Docket No. 13-201 In The 33 brief.pdf · with leukemia in June 2007, and since his family’s...
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Team 33
Docket No. 13-201
In The
SUPREME COURT OF THE UNITED STATES
Spring Term 2013
ROY HINKLEY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
_______________________________________
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT
________________________________________
BRIEF FOR PETITIONER
________________________________________
ii
TABLE OF CONTENTS
Page No.
TABLE OF AUTHORITIES ........................................................................................................ iv
QUESTION PRESENTED .............................................................................................................1
STATEMENT OF THE CASE .......................................................................................................2
SUMMARY OF THE ARGUMENT .............................................................................................6
ARGUMENT AND CITATIONS OF AUTHORITY ....................................................................8
I. THE UNITED STATES COURT OF APPEALS’ RULING SHOULD BE
REVERSED BECAUSE THE FOURTH AMENDMENT PROHIBITS POLICE
THAT ARE LAWFULLY PRESENT TO CONDUCT A PROTECTIVE SWEEP
OF A HOME WHEN NO OBJECTIVELY REASONABLE ARTICULABLE
FACTS POINT THE OFFICER TO BELIEVE A DANGER TO PERSONS ON
THE PREMISES EXISTS.
…………………………………………………………………………………………...8
A. The Court of Appeals erred in denying petitioner’s motion
to suppress by upholding the officer’s search based on petitioners
consent to enter and failing to recognize petitioners refusal to allow
search of the home……………………………………………………….....10
B. Absent reasonable, articulable suspicion that the premises in which police
are present harbors a person posing an immediate danger to those on the
premises, a protective sweep cannot be conducted without a warrant ....13
II. THE COURT OF APPEALS DECISION SHOULD BE AFFIRMED
BECAUSE POSSESSION OF AN UNREGISTERED SAWED-OFF
SHOTGUN FAILS THE BEGAY TEST AS A PREDICATE
VIOLENT FELONY ...............................................................................................18
A. Petitioner’s crime is not similar in kind to the enumerated crimes
Because Petitioner’s inactive crime involved mere possession ..................21
iii
B. Possession of a sawed-off shotgun is also not similar in degree of
Risk to the enumerated crimes because it is not a purposeful,
Violent, or aggressive crime……………………………………………….25
C. There is no legislative intent to include possession of a sawed-off
Shotgun as a violent felony under the Armed Career Criminal Act .........29
CONCLUSION .............................................................................................................................34
iv
TABLE OF AUTHORITIES
United States Supreme Court Cases:
Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003) ....................................................................30
Begay v. United States, 553 U.S. 137 (2008) ....................................................................... passim
Brigham City v. Stuart, 547 U.S. 398 (1943) ..............................................................................14
Carroll v. United States, 267 U.S. 132 (1925) ................................................................................8
Chambers v. United States, 555 U.S. 122 (2009) ...............................................................18,25,32
Illinois v. Rodriguez, 497 U.S. 177 (1990) ...................................................................................17
James v. United States, 550 U.S. 192 (2007) ................................................................................29
Johnson v. United States, 333 U.S. 10 (1948) ..............................................................................15
Katz v. United States, 389 U.S. 347 (1967) ..................................................................................15
Maryland v. Buie, 494 U.S. 325 (1990) ..............................................................................13,14,15
Mincey v. Arizona, 437 U.S. 385 (1978) ........................................................................................8
Stacey v. Emery, 97 U.S. 642 (1878) .............................................................................................8
Sykes v. United States, 131 S.Ct. 2267 (2011) .............................................................................18
Taylor v. United States, 495 U.S. 575 (1990) ....................................................................... passim
United States v. Knights, 534 U.S. 112 (2001) ...............................................................................9
Circuit Court Cases:
United States v. Archer, 531 F.3d 1347 (11th Cir. 2008) .................................................22, 23,24
United States v. Baker, 665 F.3d 51 (2nd Cir. 2012) ....................................................................27
United States v. Brown, 629 F.3d 290 (2nd Cir. 2012) ................................................................27
United States v. Christensen, 559 F.3d 1092 (9th Cir. 2009) .......................................................27
United States v. Flores, 477 F.3d 431 (6th Cir. 2007) .............................................................22,27
v
United States v. Gould, 364 F.3d 578 (5th Cir. 2004) ..................................................................13
United States v. Johnson, 616 F.3d 85 (2nd Cir. 2010) ................................................................27
United States v. Lawrence, 627 F.3d 1281 (9th Cir. 2010) .....................................................27,28
United States v. McGill, 618 F.3d 1273 (11th Cir. 2010) ..................................................23,24,28
United States v. McWeeney, 454 F.3d 1030 (9th Cir. 2006) ........................................................12
United States v. Pruitt, 458 F.3d 477 (6th Cir. 2007) .....................................................................9
United States v. Taylor, 248 F.3d 506 (6th Cir. 2001) .................................................................13
United States v. Torres, 470 F.3d 992 (10th Cir. 2009) ................................................................14
United States v. Werra, 638 F.3d 326 (1st Cir. 2011) ...............................................................9,16
United States v. Whitson, 597 F.3d 1218 (11th Cir. 2010) .....................................................26,28
District Court Cases:
United States v. Johnson, 704 F.Supp. 1404 (E.D.Mich. 1989) ...................................................27
State Supreme Court Cases:
State of New Jersey v. Davilia, 999 A.2d 1116 (2010) ......................................................11,14,15
State Court of Appeals Cases:
State of Oregon v. White, 211 Or.App. 210 (2007) ......................................................................10
Constitutional Provisions:
U.S. Const. Amend. IV ......................................................................................................... passim
U.S. Const. Amend. VI ...................................................................................................................8
Statutory Provisions:
18 U.S.C.A. § 924(e)(1) (2006) ........................................................................................... passim
18 U.S.C.A. § 922(g)(2006) ..................................................................................................5,18,25
26 USCA § 5845(a)(1)(2012) ......................................................................................................20
vi
26 USCA § 5861(b)(2012) ............................................................................................................21
Legislature Materials:
S. 2312, 99th
Cong., 2d Sess. (1986) .............................................................................................29
H.R. 4639, 99th
Cong., 2d Sess. (1986) ...................................................................................29,30
H.R. 4768, 99th
Cong., 2d Sess. (1986) ........................................................................................29
132 Cong.Re. 7697 (1986) ............................................................................................................29
H.R.Rep. No. 99-849 (1986) .........................................................................................................30
H.R.Rep. No. 98-1073 (1984) .......................................................................................................29
Electronic Sources:
The Bureau of Alcohol, Tobacco, Firearms and Explosives,
History of the National Firearms Act, (March 2013)
http://www.atf.gov/firearms/nfa/ ..............................................................................................20
Other Materials:
Office of Enforcement and Programs, Bureau
of Alcohol, Tobacco, Firearms and Explosives,
National Firearms Handbook (2009) ........................................................................................20
1
QUESTIONS PRESENTED
I. Does the fourth amendment prohibit police that are lawfully present to conduct a
protective sweep of a home when no objectively reasonable articulable facts point the
officer to believe a danger to persons on the Premises exists?
II. Congress amended the Armed Career Criminal Act, or 18 U.S.C.A. § 924(e)(2)(B),
broadening the act’s reach while keeping the statute’s crimes enumerated only to
arson, burglary, extortion, and use of explosives. The act’s residual clause only
includes crimes that otherwise present a serious risk to another in order to qualify as a
predicate violent felony. Does Petitioner’s simple possession of a sawed-off shotgun
rise to the level of purposeful, violent, and aggressive conduct, similar in kind the
enumerated crimes?
2
STATEMENT OF THE CASE
Course of Proceedings and Dispositions of Court Below
Roy Hinkley was indicted on one count of being a felon in possession with a firearm in
District Court for the District of North Greene. (R. at 2). In this trial, Hinkley moved to have the
firearm suppressed on fourth amendment grounds and the District Court denied the motion to
suppress. (R. at 2). Hinkley plead guilty to the offense, reserving his right to appeal the denial of
the motion to suppress the firearm. (R. at 2).
The United States Court of Appeals for the Thirteenth circuit held that the motion to
suppress the firearm was valid, but that the District Court erred at sentencing Roy Hinkley under
the Armed Career Criminal Act of 1984. This Supreme Court of the United States of America
granted certiorari on a date not specified in the record.
Statement of the Facts
Roy Hinkley’s (“Hinkley”) first violation of the law took place at the early age of fifteen,
when he was arrested and convicted of first degree burglary in the Superior Court for High Point
County, North Greene. (R. at 3). In that case, Hinkley broke into a neighbor’s house on a dare to
steal an item from the house. (R. at 3). The item that Hinkley stole was a baseball signed by a
famous baseball player Gaylord Perry. (R. at 3). Hinkley waited for the neighbor to leave the
house and when he entered the house, triggered a silent alarm and surrendered to police shortly
after they arrived on the scene. (R. at 3). For this offense, Hinkley was charged as a juvenile for
first degree burglary and given a sentence of three years home confinement with electronic
monitoring. (R. at 3). Hinkley completed this sentence without incident. (R. at 3).
Hinkley earned his Bachelor’s degree in Construction Science and Business
administration and sought to get at Masters in business administration. (R. at 3). Hinkley’s wife
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became pregnant in his first year of undergraduate studies, and he dropped out of school to go
work for his uncle’s construction business to help support his wife and daughter. (R. at 3).
Hinkley’s uncle died after Hinkley became a partner in the business and Hinkley guided the
company through several years of success until the housing market collapsed in 2007. (R. at 3,4).
The construction company struggled to make payroll and Hinkley was unable to pay personal
bills including his family’s insurance premiums. (R. at 4). Hinkley’s daughter was diagnosed
with leukemia in June 2007, and since his family’s insurance policy had lapsed, Hinkley was
faced with independently financing his daughters leukemia treatments. (R. at 4). No insurance
provider would offer Hinkley’s daughter coverage because of her preexisting condition. (R. at 4).
Hinkley soon took drastic measures by burning down his construction business in hopes
of recovering the insurance proceeds to pay his mounting bills. (R. at 4). Hinkley plead guilty to
the charge of arson based on videotape evidence of him leaving the construction business on the
night of the fire carrying a can of gasoline. (R. at 4). The prosecutor and judge sentenced Hinkley
to one year of probation in lieu of jail time so that Hinkley’s wife would not need to take care of
their daughter alone. (R. at 4). Hinkley was forced to close the construction business, and began
work as a real estate agent in order to pay his mounting bills. (R. at 4). Hinkley’s new job paid
substantially less, and in order to save money on rent, he moved to a lowed middle class area of
town where the rent was cheap but the crime was high. (R. at 4).
After a series of burglaries and an armed home invasion, Hinkley became fearful of his
family’s safety and wanted to procure a firearm for home defense. (R. at 4). Hinkley was unable
to purchase a firearm for protection because of his status as a convicted felon. (R. at 4). Hinkley
purchased a 12-gauge shotgun from a friend in order to protect himself. (R. at 4). The friend
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convinced Hinkley to purchase a sawed-off shotgun (16 inch barrel) on advice that the shotgun
would be more easily maneuverable. (R. at 5).
A few days after purchasing the shotgun, Hinkley heard strange sounds coming from
outside of his home and went to investigate the noises while carrying his shotgun. (R. at 5). The
noise being made outside was generated from police officers looking for a burglary suspect, and
one officer Terrence Sanford (“Officer Sanford”) noticed Hinkley’s gun had a shortened barrel.
(R. at 5). Officer Sanford was a former officer with the Bureau of Alcohol, Tobacco, and
Firearms (“ATF”) and recognized that the gun that Hinkley was carrying was illegal to own
without it being registered under the National Firearms Act (“NFA”). (R. at 5). Officer Sanford
approached Hinkley and asked if the gun was registered under the NFA, and the officer soon
discovered that Hinkley was a convicted felon and that the gun was not registered. (R. at 5).
Hinkley was charged with the possession of an unregistered sawn-off shotgun, and plead guilty
to the offense in return for ten years of probation, five years of home monitoring, and no jail
time. (R. at 5).
A mere two months after Hinkley was convicted of possession of a sawed-off shotgun,
Hinkley’s neighbor across the street was shot and killed in a home invasion. (R. at 5). Hinkley
decided that he must purchase a firearm to protect his family, and that since he could not move
out of the neighborhood because of his financial condition, Hinkley believed this to be the most
reasonable way to protect his family from the violence in the area. (R. at 5). On June 1 2011,
Hinkley went to a friend’s property to get proficient at using his .40 caliber pistol he had
purchased for home defense. (R. at 5). Hinkley returned home that night intending to clean the
weapon, and placed it on the counter in his kitchen for this purpose since his wife and daughter
were out of town. (R. at 5).
5
After Hinkley cooked dinner and was sitting down to eat, Officer Sanford knocked on his
door. (R. at 5). Officer Sanford explained to Hinkley that there had been another burglary and
that the description of the burglar matched the description of the burglar who had killed
Hinkley’s neighbor. (R. at 5). Officer Sanford then went on to state that residents in the
neighborhood had seen the burglar flee in the direction of Hinkley’s home and that the police
were going door to door to “ensure that the burglar was not hiding out in any of the homes.” (R.
at 5). Officer Sanford then asked if he could ask him some questions inside because it was
raining so hard outside. (R. at 5,6). Hinkley permitted the officer to come inside out of the rain to
ask a few questions. (R. at 6).
Officer Sanford recognized Hinkley from the previous arrest, and recognized the layout
of the houses in the neighborhood since they were all built on the same basic floor plan. (R. at 6).
Officer Sanford did not believe that Hinkley was the burglar, but did ask Hinkley if he could
look around the house to see if the burglar had broken in to take refuge in Hinkley’s home. (R. at
6). Hinkley refused this request, stating that he had not heard anything out of the ordinary all
night long, that he keeps his backdoor locked up tight, and that he surely would have heard
someone enter since he was awake and aware all night. (R. at 6). Despite Hinkley’s refusal,
Officer Sanford proceeded to perform a sweep of the house as a “precaution.” (R. at 6). Officer
Sanford then opened the closed door into the kitchen and discovered the .40 caliber semi-
automatic handgun on the kitchen counter. (R. at 6). Hinkley was charged with being a felon in
possession of a firearm in violation of 18 U.S.C. §922 (g)(1). (R. at 6).
6
SUMMARY OF THE ARGUMENT
The core of the Fourth Amendment is layered with protections geared to safeguard the
people against unreasonable searches and seizures. Despite the recognition that the amendment
protects people not places, the courts have always recognized heightened protection of the
“home”. The Fourth amendment requires a search of a home to be supported by a warrant that
comports with the probable cause text of the amendment. However, courts have carved out
exceptions to this warrant requirement. These exceptions are rare and stringently reviewed when
implicated to bypass the warrant requirement. When the circumstances of a Fourth amendment
search take place in the “home” of a defendant, the court must stress the importance of
determining the validity of the entry to the home and the validity of the subsequent search. The
determination of the lawfulness of the police entry to a home is crucial to any defendant’s motion
to suppress the evidence obtained from such an entry and search because exclusionary rule
prohibits any evidence obtained from an illegal entry or search from being used against the
defendant in the case against him.
In determining the reasonableness of a search, a court must weigh the individual’s
privacy rights in balance with the government interest in question. In the instant case, because
the search of a home is per se unreasonable, the burden is upon the State to show the exigency of
circumstances outweighed the privacy rights of the individual so as to justify the search of the
home. The validity of entry by the police is undisputed, a restricted consent to enter was granted
to the police. However, upon consent to enter the home, the State must establish that the
circumstances of the situation were such as to justify the protective sweep. Simply, the restricted
consent to enter the property, to escape the rain, coupled with an explicit denial of consent to
search must be outweighed by exigent circumstances or sudden danger once inside. Nonetheless,
7
the officer can neither point to particularized facts that the intended suspect of the search had
entered the home nor can the officer point to particularized facts that the officer was in danger. In
fact, the officer is on the record confirming he felt no threat from the petitioner nor had any
belief the petitioner was the burglar.
Of all the exceptions to the fourth amendment warrant requirement, the consent exception
is arguably the easiest “in” for a police offer to obtain. The allowance of such a warrantless
protective sweep under these circumstances will virtually erase all layers of protection the Fourth
amendment exists to protect. To preserve the life of the Fourth Amendment the court must hold
officers to heightened standard when a warrant is not present.
In early 1980’s, the United States legislature crafted a statute that would give states the
option of implementing a mandatory sentence for criminals convicted of being felons in
possession of a firearm, who have had three prior violent felonies or drug arrests. The three prior
violent crimes could involve the use, attempted use, or threatened use of force against another,
OR be the crime of burglary. This statute became known as the Armed Career Criminal Act.
In 1984, the statute made it through the legislature and went on to enjoy success during
the next year. During amendment proposals in 1986, there was no talk of adding in language
about possessing weapons, other than the “use of explosives”. In 1986, the legislature passed
their amended statute, which added arson, extortion, and use of explosives to the list of
enumerated crimes, and also added a residual clause that would capture “otherwise” potentially
risky conduct to the person of another. This final version of the statute was intended to be narrow
enough to keep up the enumerated crimes prioritized yet broad enough to maintain the spirit of
capturing career criminals.
8
The residual clause and the enumerated crimes has been the bone of contention of circuit
courts in the past twenty-seven years. Courts are split on the best way to apply the enumerated
crimes language and exactly which crimes are potentially risky conduct to the person of another.
Petitioner asks this court to reject simple possession of a sawed-off shotgun as a predicate
violent felony because this crime is not similar in kind to the enumerated crimes, and is not
violent or aggressive enough to fall into the residual clause. To liken an inactive crime like
possession to the enumerated crimes, or to put it into the residual catchall, would be to expand
the language of the statute far beyond its intended reach.
ARGUMENT
I. THE UNITED STATES COURT OF APPEALS’ RULING SHOULD BE
REVERSED BECAUSE THE FOURTH AMENDMENT PROHIBITS POLICE
THAT ARE LAWFULLY ON THE PREMISES TO CONDUCT A
PROTECTIVE SWEEP OF A HOME WHEN NO OBJECTIVELY
REASONABLE ARTICULABLE FACTS POINT THE OFFICER TO BELIEVE
A DANGER TO PERSONS ON THE PREMISES EXISTS.
The Fourth Amendment, in relevant part, protects the right of citizens to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S.
Const. Amend. VI. The cornerstone to a valid search is the reasonableness of that search. The
Supreme Court has stated “searches and seizures inside a home without a warrant are
presumptively unreasonable,” Brigham City v. Stuart, 547 U. S. 398, 403 (1943), the
presumption that a warrantless search is unreasonable may be overcome when “the exigencies of
the situation make the needs of law enforcement so compelling that a warrantless search is
objectively reasonable under the Fourth Amendment,” Mincey v. Arizona, 437 U. S. 385, 394
(1978). In further part, the Fourth Amendment provides “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
9
searched, and the persons or things to be seized.” all searches and seizures must be reasonable;
and a warrant may not be issued unless probable cause is properly established and the scope of
the authorized search is set out with particularity. A fundamental definition of probable cause is
explained by Justice Shaw as, “a reasonable ground of suspicion, supported by circumstances
sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of
the offence with which he is charged.” Stacey v. Emery, 97 U.S. 642, 645 (1878) see also Carroll
v. United States, 267 U.S. 132 (1925).
Under the “warrant preference” theory of the Fourth Amendment, the majority of this
court upholds that the Fourth Amendment mandates every search and seizure be authorized by a
valid warrant with the allowance of few narrowly tailored exceptions. In the Supreme Court case
of Katz v. U.S., this court held “searches conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable under Fourth Amendment, subject only
to a few specifically established and well delineated exceptions.” 389 U.S. 347 (1967). The six
exceptions to the fourth amendment warrant requirement enjoy a lesser standard than that of
probable cause standard in order to justify a police officer’s warrantless search or arrest. Justice
Jackson opined in Johnson v. United States; “The point of the Fourth Amendment, which is often
not grasped by zealous officers, is not that it denies law enforcement the support of the usual
inferences which reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being judged by the
officer engaged in the often competitive enterprise of ferreting out crime.” 333 U.S. 10 (1948)
(emphasis added).
The reasonableness of any(?) fourth amendment search is determined by weighing the
degree to which the search intrudes on the individual’s privacy against the degree to which the
10
search is needed to promote a legitimate government interest. United States v. Knights, 534 U.S.
112 (2001). In determining if a reasonable expectation of privacy has been violated, the Court
uses a two-part test. ;First, whether the defendant has exhibited an actual, subjective, expectation
of privacy, and whether such subjective expectation is one that society is prepared to recognize
as objectively reasonable.” U.S. v. Werra, 638 F.3d 326, 331 (1st Cir. 2011) see also Pruitt, 458
F.3d 483 (2008) (noting that reasonable belief may be generated by consideration of common
sense factors and evaluating the totality of the circumstances).
The issue that exists in the present case is whether or not the expectation of petitioner’s
privacy was violated and if that violation was justified by the consent by which Officer Sanford
entered petitioner’s the home; and whether the suspicions that lead to the subsequent search of
the home, meet the requirements of a valid search in accordance with the Constitution.
A. The Court of Appeals erred in denying petitioner’s motion to suppress by
upholding the officer’s search based on petitioner’s consent to enter and failing
to recognize petitioners refusal to allow search of home.
. Officer Sanford was allowed into the home of petitioner on the night of June 1, 2011
and the State contends the officer obtained consent to enter the home was justified under the
consent exception to the warrant requirement to conduct a protective sweep. As established by
this court, the test of Fourth Amendment implication is one based on reasonableness. The court
in State v. White held, “we must consider whether a reasonable person would have understood
by the exchange between the officer and the consenting party that the defendant actually
consented….That requires a consideration of the particular circumstances of the exchange,
including the substance of the officer’s request” 211 Or. App 210 (2007)(emphasis added). This
objective determination must look into whether or not a reasonable person giving consent would
11
have further understood that the consent given also encompassed authorizing the officer to
conduct the challenged action.
i. Use of coercive tactics to obtain occupant’s consent invalidates the
consent otherwise legally obtained.
Petitioner acquiesced to the officer’s request to enter the home, but the issue in
contention is whether this consent to enter justified the officer’s subsequent search of the home.
The Fourth Amendment prohibits unreasonable searches of a home without a warrant but the
prohibition does not apply to situations in which voluntary consent has been obtained. Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990) The reason for the Officer’s entry in the record was for
Officer Sanford ask a few questions, since it was raining quite hard outside. (R. at 5). Nothing in
this statement suggests that this is a request for consent to search the home. No reasonable
person in a similar situation and circumstance would conclude that the Officer’s request to enter
the home to avoid the rain also implies a request to search the home.
The questions of Officer Sanford could have been asked from where Officer Sanford was
standing on the stoop of the home. Petitioner only consented to his entry to avoid the rain while
he asked a few questions. What can be inferred from the record is that Officer Sanford used the
excuse of the precipitation to simply “find” a way into the home. Logically, Officer Sanford was
already wet so staying outside the home would not change his current state thus there is no
reason to avoid the rain when one has already succumb to it.
The New Jersey Supreme Court in State v. Davilia, in which the court expressed its
concern toward upholding arbitrary protective sweeps following lawful police presence by
stating, “there is too great a potential for a pretextual use of otherwise lawful police presence as
opportunity to conduct a warrantless search of a home…. Those concerns are particularly
relevant where, as in this case, the lawfulness of the police entry is based on consent of the
12
occupant.” 999. A.2d 1116 (2010) (emphasis added). There are no grounds from which the state
may argue that the exchange between petitioner and the officer constituted an understanding that
a reasonable person in similar circumstances, by consenting to an officer to enter to ask a few
questions, also would have been consent to enter for investigatory reasons. 1 The allowance of
such tactics would engender police officers to claim all sorts of reasons to “lawfully” ask an
occupant to enter the home and then use that consent to enter for purposes not encompassed by
the scope of the consent This court must reverse the ruling of the Court of Appeals that the
consent to enter was valid consent to search the home or the fundamental principles of the Fourth
Amendment will effectively disappear.
ii. The authorization to search based on consent can be revoked at any
time by an express statement of revocation or actions that would
objectively illustrate the authorizing party is revoking the underlying
consent.
The authority by which a police officer obtains consent and the scope of such consent for
that matter is specifically restricted to the terms of the consent. However a person is free, after
initially giving consent, to delimit or withdraw his or her consent at any time U.S. v. McWeeney,
454 F.3d 1030, 1034 (9th Cir. 2006) The record states Officer Sanford asked petitioner if “he
could look around the house,” and Petitioner expressly refused this request. Officer Sanford
proceeded to search the home despite this verbal withdrawal of consent. The revocation or
expressed refusal of consent is a clear indication that any subsequent search conducted by a Law
enforcement officer , is in fact unconstitutional search for purposes of the Fourth Amendment. A
1 It remains unknown as to whether or not the practice of asking to enter the home of an un-
involved party to ask questions is a common procedure practiced by the police department.
Department procedures are a leg by which courts will stand on to evaluate the individual conduct
of an officer since these methods ensure uniformity of procedures and prevent rogue officer
action.
13
Fourth Amendment legal maxim states that an officer cannot search for elephant in a matchbox
Restricting searches conducted by law enforcement officers is done to prevent overstepping the
legal boundaries that are set in place to maintain the integrity of the Fourth amendment and
respect for officers of the law. These boundaries aim to ensure that the expectation of privacy the
Fourth Amendment protects is not violated by officers of the law. An officer cannot justifiably
broaden the scope of a subsequent action based on the limited scope of a previous action. The
Court of Appeals improperly concluded that Officer Sanford’s search of the premises was
justified by the consent of the Petitioner and this Court should reverse the lower courts order
denying petitioners motion to suppress.
B. Absent Reasonable, Articulable Suspicion That The Premises In Which Police
Are Present Harbors a Person Posing A Danger To Those On The Premises, A
Protective Sweep Cannot Be Conducted Without A Warrant.
The purpose of such a protective sweep is to protect the safety of the officer who remains
at the scene, and for that reason, the sweep must be limited to a cursory search of the premises
for the purpose of finding persons hidden there who would threaten the officer's safety. U.S. v.
Taylor, 248 F.3d 506, 513-14 (6th Cir. 2001). The protective sweep analysis requires such action
on the basis that a reasonable individualized suspicion exists, rather than generalized suspicion.
The officer may look to circumstances of pre-existing police knowledge that a specific individual
is a dangerous or violent criminal, combined with the surprise once the police are on the
premises. United States v. Gould, 364 F.3d 578, 584 (5th Cir. 2004) (en banc)
In the case of Maryland v. Buie, the Supreme Court of the United States ruled that
protective sweeps are permitted incident to an arrest to protect the safety of the officers from
other dangerous persons inside the house that could unexpectedly launch an attack. 110 S.Ct.
1093 (1990). The court specifically permitted a properly limited search incident to an in home
14
arrest if an arresting officer has specific and articulable facts that support the search for the safety
of the officers and others on the scene. Id. at 1094. The Supreme Court also stated that a search
in the immediate vicinity of the arrestee without a need for a warrant or probable cause is valid.
Id. at 1094. It is important to note that the Court states that this protective sweep is valid incident
to an arrest, but does not state that a protective sweep is accessible to officers in situations where
no arrest is being made or contemplated.
The case of U.S. v. Torres Castro involves similar circumstances as the case currently
under review. In the Torres case, the United States Court of Appeals for the Tenth Circuit held
that protective sweeps are permitted when officers possess a reasonable belief based on specific
and articulable facts which, taken together with the rational inferences from those facts,
reasonably warrant the officer in believing that the area swept harbors an individual posing a
threat to the officer or others. 470 F.3d 996 (2006). The officer that searched the defendants
house was aware of the alleged abusive conduct, and based on this information, went to the
house of the defendant to conduct a “knock and talk.” Id. at 998. The court held that the
circumstances around the arrest of the defendant warranted the officers to perform a protective
sweep to make sure that no hidden threat was lurking in the house. Id. at 999. The officers in this
case already knew of the alleged abuse and had knowledge that the defendant had a weapon in
the house despite the fact that he was an illegal immigrant. Id. at 998. The suspicious activity of
the occupants before the officers knocked on the door, along with all of the other circumstances
made the search objectively reasonable. The court mentions that a protective sweep should
always be based on objectively reasonable suspicion, and should always be done in connection
with an arrest.
15
One of the cornerstone rules established in 4th amendment protective sweep
jurisprudence is set out by the New Jersey Supreme court in State v. Davilia in which the court,
(citing United States Supreme Court case Maryland v. Buie), struck down the validity of a
warrantless protective sweep that subsequently turned up criminal activity on the grounds that
the officers lacked particular suspicion of a certain degree to substantiate a warrantless protective
sweep. 999A.2d 1116, 1129-30 (N.J. 2010) citing Maryland v. Buie 494 U.S. at 336. In Davilia,
officers were (1) investigating a ruthless double murder which occurred in the area; (2) The
murders were committed with a firearm; (3) the murders occurred within the proceeding 48
hours; (4) The murders were committed by several African- American males (which matched the
race of the occupants of the home); (5) The gun used in the murders was missing; (6) The
apartment searched was in the area of the murders; and (7) A telephone connected to the murders
was being used to call the apartment that was subsequently searched during the Police
investigation of murders. Aside from seven different pieces of evidence for police to base a
search on, and consent to enter the home, the Court still found the actions of the police did not
validate a warrantless protective sweep of the home. Id. at 1121. A comparison of the facts in
this case and the one at presently disputed reveals why the circumstances surrounding Officer
Sanford’s suspicion do not justify his protective sweep.
On June 1, 2011 Officer Terrence Sanford was investigating a burglary that had occurred
recently in petitioner’s neighborhood and the description that was given of the burglar by
neighbors matched the description of the suspect that had recently killed petitioner’s neighbor.
The information that Officer Sanford obtained from the neighbors was that the burglar had “fled
in the direction of petitioner’s home” and that the police were going door to door to check and
see if the burglar was hiding out in any of the homes. (R. at 5) This is the only piece of evidence
16
known to Officer Sanford as to the whereabouts of the fleeing suspect. Officer Sanford’s
available evidence to conduct his investigation was limited to (1) knowledge of a murder in the
neighborhood and (2) uncorroborated testimony from a neighbor claiming they witnessed the
supposed suspect run in the “general” direction of petitioner’s home and, (3) prior non-violent
criminal history of petitioner. (R. at 5)
At the time in question, Officer Sanford possessed only a general suspicion rather than
the legally required individualized suspicion. Officer Sanford was aware of petitioner’s criminal
history but this evidence weighs in favor of Officer Sanford’s actions only slightly. Officer
Sanford had no particular individualized suspicion of the fleeing suspect’s whereabouts. See U.S.
v. Werra, 638 F.3d 326, 337-38 (1st Cir. 2011) (Court ruled protective sweep unconstitutional
based on information obtained from a former police informant as to the whereabouts of suspect
in which informant told the officers she had seen the suspect at the residence at some point
“recently”—a term that could refer to days or weeks earlier – and because the information was
uncorroborated).. The general direction of a fleeing suspect only provides a direction for the
officer to start looking and in no way provides any reasonable officer operating under the same
circumstances the particularized suspicion that a suspect would be a particular domicile.
Allowing an officer to pursue an investigation with such minimal evidence, which permits
officers to compromise the expectation of privacy of an area that remains the most sacred of
areas for fourth amendment purposes, would be a dire mistake by this court. Officers would need
only a single general statement by anyone to validate the entrance and top-to-bottom search of
someone’s home. The privacy rights of Hinkley violated in this search by Officer Sanford were
in no way justified by the government interests asserted. Absent any exigent circumstances or
17
corroborated evidence present to Officer Sanford before the search, the fourth amendment
requires that a warrant be obtained to conduct such a search of one’s home.
the record also states Officer Sanford supported his request to search with the notion of
ensuring no one had broken into the home. Upon reassurance by the petitioner that no one had
broken in and that his back door was locked, Officer Sanford’s disregarded these statements by
the petitioner and began his search. If Sanford was there to search for a potential intruder he
could have easily done a quick investigation of the perimeter of the house to see if any windows
were broken or if there were any signs of forced entry. A broken window observed by Officer
Sanford may have provided him the necessary cause for alarm to substantiate a protective sweep
upon his consented entry because he could have then possessed reasonable articulable facts that
pointed to an individualized suspicion that the safety of the occupants was at risk. Without such
evidence, the only two entry points would have been the front and back door which petitioner
personally confirmed remained locked all night long. Officer Sanford’s suspicion could have in
no way risen to the level set out by the courts so much as to point to articulable facts that would
suggest with individualized particularity that the home contained a person that was a threat to the
occupant or the officer.
If the court permits the suppression of the evidence to pass the probable cause step of
analysis, then the court would be allowing a presumptively unreasonable search to take place that
do not fulfill the totality of the circumstances test that the Supreme Court applies to determine if
probable cause existed at the time of a search. The fourth amendment does not support the search
of Hinkley’s residence under the circumstances in this case because of the lack of facts that
support the search of the house based on the stated reason to protect the occupant. While the state
may argue that the search should be allowed because petitioner did permit the officer to enter
18
into the residence initially, the consent to enter does not constitute consent to search. Petitioner’s
express refusal of consent to search the domicile and the lack of articulable facts supporting a
search provide a clear basis as to why the search of petitioner’s home amounted to that of an
unconstitutional violation of petitioners reasonable expectation of privacy as protected by the
Fourth amendment to the Constitution.
II. THE COURT OF APPEALS DECISION SHOULD BE AFFIRMED BECAUSE
POSSESSION OF AN UNREGISTERED SAWED OFF SHOTGUN FAILS THE
BEGAY TEST AS A PREDICATE VIOLENT FELONY.
In 1986, Congress amended and passed the Armed Career Criminals Act (“ACCA” or
“The Act”), which enhances sentences for those deemed to be “career criminals,” more explicitly
felons in possession of firearms. Armed Career Criminal Act, 18 U.S.C.A. § 924(e)(1) (2006).
The Act codifies a mandatory fifteen year sentence for any felon in possession of a firearm who
violates 18 U.S.C.A. § 922(g) and has “three previous convictions by any court” for a “violent
felony or a serious drug offense, or both,” committed on different occasions. Id. Circuit courts
are currently split on the meaning and interpretation of the term “violent felony.” The Supreme
Court of the United States in past years has dealt with interpretation of this term as it applies to
failure to report for penal confinement, driving under the influence, and eluding police in a
vehicle (with the two prior crimes considered not to be violent offenses and the latter construed
to be a violent offense). See Chambers v. U.S., 555 U.S. 122 (2009); Begay v. U.S., 553 U.S.
137 (2008); Sykes v. U.S., 131 S.Ct. 2267 (2011).
The Act defines a violent felony as not only being a crime punishable by more than a
year imprisonment, but one that also “has as an element the use, attempted use, or threatened use
of physical force against” another person (“i”), or is “burglary, arson, or extortion, involves use
explosives, or otherwise involves conduct that presents a serious potential risk of physical injury
19
to another” (“ii”). 18 U.S.C.A. § 924(e)(1)(2)(B). The latter half of part “ii” of the violent
offense definition is referred to as the “residual clause.” Chambers, 555 U.S. at 124. This
“catchall” has been the source of contention and division amongst the circuit courts.
In 2008, the United States Supreme Court in Begay v. U.S. refined the test for
determining whether a crime is a “violent felony” under the provisions of ACCA. Begay, 553
U.S. at 144-45. The first step is consideration of the offense generically, without facts or details
of how the offender committed the act or “how the crime was committed on a particular
occasion.” Id. at 141: see also Taylor v. U.S., 495 U.S. 575, 589 (1990)(courts need only look to
conviction and elements of offense). This step is called the “categorical approach” and takes into
consideration only how the law defines the offense and not how a defendant may have
committed the crime. Begay, 553 U.S. at 141. Parts “i” and “ii” of ACCA are applied to this
generic view of the offense. Chambers, 555 U.S. at 125-6. If the offense does not meet the
requirements of part “i” and is not one of the “enumerated offenses” in part “ii,” then the last
step is to analyze whether the offense falls into the “residual” or “catchall” phrase of part “ii”. Id.
at 127. Thus, if the offense is similar in kind and degree to the enumerated offenses, then the
Court may determine that the offense is a predicate violent felony under ACCA and the
enhanced sentencing rules are applied to sentencing.
The Court in Begay notes that the enumerated cases are all “purposeful, violent, and
aggressive conduct,” defining these crimes as characteristic of armed career criminals, and the
sentencing of which satisfies the spirit of The Act. Begay, 553 U.S. at 144. From this, we are left
with a new interpretation of the ACCA rule; a rule in which one must assess the purposeful,
violent, and aggressive nature of the felonious conduct in order to determine its similarity, in
kind and degree, to the enumerated cases. Id. If the offense is similar in kind and degree of risk
20
posed to the enumerated offenses (considering the purposeful, aggressive, and or violent nature
of the conduct), the offense is a predicate violent felony and ACCA applies to sentencing.
Specifically at issue before this Court is whether possession of an unregistered sawed-off
shotgun is such a purposeful, aggressive, and violent offense, alike in kind and degree to the
enumerated offenses, so that The Act would apply to Petitioner’s sentencing and warrant
imposition of a fifteen year mandatory sentence.
Sawed-off shotguns are regulated under the National Firearms Act (NFA). National
Firearms Act, 26 U.S.C.A. § 5801-5872 (2012). Developed after the repeal of prohibition, the
NFA was intended to regulate firearms considered to be “gangster weapons” and “short barreled
shotguns.” The Bureau of Alcohol, Tobacco, Firearms and Explosives, History of the National
Firearms Act, http://www.atf.gov/firearms/nfa/ (last visited March 3, 2013). State laws may
generally differ on the legality of the sawed-off shotgun, provided that owners comply with the
NFA guidelines. Office of Enforcement and Programs, Bureau of Alcohol, Tobacco, Firearms
and Explosives, National Firearms Act Handbook, (2009). Purchasing NFA-eligible firearms
involves restrictions, which include (but are not limited to) required registration, a background
check, and a tax. Violation of any applicable restrictions is considered a felony with potential
monetary sanctions. Id.
The NFA federal statute defining “firearm” includes a “shotgun having a barrel or barrels
less than eighteen (18) inches in length.” 26 USCA § 5845(a) (1) (2012). A firearm is also “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”. Id. § (a) (2). Further, a “shotgun” is
defined as “a weapon designed or redesigned, made or remade, and intended to be fired from the
shoulder and designed or redesigned and made or remade to use the energy of the explosive in a
21
fixed shotgun shell.” Id. § (d). The NFA penalizes “any person” who “receive[s] or possess[es] a
firearm in violation” of the NFA provisions, who “receive[s] or possess[es] a firearm transferred
to him in violation” of the NFA provisions, or who “receive[s] or possess[es] a firearm which is
not registered to him in the National Firearms Registration and Transfer Record.” Id. § 5861(b),
(c), (d). Petitioner concedes that he was in possession of a sawed-off shotgun in violation of the
NFA rules because he possessed such a firearm without proper NFA procedures. R. at 5.
However, this felony is a far cry from the predicate violent felonies proscribed in ACCA.
Possession of a sawed-off shotgun does not fall within the purview of part (i) of ACCA’s
definition of violent felony because the NFA definition(s) regarding possession of a sawed-off
shotgun does not consider as an element the “use, attempted use, or threatened use of physical
force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). Therefore, part (i) of ACCA’s
test does not apply in our analysis because it is not at issue when considering Petitioner’s
possession of the shotgun “generically.”
Specifically at issue is application of part (ii) of ACCA’s violent felony definition, which
lays out the enumerated crimes and the “residual clause.” Petitioner seeks this court’s affirmation
that possession of an unregistered sawed-off shotgun in violation of the NFA is not a predicate
violent offense that would trigger ACCA for three reasons: first, the Petitioner’s crime is not
similar in kind to the enumerated crimes; second, the Petitioner’s crime is not similar in degree
to the enumerated crimes; and third, there is no legislative history to show that Congress
intended crimes like possession of a sawed-off shotgun to be included under ACCA.
A. Petitioner’s crime is not similar in kind to the enumerated crimes because
Petitioner’s inactive crime involved mere possession.
The enumerated crimes illustrate that the scope of ACCA’s part (ii) covers only similar
crimes, not every crime. U.S. v. Archer, 531 F.3d 1347, 1350 (11th
Cir. 2008). The word “use” is
22
used in the language of the statute to the exclusion of the word “possession.” Begay v. U.S., 553
U.S. at 144. To give effect to the statute is to give effect to every clause and word of the statute,
which is to limit the crimes that the clause covers to those that are roughly similar in kind to the
examples themselves. Id. at 143.
In 2007, the Sixth Circuit court refused to “greatly expand” the enumerated crimes in
ACCA’s (ii) to include “any offense that creates a public risk” when applying ACCA to the
crime of carrying a concealed weapon. U.S. v. Flores, 477 F.3d 431, 436 (6th
Cir. 2007). The
court plainly noted that the enumerated crimes in ACCA do not include “carrying a concealed
weapon” and that “tellingly, the statute provides that the use – rather than the possession – of
explosives is conduct that rises to the level of a violent felony.” Id. The Sixth Circuit interpreted
the issue of possession of weapons as not being a crime that qualifies under the ACCA. The use
(emphasis added) of explosives and not the mere possession of explosives is what qualifies under
the ACCA. Id. The Sixth Circuit rejected stretching the crime of “use of explosives” to include
possession of a firearm, holding that the enumerated crimes involve “affirmative and active
conduct that is not inherent in the crime of carrying a concealed weapon.” Id. This decision
reflects the unwillingness of the Sixth Circuit to stretch the language of ACCA beyond “use,”
which would risk “incongruous results.” Id. at 434.
The Eleventh Circuit similarly noted that carrying a concealed weapon “is a passive
crime centering [on] possession” in distinguishing this crime from the enumerated crimes. U.S.
v. Archer, 531 F.3d 1347, 1351 (11th
Cir. 2008). This is analogous to the Sixth Circuit’s
reasoning in the application of ACCA to mere possession of firearms. The Eleventh Circuit
likened carrying a concealed weapon to drunk driving, an analogy not without logic: both the
crime of possession/carrying a concealed weapon and the crime of drunk driving present a risk of
23
harm but neither of these risks are similar to the crimes enumerated in ACCA. Id. at 1350. The
court noted that the enumerated crimes are included to be illustrative of the types of crimes
intended to be captured by ACCA. Id. Unlike crimes against property or persons, simply
carrying a concealed weapon “is a passive crime centering [on] possession,” not around an
offense aimed at something or someone else. Id. at 1347. While the Eleventh Circuit’s reasoning
in Archer is not identical to that of the Sixth Circuit, both Circuits hold that a crime of possession
is not a close enough match to the enumerated crimes to be captured by ACCA.
Per another Eleventh Circuit holding, possession of a short-barreled shotgun is not even
similar enough in kind to its closest analog, the “use of explosives,” to be captured by ACCA.
U.S. v. McGill, 618 F.3d 1273, 1277 (11th
Cir. 2010); See also James v. United States, 550 U.S.
192, 203 (2007)(crime involves the requisite risk when the risk posed by [the crime in question]
is comparable to that posed by its closest analog among the enumerated offenses”) . This is in
spite of the fact that “Congress treats and regulates explosives and short-barreled shotguns in the
same category in the NFA.” Id. The “stretch” towards “incongruous results” the Sixth Circuit
warned against is likewise rejected by the Eleventh Circuit. This circuit explicitly holds that
possession of a shotgun is not like use of an explosive. Id. at 1279.
In deciding that possession of a short-barreled shotgun fails the Begay similarity test, the
Eleventh Circuit refused to classify the possession of one type of NFA weapon as a violent
felony when “ACCA speaks only to the use of another.” Id. at 1279. The Eleventh Circuit is
unwilling to expand the word “use” to include “possession,” when “possession” has been
excluded from the language of ACCA. The McGill court acknowledges the Archer decision,
recognizing that possession of a sawed-off shotgun is dangerous but notes that “possession of
explosives” was not even included in ACCA’s language. Id. The Eleventh Circuit thus concluded
24
that possession of an outlawed short-barreled shotgun is not similar in kind to the enumerated
crimes. Id.
These decisions are a sample of the circuit courts’ reasoning and all have facts similar to
the facts in the present case. All defendants were arrested and convicted of possession of a
firearm in some manner: whether carrying a concealed weapon or possession of a short-barreled
shotgun in violation of the NFA. Like the defendants in these cases, the Petitioner was convicted
of a crime of possession, not use. R. at 5. This is most like the McGill case, where the Eleventh
Circuit held that the ACCA statute does not capture a crime like possession of a sawed-off
shotgun because the crime of possession is so unlike the enumerated crimes.
Courts are not ignorant to the dangers posed by possessing a gun or any other type of
firearm; however, as noted by the Eleventh Circuit, language including possession of a firearm
was wholly excluded from the language of the statute. The Petitioner readily concedes that his
possession of a sawed-off shotgun, in violation of the NFA’s rules, was unlawful. However,
possession is not comparable to the use of explosives or the “affirmative and active” nature of
the enumerated crimes.
These decisions emphasize the inherent “inaction” of merely possessing a firearm, and
the counter-intuitiveness of likening a crime of possession to a crime of use. There exists a
general reluctance to expand the enumerated crimes to include possession of a firearm when the
language of the statute only explicitly uses the word “use.” This reasoning helps to limit the
scope of the clause to offenses similar to the enumerated crimes, which the Begay court noted
are illustrative of what kind of violent felonies the statute intended to capture. Therefore,
possession of a sawed-off shotgun cannot be deemed similar in kind to the enumerated offenses.
25
B. Possession of a sawed-off shotgun is also not similar in degree of risk to the
enumerated crimes because it is not a purposeful, violent, and aggressive crime.
A crime is a violent crime under ACCA if the crime “otherwise involves conduct that
presents a serious potential risk of physical injury to another.” 18 U.S.C.A. § 924(e) (2) (B) (ii).
The word “otherwise” is meant to refer to a crime that is similar to the listed examples in respect
to the degree of risk the conduct creates. Begay v. U.S., 553 U.S. at 144. To fall within the scope
of the residual clause as a crime of violence, the crime in question must contain “purposeful,
violent, and aggressive conduct.” Id.; Chambers v. U.S., 555 U.S. 122 (2009).
The United States Supreme Court set the standard for crimes in the residual clause in
Begay v. United States. 555 U.S. 137 (2008). The Court decided that driving under the influence,
generically, is not a violent crime under ACCA because, even though the crime may be
dangerous, the crime does not involve “purposeful, violent, and aggressive” conduct like the
enumerated crimes. Id. at 144-145. To allow ACCA’s reach to any crime that is dangerous or
presents a serious risk of physical harm would open up ACCA to crimes “far removed from the
deliberate kind of behavior” the statute was intended to capture. Begay v. U.S., 553 U.S. at 147.
The Court stated that purposeful, violent, and aggressive characteristics are most typical of an
offender who would “point a gun and pull the trigger,” therefore keeping with the spirit of the
statute. Id.
A year later, the United States Supreme Court held in Chambers v. U.S. that failure to
report for penal confinement is not a “violent crime” under ACCA. 555 U.S. 122 (2009).
Holding that such a crime is “a far cry from the purposeful, violent, and aggressive conduct
potentially at issue” of an enumerated crime, the Court conditions that the crime must be as
purposeful, violent, and aggressive as the conduct of using explosives, burgling a dwelling, or
committing arson. Id. at 692.
26
The Eleventh Circuit has already decided the issue of whether possession of a sawed-off
shotgun is a violent felony under ACCA using the Begay analysis. U.S. v. McGill, 618 F.3d
1273 (11th
Cir. 2010). Deciding to the contrary, the Eleventh Circuit notes at length the
“stringent” “registration requirements” that the NFA requires for some firearms, and the
unlawfulness of possession of such an unregistered weapon. Yet there is a decided lack of
aggressive or violent conduct mentioned in the elements of the NFA guidelines. Id. at 1278. The
Court agrees with the argument that “the act of possession does not, without more…involve any
aggressive or violent behavior.” Id. at 1277.
An analysis of purposeful, violent, and aggressive conduct also requires looking at the
crime in question “generically” and separating the crime and its “target offense.” U.S. v.
Whitson, 597 F.3d 1218, 1223 (11th
Cir. 2010). This means separating the crime of conspiracy
from whatever it was that the defendant was conspiring to do. Id. Therefore, although the results
of some potentially violent conspiracy may pose a risk of danger, the Eleventh Circuit examined
the crime in question “alone.” Id. This reasoning led the court to reject conspiracy as a violent
crime: conspiracy without more “confrontation” is not a crime of violence captured by ACCA.
Id.
The crime in question must also be separated from tenuous outcomes. U.S. v. Flores, 477
F.3d 431, 435 (6th
Cir. 2007). The Sixth Circuit noted that the “generic crime of carrying a
concealed weapon” has no indicators of purposeful, aggressive, and violent conduct without
taking the generic reading into an inappropriate, fact-specific context. Id. at 438. See also United
States v. Johnson, 704 F.Supp. 1403 (E.D.Mich. 1989). The court ultimately agreed that carrying
a concealed weapon is not a violent felony because the harm is “not so immediate as to present a
serious risk of physical injury to another.” Id. at 435. Thus, simply possessing or carrying a
27
concealed weapon does not automatically mean a violent outcome. See also U.S. v. Christensen,
559 F.3d 1092 (9th 2009) (statutory rape could involve consensual conduct and thus does not
instantly suggest aggressive or violent conduct that triggers ACCA).
A survey of jurisdictions across the United States affirms that conduct must be “more
confrontational.” Rioting in a prison has been held by the Second Circuit as qualitatively
purposeful, aggressive, and violent. U.S. v. Johnson, 616 F.3d 85 (2nd
Cir. 2010). See U.S. v.
Brown, 629 F.3d 290 (2nd
Cir. 2011) (holding that assault of a corrections officer is a violent
felony); and also U.S. v. Baker, 665 F.3d 51 (2nd
Cir. 2012)(holding that escape from a
correctional facility is a violent felony). The Ninth Circuit has held similarly. See U.S. v.
Lawrence, 627 F.3d 1281 (9th
Cir. 2010) (holding that force must be present and applied
intentionally, implicating action and aggressive conduct).
The factor that unites these separate holdings is that all the cases involve crimes whose
elements are not only active and affirmative conduct, but are also characteristic of violent,
purposeful, and aggressive conduct that is unquestionably “confrontational.” Where there is no
confrontation or implication of confrontation in the elements of the questioned crime, there is no
violent felony.
Petitioner’s activities were concededly unlawful. However much like failure to report to a
correctional facility or conspiracy, Petitioner’s possession of a sawed-off shotgun is not actively
purposeful, violent, and aggressive conduct. Simple possession of a sawed-off shotgun indicates
no purpose, no violence, and no aggression. In fact, looking at the crime of unlawful possession
of a sawed-off shotgun shows no elements of aggressiveness or force. Should this Court use the
Ninth Circuit’s reasoning, like in U.S. v. Lawrence, the marked lack of force in the elements of
the crime would render possession of a sawed-off shotgun nonviolent and ACCA inapplicable.
28
Likewise, should this Court follow the Eleventh Circuit, as in U.S. v. McGill, the lack of the
degree of risk in mere possession of a sawed-off shotgun is inapposite to the risk inherent in the
enumerated crimes. The decidedly non-confrontational nature of, without more, merely
possessing something (in this instance, a sawed-off shotgun) is not with the spirit of The Act. As
well, Petitioner’s possession of the sawed-off shotgun bears only tenuous links to a possibly
violent outcome. Simple possession gives no indication of an inherently dangerous activity such
as arson or burglary.
Therefore, the Petitioner’s crime is unlike the enumerated crimes in degree of risk
because the elements of Petitioner’s crime do not indicate any purposeful, violent, and
aggressive conduct. Because the nexus between possession of the shotgun and a violent, forceful
result is too tenuous and should not be considered, the Court should avoid accepting an
erroneous connection between the two. There is simply no indication of purpose, aggressiveness,
and violence in mere possession.
C. There is no legislative intent to include possession of a sawed-off shotgun as a
violent felony under the Armed Career Criminal Act.
The Armed Career Criminal Act is representative of an effort of Congress to decrease the
number of “career criminals” in the United States by providing mandatory sentencing for such
habitual violators. Taylor v. U.S., 495 U.S. 575, 581 (1990). In 1984, the House Judiciary
Committee Report explained that career criminals are more likely to commit certain violent and
theft-related crimes. H.R.Rep. No. 98-1073, at 1 (1984). The Act was originally intended to
target those criminals by providing that only three prior crimes of robbery or burglary,
considered the “most common violent street crimes,” would trigger The Act’s reach. H.R.Rep.
No. 98-1073, pp. 1, 3 (1984). The Act enjoyed success in the next year and spurred talks of
29
expanding the language of ACCA from just the crimes of “robbery or burglary” so that the
“sweep” of ACCA would be more “effective.” 132 Cong.Re. 7697 (1986).
In 1986, two bills were proposed for that expansion that would amend ACCA’s terms to
those that we presently use today. Taylor v. U.S., 495 U.S. at 583. The first bill (“4639”) was a
broad approach that would encompass any crime whose elements were “the use, attempted use,
or threatened use of physical force against the person or property of another,” or any felony that
involved a substantial risk of physical force against the person or property of another used in the
course of committing the offense. S. 2312, 99th
Cong., 2d Sess. (1986); H.R. 4639, 99th
Cong.,
2d Sess. (1986). Contrarily, the second bill (“4768”) only contains language that would capture
“any State or Federal felony that has as an element the use, attempted use, or threatened use of
physical force against the person of another.” H.R. 4768, 99th
Cong., 2d Sess. (1986).
Opponents of the narrow approach criticized proposition bill 4768 for lack of reaching
“crimes against property” as the broad approach had. Taylor v. U.S., 495 U.S. at 586. Opponents
of the broad approach criticized bill 4639 for “lack of prioritizing” offenses and for being overly-
inclusive. Id. Much debate between the two approaches centered on “what violent felonies
involving physical force against property should be included in the definition of violent felony.”
H.R.Rep. No. 99-849 (1986). A bill introduced that would have restricted the predicate offenses
to crimes involving violence against persons was rejected. Id. Ultimately, a compromise bill
(“4885”) was reached that would include the “use, attempted use, or threatened use” language as
well as the residual clause. Id. The question of which felonies against property should be
included in part (ii) was answered with burglary, arson, extortion, and use of explosives: crimes
that the Subcommittee agreed represent State and Federal crimes against property, which also
present a risk of harm to others. Id.
30
The absence of possession of a sawed-off shotgun from the discussion and its exclusion
from the language of ACCA is significant. The lack of crimes of possession suggests that
Congress likely had no intention of including them. The statutory canon of construction
“expressio unius est exclusio alterius” helps to interpret this exclusion. The Supreme Court of the
United States asserts that this rule applies when items in an “associated group or series” creates
the inference that items not mentioned were intentionally excluded. Barnhart v. Peabody Coal
Co., 537 U.S. 149, 168 (2003). This means that language that was not included was purposely
excluded when the included terms are part of a group or series.
The discussions of which terms to include and which terms to exclude in the amended
1986 Armed Career Criminal Act indicates that Congress was taking into consideration the most
efficient manner of expanding the language of ACCA. The prospect of adding all crimes that
may cause injury to people was proposed and rejected by Congress. The knowledge of firearms
and their inherent dangerousness were known to Congress during re-drafting. Congress had
opportunity to add crimes of possession, such as Petitioner’s possession of a sawed-off shotgun,
but they did not. Mentioned during planning was that “crimes against property which are
inherently dangerous…should be considered as predicate offenses”. Possession of a sawed-off
shotgun is not a crime against property like arson or burglary. Furthermore, if Congress had
intended possession of a sawed-off shotgun, or possession of any type of weapon, they would
have included that language.
Utilizing expressio unius est exclusio alterius, none of the enumerated crimes are similar
to a crime of mere possession, nor is a crime of possession implicated in the residual clause. A
reading of House Reports shows that Congress did not seriously consider including possession of
a weapon in the language of ACCA during their lengthy discussions of amendment; as well, the
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lack of a crime of possession in the series of crimes indicates that such a crime was intentionally
left out.
Therefore, there is no legislative history for inclusion of possession of a sawed-off
shotgun in the language of ACCA, nor can we add such a crime faithfully applying our canons of
construction. The decision of the Court of Appeals must be affirmed because it is in accord with
legislative intent and follows the principles of statutory cons
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CONCLUSION
The ruling of the United States Court of Appeals in affirming the denial of Petitioner’s
motion to suppress the search of his home must be reversed because there exists no reasonable,
articulable facts that indicate there was a danger inside the Petitioner’s premises. The consent
that Petitioner granted for Officer Sanford to enter his home did not include consent to search the
Petitioner’s home. There was no warrant, no consent to search, and no facts that would warrant
Officer Sanford’s “protective sweep”. This altogether means that the Officer’s search violated
the 4th
Amendment and that the denial of Petitioner’s motion to dismiss the search was improper.
Even if this Court were to find that the search of Petitioner’s home was proper and that
Petitioner was a felon in possession of a firearm, the Petitioner does not qualify for mandatory
sentencing under the Armed Career Criminal Act. The Act’s reach only goes towards crimes
similar to the enumerated crimes or crimes that are purposeful, violent, or aggressive.
Petitioner’s prior conviction for possession of a sawed-off shotgun cannot qualify as either of
these types of crimes. Possession is an inactive crime which does not necessarily involve any
use, and is not similar in kind to any of the enumerated crimes. As well, merely possessing a
sawed-off shotgun is not purposeful, aggressive, or violent.