IN THE SUPREME COURT OF THE UNITED STATES

Appeal from the United States Court of Appeals for the Twentieth Circuit

Case Number 15-06

CHANNING MERCHANDISE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent,

RESPONDENT’S BRIEF

Lee Grosscup Kim Rippeth 1320 Weathervane Lane 221 Main Street Akron, Ohio 44313 Akron, Ohio 44308 (330) 284-0989 (330) 555-1900 Counsel for Respondent Counsel for Petitioner

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .....................................................................................iii

STATEMENT OF FACTS .......................................................................................1

STATEMENT OF THE CASE .................................................................................4

ARGUMENT ...........................................................................................................5

PROPOSITION OF LAW NUMBER ONE ..............................................................5

THE PROTECTIVE-SWEEP SEARCH OF PETITIONER’S HOME WAS CONSTITUTIONAL BECAUSE THE SEARCH WAS REASONABLE UNDER THE FOURTH AMENDMENT. A. A protective-sweep search may be performed not incident to an arrest

because other circumstances may provide equal justification. ………….5

B. The articulable facts of the situation would lead a reasonably prudent officer to believe a threat posed a danger to those on the premises...................................................................................................7

C. The protective sweep was a quick and limited search conducted to

protect the safety of police officers and others. ………………………...…9

PROPOSITION OF LAW NUMBER TWO ..............................................................11

THE SEARCH OF THE FAKE SHAVING-CREAM CONTAINER WAS CONSTITUTIONAL BECAUSE OF THE SINGLE-PURPOSE-CONTAINER EXCEPTION TO THE WARRANT REQUIREMENT UNDER THE PLAIN VIEW DOCTRINE. A. The officer correctly seized the fake shaving-cream container because

its incriminating nature was immediately apparent. ……………………….11

B. An officer’s special knowledge and experience may be used in determining if a container possesses an illegal, single purpose. ………..12

C. The fake shaving-cream container cannot support any reasonable

expectation of privacy because the container possessed an illegal, single purpose.………………………………………………………………...15

ii

CONCLUSION .......................................................................................................18

PROOF OF SERVICE ............................................................................................20

iii

TABLE OF AUTHORITIES

Cases Page

Arkansas v. Sanders, 442 U.S. 753, (1979) (plurality), abrogated on other

grounds by California v. Acevedo, 500 U.S. 565 (1991)....................................... Passim

Horton v. California, 496 U.S. 128 (1990). ........................................................... 11

Kentucky v. King, 131 S.Ct. 1849 (2011). ............................................................ 16

Leaf v. Shelnutt, 400 F.3d 1070 (7th Cir. 2005). .................................................. Passim

Maryland v. Buie, 494 U.S. 325 (1990). ............................................................... Passim

Minnesota v. Dickerson, 508 U.S. 366 (1993). ..................................................... 11

Robbins v. California, 453 U.S. 420 (1981) (plurality), overruled on other

grounds by United States v. Ross, 456 U.S. 798 (1982). ..................................... 15, 16, 17

Texas v. Brown, 460 U.S. 730 (1983) (plurality). .................................................. Passim

United States v. Cardona-Rivera, 904 F.2d 1149 (7th Cir. 1990). ........................ 17

United States v. Davis, 690 F.3d 226 (4th Cir. 2012). .......................................... 13, 14

United States v. Garcia, 997 F.2d 1273 (9th Cir. 1993)........................................ 5

United States v. Gould, 364 F.3d 578 (5th Cir. 2004) (en banc). ......................... 5, 8

United States v. Legette, 260 Fed. Appx. 247 (11th Cir. 2008). ........................... 5

United States v. Martins, 413 F.3d 139 (1st Cir. 2005)......................................... 5, 6

United States v. Miller, 430 F.3d 93 (2d Cir. 2005). ............................................. 5, 6, 8

United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992). ...................................... 5

United States v. Starnes, 741 F.3d 804 (7th Cir. 2013). ....................................... 6, 7, 10

United States v. Taylor, 248 F.3d 506 (6th Cir. 2001). ......................................... 5

United States v. Tejada, 524 F.3d 809 (7th Cir. 2008). ........................................ 15

iv

United States v. Telfair, 507 Fed. Appx. 164 (3d Cir. 2012). ................................ 17

United States v. Williams, 41 F.3d 192 (4th Cir. 1994). ........................................ 13, 14

1

STATEMENT OF FACTS

Special Agent Arlo Gathers and Special Agent Hammel Lincoln regularly

participate in patrols around Plane Community. (R. at 2.) The federal government

decided to deploy specialized DEA task forces throughout the state to combat the

crimes the state police no longer can. (R. at 1.) Old York officially legalized marijuana,

but marijuana is still illegal under federal law. (R. at 1.) The DEA task force is able to

tackle violent criminals by pursuing them for drugs. (R. at 1.)

Special Agent Gathers oversees the local task force’s operations around Plane

Community. (R. at 2.) Because of the particular problems posed in and around the

Plane Community projects, the DEA assigned primary patrol duties to decorated

veteran, Special Agent Gathers. (R. at 2.) Special Agent Gathers is joined by his newly

appointed partner, Special Agent Hammel Lincoln. (R. at 2.)

On May 20, 2014, Special Agent Gathers and Lincoln were on patrol in Plane

Community. (R. at 3.) At 11:07 p.m., Special Agent Gathers and Lincoln noticed a

home’s door was broken down off its hinges and shattered glass. (R. at 3.) Possible

blood on the door and floor was found upon further inspection. (R. at 3.) The special

agents suspected either a forced entry or burglary because no lights were on. (R. at 3.)

The special agents knocked several times and announced their presence. (R. at 3.)

There was no response. (R. at 3.)

Special Agent Gathers and Lincoln entered the home with their guns drawn. (R.

at 3.) In the living room, the special agents found Petitioner unconscious lying on the

floor. (R. at 9.) Special Agent Lincoln revived Petitioner by shaking him. (R. at 9.)

Petitioner eventually came to, but seemed to be dazed. (R. at 9). The special agents

2

established the house was Petitioner’s residence by looking at his driver’s license. (R.

at 9.) Petitioner refused to give answers to the officers about what was going on. (R. at

9.) The special agents thought Petitioner’s behavior was suspicious. (R. at 9.)

Petitioner continued to look at the door to the hallway avoiding all eye contact with the

special agents. (R. at 9.) The special agents’ suspicions grew. (R. at 9.) They began

to worry either something happened and there is other people in the house, someone

was in the house to do Petitioner harm, or Petitioner possessed something he did not

want special agents to see. (R. at 9.)

Special Agent Lincoln motioned to Special Agent Gathers that he heard

movement coming from somewhere down the hall. (R. at 10.) Special Agent Gathers

heard the noise. (R. at 10.) The noise sounded like someone trying to move quietly.

(R. at 10.) Petitioner’s suspicious behavior and the noise from down the hall led Special

Agent Gathers to conclude they were in danger. (R. at 10.) Special Agent Gathers

decided to perform a quick sweep to ensure no one would ambush the special agents or

Petitioner. (R. at 10.)

Special Agent Gathers and Lincoln proceeded with guns drawn towards the

bedroom where the noise was coming from. (R. at 10.) Petitioner was left with Special

Agent Thunderknife who arrived as backup. (R. at 10.) Special Agent Gathers

continued in the second bedroom as Special Agent Lincoln stayed in the hall. (R. at

10.) Special Agent Gathers saw an orange cat run out of the room. (R. at 10-11.) He

quickly swept the room and the closet to dispel all dangers. (R. at 11.) As he began to

close the closet door, Special Agent Gathers noticed a fake shaving-cream container in

plain view. (R. at 11.)

3

Special Agent Gathers was virtually certain the fake shaving-cream container

held something illegal. (R. at 11.) The container was the identical canister he saw on

previous arrests used to hold contraband. (R. at 11.) Special Agent Gathers previously

found this identical container holding contraband on at least 15 separate occasions. (R.

at 11.) The container always possessed the same logo and brand name of “Fillette.”

(R. at 11.) There was always some type of contraband found inside, usually marijuana,

but occasionally cocaine or heroin. (R. at 11.) Based on the circumstances, and the

fact every time Special Agent Gathers found that identical fake shaving-cream container

it held contraband, he was virtually certain it contained some type of drug. (R. at 11.)

Special Agent Gathers pressed the secret latch opening the top of the container.

(R. at 3.) The officers found a large quantity of marijuana totaling 2.2 ounces. (R. at 4.)

The marijuana was individually packaged in baggies suggesting intent to distribute. (R.

at 4.) The preliminary field test confirmed the presence of THC. (R. at 4.) Petitioner

admitted the bedroom was his, but refused to speak about the container or the drugs.

(R. at 4.) The special agents handcuffed, Mirandized, and eventually booked Petitioner.

(R. at 4.) The special agents searched the rest of the house, finding various drug

paraphernalia in quantities strongly suggesting intent to distribute. (R. at 4.) In total,

the special agents found seven plastic bongs, 15 glass bongs, one unknown bong, 21

metal grinders, four plastic grinders, five packets of rolling papers, 29 fake shaving-

cream containers with the name “Fillette,” and five fake shaving-cream containers with

the name “Fedge.” The evidence points to someone burglarizing Petitioner’s home in an

attempt to steal his contraband. (R. at 4.)

4

STATEMENT OF THE CASE

On June 4, 2014, the Grand Jury returned an indictment against Petitioner for

two charges. (R. at 6.) The first charge was knowingly or intentionally possessing with

an intent to distribute or dispense a controlled substance in violation of 21 U.S.C. §

841(a)(1). (R. at 6.) The second charge was attempting to or conspiring to knowingly

or intentionally possess with intent to dispense or distribute a controlled substance in

violation of 21 U.S.C. § 846. (R. at 6.)

On July 1, 2014, in the United States District Court for the Southern District of

Old York, Petitioner was found guilty of knowingly possessing a controlled substance

with intent to distribute. (R. at 16.) Petitioner was found not guilty of attempting or

conspiring to knowingly possess with intent to distribute a controlled substance (R. at

16.)

On July 14, 2014, Petitioner gave notice for appeal to the United States Court of

Appeals for the Twentieth Circuit. (R. at 17.) The Twentieth Circuit Court of Appeals

affirmed the verdict on November 24, 2014. (R. at 19.) Petitioner made an application

for certiorari to the United States Supreme Court. (R. at 19.) On December 30, 2014,

the Supreme Court of the United States ordered the application for certiorari be granted.

(R. at 19.) The two issues argued in the Twentieth Circuit Court of Appeals were

certified for argument in the United States Supreme Court. (R. at 19.)

5

ARGUMENT

PROPOSITION OF LAW NUMBER ONE

THE PROTECTIVE-SWEEP SEARCH OF PETITIONER’S HOME WAS

CONSTITUTIONAL BECAUSE THE SEARCH WAS REASONABLE UNDER THE

FOURTH AMENDMENT.

A. A protective-sweep search may be performed not incident to an arrest

because other circumstances may provide equal justification.

In Maryland v. Buie, the incident-to-arrest element was created from a factual

context of police officers making an arrest. 494 U.S. 325, 334-36 (1990); United States

v. Taylor, 248 F.3d 506, 513 (6th Cir. 2001). Nothing in the Buie opinion indicates a

protective sweep is only for situations involving an arrest. Taylor, 248 F.3d at 513. Buie

did not address situations where no arrest is made. Id. There is no restrictive language

in the opinion saying, “incident only to an arrest.” Therefore, a protective sweep does

not require an arrest element. United States v. Gould, 364 F.3d 578, 584 (5th Cir. 2004)

(en banc), abrogated on other grounds by Kentucky v. King, 131 S. Ct. 1849 (2011).

Currently, seven federal circuits and one panel from the Ninth Circuit hold an

arrest is an unnecessary prerequisite to perform a protective sweep. Gould, 364 F.3d at

584; United States v. Martins, 413 F.3d 139, 150 (1st Cir. 2005); United States v. Miller,

430 F.3d 93, 98 (2d Cir. 2005); Taylor, 248 F.3d 513-14; Leaf v. Shelnutt, 400 F.3d

1070, 1087-88 (7th Cir. 2005); United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir.

1993); United States v. Legette, 260 Fed. Appx. 247, 249-50 (11th Cir. 2008); United

States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992). The danger allows for a protective

sweep to be established by other circumstances. Gould, 364 F.3d at 584. The federal

6

circuits have expanded upon Buie’s holding to allow for a protective sweep when the

officer is lawfully in the home and when danger is present. See Leaf, 400 F.3d at 1087.

Reasonableness is the touchstone of the Fourth Amendment. Miller, 430 F.3d at

97. The Fourth Amendment bars only unreasonable searches and seizures. Buie, 494

U.S. at 331. There is no ready test for determining reasonableness other than by

balancing the need to search against the invasion which the search entails. Id. at 332.

To allow police officers to sweep only in strictly one, specific circumstance, falls well

short of reasonable. Martins, 413 F.3d at 149-50. In Martins, the court stated an officer

may lawfully enter a home either with a warrant or based upon exigent circumstances.

Id. at 149. It is not sensible to allow an officer to conduct a protective sweep when

lawfully in the home with a warrant and making an arrest, but to refrain from conducting

a sweep when lawfully in the home based upon exigent circumstances with no arrest.

Id. at 150. The officers will face similar dangers in either situation. Miller, 430 F.3d at 99.

The protective sweep to dispel dangers should be justified in all situations an officer is

lawfully in the home. Martins, 413 F.3d at 150. Otherwise, the protective-sweep

objective fails in all other circumstances other than when an arrest is made. Id.

Police officers would face preventable dangers if a protective sweep can only be

incident to an arrest. In Buie, a protective sweep is permissible under certain

circumstances because legitimate governmental interests outweigh the individual’s

interest of Fourth Amendment protection. 494 U.S. at 1096-97; U.S. v. Starnes, 741

F.3d 804, 807-08 (7th Cir. 2013). The objective behind a protective sweep is the same

regardless of how the officers lawfully arrived in the home. Starnes, 741 F.3d at 810.

The protective sweep is conducted to dispel dangers the officers face while in a home.

7

Id. A protective sweep should be permitted if the officers are lawfully in the home

executing a search warrant, executing a consensual search, making an arrest with or

without a warrant, or based on exigent circumstances. Id.

B. The articulable facts of the situation would lead a reasonably prudent officer to believe a threat posed a danger to those on the premises.

Broken glass, a door knocked off its hinges, and what appeared to be blood are

what the special agents discovered upon arriving at Petitioner’s home. (R. at 3.) The

special agents suspected a forced entry or a burglary because not a single light was on

at the residence. (R. at 3.) The special agents were in Plane Community, a well-known

area for criminal activity. (R. at 1.) The special agents faced additional peril upon

discovering the homeowner unconscious inside the house. (R. at 3.) The suspect

responsible for the forced entry was not yet in custody. The area posed a danger to the

special agents as well as the Petitioner. (R. at 3.) The special agents were in the

middle of a developing, dangerous crime scene. After reviving the Petitioner, the special

agents heard movement coming from down the hall. (R. at 10.) They performed the

protective sweep to dispel the danger. (R. at 10.) The special agents held a

reasonable belief based on specific and articulable facts, along with rational inferences

from those facts, to reasonably believe the area posed a danger. Buie, 494 U.S. at 327.

The special agents were at a strong disadvantage entering Petitioner’s home.

See id. at 333. They were on their adversary’s turf. See id. The undiscovered suspect

could launch an attack at any moment. See id. The suspect’s attack is preventable by

conducting a minimally intrusive sweep for means of dispelling the danger. Gould, 364

F.3d at 590. In Buie, the court found the risk of danger for officers in the context of a

8

home is as great as, if not greater than, the context of an on-the-street or roadside

encounter. 494 U.S. at 33. The special agents’ sweep was based on an objectively

credible fear of danger. See Miller, 430 F.3d at 98. An ambush in the confined setting of

Petitioner’s home is more feared by the special agents than it is in open, more familiar

settings. See Buie, 494 U.S. at 333.

The threat posed to the Petitioner was apparent upon finding him unconscious.

(R. at 9.) The situation was equally as dangerous for Petitioner as it was for the special

agents. With the special agents lawfully present, it does not follow logically to have them

leave the crime scene before ensuring the homeowner will be safe. The situation is

tragic if the suspect emerged from hiding to further harm Petitioner after the special

agents left. The special agents rightfully stayed to complete the objective of the

protective sweep, to dispel all dangers. See Buie, 494 U.S. at 330. The special agents

successfully dispelled all dangers for those lawfully on the premises. See id.

In Leaf, Mr. Leaf patronized a bar in Indianapolis. 400 F.3d at 1074. Before

leaving, he turned his keys over to a friend and took a taxi home. Id. Deputy Jacobs

responded to an incomplete 911 call of a possible forced entry. Id. Upon arrival, Deputy

Jacobs learned that a man claiming to be the occupant was observed breaking a

window because he lost his keys. Id. Deputy Jacobs went to Mr. Leaf’s apartment and

discovered a back-patio door wide open and a window broken. Id. at 1075. Deputy

Jacobs looked through the back-patio door to find an ice chest pushed up against the

front door. Id. Deputy Jacobs called for backup and Deputy Shelnutt responded. Id. The

officers entered the apartment and noticed the front door was kicked in and the door

frame broken. Id. Officer Shelnutt performed a protective sweep to dispel all dangers.

9

Id. Officer Shelnutt found Mr. Leaf naked in his bed with his eyes closed. Id. The search

continued for approximately three minutes in order to determine if anyone else was

hiding. Id.

The Leaf court held the protective sweep was reasonable and did not violate the

Fourth Amendment. Id. at 1088. The officers were correct to ascertain whether a

burglary occurred. Id. at 1087. The protective sweep was justified to dispel the danger

based on the facts known to the officer. Id. at 1088. The sweep’s intrusiveness was

minimal and justified even after finding Mr. Leaf unconscious. Id. The officers could not

be sure another individual was not present until they performed the sweep. Id.

The circumstances of Leaf and the present case are analogous. In both

situations, the officers and special agents discovered signs of forced entry into the

residence. In both situations, the officers and special agents were lawfully in the home

based on exigent circumstances. In both situations, the protective sweeps were

reasonably performed based on specific and articulable facts, taken with rational

inferences from those facts, that the area swept harbored an individual posing a danger

to the officers or others. Buie, 494 U.S. at 327.

C. The protective sweep was a quick and limited search conducted to protect the safety of police officers and others.

In Buie, the court was adamant to permit officers to take reasonable steps to

ensure their safety in dangerous circumstances. 494 U.S. at 334. The police-officer-

safety interest is sufficient to outweigh the intrusion such safety procedures may entail.

Id. The underlying objective for the protective sweep is to ensure police officer and

others’ safety. Leaf, 400 F.3d at 1087. In the present case, the sweep was performed by

10

the special agents to protect their and Petitioner’s lives. See Buie 494 U.S. at 335. The

special agents found Petitioner unconscious, with the lights off, and obvious signs of

forced entry. (R. at 3.) The special agents heard movement from down the hall. (R. at

10.) The noise sounded like someone was trying to move quietly. (R. at 10.) This

situation posed a grave risk to the special agents’ and the Petitioner’s lives. The

protective sweep that was performed was sufficient to outweigh the intrusion to

Petitioner’s privacy interest. See id. at 334. The special agents successfully completed

the underlying safety objective. See Leaf, 400 F.3d at 1087.

The protective sweep was a reasonable, cursory search because it lasted no

longer than necessary to dispel the danger. See Starnes, 741 F.3d at 808. The special

agents based their protective sweep on more than a “mere inchoate and

unparticularized suspicion or hunch.” See Buie, 494 U.S. at 332. The special agents

heard the noise of movement coming from down the hall and immediately took action to

dispel that threat. (R. at 10.) The special agents limited their search to a cursory, visual

inspection of places where a person could be hiding. See Starnes, 741 F.3d at 808. The

special agents looked only in two bedrooms. (R. at 10.) In each bedroom, the special

agents scanned the room and checked the closets. (R. at 10.) The sweep promptly

ended after the last closet was checked. (R. at 10-11.) The sweep lasted no longer

than was necessary to dispel the reasonable suspicion of danger. See Buie, 494 U.S. at

335-36.

11

PROPOSITION OF LAW NUMBER FOUR

THE SEARCH OF THE FAKE SHAVING-CREAM CONTAINER WAS

CONSTITUTIONAL BECAUSE OF THE SINGLE-PURPOSE-CONTAINER

EXCEPTION TO THE WARRANT REQUIREMENT UNDER THE PLAIN VIEW

DOCTRINE.

A. The officer correctly seized the fake shaving-cream container because its

incriminating nature was immediately apparent.

Special Agent Gathers discovered in plain view a fake shaving-cream container

located in the last swept closet. (R. at 11.) An officer seizing evidence in plain view

without a warrant is well established under certain circumstances. Horton v. California,

496 U.S. 128, 134 (1990). First, the officer must not violate the Fourth Amendment in

arriving at the place where the item is plainly viewed. Id. at 128-29. The special agents

were lawfully present on the premises. (R. at 3-4.) Second, the officer must have a

lawful right of access to the item. Id. at 129. Special Agent Gathers correctly performed

a protective sweep of the premises to dispel all dangers. (R. at 3.) While conducting

the protective sweep, Special Agent Gathers plainly viewed a fake shaving-cream

container in the bedroom closet. (R. at 3.) Finally, the item’s incriminating character

must be immediately apparent. Id.

The officers require probable cause that an item is contraband for the

incriminating character to be immediately apparent. Minnesota v. Dickerson, 508 U.S.

366, 376 (1993). In Texas v. Brown, the court held that probable cause is a flexible,

common-sense standard. 460 U.S. 730, 742 (1983) (plurality). The standard requires

only that the facts available to the officer would warrant a man of reasonable caution in

12

the belief that the item may be contraband or evidence of a crime. Id. Probable cause

does not demand any demonstration that the officer’s belief be correct or more likely

true than false. Id. A rational probability that the item is contraband is all that is required.

Id.

Special Agent Gathers was virtually certain the fake shaving-cream container

was contraband upon plainly viewing it in the closet. (R. at 11.) The special agents

were in Plane Community, a problematic drug area because of the infamous state-

funded housing project. (R. at 1.) There appeared to be a forced entry or possible

burglary in this problematic drug area. (R. at 4.) Petitioner refused to make eye contact

with either Special Agent Gathers or Lincoln. (R. at 9.) It was as if there was something

Petitioner did not want the special agents to find. (R. at 9.) Special Agent Gathers was

on high alert because of Petitioner’s suspicious behavior. (R. at 9-10.) Common sense

told Special Agent Gathers that shaving cream does not belong in a bedroom closet.

See id. (R. at 3.) The container was the identical, fake container Special Agent

Gathers had seen on previous arrests. (R. at 11.) The facts available to Special Agent

Gathers would warrant a man of reasonable caution to believe the item was contraband.

See id. He possessed a rational probability that the fake shaving-cream container held

incriminating evidence. See Brown, 460 U.S. at 742. Although not required, Special

Agent Gathers’s belief was more likely true than false. See id.

B. An officer’s special knowledge and experience may be used in

determining if a container possesses an illegal, single purpose.

The single-purpose-container exception is an exception to the general rule that

allows for an officer to search the contents of the container without a warrant. Arkansas

13

v. Sanders, 442 U.S. 753, 764 n.13 (1979) (plurality), abrogated on other grounds by

California v. Acevedo, 500 U.S. 565 (1991). An officer’s knowledge and experience,

along with the circumstances under which the container is discovered, can together be

used to determine if a container possesses an illegal, single purpose. United States v.

Williams, 41 F.3d 192, 197-98 (4th Cir. 1994). The police officer’s subsequent search of

the container is warranted because the container’s contents are a foregone conclusion.

United States v. Davis, 690 F.3d 226, 235 (4th Cir. 2012).

In Brown, a police officer stopped an automobile driven by Mr. Brown during a

routine checkpoint. 460 U.S. at 730 (plurality). As the officer shined his flashlight into the

car, he saw an opaque, green balloon. Id. The balloon was knotted at the tip. Id. The

officer watched the balloon fall from Brown’s hand to the backseat floor. Id. Based on

the officer’s experience in drug-offense arrests, he was aware contraband was

packaged in such balloons. Id. Brown was arrested and the balloon was seized and

searched. Id. at 735.

The court reasoned that the police officer’s trained eye exposed the distinctive

character of the balloon and the balloon’s contents. Id. at 743. Even if a balloon was not

generally known as holding contraband, a law enforcement officer may rely on his

training and experience to draw inferences and make deductions that may elude an

untrained person. Id. at 746 (Powell, J., with Blackmun, J., concurring in part and

concurring in the judgment). The Fourth Amendment would not require exclusion of the

balloon’s contents if there was virtual certainty that the balloon contained a controlled

substance. Id. at 751 (Stevens, J., with Brennan, J., and Marshall, J., concurring in the

judgment). Virtual certainty is a more meaningful indicator than visibility when evaluating

14

whether a person’s privacy interests are infringed. Id. at 751 n. 5. A person may see

white powder and not realize it is heroin, but may be virtually certain a balloon contains

such a substance in a particular context. Id.

In determining whether the contents of the fake shaving-cream container were a

foregone conclusion, the circumstances that Special Agent Gathers found the container

will add to the apparent nature of its contents. See Williams, 41 F.3d at 197. Special

Agent Gathers is a decorated veteran of the Drug Enforcement Administration. (R. at

2.) He has been a DEA special agent for 21 years. (R. at 7.) Special Agent Gathers

has been involved in 2000 drug arrests. (R. at 8.) Out of 2000 arrests, around 1850 of

those have ended in a conviction. (R. at 8.) The DEA specifically assigned Special

Agent Gathers to primary patrol duties of the problematic area of Plane Community. (R.

at 2.) Special Agent Gathers has previously found this identical canister on previous

arrests. (R. at 11.) In total, he has found the same container at least 15 times. (R. at

11.) Every time Special Agent Gathers has found the container, there was always some

type of contraband inside. (R. at 11.) The fake shaving-cream container always bore

the identical logo and brand name of “Fillette.” (R. at 11.) The location Special Agent

Gathers found the fake shaving-cream container also added to the apparent contents.

See Davis, 690 F.3d at 235. Special Agent Gathers found the container in the bedroom

closet, not a common location to find shaving cream. (R. at 11.)

Special Agent Gathers was virtually certain the fake shaving-cream container he

found in the closet would contain something illegal. (R. at 12.) He was virtually certain

because of his training, experience, and knowledge from his decorated, 21-year-career

as a DEA special agent. (R. at 7.) He was also virtually certain because of the

15

Petitioner’s suspicious behavior, the apparent forced entry to Petitioner’s home, and

that every time finding the identical, fake canister, it always contained contraband. (R.

at 12.) The fact that Special Agent Gathers could not see through the fake shaving-

cream container is all but irrelevant. See Brown, 460 U.S. at 743. Special Agent

Gathers’s virtual certainty is a more meaningful indicator than visibility when evaluating

Petitioner’s privacy interests. See id. at 751 n. 5 (Stevens, J., with Brennan, J., and

Marshall, J., concurring in the judgment). The distinctive character of the fake canister

spoke volumes as to its contents, especially to the decorated DEA veteran. See id.

C. The fake shaving-cream container cannot support any reasonable

expectation of privacy because the container possessed an illegal, single

purpose.

It is far from the core of the Fourth Amendment to obtain a warrant to search

inside a container when the container is known to hold contraband. United States v.

Tejada, 524 F.3d 809, 814 (7th Cir. 2008). The single-purpose-container exception

states that not all containers and packages discovered during an officer’s search require

full protection of the Fourth Amendment. Sanders, 442 U.S. at 764 n.13. Some

containers’ contents can be inferred by their outward appearance, diminishing any

reasonable expectation of privacy. Id. When a container’s distinctive configuration

proclaims its contents, the contents are said to be in plain view of the officer. Robbins v.

California, 453 U.S. 420, 427 (1981) (plurality), overruled on other grounds by United

States v. Ross, 456 U.S. 798 (1982).

To force Special Agent Gathers to retrieve a warrant in the present case would

require all officers to obtain warrants in order to examine the contents of insubstantial

16

containers in which there was no reasonable expectation of privacy. Robbins, 453 U.S.

at 430 (Powell, C.J., concurring in the judgment). This blanket warrant requirement

would impose substantial new burdens on all law enforcement. Id. at 433. The

conscientious police officer would be required to take the container to the magistrate, fill

out the appropriate forms, await the decision, and finally obtain the warrant. Id. This

process will take hours, removing the officer from his important duties of detecting or

preventing crimes. Id. The process of obtaining a warrant is justified when it protects an

individual’s reasonable privacy interest. Id. In the present case, it is not justified. See id.

The warrant requirement may be overcome because “the ultimate touchstone of the

Fourth Amendment is ‘reasonableness.’” Kentucky v. King, 131 S.Ct. 1849, 1856

(2011). Special Agent Gathers was reasonable in searching the fake container because

he already had probable cause to search. See Robbins, 453 U.S. at 433 (Powell, C.J.,

concurring in the judgment). Retrieving a warrant for the most trivial container would

cause a heavy burden that will not advance important Fourth Amendment values. Id. at

433-34.

The fake shaving-cream container cannot support any reasonable expectation of

privacy because the contents were a foregone conclusion. See Sanders, 442 U.S. at

764 n.13. Special Agent Gathers knew immediately, with virtual certainty, the fake

shaving-cream container possessed a single, illegal purpose. (R. at 11-12.) Petitioner

will likely argue that Special Agent Lincoln did not recognize the shaving-cream

container was fake. (R. at 14.) Special Agent Lincoln is a trainee with little experience

in the field. (R. at 2.) Prior to joining the DEA this year, he performed mostly desk work

as an administrative assistant to a local police commissioner. (R. at 2.) Special Agent

17

Lincoln was assigned to patrol with Special Agent Gathers to gain real-world experience

and knowledge. (R. at 2.) Special Agent Lincoln did not yet possess the knowledge

and experience of Special Agent Gathers to immediately identify the fake container.

(R. at 14.)

Special Agent Gathers knew what to press on the fake shaving-cream container

to open the top. (R. at 3.) As soon as Special Agent Gathers pressed the latch, the top

of the canister opened. (R. at 3.) The contents were exactly what Special Agent

Gathers expected. (R. at 4.) The fake canister contained 2.2 ounces of marijuana in

individually packaged baggies. (R. at 4.) The outward appearance of the fake shaving-

cream container was suggestive of its illegal contents. See United States v. Telfair, 507

Fed. Appx. 164, 173-74 (3d Cir. 2012). Therefore, the contents of the container were in

the Special Agent Gathers’s plain view. See Robbins, 453 U.S. at 427. There is no need

for a warrant when the fake container’s characteristics, taken together with the

circumstances of the situation, proclaim the container’s contents unambiguously. See

United States v. Cardona-Rivera, 904 F.2d 1149, 1155 (7th Cir. 1990).

18

CONCLUSION

The protective sweep does not require an arrest element. Seven federal circuits

and one panel from the Ninth Circuit hold an arrest is an unnecessary prerequisite to

perform a protective sweep. The protective sweep to dispel dangers should be justified

in all situations an officer is lawfully in the home. The special agents will face similar

dangers in either situation. Reasonableness is the touchstone of the Fourth

Amendment.

The special agents held a reasonable belief based on specific and articulable

facts, along with rational inferences from those facts, to reasonably believe the area

posed a danger. The police-officer-safety interest is sufficient to outweigh the intrusion

such safety procedures may entail. The special agents’ main objective was to ensure

their and Petitioner’s safety. The protective sweep was a reasonable, cursory search

because it lasted no longer than necessary to dispel the danger.

Special Agent Gathers found in plain view a fake shaving-cream container in the

closet. The facts available to Special Agent Gathers would warrant a man of reasonable

caution to believe the item was contraband. Special Agent Gathers was virtually certain

the fake shaving-cream container held contraband. He was virtually certain because of

his 21 years of training, knowledge, and experience as a DEA special agent. The

situation’s circumstances overcame the warrant requirement because the search was

reasonable. Special Agent Gathers correctly seized and searched the fake canister

because the contents were a foregone conclusion. The fake container possessed one

illegal, single purpose to hold contraband.

19

Respectfully submitted,

Lee Grosscup 1320 Weathervane Lane

Akron, OH 44313 (330) 284-0989

Counsel for Respondent

20

PROOF OF SERVICE

I certify that a copy of this Brief was served on counsel of record for Respondent,

Kim Rippeth, 221 Main Street, Akron, Ohio 44308 by Electronic Mail on April 5, 2015.

Lee Grosscup Counsel for Respondent

I did not give, receive, or witness any unpermitted aid.

Lee Grosscup