Supreme Court of the United States

Transcription

1 No In the Supreme Court of the United States Roy Hinkley, Petitioner/Cross-Respondent, v. United States of America, Respondent/Cross-Petitioner. On Writ of Certiorari To the United States Court of Appeals For the Thirteenth Circuit Brief for Respondent/Cross-Petitioner Team 10 Counsel for Respondent/Cross-Petitioner

2 QUESTIONS PRESENTED 1. Whether a lawfully-present officer s limited protective sweep of a residence upon reasonable suspicion for a concealed lethal burglar violated the Fourth Amendment of the United States Constitution? 2. Whether possession of an unregistered sawed-off shotgun qualifies as a predicate violent felony under the residual clause of the Armed Career Criminal Act when that offense is similar in degree of risk and similar in kind to the other enumerated offenses? i

3 TABLE OF CONTENTS CONSTITUTIONAL PROVISIONS INVOLVED... 1 STATUTORY PROVISIONS INVOLVED... 1 STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 5 I. WHEN A POLICE OFFICER IS LAWFULLY INSIDE A RESIDENCE, THE FOURTH AMENDMENT ALLOWS THAT OFFICER, WHO POSSESSES REASONABLE SUSPICION THAT THE AREA TO BE SWEPT HARBORS AN INDIVIDUAL POSING DANGER, TO CONDUCT A SPATIALLY AND TEMPORALLY LIMITED PROTECTIVE SWEEP... 5 A. Temporally And Spatially Limited Protective Sweeps Conducted Without An Arrest Warrant Are Constitutional Under The Buie Doctrine Because The Same Underlying Safety Rationale Exists Regardless of the Arrest Officer Sanford s protective sweep was constitutional because he possessed reasonable suspicion that the area to be swept harbored a lethal burglar, which was based upon articulable facts and similar safety concerns that the Buie officer faced Officer Sanford s sweep satisfied the Fourth Amendment s reasonableness requirement because the sweep was tailored for minimal intrusion and temporally limited B. The Majority Of Circuit Courts Follow Buie s Officer Safety Rationale By Not Requiring An Arrest Incident To A Protective Sweep; Only A Minority Of Circuits Rely Upon The Presence Of An Arrest Warrant To Establish Safety Concerns II. FELONY CONVICTION FOR POSSESSION OF A SAWED-OFF SHOTGUN QUALIFIES AS A VIOLENT FELONY UNDER THE ARMED CAREER CRIMINAL ACT A. Possession of a Sawed-Off Shotgun Qualifies as a Violent Felony Under the ACCA because it Presents a Serious Potential Risk of Physical Injury to Another Possession of a sawed-off shotgun presents a serious risk of physical injury to another person because its sole purpose is for confrontation ii

4 2. Congress through the United States Sentencing Guidelines has determined that unlawful possession of a sawed-off shotgun is a crime of violence and only serves violent purposes The circuits uniformly find that possession of a sawed-off shotgun is inherently dangerous and serves only violent purposes This Court has repeatedly held that a violent felony under the ACCA tracks a crime of violence under the U.S. Sentencing Guidelines B. Possession of a Sawed-Off Shotgun Qualifies as a Violent Felony under the ACCA because it Involves Conduct Similar in Kind to the Enumerated Offenses Possession of a sawed-off shotgun is similar to the crimes listed in the ACCA because it has a stringent mens rea requirement Similar to the enumerated offenses in the ACCA, possession of a sawed-off shotgun involves purposeful, violent, and aggressive conduct CONCLUSION APPENDIX iii

5 SUPREME COURT CASES STATEMENT OF AUTHORITIES Begay v. United States 553 U.S. 137 (2008)...20, 21 Chambers v. United States 555 U.S. 122 (2009)...16, 19 Elkins v. United States 364 U.S. 206 (1960)...5 James v. United States 550 U.S. 192 (2007)...14, 15, 16, 17, 19 Maryland v. Buie 494 U.S. 325 (1990)...4, 5, 6, 7, 9, 14 Michigan v. Long 463 U.S (1983)...6, 7, 9, 10 Staples v. United States 511 U.S. 600 (1994)...20 Sykes v. United States 131 S. Ct (2011)...15, 16, 20, 21 Terry v. Ohio 392 U.S. 1 (1968)...6, 7, 9, 10 UNITED STATES APPELLATE COURT CASES Bailey v. Newland 263 F.3d 1022 (9th Cir. 2001)...10 Leaf v. Shelnutt 400 F.3d 1070 (7th Cir. 2005)...11, 12 Royce v. Hahn 151 F.3d 116, 124 (3d Cir. 1998)...18 United States v. Allegree 175 F.3d 648 (8th Cir. 1999)...19 iv

6 United States v. Bishop 453 F.3d 30 (1st Cir. 2006)...16, 18 United States v. Caraballo 595 F.3d 1214 (11th Cir. 2010)...12, 13 United States v. Childs 403 F.3d 970 (8th Cir. 2005)...18, 19 United States v. Crampton 519 F.3d 893 (9th Cir. 2007)...19 United States v. Gould 364 F.3d 578 (5th Cir. 2004)...8, 11 United States v. Hawkins 554 F.3d 615 (6th Cir. 2009)...18, 19 United States v. Hood 628 F.3d 669 (4th Cir. 2010)...18, 19 United States v. Jones 667 F.3d 477 (4th Cir. 2012)...13, 14 United States v. Lillard 685 F.3d 773 (8th Cir. 2012)...15 United States v. Lynch 518 F.3d 164 (2d Cir. 2008)...18 United States v. Martins 413 F.3d 139 (1st Cir. 2005)...9, 10, 11 United States v. Marquez 626 F.3d 214 (5th Cir. 2010)...15, 16 United States v. Miller 430 F.3d 93 (2d Cir. 2005)...7, 8, 11 United States v. Mendoza-Burciaga 981 F.2d 192 (5th Cir. 1992)...12 United States v. Noriega 676 F.3d 1252 (11th Cir. 2012)...12, 13 v

7 United States v. Owens 447 F.3d 1345 (11th Cir. 2006)...19 United States v. Patrick 959 F.2d 991 (D.C. Cir. 1992)...8, 11 United States v. Romain 393 F.3d 63 (1st Cir. 2004)...11 United States v. Serrano 406 F.3d 1208 (10th Cir. 2005)...19 United States v. Serna 309 F.3d 859 (5th Cir. 2002)...18 United States v. Taylor 248 F.3d 506 (6th Cir. 2001)...7, 11 United States v. Upton 512 F.3d 394 (7th Cir. 2008)...18 United States v. Vincent 575 F.3d 820 (8th Cir. 2009)...21 United States v. Williams 577 F.3d 878 (8th Cir. 2009)...13, 14 United States v. Winston 444 F.3d 115 (1st Cir. 2006)...13 United States v. Woodrum 202 F.3d 1 (1st Cir. 2000)...9, 11 UNITED STATES CONSTITUTIONAL PROVISIONS U.S. Const. amend. IV...1, 5 STATUTES 18 U.S.C. 922(g)(1) (2011)...1, 3 18 U.S.C. 924(e)(2)(b)(ii) (2011)...1, 14, U.S.C. 5845, 5861 (2011)...1, 15, 21 vi

8 MISCELLANEOUS Press Release, Eleven Gang Members and Associates Indicted Federally Federal Bureau of Investigation (Nov. 10, 2011)...17 Press Release, Manchester Man Sentenced to 22 Years for Sawed-Off Shotgun Robberies Federal Bureau of Investigation (Apr. 3, 2012)...17 Press Release, Six Indicted on Gun Trafficking Charges Federal Bureau of Investigation (Apr. 18, 2012)...17 U.S. Sentencing Commission, Guidelines Manual 4B1.2 (Nov. 2012)...17 U.S. Sentencing Guidelines Manual App. C, Amend. 674 (2004)...16 vii

9 OPINION AND ORDERS The opinion and order of the Court of Appeals for the Thirteenth Circuit is reproduced at Record ( R. ) The order of the District Court for the District of North Greene is reproduced at R. 2, 6. CONSTITUTIONAL PROVISIONS INVOLVED This case involves questions relating to the Fourth Amendment, reproduced in Appendix A, which guarantees that [t]he right of the people to be secure in their... houses... against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause. U.S. CONST. amend. IV. STATUTORY PROVISIONS INVOLVED This case involves issues relating to the Armed Career Criminal Act ( ACCA ) and the National Firearms Act. See 18 U.S.C. 924(e)(2)(B); 26 U.S.C. 5845, This case also involves 18 U.S.C. 922(g)(1). All statutes are reproduced in Appendix B. STATEMENT OF THE CASE The District Court s Fifteen-Year Sentence Petitioner Roy Hinkley ( Hinkley ) pleaded guilty in the United States District Court for the District of North Greene to being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). R. at 2, 6. Hinkley was sentenced to 180 months imprisonment and five years of supervised release under the ACCA, which mandates that anyone with three previous violent felony convictions found guilty of violating 18 U.S.C. 922(g) must be imprisoned for no less than fifteen years. R. at 2, 9. 1

10 Hinkley s Three Violent Felonies When Hinkley was fifteen, he was convicted of his first violent felony: first-degree burglary. R. at 3. He was sentenced to three years of home confinement, with electronic monitoring. Id. The judge advised him to change his ways. Id. Hinkley did not heed the judge s advice. Several years later, Hinkley was convicted of his second violent felony, arson, when he set fire to his company s warehouse in order to collect the insurance proceeds. R. at 4. Sometime later, Hinkley moved into a community on the outskirts of North Greene that he knew was unsafe. R. at 4, n. 5. Hinkley wanted to purchase a firearm, but was unable to obtain one because of his convicted felon status. R. at 4. Undeterred, he sought out the help of a friend, who procured him a maneuverable and concealable sawed-off shotgun with a 16-inch barrel. R. at 4-5. One night, after hearing a ruckus outside his home, Hinkley walked outside brandishing his shotgun and encountered a group of police officers searching for a burglar. R. at 5. One of the officers, Officer Sanford, discovered that Hinkley was holding an unregistered gun. Id. Hinkley was then charged with his third felony: possession of an unregistered sawed-off shotgun. Id. He pleaded guilty and was sentenced to ten years of probation and five years of home monitoring. Id. Officer Sanford s Protective Sweep Despite his prior conviction for possession of an unregistered gun, Hinkley convinced the same friend to buy him a handgun. Id. On June 1, 2011, Officer Sanford knocked on Hinkley s door and told him a burglar who identically matched the description of a burglar that killed Hinkley s neighbor earlier that year was seen fleeing in the direction of Hinkley s residence. Id. Officer Sanford explained he was checking each home in the neighborhood to ensure that the burglar was not hiding in one. Id. Officer Sanford then asked Hinkley if he could come inside to 2

11 ask him a few questions. R. at 5-6. Hinkley consented, and Officer Sanford entered the living room. R. at 6. Because each house in Hinkley s neighborhood had the same basic layout, Officer Sanford knew that the door directly across the living room led into the kitchen. Id. He also knew there was a back door, not visible from where they were standing, that led from the backyard into the kitchen. Id. Fearing that the burglar was hiding in Hinkley s home, Officer Sanford then conducted a protective sweep. Id. He walked across the living room, opened the kitchen door, and, before entering the room, noticed Hinkley s unregistered handgun resting on the kitchen counter. Id. Aware of Hinkley s status as a convicted felon, Officer Sanford arrested him and charged him with his fourth felony: possession of a firearm in violation of 18 U.S.C. 922(g)(1). Id. The Court Proceedings Below At trial, Hinkley moved to suppress the evidence found in his apartment on Fourth Amendment grounds. R. at 2, 6. The district court denied his motion because Hinkley consented to Officer Sanford entering his home, and Officer Sanford s subsequent protective sweep was based on reasonable suspicion. R. at 6. Hinkley also argued that his felony conviction for possession of an unregistered sawed-off shotgun did not constitute a violent felony under the ACCA recidivist sentencing enhancement statute. Id. He did not dispute that under ACCA his arson and burglary convictions qualified as violent felonies. Id. The district court found that his illegal possession of a sawed-off shotgun also constituted a violent felony. Id. Because Hinkley had committed three prior violent felonies before his most recent conviction for felonious possession of a firearm, the district court determined that he was an armed career criminal under 3

12 the ACCA and sentenced him to 180 months imprisonment and five years of supervised release. Id. Hinkley appealed. The Thirteenth Circuit affirmed the constitutionality of Officer Sanford s protective sweep by denying Hinkley s motion to suppress. R. at 9. However, the court reversed the district court s ACCA ruling. R. at 11. Both issues are now before this court. SUMMARY OF THE ARGUMENT The Fourth Amendment protects the police s authority to conduct protective sweeps when officers have reasonable suspicion that the area harbors a concealed threat. As an extension of the Terry frisk doctrine, protective sweeps are not contingent upon an arrest because officers face the same public safety issues in arrest and non-arrest situations. Further, the standard of proof for conducting a protective sweep is reasonable suspicion, not probable cause. Temporally and spatially limited protective sweeps are constitutional under the Fourth Amendment provided that such sweeps are based on specific and articulable facts. Maryland v. Buie, 494 U.S. 325, 334 (1990). The majority of circuit courts have similarly held that police may conduct a protective sweep not pursuant to an arrest, so long as the police can reasonably articulate the present danger and tailor the sweep for minimal intrusion and minimal duration. Officer Sanford s protective sweep was constitutional because he had reasonable suspicion that a lethal burglar was hiding in Hinkley s home, he limited his sweep to two adjacent rooms on the same floor, and the sweep lasted no longer than necessary to dispel the reasonable suspicion of danger. Possession of a sawed-off shotgun qualifies as a predicate violent felony under the ACCA because possession of a sawed-off shotgun presents a similar risk of serious injury to others as the enumerated offenses in clause (ii) of the ACCA. Unlike other firearms and 4

13 weapons, possession of a sawed-off shotgun is inherently dangerous and only serves violent purposes. Congress, through the United States Sentencing Commission s Guidelines (the Sentencing Commission ), has determined that possession of a sawed-off shotgun is a crime of violence serving only violent purposes. Further, the federal circuits uniformly find that possession of a sawed-off shotgun increases the risk of violence and injury to another. Possession of a sawed-off shotgun is also similar in kind to the crimes enumerated in clause (ii) of the ACCA. Possession of a sawed-off shotgun is not a crime of omission, inaction, strict liability, or recklessness; but, rather, it has a stringent mens rea requirement. Similar to the other enumerated offenses in the ACCA, possession of a sawed-off shotgun involves purposeful, violent, and aggressive conduct. ARGUMENT I. WHEN A POLICE OFFICER IS LAWFULLY INSIDE A RESIDENCE, THE FOURTH AMENDMENT ALLOWS THAT OFFICER, WHO POSSESSES REASONABLE SUSPICION THAT THE AREA TO BE SWEPT HARBORS AN INDIVIDUAL POSING DANGER, TO CONDUCT A SPATIALLY AND TEMPORALLY LIMITED PROTECTIVE SWEEP. It must always be remembered that what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures. Elkins v. United States, 364 U.S. 206, 222 (1960). This mandate is described in the Fourth Amendment, which provides that the right of the people to be secure... against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause. U.S. CONST. amend. IV. The Fourth Amendment operates as a compromise between the government s need to combat crime and the individual s right to be free from unwarranted government intrusion. This Court s Fourth Amendment doctrine consists of a series of exceptions, including circumstances where the public interest is such that neither a warrant nor probable cause is required. Buie, 494 U.S. at 331. Indeed, this Court has held that a police officer s warrantless protective sweep of a house 5

14 is constitutional if the searching officer possesse[s] a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger. Id. at 327 (quoting Michigan v. Long, 463 U.S. 1032, (1983)). Officer Sanford did not violate the Fourth Amendment by conducting a quick and limited sweep of Hinkley s home, confined to the one place in which a person might be hiding, to protect the safety of officers and others from a fleeing deadly burglar. A. Temporally And Spatially Limited Protective Sweeps Conducted Without An Arrest Warrant Are Constitutional Under The Buie Doctrine Because The Same Underlying Safety Rationale Exists Regardless of the Arrest. Officer Sanford s protective sweep was consistent with Fourth Amendment protections because it satisfied the Buie doctrine. This Court determined in Buie that the protective sweep of a residence undertaken during the execution of an arrest warrant was constitutional because the sweep was based on reasonable, articulable facts, conducted for safety purposes, and quick and limited in that the sweep was narrowly confined to a cursory visual inspection of those places in which a person might be hiding. 494 U.S. at 327. Though Officer Sanford s protective sweep was not performed in conjunction with an arrest, his sweep was constitutional because it was conducted using the same underlying safety rationale this Court outlined in both Terry v. Ohio and Michigan v. Long; that is, the specific and articulable fear that Hinkley s home harbored a dangerous threat. Moreover, the sweep was brief and narrowly confined to a mere glance. See Terry v. Ohio, 392 U.S. 1, 6-7 (1968); Michigan v. Long, 463 U.S. 1032, (1983). The protective sweep doctrine from Buie is an extension of the Terry frisk doctrine, which permits an officer to frisk an individual for concealed weapons upon reasonable suspicion. Terry, 392 U.S. at 6-7. This Court in Terry recognized that the police have a justification for 6

15 ... invasion of [an individual s] personal security because of the immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. 392 U.S. at 23. This Court, using the same public safety rationale, expanded the Terry frisk doctrine to cover protective sweeps of automobiles in Long. Long, 463 U.S. at Buie relied on both Terry and Long to bring constitutional protective sweeps into the home, based on concerns for safety of the officer and the public. Buie, 494 U.S. at 333, 327 ( The risk of danger in the context of an arrest in the home is as great as, if not greater than, [sic] it is in an on-the-street or roadside investigatory encounter. ). Accordingly, the standard of proof necessary to conduct a protective sweep in a home is no more and no less than was required in Terry. Id. at 334. While the Terry officer simply observed three men spending an unusual amount of time observing a storefront before determining that a frisk was appropriate, Officer Sanford acted on knowledge that a lethal burglar was last seen escaping in the direction of Hinkley s home, which was located in a high-crime neighborhood. See Terry, 392 U.S. at 6-7. Both Officer Sanford and the officer in Terry relied on their years of experience as police officers when they conducted protective sweeps to ensure both their safety and the public s after assessing the facts and determining reasonable suspicion existed. See id. at 7. Circuit courts analyzing the constitutionality of protective sweeps focus on the safety bent of Buie, which illustrated that this Court s paramount concern in Buie was not why the officers were present in the home but rather, why the officers might fear for their safety and what they could do to protect themselves. United States v. Miller, 430 F.3d 93, 99 (2d Cir. 2005); see also United States v. Taylor, 248 F.3d 506, 513 (6th Cir. 2001) (holding that because officers can constitutionally secure an area to ensure the preservation of evidence, it follows logically that.. 7

16 . the police may conduct a limited protective sweep [of that area] to ensure the safety of the officers. ). Of course, the protective sweep is only constitutional if the officer is lawfully within the residence. See United States v. Patrick, 959 F.2d 991, 996 (D.C. Cir. 1992). Because Officer Sanford entered Hinkley s home with Hinkley s consent, Buie s logic applies with equal force without the presence of an arrest. To restrict protective sweeps to cases where the sweep is incident to an arrest would not only change the standard of proof for such sweeps from reasonable suspicion to probable cause, but would also jeopardize the safety of officers in contravention of the pragmatic concept of reasonableness embodied in the Fourth Amendment. Miller, 430 F.3d at 100; see also United States v. Gould, 364 F.3d 578, 584 (5th Cir. 2004) ( [A]lthough arrest may be highly relevant, particularly as tending to show the requisite potential of danger to the officers, that danger may also be established by other circumstances. ). Buie may have emphasized the arrest, but it only did so because the arrest exposed officers to danger. Gould, 364 F.3d at 581. Indeed, precisely because Officer Sanford did not have an arrest warrant, he was arguably in more danger than the officers in Buie who benefited from the protection an arrest warrant provides. Officers executing an arrest warrant typically arrive in a group, with a strategic plan for entering the home and executing the arrest. Miller, 430 F.3d at 99 ( [O]fficers executing an arrest warrant... enjoy the tactical benefits of counteracting a potential threat by engaging in careful planning and entering with significant force. ). In contrast, Officer Sanford was alone pursuing a fleeing lethal burglar in a high-crime area, inside the home of a previously armed felon. The police s authority to take precautionary measures to protect themselves and the public is not limited to situations in which there is probable cause to arrest. Indeed, Officer 8

17 Sanford performed a protective sweep of Hinkley s home for the same reason that this Court found appropriate in Terry, Long, and Buie: the safety of the public and the officer. 1. Officer Sanford s protective sweep was constitutional because he possessed reasonable suspicion that the area to be swept harbored a lethal burglar, which was based upon articulable facts and similar safety concerns that the Buie officer faced. Officer Sanford s protective sweep was constitutional because the officer s rationale for the sweep was based off of reasonable, articulable facts that Hinkley s home potentially harbored a deadly burglar. The fact that Officer Sanford approached Hinkley s home in pursuit of this lethal burglar, who was last seen fleeing in the direction of Hinkley s home, is significant for two reasons. First, this knowledge created specific and articulable facts for Officer Sanford s suspicion that Hinkley s home might be harboring other persons who are dangerous and who could unexpectedly launch an attack. See Buie, 494 U.S. at Second, in Buie, this Court addressed the unique danger for officers inside a residence, which puts the officer at the disadvantage of being on his adversary s turf. Id. at 333. In fact, this Court suggested in Long that a policeman in Officer Sanford s situation is particularly vulnerable in part because a full custodial arrest had not been effected... the officer must make a quick decision as to how to protect himself and others from possible danger. Long, 463 U.S. at 1052 (quoting Terry, 392 U.S. at 28). Although the street-wise judgment of police officers are entitled to weight, reasonable suspicion must be more than a mere hunch rather, reasonable suspicion must be based off of specific, articulable facts. Terry, 392 U.S. at 28; United States v. Woodrum, 202 F.3d 1, 8 (1st Cir. 2000). The reasonable suspicion determination is grounded in an objective officer standard, which Officer Sanford satisfied here. See United States v. Martins, 413 F.3d 139, 150 (1st Cir. 2005) ( [T]he key is the reasonableness of the belief that the officers safety or the safety of 9

18 others may be at risk. ). Here, Officer Sanford s protective sweep was justified because he was told that a burglar was fleeing in the direction of Hinkley s house. Any officer would have felt vulnerable, in a room surrounded by closed doors in a high-crime area with a lethal burglar in the neighborhood. See Martins, 413 F.3d at 150 (1st Cir. 2005) (finding that, though not determinative, an officer s presence in a high-crime area counts as a factor towards the reasonable suspicion necessary to conduct a protective sweep); see also Bailey v. Newland, 263 F.3d 1022, 1033 (9th Cir. 2001) (finding reasonable suspicion for a protective sweep by combining a number of factors, including presence in a high-crime area and lack of knowledge of whether criminal accomplices were hiding in a hotel room). Taking all the factors Officer Sanford faced into consideration, there were specific, articulable facts from which an objective police officer could perceive reasonable suspicion. If this Court intended for an arrest to be prerequisite to a protective sweep, probable cause would be the appropriate standard of proof, not reasonable suspicion. Notably, neither Terry nor Long involved a search stemming from an arrest. See Terry, 392 U.S. at 6-7; Long, 463 U.S. at Therefore, to find that Buie s holding hinged upon the presence of an arrest would be contrary to precedent and logic, and change the standard of proof for a protective sweep. Officer Sanford possessed the required mere reasonable suspicion. 2. Officer Sanford s sweep satisfied the Fourth Amendment s reasonableness requirement because the sweep was tailored for minimal intrusion and temporally limited. Constitutional protective sweeps must be spatially and temporally limited, meaning that they must be narrowly confined to a cursory visual inspection of those places in which a person might be hiding and can last no longer than is necessary to dispel the reasonable suspicion of danger. Buie, 494 U.S. at Officer Sanford s protective sweep was spatially and 10

19 temporally limited because it was limited to a cursory inspection of places where a person may be found. He barely peeked into the kitchen when he saw Hinkley s unregistered gun resting on the counter, and the sweep lasted no longer than necessary to dispel the reasonable suspicion of danger. Officer Sanford s opening of the kitchen door to briefly survey the room is almost identical to the constitutional protective sweep in United States v. Martins, in which the officer believed that another person was hiding within the home and walked through the common hallway of the home to look into the bedroom. Martins, 413 F.3d at 145; see also Patrick, 959 F.2d at (holding that upon reasonable suspicion, an officer s protective sweep, which involved entering into a bedroom, was constitutional). B. The Majority Of Circuit Courts Follow Buie s Officer Safety Rationale By Not Requiring An Arrest Incident To A Protective Sweep; Only A Minority Of Circuits Rely Upon The Presence Of An Arrest Warrant To Establish Safety Concerns. The majority of circuits correctly apply the principles set out in Buie, recognizing that the practical, commonsense bent of the Terry standard does not include an arrest requirement. United States v. Woodrum, 202 F.3d 1, 7 (1st Cir. 2000). See, e.g., United States v. Miller, 430 F.3d 139 (2d Cir. 2005); United States v. Gould, 364 F.3d 578 (5th Cir. 2004); United States v. Taylor, 248 F.3d 506 (6th Cir. 2001); Leaf v. Shelnutt, 400 F.3d 1070 (7th Cir. 2005); United States v. Garcia, 997 F.2d 1273 (9th Cir. 1993); United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992). A constitutional protective sweep must be based on reasonable suspicion, a standard that centers upon the objective significance of the particular facts under all circumstances. Woodrum, 202 F.3d at 7. The reasonable suspicion standard is considerably less demanding than probable cause, the standard required for an arrest. Martins, 413 F.3d at 149 (citing United States v. Romain, 393 F.3d 63, 71 (1st Cir. 2004)). Officer Sanford s determination of reasonable suspicion was based off of similar factors that other circuits have found reasonable. 11

20 For example, the Fifth Circuit found that the police had reasonable suspicion when they conducted a protective sweep based on the fact that the officers did not know whether other suspects were in the house or armed. United States v. Mendoza-Burciaga, 981 F.2d 192, 197 (5th Cir. 1992). Similarly, Officer Sanford conducted a protective sweep based on the fact that an armed burglar was potentially within the home. Officer Sanford s protective sweep is also supported by the Seventh Circuit s analysis of reasonable suspicion, which stresses that the officer s determination is analyzed under an objective reasonableness standard. Leaf v. Shelnutt, 400 F.3d 1070, (7th Cir. 2005) (holding that it was not necessary for the officers to have made an arrest in order for their search of the apartment to be justified; the only question is whether the search was objectively reasonable. ). Though the majority of circuit courts have held that a protective sweep may be performed without an arrest, the remainder of the circuits, with one exception, have not taken a definitive opposing position. All of these minority circuits have not yet faced a case where the danger necessitating a protective sweep arose in a situation where an arrest was not ultimately made. Rather, faced with a protective sweep conducted incident to an arrest warrant, many of these circuits relied upon the presence of the arrest warrant to bolster the officer s finding of reasonable suspicion of danger. Consequently, their holdings are limited. For example, though the Eleventh Circuit has dealt with a protective sweep under circumstances where the protective sweep was incident to an arrest, the Eleventh Circuit has never mandated that an arrest must be incident to the protective sweep for the sweep to be constitutional. See United States v. Noriega, 676 F.3d 1252 (11th Cir. 2012). In fact, the Eleventh Circuit has cited favorably to circuits that have upheld protective sweeps conducted without arrests. See United States v. Caraballo, 595 F.3d 1214, (11th Cir. 2010); see 12

21 also Noriega, 676 F.3d at Further, the Eleventh Circuit specifically noted that its Carabello decision was approving of a protective sweep that was not incident to an arrest, though the Carabello fact pattern happened to include an arrest. Noriega, 676 F.3d at 1259 (citing Caraballo, 595 F.3d at ). Therefore, in the event the Eleventh Circuit were faced with a fact scenario similar to this case, the circuit might reasonably adopt the rationale of the courts it has cited and find protective sweeps not in conjunction with an arrest to be constitutional under the Buie doctrine. Indeed, like the aforementioned courts, the focus of the Eleventh Circuit s analysis of protective sweeps is properly centered on whether the police have reasonable suspicion that the home may harbor dangerous individuals. Caraballo, 595 F.3d at The Third Circuit has also never heard a case dealing with a protective sweep in a nonarrest situation. However, the Third Circuit, citing to a First Circuit case that does not require an arrest to conduct a protective sweep, noted that the purpose of a protective sweep is to protect agents from concealed threats. United States v. Foley, 218 F. App x 139, 143 (3d Cir. 2007) (citing United States v. Winston, 444 F.3d 115, 119 (1st Cir. 2006)). If the parole violator s friends in Foley were considered concealed threats, then it follows that the deadly burglar last seen running in the direction of Hinkley s house also constituted a concealed threat. See Foley, 218 F. App x at 143. Similarly, the Fourth and Eighth Circuits have only faced protective sweeps conducted incident to an arrest. See United States v. Jones, 667 F.3d 477, 481 (4th Cir. 2012); United States v. Williams, 577 F.3d 878, 881 (8th Cir. 2009). While both circuit courts used the presence of an arrest to highlight the danger the officer faced, neither has held that such sweeps 13

22 are only permitted in conjunction with an arrest. See Jones, 667 F.3d at 481; see also Williams, 577 F.3d at 881. Further, the court in Jones, like the aforementioned minority circuit courts, found that the rationale for police conducting protective sweeps was not the threat posed by the arrestee, [but] the safety threat posed by the house, or more properly by unseen third parties in the house. 667 F.3d at 484 (citing Buie, 494 U.S. at 336). The police needed only reasonable suspicion that the house harbored dangerous individuals before conducting the sweep. Id. Similarly, in Williams, the Eighth Circuit held that the legality of protective sweeps depends on whether the facts possessed by the officers and the rational inferences from those facts created a reasonable suspicion that a dangerous individual may be hidden in the home. 577 F.3d at 881. Officer Sanford could reasonably infer that a dangerous individual, the lethal burglar, was hiding in Hinkley s home based on the fact that he was told the burglar was fleeing in that direction. Applying Buie properly, and taking into consideration the safety analysis this Court has handed down through Terry, Long, and Buie, Officer Sanford s actions were constitutional, regardless of the fact that an arrest did not occur. II. FELONY CONVICTION FOR POSSESSION OF A SAWED-OFF SHOTGUN QUALIFIES AS A VIOLENT FELONY UNDER THE ARMED CAREER CRIMINAL ACT. In 1986, Congress amended the ACCA to expand the range of predicate offenses qualifying as a violent felony by adopting language that was substantially broader than the 1984 provision that it amended. James v. United States, 550 U.S. 192, 201 (2007). Specifically, Congress enacted clause (ii) of the ACCA, which says that a violent felony is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. 924(e)(2)(B)(ii). See also James,

23 U.S. at 201. Since congressional expansion of the statute, this Court has interpreted the ACCA s residual clause to include all crimes that are either similar in the degree of risk or are similar in kind to the enumerated offenses. Sykes v. United States, 131 S. Ct. 2267, 2273, 2275 (2011). Under the ACCA, unregistered possession of a sawed-off shotgun qualifies as a violent felony because unlawful possession of such an inherently dangerous weapon serves only violent purposes and because possession of a sawed-off shotgun is similar in kind to the other enumerated offenses. 18 U.S.C. 924(e)(2)(B)(ii); see also Sykes, 131 S. Ct. at A. Possession of a Sawed-Off Shotgun Qualifies as a Violent Felony Under the ACCA because it Presents a Serious Potential Risk of Physical Injury to Another. Hinkley was convicted of receiving and possessing a sawed-off shotgun not registered under the National Firearms Act. See 26 U.S.C. 5845, Rather than examine the specific conduct of petitioners, such as Hinkley, this Court has employed the categorical approach when looking at the statutory definition of unlawful possession of a sawed-off shotgun to determine whether the elements of the offense present a serious potential risk of physical injury to another. See Sykes, 131 S. Ct. at Possession of a sawed-off shotgun presents a serious risk of physical injury to another person because its sole purpose is for confrontation. A sawed-off shotgun qualifies as a violent felony under the ACCA because it is solely meant for confrontation, thus creating a serious risk of physical injury to another. Similar to the risk of confrontation inherent in the attempted burglary in James and vehicle flight in Sykes, unlawful possession of a sawed-off shotgun indicates that the offender is prepared to use violence if necessary and is ready to enter into conflict, which in turn creates a danger for those surrounding the offender. United States v. Lillard, 685 F.3d 773, 776 (8th Cir. 2012); see also 15

24 Sykes, 131 S. Ct. at 2274; James 550 U.S. at 203. While a regular firearm, such as a pistol or hunting rifle, may be used for recreational purposes, there is no purpose for possession of a sawed-off shotgun other than to initiate violence or respond to violence with violence. United States v. Marquez, 626 F.3d 214, (5th Cir. 2010). Hinkley acknowledges that he acquired the sawed-off shotgun because it was more concealable and maneuverable for home defense. Indeed, Hinkley walked outside brandishing a shotgun for the sole purpose of confronting the ruckus outside his home. R. at 4-5. While home defense is justifiable, it still presents a genuine risk of injury or confrontation to another person. The ACCA does not require risk to be a metaphysical certainty, but rather a probabilistic potential risk. James, 500 U.S. at 208. Categorically, a sawed-off shotgun is a weapon that is commonly used by criminals and is not typically possessed by law-abiding citizens for lawful purposes. District of Columbia v. Heller, 554 U.S. 570, 623, 625 (2008) (noting that possession of a sawed-off shotgun is not protected under the Second Amendment). Unlawful possession of a sawed-off shotgun is consistent with the conduct of an armed career criminal and, like attempted burglary and vehicle flight, shows an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger. Sykes, 131 S.Ct. at The confrontational character of possessing a sawed-off shotgun presents a serious potential risk of physical injury to another and thereby qualifies as a predicate violent felony under the ACCA. 2. Congress through the United States Sentencing Guidelines has determined that unlawful possession of a sawed-off shotgun is a crime of violence and only serves violent purposes. Congress has determined that possession of a sawed-off shotgun is inherently dangerous, and unlawful possession of such a weapon serves only violent purposes. United States v. 16

25 Bishop, 453 F.3d 30, 32 (1st Cir. 2006); see also U.S. Sentencing Guidelines Manual App. C, Amend. 674 (2004). Congress s determination reflects the finding of the United States Sentencing Commission in their Federal Sentencing Guidelines that [u]nlawfully possessing a... sawed-off shotgun... is a crime of violence. U.S. Sentencing Commission, Guidelines Manual 4B1.2 (Nov. 2012). The Sentencing Commission s finding is based on a detailed collection of sentencing data on virtually every federal criminal case, and is better able than any individual court to make an informed judgment about the relation between a particular offense and the likelihood of accompanying violence. James, 550 U.S. at 206 (quoting United States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992)). While the Sentencing Commission s findings do not bar court review, their report provides courts with a helpful conclusive answer on a crime s risk for violence. Chambers v. United States, 555 U.S. 122, 129 (2009). Like the Sentencing Commission s findings in James and Chambers, here, the Sentencing Commission s findings provide an empirical basis for finding that possession of a sawed-off shotgun is a violent felony and presents a risk of injury to others. U.S. Sentencing Commission, Guidelines Manual 4B1.2 (Nov. 2012). See, e.g., Press Release, Six Indicted on Gun Trafficking Charges, Federal Bureau of Investigation (Apr. 18, 2012) (announcing the indictment of gang individuals for possessing a sawed-off shotgun, theft, robbery, and unlawful possession of a firearm silencer); Press Release, Manchester Man Sentenced to 22 Years for Sawed-Off Shotgun Robberies, Federal Bureau of Investigation (Apr. 3, 2012) (announcing the twenty-two year sentencing of an individual for four armed robberies with a sawed-off shotgun); Press Release, Eleven Gang Members and Associates Indicted Federally, Federal Bureau of Investigation (Nov. 10, 2011) (announcing the indictment of eleven violent gang members for possessing sawed-off shotguns). 17

26 3. The circuits uniformly find that possession of a sawed-off shotgun is inherently dangerous and serves only violent purposes. The federal circuits uniformly find a sawed-off shotgun to be inherently dangerous where unlawful possession serves only violent purposes. While the D.C. Circuit and Federal Circuit have not spoken on the issue, the First Circuit found that possession of a sawed-off shotgun is inherently dangerous and when possessed unlawfully, serve[s] only violent purposes. Bishop, 453 F.3d at 31. While the Second and Third Circuits have not squarely addressed the issue, they have somewhat favorably cited sister circuit holdings finding possession of short-barreled shotguns inherently dangerous and serving only violent purposes. United States v. Lynch, 518 F.3d 164, 172 (2d Cir. 2008) (quoting United States v. Childs, 403 F.3d 970, 971 (8th Cir. 2005) ( possession of a short-barreled shotgun is a violent felony under the ACCA's residual clause because sawed off shotguns are inherently dangerous and lack usefulness except for violent and criminal purposes. ))); Royce v. Hahn, 151 F.3d 116, 124 (3d Cir. 1998) (citing United States v. Fortes, 141 F.3d 1, 7 (1st Cir. 1998) ( possession of a sawed-off shotgun is [a] violent felony under Armed Career Criminal Act )). The Fourth Circuit determined unlawful possession of a sawed-off shotgun to be a crime of violence. United States v. Hood, 628 F.3d 669, 673 (4th Cir. 2010). The Fifth Circuit held that because it is primarily used for violent purposes, possession of a sawed-off shotgun presents a serious potential risk of physical injury and therefore constitutes a crime of violence. United States v. Serna, 309 F.3d 859, (5th Cir. 2002). The Sixth Circuit has also found the offense to be a crime of violence. United States v. Hawkins, 554 F.3d 615, 618 (6th Cir. 2009). The Seventh Circuit explained that sawed-off shotguns are not used to hunt or shoot skeet but rather the shortened barrel makes the guns easier to conceal and increases the spread of the shot when firing at close range... [similar to] other dangerous weapons like 18

27 bazookas, mortars, pipe bombs, and machine guns. United States v. Upton, 512 F.3d 394, 404 (7th Cir. 2008). The Eighth Circuit has repeatedly held that sawed-off shotguns are inherently dangerous and lack usefulness except for violent and criminal purposes. Childs, 403 F.3d at 971 (8th Cir. 2005); United States v. Allegree, 175 F.3d 648, 651 (8th Cir. 1999). In the Ninth Circuit, while semiautomatic weapons are outside the ACCA s residual clause, unlawful possession of a short-barreled shotgun is within it because it has few, if any, legitimate uses. United States v. Crampton, 519 F.3d 893, 898 (9th Cir. 2007). The Tenth Circuit upheld a conviction under the ACCA finding the unlawful possession of a sawed-off shotgun to be a violent felony. United States v. Serrano, 406 F.3d 1208, 1211 (10th Cir. 2005). Finally, the Eleventh Circuit held that unlawful possession of a sawed-off shotgun creates a virtual inevitability that such possession will result in violence. United States v. Owens, 447 F.3d 1345, 1347 (11th Cir. 2006). 4. This Court has repeatedly held that a violent felony under the ACCA tracks a crime of violence under the U.S. Sentencing Guidelines. While the circuits uniformly find possession of a sawed-off shotgun to be dangerous and serving only violent purposes, a few outlying circuit decisions have found unlawful possession of a sawed-off shotgun to be outside the ACCA s residual clause by improperly distinguishing the ACCA and U.S. Sentencing Guidelines. See Hood, 628 F.3d at 672; United States v. McGill, 618 F.3d 1273, 1278 (11th Cir. 2010); Hawkins, 554 F.3d at 618. Contrary to these outliers, this Court has repeatedly relied on the U.S. Sentencing Guidelines when construing the ACCA s residual clause. See Sykes, 131 S. Ct. at 2272 (noting that vehicle flight constitutes a crime of violence under the U.S. Sentencing Guidelines which are nearly identical to the ACCA); Chambers, 555 U.S. at (relying on the Sentencing Commission Guidelines to find that Illinois failure-to-report offense was outside the ACCA s residual provision); James, 550 U.S. 19

28 at 206 (relying on the U.S. Sentencing Guidelines categorization of attempted burglary as a crime of violence to find attempted burglary a predicate offense under the ACCA s residual clause). Quite simply, the definition of a predicate crime of violence closely tracks ACCA's definition of violent felony. James, 550 U.S. at 206. B. Possession of a Sawed-Off Shotgun Qualifies as a Violent Felony under the ACCA because it Involves Conduct Similar in Kind to the Enumerated Offenses. Hinkley s conviction also qualifies as a violent felony because possession of a sawed-off shotgun is similar in kind to the other offenses enumerated in clause (ii) of the ACCA. Sykes, 131 S. Ct. at The ACCA s basic purpose, [a]s suggested by its title... focuses upon the special danger created when a particular type of offender a violent criminal or drug trafficker possesses a gun. Begay v. United States, 553 U.S. 137, 146. Crimes similar in kind with the other enumerated offenses are thereby consonant with the ACCA s core purpose. Id. 1. Possession of a sawed-off shotgun is similar to the crimes listed in the ACCA because it has a stringent mens rea requirement. Unlawful possession of a sawed-off shotgun is similar to the enumerated offenses in the ACCA because it has a stringent mens rea requirement. Sykes, 131 S. Ct. at Unregistered possession of a firearm is not a strict liability crime. Staples v. United States, 511 U.S. 600, 628 (1994). [B]ecause the defendant must know that he is engaged in the type of dangerous conduct that is likely to be regulated, the use of the term strict liability to describe these offenses is inaccurate. Staples, 511 U.S. at 628, n. 9. Unlike the DUI in Begay, a defendant cannot be convicted of possession of an unregistered sawed-off shotgun on mere negligence or recklessness. 553 U.S. at While the National Firearms Act does not textually contain a mens rea requirement, [s]ilence does not suggest that Congress dispensed with mens rea for the element of 5861(d). Staples, 511 U.S. at 619. Just as the statute in 20

29 Sykes was construed to require that violators act knowingly or intentionally, conviction under 5861 requires proof that [defendant] knowingly possessed the weapon. Id. at Similar to the enumerated offenses in the ACCA, possession of a sawedoff shotgun involves purposeful, violent, and aggressive conduct. Possession of a sawed-off shotgun is similar to burglary, arson, extortion, and the use of explosives because it involves purposeful, violent, and aggressive conduct. Begay, 553 U.S. at 142. Distinct from the inaction of failing to report in Chambers, possession of a sawed-off shotgun requires that a defendant actively receive and possess the prohibited weapon. See 555 U.S. 122, 128 (2009); see 26 U.S.C. 5845, Possession of a sawed-off shotgun is comparable to arson because it involves the risk of the intentional release of a destructive force dangerous to others. See Sykes, 131 S. Ct. at Possession of a sawed-off shotgun is comparable to burglary because it can end in confrontation leading to violence. See id. Most notably, possession of a sawed-off shotgun is like the use of explosives due to the fact that it can inflict indiscriminate carnage [because] the shortened barrel makes the guns easier to conceal and increases the spread of the shot when firing at a close range. United States v. Vincent, 575 F.3d 820, 826 (8th Cir. 2009). Possession of a sawed-off shotgun is sufficiently like the listed purposeful, violent, and aggressive examples in the ACCA to conclude that Congress intended the residual provision to cover it. Begay, 553 U.S. at 142. CONCLUSION For the foregoing reasons, Respondent respectfully requests that this Court affirm the Fourth Amendment judgment and deny the ACCA judgment of the court of appeals. Respectfully Submitted, Team 10 Counsel for Respondent/Cross-Petitioner 21

30 APPENDIX A 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.

31 APPENDIX B It shall be unlawful for any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. 18 U.S.C. 922(g)(1). 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, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. 924 (e)(2)(b). For the purpose of this chapter-- (a) Firearm.--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