Supreme Court of the United States

Transcription

1 Docket No In The Supreme Court of the United States OCTOBER TERM, 2012 Roy HINKLEY, v. Petitioner, UNITED STATES OF AMERICA, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT BRIEF FOR PETITIONER TEAM #15

2 QUESTIONS PRESENTED 1. Whether the Court of Appeals for the Thirteenth Circuit erroneously held that a police officer is permitted to search the home of a non-suspect with consent merely to enter but not search the residence, without probable cause or a warrant. 2. Whether the Court of Appeals for the Thirteenth Circuit correctly declined to subject Roy Hinkley to enhanced punishment because the possession of a short-barreled shotgun is not a predicate felony under the statutory language of the Armed Career Criminal Act. 2

3 TABLE OF CONTENTS QUESTIONS PRESENTED TABLE OF CONTENTS TABLE OF AUTHORITIES OPINIONS BELOW CONSTITUTIONAL PROVISIONS INVOLVED STATEMENT OF THE CASE Statement of the Facts Procedural History SUMMARY OF THE ARGUMENT ARGUMENT I. THE THIRTEENTH CIRCUIT MUST BE REVERSED BECAUSE A POLICE OFFICER CANNOT CONDUCT A SWEEP OF A RESIDENCE WHEN THE SCOPE OF THE SEARCH IS NOT REASONABLE AND NO PROBABLE CAUSE OR EXIGENT CIRCUMSTANCES EXIST A. Officer Sanford s Actions Were Not Reasonable Because No Probable Cause Existed and the Scope of His Search Was Not Properly Limited Officer Sanford s actions were unreasonable because there was no credible fear of danger Officer Sanford s protective sweep of Hinkley s home is not permitted under the Fourth Amendment because there was no probable cause The scope of the search was not properly limited and therefore violates the Fourth Amendment The evidence should be suppressed pursuant to application of the exclusionary rule B. Officer Sanford s Search Violated The Fourth Amendment Because It Was Conducted Without A Warrant Or Exigent Circumstances

4 1. The gravity of the underlying offense does not support a warrantless search of Hinkley s home The government cannot demonstrate a continuous pursuit of the suspect from the scene of the crime II. THE THIRTEENTH CIRCUIT CORRECTLY HELD THAT ROY HINKLEY S PRIOR CONVICTION OF POSSESSION OF AN UNREGISTERED SHORT-BARRELED SHOTGUN IS NOT A VIOLENT FELONY WITHIN THE STATUTORY LANGUAGE OF THE ARMED CAREER CRIMINAL ACT A. Under Begay And Its Progeny, The Residual Clause Must Be Interpreted Narrowly For Consistent Application When Categorizing A Crime As A Violent Felony Hinkley s conduct is not similar in kind to the purposeful, violent, and aggressive crimes listed in the ACCA Hinkley s crime is not a predicate felony because the mere possibility of force associated with possession does not pose the same level of risk as the explicit use of force B. The ACCA Residuary Clause Is Unconstitutionally Vague And Inconsistently Construed, And Therefore Hinkley Cannot Be Subject To Enhanced Punishment The government s reliance on commentary notes within the United States Sentencing Guidelines is misguided A common sense approach further complicates the reach of the residual clause CONCLUSION APPENDIX

5 TABLE OF AUTHORITIES CONSTITUTION U.S. CONST. amend. IV , 16 U.S. CONST. amend. XIV UNITED STATES SUPREME COURT CASES Beck v. Ohio, 379 U.S. 89 (1964) Begay v. United States, 553 U.S. 137 (2008) passim Boyd v. United States, 116 U.S. 616 (1886) Brinegar v. United States, 338 U.S. 160 (1949) Bringham City v. Stuart, 547 U.S. 398 (2006) Chambers v. United States, 555 U.S. 122 (2009) passim Chimel v. California, 395 U.S. 752 (1965) Derby v. United States, 131 S.Ct 2858 (2011) Elkins v. United States, 364 U.S. 206 (1960) Florida v. Jimeno, 500 U.S. 248 (1991) Groh v. Ramirez, 540 U.S. 551 (2004) Illinois v. Gates, 462 U.S. 213 (1983) , 25 James v. State of Louisiana, 382 U.S. 36 (1965) , 23 James v. United States, 550 U.S. 192 (2007) , 37 Kentucky v. King, 131 S.Ct (2011) Mapp v. Ohio, 367 U.S. 643 (1961) , 24, 26 Maryland v. Buie, 494 U.S. 325 (1990) passim 5

6 Michigan v. Long, 463 U.S (1983) Mincey v. Arizona, 437 U.S. 385 (1978) New York v. Class, 475 U.S. 106 (1986) , 21 Shepard v. United States, 544 U.S. 13 (2005) , 36, 37 Sykes v. United States, 131 S.Ct (2011) , 38 Taylor v. United States, 495 U.S. 575 (1990) , 32 Terry v. Ohio, 392 U.S. 1 (1968) passim United States v. Booker, 543 U.S. 200 (2005) , 36, 37 United States v. Calandra, 414 U.S. 338 (1974) , 25 United States v. Knights, 534 U.S. 112 (2001) United States v. Santana, 427 U.S 38 (1976) , 29 United States v. U.S. D. E.D. Mich., 407 U.S. 297 (1972) Warden, Md. Penitentiary v. Hayden, 397 U.S. 294 (1967) passim Weeks v. United States, 232 U.S. 383 (1914) , 25 Welsh v. Wisconsin, 466 U.S. 740 (1984) , 28 Wyoming v. Houghton, 526 U.S. 295 (1999) UNITED STATES CIRCUIT COURT CASES United States v. Amos, 501 F.3d 524 (6th Cir. 2007) United States v. Campbell, 581 F.2d 22 (2d Cir. 1978) United States v. Flores, 477 F.3d 431, 436 (6th Cir. 2007) United States v. Gould, 364 F.3d 578 (5th Cir. 2004) United States v. Haynie, 637 F.2d 227 (4th Cir. 1980) , 29 United States v. Hinkley, No (13th Cir. Aug. 1, 2012) passim 6

7 United States v. McGill, 618 F.3d 1273 (11th Cir. 2010) , 34, 36 United States v. Miller, 430 F.3d 93 (2d Cir. 2005) passim United States v. Torres-Castro, 470 F.3d 992 (10th Cir. 2006) , 24 United States v. Vincent, 575 F.3d 820 (8th Cir. 2009) , 35 UNITED STATES DISTRICT COURT CASES Hernandez v. State, 98 So. 3d 702 (Fla. Dist. Ct. App. 2012) STATE CASES Commonwealth of Pa. v. Williams, 483 Pa. 293 (1978) FEDERAL STATUTES 18 U.S.C. 922 (2012) U.S.C. 924 (2006) passim 26 U.S.C (2012) U.S.C (2012) U.S.C (2012) FED. R. CRIM. P. 11 (2012) United States Sentencing Commission, Guidelines Manuel 4B1.2 (2012) , 37 OTHER SOURCES 1 William E. Ringel, Searches and Seizures, Arrests and Confessions 10:9 (2d ed. 2013) Amy Baron-Evans, et al., Deconstructing the Career Offender Guideline, 2 CHARLOTTE L. REV. 39 (2010)

8 OPINIONS BELOW The opinion of the District Court for the District of North Greene is not reported. The opinion of the United States Court of Appeals for the Thirteenth Circuit is reproduced at United States v. Hinkley, No (13th Cir. Aug. 1, 2012). 8

9 CONSTITUTIONAL PROVISIONS INVOLVED The relevant provisions of the Fourth Amendment to the U.S. Constitution provide: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONST. amend. IV. The relevant provisions of the Fourteenth Amendment to the U.S. Constitution provide: No state shall make or enforce any law which shall... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. CONST. amend. XIV. 9

10 STATEMENT OF THE CASE Statement of the Facts When Roy Hinkley ( Hinkley ) was fourteen, he and his family moved from the town of South Greene to High Point County, North Greene. R. at 3. Hinkley had a difficult time adjusting to life at his high school in North Greene and fell in with the wrong crowd. Id. One day, after school, Hinkley s friends dared him to steal an item from a neighbor s home. Id. He gave into pressure, fearing bullying and harassment for the rest of his high school career. Id. After waiting until the neighbors left Hinkley went ahead and snuck into the empty house. Id. The North Greene Police Department arrived after a silent alarm was triggered, and found the young Hinkley with a signed baseball. Id. Hinkley was tried as a juvenile and convicted of firstdegree burglary. Id. As a warning to change his ways, Hinkley was sentenced to three years home confinement that he completed with no violations. Id. This incident was a critical turning point in Hinkley s life. Id. He earned a Bachelor degree in Construction Science and Business Administration and pursued a Master s degree. Id. As an undergraduate, Hinkley met his wife, and soon was expecting a child. Id. With a child on the way Hinkley set aside his graduate studies and began work in his family s construction business. Id. Five years later Hinkley was co-owner. Id. Soon after, following a tragic death in his family, Hinkley became the sole owner of the thriving business. Id. The business grew under Hinkley s leadership, but at the onset of the housing crisis in 2007 the company found themselves in financial straights. Id. at 3-4. Meanwhile, his daughter, and only child, was diagnosed with a debilitating stage of leukemia. Id. at 4. Hinkley fell three months behind on his family s health insurance bills, resulting in the policy s cancellation. Id. n.2. In January 2008, faced with impending crises from all sides and hoping to recover insurance 10

11 proceeds, Hinkley burned down his construction business. Id. The incident was recorded by security cameras and showed Hinkley searching the building, ensuring that no one was present that could be hurt by his actions. Id. n.4. Hinkley pleaded guilty to charges of arson, but the judge was understandably sympathetic to his plight and sentenced him to one year of probation in lieu of jail time so he could help raise his ill daughter. Id. Hinkley was forced to take a job as a real estate agent to pay for his daughter s medical bills and his own mounting bills and legal fees. Id. He made less money, but managed to stay financially solvent by moving the family to a lower-middle class area on the outskirts of town in order to save money on rent. Id. The two-bedroom apartment was in a neighborhood unfortunately notorious for its crime. Id. However, the neighborhood was known for having the best schools in the country, so much that local real estate agents were convinced that the area would soon be revitalized and that crime rates would fall. Id. n.5. Soon after moving in, four houses on Hinkley s street were burglarized, some at gunpoint leading Hinkley to fear for the safety of his wife and leukemia-stricken daughter. Id. at 4. Hinkley wished to purchase a gun to protect his family in this crime-ridden neighborhood, but because of his convicted felon status he was unable to do so legally. Id. With no other options, a friend purchased a short-barreled 12- gauge shotgun for Hinkley. Id. Hinkley s unnamed friend insisted that a short-barreled shotgun was better for home defense. Id. at 4 5. One night Hinkley heard a noise outside his bedroom. Id. at 5. Fearing for the safety of his family, Hinkley went outside with the gun and happened upon Police Officer Terrence Sanford ( Officer Sanford or the Officer ). Id. Officer Sanford was a former member of the Bureau Alcohol Tobacco and Firearms. Id. Officer Sanford asked whether the gun was registered pursuant to the National Firearms Act. Id. When he was informed that it was not, 11

12 Hinkley was arrested and charged with possession of an unregistered gun. Id. Meanwhile, Hinkley s daughter s health took a turn for the worse; her only hope for survival was a costly bone marrow transplant. Id. The judge was sympathetic of Hinkley s plight, so he offered him ten years probation and five years home monitoring. Id. With the ability to continue working and be with his ailing daughter, Hinkley pled guilty. Id. Two months later, Hinkley s neighbor was shot and killed during a home invasion. Id. Hinkley wanted to move his family out of the neighborhood, but could not afford it. Id. As a result, he concluded that a gun would be the only feasible means of protecting his family. Id. He purchased a.40 caliber semi-automatic handgun that he kept in a locked box in his bedroom. Id. On June 1, 2011, while his wife and daughter were visiting his mother-in-law, Hinkley went to a friend s property to familiarize himself with the gun. Id. Upon returning home, on a stormy night, Hinkley placed the firearm on the kitchen table intending to cleaning the gun after dinner. Id. Just as he sat down to eat, Officer Sanford knocked at his door. Id. Officer Sanford briefly explained that another burglary had taken place somewhere in the neighborhood and that local police were going door-to-door ensuring that the burglar was not hiding out in any home. Id. The information given to police matched the description of the burglar who recently killed Hinkley s neighbor. Id. Residents reported the suspect fleeing in the direction of Hinkley s home. Id. Officer Sanford asked if he could come inside because he did not want to conduct questioning in the torrential rain,. Id. at 5 6. Hinkley was surprised to see the officer at the door, and only allowed Officer Sanford to enter because of the weather. Id. at 6. At no time did Officer Sanford ever think that Hinkley was dangerous or the suspect. Id. Although he recognized Hinkley from his previous arrest, Officer Sanford walked into Hinkley s living room alone. Id. Officer Sanford was familiar with the floor plan of Hinkley s house as 12

13 every house in the neighborhood was constructed with the same layout. Id. Officer Sanford asked if he could look around to make sure the burglar had not broken in. Id. Hinkley refused and ensured Officer Sanford that he kept his back door locked, that he would have noticed if someone entered, and he had not seen or heard anything all night. Id. Despite Hinkley s expressed prohibition, Officer Sanford walked through the house searching for intruders. Id. He opened the closed kitchen door, and saw the handgun sitting on the kitchen table. Id. Hinkley was arrested for felony possession of a firearm pursuant to 18 U.S.C. 922(g)(1). Id. Procedural History The government opposed Hinkley s Motion to Suppress under the Fourth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment, and a suppression hearing was held on September 1, Id. On October 1, 2011 the United States District Court for the District of North Greene denied Hinkley s Motion to Suppress. Id. On October 15, 2011, Hinkley entered a conditional guilty plea to a felon in in possession of a firearm, but reserved the right to challenge the district court s denial of his motion to suppress. Id. (citing FED. R. CRIM. P. 11(a)(2)). On November 1, 2011, the district court held a sentencing hearing, where Hinkley claimed the prior conviction for possession of a short-barreled shotgun was not a predicate violent felony under the Armed Career Criminal Act ( ACCA ). Id. The district court determined Hinkley was a career criminal and he was sentenced under the ACCA s mandatory minimum of fifteen years in prison. Id. Hinkley filed a timely Notice of Appeal challenging the district court s denial of the Motion to Suppress. Id. He also claimed the ACCA was not applicable because he did not have the requisite three predicate felony convictions, as his prior possession of a short-barreled shotgun did not qualify as a predicate felony under the ACCA. Id. 13

14 SUMMARY OF THE ARGUMENT This Court must reverse the decision of the Thirteenth Circuit and dismiss Hinkley s conviction because Officer Sanford violated Hinkley s Fourth Amendment rights. Under the Fourth Amendment, an individual s right to be free from unreasonable search and seizure is protected by requiring exacting justification for any intrusion upon an individual s protected personal privacy. Officer Sanford was not justified in conducting the unwarranted sweep of Hinkley s private residence because the scope of the search was not reasonable and no probable cause or exigent circumstances were present. An officer may only conduct a protective sweep pursuant to an objectionably reasonable fear of danger and only if the sweep s scope is properly limited both of which were absent in this case. The search was unreasonable because there was no credible fear of danger when Officer Sanford was inside Hinkley s home. Officer Sanford was assured that the home was locked and that the fleeing burglar was not inside. Moreover, the record is clear that Officer Sanford did not think fear Hinkley was the burglar. With no warrant or exigent circumstances existing, Officer Sanford s unconstitutional actions cannot be justified. Officer Sanford entered Hinkley s home not in hot pursuit of a fleeing criminal but rather to question him following a burglary in the vicinity. Although he was denied permission to search Hinkley s home, Officer Sanford continued to open closed doors and violate Hinkley s privacy. Officer Sanford lacked the required probable cause to enter Hinkley s home and this Court must suppress any item found in the course of the illegal search. The Constitution provides defendants suppression remedies when officers violate the Fourth Amendment as both a deterrent for future unlawful actions and to uphold the integrity of the judicial system. Court precedents ensure stringent protection of these Constitutional rights. This Court must remedy the 14

15 violation of Hinkley s Fourth Amendment right by implementing the exclusionary rule to suppress the evidence that was collected by Officer Sanford s unwarranted search and seizure. If this Court upholds Officer Sanford s illegal search and seizure, then this Court must affirm the Thirteenth Circuit s decision and find that Hinkley is as an ordinary offender under 18 U.S.C. 924(a)(2) (2006), and fine and/or sentence him to no more than ten years. Hinkley did not have the requisite three predicate felonies under the ACCA to be mandated to an enhanced sentence. The ACCA s residual clause has been erroneously extended to crimes that are not found within the language of the statute. Hinkley s possession of an unregistered short-barreled shotgun does not qualify as a predicate violent felony according to the statutory language of the ACCA. The ACCA is only applicable, if and when an individual has been convicted of three violent felonies. Among its four examples, Congress only explicitly listed the use of explosives, clearly omitting the possession of any kind of firearms. Hinkley cannot be subject to enhanced punishment when Congress only categorizes the use but not the possession of firearms. To subject any individual to a mandatory fifteen-year sentence pursuant to an unconstitutionally vague statute is against public policy, leaving the individual without notice of this extreme enhancement. The ACCA s residual clause must be interpreted narrowly to avoid ad hoc application of this poorly drafted and incomprehensible statute. Hinkley cannot be subjected to an enhanced, fifteen-year sentence when his conduct is not addressed. 15

16 ARGUMENT I. THE THIRTEENTH CIRCUIT MUST BE REVERSED BECAUSE A POLICE OFFICER CANNOT CONDUCT A SWEEP OF A RESIDENCE WHEN THE SCOPE OF THE SEARCH IS NOT REASONABLE AND NO PROBABLE CAUSE OR EXIGENT CIRCUMSTANCES EXIST. The Fourth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated. U.S. CONST. amend. IV. This Court set the standard in Terry v. Ohio for what constitutes an unreasonable search under the Fourth Amendment. The Court created a balancing test that looked at the nature and extent of government interest versus the nature and quality of the intrusion on individual rights. Terry v. Ohio, 392 U.S. 1, (1968). Officer Sanford unreasonably conducted a warrantless search of Hinkley s home without probable cause, thereby violating Hinkley s constitutional rights. Accordingly, the Court should affirm the decision of the Court of Appeals for the Thirteenth Circuit because (1) a warrantless search of a premises must be reasonable, (2) a protective sweep of a home must be properly limited, and (3) such a search may only be conducted in exigent circumstances when probable cause exists. Maryland v. Buie, 494 U.S. 325 (1990); United States v. Miller, 430 F.3d 93, 100 (2d Cir. 2005); See Mincey v. Arizona, 437 U.S. 385, (1978). Officer Sanford violated the Fourth Amendment of the Constitution because he conducted an unreasonable and warrantless search, without probable cause, absent exigent circumstances. A. Officer Sanford s Actions Were Not Reasonable Because No Probable Cause Existed and the Scope of His Search Was Not Properly Limited. Hinkley s Fourth Amendment right to be secure in his house and against unreasonable 16

17 searches and seizures was violated when Officer Sanford conducted a warrantless search of Hinkley s home. A warrantless search of a home is presumptively unreasonable. See Groh v. Ramirez, 540 U.S. 551, 559 (2004). However, that presumption is rebuttable pursuant to the Fourth Amendment reasonableness test: The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined by assessing... the degree to which it intrudes upon an individual's privacy and... the degree to which it is needed for the promotion of legitimate governmental interests. United States v. Knights, 534 U.S. 112, (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). Under the Fourth Amendment, when the balance of governmental and private interests renders reasonable suspicion to be constitutionally sufficient for a protective sweep, a warrant is unnecessary. Knights, 534 U.S. at 113. In applying the reasonableness balancing test, an officer in a home under lawful process may conduct such a sweep when the officer possesses articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the... scene. Miller, 430 F.3d at 98 (quoting Buie, 494 U.S. at 334). Moreover, such a protective sweep is nevertheless not a full search of the premises... [t]he sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger. Buie, 494 U.S. at 335. Pursuant to the reasonableness test, Officer Sanford s protective sweep was unreasonable because the articulable facts indicate that he was not in danger, there was no probable cause and the scope of the sweep was not properly limited. 1. Officer Sanford s actions were unreasonable because there was no credible fear of danger. To ensure a protective sweep is reasonable, it must be limited for the purpose of 17

18 protection. Buie s protective sweep exception, permitting warrantless searches only when necessary to ensure officers safety, was constructed on the foundational reasoning of Terry v. Ohio and Michigan v. Long. See Miller, 430 F.3d at 98; see also Terry, 392 U.S at. 1; Michigan v. Long, 463 U.S (1983). At the core of Terry, Long and Buie is the common understanding that the Fourth Amendment's reasonableness requirement is sufficiently flexible to allow officers who have an objectively credible fear of danger to take basic precautions to protect themselves... [t]he Court's paramount concern in Buie was not why the officers were present in the home, but rather, why the officers might fear for their safety. Miller, 430 F.3d at 99 (emphasis added). It is imperative that the facts be judged against an objective standard. Terry, 392 U.S. at 21. Good faith on the part of the... officer is not enough to justify an officers intrusion on an individual s rights, if subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be secure in their persons, houses, papers and effects, only [at] the discretion of the police. Id. (quoting Beck v. Ohio, 379 U.S. 89, 97 (1964)). An officer has acted objectively reasonable when the nature and extent of the government interest is balanced with the nature and quality of the intrusion on individual rights. Id. at However, if an officer s safety is less directly served by the detention, something more than objectively justifiable suspicion is necessary to justify the intrusion, if the balance is to tip in favor of the legality of the governmental intrusion. New York v. Class, 475 U.S. 106, 117 (1986). The Fourth Amendment is directed at preventing the chief evil of physical entry into a private individual s home. Miller, 430 F.3d at 99 (citing United States v. U.S. D. E.D. Mich., 407 U.S. 297, 313 (1972)). The Fourth Amendment is intended to protect the sanctities of a 18

19 man's home and the privacies of life. Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 301 (1967). The sanctity and privacy of the dwelling has consistently been protected and afforded the most stringent Fourth Amendment protection. See Miller, 430 F.3d at 93; Chimel v. California, 395 U.S. 752 (1965). It is not just the searching of property that constitutes the offense but it is the invasion of one s indefeasible right of personal security, personal liberty and private property. Mapp v. Ohio, 367 U.S. 643, 647 (1961) (quoting Boyd v. United States, 116 U.S. 616, 635 (1886)). The government s interest in crime prevention did not justify the physical intrusion upon Hinkley s private home, since the crime had already occurred. In Terry, the officer investigated suspicious behavior, and then conducted an unwarranted search of an individual, which prevented a crime. Terry, 392 U.S. at 23. In contrast, Officer Sanford was investigating a burglary in the neighborhood by questioning neighbors and was not in hot pursuit of the fleeing criminal. R. at 5. The Officer did not suspect Hinkley for the burglary, and Hinkley s arrest was completely unrelated to apprehending the burglar. Officer Sanford only entered Hinkley s home because of the heavy rain. Id. at 6. He wanted to look around the house but Hinkley denied the request and assured him that the fleeing criminal had not been seen. Id. Officer Sanford purposely ignored Hinkley and persisted on violating Hinkley s privacy and conducting the unwarranted search. Id. Thus, the extent of the intrusion upon Hinkley s individual rights outweighs the government s interest in crime prevention. In addition to the government interest in crime prevention, the government has an interest in ensuring the safety of its police officers. In Maryland v. Buie, two men committed an armed robbery of a pizzeria. Buie, 494 U.S. at 328. That same day, the county police received an arrest warrant for the suspects and placed his house under surveillance. Id. Upon confirmation 19

20 that the suspect was home, several officers entered the suspect s home and cornered him. Id. Once the suspect was confined, the officers conducted a protective sweep of the basement to see if someone else was down there. Id. The Court determined that this protective sweep was reasonably justified because a serious and demonstrable potentiality for danger existed. Id. at 336. In this case, Officer Sanford did not fear for his safety because no serious and demonstrable potential for danger existed. Id. The police were not in hot pursuit of a criminal but instead were going door to door to ensure the burglar was not hiding in any of the homes. R. at 5. Extreme weather conditions compelled Hinkley to consent to Sanford entering; Sanford then walked into Hinkley s house, alone. Id. at 5 6. In determining whether the officer acted reasonably, due weight is given... to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Terry, 392 U.S. at 27. As an experienced officer on the police force, entering a house alone and without backup indicates that Officer Sanford did not believe a potential for danger existed. The record explicitly states that he did not fear Hinkley nor believe he was the suspect. R. at 6. Therefore, Officer Sanford s actions and the facts on the record demonstrate that there was no danger. Buie recognized that when officers are inside a home ordinarily an enclosed, unfamiliar space they are particularly vulnerable to surprise attacks. Miller, 430 F.3d at 98 (citing Buie, 494 U.S. at 333). In Buie, an officer reasonably conducted a protective sweep of an enclosed basement searching for a second individual to ensure the safety of himself and the other officers present. Buie, 494 U.S. at 325. In contrast to Buie, Officer Sanford was not in an unfamiliar space. The Officer entered the home with specific knowledge of the floor plan and the location of the back doors. R. at 6. Hinkley explicitly told him that the back doors were 20

21 locked and nothing out of the ordinary occurred that night. Id. Therefore, Officer Sanford s knowledge of the home and the facts of the situation eliminated his vulnerability to surprise attacks or potential for danger. 2. Officer Sanford s protective sweep of Hinkley s home is not permitted under the Fourth Amendment because there was no probable cause. In addition to analyzing the reasonableness of the protective sweep, this Court must determine whether an officer has acted with probable cause. Probable cause deals with probabilities... that are the factual and practical considerations of everyday life on which reasonable and prudent men, not [how] legal technicians, act. Illinois v. Gates, 462 U.S. 213, 241 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). Officer Sanford did not have probable cause to conduct the protective sweep according to the articulable facts on the record. In New York v. Class, the officer s probable cause for a protective sweep stemmed from the officer s direct observation of an individual violating the law. Class, 475 U.S. at 118. While in Buie, the officer s probable cause for the sweep stemmed from a demonstrable fear of danger of searching for a criminal at large in a basement. Buie, 494 U.S. at 336. In contrast to both of these scenarios, Officer Sanford did not directly witness a violation of law or feel threatened. R. at 6. The protective sweep was merely in response to a remote existential threat. The record states that Hinkley was home alone when Officer Sanford entered, and requested to search the rest of the house. Id. Hinkley refused; he kept his home locked and that he had not seen anything out of the ordinary that night. Id. Despite Hinkley s refusal, Officer Sanford proceeded to search the house, and entered through the closed kitchen door. Id. Nothing articulated in the facts suggests that there were any immediate interest[s] affecting the 21

22 lives of the officer or a violation of the law. Buie, 494 U.S. at 325 (emphasis added). Here, unlike in Buie, the Officer made no effort to determine whether the suspect was in the house. R. at 6. The record is silent as to whether Officer Sanford conducted any investigation outside the premises before reaching the conclusion that the suspect was in Hinkley s kitchen. Furthermore, in Buie, the officers were searching for certain suspects when they conducted their protective sweeps. Buie, 494 U.S. at 325. However, here, Hinkley has become a victim of poor police conduct because Officer Sanford s purpose for conducting the unwarranted sweep of Hinkley s home was to search for a third party burglar. R. at 6. Therefore, Officer Sanford took unreasonable action without probable cause and violated Hinkley s Fourth Amendment right to against unreasonable searches. 3. The scope of the search was not properly limited and therefore violates the Fourth Amendment. Even assuming arguendo that there was probable cause and the sweep was reasonable, the scope of the sweep was not properly limited. This Court requires that a properly limited protective sweep extend only to cursory inspection of those spaces where a person may be found and last no longer than is necessary to dispel the reasonable suspicion of danger. Buie 494 U.S. at The scope of a search must be incident to the arrest of a suspect. See James v. State of Louisiana, 382 U.S. 36 (1965). Officer Sanford s actions extended beyond a cursory inspection, were not incident to the arrest, and continued after reasonable suspicion of danger was dispelled. This Court defined entering a suspect s home incident to arrest in James v. State of Louisiana as a distance within two blocks away from the home. James, 382 U.S. at 37. Even if this were incident to arrest, an even more stringent standard must be applied because Hinkley s arrest was unrelated to the burglary suspect Officer Sanford was searching for, and the home was 22

23 not that of the suspect. R. at 5 6. The question must be whether the sweep of the premises beyond the living room and into a closed-off kitchen violates the Fourth Amendment. The Fourth Amendment requires a test of objective reasonableness, what a typical reasonable person would have understood concerning the scope of the search. Florida v. Jimeno, 500 U.S. 248, 251 (1991). This Court and others have found scope does not include permission to search the entire building in which the arrest[] occurs, or to rummage through locked drawers and closets, or to search at another time or place. Hayden, 387 U.S. at 311 (citing James, 382 U.S. 36). When Officer Sanford asked Hinkley to search the home, he refused. R. at 6. The search the Officer conducted flies in the face of the standard this Court has set out. The mere permission to enter the premises does not give the Officer permission to enter every room of the house and search whatever he pleases. See James, 382 U.S. at 36. As noted in the record, the Tenth Circuit has moved away from its absolutist view that a protective sweep must be in conjunction with an arrest and has permitted protective sweeps prior to an arrest as long as, (1) a legitimate basis for the arrest existed before the search and (2) the arrest occurred shortly after the search. R. at 8 n.10 (citing United States v. Torres-Castro, 470 F.3d 992, 998 (10th Cir. 2006) (emphasis added)). Similar to the facts of this case, in Torres-Castro, officers went to a private home with neither an arrest nor search warrant, only intending to question the individual. Torres-Castro, 470 F.3d at 995. However, unlike in our case, in Torres-Castro the officers had probable cause to arrest the suspect upon a domestic violence allegation and reasonable suspicion to conduct a protective sweep pursuant to the Buie standard. Id. at 998. The two officers had reasonable suspicion because they were aware that the suspect had a weapon in the residence and threatened to use it in an unlawful manner. Id. 23

24 Here, Officer Sanford had no legitimate basis for arresting Hinkley before conducting the search since he was only present in the residence because of a neighborhood burglary. R. at 5. Officer Sanford knew that Hinkley had previously been arrested for possession of a firearm. Id. However, he was unaware that Hinkley owned a firearm at the time of the unlawful search. Id. Office Sanford also had no reason to believe Hinkley would use a gun in an unlawful manner. Id. Therefore, because Officer Sanford lacked probable cause and reasonable suspicion to conduct the protective sweep of Hinkley s home, no justification for the sweep existed. The search Officer Sanford conducted may have been quick, but it was not limited and it did not meet the standards set forth by this Court. See Buie, 494 U.S. at 325. Without such a limited scope, Officer Sanford would presumably be permitted to conduct protective sweeps in any or all of the neighborhood houses he believed had a cursory chance of housing the burglary suspect. Therefore, this Court should adopt the rule Justice Stevens set forth in his concurring opinion in Buie and emphasize that protective sweeps must be protective, employed only as a means for reducing danger of harm to themselves or their mission. See Buie, 494 U.S. at 337 (Stevens, J., concurring). 4. The evidence should be suppressed pursuant to application of the exclusionary rule. Pursuant to the exclusionary rule, Petitioner requests remedial action to suppress the gun evidence. Under this rule, evidence discovered by means of Fourth Amendment search and seizure violations cannot be used in a criminal conviction against the victim of the illegal search and seizure at all. See United States v. Calandra, 414 U.S. 338, 346 (1974); Mapp, 367 U.S. at 649; Weeks v. United States, 232 U.S. 383, 392 (1914). This Court has determined that whether application of the exclusionary rule s remedy is appropriate is a separate issue from determining whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by 24

25 police conduct. Illinois v. Gates, 462 U.S. 213, 223 (1983). Thus the rule operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved. Calandra, 414 U.S. at 348. Since its inception, the exclusionary rule has served two vital functions. First, it has been recognized as a principal mode of discouraging lawless police conduct. See Terry, 392 U.S. at 12; Weeks, 232 U.S.at Second, it is used to uphold judicial integrity. Elkins v. United States, 364 U.S. 206, 222 (1960). This Court has emphasized that it not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions... because a ruling admitting evidence has the effect of legitimizing the conduct which produced the evidence. Terry, 392 U.S. at 13. The exclusionary rule cannot be invoked to exclude products of legitimate police investigation, however, as discussed above, Officer Sanford s actions did not conform to legitimate police procedures. Officer Sanford acted without a warrant or probable cause when he trespassed into Hinkley s closed kitchen while searching for a third party. R. at 5 6. The Officer s objective in the search was to determine the whereabouts of a suspected burglar. Id. Instead, Officer Sanford discovered Hinkley s protective firearm and proceeded to arrest him in his own home. Id. Officer Sanford s lawless police conduct has violated Hinkley s Fourth Amendment rights. The court s admittance of the evidence acts to legitimize conduct that contradicts the core values for what the Fourth Amendment stands for: protection of personal security against unwarranted searches and seizures. This Court has demonstrated that the exclusionary rule is the only effective deterrent to police misconduct in the criminal context, and that without it the constitutional guarantee against unreasonable searches and seizures would 25

26 be a mere form of words. Terry, 392 U.S. at 13 (quoting Mapp, 367 U.S. at 655). Therefore, the evidence discovered by Officer Sanford should be suppressed. B. Officer Sanford s Search Violated The Fourth Amendment Because It Was Conducted Without A Warrant Or Exigent Circumstances. The Fourth Amendment requires probable cause be established within the scope of an authorized search. See Kentucky v. King, 131 S.Ct. 1849, 1856 (2011). This Court has recognized several exigencies that permit for the warrantless search of a home. See id. at 1857; see also Bringham City v. Stuart, 547 U.S. 398 (2006). Officer Sanford s conduct does not fit under any of these exceptions, and is therefore violative of the Fourth Amendment. This Court has created exceptions that permit officers to conduct a warrantless search of the home. These exigent circumstance exceptions include the emergency aid exception. Stuart, 527 U.S. at 403 (holding that law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury ), the exception to prevent the imminent destruction of evidence, id., and finally, the exception at issue, which concerns whether a true hot pursuit of a suspect allowed for a warrantless search of the home. United States v. Santana, 427 U.S. 38 (1976); see also King, 131 S.Ct. at Officer Sanford was not in a true hot pursuit of the neighborhood burglar. A true hot pursuit must be qualified by the gravity of the underlying offense, and an immediate or continuous pursuit of the suspect from the scene of the crime. 1 William E. Ringel, Searches and Seizures, Arrests and Confessions 10:9 (2d ed. 2013); see also United States v. Santana, 427 U.S. at 38. Both the gravity of the underlying offense and the immediate or continuous nature of the pursuit must be present in order to excuse a warrantless search and qualify as a true hot pursuit. See Ringel, supra, at 10:9. In this case, the record only states that 26

27 there was another burglary in the neighborhood. R. at 5. The record is silent as to the timing of the burglary and the time of the Officer s presence at Hinkley s home. Officer Sanford met neither element necessary for a true hot pursuit, and therefore the search could not have been made under exigent circumstances. 1. The gravity of the underlying offense does not support a warrantless search of Hinkley s home. Warrantless arrests for major felonies are permitted if identifiable exigencies, independent of the gravity of the offense, existed at the time of the arrest. Welsh v. Wisconsin, 466 U.S. 740, 752 (1984). In this case, the officer does not provide any specific or identifiable exigencies about the neighborhood burglar. R. at 5. The record is also silent concerning the gravity of the burglary and the specifics involved, and therefore, it is difficult to ascertain whether the crime itself would be grave enough to permit a warrantless search. Even if the burglary the underlying offense were grave enough to permit a warrantless search, this Court and lower courts have not determined whether it permits a warrantless search for a home other than the suspect s. Courts have said major felonies provide reason for officers to search the home of the suspect. See United States v. Campbell, 581 F.2d 22 (2d Cir. 1978) (holding an armed bank robbery provided exigent circumstances because there was good reason to believe they possessed money at their apartments and that surveillance would have risked armed confrontation); see also Payton v. New York, 445 U.S. 573 (1980) (holding that the Fourth Amendment prohibits police from making warrantless and nonconsensual entry into suspect's home in order to make routine felony-arrest ). However, warrantless searches related to the true hot pursuit of misdemeanor suspects are not permitted. See generally Welsh, 466 U.S. at 740 (holding warrantless entry into the home to arrest an individual for driving under the influence was prohibited by the Fourth Amendment). 27

28 In this case, the underlying offense was only determined by an existential threat with information given to the police that did not constitute probable cause. See United States v. Haynie, 637 F.2d 227, 233 (4th Cir. 1980) (holding that probable cause exists where the details of a tip were adequately corroborated by police investigation, and where both the reliability of the informant and the substantiality [of his] fact of his information are established ). Thus, there is question as to the gravity of the offense of the burglar because the record is silent as to whether it was the murderer from a previous burglary or a separate incident. See R. at 6. This is an important distinction given the vast criminal activity in Hinkley s neighborhood. Lower courts have also determined that even if the gravity of the crime is severe, it may not be enough to permit a warrantless intrusion into the home. In Commonwealth of Pa. v. Williams, officers conducted a warrantless search and arrested a murder suspect. Commonwealth of Pa. v. Williams, 483 Pa. 293 (1978). The court in Williams determined that although the gravity of the underlying offense was severe enough to permit a warrantless search, because the rifle used in the murder was in the possession of another individual and that the homicide predated the arrest by three years outweighed the gravity of the felony. Id. at 300. In this case, even if the burglary suspect had committed an underlying offense that was severe enough to permit a search, the amount of time that passed mitigates the gravity necessary in a true hot pursuit. Officer Sanford and the police department were going door to door to merely ensure that the burglar was not hiding in someone s home. R. at 5 (emphasis added). Even if Officer Sanford was searching for the suspect that killed Hinkley s neighbor, it would not fit under the analysis set forth in Williams that would make this a true hot pursuit. See id. at 6. In this case, there is nothing clearly indicating the gravity of the crime, and there was no continuous pursuit of the suspect that led Officer Sanford into Hinkley s home. 28

29 2. The government cannot demonstrate a continuous pursuit of the suspect from the scene of the crime. The hot pursuit exception permits warrantless searches of a premise in exigent circumstances only if incident to a lawful pursuit of a suspect. See Santana, 427 U.S. at 42 (citing Hayden, 387 U.S. at 294). The Court in Santana said that a true hot pursuit has to occur in some sort of chase, but does not necessarily have to be through an extended hue and cry in and about (the) public streets. Id. at (1976). This Court and lower courts find that a continuous pursuit is justified to search one suspect s house when another suspect is still at large. See Haynie, 637 F.2d at 227 (allowing a search where a fourth suspect was last seen going behind a house); see also Buie, 494 U.S. at 325. This is not the case here. Officer Sanford searched a non-suspect s home and followed elusive information to his supposed suspect. Officer Sanford was in pursuit of an individual suspected of burglary in Hinkley s neighborhood, but this pursuit does not qualify as a true hot pursuit as set out in Santana. In Santana the suspect used marked money to buy heroin arranged by an undercover agent. Santana, 427 U.S. at 38. When officers went to the suspect s house where she had a paper bag, they arrested her in the vestibule of her home. Id. The Court in this case held that a suspect may not defeat an arrest by moving to a private place from a public place. See id. at 42. This stands in stark contrast to the actions of Officer Sanford, who was in pursuit of a burglar and merely was allowed to enter Hinkley s house because of extreme weather conditions. R. at 5 6. Hinkley was not a suspect in the pursuit of this burglary, nor was there any exigent circumstance present in his home. Id. at 6. The true hot pursuit exigent circumstance does not excuse the warrantless sweep Officer Sanford conducted in Hinkley s home. There are certain elements that must be met for a protective sweep to be valid not incident to an arrest, including that an [officer] must not have 29