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No. 06-1710

In the Supreme Court of the United States

CURTIS ELLISON, PETITIONER
v.
UNITED STATES OF AMERICA




ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT




BRIEF FOR THE UNITED STATES IN OPPOSITION



PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
WILLIAM C. BROWN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217



QUESTIONS PRESENTED

1. Whether the court of appeals erred in upholding the police stop of petitioner's automobile on a ground not specifically raised in the district court-that an officer's check of petitioner's license plate number in a computer database revealed that petitioner had an out standing arrest warrant and thereby provided probable cause for the subsequent stop.
2. Whether the court of appeals erred in rejecting petitioner's racial profiling claim on the ground that there was no evidence that petitioner had been subjec ted to racial profiling.




In the Supreme Court of the United States





No. 06-1710
CURTIS ELLISON, PETITIONER
v.
UNITED STATES OF AMERICA




ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT




BRIEF FOR THE UNITED STATES IN OPPOSITION




OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 32-63) is reported at 462 F.3d 557. The memorandum opinion and order of the district court (Pet. App. 67-76) is unre ported.

JURISDICTION
The judgment of the court of appeals was entered on September 5, 2006. A petition for rehearing was denied on January 17, 2007 (Pet. App. 65). The petition for a writ of certiorari was filed on April 17, 2007. The juris diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

A grand jury in the Eastern District of Michigan returned an indictment charging petitioner with pos sessing firearms after having been convicted of a felony, in violation of 18 U.S.C. 922(g)(1). Pet. App. 34, 67. Be fore trial, the district court granted petitioner's motion to suppress the relevant firearms. Id. at 67-76. On the government's interlocutory appeal, the court of appeals reversed. Id. at 32-63.

1. While on routine patrol, Officer Mark Keeley of the Farmington Hills (Michigan) Police Department pulled into a two-lane service drive adjacent to a shop ping center. Officer Keeley testified that a white van, with a male driver inside, was idling in the lane closest to the stores in an area marked with "Fire Lane" and "No Parking" signs. Officer Keeley parked to observe the van and entered the vehicle's license plate number into his patrol car's Law Enforcement Information Net work (LEIN) computer. The LEIN search revealed that the vehicle was registered to petitioner and that petitioner had an outstanding felony warrant. Officer Keeley radioed for back-up and continued observing the van. After two minutes, another male got into the van, and the van drove away. Officer Keeley followed the van until his back-up was nearby, then activated his lights and stopped the van. Pet. App. 33.

Officer Keeley advised the driver that he was being stopped for parking in a fire lane and asked for his li cense, registration, and proof of insurance. The passen ger then stated that he was the registered owner of the vehicle. After verifying petitioner's identity, the officer arrested him on the outstanding warrant and conducted a safety pat-down, during which he found two handguns on petitioner, a Smith and Wesson 9mm semi-automatic and a Taurus .40 caliber semi-automatic. Pet. App. 33- 34, 67.

2. Petitioner was indicted on a charge of being a felon in possession of firearms, in violation of 18 U.S.C. 922(g). Pet. App. 67. Petitioner moved to suppress the seized firearms as the fruit of an illegal search. After an evidentiary hearing, the district court found that the van was not parked illegally and that the officer therefore lacked probable cause to stop petitioner's vehicle. Id. at 73. The court further concluded that the officer's LEIN check was not appropriate, in part because no traffic violation had occurred. Id. at 74. Accordingly, the court suppressed the firearms. Id. at 75.

3. On interlocutory appeal, the government did not challenge the district court's finding that the van was parked legally. Rather, the government argued that because petitioner had no reasonable expectation of pri vacy in the information contained on his license plate, no probable cause was required for Officer Keeley to run the LEIN check, and the results of the LEIN check pro vided probable cause for the subsequent stop of peti tioner's vehicle. The court of appeals reversed on that basis. Pet App. 32-63.

a. As a preliminary matter, the court of appeals re jected petitioner's contention that it should not consider the expectation-of-privacy issue because the government had not specifically raised it in the district court. Pet. App. 34-36. The court explained that, although it "gen erally will not consider an argument not raised in the district court and presented for the first time on ap peal," that general rule does not apply in "exceptional cases" or where failing to consider the argument would result in a "plain miscarriage of justice." Id. at 36 (quot ing Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir.), cert. denied, 488 U.S. 880 (1988)). The court of appeals determined that this case falls within those exceptions because the question is purely legal, the parties fully briefed it, no further fac tual development is required, and permitting the district court's erroneous holding to stand would result in a mis carriage of justice. Ibid. In doing so, the court of ap peals noted that, by holding the LEIN search invalid, the district court had necessarily implied that petitioner had a reasonable expectation of privacy in the informa tion contained on his license plate. Id. at 35-36.

Turning to the merits, the court of appeals concluded that an individual does not have a reasonable expecta tion of privacy in his license plate number. Pet. App. 37- 38. The court relied on the settled principles that "[w]hat a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection," id. at 37 (quoting Katz v. United States, 389 U.S. 347, 351 (1967)), and "objects falling in the plain view of an offi cer who has a right to be in the position to have that view are subject to seizure," ibid. (quoting Harris v. United States, 390 U.S. 234, 236 (1968)).

The court of appeals further observed that, in New York v. Class, 475 U.S. 106 (1986), this Court held that an automobile's Vehicle Identification Number, located inside the passenger compartment but visible from out side the car, does not receive Fourth Amendment pro tection because the "exterior of a car, of course, is thrust into the public eye." Pet. App. 37-38 (quoting Class, 475 U.S. at 114). "Logically," the court of appeals explained, "this reasoning extends to a legally-required identifier located outside the vehicle," especially considering that "[t]he very purpose of a license plate number, like that of a Vehicle Identification Number, is to provide identi fying information to law enforcement officials and oth ers." Id. at 38.

The court of appeals further held that petitioner had no expectation of privacy in an officer's entry of his li cense plate number into a law enforcement database because he "had no privacy interest in the information retrieved by" the officer. Pet. App. 38. The court found no support for the contention that "using a license plate number-in which there is no expectation of privacy-to retrieve other non-private information somehow creates a 'search' for purposes of the Fourth Amendment." Id. at 38-39. The court further observed that every court that has addressed this issue has agreed that a motorist has no relevant expectation of privacy. Id. at 40-41 (cit ing, e.g., Olabisiomotosho v. City of Houston, 185 F.3d 521, 529 (5th Cir. 1999); United States v. Matthews, 615 F.2d 1279, 1285 (10th Cir. 1980)).

In a footnote, the court of appeals observed that peti tioner "makes a brief argument on appeal that racial profiling occurred in this case." Pet. App. 42 n.4. The court rejected that contention because "the record is completely devoid of any evidence that the officer ran the LEIN check because the driver was black." Ibid.

b. Judge Moore dissented. Pet. App. 42-63. She asserted that the court of appeals should not have ad dressed the expectation-of-privacy issue because the government had not made that argument in the district court and the record did not address various factual questions that she considered relevant to the Fourth Amendment analysis, such as "what type of information is available on the [LEIN] system" and "how this infor mation is obtained." Id. at 44-45. Judge Moore also questioned whether it would be constitutional, in the absence of reasonable suspicion, to run a license plate number through the computerized records maintained in the LEIN system, but concluded that the record was inadequate to permit resolution of that issue. Id. at 47- 55.

Finally, Judge Moore asserted that petitioner had produced sufficient evidence of racial profiling to war rant a remand to the district court for an evidentiary hearing on the issue. Pet. App. 58-63. She relied pri marily on the district court's rejection of the officer's proffered reason for the stop. Id. at 60-62.

ARGUMENT

Petitioner argues (Pet. 20-30) that the court of ap peals erred in reversing the district court's suppression ruling because: (i) the court of appeals considered a ground not raised in the district court; (ii) petitioner had a relevant expectation of privacy; and (iii) petitioner believes he was subject to racial profiling. The court of appeals' interlocutory decision does not warrant further review.

1. As an initial matter, this Court typically awaits final judgment before exercising certiorari jurisdiction. See Brotherhood of Locomotive Firemen v. Bangor & Aroostook R.R., 389 U.S. 327, 328 (1967) (per curiam); American Constr. Co. v. Jacksonville, Tampa & Key W. Ry., 148 U.S. 372, 384 (1893); Virginia Military Inst. v. United States, 508 U.S. 946, 946 (1993) (opinion of Scalia, J., respecting denial of petition for writ of certio rari). Lack of finality "alone [is] sufficient ground for the denial of the application." Hamilton-Brown Shoe Co. v. Wolf Bros., 240 U.S. 251, 258 (1916).

In particular, this Court routinely denies petitions by criminal defendants challenging interlocutory determi nations that may be reviewed at the end of criminal pro ceedings if a defendant's conviction and sentence ulti mately are affirmed on appeal. See Robert L. Stern et al., Supreme Court Practice § 4.18, at 258 n.59 (8th ed. 2002). That approach promotes judicial efficiency be cause the issues raised in the petition may be rendered moot by further proceedings on remand. If the suppres sion issue remains live following further proceedings on remand, petitioner could raise that issue, along with any other issues, in a single petition following the entry of final judgment. See Hamilton-Brown Shoe Co., 240 U.S. at 258.

2. a. Petitioner argues (Pet. 20-23) that the court of appeals should not have considered whether he had a reasonable expectation of privacy because the govern ment did not raise that specific argument in the district court. Petitioner does not argue that the court of ap peals adopted an incorrect legal standard concerning the consideration of arguments not raised below, or that the courts of appeals are divided on that question. Instead, like Judge Moore's dissent, petitioner argues that the court of appeals misapplied its legal standard to the facts of this case. See Pet. 21-23; Pet. App. 44-47. That fact-bound contention does not warrant further review. See Sup. Ct. R. 10. To the contrary, this Court has ex plained that there is no need for uniformity among the circuits in their development or application of rules con cerning the consideration of issues not raised in a timely manner. Ortega-Rodriguez v. United States, 507 U.S. 234, 251 n.24 (1993); see Singleton v. Wulff, 428 U.S. 106, 121 (1976) ("The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of ap peals.").

It is well established that an appellate court may, as a matter of discretion, entertain a legal argument by the appealing party, not advanced below, when the issue is one of law and the opposing party will suffer no preju dice as a result of the failure to raise the issue in the trial court. See, e.g., Huber v. Taylor, 469 F.3d 67, 74-75 (3d Cir. 2006); United States v. Echeverria-Escobar, 270 F.3d 1265, 1268 (9th Cir. 2001), cert. denied, 535 U.S. 1069 (2002). In accord with that principle, the Sixth Cir cuit has determined that it will consider arguments not raised in the district court in "exceptional cases" or where failing to consider the argument would result in a "plain miscarriage of justice." Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir.), cert. denied, 488 U.S. 880 (1988) (citation omitted).
The court of appeals properly exercised its discretion to address the government's argument. The court noted that the expectation-of-privacy issue is a purely legal one that the parties had briefed with sufficient clarity and completeness to ensure a proper resolution. Pet. App. 36. Moreover, the district court had held that, un der the Fourth Amendment, officers may run license plate numbers through the LEIN system only in limited circumstances, such as when an officer had already stopped a vehicle, had information that preceded the LEIN check, or had observed a traffic violation. Id. at 74. As the court of appeals noted, the expectation-of- privacy issue was logically antecedent to that holding because "the district court could only find that the LEIN search violated the Fourth Amendment if it first concluded that [petitioner] had a 'constitutionally pro tected reasonable expectation of privacy' in his license plate number." Id. at 36.

While Judge Moore argued in dissent that factual details abut the LEIN database were necessary to the disposition of the expectation-of-privacy issue, see Pet. App. 45, the court of appeals correctly explained that those questions "are not relevant to the question of whether the entry of petitioner's license plate into the LEIN system constituted a 'search' under the Fourth Amendment," id. at 36-37. Indeed, as discussed below, "[t]he dissent fails to state how using a license plate number-in which there is no expectation of privacy-to retrieve other non-private information somehow creates a 'search' for the purposes of the Fourth Amendment." Id. at 38-39. In any event, the court of appeals' discre tionary decision to consider the expectation-of-privacy issue does not warrant further review.

b. On the merits, the court of appeals correctly held that petitioner had no reasonable expectation of privacy in his automobile license plate number, which was dis played in plain view outside his automobile. Pet. App. 37-41. Like the dissent, petitioner does not challenge that holding. See Pet. 28; Pet. App. 48. Nor could he: "What a person knowingly exposes to the public * * * is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351 (1967).
Instead, petitioner asserts (Pet. 28-30) that the offi cer's entry of his license plate number into the LEIN system constituted a "search" without probable cause. But petitioner provides no basis for that contention, and there is none. As the court of appeals explained, retriev ing publicly available information such as an arrest war rant is not, without more, a "search" of petitioner's per son, house, papers, or effects. See Pet. App. 38-39.

While petitioner relies (Pet. 28-30) on Delaware v. Prouse, 440 U.S. 648 (1979), that case held that an offi cer could not make a non-checkpoint stop of a vehicle for the purpose of checking a driver's license in the absence of reasonable suspicion or probable cause. Id. at 650. The Fourth Amendment was implicated in Prouse "be cause stopping an automobile and detaining its occu pants constitute a 'seizure' within the meaning" of that Amendment. Id. at 653. In contrast to stopping a car and detaining its occupants, however, running a LEIN search does not constitute a seizure. And the results of the LEIN search gave the officer probable cause for the subsequent stop of petitioner's vehicle. See Pet. App. 41.

As the court of appeals noted, its decision is sup ported by the decisions of all of the other courts to con sider the issue. See, e.g., United States v. Diaz-Castene da, No. 06-30047, 2007 WL 2044244, at *3 (9th Cir. July 18, 2007) (collecting cases). Petitioner incorrectly sug gests that the court of appeals' decision conflicts with decisions that found Fourth Amendment violations where a vehicle stop was based on an officer's mistaken belief that a traffic violation had occurred. Pet. 18 (cit ing, e.g., United States v. Twilley, 222 F.3d 1092 (9th Cir. 2002)). There is no conflict, however, because the court of appeals in this case did not uphold the stop based on the officer's belief that a traffic violation had occurred; instead, as discussed, it upheld the search on the alternative ground that the officer knew, from the LEIN search, that there was an outstanding warrant for petitioner's arrest. Pet. App. 41.

3. Finally, petitioner argues (Pet. 10-19, 24-28) that this Court should grant a writ of certiorari to explore broadly the issue of race profiling under the Equal Pro tection Clause. That issue is not presented in this case. The evidence at the suppression hearing indicated that Officer Keeley entered the license plate number into the LEIN system before he became aware that the driver was black. See Gov't Resp. to Pet. for Reh'g En Banc 7- 8. Thus, while the district court rejected the officer's testimony that the van was parked illegally, the court did not find that the LEIN check was racially motivated. And the court of appeals noted in a footnote that, al though petitioner's brief included a short Equal Protec tion Clause argument, "the record is completely devoid of any evidence that the officer ran the LEIN check be cause the driver was black." Pet. App. 42 n.14; see ibid. (emphasizing the "complete lack of evidence to support a racial profiling argument"). The court of appeals' foot note describing its understanding of the record in this case does not warrant further review.
CONCLUSION
The petition for a writ of certiorari should be denied.

Respectfully submitted.


PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
WILLIAM C. BROWN
Attorney



AUGUST 2007