In the Supreme Court of the United States

Transcription

1 No In the Supreme Court of the United States ROY HINKLEY, Petitioner, v. UNITED STATES OF AMERICA, Respondent. On Writ of Certiorari from the United States Court of Appeals for the Thirteenth Circuit BRIEF FOR PETITIONER Team 9 Counsel for Petitioner [Address Redacted] [Address Redacted] [Phone Number Redacted]

2 QUESTIONS PRESENTED FOR REVIEW 1. Whether a police officer can lawfully conduct a protective sweep of the private sanctuary of a homeowner for a third party suspect, without effectuating an arrest, without a warrant, and without probable cause, but with mere consent to enter the home? 2. Whether mere possession of a sawed-off shotgun constitutes a predicate violent felony as required under the ACCA, when it is not similar in kind to use of explosives, its closest enumerated analog, or to the other crimes listed in the ACCA s residual clause because Congress included only the use, but not the possession of, explosives among the ACCA s example crimes? i

3 TABLE OF CONTENTS Question Presented... i Table of Authorities... iii Opinion Below.... iv Statutory Provisions... iv Constitutional Provisions... iv Statement of the Case... viii Summary of the Argument... xii Argument...1 I. BECAUSE THE GOVERNMENTAL INTEREST IN PROTECTING OFFICER SAFETY DOES NOT OUTWEIGH A CITIZEN S RIGHT TO PRIVACY WITHIN THE HOME, THE PROPER STANDARD FOR PROTECTIVE SWEEPS NOT INCIDENT TO AN ARREST, BUT WITH CONSENT TO ENTER THE HOME, IS PROBABLE CAUSE. 1 A. When Police Officers Enter The Home Of A Person Not Suspected Of Any Crime, Without The Purpose Of Effectuating An Arrest, And With Consent To Enter, The Government s Interest In Officer Safety Does Not Outweigh The Rights Of Private Citizens, And Therefore This Court Should Not Permit A Protective Sweep B. If This Court Allows Police Officers To Conduct Protective Sweeps Not Incident To An Arrest, But With Consent To Enter By The Homeowner, Police Officers Would Be Circumventing The Warrant Requirement And Leaving Innocent Homeowners With No Means To Challenge An Officers Conduct... 9 C. Probable Cause, Not Reasonable Suspicion, Is The Correct Standard For Protective Sweeps When There Is No Arrest And The Officer Is Only Searching For A Suspect Within The Confines Of A Third Party s Home.11 ii

4 II. THE HISTORY OF THE FOURTH AMENDMENT DEMANDS THAT POLICE OFFICERS HAVE PROBABLE CAUSE TO CONDUCT A PROTECTIVE SWEEP OF A RESIDENCE WHEN IT IS NOT INCIDENT TO AN ARREST 13 III. POSSESSION OF AN UNREGISTERED SAWED-OFF SHOTGUN DOES NOT QUALIFY AS A PREDICATE VIOLENT FELONY UNDER THE RESIDUAL CLAUSE OF THE ACCA BECAUSE MERE POSSESSION DOES NOT PRESENT A SERIOUS RISK OF PHYSICAL INJURY NOR DOES IT INVOLVE A SIMILAR KIND OF PURPOSEFUL, VIOLENT, AND AGGRESSIVE CONDUCT AS THE ENUMERATED CRIMES..17 A. Simply Possessing An Unregistered Sawed-Off Shotgun Is Not An ACCA Predicate Violent Felony Because It Does Not Present A Risk Of Physical Injury To Another 19 B. Possession Of An Unregistered Sawed-off Shotgun Is Not An ACCA Predicate Felony Because It Does Not Involve The Same Degree Of Purposeful, Violent, And Aggressive Conduct, Because Unlike the Enumerated Crimes, It Involves Merely Passive Behavior.21 Conclusion...23 iii

5 TABLE OF AUTHORITIES Cases Agnello v. U.S., 269 U.S. 20 (1925) Begay v. U.S., 553 U.S. 137 (2008). Brinegar v.u.s., 338 U.S. 160 (1949) Carroll v. U.S., 267 U.S. 132, 149 (1925) Coolidge v. New Hampshire, 403 U.S. 443 (1971) Fisher v. Volz, 496 F.2d 333 (3rd Cir.1974) James v. U.S., 550 U.S. 192 (2007) Jones v. U.S., 357 U.S. 493, 498 (1958) Kentucky v. King, 131 S. Ct (2011) Kyllo v. U.S., 533 U.S. 27, 34 (2001) Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) Lankford v. Schmidt, 240 F. Supp. 550 (D. Md. 1965) Maryland v. Buie, 494 U.S. 325 (1990) Michigan v. Long, 463 U.S (1983) Payton v. New York, 445 U.S. 573 (1980) Shepard v. U.S., 544 U.S. 13 (2005) Sonzinksy v. U.S., 57 S.Ct. 554 (1998) Stanford v. State of Texas, 379 U.S. 476 (1965). Steagald v. U.S., 451 U.S. 204 (1981) Sykes v. U.S., 131 S.Ct 2267 (2011) Taylor v. Kentucky, 436 U.S. 478 (1978) Taylor v. U.S., 495 U.S. 575 (1990) Terry v. Ohio, 392 U.S. 1 (1968) U.S. v. Archer, 531 F.3d 1347 (11th Cir. 2008) U.S. v. Archibald, 589 F.3d 289 (6th Cir. 2009) iv

6 U.S. v. Bradford, 766 F. Supp. 2d 903 (E.D. Wis. 2011) U.S. v. Chaves, 169 F.3d 687 (11th Cir. 1999) U.S. v. Gandia, 424 F.3d 255 (2nd Cir. 2005) U.S. v. Gould, 364 F.3d 578, 597, n. 5 (5th Cir. 2004) abrogated on other grounds by Kentucky v. King, 131 S. Ct (U.S. 2011) U.S. v. Jones, 132 S. Ct. 945 (2012) U.S. v. McGill, 618 F.3d 1273 (11th Cir. 2012) U.S. v. Morgan Vargas, 376 F.3d 112 (2nd Cir. 2004). U.S. v. Pineda-Moreno, 617 F.3d 1120 (9th Cir. 2010). U.S. v. Polk, 577 F.3d. 515 (3rd Cir. 2009) U.S. v. Torres-Castro, 470 F.3d 992 (10th Cir. 2006). U.S. v. Vincent, 575 F.3d 820 (8th Cir. 2009) Weeks v. U.S., 232 U.S. 383 (1914). Statutory Provisions 18 USC 924(e) 26 USC 5845(a) 26 USC 5845(d) 26 USC 5861(d) Constitutional Provisions U.S. Const., amend. IV. Miscellaneous Authorities United States Department of Justice, Identification of Firearms Within the Purview of the National Firearms Act, The Bureau of Alcohol, Tobacco, Firearms and Explosives, v

7 OPINION BELOW The opinion of United States Court of Appeals for the Thirteenth Circuit affirming the denial of Mr. Roy Hinkley s motion to suppress, vacating his sentence, and remanding for resentencing can be found at No (13th Cir. 2012). STATUTORY PROVISIONS (e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g). (2) As used in this subsection-- (A) the term serious drug offense means-- (i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq), or chapter 705 of title 46, for which a maximum term of imprisonment of ten years or more is prescribed by law; or (ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 801 et seq.), for which a maximum term of imprisonment of ten years or more is prescribed by law; (B) the term violent felony means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-- (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, vi

8 or otherwise involves conduct that presents a serious potential risk of physical injury to another; and (C) the term conviction includes a finding that a person has committed an act of juvenile delinquency involving a violent felony. (f) In the case of a person who knowingly violates section 922(p), such person shall be fined under this title, or imprisoned not more than 5 years, or both. (g) Whoever, with the intent to engage in conduct which-- (1) constitutes an offense listed in section 1961(1), (2) is punishable under the Controlled Substances Act (21 U.S.C. 801 et seq,) the Controlled Substances Import and Export Act (21 U.S.C. 801 et seq,), or chapter 705 of title USC 924(e). For the purpose of this chapter The term firearm means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of title 18, United States Code); and (8) a destructive device. The term firearm shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector s item and is not likely to be used as a weapon 26 USC 5845(a). For the purpose of this chapter The term shotgun means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire vii

9 through a smooth bore either a number of projectiles (ball shot) or a single projectile for each pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed shotgun shell 26 USC 5845(d). It shall be unlawful for any person (d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record 26 USC 5861(d). CONSTITUTIONAL PROVISIONS 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. viii

10 STATEMENT OF THE CASE On June 1, 2011, the North Greene Police Department conducted a search of the home of Roy Hinkley, the petitioner, without an arrest warrant, search warrant, or probable cause. See R. 5. Officer Terrence Sanford, who knew Mr. Hinkley from a previous arrest, interrupted Mr. Hinkley s dinner by knocking at his front door. R. 5, 6. After explaining to Mr. Hinkley that there had been another burglary in his neighborhood, the officer asked Mr. Hinkley if he could come inside to ask him a few questions, since it was raining quite hard outside. R Mr. Hinkley naturally obliged and the officer walk[ed] into the living room. R. 6. The officer explained to Mr. Hinkley that residents of the neighborhood had reported seeing the burglar flee in the direction of Mr. Hinkley s home and that the police were going door to door to ensure that the burglar was not hiding out in any of the homes. R. 5. The officer then asked Mr. Hinkley if he could look around the house to make sure that the burglar had not broken in and taken refuge in Hinkley s home. R. 6. Mr. Hinkley refused to let the officer search and told the officer that he had not seen or heard anything out of the ordinary all night, kept his backdoor locked, and surely would have heard someone enter his home. Id. The officer admitted that he did not fear Mr. Hinkley or believe he was the burglar and yet despite Mr. Hinkley s refusal of consent, the officer proceeded through the closed door into Mr. Hinkley s kitchen. Id. The officer then saw a semi-automatic handgun on Mr. Hinkley s kitchen counter and arrested him on the charge of being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). Id. Just one month after moving into the neighborhood, and prior to his arrest for being a felon in possession of an unregistered firearm, four homes on Mr. Hinkley s street were broken into, as well as several cars. R. 4. One of the burglaries occurred just two doors down from Mr. ix

11 Hinkley s and during that robbery, the burglar was armed with a semi-automatic handgun that he brandished to subdue and control the homeowner. Id. Mr. Hinkley understandably feared for the safety of his family, including his wife and six-year-old daughter, who was suffering from leukemia. Id. Fearing for their safety, Mr. Hinkley asked his friend to purchase a 12-gauge shotgun for him. Despite Mr. Hinkley s request for a standard shotgun, his friend obtained a sawed-off shotgun with a 16-inch barrel, which the friend said was more concealable and maneuverable for home defense. R Mr. Hinkley s fears were confirmed when he heard a ruckus outside his home and went outside bearing the shotgun to protect his family. R. 5. Unfortunately for Mr. Hinkley, several police officers, including Officer Sanford, were outside his home searching for the burglar. Id. The officer recognized the type of gun Mr. Hinkley was holding because of its shortened barrel and inquired whether Mr. Hinkley s shotgun was legally registered pursuant to the National Firearms Act (NFA). Id. The officer soon charged Mr. Hinkley with possession of an unregistered sawed-off shotgun, after realizing that he was a felon who could not lawfully register a firearm. Id. At the time of this charge, Mr. Hinkley s daughter s health was deteriorating and her only hope of survival was a bone marrow transplant, which would cost a significant amount of money. As a result, Mr. Hinkley pled guilty to this crime, as a way to avoid jail time and continue taking care of his daughter. Id. Mr. Hinkley s fears did not subside after he took this plea, in fact, they resurfaced just two months after his plea, when the homeowner across the street from his home was shot and killed during a home invasion. Id. Because of his daughter s medical bills, he could not afford to move to a better neighborhood. The only way Mr. Hinkley could protect his wife and child from the burglar was to again purchase a firearm. Id. Mr. Hinkley purchased a.40 caliber semi- x

12 automatic handgun, the firearm that the officer discovered during the illegal search of Mr. Hinkley s home. Id. Mr. Hinkley moved to suppress this firearm on Fourth Amendment grounds, because the protective sweep of his home was unlawful. R. 6. After a suppression hearing, the District Court denied Mr. Hinkley s motion to suppress, holding that Mr. Hinkley consented to Officer Sanford entering his apartment, and the subsequent protective sweep was based on reasonable suspicion. Id. On October 15, 2011, Mr. Hinkley entered a conditional guilty plea to the charge of being a felon in possession of a firearm in accordance with Fed. R. Crim. P. 11(a)(2), reserving the right to challenge the District Court s denial of his motion to suppress. Id. On November 1, 2011, Mr. Hinkley was sentenced as an armed career criminal under the Armed Career Criminal Act ( ACCA ) and was sentenced to 180 months of incarceration. Id. Mr. Hinkley then filed a timely Notice of Appeal with the United States Court of Appeals for the Thirteenth Circuit, challenging the District Court s denial of his motion to suppress and claiming that the ACCA was inapplicable. Id. Mr. Hinkley s did not have three prior felony convictions required by the ACCA. Id. Mr. Hinkley s charges prior to the charge at hand, unlawful possession of an unregistered firearm, include a juvenile conviction for first-degree burglary, where at the age of fifteen he succumbed to peer pressure and broke into a neighbor s home to steal a baseball. R. 3. In 2008, Mr. Hinkley also pled guilty to arson, when he burned down his construction business for the insurance proceeds, when he faced surmounting medical bills and the prospect of his daughter s cancer not being covered by the family s medical insurance. R. 4. He pled guilty and received one year of probation in lieu of jail time, so that his wife would not have to care for their sick child on her own. Id. xi

13 The Thirteenth Circuit affirmed the District Court s denial of Mr. Hinkley s motion to suppress and affirmed his conviction for possession of a firearm by a felon. R. 9. The Thirteenth Circuit held that Mr. Hinkley consented to Officer Sanford entering his apartment and thus the officer was lawfully on the premises and conducting a safety sweep limited to ensuring his own safety when he found the handgun in plain view in the kitchen. R.8. However, the court did not find that Officer Sanford believed that the burglar was specifically hiding in Mr. Hinkley s home, only that Officer Sanford had reason to believe that a man with a weapon was hiding in one of the homes. Id. Finally, the Thirteenth Circuit properly held that because Mr. Hinkley s possession of an unregistered sawed-off shotgun was not a predicate violent felony under the ACCA, as he did not have the three necessary predicate felonies to qualify for the ACCA fifteen-year sentencing enhancement. See R. 11. Thus, the Thirteenth Circuit reversed and remanded for sentencing. Id. This Court granted Mr. Hinkley s timely Petition for Writ of Certiorari. R. 12. xii

14 SUMMARY OF THE ARGUMENT When this Court balances the governmental interest of officer safety against the rights of innocent homeowners to be free from governmental invasion, it should find that the Fourth Amendment requires that the citizens rights far outweigh officer safety in protective sweeps that do not involve an arrest, are not on adversary turf, and involve consent to enter the home. Moreover, if this Court were to allow police officers to conduct protective sweeps not incident to an arrest, but with consent to enter by the homeowner, police officers would be circumventing the warrant requirement and leaving innocent homeowners with no means to challenge an officers conduct. Finally, these protective sweeps have all the qualities of a full-blown search when an officer is only searching to find a suspect within a home. For these reasons, this Court should apply the probable cause standard rather than the reasonable suspicion standard, used in protective sweeps that are incident to an arrest. Possession of an unregistered sawed-off shotgun does not qualify as a predicate violent felony under the residual clause of the ACCA, therefore, the Thirteenth Circuit was correct in reversing Mr. Hinkley s ACCA fifteen-year enhancement. Mere possession does not present a serious risk of physical injury similar to burglary, arson, extortion, or crimes involving the use of explosives because not only does Congress allow its possession by simply paying a $ tax, but also because mere possession is easily distinguishable from the actual use of explosives which the ACCA enumerates as a predicate felony. Further, possession of an unregistered sawed-off shotgun is not an ACCA predicate felony because it does not involve the same degree of purposeful, violent, and aggressive conduct, because unlike the enumerated crimes, it involves merely passive behavior. xiii

15 ARGUMENT I. BECAUSE THE GOVERNMENTAL INTEREST IN PROTECTING OFFICER SAFETY DOES NOT OUTWEIGH A CITIZEN S RIGHT TO PRIVACY WITHIN THE HOME, THE PROPER STANDARD FOR PROTECTIVE SWEEPS NOT INCIDENT TO AN ARREST, BUT WITH CONSENT TO ENTER THE HOME, IS PROBABLE CAUSE. The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S. Const. amend. IV. It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, (1980). In particular, the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. Id. at 586 (citation omitted). In determining the reasonableness and validity of any warrantless search, such as the North Greene Police Department s warrantless search of Mr. Hinkley s residence here, this Court applies a balancing test and weighs the government s interest in safe and effective law enforcement against a citizen s interest in freedom from arbitrary invasion guaranteed by the Fourth Amendment against. See Maryland v. Buie, 494 U.S. 325, 334 (1990). But when applying the balancing test, the Court has been careful to confine the scope of searches based on less than probable cause to only limited circumstances. Buie, 494 U.S. at ; see e.g., Michigan v. Long, 463 U.S. 1032, 1049 (1983) (allowing reasonable suspicion for a roadside stop because a potential danger arising from the presence of weapons in a vehicle); Terry v. Ohio, 392 U.S. 1, (1968) (allowing reasonable suspicion to frisk for weapons prior to arrest when the sole justification of the search [was] the protection of police officers and others nearby ). A protective sweep of a home not incident to arrest when entry is by consent but without probable cause conflicts with the Court s justification of a protective sweep in Buie

16 U.S. at 335. This Court held in Buie that [t]he Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. Id. at 337. The Court recognized that a protective sweep was necessary to protect an officer s safety because the situation had escalated to the point of arrest and a protective sweep was viewed as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Id. at 333. The Court also reasoned that unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary s turf. An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings. Id. D. When Police Officers Enter The Home Of A Person Not Suspected Of Any Crime, Without The Purpose Of Effectuating An Arrest, And With Consent To Enter, The Government s Interest In Officer Safety Does Not Outweigh The Rights Of Private Citizens, And Therefore This Court Should Not Permit A Protective Sweep. When this Court balances the governmental interest of officer safety against the rights of innocent homeowners to be free from governmental invasion, it should find that the Fourth Amendment requires that the citizens rights far outweigh officer safety in protective sweeps that do not involve an arrest, are not on adversary turf, and involve consent to enter the home. Buie, 494 U.S. at 333. First, without an arrest, the officer is not taking the serious step of taking a person into custody for the purpose of prosecuting him for a crime, viewed by this Court as the situation that escalates the risk of danger to the officer as opposed to an encounter on the street or along a highway. Id. at 333. The risk of danger in the context of an arrest in the home is due to the 2

17 reality that there may be unseen third parties in the house who would launch an attack on the arresting officer, such as friends or relatives of the arrestee who would want to prevent the arrest of someone they care for. Id. at 333, 336. However, without an arrest, there is no motive for a third party to attack a police officer. Thus it follows, absent an arrest, there is no danger to an officer, and thereby no need for the conjunctive step of a protective sweep incident to an arrest. Id. at 337. In situations where officers are not effectuating an arrest, the severe burden on a homeowner is simply not outweighed, as there is no governmental interest in protecting officer safety. As such, this Court should protect innocent homeowners from the chief evil that the Fourth Amendment protects. See Payton, 445 U.S. at Second, under Buie, a protective sweep incident to an arrest is justified because police officers are at a disadvantage on their adversary s turf, making it more dangerous for an officer to effectuate an arrest. 494 U.S. at 333. However, where there is no arrest, but instead involving a knock and talk encounter such as the one in this case, there is no adversary[] to the police officer. See United States v. Gould, 364 F.3d 578, 597, n. 5 (5th Cir. 2004) (Smith, J., dissenting) abrogated on other grounds by Kentucky v. King, 131 S. Ct (2011). An assumption that a homeowner is an adversary of a police officer completely mistakes the fact that [t]he whole point is to approach a citizen and learn something through voluntary cooperation. Id. In any situation where the officer merely has consent to enter a home to speak with a homeowner about a crime in their neighborhood, police officer s should not assume that they are in danger. This would misconstrue this Court s sole justification of officer safety, as the officer should have nothing to fear. Moreover, if the sole purpose of an encounter is to knock and talk then there is no reason for an officer to enter a home, and when an officer chooses to seek consent and enter a 3

18 home, the officer is creating his own danger. This Court should not allow police officers to manufacture danger, just as they are not allowed to create exigent circumstances. See Kentucky v. King, 131 S. Ct. 1849, 1858 (2011). This Court should not allow police officers to use the consent of a cooperating homeowner as a pretext to conducting a protective sweep. This unconstitutional invasion has happened far too frequently. See e.g. United States v. Gandia, 424 F.3d 255, 263 (2nd Cir. 2005) (noting where police obtained consent to discuss a situation and get out of the rain, the court found there was no need for the police officers to enter [defendant s] home in the first place. They were there for their own convenience (and perhaps for his) while taking his statement. ) Therefore, even assuming the officers viewed Mr. Hinkley as an adversary, the North Greene Police Department had the ability to avoid the disadvantage of being on his adversary s turf by simply interviewing Mr. Hinkley elsewhere on his front step, in the police cruiser, or at the police station since the conversation was the officer s only alleged purpose for entering the home. 1 See R. 5-6; Buie, 494 U.S. at 333; Gandia, 424 F.3d at 263. This police created danger cannot be used as the sole basis to justify a protective sweep, because had the police not entered the home, there would be no need for law enforcement officers to protect themselves. See Buie, 494 U.S. at 332. Third, expanding the [protective sweep] doctrine will encourage law enforcement to gain legal entry through knock and talk requests and then gather evidence without any requirement of suspicion or compliance with the Fourth Amendment. United States v. Torres- Castro, 470 F.3d 992, 997 (10th Cir. 2006); see Buie, 494 U.S. at 334 n.2 (acknowledging that 1 Before entering the home the officer briefly discussed the recent string of home invasions and the possibility of the criminal having entered Mr. Hinkley s home to take refuge. See R. 5. However, the officer only explicitly asked if he could come inside to ask [Mr. Hinkley] a few questions, since it was raining quite hard outside, not if he could enter the private residence to search. R

19 protective sweeps were susceptible to exploitation, especially when compared to a search of a home with a warrant); Gould, 364 F.3d at 589 (noting concerns might arise respecting a consent to entry requested for a stated common purpose but actually intended not for that purpose but rather for the purpose of gaining access in order to then make a protective sweep of the entire home for unrelated reasons and thus circumvent the warrant requirement ). Officers could obtain consent to enter the home, fabricate a basis to justify a reasonable suspicion that they are in danger, and must conduct a protective sweep of the house, with the sole purpose of hopefully discovering evidence in plain view. 2 See e.g. Torres-Casto, 470 F.3d at (where officers asked permission to enter and talk only to then conduct a brief protective sweep of the other rooms in the house when they noticed other individuals present in the home, which ultimately lead to the discovery of an unregistered firearm). When officers conduct this kind of protective sweep it demonstrates that the governmental interest in officer safety is not the overriding purpose, as required under Buie. See 494 U.S. at For instance, when the officer walked through Mr. Hinkley s home, he was searching for the source of danger, the suspect, until he saw a gun and arrested Mr. Hinkley. At that point, the protective sweep ceased. Thus, evidencing the actual purpose of the officer s entry was not to search for the suspect, but to instead find evidence, especially when the officer recognized Mr. Hinkley as a man he had arrested in the past for possession of an unregistered firearm. See R. 5, 6. Further evidence into the officer s actual purpose is that by the time he found the firearm, he had gone into only one room of the house, leaving the rest of the rooms posing a threat to the officer s safety. If the officer s safety was still a concern, like the officer 2 It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. See Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971). In a plain view case, a police officer must have a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. Id. at

20 claimed at the outset, the officer could have seized the gun and proceeded to finish his alleged protective sweep. Buie, 494 U.S. at 333. A reasonable officer who believed that his life was at risk would not stop a protective sweep while a suspect was still on the loose merely to arrest a homeowner for possession of an unregistered firearm. Fourth, in circumstances where a police officer conducts a protective sweep for a dangerous suspect in an individual s home, the balancing test must weigh in favor of the individual s rights. This is especially true when: (1) the homeowner is adamant that the suspect has not taken refuge; (2) when there is no evidence to believe the suspect is there; and (3) when the search would be more than just a narrowly confined cursory visual inspection of those places in which a person might be hiding. Buie, 494 U.S. at 327, In situations where police officers attempt to conduct a protective sweep for a suspect who is a stranger in one s home and the homeowner is positive that the suspect is not present, then there is no danger to the officer or the individual, and thus the officer must yield to the privacy rights of the individual by not conducting a protective sweep. Further, if a suspect, who killed one homeowner and subdued others in the neighborhood with a gun, was present in a home, the suspect would surely not have left the homeowner unharmed. When Mr. Hinkley opened his front door unharmed, the police officer should have realized that the danger was not lurking within the confines of the home. Moreover, had there actually been such a threat, Mr. Hinkley surely would have known, disclosed it to the officer, and allowed him in to apprehend the suspect. Here, Mr. Hinkley explicitly told the officer that he had not seen or heard anything out of the ordinary all night, kept his backdoor locked, and surely would have heard someone enter. R. 6. This Court should not permit a police officer s supposed reasonable suspicion to override a homeowner s refusal to search because a homeowner is in the best position to know 6

21 whether someone has taken refuge in their home. See id. The governmental interest in officer safety is not present because if a homeowner is not in fear of a suspect hiding within his home, surely an armed, trained, and experienced police officer cannot reasonably hold such a fear. When an officer is faced with an unharmed and adamant homeowner in this type of situation, the officer should respect the homeowner s sacred privacy interests and leave the home, and not conduct a warrantless search of the entire residence. In addition, when a police officer enters a home through consent and once inside has no evidence to believe that an armed and dangerous suspect is hiding, the homeowner s right to privacy must again outweigh any purported interest in officer safety. The mere theoretical possibility that a dangerous individual might be inside a residence does not constitute articulable facts justifying a protective sweep. Where an officer has no information about the presence of dangerous individuals, the courts have consistently refused to permit this lack of information to support a possibility of peril justifying a sweep. See United States v. Chaves, 169 F.3d 687, 692 (11th Cir. 1999); United States v. Archibald, 589 F.3d 289, (6th Cir. 2009); United States v. Morgan Vargas, 376 F.3d 112, 115,117 (2nd Cir. 2004). For instance, like Mr. Hinkley, the defendant in Gandia told the police that no one else was present in the home, the officers did not see anyone, or hear any sounds indicating that someone else was present, and the court found that the protective sweep of the entirety of defendant s apartment violated Fourth Amendment. 424 F.3d at Similarly, the court in Moran Vargas, found there was no objective basis to warrant a reasonable suspicion of danger from a second person when the agents had received no information that anyone else was present, had not heard any noise coming from the bathroom, and saw no evidence of another s presence. 376 F.3d at 116. Allowing 7

22 officers with no information 3 at all is directly contrary to [this Court s] explicit command in Buie that the police have an articulable basis on which to support their reasonable suspicion of danger from inside the home. Buie, 494 U.S. at ; Archibald, 539 F.3d at 300. Finally, in situations where an officer enters a home to perform a protective sweep for a hiding fugitive, this will be more than just a narrowly confined cursory visual inspection of those places in which a person might be hiding, as required by Buie. See 494 U.S. at 327. A person taking refuge in a stranger s home to avoid police detection would reasonably be hiding in a hard to discover places, including closets, under beds, or other private areas of the home, not open areas like a kitchen. Id. This means that in order to conduct an effective protective sweep and avoid an attack, police officers must search through a person s most private and constitutionally protected areas of sanctity. See Payton, 445 U.S. at 601 ( sanctity of the home that has been embedded in our traditions since the origins of the Republic ). Therefore, this Court should not allow such an invasion of privacy without the government first meeting its burden of proving a reasonable belief that danger is lurking within the home. For the above reasons, this Court should not allow police officers to conduct a protective sweep of a home without first effectuating an arrest, but there is consent to enter the home, as the governmental interest in protecting officers from danger is no longer present without an arrest and the officer is not on an adversaries turf when merely entering to knock and talk. E. If This Court Allows Police Officers To Conduct Protective Sweeps Not Incident To An Arrest, But With Consent To Enter By The Homeowner, Police Officers Would Be Circumventing The Warrant Requirement And Leaving Innocent Homeowners With No Means To Challenge An Officers Conduct. 3 Surely, a mere tip from a neighbor that someone was flee[ing] in the direction of Mr. Hinkley s home cannot rise to the level of reasonable suspicion. The suspect could have fled to any of the homes in that direction. There was nothing specific about Mr. Hinkley s home. No one reported seeing the suspect in his yard or entering his home. 8

23 In a society that presumes its citizens are innocent until proven guilty, one must believe there are many unlawful searches of homes of innocent people that result in nothing incriminating. See Taylor v. Kentucky, 436 U.S. 478, 486 (1978). And it is these innocent citizens whom protective sweeps without probable cause, without an arrest, and without a warrant, will impact the most, leaving them with no way to challenge governmental invasion of the private home. If there are no drugs, no weapons, and no evidence of a crime in a home, the government has nothing to seize, and thus there is nothing for a homeowner to seek to exclude within the courts. The United States utilizes the exclusionary rule 4 to protect criminals from unlawful invasion into their home, but there is simply no equivalent to protect an innocent homeowner subject to a protective sweep. Grave consequences may ensue if this Court allows protective sweeps without probable cause, without an arrest, and without a warrant, police will have the ability to go door to door to every home in a neighborhood, without having any evidence that a suspect if even inside of the home. See e.g. Lankford v. Gelston, 364 F.2d 197,199 (4th Cir. 1966) (where over the course of 19 days, police on 300 occasions searched third persons homes for suspects, without search warrants and the court found that the parties seeking redress had committed no acts warranting violation of the privacy of their homes and there had never been any suspicion concerning them or their associations ). This type of protective sweep would operate in conjunction with the plain view doctrine, opening otherwise innocent citizens susceptible to the prying eye of police officers, merely because a suspect, unconnected with the homeowner might be hiding within that home. 4 The exclusionary rule is a principle whereby illegally seized evidence cannot be admitted into evidence against a suspect in criminal prosecution if police officers violated the suspect s Fourth Amendment rights to be free from unreasonable searches and seizures. See Weeks v. United States, 232 U.S. 383 (1914). 9

24 These innocent homeowners who have had the sacred privacy invaded by the government will be unable to bring any sort of action to prevent this conduct in the future. Indeed, it is only in the rare instance that a person not accused or even suspected of any crime petitions the court for redress of police invasion of his home. Id. at 202. It is not that such invasions do not occur instead it is because [o]nly occasional and more flagrant abuses come to the attention of the courts, and then only those where the search and seizure yields incriminating evidence and the defendant is at least sufficiently compromised to be indicted. If the officers raid a home, an office, or stop and search an automobile but find nothing incriminating, this invasion of the personal liberty of the innocent too often finds no practical redress. There may be, and I am convinced that there are, many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we never hear. Id. (quoting Brinegar v. United States, 338 U.S. 160, , (1949) (Jackson, J., dissenting)). Moreover, as the Fourth Circuit recognized in Lankford, [t]here can be little doubt that actions for money damages would not suffice to repair the injury suffered by the victims of the police searches. Lankford, 364 F.2d at 202. Further, the lesson of experience is that the remote possibility of money damages serves as no deterrent to future police invasions. Id. (citation omitted). In addition, innocent citizens have no immediate course of redress while an officer is within their homes conducting a protective sweep of rooms, closets, and other private areas. He cannot use force and risk being arrested for obstruction of justice or assault and battery; he cannot make threats; he cannot, realistically, call the police; he cannot seek a civil injunction; and he cannot insist upon a magistrate s determination of probable cause, as it is already too late. Instead, the citizen s choice is quietly to submit to whatever the officers undertake or to resist at 10

25 risk of arrest or immediate violence. Lankford, 364 F.2d at 202 (quoting Brinegar, 338 U.S. at (Jackson, J., dissenting). Absent a protective sweep being incident to an arrest or when there is probable cause to secure a search warrant, this Court should not allow police officers to enter a private citizen s home, leaving them with no course of redress, unless of course the officer discovers contraband. This type of protective sweep of a home without probable cause, without a warrant, and without an arrest, would reduce the Fourth Amendment to a nullity and leave the people s homes secure only in the discretion of police officers. F. Probable Cause, Not Reasonable Suspicion, Is The Correct Standard For Protective Sweeps When There Is No Arrest And The Officer Is Only Searching For A Suspect Within The Confines Of A Third Party s Home. When a police officer conducts a protective sweep of a home not incident to an arrest to find a suspect in a third party s home, this Court should apply the probable cause standard rather than the reasonable suspicion standard. Protective sweeps of a home not incident to an arrest are more analogous to a full search of a home, which requires at a minimum an arrest warrant, search warrant, or probable cause. Because the right to search obtained ostensibly for one purpose, officer protection, is actually for another purpose searching for a suspect. And under the Fourth Amendment, searches of this kind require warrants, which in turn require probable cause. See Agnello v. U.S., 269 U.S. 20, 33 (1925). ( Belief, however well founded, that [a person] sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause. ) Moreover, in an analogous situation, this Court held that an officer needs more than just an arrest warrant to search within a third party s home for the suspect. See Steagald v. U.S.,

26 U.S. 204, 216 (1981) (holding that a law enforcement officer could not legally search for subject of arrest warrant in home of third party, without first obtaining search warrant). In a protective sweep, where there is no arrest, the standard must be probable cause. A contrary conclusion that the police, acting alone and in the absence of exigent circumstances, may decide when there is sufficient justification for searching the home of a third party for the subject without even an arrest warrant would create a significant potential for abuse. Id. at 215. But a requirement than an officer must have probable cause to believe that a suspect is in a particular dwelling and posing a danger will not unduly restrict the effectiveness of police action [i]t offers police considerable latitude but also requires a necessary amount of restraint. It should enable the police to act reasonably but not oppressively, promptly but not recklessly, lawfully but not offensively. Fisher v. Volz, 496 F.2d 333, 341 (3rd Cir.1974). Finally, this Court should find that probable cause, not reasonable suspicion, is the appropriate standard for a protective sweep not incident to an arrest when an officer s entry is by consent. Therefore, this Court should reverse the decision of the Thirteenth Circuit Court of Appeals and remand to apply the probable cause standard to the facts of this Mr. Hinkley s case. C. THE HISTORY OF THE FOURTH AMENDMENT DEMANDS THAT POLICE OFFICERS HAVE PROBABLE CAUSE TO CONDUCT A PROTECTIVE SWEEP OF A RESIDENCE WHEN IT IS NOT INCIDENT TO AN ARREST. History dictates that protective sweeps recognized in Buie should not extend to situations where entry is by consent and a protective sweep is not incident to an arrest or based on probable cause. See 494 U.S. at ; Stanford v. State of Texas, 379 U.S. 476, (1965). As the Court noted in Stanford, [v]ivid in the memory of the newly independent Americans were th[e] general warrants under which officers of the Crown had so bedeviled the colonists [and] had given customs officials blanket authority to search where they 12

27 pleased They were denounced as the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book, because they placed the liberty of every man in the hands of every petty officer. Stanford, 379 U.S. at 481. In essence, a search, labeled protective or otherwise, is constitutionally unreasonable if it allows officers to utilize a process of elimination going from house to house and from room to room until the officers find the suspect they are searching for because such an indiscriminate search undermines the purpose of the Fourth Amendment. Id. at ; see Buie, 494 U.S. at (restricting protective sweeps to no longer than it takes to complete an arrest and depart the premises ); cf. Lankford v. Schmidt, 240 F. Supp. 550, (D. Md. 1965) ( Entry into a dwelling without probable cause and without consent must be severely condemned, whether the home be in the poorest part of the city or in an impressive suburban development. All residents are equally entitled to the constitutional right of privacy ). In fact, given a primary purpose of the Fourth Amendment was to eliminate the abuses inherent in the general warrants issued by the British Crown that [] authorized wide and sweeping searches for suspects or evidence wherever officers wanted, it should be of no consequence that an officer is conducting a protective sweep after he has lawfully entered a home by consent. Stanford, 379 U.S. at , 486. Because absent the sweep being incident to an arrest, the officer s search of a home without probable cause, without a warrant, and where a citizen s protests go ignored would reduce the Fourth Amendment to a nullity and leave the people s homes secure only in the discretion of police officers. See Fisher, 496 F.2d at 343 ( The vice of a general warrant was that it authorized wide and sweeping searches for suspects or evidence. ). 13

28 Characterizing near unbridled authority to search a private home as an effort to protect a government officer who was given consent to enter without probable cause would be false to the terms of the Fourth Amendment, false to its meaning, and false to its history. Stanford, 379 U.S. at 486. Because permitting officers to conduct a protective search of a home based on mere consent to enter but absent an arrest, probable cause, or a warrant, in effect, equates to handing back government officers blanket authority to search where they please as long as the area searched could contain a hiding suspect. See id. at , 486. Indeed, there is no limit to what the police will do when given the authority to conduct a protective sweep of a home not incident to an arrest. As the conduct of the North Greene Police Department demonstrates, without deterrence and adequate restraints, police departments will continue to utilize crime solving methods contrary to the privacy interests of citizens by gradually stretching the constitutional interpretations of this Court, specifically protective sweeps recognized in Buie, until the guarantees of Fourth Amendment erode away with time. See 494 U.S. at ; see also Kyllo v. U.S., 533 U.S. 27, 34 (2001) (refusing to permit police technology to erode the privacy guaranteed by the Fourth Amendment ). And in the words of dissenting Chief Judge Kozinski in U.S. v. Pineda-Moreno: 5 The panel authorizes police to do not only what invited strangers could, but also uninvited children-in this case crawl under the car to retrieve a ball and tinker with the undercarriage. But there's no limit to what neighborhood kids will do, given half a chance: They'll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people's curtilage. 5 The concerns of the dissenting Chief Judge in U.S. v. Pineda-Moreno, 617 F.3d 1120, (9th Cir. 2010) (denial of petition for rehearing en banc), were subsequently recognized by and consistent with this Court s decision in U.S. v. Jones, 132 S. Ct. 945, 954 (2012), where the Court found it was unconstitutional under the Fourth Amendment for the government to attach a tracking device to a suspect s vehicle without a warrant. 14

29 617 F.3d 1120, 1123 (9th Cir. 2010) (denial of rehearing en banc) (Kozinski, C.J., dissenting). The only thing that will stop police from performing searches with unbridled authority is probable cause. Over two centuries have passed and thousands have died to ensure the continued freedom of every Americans from unreasonable searches and seizures, yet today, a child, while sitting at the kitchen table reading a homework assignment about the history of America and why the Constitution is so precious to its citizens, may be forced to remain seated while an officer of the government searches through every room in the house, through closets, under beds, and private areas of the home despite hearing his or her parents protest. The basis, the child s parents consented for the officer to enter their home to discuss a crime or suspect the family had no knowledge of. Consequently, as the next generation of America grows older, lessons learned will not be from textbooks, but instead from personal experiences that conflict with the textbooks used by schools for decades across the entire country. Cf. Pinedo-Moreno, 617 F.3d at 1121 (Kozinski, C.J., dissenting) ( The needs of law enforcement, to which [the majority] seem inclined to refuse nothing, are quickly making personal privacy a distant memory. ). To this end, while the general warrants may not be as [v]ivid in the memory of the newly independent Americans were, the Fourth Amendment guarantee to the Framers that no government officer shall invade the home of an innocent citizen without probable cause or a warrant is no less today than over two centuries ago, and this Court must apply the standard of probable cause to protective sweeps for a suspect in a third person s home. Stanford, 379 U.S. at ; see Carroll v. U.S., 267 U.S. 132, 149 (1925) ( The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights 15