No ROY HINKLEY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Transcription

1 No ROY HINKLEY, Petitioner, v. UNITED STATES OF AMERICA, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Thirteenth Circuit BRIEF FOR PETITIONER TEAM # 6 Billings, Exum & Frye National Moot Court Competition 2013

2 QUESTIONS PRESENTED 1. Whether the Fourth Amendment prohibits an officer from conducting a protective sweep of a home when he has not obtained a warrant and does not have probable cause to search the home or arrest an occupant. 2. Whether possession of a sawed-off shotgun in violation of the National Firearm Act should be considered a predicate violent felony requiring a mandatory minimum sentence under the Armed Career Criminal Act. i

3 TABLE OF CONTENTS Questions Presented... i Table of Authorities... iv Constitutional Provision Involved... 1 Statutory Provisions Involved... 1 Statement of the Case... 1 I) Background... 1 II) Proceedings Below... 1 Statement of Facts... 2 Summary of Argument... 3 Argument... 5 I) Standard of Review... 5 II) The Search of Hinkley s Home without a Warrant or Arrest Was a Violation of the Fourth Amendment... 6 A) The Protective Sweep Doctrine is Limited to Searches Incident to Arrest and Pursuant to a Warrant... 6 B) There Was No Reasonable Suspicion to Justify a Protective Sweep III) Possession of a Sawed-Off Shotgun Is Not a Violent Felony under the Armed Career Criminals Act A) Possession of a Sawed-Off Shotgun Does Not Fall Under Begay s Limited Standard for Violent Felonies under the ACCA B) The United States Sentencing Guidelines and Lower Court Decisions Finding that Possession of a Sawed-Off Shotgun Is a Violent Felony Are Unpersuasive C) The Intent of Congress Was Not to Include Possession of a Sawed-Off Shotgun in the Definition of a Violent Felony under the ACCA ii

4 Conclusion Appendix iii

5 TABLE OF AUTHORITIES CASES Supreme Court Almendarez-Torres v. United States, 523 U.S. 224 (1998) Bailey v. United States, 516 U.S. 137 (1995) , 23, 24 Begay v. United States, 553 U.S. 137 (2008) , 16, 17, 18, 20, 21, 23, 24, 25 Chambers v. United States, 555 U.S. 122 (2009) Chimel v. California, 395 U.S. 752 (1969) Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) District of Columbia v. Heller, 554 U.S. 570 (2008) Florida v. J.L., 529 U.S. 266 (2000) , 14 Florida v. Jimeno 500 U.S. 248 (1991) James v. United States, 550 U.S. 192 (2007) Kentucky v. King, 131 S. Ct (2011) , 8, 10, 12 Kyllo v. United States, 533 U.S. 27 (2001) Leocal v. Ashcroft, 543 U.S. 1 (2004) Maryland v. Buie, 494 U.S. 325 (1990) , 6, 7, 9, 11, 12, 13 McNally v. United States, 483 U.S. 350 (1987) Reynolds v. United States, 132 S. Ct. 975 (2012) Shepard v. United States, 544 U.S. 13 (2005) Staples v. U.S., 511 U.S. 600 (1994) Steagald v. United States, 451 U.S. 204 (1981) Sykes v. United States, 131 S. Ct (2011) iv

6 Taylor v. United States, 495 U.S. 575 (1990) , 23 Terry v. Ohio, 392 U.S. 1 (1968) , 13, 15 United States v. Arvizu, 534 U.S. 266 (2002) United States v. Freed, 401 U.S. 601 (1971) United States v. Int l Minerals & Chemical Corp., 402 U.S. 558 (1971) United States v. Lanier, 520 U.S. 259 (1997) Walter v. United States, 447 U.S. 649 (1980) Williams v. Taylor, 529 U.S. 362, 364 (2000) Courts of Appeals United States v. Archer, 531 F.3d 1347 (11th Cir. 2008) United States v. Canty, 570 F.3d 1251 (11th Cir. 2009) United States v. Fields, 923 F.2d 358 (5th Cir. 1991) , 27 United States v. Foster, 662 F.3d 291 (4th Cir. 2011) United States v. Gandia, 424 F.3d 255 (2d Cir. 2005) , 13 United States v. Gould, 364 F.3d 578 (5th Cir. 2004) United States v. Herrick, 545 F.3d 53 (1st Cir. 2008) United States v. McGill, 618 F.3d 1273 (11th Cir. 2010) , 18, 20, 23 United States v. Miller, 430 F.3d 93 (2d Cir. 2005) United States v. Ruo, 943 F.2d 1274 (11th Cir. 1991) , 27 United States v. Saucedo, 688 F.3d 863 (7th Cir. 2012) United States v. Vincent, 575 F.3d 820 (8th Cir. 2009) , 18, 25, 26 United States v. Waldner, 425 F.3d 514 (8th Cir. 2005) v

7 United States v. Whitson, 597 F.3d 1218 (11th Cir. 2010) District Courts United States v. Cordova, 758 F. Supp. 2d 1367 (N.D. Ga. 2010) United States v. Guerrero, 806 F. Supp. 2d 992 (S.D. Tex. 2011) CONSTITUTIONS, RULES, STATUTES AND SESSION LAWS U.S. Const. amend. IV , 3 18 U.S.C. 922(g) U.S.C. 924(e) , 16, 17, 18, 19, 20, 22, 25, 26, 27, U.S.C , U.S.C. 5854(a) U.S.C. 5861(d) U.S.S.G. 4B U.S.S.G. 4B1.2, cmt. N U.S.S.G. 4B1.4, cmt. N OTHER SOURCES 134 Cong. Rec (1988) ALI Model Penal Code 220.1(1) (1985) ALI Model Penal Code (1985) H.R. Rep. No , p. 3 (1986) Merriam-Webster s Collegiate Dictionary 24 (11 th ed. 2003) vi

8 S. Rep. No , at 3, 20 (1982) , 17, 28 S. Rep. No. 1444, 73d Cong., 2d Sess., 1-2 (1934) Wolfgang et al., Delinquency in a Birth Cohort 88 (1972) vii

9 CONSTITUTIONAL PROVISION INVOLVED The Fourth Amendment to the United States Constitution provides: 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. STATUTORY PROVISIONS INVOLVED Pertinent statutory provisions are reproduced in the appendix to this brief. App., infra, 31. STATEMENT OF THE CASE I) BACKGROUND This case presents the Court with Petitioner Roy Hinkley s arguments that his conviction should be reversed due to the admission of evidence obtained through an illegal protective sweep search and that his sentence was improper because his prior conviction for possession of a sawed-off shotgun is not a violent felony under the Armed Career Criminal Act. II) PROCEEDINGS BELOW Hinkley was indicted for being a felon in possession of a firearm in violation of 18 U.S.C 922(g)(1) in the District Court for the District of North Greene in the Thirteenth Circuit. He was sentenced to 180 months in prison and five years of supervised release, pursuant to the guidelines established in the Armed Career Criminal Act. The District Court denied Hinkley s motion to suppress the firearm. Hinkley appealed to the Thirteenth Circuit. The three-judge panel held that the Motion to Suppress was properly denied, but that the District Court erred at sentencing in its determination that possession of a sawed-off shotgun is a violent felony. Hinkley then filed a petition for a writ 1

10 of certiorari before the United States Supreme Court. The petition was granted on the issues of: (1) Can a police officer conduct a safety sweep of a residence that is not incident to an arrest when he has consent to enter the residence but does not have probable cause or a warrant for the search; and (2) Is possession of a sawed-off shotgun a predicate violent felony under the Armed Career Criminal Act. STATEMENT OF FACTS Roy Hinkley is a real estate agent who works and lives with his family in North Greene. He has a criminal record which includes a conviction for 1st-degree burglary committed while he was fourteen years old, arson, and possession of a sawed-off shotgun. Record 3-5. On June 1, 2011, Hinkley s neighbors reported to the police that a man who resembled a burglar that had previously shot and killed a man living on Hinkley s street was seen fleeing in the direction of Hinkley s house. Record 5. Officer Terrence Sanford (Officer Sanford), who was aware of Hinkley s prior gun possession charge, responded to the reports and approached Hinkley s house. Id. He knocked on Hinkley s door and, when Hinkley answered, Officer Sanford explained that he was going door to door to make sure that the burglar was not hiding in any of the nearby homes. Id. Officer Sanford asked Hinkley if he could enter Hinkley s home to ask him a few questions and to get out of the rain, to which Hinkley consented. Record 5-6 Once inside Hinkley s living room, Officer Sanford asked Hinkley if he could search the house to make sure that the burglar had not broken in. Record 6. Hinkley refused and informed Officer Sanford that he had locked the backdoor and had not heard anything all night. Id. Officer Sanford, who neither suspected that Hinkley was the burglar nor feared that Hinkley might harm him, conducted a search anyway. Id. In the kitchen, Officer Sanford found a handgun that 2

11 Hinkley had bought to protect himself and his family from the burglar that had killed his neighbor. Id. Officer Sanford arrested Hinkley for being a felon in possession of a firearm. Id. SUMMARY OF ARGUMENT The Fourth Amendment proscribes unreasonable searches and seizures. U.S. Const. amend. IV. The Supreme Court established in Maryland v. Buie, 494 U.S. 325 (1990), that an officer who is within an individual s home under the authority of an arrest warrant may conduct a limited protective sweep if that officer has a reasonable suspicion that the home harbors an unknown dangerous person. That holding was limited to cases in which the officer 1) has obtained a warrant and 2) has probable cause to arrest an occupant of the home. Neither of these was present in this case, in which the officer was within Hinkley s home based on limited consent to enter. Furthermore, this Court should not extend the protective sweep doctrine to allow searches without a warrant or arrest. Such an extension would eliminate substantial privacy protections inherent in the warrant process and burden of proof for arrest. Furthermore, such a decision would undermine the baseline principle that an individual may limit consent to search his home. Even if this Court extends the protective sweep doctrine to include consent-entry cases, Officer Sanford did not have a valid reasonable suspicion that Hinkley s home contained an unknown dangerous person. Officer Sanford merely knew that a neighbor indicated that a suspected burglar fled in the direction of Hinkley s home, but this information was not verified by any investigation or observations. Further, Hinkley provided information that specifically dispelled any reasonable suspicion, thereby eliminating the justification for a search of the home. 3

12 Hinkley is not one of the dangerous repeat offenders that Congress intended to receive the heightened sentencing requirements under the Armed Career Criminals Act ( ACCA ). Neither Hinkley s character, nor the offense of possession of an unregistered firearm should give rise to the heightened sentencing requirement. The ACCA does not address whether certain behavior is criminal, instead it is a sentencing statute that considers whether an offender has three previous offenses egregious enough to show that the offender is a dangerous felon who cannot be rehabilitated. The ACCA is an important tool in protecting public safety as it applies to the most dangerous repeat offenders; however, it does not serve its best purpose if it is overinclusive. Reflecting on the text of the statute and the intentions of Congress, this Court established a two-pronged test for evaluating whether an offense is a violent felony. First, courts must consider whether the prior offense rightfully fits into the residual clause at all. This requires a determination of whether the underlying conduct presents a serious potential risk of physical injury to another. The next step is to determine whether the offense is sufficiently similar to the specific list of offense provided by Congress in the statute: burglary, arson, extortion, and the use of explosives. All of these offenses encompass overtly aggressive and violent conduct and the requirement that violent felonies be similar in kind and degree of risk to the listed offenses significantly narrows the class of violent felonies. Begay changed the analysis of prior offenses under the residual clause reinforcing Congress intent to only subject the most egregious offenses and criminals to the mandatory fifteen-year minimum prison sentence. Possession of an unregistered sawed-off shotgun in violation of the National Firearms Act (NFA) is not such an offense. This offense is a passive offense that does not meet the requisite level of active conduct and imminent violence that the specifically enumerated offenses 4

13 embody. The closest corollary in the list is the use of explosives; however, use and possession are very different actions and are treated differently under the law. The plain meaning of use and its legal interpretations involve activity. Additionally, though sawed-off shotguns and explosives are sometimes lumped into a category of dangerous weapons, there are key distinctions between the two. In the NFA, firearms, including sawed-off shotguns, encompass a wide variety of weapons. Destructive weapons, including explosives and grenades, belong to a class of more specific weapons, but are treated as firearms for NFA registration purposes. It would be an overreach to categorize possession of a sawed-off shotgun as a violent felony because it does not present the immediate and dangerous risks of the specifically listed offenses. Petitioner respectfully requests that this Court REVERSE the decision of the Thirteenth Circuit that a protective sweep may be conducted without a warrant or arrest. Petitioner additionally requests that this Court AFFIRM the decision of the Thirteenth Circuit that possession of a sawed-off shotgun is not a requisite violent felony triggering application of the ACCA. ARGUMENT I) STANDARD OF REVIEW The issue of whether a protective sweep is justified is a question of constitutional interpretation and is reviewed de novo. United States v. Waldner, 425 F.3d 514, 517 (8th Cir. 2005). Whether a particular conviction is a violent felony for purposes of the ACCA is a question of law this Court considers de novo. See United States v. Canty, 570 F.3d 1251, 1254 (11th Cir. 2009); United States v. Foster, 662 F.3d 291 (4th Cir. 2011). 5

14 II) THE SEARCH OF HINKLEY S HOME WITHOUT A WARRANT OR ARREST WAS A VIOLATION OF THE FOURTH AMENDMENT The Supreme Court has long recognized that the individual in his home enjoys unparalleled protection under the Fourth Amendment. It is a basic principle of Fourth Amendment law, we have often said, that searches and seizures inside a home without a warrant are presumptively unreasonable. Kentucky v. King, 131 S. Ct. 1849, 1856 (2011). It is only [w]ith few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no. Kyllo v. United States, 533 U.S. 27, 31 (2001). In Maryland v. Buie, the Supreme Court announced such an exception to the warrant requirement for a search within a home. 494 U.S. 325 (1990). The Court s limited holding allows police to conduct a quick and limited search of premises when the police have probable cause to make an arrest, have obtained a warrant from a neutral magistrate, and have a reasonable suspicion based only on specific and articulable facts that a dangerous individual is present in the home. Id. at 327. Respondent and the Thirteenth Circuit ask this court to expand this exception such that we may ignore the first two conditions and stretch the third beyond use or purpose. A) The Protective Sweep Doctrine is Limited to Searches Incident to Arrest and Pursuant to a Warrant The Facts of Maryland v. Buie are as follows. Jerome Buie was suspected of armed robbery. Maryland v. Buie, 494 U.S. at 328. The police secured a warrant for his arrest and executed it at his home. Id. As the officers searched the rest of the house, an officer stood at the top of the stairs to the basement and ordered anyone in the basement to come up with arms raised. Id. Buie walked up the stairs and was arrested by the police. Id. The officer then descended into the basement to in case there was someone else down there. Id. In the basement, the officer found evidence that linked Buie to the robbery incident, and Buie moved to 6

15 exclude it based on a theory of an unnecessary and illegal search of the basement. Id. The Supreme Court held that officers may conduct a protective sweep of the home during the execution of an arrest warrant when the officer has a reasonable suspicion based on articulable facts that an area to be searched harbors an individual who poses danger to those at the scene. Id. at This standard for determining reasonable suspicion is identical to the rule established in Terry v. Ohio, 392 U.S. 1 (1968): [T]here is an analogous interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack. Maryland v. Buie, 494 U.S. 325, 333 (1990). The Court emphasized the limited nature of this new doctrine for Fourth Amendment searches, noting that a protective sweep, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. Id. at 335. There are three essential limits on the type of search that may be conducted when justified by the situation: 1) it may extend only to a cursory inspection of those spaces 2) where a person may be found and 3) may last no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises. Id. at 326. A strict reading of Buie excludes protective sweeps in cases in which the police have neither obtained a warrant nor have probable cause to arrest an occupant. Both the facts of the case and the Court s language in creating a new warrantless search exception limit it as such. Nowhere in the opinion does the Court say, for example, whenever the officer is legally justified in entering a home, he may conduct a protective sweep if reasonable suspicion exists. Respondent and the Thirteenth Circuit, then, argue that the Supreme Court should expand Buie s holding to include situations like the case at bar, where no warrant was obtained and the officer 7

16 has neither probable cause to believe that an occupant has committed a crime, nor, for that matter even reasonable suspicion that this particular occupant is dangerous or armed. The distinction between the facts and holding in Buie and the facts in the present case are not trivial. Because of the long history of protections against searches of the home and the greatly heightened standards implicit when a warrant is obtained or an arrest is sanctioned, this Court should hold that mere consent to enter the home is not sufficient justification to allow an officer to conduct a protective search of the rest of the home. i) Importance of Warrant Requirement to the Protective Sweep Doctrine This Court has long held [i]t is a basic principle of Fourth Amendment law,... that searches and seizures inside a home without a warrant are presumptively unreasonable. Kentucky v. King, 131 S. Ct. 1849, 1856 (2011). The greatest protection conferred by the warrant requirement and its purpose is to allow a neutral judicial officer to assess whether the police have probable cause to make an arrest or conduct a search. Steagald v. United States, 451 U.S. 204, 212 (1981). It is necessary to provide this buffer between a police officer and the privacy of the home because an officer engaged in the often competitive enterprise of ferreting out crime, may lack sufficient objectivity to weigh correctly the strength of the evidence supporting the contemplated action against the individual's interests in protecting his own liberty and the privacy of his home. Id. (internal citations and quotations omitted). The Supreme Court has delineated limited instances in which a warrant is not required to conduct a search of the home. Generally search of the entire home requires either consent of the occupant or exigent circumstances, such as hot pursuit of a fleeing felon. Id. at 209. In this case, Hinkley did not consent to the full search of his home and Officer Sanford was not in active pursuit of the burglary suspect to warrant entrance to the home under the exigent circumstances 8

17 doctrine. Record 5-6. Given that the search conducted by Officer Sanford cannot be justified under these typical exceptions to the warrant requirement, the default rule suggests that a warrant should be required. Without a warrant, Hinkley and every other similarly situated home-owner or occupant lose the necessary and powerful protections that the warrant process affords them ii) Importance of Arrest Incident to the Protective Sweep Doctrine This Court has held in a similar area of Fourth Amendment jurisprudence that when police officers effectuate a custodial arrest of an individual, they may conduct a limited search of the person and the area in his immediate control. Chimel v. California, 395 U.S. 752 (1969). This includes searches within an individual s home, as occurred in the seminal case, Chimel v. California. In that case the Court held that because of the implicit dangers in effectuating an arrest of an individual and the possibility of destruction of evidence, police officers may conduct a search incident to an arrest. Id. at 763. The Court affirmed that a limited search would be reasonable, but held that a broad search of the entire home goes beyond the justifications for a search incident to arrest: officer protection and preventing evidence destruction. Id. at 768. The fact that the protective sweep took place incident to an arrest played a large role in this Court s reasoning. The Court stated, for example, the arresting officers are permitted in such circumstances to take reasonable steps to ensure their safety after, and while making, the arrest. Maryland v. Buie, 494 U.S. 325, 334 (1990). It consistently defines the authority for protective sweeps to include as a prerequisite that the search is incident to arrest and based on probable cause for an arrest. Id. at 327, 334, 336. Similar to the warrant issue discussed above, the requirement that the search be incident to arrest ensures that officers must have good reason, indeed probable cause, to believe that a given suspect or house occupant could be dangerous enough to require a warrantless search for the protection of officers. Otherwise, as in this case, 9

18 police may enter and search a home having neither probable cause to believe that the occupant has done anything wrong nor having gone through the process of obtaining a warrant to ensure that such an intrusion is legal or appropriate. iii) Consent to Enter the Home Is Not Sufficient to Justify a Protective Sweep It is not disputed that Officer Sanford was justified in entering Hinkley s home after Hinkley gave valid consent. Officer Sanford explained that he was investigating a burglary and asked Hinkley if he could come inside his home to ask a few question, especially given the rainy weather. Record 5-6. Hinkley gave consent and Officer Sanford entered the living room. Record 6. Of course, a police officer may request consent to enter a home and, if the occupant consents, the officer may enter. Kentucky v. King, 131 S. Ct. 1849, 1858 (2011). The dispute arises from Officer Sanford s complete disregard of the limitations to Hinkley s consent regarding the scope of that consent to enter the home. Once inside, Officer Sanford requested permission to look around the house to make sure that the burglar had not broken in and taken refuge in Hinkley s home. Record 6. Hinkley clearly and unequivocally denied Officer Sanford consent to search the home, assuring Officer Sanford 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. Id. Hinkley s initial consent for Officer Sanford s entry into the home does not grant the officer carte blanche to search the entire home; an individual may limit the scope of an officer s entry, as this Court has held: When an official search is properly authorized whether by consent or by the issuance of a valid warrant the scope of the search is limited by the terms of its authorization. Consent to search a garage would not implicitly authorize a search of an adjoining house; a warrant to search for a stolen refrigerator would not authorize the opening of desk drawers. Because indiscriminate searches and seizures conducted under the authority of general warrants' were the immediate evils that motivated the framing and adoption of the Fourth Amendment. 10

19 Walter v. United States, 447 U.S. 649, (1980). Based on this clear guideline for consent searches, Officer Sanford could not conduct a search of the home after Hinkley limited his consent. The question remains, then, whether the fact that Officer Sanford had Hinkley s consent to be in the home in the first place is legally equivalent to the justifications for being within the home in Buie, i.e. under the authority of a warrant in order to effectuate an arrest. Allowing consent to enter the home to serve as a sufficient prerequisite for police to conduct a protective sweep eliminates numerous protections for home privacy that the Court recognized in Buie. As stated above, this would allow the police to conduct intrusive searches of the home interpreting for themselves, the much lower burden of reasonable suspicion, rather than probable cause for arrest determined by a neutral magistrate. Furthermore, a rule allowing consent to stand in for an arrest warrant as the legal justification for entry prior to a protective sweep allows the police to completely flout this Court s longstanding jurisprudence giving homeowners the right to limit consent as they see fit. The facts of this case demonstrate exactly the kinds of harm that will inevitably follow from such a ruling. Police officers will no longer need to get search warrants or arrest warrants before entering a suspect s home; they may simply ask for consent to enter and then, based on some articulable basis, conduct a protective sweep in direct contradiction to the protestations of the homeowner. Courts regularly state that someone who consents to a search should object to a search if it exceeds their understanding of the scope authorized. See, e.g., Florida v. Jimeno 500 U.S. 248, 252 (1991) ( A suspect may of course delimit as he chooses the scope of the search to which he consents. But if his consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization. ); United States v. Saucedo, 688 F.3d 863, 868 (7th Cir. 2012) ( Of course, as 11

20 noted, suspects may limit the scope of a consent search. ); United States v. Guerrero, 806 F. Supp. 2d 992, 1000 (S.D. Tex. 2011) ( If, as the Defendant contends, he agreed to a mere inspection of the vehicle but not a search, he had ample opportunity to withdraw or limit his consent or point out to Trooper Olivarez that he had consented only to an inspection, not a search. ). But, if this Court accepts the decision of the Thirteenth Circuit, the right and responsibility of homeowners to rescind or restrict consent to search their home is gone, so long as the officer can come up with some basis for fearing that an unknown occupant could be dangerous. Lower courts have expressed serious concerns with the implications of the rule set out by the Thirteenth Circuit. See, e.g., United States v. Gould, 364 F.3d 578, 589 (5th Cir. 2004) abrogated on other grounds by Kentucky v. King, 131 S. Ct (2011) ( [P]rotective sweeps following a consent entry may in certain circumstance pose Fourth Amendment concerns not present in cases where the initial entry is pursuant to a warrant. For example, 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. ); United States v. Cordova, 758 F. Supp. 2d 1367, 1375 (N.D. Ga. 2010) ( Courts, however, have carefully scrutinized Buie searches where presence in a home is based on consent because of the possibility that consent may be requested as a pretext to engage in protective sweeps for investigation and evidence gathering purposes. ). The concerns include the possibility that consent entries might provide officers an opportunity to circumvent the warrant requirement, as they could request entry with the ulterior purpose of conducting a protective sweep. United States v. Miller, 430 F.3d 93, 100 (2d Cir. 2005). United States v. Gandia,

21 F.3d 255 (2d Cir. 2005), offers a clear example of the kinds of unreasonable intrusions that will occur if this Court extends the protective sweep doctrine. In that case, Gandia was involved in a dispute at his apartment complex and the police wanted to conduct an interview with him, deciding to do so at his home. Id. at 258. He consented. Id. The officers decided to search apartment to make sure no one is there after Gandia says he lives alone. Id. These are the types of searches that will undoubtedly become the norm anytime police are within a home by consent and then see or hear something that they do not like. This Court should not extend the protective sweep doctrine to allow for searches following a consent entry because the protections for individual privacy in the home are so much reduced from those in place in cases like Buie and because it will open the door to innumerable unconsented home searches with little or no justification. B) There Was No Reasonable Suspicion to Justify a Protective Sweep Even if a consent entry into a home is held to be legally equivalent to the arrest warrant in Buie, there was no reasonable suspicion that a dangerous person was in Hinkley s house necessary to justify a protective sweep. Under Buie, if the officer is within a home pursuant to an arrest warrant, he may perform a protective sweep if he has reasonable suspicion to believe that the home is harboring other persons who are dangerous and who could unexpectedly launch an attack. 494 U.S. at 333. The Court stated that this standard is nearly identical to the standard for determining whether an officer may conduct a stop and frisk in Terry v. Ohio, 392 U.S. 1 (1968). Id. As in Terry, this reasonable suspicion must be based on specific and articulable facts gathered by the officer. Id. at 327. The Supreme Court has recognized that the concept of reasonable suspicion is somewhat abstract, nor is it a finely-tuned standar[d]. United States v. Arvizu, 534 U.S. 266, 274 (2002). 13

22 It has also recognized, however, that the burden on officers in proving reasonable suspicion is less than probable cause. Id. at 273. The Supreme Court applied the reasonable suspicion standard in Florida v. J.L., 529 U.S. 266 (2000). In that case, the police received an anonymous tip that a black man wearing a plaid shirt was standing at a particular bus stop and was carrying a gun. Id. at 268. When the police arrived at the bus stop, they found three black males, one of whom was wearing plaid. The police officers observed nothing else about this young man s demeanor or any other corroborating information that would suggest that he was carrying a weapon. Id. The officers nonetheless ordered the young man against a wall and conducted a Terry frisk. Id. The Supreme Court held that those facts were insufficient to create a reasonable suspicion that the suspect was, in fact, carrying a weapon and the evidence that they found on him during the frisk must be excluded. Id. In the case at bar, Officer Sanford had virtually no specific and articulable facts that could support a reasonable suspicion that Hinkley s home was harboring a dangerous individual. The only specific facts that he could point to were accounts from the neighbors that a suspected burglar had, at some point earlier in the evening, fled in the general direction of Hinkley s home. Record 5. It is not clear from the record how many other houses were near Hinkley s or how much time had elapsed between when the suspected burglar had fled in that direction and Officer Sanford s arrival at Hinkley s house. Officer Sanford admitted that he did not fear Hinkley or suspect that Hinkley was the burglar, though he was aware of his prior conviction for gun possession. Record 6. The lack of specific articulable facts establishing reasonable suspicion is similar to that in Florida v. J.L. In both cases, the officers suspicion was based on a single source of information that described the suspect in vague terms. But, there are facts in this case that make the 14

23 information even less reliable. While the vague information provided to the police in J.L. was at least superficially confirmed, that there was in fact a black male wearing plaid at the bus stop, there was no such verification in Hinkley s case. Officer Sanford cannot point to a single fact upon arriving at Hinkley s home that confirmed that a burglar was within, no footprints, no broken windows, no reports of strange noises from Hinkley. In fact, Hinkley assured Officer Sanford 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. Record 6. The Supreme Court in Terry specifically established that if the initial stages of [a Terry] encounter serve[ ] to dispel his reasonable fear for his own or others' safety, the officer lacks the authority to conduct a search. 392 U.S. at 30. Everything about Hinkley s encounter with Officer Sanford -- the lack of additional clues, his willingness to answer questions, and his assurances that no one was in the home dispelled any reasonable basis for suspecting that his home was harboring a dangerous individual. In such cases, a protective sweep cannot be justified. Because of this fact, Petitioner respectfully requests that this Court reverse the decision of the Thirteenth Circuit that held that the search of Hinkley s home was reasonable under the Fourth Amendment. III) POSSESSION OF A SAWED-OFF SHOTGUN IS NOT A VIOLENT FELONY UNDER THE ARMED CAREER CRIMINALS ACT The Armed Career Criminals Act ( ACCA ) requires that any person who violates 18 U.S.C. 922(g), by being a felon in possession of a firearm, and has three previous convictions for a violent felony shall be fined under this title and imprisoned not less than fifteen years. 18 U.S.C. 924(e)(1). This is a sentencing statute that requires analysis of the nature of the previous convictions. The ACCA establishes that a violent felony: (i) has an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or 15

24 extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. Hinkley s possession of a sawed-off shotgun in violation of the National Firearms Act ( NFA ) does not satisfy the ACCA s definition of violent felony. 18 U.S.C. 924(e)(1). Possession of a sawed-off shotgun does not satisfy the force requirement of (i) nor is it one of the four crimes specifically enumerated in (ii). 18 U.S.C. 924(e)(2)(B). Therefore, in order for possession of a sawed-off shotgun to qualify as a violent felony, it must fall within the residual clause as an activity that involves conduct that presents a serious potential risk of physical injury to another. Id. Additionally, the conduct must be similar in kind to the specifically listed violent felonies. Begay v. United States, 553 U.S. 137 (2008). This is a narrow test aligning with Congressional intent that a limited number of offenses trigger the enhanced sentencing requirements. S. Rep. No , at 3, 20 (1982) (explaining the emphasis placed on having a narrow application of the ACCA). Possession of a sawed-off shotgun does not rise to the level of violent felonies considered by the residual clause. This Court established a test for determining whether a felony not otherwise listed in the statute, falls under the residual clause of the ACCA. See Begay v. United States, 553 U.S. 137 (2008). To begin the analysis, we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion. Begay, 553 U.S. at 141; see Taylor v. United States, 495 U.S. 575, 600 (1990) ( [ ] 924(e) mandates a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions. ); United States v. Whitson, 597 F.3d 1218, (11th Cir. 2010) ( In residual cases look to the language of the statute itself to discern an offense s elements and to 16

25 determine how it is generically committed. ). Begay prescribes a two-pronged test to determine whether an offense, considered generically, qualifies as a violent felony under 18 U.S.C. 924(e)(2)(B)(ii). Begay, 553 U.S. at 143. First, a court must apply the statutory language of the ACCA in order to determine whether the offense at issue involves conduct that presents a serious potential risk of physical injury to another. Id. (quoting 18 U.S.C. 924(e)(2)(B)(ii)). If the offense does present such a risk, then it will be classified as a violent felony only if it is similar, in kind as well as in degree of risk posed, to the clause s example crimes: burglary, arson, extortion, and the unlawful use of explosives. Id. The test set forth by this Court fits within the intent and purpose of the ACCA. The ACCA does not create a separate offense, but is merely a sentence-enhancing tool with the goal of increasing the penalties for a certain category of repeat offenders who had resisted previous efforts to curb criminal habits. See S. Rep. No , at 3, 20 (1982); see, e.g., United States v. Ruo, 943 F.2d 1274 (11th Cir. 1991); United States v. Fields, 923 F.2d 358 (5th Cir. 1991). Hinkley is not a career criminal of the type toward which Congress directed this statute. The offense of possession of a sawed-off shotgun does not fit within the scope of offenses identified by Congress as violent felonies. While this Court has not yet analyzed whether possession of a sawed-off shotgun is a violent felony under the ACCA, several circuit courts have considered this issue, significantly the Eleventh and Eighth Circuits. See, e.g., United States v. Vincent, 575 F.3d 820 (8th Cir. 2009); United States v. McGill, 618 F.3d 1273 (11th Cir. 2010). In McGill, the Eleventh Circuit held that possession of a sawed-off shotgun in violation of the NFA was not a violent felony. McGill, 618 F.3d at Applying the test outlined in Begay, the Court found that possession of a sawed-off shotgun was not sufficiently similar in kind or degree of risk to use of explosives, 17

26 the closest corollary of the listed offenses. McGill, 618 F.3d at The Eighth Circuit came to a different result in Vincent finding that possession of a sawed-off shotgun in violation of an Arkansas statute was a requisite violent felony under the ACCA. Vincent, 575 F.3d at 827. Vincent can be distinguished in several ways. Further, the reasoning employed by the court in McGill more closely follows that outlined by this Court in Begay. Because there is a split in the circuits, a final decision in this matter will help resolve the inconsistencies. The case law, underlying nature of the offense, and the intent of Congress all suggest that possession of a sawed-off shotgun is not a violent felony pursuant to the ACCA. A) Possession of a Sawed-Off Shotgun Does Not Fall Under Begay s Limited Standard for Violent Felonies under the ACCA i) Viewed Generically, Possession of a Sawed-off Shotgun Is Not a Violent Offense The NFA does not contain language to suggest that mere possession of an unregistered firearm is conduct that presents a serious potential risk of physical injury or is purposeful, violent, or aggressive (language the Court has used in describing the types of offenses specifically listed in 18 U.S.C. 924(e)(2)(B)(ii)). See Begay, 553 U.S. at In determining whether a felony is a predicate violent offense under the ACCA, courts use a categorical approach and look only to the fact of conviction and the statutory definition of the prior offense and do not generally consider particular facts disclosed by the record of conviction. James v. United States, 550 U.S. 192, 202 (2007) (citing Shepard v. United States, 544 U.S. 13, 17 (2005) (quoting Taylor, 495 U.S. at 602)) (explaining that the offense of possessing an unregistered sawed-off shotgun will be considered generally in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion ). Hinkley s prior conviction for possession of a sawed-off shotgun arose under the NFA. The NFA makes it unlawful for any person to receive or possess a 18

27 firearm, which is not registered to him in the National Firearms Registration and Transfer Record. 26 U.S.C. 5861(d). A sawed-off shotgun is considered a firearm under the act. 26 U.S.C. 5854(a). The NFA is primarily a regulatory measure that establishes taxation, registration, reporting, and record keeping requirements. Staples v. United States, 511 U.S. 600, 627 (1994) (Stevens, J., dissenting). On its face, the NFA establishes requirements for the possession and use of certain items. 26 U.S.C. 5841, 5845, For purposes of interpreting the offense generically there is no discussion of a violent underlying nature to possession of a shotgun. However, an underlying purpose was for Congress to use its tax power to affect behavior and promote public safety. See S. Rep. No. 1444, 73d Cong., 2d Sess., 1-2 (1934) (For example, the original Act specifically dealt with sawed-off shotguns and machineguns because in 1934, they were the dangerous weapons used by gangsters and Congress wanted to keep track of transactions and movement of these items.). Possession of an unregistered sawed-off shotgun is a public welfare offense because it involves a dangerous or deleterious device. United States v. Int l Minerals & Chemical Corp., 402 U.S. 558, 565 (1971). The NFA also describes passive crimes involving the possession of illegal or unregistered firearms, rather than their use. This is an important distinction for purposes of ACCA interpretation because the ACCA only deals with the use of certain types of dangerous weapons. 18 U.S.C. 924(e)(2)(B)(ii). While the NFA acknowledges the possibility of violent application of items such as sawed-off shotguns, the focus of the statute is not on the nature of the crime. ii) While Possession Does not Present an Immediate Risk, there May Be Potential for Future Risk and Physical Injury Congressional intent underlying passage of the NFA provides support for an argument that possession of a sawed-off shotgun presents a serious potential risk of physical injury 19

28 because the ownership of these types of firearms is often associated with criminal activity and because the firearm is inherently dangerous, could lead to serious injury if used. Historically under the ACCA the determination of whether an offense presents a serious potential risk of physical injury to another is interpreted fairly broadly. 18 U.S.C. 924(e)(2)(B)(ii); see, e.g., Begay, 553 U.S. at 141 (finding that drunk driving is a dangerous crime that falls within the above definition); McGill, 618 F.3d at 1276 (finding that possession of an unregistered rifle in violation of the NFA is a crime of violence as prescribed by the U.S. Sentencing Guidelines and falls within the above definition); United States v. Hinkley, No (13th Cir. 2013) (finding of the lower court here that possession is different from use). A finding that possession of a sawed-off shotgun satisfies the first part of the residual clause is not determinative under Begay. This is why the second step of the Begay analysis is important in limiting the number of offenses deemed to be violent felonies and keeping the statute in line with congressional intent. The residual clause is not intended to be a catch all and the ACCA limits the residual clause to crimes typically committed by those whom one normally labels armed career criminals, that is, crimes that show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger. Sykes v. United States, 131 S. Ct. 2267, 2275 (2011) (citing Begay, 553 U.S. at 146). iii) Possession of a Sawed-Off Shotgun Is Not Conduct Similar in Kind to Burglary, Arson, Extortion, or Use of Explosives Possession of a sawed-off shotgun does not satisfy the last element of the Begay test that the offense must be similar in kind to arson, burglary, extortion, or the use of explosives. 18 U.S.C. 924(e)(2)(B)(ii); see Begay, 553 U.S. at 143 ( We should read the [ACCA s] examples as limiting the crimes that [the clause] covers to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves. ). Congress provides a specific list of 20

29 offenses that significantly narrows the categories of violent felonies. Possession of a sawed-off shotgun falls outside the scope of a violent felony for many reasons. First, this Court noted that the listed crimes all typically involve purposeful, violent, and aggressive conduct. Begay, 553 U.S. at Further, possession of a sawed-off shotgun is not like burglary, arson, or extortion. While a sawed-off shotgun might be considered similar to explosives, there is a key distinction between use of explosives and possession of a sawed-off shotgun. Finally, while sawed-off shotguns may present some of the dangers of explosives and are treated similarly by the NFA, in the ACCA, Congress chose to specify the narrower category of explosives as opposed to the more general category of firearms. Violent felonies include only similar crimes to those that are specifically enumerated, rather than every crime. Begay, 553 U.S. at 142. Possession of a sawed-off shotgun is different than the listed crimes because those listed involve purposeful, violent, and aggressive conduct and demonstrate a heightened likelihood that an offender, later possessing a gun, will use that gun deliberately to harm a victim. Begay, 553 U.S. at ; see, e.g., Taylor, 495 U.S. 575, 583 ( burglary is an unlawful or unprivileged entry into a building or other structure with intent to commit a crime ); ALI Model Penal Code 220.1(1) (1985) ( arson is causing a fire or destroying a building of another or damaging any property to collect insurance ); id (extortion is purposely obtaining property of another through threat of inflicting bodily injury ); Leocal v. Ashcroft, 543 U.S. 1 (2004) (explaining that the word use most naturally suggests a higher degree of intent than negligent or merely accidental conduct which fact helps bring it outside the scope of the statutory term crime of violence ); Bailey v. United States, 516 U.S. 137, 143 (1995) (explaining that the word use suggests active employment). Possession of a sawed-off shotgun does not involve the same level of decisive action as the cited 21

30 crimes. While violent and aggressive are not clear terms. Possessing a shotgun should not be included because it itself is not a violent or aggressive offense. The First Circuit attempted to resolve some of the ambiguities stemming from the words violent and aggressive by looking to their dictionary definitions. See United States v. Herrick, 545 F.3d 53, 58 (1st Cir. 2008). Violent is defined as marked by extreme force or sudden intense activity (quoting Meriam-Webster s Collegiate Dictionary 1396 (11th ed. 2003)), and aggressive is defined as tending toward or exhibiting aggression (quoting Merriam-Webster s Collegiate Dictionary 24 (11th ed. 2003). Id. Like the analysis of these types of offenses in case law, the dictionary definitions require active conduct at a level not present in the offense of possession of an unregistered sawed-off shotgun. This Court noted that the important distinction made by Congress is whether such an offender is significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a serious potential risk of physical injury. Chambers v. United States, 555 U.S. 122 (2009) (citing 924(e)(2)(B)(ii)). This analysis is consistent with the legislative intent of include the offense of use of explosives. Among the four listed offenses, a sawed-off shotgun is most similar to explosives; however, there is a key distinction. Hinkley was charged under the NFA with possession of a sawed-off shotgun. Even if a sawed-off shotgun and explosives are considered similarly dangerous, there is an important difference between the use of something and the possession of something. This difference goes to the root and purpose of the statute. Congress included only the use but not the possession of explosives among the ACCA s example crimes. 18 U.S.C. 924(e)(2)(B)(ii). Possession is different than use. See Smith v. United States, 508 U.S. 223, 228 (1993) (explaining that when a word is not defined by statute, 22