carter to hike his pants. It was how the appellate court arrived at this conclusion that led to Justice Alito’s dissent that Justice Thomas joined.
The U.S. Court of Appeals for the D.C. Circuit wrote that in analyzing whether Carter would have felt free to not comply with the officer’s request to hike his pants, the officer and the court must take into account Mr. Carter’s race. The Court of Appeals for the D.C. Circuit, wrote, “The proper inquiry [was] whether an objective and reasonable person sharing the defendant’s generalized lived experiences arising out of their racial status [that is], sharing Mr. Carter’s racial status as a Black man—would have felt free to terminate the police encounter.”
Justice Alito then noted that the lower court had cited to scholarly articles that concluded that “Black men are more likely to comply with police demands rather than exercise their constitutional right to terminate a suspicionless police encounter.
Justice Alito further noted that the lower court concluded, “the officer’s request that Carter hike his pants was a seizure due to the ‘elevated effect’ that the request ‘would have had on an objective and reasonable Black man in Mr. Carter’s shoes.’”
Justice Alito, questioned the lower courts’ analysis asserting: “Under the test, officers will need to quickly assess a person’s race, and if officers and courts must craft special rules for black persons, what about dark-skinned Latinos, other Latinos, and members of other minority groups?”
Justice Alito continued, “We have said our ‘Constitution is color-blind’…And we have rejected the proposition that the Constitution permits an individual to be treated differently based on a ‘perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike.”
Justice Alito concluded that in this case, the differential treatment in this case worked in Carter’s favor but noted that in other cases it will work against the person.
Bottom-Line
This case does not create binding precedent in any other Circuit, but the decision stands in those jurisdictions falling under the United States Court of Appeals for the D.C. Circuit.
That said, law enforcement can expect to see an argument for this type of analysis to be made in future cases.
