Read the Policing Project’s Amicus Brief in Sievers v. Neb. Re: “Information-Seeking” Stops
Recently, the Policing Project submitted an amicus brief in support of certiorari asking the United States Supreme Court to overturn a decision of the Nebraska Supreme Court that permitted a police stop of a vehicle, in the absence of reasonable suspicion, on the grounds that the stop was merely information-seeking. We filed because we felt the decision confounded and undermined basic principles of the Fourth Amendment, a problem impacting other state and federal courts as well.
The brief drew in partners from across the political spectrum, including the Cato Institute, the American Civil Liberties Union, the ACLU of Nebraska and the NAACP Legal Defense & Educational Fund. Paul D. Clement and Erin E. Murphy of Kirkland & Ellis LLP served as counsel and drafted the brief. We thank all our partners for their support and their stellar efforts on this work.
Our Understanding of the Fourth Amendment
As we explain in our brief, when it comes to searches, there are two broad categories governed by the Fourth Amendment: traditional suspicion-based searches, such as when the police target a particular individual based on a belief of criminal wrongdoing; and suspicion-less searches, such as searches at airports or government buildings where everyone is searched even if there is no reason to believe any of the individuals intend to commit a crime. The Fourth Amendment’s protections against arbitrary government action apply to both categories.
When it comes to suspicion-based searches, the Fourth Amendment’s protections against arbitrariness are clear and familiar: the police must have probable cause or reasonable suspicion before they may search or seize.
For suspicion-less searches, we believe the Fourth Amendment requires very different safeguards against arbitrariness: The police must subject all people (or some truly randomized subset of them) to the same treatment. This is intended as a check on police discretion – one that requires police to have more justification for their actions than a hunch or a bias.
Our Amicus Brief in Support of Petitioner argues that the Nebraska Supreme Court conflated these two categories of searches in the case of Sievers v. Nebraska.
The facts in Sievers were straightforward: police observed no traffic violation or other legal violation before stopping Colton Sievers, but nonetheless wanted to stop and question him because they observed him visiting a residence they suspected contained stolen goods and illicit narcotics. Clearly, this stop was suspicion-based. Officers wanted to stop Sievers in particular. In our view, therefore, the Fourth Amendment requires that the state prove that it had the level of individualized suspicion necessary to stop Sievers and search his vehicle.
But rather than conduct this inquiry, the Nebraska Supreme Court upheld the stop after borrowing principles that apply to suspicion-less searches. Specifically, the Nebraska Supreme Court held that this individualized, targeted stop was justified, even if the police lacked the constitutionally required level of individualized suspicion, on the theory that police may stop essentially anyone so long as they purport to be “seeking information.”
We, and our fellow Amici, believe this proposition is antithetical to core Fourth Amendment principles.
Why we filed
The Nebraska Supreme Court’s error is far from academic. Relieving the state of its burden to prove that it had sufficient cause to stop a person simply because the state sought information would restore the kind of search-and-seizure regime the Fourth Amendment was designed to prevent. The fact that the government seeks information from the people describes the problem that the Fourth Amendment is meant to address, not the basis for an exception to its protections.
Unfortunately, the error committed by the Nebraska Supreme Court, while glaring, is not an isolated mistake. Federal and state courts around the country are getting it wrong in similar cases and conflating suspicion-based and suspicion-based searches, thereby undermining the Fourth Amendment’s demands.
Although the Supreme Court ultimately denied cert, we will continue to keep an eye out to ensure that the “lessons of history” that gave rise to the Fourth Amendment are not forgotten, and that the police are not permitted to conduct the kind of searches and seizures the Constitution sought to eliminate.