No IN THE SUPREME COURT OF THE UNITED STATES ROY HINKLEY, Petitioner UNITED STATES OF AMERICA, Respondents. Brief for Respondents

No. 13-201 IN THE SUPREME COURT OF THE UNITED STATES ROY HINKLEY, Petitioner v. UNITED STATES OF AMERICA, Respondents. On Appeal from a judgment rendered by the United States Court of Appeals for the Thirteenth Circuit Brief for Respondents Team # 5 Counsel for Respondents

QUESTIONS PRESENTED FOR REVIEW I. Whether a police officer may 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? II. Whether possession of a sawed-off shotgun constitutes a violent felony under the Armed Career Criminal Act, 18 U.S.C. 924(e). i

TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW. i TABLE OF CONTENTS.. ii TABLE OF AUTHORITIES iv CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE... 1 STATEMENT OF THE CASE.. 2 OPINIONS BELOW.. 5 SUMMARY OF ARGUMENT. 6 ARGUMENT. 8 I. A POLICE OFFICER CAN CONDUCT A PROTECTIVE SWEEP ABSENT AN ARREST WHEN HE HAS CONSENT TO LAWFULLY ENTER THE RESIDENCE AND POSSESSES REASONABLE SUSPICION THAT THE PREMISES HARBORS A DANGEROUS INDIVIDUAL.. 8 A. Protective sweeps absent an arrest are lawful because an officer s need to protect himself from an armed and dangerous third party is present regardless of whether an arrest has taken place 9 B. Reasonable Suspicion should be the standard employed for a protective sweep when the officer is lawfully on the premises, feels he is in danger and can point to specific and articulable facts that warrant an intrusion 16 II. THE UNLAWFUL POSSESSION OF A SAWED-OFF SHOTGUN QUALIFIES AS A PREDICATE VIOLENT FELONY UNDER THE ARMED CAREER CRIMINAL ACT BECAUSE IT CREATES A SERIOUS POTENTIAL RISK OF PHYSICAL INJURY THAT IS COMPARABLE TO THE LEVELS OF RISK THAT BURGLARY, ARSON, EXTORTION AND THE USE OF EXPLOSIVES PRESENT.... 22 A. Unlawful possession of a sawed-off shotgun inherently presents the kind of serious potential risk of physical injury that the Armed Career Criminal Act contemplates 24 B. Unlawful possession of a sawed-off shotgun presents a serious potential risk of physical injury that is comparable to level of risk presented by burglary, extortion and the use of explosives. 27 ii

CONCLUSION 31 CERTIFICATE OF SERVICE 32 CERTIFICATE OF COMPLIANCE... 33 APPENDIX A.. 34 iii

United States Supreme Court Cases TABLE OF AUTHORITIES Begay v. U.S., 553 U.S. 137 (2008). Passim Chambers v. U.S., 555 U.S. 122 (2009). 23 James v. U.S., 550 U.S. 192 (2007). Passim Maryland v. Buie, 494 U.S. 325 (1990). Passim Michigan v. Long, 463 U.S. 1032 (1983)... Passim Sykes v. U.S., 131 S.Ct 2267 (2011)... 23, 27, 28 Taylor v. U.S., 495 U.S. 575 (1990). 23, 24, 27 Terry v. Ohio, 392 U.S. 1 (1968). Passim U.S. v. Knights, 534 U.S. 112 (2001) 12, 15 United States Court of Appeals Circuit Court Cases U.S. v. Daoust, 916 F.2d 757 (1st Cir. 1990) Passim U.S. v. Davis, 290 F.3d 1239 (10th Cir. 2002)... 20 U.S. v. Garcia, 997 F.2d 1273 (9th Cir. 1993). 13 U.S. v. Gould, 364 F.3d 578 (5th Cir. 2004) (en banc) Passim iv

U.S. v. Lillard, 685 F.3d 773 (8th Cir. 2012)... 25 U.S. v. McGill, 618 F.3d 1273 (11th Cir. 2010).. 28-29 U.S. v. Miller, 430 F.3d 93 (2nd Cir. 2005). 12 U.S. v. Patrick, 959 F.2d 991 (D.C. Cir. 1992). 12 U.S. v. Reid, 226 F.3d 1020 (9 th Cir. 2000) 13, 19-20 U.S. v. Romain, 393 F.3d 63 (1st Cir. 2004).. 16 U.S. v. Taylor, 248 F.3d 506 (6th Cir. 2001)... 12 U.S. v. Torres-Castro, 470 F.3d 992 (10th Cir. 2006). 14 U.S. v. Vincent, 575 F.3d 820 (8th Cir. 2009)... 29 U.S. v. Wilson, 306 F.3d 231 (5th Cir. 2002)... 12 U.S. v. Woodrum, 202 F.3d 1 (1st Cir. 2000)... 15-16 Statutory Provisions 18 U.S.C.A. 924 (2006). Passim 26 U.S.C.A. 5845 (2006)... Passim 26 U.S.C.A. 5861 (2006)... Passim Other Authorities H.R. Rep. No. 98-1073, (1984) 24 U.S. SENTENCING GUIDELINES MANUAL 4B1.2 (2006)... 25-26 v

U.S. SENTENCING GUIDELINES MANUAL app. C. sup., amend. 674 (2004) 26 Constitutional Provisions U.S. CONST. amend. IV.... Passim vi

CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE This case involves the Fourth Amendment of the United States Constitution, the Armed Career Criminal Act, 18 U.S.C. 924 and the National Firearms Act, 26 U.S.C. 5845 and 5861. The provisions, in pertinent part, are set forth in Appendix A to the brief. 1

STATEMENT OF THE CASE A Citizen s History of Criminal Acts Long before the offense that ultimately brought him before this Court, Mr. Hinkley had already established a record of breaking the law. At the early age of fifteen, Mr. Hinkley was tried and convicted for first-degree burglary. (R. at 3.) Faced with peer pressure, he burglarized his neighbor s home to retrieve memorabilia that would impress his friends. Id. Mr. Hinkley was not incarcerated, but instead sentenced to three years of home confinement and electronic monitoring. Id. Because of this leniency, Mr. Hinkley was able to complete high school, pursue higher education, and enter the workforce to provide for his family. Id. Nonetheless, Mr. Hinkley again broke the law when faced with pressure once more. When he was unable to pay his bills during the housing crisis of 2007, Mr. Hinkley again turned to crime to alleviate his problems. (R. at 4.) Disregarding the risk of serious harm to neighboring businesses, he burned down his own business in order to collect insurance proceeds. Id. When he was thereafter convicted of arson, the prosecution and judge again showed leniency during sentencing because of Mr. Hinkley s financial hardship. Id. Instead of jail time, he was given just one year of probation, allowing him to continue to work and provide for his family. Id. Mr. Hinkley soon took advantage of this extra chance. Following the destruction of his construction business, Mr. Hinkley relocated to a lowerincome area to save money on rent. Id. The area also featured a high rate of crime, with multiple armed-burglaries near Mr. Hinkley s new home. Id. Facing the pressures of living in a highcrime neighborhood, Mr. Hinkley sought to possess a firearm, despite the fact that it was unlawful to do so because of his previous convictions. Id. Ignoring the law, he contacted a friend to purchase a full-sized shotgun. Id. Instead of the traditional shotgun, however, Mr. Hinkley 2

was presented with a sawed-off shotgun with a 16-inch barrel. (R. at 5.) Mr. Hinkley accepted the sawed-off shotgun, recognizing the benefits of concealment and maneuverability of this weapon in home defense. Id. One evening shortly thereafter, Mr. Hinkley stepped outside of his home, armed with this shotgun, to address a noise he heard. Id. Mr. Hinkley was met by a group of police officers that were investigating a burglary in the vicinity. Id. Officer Terrence Sanford, a former officer with the Bureau of Alcohol, Tobacco and Firearms, approached Mr. Hinkley and learned that he was a convicted felon in possession of an unregistered sawed-off shotgun. Id. Mr. Hinkley was charged with possession of an unregistered sawed-off shotgun. Id. Yet again, the law showed Mr. Hinkley leniency. Id. Instead of incarceration, Mr. Hinkley accepted an offer for ten years of probation and five years of home monitoring, so that Mr. Hinkley would be able to provide for his family and a daughter suffering from cancer. Id. Undeterred by the law, in spite of the opportunities he had been given, and with much to lose, Mr. Hinkley yet again decided to purchase a firearm this time, a.40 caliber semi-automatic handgun. An Officer s Efforts to Ensure Safety On the evening of June 1, 2011, multiple police officers were again in Mr. Hinkley s neighborhood responding to a burglary. Id. Officer Sanford knocked on Mr. Hinkley s door. Id. The officer explained to Mr. Hinkley that there had been another burglary, that the burglar s description matched that of the burglar who killed his neighbor, and that police officers were going door-to-door to ensure that the burglar was not hiding out in the homes. Id. Mr. Hinkley then allowed Officer Sanford to enter his home. (R. at 6.) Officer Sanford was familiar with the layout of the Mr. Hinkley s home because all of the neighborhood homes had the same floor plan. Id. Officer Sanford recognized that the door 3

across the living room led into the kitchen, and the kitchen had a backdoor that led to the backyard. Id. Officer Sanford then requested to check the home to ensure a burglar had not broken in and taken refuge. Id. Mr. Hinkley refused, and told the officer that he had not heard anything all night and that his backdoor was locked. Id. Office Sanford, however, did not take these assurances for granted. Id. He proceeded to perform a brief sweep of the home as a precaution. Id. Officer Sanford opened the kitchen door, but before entering, saw a semiautomatic handgun on Mr. Hinkley s kitchen counter. Id. Mr. Hinkley was then arrested and charged with being a felon is possession of a firearm in violation of 18 U.S.C 922(g)(1). Id. 4

OPINIONS BELOW The decision of the United States District Court for the District of North Greene is unreported and is referenced on page two of the Opinion and Order of the United States Court of Appeals for the Thirteenth Circuit. The slip opinion of the Thirteenth Circuit is found at pages 2-11 of the Opinion and Order of the United States Court of Appeals for the Thirteenth Circuit. The Court of Appeals affirmed the District Court s findings in part and vacated the District Court s findings in part. The Court of Appeals held that Roy Hinkley s motion to suppress was properly denied and his conviction for a possession of a firearm by a felon was proper. The Court of Appeals additionally held that possession of an unregistered sawed-off shotgun is not a predicate violent felony under the Armed Career Criminal Act, and thus the imposition of the minimum fifteen-year sentencing requirement under the Armed Career Criminal Act was improper. 5

SUMMARY OF ARGUMENT This Court should affirm the Petitioner s conviction because the Fourth Amendment allows an officer to perform a protective sweep absent an arrest based upon reasonable suspicion. Additionally, this Court should reverse the Thirteenth Circuit s decision to vacate the Petitioner s sentence because the unlawful possession of a sawed-off shotgun is a predicate violent felony under the Armed Career Criminal Act. An officer may lawfully conduct a protective sweep when the officer conducts a brief and limited search of the premises and the search is conducted for the protection of the officer s safety. This Court has held that there are other circumstances, other than an arrest, that may justify a protective sweep. In fact, some courts have extended the protective sweep doctrine to include any circumstance where an officer is lawfully on the premises. The Thirteenth Circuit correctly reasoned that allowing protective sweeps to only occur in arrest situations would jeopardize the safety of an officer. Thus, allowing protective sweeps to only occur incident to an arrest would be in direct contrast to the mandated reasonableness grounded in the Fourth Amendment. Furthermore, the Thirteenth Circuit also correctly decided that reasonable suspicion is the appropriate standard for a protective sweep. This Court in Terry v. Ohio set out that reasonable suspicion was appropriate where the officer could point to specific and articulable facts that reasonably warrant the officer to believe that the area to be swept harbors a dangerous individual. 392 U.S. 1, 21 (1968). While this standard is considerably less demanding than that needed to show probable cause, the officer must still prove that he has more than a mere hunch or intuition of possible criminal activity. Further, reasonable suspicion is governed by an objective standard. Id. Thus, this Court must look to the facts and circumstances surrounding each situation and 6

conclude whether the officer could have reasonably believed that the area contained a dangerous individual. Therefore, protective sweeps should be governed by the same level of suspicion required by this Court in Terry. The Thirteenth Circuit erred in holding that possession of an unregistered sawed-off shotgun is not a predicate violent felony under the Armed Career Criminal Act, 18 U.S.C. 924(e). The Armed Career Criminal Act defines a violent felony as a crime punishable by imprisonment for more than one year that: has as an element the use, attempted use, or threatened use of physical force against the person of another; or is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. Because the unlawful possession of a sawed-off shotgun does not have as an element the use, attempted use or threatened of physical force against another, and because it is not burglary, arson, extortion and does not involve the use of explosives, possession of a sawed-off shotgun is only qualifies as violent felony because it otherwise involves conduct that presents a serious risk of physical injury to another. This Court has held that where an offense does not involve strict liability or reckless or negligent conduct, an offense otherwise presents a serious risk of physical injury when the level of risk is comparable to the risk presented by one of the enumerated offenses. Possession of a sawed-off shotgun satisfies this test because it presents a serious potential risk of physical injury to another that is comparable to burglary, extortion and the use of explosives. Therefore, the unlawful possession of a sawed-off shotgun qualifies as a predicate violent felony under the Armed Career Criminal Act. 7

ARGUMENT I. A POLICE OFFICER CAN CONDUCT A PROTECTIVE SWEEP ABSENT AN ARREST WHEN HE HAS CONSENT TO LAWFULLY ENTER THE RESIDENCE AND POSSESSES REASONABLE SUSPICION THAT THE PREMISES HARBORS A DANGEROU INDIVIDUAL. This Court must affirm the defendant s conviction because the Fourth Amendment does not prohibit protective sweeps absent an arrest. A protective sweep occurs when an officer conducts a quick and limited search of [the] premises that is conducted to protect the safety of police officers or others. Maryland v. Buie, 494 U.S. 325, 327 (1990). However, an officer must first lawfully be on the premises by consent, a warrant, probable cause or exigent circumstances. Id. Additionally, an officer is only permitted to conduct a search of those areas in which a person could be hiding. Id. Furthermore, a protective sweep must be justified by the circumstances and must not last longer than is necessary to eliminate the suspicion of danger. Id. at 335. In determining whether protective sweeps are justified, courts must also balance the individual s privacy interest against the government s legitimate interest. Terry v. Ohio, 392 U.S. 1, 21 (1968). This Court has held that officer safety is a legitimate governmental interest and is afforded the utmost protection. See id. at 23. Officer safety is a paramount concern in such high-risk situations and thus a brief intrusion into an individual s privacy interest is far outweighed by the immediate concern for officer safety. Michigan v. Long, 463 U.S. 1032, 1047 (1983). Concern for officer safety does not diminish just because an officer may not have an arrest warrant to conduct a protective sweep. U.S. v. Gould, 364 F.3d 578, 581 (5th Cir. 2004) (en banc). An officer is at risk of an ambush by an unknown third party when performing a protective sweep of the premises whether or not he contains an arrest warrant. See id. Therefore, there is no definitive rule that a protective sweep may only be conducted once an arrest has been 8

made. See id. Instead, this Court must look to the facts and circumstances surrounding each individual case. Id. Reasonable suspicion should be employed when determining if a protective sweep is justified. Although reasonable suspicion is a less demanding standard than probable cause, it still requires this Court to balance the individual s interest against the government s interest. Terry, 392 U.S. at 21. An officer s need to protect himself and other potential victims of violence is a highly safeguarded governmental interest. Buie, 494 U.S. at 335. Thus, an officer conducting a protective sweep pursuant to a reasonable belief that he is in danger outweighs the brief intrusion upon an individual s privacy interest. Terry, 392 U.S. at 332. Moreover, when determining the reasonableness of a search, the officer must point to specific and articulable facts that warrant a search. Id. at 21. Thus, an officer must have more than a mere hunch or intuition that the area harbors a dangerous individual. Id. In addition, the officer must look to the surrounding circumstances to determine whether those facts justify invading the individual s privacy interest. Id. Therefore, if an officer has reasonable suspicion that he is in danger by a third party, the protective sweep is justified. See id. Thus, it is imperative that this Court holds that an officer may perform a protective sweep absent an arrest when an officer can point to specific and articulable facts that warrant a finding of reasonable suspicion. A. Protective sweeps absent an arrest are lawful because an officer s need to protect himself from an armed and dangerous third party is present regardless of whether an arrest has taken place. Recognizing the growing importance of an officer s safety, this Court first considered the constitutionality of a warrantless search in Terry v. Ohio. 392 U.S. 1 (1968). In Terry, the officer performed a protective frisk of the individual s outer clothing to ensure that the suspect was not armed and dangerous. Id. at 7. Additionally, the officer did not arrest the suspect before 9

the limited search took place. Id. This Court in Terry dispensed of the probable cause requirement. Id. Instead, this Court explained that in dangerous situations, an officer must be given the right to protect himself when he possesses reasonable belief that he is in danger. Id. at 21. Here, it recognized that a brief stop and frisk is a minimal intrusion of one s Fourth Amendment rights. Id. at 24 25. Thus, this Court stated that when balancing the interests, there is a greater concern for officer safety when the suspect could unexpectedly remove a weapon that could fatally harm the officer. Id. at 22. Therefore, it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. Id. This Court in Michigan v. Long validated and extended the principles articulated in Terry. 463 U.S. 1032 (1983). In Long, this Court further affirmed two principles set out in Terry. See generally Michigan v. Long, 463 U.S. 1032 (1983). First, that roadside encounters between police and suspects are especially hazardous and that substantial dangers arise when a suspect may have weapons within his surrounding area. Id. at 1033. Second, a suspect is no less dangerous simply because he is not arrested. Id. at 1050. Thus, the protective search of a passenger compartment of a vehicle was upheld when the officer had reason to believe the vehicle contained potentially dangerous and harmful weapons. Id. at 1049. Therefore, Long reaffirmed that a brief intrusion into an individual s privacy interest is far outweighed by the immediate concern for officer safety. Id. The principles first articulated in Terry and Long prompted the establishment of the protective sweep doctrine. See generally Maryland v. Buie, 494 U.S. 325 (1990). In the landmark case of Maryland v. Buie, this Court established that a protective sweep occurs when an officer conducts a quick and limited search of [the] premises and is conducted to protect the safety of police officers or others. Id. at 327. However, an officer is only permitted to 10

conduct a search of those areas in which a person could be hiding. Id. Furthermore, a protective sweep must be justified by the surrounding circumstances and cannot last longer than is necessary to eliminate the suspicion of danger. Id. at 335 36. For example, the police in Buie obtained an arrest warrant to enter the suspect s home. Id. at 328. The police then entered the suspect s home and blocked off the basement area so that no armed and dangerous third party could surprise the officers. Id. The suspect then emerged from the basement and was placed under arrest. Id. Thereafter, another officer entered the basement to ensure there were no other potentially dangerous individuals in the house. Id. This Court in Buie reasoned that the risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter. Id. at 333. Additionally, when an officer is inside a suspect s home, he is at the disadvantage of being on his adversary s turf. Id. An officer is more likely to be ambushed in the confines of the suspect s home rather than in open and familiar settings. Id. Even though such an intrusion infringes upon one s cherished personal security interest, such a brief intrusion is necessary to protect an officer from harm. Id. Thus, that interest is sufficient to outweigh the intrusion such procedures may entail. Id. at 334. This Court further emphasized that a protective sweep should be justified by the surrounding circumstances, indicating that an arrest is not always a precursor to performing a protective sweep. Id. at 335. Alternatively, having an arrest prior to conducting a protective sweep is one out of many factors that must be considered. See id. Moreover, a protective sweep is not automatically justified in every situation, but is only justified when the officer possesses reasonable suspicion that the house harbors an individual posing a danger to those on the arrest scene. Id. at 334. Therefore, this Court held that the Fourth Amendment allows for an officer to conduct a warrantless protective sweep when the 11

officer has a reasonable belief that the area to be swept harbored an individual who posed a danger to the officer within the home. Id. at 335. Following this Court s decision in Buie, the majority of circuits below have affirmatively answered that an officer can perform a protective sweep absent an arrest. See U.S. v. Daoust, 916 F.2d 757 (1st Cir. 1990); U.S. v. Miller, 430 F.3d 93 (2nd Cir. 2005); U.S. v. Gould, 364 F.3d 578 (5th Cir. 2004) (en banc); U.S. v. Taylor, 248 F.3d 992 (6th Cir. 2001); U.S. v. Garcia, 997 F.2d 1273 (9th Cir. 1993); U.S. v. Patrick, 959 F.2d 991 (D.C. Cir. 1992). This Court should also uphold the validity of a protective sweep absent an arrest warrant. See id. Specifically, the Fifth Circuit sitting en banc in U.S. v. Gould overturned the bright-line rule set out in U.S. v. Wilson, thereby ruling that protective sweeps can occur in non-arrest situations. 364 F.3d 578, 580 (5th Cir. 2004) (en banc). In Gould, the officers received a tip that the suspect planned to kill two judges. Id. at 580. Acting on the tip, the officers went to the suspect s home. Id. The officers were told that the suspect was sleeping, but were given consent by another individual to enter the home. Id. Upon entering, the officers noticed the bedroom door was open and that no one was sleeping in the bed. Id. Fearing that the hidden suspect was armed and dangerous, the officers conducted a protective sweep of the bedroom. Id. There is no definitive rule that a protective sweep may only be conducted once an arrest has been made. See id. at 581. In fact, the language in Buie indicates that there are situations other than incident to [an] arrest, where an officer may feel he is in imminent danger and conduct a protective sweep. Id. This Court has stated that the opinion in Buie does not stand for the proposition that an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search that is not like it. U.S. v. Knights, 534 U.S. 112, 112 (2001). Additionally, the majority in Buie does not suggest that this Court would have rendered the 12

protective sweep unconstitutional if the officer had entered pursuant to lawful consent rather than an arrest warrant. Gould, 364 F.3d at 581. In arriving at the holding in Buie, this Court heavily relied on Terry and Long, both of which did not involve an arrest. Id. Thus, while an arrest is highly relevant, it is not always, or per se, an indispensible element of a protective sweep. Id. at 584. The Ninth Circuit also joined the majority viewpoint in U.S. v. Garcia. 997 F.2d 1273 (9th Cir. 1993). The officers in Garcia were given consent to enter the suspect s home. Id. at 1277. Once inside, the officers performed a protective sweep of the premises absent an arrest. Id. The court in Garcia focused on whether the officers were lawfully on the premises and whether the officers safety was at risk because of a possible unknown third party. Id. at 1282. The court held that the protective sweep was constitutional because the officers were securing the home to protect themselves from an unknown dangerous third party. Id. Alternatively, the Ninth Circuit held the protective sweep in U.S. v. Reid unconstitutional. 226 F.3d 1020, 1028 (9th Cir. 2000). However, the protective sweep in Reid was invalid because the officers were not given consent to be within the suspect s home. Id. at 1025 26. Therefore, the Ninth Circuit stands firm in its decision to uphold protective sweeps that occur absent an arrest when an officer is lawfully on the premises. See id. Additionally, the First Circuit has also upheld protective sweeps absent an arrest. U.S. v. Daoust, 916 F.2d 757, 759 (1st Cir. 1990). In U.S. v. Daoust, the officers entered the suspect s home pursuant to a search warrant for weapons contained within the suspect s kitchen. 916 F.2d 757, 758 (1st Cir. 1990). However, once lawfully inside the home, the officers conducted a protective sweep of the surrounding rooms to ensure they were safe from any armed and dangerous third party. Id. at 759. The court reasoned that the officers possessed reasonable suspicion of danger because the home was isolated, the suspect 13

owned a gun, and the suspect had a history of violence. Id. Thus, the officers had reason to believe they would be subject to an ambush in the isolated cabin by an unknown third party. Id. Therefore, the court held that the safety interest outweighed the individual s privacy interest and that the officer s reasonable suspicion justified a protective sweep. Id. Protective sweeps are deemed constitutional when an officer reasonably believes he is in danger. See Buie, 494 U.S. at 327. However, this does not allow for all officers to conduct protective sweeps at their sole discretion, as the officer must lawfully be within the home and the sweep must be conducted pursuant to a legitimate governmental interest. See id. at 583. It has been held that an officer may perform a protective sweep incident to an arrest because the suspect is dangerous and thus can pose a danger to the arresting officer. Id. However, as this Court set out in Terry, the lack of an arrest warrant does not make an officer less susceptible to danger than an officer who possesses an arrest warrant. Id. at 582. Thus, there are circumstances other than incident to an arrest that would expose the officer to the same dangers and would justify the officer protecting himself by performing a protective sweep. Id. For example, the officer in Buie would have been exposed to the same level of danger, regardless of whether the suspect had been arrested. See id. at 581. Only one circuit has affirmatively held that a protective sweep is only justified when incident to an arrest. See U.S. v. Torres-Castro, 470 F.3d 992, 1001 (10th Cir. 2006). However, the majority in Torres-Castro acknowledged that this is the minority view. Id. at 997. The court explained that they are bound by their own precedent and cannot adopt the majority view until an en banc panel determines otherwise. Id. This Court, unlike the Tenth Circuit, is not bound by Tenth Circuit precedent and thus should not adopt this minority per se rule. 14

The cornerstone of the Fourth Amendment is the determination of whether a search or seizure is reasonable. Terry, 392 U.S. at 19. Reasonableness of a search is determined by assessing the degree to which [the search] intrudes upon an individual s privacy against the degree to which [the search] is needed for the promotion of legitimate governmental interests. Knights, 534 U.S. at 118 19. This Court has mandated that this balancing test must always be employed when determining whether a reasonable search has occurred under the Fourth Amendment. Buie, 494 U.S. at 332. Further, upholding an individual s privacy interest should not come at the expense of the government s interest in safeguarding officer safety. Terry, 392 U.S. at 23. In fact, many more officers have been killed in non-arrest situations than pursuant to an arrest. See id. This shows that the governmental interest is even stronger in non-arrest situations than in arrest cases. See id. For example, the officers in Terry attempted to prevent a crime before it could be carried out. See id. at 7. In contrast, the officers in Buie arrested a suspect who had already committed the crime. See Buie, 494 U.S. 325 at 328. Therefore, the government s interest in preventing crimes before they occur is just as important as the government s interest in arresting a wanted criminal. When determining if a protective sweep is constitutional, a protective sweep is justified when an officer reasonably believes that an individual poses a danger to the officers on the scene. Id. at 325. Reasonableness, however, is an objective standard. U.S. v. Woodrum, 202 F.3d 1, 7 (1st Cir. 2000). Thus, this Court must look to the facts and circumstances surrounding the officer s unique situation. Terry, 392 U.S. at 21. Thereafter, this Court must determine whether it was reasonable for the officer to have believed he was in danger. See id. Thus, determination must be made on a factual basis of each individual case. See id. Having a bright-line rule would deprive officers of their right to take necessary precautions to protect themselves when lawfully 15

inside a home. See Gould, 364 F.3d at 581 86. Furthermore, employing a bright-line rule would force an officer to decide between his own safety and conducting a lawful investigation. See id. Rather, when employing the mandated balancing test, protective sweeps in non-arrest situations can weigh heavily in favor of a justified protective sweep. See id. Thus, establishing a brightline rule would prove to be entirely unreasonable and would be contrary to the mandated Fourth Amendment reasonableness test. See id. Therefore, this Court should rule that an officer may conduct a protective sweep when he is lawfully on the premises and reasonably believes that he must conduct a search of areas where a dangerous individual could be hiding. B. Reasonable Suspicion should be the standard employed for a protective sweep when the officer is lawfully on the premises, feels he is in danger and can point to specific and articulable facts that warrant an intrusion. Protective sweeps must be governed by reasonable suspicion in order to uphold the government s legitimate interest in officer safety. Reasonable suspicion requires an officer to have specific and articulable facts, which taken together with rational inferences from those facts reasonably warrants an officer to believe that the area to be swept harbors a dangerous individual. Terry, 392 U.S. at 21. Additionally, reasonable suspicion is an objective standard, and centers upon the objective significance of the particular facts under all the circumstances. U.S. v. Woodrum, 202 F.3d 1, 7 (1st Cir. 2000). While this is a less demanding standard than probable cause, the officer s suspicion must be more than a mere hunch, intuition, or desultory inkling of possible criminal activity. U.S. v. Romain, 393 F.3d 63, 71 (1st Cir. 2004). Further, the balancing test must always be employed when determining whether reasonable suspicion is the appropriate standard for a protective sweep. Buie, 393 U.S. at 332. This Court must balance the nature of the invasion of the individual s Fourth Amendment rights against the government s legitimate interest. Id. This Court set out in Terry that officer safety is a legitimate 16

governmental interest. Terry, 392 U.S. at 23. Additionally, it held that the need for law enforcement officer s to protect themselves and other prospective victims of violence outweighs the brief intrusion upon an individual s privacy interest. Id. at 24. This Court has ruled that reasonable suspicion is the appropriate standard when an officer is conducting a brief and limited search for weapons. See id. at 21. This was exemplified in Terry, when a police officer observed a suspect casing a store for a potential robbery. Id. at 6. The officer briefly frisked the individual and found a weapon on his person. Id. at 7. This Court explained that probable cause is not required to frisk an individual when the intrusion is one that is limited in scope and nature. Id. at 21. Therefore, this Court held that reasonable suspicion was the appropriate standard. Id. at 30. Further expanding the doctrine of reasonable suspicion, this Court upheld an officer s reasonable suspicion for a protective search of an automobile when the officer had specific and articulable facts that the automobile contained a weapon. Long, 463 U.S. at 1035. Thus, this Court affirmed its longstanding proposition that the interests weigh heavily in favor of officer safety when the officer has a reasonable belief based on specific and articulable facts that the individual possesses a weapon. Id. Justifying its decision, this Court explained that the individual s infringed privacy interest is minimal compared to an officer s need to protect himself and other prospective victims of violence in situations where [he] lack[s] probable cause to arrest. Id. at 1047. Additionally, an officer has a stronger need to protect himself when conducting a search of places where a weapon could be stored. Id. at 1048. Thus, this Court further expanded the doctrine of reasonable suspicion to instances where an officer s safety was at risk and the nature of the privacy intrusion was both brief and limited in scope. Id. at 1038. Therefore, this Court in Terry and Long held that reasonable suspicion is the appropriate standard when an officer is conducting a brief and limited search of an individual. 17

The standard of suspicion required to conduct an in-home protective sweep was first thoroughly analyzed by this Court in Buie. Buie, 494 U.S. at 327. First, the balancing test was employed to determine if reasonable suspicion was the appropriate standard. Id. at 332. Here, this Court analogized an in-home protective sweep to a Terry stop and frisk. Id. at 331. It determined that protective sweeps exhibit the same characteristics of a Terry stop and frisk. Id. Just like a Terry stop, a protective sweep is also limited in scope and nature because an officer is only permitted to inspect the areas in which an individual could be hiding. Id. at 335. Additionally, this Court ruled in favor of the protective sweep doctrine so that an officer can protect himself by eliminating the possibility of a third party ambush. Id. Further, the protective sweep cannot last longer than is necessary to dispel the reasonable suspicion of danger and for the officer to leave the premises. Id. at 335 36. Officer safety is afforded the utmost protection when conducting a protective sweep because [t]he risk of danger in the... home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter. Id. at 333. Thus, an in-home protective sweep is unlike an officer conducting a search on a public street or highway. Id. Here, the officer is placed at the disadvantage of being on the adversary s turf. Id. Thus, the possibility of an ambush inside a suspect s unknown dwelling is far more dangerous than in more open and familiar settings. Id. Therefore, this Court held that reasonable suspicion is the appropriate standard when an officer is conducting a protective sweep because it is a brief, limited search of the suspect s home and is conducted to ensure the safety of the officers and other potential victims. Id. at 327. It is well settled that reasonable suspicion is the appropriate standard when conducting a protective sweep. See Gould, 364 F.3d at 587. For example, the court in Daoust held that there was an objective basis for a reasonable suspicion of risk to the safety of the officers. Daoust, 18

916 F.2d at 759. The officers in Daoust saw a shotgun through the window of the suspect s home. Id. at 758. The suspect lived in an isolated log cabin and had no means of electricity or telephone. Id. The officers retrieved a search warrant and came back and entered the suspect s home. Id. at 759. Upon entering the home, they conducted a protective sweep of the surrounding rooms. Id. The court reasoned that the officers possessed reasonable suspicion of danger because the suspect lived in an isolated cabin, owned a gun, and had a criminal history of violence. Id. Thus, it was reasonable for the officers to have feared that the suspect or someone else could be within the home and use a weapon against them. Id. Additionally, the court in Gould held that reasonable suspicion justified the officers protective sweep of the suspect s home. Gould, 364 F.3d at 593. The officers in Gould received a tip that the suspect was prone to violence and planned to kill two judges. Id. at 591. The officers went to the suspect s home, where another individual answered the door and informed the officers that the suspect was in bed sleeping. Id. at 592. However, the open bedroom door revealed to the officers that there was no one inside. Id. Fearing that the armed and dangerous suspect might launch a surprise attack from a hidden location, the officers conducted a protective sweep of the premises. Id. Further, the officers had reasonable suspicion because the suspect had ready access to lethal weapons, the officers were on his turf, and the suspect was not where the individual claimed him to be. Id. Again, the court expressly rejected that probable cause is needed to conduct a protective sweep. Id. Therefore, the officers possessed reasonable suspicion to conduct a protective sweep to protect themselves from potentially armed and dangerous third parties. Id. Contrastingly, the court in U.S. v. Reid rendered a protective sweep unconstitutional. United States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2000). The officers in Reid believed an individual was committing narcotics violations. Id. at 1022. The officers went to the suspect s 19

partner s home, where they had reason to believe the suspect was residing. Id. Thereafter, they were greeted by an unknown third individual. Id. at 1023. Upon greeting the officers, the individual fled the apartment. Id. Subsequently, the officers restrained him outside of the home and placed him in handcuffs. Id. The officers then asked the individual if anyone else was in the home, to which he replied, No. Id. Smelling burning marijuana emanating from the home, the officers went back inside and conducted a protective sweep of the home. Id. The court reasoned that the smell of burning marijuana alone does not satisfy the officers burden of pointing to specific and articulable facts. Id. at 1028. Further, it is possible that one person can smoke marijuana alone. Id. Therefore, the court implicitly held that although reasonable suspicion is the appropriate standard, the officers did not possess specific and articulable facts to justify reasonable suspicion. See id. Moreover, the court in U.S. v. Davis ruled a protective sweep unconstitutional because the officers could not have reasonably believed they were in danger. 290 F.3d 1239, 1243 (10th Cir. 2002). The officers in Davis went to the suspect s home and asked to come inside. Id. at 1241. The suspect declined to let the officers inside, instead allowing his wife to speak to the officers outside the home, while he retreated back inside. Id. Subsequently, the officers pushed the refusing wife out of the way and forcefully entered the home. Id. The officers claimed that they entered for the limited purpose of protecting officer safety by gaining control of [the defendant], whom they believed was going inside to retrieve a weapon. Id. However, there was no evidence that the officers believed the defendant was a violent man nor was there any evidence that the defendant had acted in an aggressive manner. Id. at 1243. Thus, the court held that the officers did not have reasonable suspicion to search the premises. Id. at 1244. Thus, the facts in Reid and Davis are highly distinguishable and should not apply to the present situation. 20

In the present case, the defendant lived in a high crime neighborhood. R. at 4. Within a one-month span, four houses on [the defendant s] street were burglarized, as well as several cars. Id. Specifically, an armed robbery had occurred two doors away from the defendant s home. R. at 4. On another occasion, the homeowner across the street from [the defendant s] home was shot and killed during a home invasion. R. at 5. Unable to lawfully obtain a weapon because of his prior felonies, the defendant purchased a handgun from a friend in an effort to protect himself. Id. On June 1, 2011, Officer Sanford approached the defendant s door and explained that he was investigating another burglary in the neighborhood. Id. Additionally, he explained that the description of the burglar was identical to the description of the burglar who had killed [the defendant s] neighbor in a previous burglary. Id. Similar to Gould, Officer Sanford was given consent to enter the residence. R. at 6. Additionally, just as the officers in Gould and Daoust had reason to believe the suspect was armed and dangerous, Officer Sanford had reasonable belief that the runaway burglar was armed and dangerous. Id. Furthermore, just as the officers in Gould received a tip, Officer Sanford received reports that the burglar fled in the direction of the suspect s apartment and was hiding out in one of the neighboring apartments. R. at 5. Although the officers in Gould and Daoust conducted a search of the suspect s home, here the officer had reason to believe that the suspect could be hiding within the defendant s home. R. at 6 Additionally, Officer Sanford recognized the defendant from his previous arrest for possessing an unlawful sawed-off shotgun. Id. Just as the court reasoned in Gould and Daoust, the officer here had reason to believe the defendant s home contained a readily available weapon and thus needed to protect himself against the lethal weapon. Id. Further, Officer Sanford was familiar with the basic layout of these homes and knew that where he was standing in the living room contained several doors that led to other 21

rooms. Id. He also knew that the house had a backdoor that led from the backyard into the kitchen. Id. Thus, the suspect could have unknowingly been hiding out in the defendant s home. See id. Just as the officers in Gould gathered reasonable suspicion before performing the protective sweep, Officer Sanford also made reference to these specific and articulable facts before conducting the protective sweep of the kitchen, where he believed the suspect could be hiding. Id. Although the defendant refused to consent to a search of his premises, the defendant did not rescind his consent for Officer Sanford to be present in his home. Id. Thus, Officer Sanford remained lawfully on the premises. During his protective sweep, Officer Sanford opened the closed kitchen door to prevent the armed and dangerous suspect from ambushing the officer. Id. Just as the court in Gould and Daoust held that reasonable suspicion is the appropriate standard and that the facts supported a finding of reasonable suspicion, this Court should also hold that Officer Sanford had reasonable suspicion to conduct the protective sweep and protect himself from the potentially armed and dangerous third party. Gould, 364 F.3d at 584; Daoust, 916 F.2d at 759. Therefore, this Court must rule that reasonable suspicion should govern protective sweeps so that an officer may take reasonable means to protect himself from an unknown armed and dangerous third party. II. THE UNLAWFUL POSSESSION OF A SAWED-OFF SHOTGUN QUALIFIES AS A PREDICATE VIOLENT FELONY UNDER THE ARMED CAREER CRIMINAL ACT BECAUSE IT CREATES A SERIOUS POTENTIAL RISK OF PHYSICAL INJURY THAT IS COMPARABLE TO THE LEVELS OF RISK THAT BURGLARY, ARSON, EXTORTION AND THE USE OF EXPLOSIVES PRESENT. The Thirteenth Circuit erred in holding that possession of an unregistered sawed-off shotgun is not a predicate violent felony under the Armed Career Criminal Act, 18 U.S.C. 924(e) ( ACCA ). The ACCA imposes a minimum fifteen-year sentence for a felon who is convicted of unlawfully possessing a firearm and has three or more previous convictions for 22

violent felonies. 18 U.S.C. 924(e)(1). A violent felony is defined as a crime punishable by imprisonment for more than one year that: (i) (ii) has as an element the use, attempted use, or threatened use of physical force against the person of another; or is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. Id. 924(e)(2)(B) This Court first analyzed the second phrase of clause (ii) ( the residual clause ) in James v. U.S., 550 U.S. 192 (2007), to determine when and under what circumstances an offense would otherwise involve conduct that presents a serious potential risk of physical injury to another. Beginning with James, and continuing through Begay v. U.S., 553 U.S. 137 (2008), Chambers v. U.S., 555 U.S. 122 (2009) and finally Sykes v. U.S., 131 S.Ct. 2267 (2011), what emerged from this Court is a framework that initially focuses on the level of risk of the offense in question. Sykes, 131 S.Ct. at 2275. If the offense in question requires a purposeful or knowing state of mind and presents a level of risk that is comparable to that of the most closely related enumerated offense in 924(e)(2)(B)(ii), the offense qualifies as violent felony. Id. The Court will only inquire if an offense is roughly similar in kind to the enumerated offenses if the offense in question does not have a strict mens rea requirement that is, does not require that the violator act knowingly or intentionally. Id. The Court determines that an offense is roughly similar in kind of it involves purposeful, violent and aggressive conduct that is typical of the enumerated offenses. Begay, 553 U.S. at 145. While not dispositive, statistical evidence is also used to provide a conclusive answer concerning the risks that a crime presents Sykes, 131 S.Ct. at 2275; Chambers, 555 U.S. at 129. Further, in evaluating whether an offense is a violent felony, the offense is examined categorically. Taylor v. U.S., 495 U.S. 575, 602 (1990). That is, courts look only to the statutory 23

definition of the crime and how it is generally committed to determine if it should be included within the residual clause, and not to the circumstances under which an offender may have committed the crime on a particular occasion. Begay, 553 U.S. at 140. The National Firearms Act proscribes the unlawful possession of a sawed-off shotgun, in 5861(d) stating that it shall be unlawful for any person... to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record, where 5845(a) identifies a sawed-off shotgun as a weapon made from a shotgun is 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. 18 U.S.C. 5845, 5861 (2006). 1 A. Unlawful possession of a sawed-off shotgun inherently presents the kind of serious potential risk of physical injury that the Armed Career Criminal Act contemplates. The Armed Career Criminal Act was enacted in 1984 in a congressional effort to curb the recidivism of armed, habitual criminals. H.R. Rep. No. 98-1073, at 1 (1984). Congressional findings noted that a large percentage of American households were affected by crimes involving violence, and that a large percentage of these crimes were committed by a very small percentage of repeat offenders. Id. Throughout the evolution of ACCA s legislative history, Congress s focus has remained with averting the special societal danger created when a particular type of offender the violent, career offender possesses a gun. Begay, 553 U.S. at 146; Taylor, 495 U.S. at 587. For this reason, the ACCA s text has always explicitly examined a criminal s past crimes to determine if those crimes are of a violent nature so as to indicate that there is an increased likelihood that the offender is the kind of person who might deliberately point the gun 1 See United States v. Michel, 446 F.3d 1122 (10th Cir. 2006)(holding that although government was required to prove that defendant knew he was in possession of a sawed-off shotgun, it was not required to prove that the defendant knew the weapon was unregistered). 24

and pull the trigger. Begay, 553 U.S. at 146. If such an increased likelihood is shown, the offender is subjected to a mandatory minimum fifteen-year mandatory prison term when convicted for unlawfully possessing a firearm. Id. The unlawful possession of a sawed-off shotgun is exactly the kind of violent crime that the ACCA contemplates because such a weapon is not useful except for violent and criminal purposes. U.S. v. Lillard, 685 F.3d 773, 776 (8th Cir. 2012). People do not shorten their shotguns to hunt or shoot skeet. U.S. v. Upton, 512 F.3d 394, 404 (7th Cir. 2008). Instead, the barrel is deliberately manipulated and decreased in length for two reasons: it makes the gun easier to conceal and it increases the spread of the shot, which in turn, inflicts more damage from close range. Id. It is for this exact reason that Congress requires the registration of all sawed-off shotguns. Id. Its possession is sufficient to enable violence itself, if not the threat of violence, and also indicates that the possessor is prepared to enter into a kind of conflict that seeks maximum damage to his or her combatant. Lillard, 685 F.3d at 776. The United States Sentencing Commission ( USSC ) further supports that a sawed-off shotgun should be considered a violent felony under the ACCA. Just three years after the ACCA was enacted, the USSC s Sentencing Guidelines went into effect to set forth uniform punishment schemes for offenders convicted of federal crimes. Under the Guidelines, certain repeat offenders are subject to a career offender sentence enhancement if he or she has, inter alia, committed certain crimes of violence. U.S. SENTENCING GUIDELINES MANUAL 4B1.2 (2004). Notably, the definition of the predicate crime of violence is nearly identical to the ACCA s definition of violent felony. 2 However, where the ACCA s text lacks explicit guidance 2 The term crime of violence means any offense under federal or state law, punishable by imprisonment for a term exceeding ne year, that 25