Petitions of the week

One police officer opens a car door, and another looks inside. Did they search without a warrant?

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

A police officer who opens a car door and looks inside, without permission, probable cause, or a search warrant, violates the Fourth Amendment’s ban on “unreasonable searches.” This week, we highlight cert petitions that ask the court to consider, among other things, whether two officers likewise commit a search when one opens the door to a car and another looks inside.

Jackie Jackson, a Black man, was driving in Cincinnati, Ohio, when he was pulled over by police. The officers told Jackson he had been stopped because his windows were too dark and asked him to produce his driver’s license and insurance. As six more officers arrived on the scene, Jackson questioned their motive. (None of the officers, it turned out, had a window tint meter, the tool used to measure legal levels of window tint.)

Jackson turned off the car, leaving the key in the ignition, and took out his phone to pull up his proof of insurance. When he began filming the encounter, an officer opened the door and ordered Jackson to exit the car, then leaned in to remove the key from the ignition. The officer left the car door open.

While Jackson stood at the back of the car, a second officer walked up to the driver’s side of the car and peered in the open door using a flashlight. He saw a marijuana cigarette on the floor under the driver’s seat. The officers then searched the rest of Jackson’s car, finding a pistol in a basket of laundry in the back seat. Jackson was charged with three counts related to unlawful possession of a handgun.

Jackson sought to suppress the discovery of the pistol. After the police found the marijuana cigarette, Jackson conceded, they had probable cause to search the rest of his vehicle. However, he argued that the first police officer violated the Fourth Amendment when he ordered him to get out of the car, and the pistol was only discovered as a result of that constitutional violation. After the trial court denied Jackson’s motion to suppress, Jackson pleaded “no contest” to the charges against him.

By a divided vote, the Ohio Supreme Court affirmed. It ruled that because neither officer conducted an illegal search of Jackson’s car, the pistol could be admitted as evidence. The first officer, who ordered Jackson to step out of the car and opened the car door, did not conduct a search because his only intent was to “secure” Jackson and the vehicle – not to obtain information, the court explained. And although the second officer who later looked inside the car was seeking to obtain information, the court reasoned, he too did not conduct a search when he saw the cigarette because the door was already open and the cigarette lay in plain view.

In Jackson v. Ohio, Jackson asks the justices to grant review and reverse the Ohio Supreme Court’s decision. Until the state supreme court’s decision, Jackson contends, “no American court had ever held that the police can shield their searches from constitutional scrutiny by dividing their work between two officers.” The state court’s decision also created a conflict among the lower courts, he told the justices, which until now had followed a uniform “bright-line” rule: A search occurs whenever a police officer opens the door and the police find contraband inside, regardless of the officer’s motives in opening the door.

A list of this week’s featured petitions is below:

Hester v. Gentry
22-835
Issue: Whether the 14th Amendment’s due process clause protects a fundamental right to pretrial liberty that prevents states from depriving a presumptively innocent person of physical liberty pending a criminal trial unless a court finds that the deprivation is necessary to protect public safety and/or reasonably assure the person’s appearance at future court proceedings.

National Rifle Association of America v. Vullo
22-842
Issue: Whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy.

Dermody v. Massachusetts Executive Office of Health and Human Services
22-957
Issue: Whether an annuity that satisfies the condition in 42 U.S.C. § 1396p(c)(2)(B)(i) determining the Medicaid eligibility of a married institutionalized person must name the state as the first remainder beneficiary in order to avoid Section 1396p(c)(1)’s transfer penalty.

Doe v. Securities and Exchange Commission
22-963
Issues: (1) Whether the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010’s whistleblower award program excludes whistleblowers whose criminal conduct is only tangentially connected to a Securities and Exchange Commission enforcement action (and related actions) and who have pleaded guilty but have not been sentenced; and (2) whether the SEC’s heavily redacted Orders Determining Whistleblower Award Claims and sealed Whistleblower Award Proceedings are entitled to Chevron, Skidmore, or some other level of deference.

Jackson v. Ohio
22-978
Issue: Whether, when one police officer opens the door of a car and another officer looks through the open door for contraband, the police have conducted a “search” of the car within the meaning of the Fourth Amendment.