No. 13-201
In the Supreme Court of the United States
ROY HINKLEY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Writ of Certiorari from the United States Court of Appeals for the Thirteenth Circuit
BRIEF FOR PETITIONER
Team 9
Counsel for Petitioner
[Address Redacted]
[Address Redacted]
[Phone Number Redacted]
QUESTIONS PRESENTED FOR REVIEW
1. Whether a police officer can lawfully conduct a protective sweep of the private sanctuary
of a homeowner for a third party suspect, without effectuating an arrest, without a
warrant, and without probable cause, but with mere consent to enter the home?
2. Whether mere possession of a sawed-off shotgun constitutes a predicate “violent felony”
as required under the ACCA, when it is not “similar in kind” to use of explosives, its
closest enumerated analog, or to the other crimes listed in the ACCA’s residual clause
because Congress included only the use, but not the possession of, explosives among the
ACCA’s example crimes?
i
TABLE OF CONTENTS
Question Presented........................................................................................................................ i
Table of Authorities .................................................................................................................... iii
Opinion Below. ........................................................................................................................... iv
Statutory Provisions .................................................................................................................... iv
Constitutional Provisions ............................................................................................................ iv
Statement of the Case................................................................................................................ viii
Summary of the Argument......................................................................................................... xii
Argument ......................................................................................................................................1
I.
BECAUSE THE GOVERNMENTAL INTEREST IN PROTECTING
OFFICER SAFETY DOES NOT OUTWEIGH A CITIZEN’S RIGHT
TO PRIVACY WITHIN THE HOME, THE PROPER STANDARD FOR
“PROTECTIVE SWEEPS” NOT INCIDENT TO AN ARREST, BUT
WITH CONSENT TO ENTER THE HOME, IS PROBABLE CAUSE………. 1
A. When Police Officers Enter The Home Of A Person Not Suspected Of
Any Crime, Without The Purpose Of Effectuating An Arrest, And With
Consent To Enter, The Government’s Interest In Officer Safety Does
Not Outweigh The Rights Of Private Citizens, And Therefore This Court
Should Not Permit A “Protective Sweep.”………………................................... .2
B. If This Court Allows Police Officers To Conduct “Protective Sweeps” Not
Incident To An Arrest, But With Consent To Enter By The Homeowner,
Police Officers Would Be Circumventing The Warrant Requirement And
Leaving Innocent Homeowners With No Means To Challenge An Officers
Conduct…………………………………………………………………................ 9
C. Probable Cause, Not Reasonable Suspicion, Is The Correct Standard For
Protective Sweeps When There Is No Arrest And The Officer Is Only
Searching For A Suspect Within The Confines Of A Third Party’s Home…….11
ii
II. THE HISTORY OF THE FOURTH AMENDMENT DEMANDS THAT
POLICE OFFICERS HAVE PROBABLE CAUSE TO CONDUCT A
PROTECTIVE SWEEP OF A RESIDENCE WHEN IT IS NOT
INCIDENT TO AN ARREST……………………………………………………13
III. POSSESSION OF AN UNREGISTERED SAWED-OFF SHOTGUN DOES
NOT QUALIFY AS A PREDICATE “VIOLENT FELONY” UNDER THE
RESIDUAL CLAUSE OF THE ACCA BECAUSE MERE POSSESSION DOES
NOT PRESENT A SERIOUS RISK OF PHYSICAL INJURY NOR DOES IT
INVOLVE A SIMILAR KIND OF PURPOSEFUL, VIOLENT, AND
AGGRESSIVE CONDUCT AS THE ENUMERATED CRIMES……………..17
A. Simply Possessing An Unregistered Sawed-Off Shotgun Is Not An ACCA
Predicate Violent Felony Because It Does Not Present A Risk Of Physical
Injury To Another…………………………………………………………………19
B. Possession Of An Unregistered Sawed-off Shotgun Is Not An ACCA Predicate
Felony Because It Does Not Involve The Same Degree Of Purposeful, Violent,
And Aggressive Conduct, Because Unlike the Enumerated Crimes, It Involves
Merely Passive Behavior………………………………………………………….21
Conclusion .................................................................................................................................23
iii
TABLE OF AUTHORITIES
Cases
Agnello v. U.S., 269 U.S. 20 (1925)
Begay v. U.S., 553 U.S. 137 (2008).
Brinegar v.U.S., 338 U.S. 160 (1949)
Carroll v. U.S., 267 U.S. 132, 149 (1925)
Coolidge v. New Hampshire, 403 U.S. 443 (1971)
Fisher v. Volz, 496 F.2d 333 (3rd Cir.1974)
James v. U.S., 550 U.S. 192 (2007)
Jones v. U.S., 357 U.S. 493, 498 (1958)
Kentucky v. King, 131 S. Ct. 1849 (2011)
Kyllo v. U.S., 533 U.S. 27, 34 (2001)
Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966)
Lankford v. Schmidt, 240 F. Supp. 550 (D. Md. 1965)
Maryland v. Buie, 494 U.S. 325 (1990)
Michigan v. Long, 463 U.S. 1032 (1983)
Payton v. New York, 445 U.S. 573 (1980)
Shepard v. U.S., 544 U.S. 13 (2005)
Sonzinksy v. U.S., 57 S.Ct. 554 (1998)
Stanford v. State of Texas, 379 U.S. 476 (1965).
Steagald v. U.S., 451 U.S. 204 (1981)
Sykes v. U.S., 131 S.Ct 2267 (2011)
Taylor v. Kentucky, 436 U.S. 478 (1978)
Taylor v. U.S., 495 U.S. 575 (1990)
Terry v. Ohio, 392 U.S. 1 (1968)
U.S. v. Archer, 531 F.3d 1347 (11th Cir. 2008)
U.S. v. Archibald, 589 F.3d 289 (6th Cir. 2009)
iv
U.S. v. Bradford, 766 F. Supp. 2d 903 (E.D. Wis. 2011)
U.S. v. Chaves, 169 F.3d 687 (11th Cir. 1999)
U.S. v. Gandia, 424 F.3d 255 (2nd Cir. 2005)
U.S. v. Gould, 364 F.3d 578, 597, n. 5 (5th Cir. 2004) abrogated on other grounds by Kentucky
v. King, 131 S. Ct. 1849 (U.S. 2011)
U.S. v. Jones, 132 S. Ct. 945 (2012)
U.S. v. McGill, 618 F.3d 1273 (11th Cir. 2012)
U.S. v. Morgan Vargas, 376 F.3d 112 (2nd Cir. 2004).
U.S. v. Pineda-Moreno, 617 F.3d 1120 (9th Cir. 2010).
U.S. v. Polk, 577 F.3d. 515 (3rd Cir. 2009)
U.S. v. Torres-Castro, 470 F.3d 992 (10th Cir. 2006).
U.S. v. Vincent, 575 F.3d 820 (8th Cir. 2009)
Weeks v. U.S., 232 U.S. 383 (1914).
Statutory Provisions
18 USC § 924(e)
26 USC § 5845(a)
26 USC § 5845(d)
26 USC § 5861(d)
Constitutional Provisions
U.S. Const., amend. IV.
Miscellaneous Authorities
United States Department of Justice, Identification of Firearms Within the Purview of the
National Firearms Act, The Bureau of Alcohol, Tobacco, Firearms and Explosives,
http://www.atf.gov/firearms/guides/identification-of-nfa-firearms.html
v
OPINION BELOW
The opinion of United States Court of Appeals for the Thirteenth Circuit affirming the
denial of Mr. Roy Hinkley’s motion to suppress, vacating his sentence, and remanding for
resentencing can be found at No.12-1711 (13th Cir. 2012).
STATUTORY PROVISIONS
(e)(1) In the case of a person who violates section 922(g) of this title and has three
previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony
or a serious drug offense, or both, committed on occasions different from one another, such
person shall be fined under this title and imprisoned not less than fifteen years, and,
notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a
probationary sentence to, such person with respect to the conviction under section 922(g).
(2) As used in this subsection-- (A) the term “serious drug offense” means-- (i) an offense under
the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and
Export Act (21 U.S.C. 951 et seq), or chapter 705 of title 46, for which a maximum term of
imprisonment of ten years or more is prescribed by law; or (ii) an offense under State law,
involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a
controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 801
et seq.), for which a maximum term of imprisonment of ten years or more is prescribed by law;
(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding
one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by imprisonment for such term if committed by an
adult, that-- (i) has as an element the use, attempted use, or threatened use of physical force
against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives,
vi
or otherwise involves conduct that presents a serious potential risk of physical injury to another;
and (C) the term “conviction” includes a finding that a person has committed an act of juvenile
delinquency involving a violent felony. (f) In the case of a person who knowingly violates
section 922(p), such person shall be fined under this title, or imprisoned not more than 5 years, or
both. (g) Whoever, with the intent to engage in conduct which-- (1) constitutes an offense listed
in section 1961(1), (2) is punishable under the Controlled Substances Act (21 U.S.C. 801 et seq,)
the Controlled Substances Import and Export Act (21 U.S.C. 801 et seq,), or chapter 705 of title
46. 18 USC § 924(e).
For the purpose of this chapter—…The term “firearm” means (1) a shotgun having a
barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such
weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than
18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a
weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches
or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in
subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of title 18, United
States Code); and (8) a destructive device. The term “firearm” shall not include an antique
firearm or any device (other than a machinegun or destructive device) which, although designed
as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and
other characteristics is primarily a collector’s item and is not likely to be used as a weapon… 26
USC § 5845(a).
For the purpose of this chapter—… The term “shotgun” means 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 fixed shotgun shell to fire
vii
through a smooth bore either a number of projectiles (ball shot) or a single projectile for each
pull of the trigger, and shall include any such weapon which may be readily restored to fire a
fixed shotgun shell… 26 USC § 5845(d).
It shall be unlawful for any person—… (d) to receive or possess a firearm which is not
registered to him in the National Firearms Registration and Transfer Record… 26 USC §
5861(d).
CONSTITUTIONAL PROVISIONS
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized. U.S. Const., amend. IV.
viii
STATEMENT OF THE CASE
On June 1, 2011, the North Greene Police Department conducted a search of the home of
Roy Hinkley, the petitioner, without an arrest warrant, search warrant, or probable cause. See R.
5. Officer Terrence Sanford, who knew Mr. Hinkley from a previous arrest, interrupted Mr.
Hinkley’s dinner by knocking at his front door. R. 5, 6. After explaining to Mr. Hinkley that
there had been another burglary in his neighborhood, the officer asked Mr. Hinkley “if he could
come inside to ask him a few questions, since it was raining quite hard outside.” R. 5-6. Mr.
Hinkley naturally obliged and the officer “walk[ed] into the living room.” R. 6.
The officer explained to Mr. Hinkley that “residents of the neighborhood had reported
seeing the burglar flee in the direction of Mr. 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. 5. The officer
then asked Mr. Hinkley if “he could look around the house to make sure that the burglar had not
broken in and taken refuge in Hinkley’s home.” R. 6. Mr. Hinkley refused to let the officer
search and told the officer that “he had not seen or heard anything out of the ordinary all night,
kept his backdoor locked, and surely would have heard someone enter his home.” Id. The
officer admitted that he did not fear Mr. Hinkley or believe he was the burglar and yet despite
Mr. Hinkley’s refusal of consent, the officer proceeded through the closed door into Mr.
Hinkley’s kitchen. Id. The officer then saw a semi-automatic handgun on Mr. Hinkley’s kitchen
counter and arrested him on the charge of being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). Id.
Just one month after moving into the neighborhood, and prior to his arrest for being a
felon in possession of an unregistered firearm, four homes on Mr. Hinkley’s street were broken
into, as well as several cars. R. 4. One of the burglaries occurred just two doors down from Mr.
ix
Hinkley’s and during that robbery, the burglar was armed with a semi-automatic handgun that he
brandished to subdue and control the homeowner. Id. Mr. Hinkley understandably feared for the
safety of his family, including his wife and six-year-old daughter, who was suffering from
leukemia. Id. Fearing for their safety, Mr. Hinkley asked his friend to purchase a 12-gauge
shotgun for him. Despite Mr. Hinkley’s request for a standard shotgun, his friend obtained a
sawed-off shotgun with a 16-inch barrel, which the friend said was more concealable and
maneuverable for home defense. R. 4-5.
Mr. Hinkley’s fears were confirmed when he heard a ruckus outside his home and went
outside bearing the shotgun to protect his family. R. 5. Unfortunately for Mr. Hinkley, several
police officers, including Officer Sanford, were outside his home searching for the burglar. Id.
The officer recognized the type of gun Mr. Hinkley was holding because of its shortened barrel
and inquired whether Mr. Hinkley’s shotgun was legally registered pursuant to the National
Firearms Act (NFA). Id. The officer soon charged Mr. Hinkley with possession of an
unregistered “sawed-off shotgun,” after realizing that he was a felon who could not lawfully
register a firearm. Id. At the time of this charge, Mr. Hinkley’s daughter’s health was
deteriorating and her only hope of survival was a bone marrow transplant, which would cost a
significant amount of money. As a result, Mr. Hinkley pled guilty to this crime, as a way to
avoid jail time and continue taking care of his daughter. Id.
Mr. Hinkley’s fears did not subside after he took this plea, in fact, they resurfaced just
two months after his plea, when the homeowner across the street from his home was shot and
killed during a home invasion. Id. Because of his daughter’s medical bills, he could not afford to
move to a better neighborhood. The only way Mr. Hinkley could protect his wife and child from
the burglar was to again purchase a firearm. Id. Mr. Hinkley purchased a .40 caliber semi-
x
automatic handgun, the firearm that the officer discovered during the illegal search of Mr.
Hinkley’s home. Id.
Mr. Hinkley moved to suppress this firearm on Fourth Amendment grounds, because the
“protective sweep” of his home was unlawful. R. 6. After a suppression hearing, the District
Court denied Mr. Hinkley’s motion to suppress, holding that Mr. Hinkley consented to Officer
Sanford entering his apartment, and the subsequent protective sweep was based on reasonable
suspicion. Id. On October 15, 2011, Mr. Hinkley entered a conditional guilty plea to the charge
of being a felon in possession of a firearm in accordance with Fed. R. Crim. P. 11(a)(2),
reserving the right to challenge the District Court’s denial of his motion to suppress. Id. On
November 1, 2011, Mr. Hinkley was sentenced as an armed career criminal under the Armed
Career Criminal Act (“ACCA”) and was sentenced to 180 months of incarceration. Id.
Mr. Hinkley then filed a timely Notice of Appeal with the United States Court of Appeals
for the Thirteenth Circuit, challenging the District Court’s denial of his motion to suppress and
claiming that the ACCA was inapplicable. Id. Mr. Hinkley’s did not have three prior felony
convictions required by the ACCA. Id. Mr. Hinkley’s charges prior to the charge at hand,
unlawful possession of an unregistered firearm, include a juvenile conviction for first-degree
burglary, where at the age of fifteen he succumbed to peer pressure and broke into a neighbor’s
home to steal a baseball. R. 3. In 2008, Mr. Hinkley also pled guilty to arson, when he burned
down his construction business for the insurance proceeds, when he faced surmounting medical
bills and the prospect of his daughter’s cancer not being covered by the family’s medical
insurance. R. 4. He pled guilty and received one year of probation in lieu of jail time, so that his
wife would not have to care for their sick child on her own. Id.
xi
The Thirteenth Circuit affirmed the District Court’s denial of Mr. Hinkley’s motion to
suppress and affirmed his conviction for possession of a firearm by a felon. R. 9. The Thirteenth
Circuit held that Mr. Hinkley “consented to Officer Sanford entering his apartment” and thus the
officer “was lawfully on the premises and conducting a ‘safety sweep’ limited to ensuring his
own safety” when he found the handgun in plain view in the kitchen. R.8. However, the court
did not find that Officer Sanford believed that the burglar was specifically hiding in Mr.
Hinkley’s home, only that “Officer Sanford had reason to believe that a man with a weapon was
hiding in one of the homes.” Id. Finally, the Thirteenth Circuit properly held that because Mr.
Hinkley’s possession of an unregistered “sawed-off shotgun” was not a predicate “violent
felony” under the ACCA, as he did not have the three necessary predicate felonies to qualify for
the ACCA fifteen-year sentencing enhancement. See R. 11. Thus, the Thirteenth Circuit
reversed and remanded for sentencing. Id.
This Court granted Mr. Hinkley’s timely Petition for Writ of Certiorari. R. 12.
xii
SUMMARY OF THE ARGUMENT
When this Court balances the governmental interest of officer safety against the rights of
innocent homeowners to be free from governmental invasion, it should find that the Fourth
Amendment requires that the citizens’ rights far outweigh officer safety in protective sweeps that
do not involve an arrest, are not on “adversary turf,” and involve consent to enter the home.
Moreover, if this Court were to allow police officers to conduct protective sweeps not incident to
an arrest, but with consent to enter by the homeowner, police officers would be circumventing
the warrant requirement and leaving innocent homeowners with no means to challenge an
officers conduct. Finally, these protective sweeps have all the qualities of a full-blown search
when an officer is only searching to find a suspect within a home. For these reasons, this Court
should apply the probable cause standard rather than the reasonable suspicion standard, used in
protective sweeps that are incident to an arrest.
Possession of an unregistered sawed-off shotgun does not qualify as a predicate “violent
felony” under the residual clause of the ACCA, therefore, the Thirteenth Circuit was correct in
reversing Mr. Hinkley’s ACCA fifteen-year enhancement. Mere possession does not present a
serious risk of physical injury similar to burglary, arson, extortion, or crimes involving the use of
explosives because not only does Congress allow its possession by simply paying a $200.00 tax,
but also because mere possession is easily distinguishable from the actual use of explosives
which the ACCA enumerates as a predicate felony. Further, possession of an unregistered
sawed-off shotgun is not an ACCA predicate felony because it does not involve the same degree
of purposeful, violent, and aggressive conduct, because unlike the enumerated crimes, it involves
merely passive behavior.
xiii
ARGUMENT
I.
BECAUSE THE GOVERNMENTAL INTEREST IN PROTECTING OFFICER
SAFETY DOES NOT OUTWEIGH A CITIZEN’S RIGHT TO PRIVACY WITHIN
THE HOME, THE PROPER STANDARD FOR “PROTECTIVE SWEEPS” NOT
INCIDENT TO AN ARREST, BUT WITH CONSENT TO ENTER THE HOME, IS
PROBABLE CAUSE.
The Fourth Amendment protects “the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
It is a “basic principle of Fourth Amendment law” that searches and seizures inside a home
without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 585-86
(1980). In particular, the “‘physical entry of the home is the chief evil against which the wording
of the Fourth Amendment is directed.’” Id. at 586 (citation omitted). In determining the
reasonableness and validity of any warrantless search, such as the North Greene Police
Department’s warrantless search of Mr. Hinkley’s residence here, this Court applies a balancing
test and weighs the government’s interest in safe and effective law enforcement against a
citizen’s interest in freedom from arbitrary invasion guaranteed by the Fourth Amendment
against. See Maryland v. Buie, 494 U.S. 325, 334 (1990). But when applying the balancing test,
the Court has been careful to confine the scope of searches based on less than probable cause to
only limited circumstances. Buie, 494 U.S. at 333-35; see e.g., Michigan v. Long, 463 U.S. 1032,
1049 (1983) (allowing reasonable suspicion for a roadside stop because a potential danger
arising from the presence of weapons in a vehicle); Terry v. Ohio, 392 U.S. 1, 24-25 (1968)
(allowing reasonable suspicion to frisk for weapons prior to arrest when “the sole justification of
the search… [was] the protection of police officers and others nearby…”).
A “protective sweep” of a home not incident to arrest when entry is by consent but
without probable cause conflicts with the Court’s justification of a protective sweep in Buie. 494
1
U.S. at 335. This Court held in Buie that “[t]he Fourth Amendment permits a properly limited
protective sweep in conjunction with an in-home arrest when the searching officer possesses a
reasonable belief based on specific and articulable facts that the area to be swept harbors an
individual posing a danger to those on the arrest scene.” Id. at 337. The Court recognized that a
protective sweep was necessary to protect an officer’s safety because the situation had “escalated
to the point of arrest” and a protective sweep was viewed as an “adjunct to the serious step of
taking a person into custody for the purpose of prosecuting him for a crime.” Id. at 333. The
Court also reasoned that “unlike an encounter on the street or along a highway, an in-home arrest
puts the officer at the disadvantage of being on his adversary’s ‘turf.’ An ambush in a confined
setting of unknown configuration is more to be feared than it is in open, more familiar
surroundings.” Id.
D. When Police Officers Enter The Home Of A Person Not Suspected Of Any
Crime, Without The Purpose Of Effectuating An Arrest, And With Consent To
Enter, The Government’s Interest In Officer Safety Does Not Outweigh The
Rights Of Private Citizens, And Therefore This Court Should Not Permit A
“Protective Sweep.”
When this Court balances the governmental interest of officer safety against the rights of
innocent homeowners to be free from governmental invasion, it should find that the Fourth
Amendment requires that the citizens’ rights far outweigh officer safety in protective sweeps that
do not involve an arrest, are not on “adversary ‘turf,’” and involve consent to enter the home.
Buie, 494 U.S. at 333.
First, without an arrest, the officer is not taking the “serious step of taking a person into
custody for the purpose of prosecuting him for a crime,” viewed by this Court as the situation
that escalates the risk of danger to the officer as opposed to an “encounter on the street or along a
highway.” Id. at 333. The “risk of danger in the context of an arrest in the home” is due to the
2
reality that there may be “unseen third parties in the house” who would launch an attack on the
arresting officer, such as friends or relatives of the arrestee who would want to prevent the arrest
of someone they care for. Id. at 333, 336. However, without an arrest, there is no motive for a
third party to attack a police officer. Thus it follows, absent an arrest, there is no danger to an
officer, and thereby no need for the conjunctive step of a “protective sweep” incident to an arrest.
Id. at 337. In situations where officers are not effectuating an arrest, the severe burden on a
homeowner is simply not outweighed, as there is no governmental interest in protecting officer
safety. As such, this Court should protect innocent homeowners from the “chief evil” that the
Fourth Amendment protects. See Payton, 445 U.S. at 585-86.
Second, under Buie, a “protective sweep” incident to an arrest is justified because police
officers are at a disadvantage on their “adversary’s turf,” making it more dangerous for an officer
to effectuate an arrest. 494 U.S. at 333. However, where there is no arrest, but instead involving
a “knock and talk” encounter such as the one in this case, there is no “adversary[]” to the police
officer. See United States v. Gould, 364 F.3d 578, 597, n. 5 (5th Cir. 2004) (Smith, J.,
dissenting) abrogated on other grounds by Kentucky v. King, 131 S. Ct. 1849 (2011). An
assumption that a homeowner is an “adversary” of a police officer “completely mistakes the
fact” that “[t]he whole point is to approach a citizen and learn something through voluntary
cooperation.” Id. In any situation where the officer merely has consent to enter a home to speak
with a homeowner about a crime in their neighborhood, police officer’s should not assume that
they are in danger. This would misconstrue this Court’s sole justification of officer safety, as the
officer should have nothing to fear.
Moreover, if the sole purpose of an encounter is to “knock and talk” then there is no
reason for an officer to enter a home, and when an officer chooses to seek consent and enter a
3
home, the officer is creating his own danger. This Court should not allow police officers to
manufacture danger, just as they are not allowed to create exigent circumstances. See Kentucky
v. King, 131 S. Ct. 1849, 1858 (2011). This Court should not allow police officers to use the
consent of a cooperating homeowner as a pretext to conducting a protective sweep. This
unconstitutional invasion has happened far too frequently. See e.g. United States v. Gandia, 424
F.3d 255, 263 (2nd Cir. 2005) (noting where police obtained consent to discuss a situation and
get out of the rain, the court found “there was no need for the police officers to enter
[defendant’s] home in the first place. They were there for their own convenience (and perhaps
for his) while taking his statement.”) Therefore, even assuming the officers viewed Mr. Hinkley
as an adversary, the North Greene Police Department had the ability to avoid “the disadvantage
of being on his adversary’s ‘turf”’ by simply interviewing Mr. Hinkley elsewhere – on his front
step, in the police cruiser, or at the police station – since the conversation was the officer’s only
alleged purpose for entering the home. 1 See R. 5-6; Buie, 494 U.S. at 333; Gandia, 424 F.3d at
263. This “police created danger” cannot be used as the sole basis to justify a protective sweep,
because had the police not entered the home, there would be no “need for law enforcement
officers to protect themselves.” See Buie, 494 U.S. at 332.
Third, “expanding the [protective sweep] doctrine will encourage law enforcement to
gain legal entry through ‘knock and talk’ requests and then gather evidence without any
requirement of suspicion or compliance with the Fourth Amendment.” United States v. TorresCastro, 470 F.3d 992, 997 (10th Cir. 2006); see Buie, 494 U.S. at 334 n.2 (acknowledging that
1
Before entering the home the officer briefly discussed the recent string of home invasions and
the possibility of the criminal having entered Mr. Hinkley’s home to take refuge. See R. 5.
However, the officer only explicitly “asked if he could come inside to ask [Mr. Hinkley] a few
questions, since it was raining quite hard outside,” not if he could enter the private residence to
search. R. 5-6.
4
“protective sweeps” were “susceptible to exploitation,” especially when compared to a search of
a home with a warrant); Gould, 364 F.3d at 589 (noting “concerns might arise respecting a
consent to entry requested for a stated common purpose but actually intended not for that
purpose but rather for the purpose of gaining access in order to then make a protective sweep of
the entire home for unrelated reasons and thus circumvent the warrant requirement”). Officers
could obtain consent to enter the home, fabricate a basis to justify a reasonable suspicion that
they are in danger, and must conduct a “protective sweep” of the house, with the sole purpose of
hopefully discovering evidence in plain view. 2 See e.g. Torres-Casto, 470 F.3d at 995-96 (where
officers “asked permission…to enter and talk” only to then conduct a “brief protective sweep of
the other rooms in the house” when they noticed other individuals present in the home, which
ultimately lead to the discovery of an unregistered firearm).
When officers conduct this kind of protective sweep it demonstrates that the
governmental interest in officer safety is not the overriding purpose, as required under Buie. See
494 U.S. at 333-34. For instance, when the officer walked through Mr. Hinkley’s home, he was
searching for the source of danger, the suspect, until he saw a gun and arrested Mr. Hinkley. At
that point, the “protective sweep” ceased. Thus, evidencing the actual purpose of the officer’s
entry was not to search for the suspect, but to instead find evidence, especially when the officer
recognized Mr. Hinkley as a man he had arrested in the past for possession of an unregistered
firearm. See R. 5, 6. Further evidence into the officer’s actual purpose is that by the time he
found the firearm, he had gone into only one room of the house, leaving the rest of the rooms
posing a threat to the officer’s safety. If the officer’s safety was still a concern, like the officer
2
It is well established that “under certain circumstances the police may seize evidence in plain
view without a warrant.” See Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971). In a plain
view case, a police officer must have a “prior justification for an intrusion in the course of which
he came inadvertently across a piece of evidence incriminating the accused.” Id. at 466.
5
claimed at the outset, the officer could have seized the gun and proceeded to finish his alleged
“protective sweep.” Buie, 494 U.S. at 333. A reasonable officer who believed that his life was
at risk would not stop a “protective sweep” while a suspect was still on the loose merely to arrest
a homeowner for possession of an unregistered firearm.
Fourth, in circumstances where a police officer conducts a protective sweep for a
dangerous suspect in an individual’s home, the balancing test must weigh in favor of the
individual’s rights. This is especially true when: (1) the homeowner is adamant that the suspect
has not taken refuge; (2) when there is no evidence to believe the suspect is there; and (3) when
the search would be more than just a “narrowly confined cursory visual inspection of those
places in which a person might be hiding.” Buie, 494 U.S. at 327, 333-35.
In situations where police officers attempt to conduct a “protective sweep” for a suspect
who is a stranger in one’s home and the homeowner is positive that the suspect is not present,
then there is no danger to the officer or the individual, and thus the officer must yield to the
privacy rights of the individual by not conducting a protective sweep. Further, if a suspect, who
killed one homeowner and subdued others in the neighborhood with a gun, was present in a
home, the suspect would surely not have left the homeowner unharmed. When Mr. Hinkley
opened his front door unharmed, the police officer should have realized that the danger was not
lurking within the confines of the home. Moreover, had there actually been such a threat, Mr.
Hinkley surely would have known, disclosed it to the officer, and allowed him in to apprehend
the suspect. Here, Mr. Hinkley explicitly told the officer that he had not seen or heard anything
out of the ordinary all night, kept his backdoor locked, and surely would have heard someone
enter. R. 6. This Court should not permit a police officer’s supposed “reasonable suspicion” to
override a homeowner’s refusal to search because a homeowner is in the best position to know
6
whether someone has taken refuge in their home. See id. The governmental interest in officer
safety is not present because if a homeowner is not in fear of a suspect hiding within his home,
surely an armed, trained, and experienced police officer cannot reasonably hold such a fear.
When an officer is faced with an unharmed and adamant homeowner in this type of situation, the
officer should respect the homeowner’s sacred privacy interests and leave the home, and not
conduct a warrantless search of the entire residence.
In addition, when a police officer enters a home through consent and once inside has no
evidence to believe that an armed and dangerous suspect is hiding, the homeowner’s right to
privacy must again outweigh any purported interest in officer safety. The mere theoretical
possibility that a dangerous individual might be inside a residence does not constitute articulable
facts justifying a “protective sweep.” Where an officer has no information about the presence of
dangerous individuals, the courts have consistently refused to permit this lack of information to
support a possibility of peril justifying a sweep.” See United States v. Chaves, 169 F.3d 687, 692
(11th Cir. 1999); United States v. Archibald, 589 F.3d 289, 299-300 (6th Cir. 2009); United
States v. Morgan Vargas, 376 F.3d 112, 115,117 (2nd Cir. 2004). For instance, like Mr.
Hinkley, the defendant in Gandia told the police that no one else was present in the home, the
officers did not see anyone, or hear any sounds indicating that someone else was present, and the
court found that the protective sweep of the entirety of defendant’s apartment violated Fourth
Amendment. 424 F.3d at 258-59. Similarly, the court in Moran Vargas, found there was “no
objective basis to warrant a reasonable suspicion of danger from a second person” when the
agents had received no information that anyone else was present, had not heard any noise coming
from the bathroom, and saw no evidence of another’s presence. 376 F.3d at 116. Allowing
7
officers with no information 3 at all is “directly contrary to [this Court’s] explicit command in
Buie that the police have an articulable basis on which to support their reasonable suspicion of
danger from inside the home.” Buie, 494 U.S. at 333-34; Archibald, 539 F.3d at 300.
Finally, in situations where an officer enters a home to perform a “protective sweep” for a
hiding fugitive, this will be more than just a “narrowly confined cursory visual inspection of
those places in which a person might be hiding,” as required by Buie. See 494 U.S. at 327. A
person taking refuge in a stranger’s home to avoid police detection would reasonably be hiding
in a hard to discover places, including closets, under beds, or other private areas of the home, not
open areas like a kitchen. Id. This means that in order to conduct an effective “protective
sweep” and avoid an attack, police officers must search through a person’s most private and
constitutionally protected areas of sanctity. See Payton, 445 U.S. at 601 (“sanctity of the home
that has been embedded in our traditions since the origins of the Republic”). Therefore, this
Court should not allow such an invasion of privacy without the government first meeting its
burden of proving a reasonable belief that danger is lurking within the home.
For the above reasons, this Court should not allow police officers to conduct a “protective
sweep” of a home without first effectuating an arrest, but there is consent to enter the home, as
the governmental interest in protecting officers from “danger” is no longer present without an
arrest and the officer is not on an “adversaries” turf when merely entering to “knock and talk.”
E. If This Court Allows Police Officers To Conduct “Protective Sweeps” Not
Incident To An Arrest, But With Consent To Enter By The Homeowner, Police
Officers Would Be Circumventing The Warrant Requirement And Leaving
Innocent Homeowners With No Means To Challenge An Officers Conduct.
3
Surely, a mere tip from a neighbor that someone was “flee[ing] in the direction” of Mr.
Hinkley’s home cannot rise to the level of reasonable suspicion. The suspect could have fled to
any of the homes in that direction. There was nothing specific about Mr. Hinkley’s home. No
one reported seeing the suspect in his yard or entering his home.
8
In a society that presumes its citizens are innocent until proven guilty, one must believe
there are many unlawful searches of homes of innocent people that result in nothing
incriminating. See Taylor v. Kentucky, 436 U.S. 478, 486 (1978). And it is these innocent
citizens whom “protective sweeps” without probable cause, without an arrest, and without a
warrant, will impact the most, leaving them with no way to challenge governmental invasion of
the private home. If there are no drugs, no weapons, and no evidence of a crime in a home, the
government has nothing to seize, and thus there is nothing for a homeowner to seek to exclude
within the courts. The United States utilizes the exclusionary rule 4 to protect “criminals” from
unlawful invasion into their home, but there is simply no equivalent to protect an innocent
homeowner subject to a “protective sweep.”
Grave consequences may ensue if this Court allows “protective sweeps” without probable
cause, without an arrest, and without a warrant, police will have the ability to go door to door to
every home in a neighborhood, without having any evidence that a suspect if even inside of the
home. See e.g. Lankford v. Gelston, 364 F.2d 197,199 (4th Cir. 1966) (where over the course of
19 days, police on 300 occasions searched third persons’ homes for suspects, without search
warrants and the court found that the parties seeking redress had committed no acts “warranting
violation of the privacy of their homes” and there had “never been any suspicion concerning
them or their associations”). This type of “protective sweep” would operate in conjunction with
the plain view doctrine, opening otherwise innocent citizens susceptible to the prying eye of
police officers, merely because a suspect, unconnected with the homeowner might be hiding
within that home.
4
The exclusionary rule is a principle whereby illegally seized evidence cannot be admitted into
evidence against a suspect in criminal prosecution if police officers violated the suspect’s Fourth
Amendment rights to be free from unreasonable searches and seizures. See Weeks v. United
States, 232 U.S. 383 (1914).
9
These innocent homeowners who have had the sacred privacy invaded by the government
will be unable to bring any sort of action to prevent this conduct in the future. Indeed, “it is only
in the rare instance that a person not accused or even suspected of any crime petitions the court
for redress of police invasion of his home.” Id. at 202. It is “not that such invasions do not
occur” instead it is because
[o]nly occasional and more flagrant abuses come to the attention of the courts,
and then only those where the search and seizure yields incriminating evidence
and the defendant is at least sufficiently compromised to be indicted. If the
officers raid a home, an office, or stop and search an automobile but find nothing
incriminating, this invasion of the personal liberty of the innocent too often finds
no practical redress. There may be, and I am convinced that there are, many
unlawful searches of homes and automobiles of innocent people which turn up
nothing incriminating, in which no arrest is made, about which courts do nothing,
and about which we never hear.
Id. (quoting Brinegar v. United States, 338 U.S. 160, 181-182, (1949) (Jackson, J., dissenting)).
Moreover, as the Fourth Circuit recognized in Lankford, “[t]here can be little doubt that actions
for money damages would not suffice to repair the injury suffered by the victims of the police
searches.” Lankford, 364 F.2d at 202. Further, “the lesson of experience is that the remote
possibility of money damages serves as no deterrent to future police invasions.” Id. (citation
omitted).
In addition, innocent citizens have no immediate course of redress while an officer is
within their homes conducting a “protective sweep” of rooms, closets, and other private areas.
He cannot use force and risk being arrested for obstruction of justice or assault and battery; he
cannot make threats; he cannot, realistically, call the police; he cannot seek a civil injunction;
and he cannot insist upon a magistrate’s determination of probable cause, as it is already too late.
Instead, the “citizen’s choice is quietly to submit to whatever the officers undertake or to resist at
10
risk of arrest or immediate violence.’ Lankford, 364 F.2d at 202 (quoting Brinegar, 338 U.S. at
181-182 (Jackson, J., dissenting).
Absent a “protective sweep” being incident to an arrest or when there is probable cause to
secure a search warrant, this Court should not allow police officers to enter a private citizen’s
home, leaving them with no course of redress, unless of course the officer discovers contraband.
This type of “protective sweep” of a home without probable cause, without a warrant, and
without an arrest, would reduce the Fourth Amendment to a nullity and leave the people’s homes
secure only in the discretion of police officers.
F. Probable Cause, Not Reasonable Suspicion, Is The Correct Standard For
Protective Sweeps When There Is No Arrest And The Officer Is Only Searching
For A Suspect Within The Confines Of A Third Party’s Home.
When a police officer conducts a protective sweep of a home not incident to an arrest to
find a suspect in a third party’s home, this Court should apply the probable cause standard rather
than the reasonable suspicion standard. Protective sweeps of a home not incident to an arrest are
more analogous to a full search of a home, which requires at a minimum an arrest warrant,
search warrant, or probable cause. Because the right to search obtained ostensibly for one
purpose, officer protection, is actually for another purpose – searching for a suspect. And under
the Fourth Amendment, searches of this kind require warrants, which in turn require probable
cause. See Agnello v. U.S., 269 U.S. 20, 33 (1925). (“Belief, however well founded, that [a
person] sought is concealed in a dwelling house, furnishes no justification for a search of that
place without a warrant. And such searches are held unlawful notwithstanding facts
unquestionably showing probable cause.”)
Moreover, in an analogous situation, this Court held that an officer needs more than just
an arrest warrant to search within a third party’s home for the suspect. See Steagald v. U.S., 451
11
U.S. 204, 216 (1981) (holding that a law enforcement officer could not legally search for subject
of arrest warrant in home of third party, without first obtaining search warrant). In a “protective
sweep,” where there is no arrest, the standard must be probable cause. A “contrary conclusion—
that the police, acting alone and in the absence of exigent circumstances, may decide when there
is sufficient justification for searching the home of a third party for the subject without even an
arrest warrant—would create a significant potential for abuse.” Id. at 215. But a requirement
than an officer must have probable cause to believe that a suspect is in a particular dwelling and
posing a danger “will not unduly restrict the effectiveness of police action…[i]t offers police
considerable latitude but also requires a necessary amount of restraint. It should enable the
police to act reasonably but not oppressively, promptly but not recklessly, lawfully but not
offensively.” Fisher v. Volz, 496 F.2d 333, 341 (3rd Cir.1974).
Finally, this Court should find that probable cause, not reasonable suspicion, is the
appropriate standard for a “protective sweep” not incident to an arrest when an officer’s entry is
by consent. Therefore, this Court should reverse the decision of the Thirteenth Circuit Court of
Appeals and remand to apply the probable cause standard to the facts of this Mr. Hinkley’s case.
C. THE HISTORY OF THE FOURTH AMENDMENT DEMANDS THAT POLICE
OFFICERS HAVE PROBABLE CAUSE TO CONDUCT A PROTECTIVE
SWEEP OF A RESIDENCE WHEN IT IS NOT INCIDENT TO AN ARREST.
History dictates that “protective sweeps” recognized in Buie should not extend to
situations where entry is by consent and a protective sweep is not incident to an arrest or based
on probable cause. See 494 U.S. at 333-35; Stanford v. State of Texas, 379 U.S. 476, 481-84
(1965). As the Court noted in Stanford, “[v]ivid in the memory of the newly independent
Americans were th[e] general warrants…under which officers of the Crown had so bedeviled the
colonists…[and] had given customs officials blanket authority to search where they
12
pleased…They were denounced…as ‘the worst instrument of arbitrary power, the most
destructive of English liberty, and the fundamental principles of law, that ever was found in an
English law book,’ because they placed ‘the liberty of every man in the hands of every petty
officer.’” Stanford, 379 U.S. at 481. In essence, a search, labeled protective or otherwise, is
constitutionally unreasonable if it allows officers to utilize a process of elimination going from
house to house and from room to room until the officers find the suspect they are searching for
because such an indiscriminate search undermines the purpose of the Fourth Amendment. Id. at
481-84; see Buie, 494 U.S. at 335-36 (restricting “protective sweeps” to “no longer than it takes
to complete an arrest and depart the premises”); cf. Lankford v. Schmidt, 240 F. Supp. 550, 55758 (D. Md. 1965) (“Entry into a dwelling without probable cause and without consent must be
severely condemned, whether the home be in the poorest part of the city or in an impressive
suburban development. All residents … are equally entitled to the constitutional right of
privacy”).
In fact, given a primary purpose of the Fourth Amendment was to eliminate the abuses
inherent in the general warrants issued by the British Crown “that [] authorized wide and
sweeping searches for suspects or evidence” wherever officers wanted, it should be of no
consequence that an officer is conducting a protective sweep after he has lawfully entered a
home by consent. Stanford, 379 U.S. at 481-82, 486. Because absent the sweep being incident
to an arrest, the officer’s search of a home without probable cause, without a warrant, and where
a citizen’s protests go ignored would reduce the Fourth Amendment to a nullity and leave the
people’s homes secure only in the discretion of police officers. See Fisher, 496 F.2d at 343
(“The vice of a general warrant was that it authorized wide and sweeping searches for suspects or
evidence.”).
13
Characterizing near unbridled authority to search a private home as an effort to protect a
government officer who was given consent to enter without probable cause “would be false to
the terms of the Fourth Amendment, false to its meaning, and false to its history.” Stanford, 379
U.S. at 486. Because permitting officers to conduct a protective search of a home based on mere
consent to enter but absent an arrest, probable cause, or a warrant, in effect, equates to handing
back government officers “blanket authority to search where they please” as long as the area
searched could contain a hiding suspect. See id. at 481-82, 486. Indeed, there is no limit to what
the police will do when given the authority to conduct a protective sweep of a home not incident
to an arrest. As the conduct of the North Greene Police Department demonstrates, without
deterrence and adequate restraints, police departments will continue to utilize crime solving
methods contrary to the privacy interests of citizens by gradually stretching the constitutional
interpretations of this Court, specifically protective sweeps recognized in Buie, until the
guarantees of Fourth Amendment erode away with time. See 494 U.S. at 333-35; see also Kyllo
v. U.S., 533 U.S. 27, 34 (2001) (refusing “to permit police technology to erode the privacy
guaranteed by the Fourth Amendment”). And in the words of dissenting Chief Judge Kozinski in
U.S. v. Pineda-Moreno: 5
The panel authorizes police to do not only what invited strangers could, but also
uninvited children-in this case crawl under the car to retrieve a ball and tinker
with the undercarriage. But there's no limit to what neighborhood kids will do,
given half a chance: They'll jump the fence, crawl under the porch, pick fruit from
the trees, set fire to the cat and micturate on the azaleas. To say that the police
may do on your property what urchins might do spells the end of Fourth
Amendment protections for most people's curtilage.
5
The concerns of the dissenting Chief Judge in U.S. v. Pineda-Moreno, 617 F.3d 1120, 1121-23
(9th Cir. 2010) (denial of petition for rehearing en banc), were subsequently recognized by and
consistent with this Court’s decision in U.S. v. Jones, 132 S. Ct. 945, 954 (2012), where the
Court found it was unconstitutional under the Fourth Amendment for the government to attach a
tracking device to a suspect’s vehicle without a warrant.
14
617 F.3d 1120, 1123 (9th Cir. 2010) (denial of rehearing en banc) (Kozinski, C.J., dissenting).
The only thing that will stop police from performing searches with unbridled authority is
probable cause.
Over two centuries have passed and thousands have died to ensure the continued freedom
of every Americans’ from unreasonable searches and seizures, yet today, a child, while sitting at
the kitchen table reading a homework assignment about the history of America and why the
Constitution is so precious to its citizens, may be forced to remain seated while an officer of the
government searches through every room in the house, through closets, under beds, and private
areas of the home despite hearing his or her parents’ protest. The basis, the child’s parents
consented for the officer to enter their home to discuss a crime or suspect the family had no
knowledge of. Consequently, as the next generation of America grows older, lessons learned
will not be from textbooks, but instead from personal experiences that conflict with the textbooks
used by schools for decades across the entire country. Cf. Pinedo-Moreno, 617 F.3d at 1121
(Kozinski, C.J., dissenting) (“The needs of law enforcement, to which [the majority] seem
inclined to refuse nothing, are quickly making personal privacy a distant memory.”).
To this end, while the general warrants may not be as “[v]ivid in the memory of the
newly independent Americans were,” the Fourth Amendment guarantee to the Framers – that no
government officer shall invade the home of an innocent citizen without probable cause or a
warrant – is no less today than over two centuries ago, and this Court must apply the standard of
probable cause to protective sweeps for a suspect in a third person’s home. Stanford, 379 U.S. at
481-82; see Carroll v. U.S., 267 U.S. 132, 149 (1925) (“The Fourth Amendment is to be
construed in the light of what was deemed an unreasonable search and seizure when it was
adopted, and in a manner which will conserve public interests as well as the interests and rights
15
of individual citizens.”); see also Kyllo, 533 U.S. at 40 (“tak[ing] the long view, from the
original meaning of the Fourth Amendment forward”). When police officers in the future are
asked by citizens to see a warrant to search their homes, it is hard to conceive that Americans
will understand, or approve, that a government officer can respond: a warrant is not required to
search for a suspect because you let me enter your home to talk and now I feel in danger even
though I do not have probable cause to believe the suspect is in your home posing a danger.
Therefore, based on the history of this country, this Court has further reason to find that a
protective sweep of a home not incident to an arrest merely to find a suspect, must be supported
on probable cause, or it is unconstitutional under the Fourth Amendment. See Buie, 494 U.S. at
333-35; Steagald, 451 U.S. at 219-22; see also Jones v. U.S., 357 U.S. 493, 498 (1958) (“Were
federal officers free to search without a warrant merely upon probable cause to believe that
certain articles were within a home, the provisions of the Fourth Amendment would become
empty phrases, and the protections it affords largely nullified.”).
III.
POSSESSION OF AN UNREGISTERED SAWED-OFF SHOTGUN DOES NOT
QUALIFY AS A PREDICATE “VIOLENT FELONY” UNDER THE RESIDUAL
CLAUSE OF THE ACCA BECAUSE MERE POSSESSION DOES NOT
PRESENT A SERIOUS RISK OF PHYSICAL INJURY NOR DOES IT INVOLVE
A SIMILAR KIND OF PURPOSEFUL, VIOLENT, AND AGGRESSIVE
CONDUCT AS THE ENUMERATED CRIMES.
Mere possession of an unregistered sawed-off shotgun does not constitute a violent
felony pursuant to the ACCA residual clause and therefore, this Court should find that Mr.
Hinkley does not qualify for the sentencing enhancement under Title 18 U.S.C.A. § 924(e),
commonly known as the ACCA. First, his mere possession of an unregistered sawed-off shotgun
does not present a serious risk of physical injury to another “similar in degree to the enumerated
crimes of burglary, arson, extortion, or crimes involving the use of explosives,” (herein
“enumerated crimes”) Second, his mere possession of an unregistered sawed-off firearm is
16
passive, and does not involve the same or similar kind of “purposeful, violent, and aggressive”
conduct as these ACCA enumerated crimes. See Begay v. U.S., 553 U.S. 137, 143 (2008).
The ACCA provides a sentencing enhancement for a convicted felon in possession of a
firearm who has three previous felony convictions. 18 U.S.C.A. § 924(e). According to the
ACCA, the three previous felonies must be for burglary, arson, extortion, crimes involving the
use of explosives, or any “violent felony6 or a serious drug offense, or both, committed on
occasions different from one another.” Id. A felon charged under this statute will be fined not
more than $25,000 and imprisoned for no less than fifteen years without parole. Id.
In order to determine whether a previous conviction constitutes a “violent felony” under
the ACCA, courts must only look at the elements of the particular offense to see if it fits within
the definition of “violent felony,” and must not at the specific conduct engaged by the defendant.
James v. United States, 550 U.S. 192, 202 (2007); Taylor v. U.S., 495 U.S. 575, 576 (1990);
Shepard v. United States, 544 U.S. 13, 26 (2005) (only where the defendant has been charged
under a statute which penalizes both violent and non-violent actions, does a court apply a
modified categorical approach and look at the defendant’s charging document, plea agreement,
or other similar judicial record for the limited purpose of determining which part of a divisible
statute he violated).
In Begay this Court established a two-prong test to determine whether a felony is
“violent” for purposes of the ACCA’s residual clause. 18 U.S.C. § 924(e)(2)(B)(ii); 553 U.S. at
143. The first prong of this test requires that the offense at issue must first present a degree of
risk similar to that posed by the enumerated offenses. The second prong then requires that the
offense be roughly similar in kind to burglary, arson, extortion, and crimes involving the use of
6
This portion of the statute, which refers to any “violent felony,” is commonly referred to as the
ACCA residual clause. See Begay v. U.S., 553 U.S. 137, 143 (2008).
17
explosives. Id. Offenses similar in kind “typically involve purposeful, violent, and aggressive
conduct” and must present more than a serious risk of physical injury to another is not sufficient.
Id.
Although circuit courts have differed on whether possession of a short-barreled or sawedoff shotgun constitute a violent felony under the ACCA post-Begay, a proper application of
Begay’s narrower test warrants this Court to affirm the Thirteenth Circuit and hold that mere
possession of an unregistered sawed-off shotgun is dissimilar to the enumerated crimes and does
not constitute a violent felony under the ACCA. Id.; United States v. Vincent, 575 F.3d 820 (8th
Cir. 2009), cert. denied, U.S., 130 S.Ct 3320 (2010) (holding over a dissent, that the offense is a
violent felony), United States v. McGill, 618 F.3d 1273 (11th Cir. 2012) (holding that possession
of a short-barreled shotgun is not a violent felony).
A. Simply Possessing An Unregistered Sawed-Off Shotgun Is Not An ACCA
Predicate Violent Felony Because It Does Not Present A Risk Of Physical Injury
To Another.
Mere possession of an unregistered sawed-off shotgun does not present a serious risk of
physical injury to another because these enumerated acts are all overt, while possession is purely
passive. In determining whether an offense constitutes a violent felony pursuant to the ACCA,
the offense must first present a serious risk of physical injury to another “similar in degree to the
enumerated crimes of burglary, arson, extortion, or crimes involving the use of explosives.” 18
U.S.C. § 924(e)(2)(B)(ii); Begay, 553 U.S. at 143.
This Court should not follow the reasoning of the Thirteenth Circuit that being in
possession of a sawed-off shotgun, which the possessor has failed to register, is inherently
dangerous and lack usefulness except for violent and criminal purposes, thus meeting the firstprong of Begay. If this were true, Congress would outlaw all sawed-off shotguns, not simply
18
require them to be registered. See 26 U.S.C §5861(d). Section 5861 of the United States Code
makes it unlawful for any person “to receive or possess a firearm which is not registered to him
in the National Firearms Registration and Transfer Record,” id, and includes “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” in its definition of firearms. 26 U.S.C
§5845(a)(2). According to Congress, possession of a sawed-off shotgun has a legitimate
purpose, because possession of a sawed-off shotgun is lawful so long as the possessor pays a
$200.00 registration tax for a “weapon made from a shotgun.” 7 In addition, this Court should
not speculate that it was the dangers of sawed-off shotguns that moved Congress to impose this
tax, and not some other purpose. See Sonzinksy v. U.S., 57 S.Ct. 554 (1998) (holding that this
Court is not free to speculate as to motives which moved Congress to impose annual license tax
on dealers of firearms).
The closest felony among those enumerated in the ACCA “similar” to possession of an
unregistered firearm is the use of explosives, which is a comparison between apples and oranges.
The risk of using explosives far exceeds the otherwise lawful possession of a sawed-off shotgun,
made unlawful merely by the possessor’s failure to pay a $200.00 tax. 8 Further, even if this
Court were to find that short-barrels shotguns were “akin to explosives in terms of dangerousness
and violence, ‘Congress included only the use, but not the possession of, explosives among the
ACCA’s example crimes.’” Bradford, 766 F.Supp2d at 910 (quoting McGill, 618 F.3d at 1277).
7
United States Department of Justice, Identification of Firearms Within the Purview of the
National Firearms Act, The Bureau of Alcohol, Tobacco, Firearms and Explosives,
http://www.atf.gov/firearms/guides/identification-of-nfa-firearms.html
8
Under Taylor, this Court is not allowed to look at the facts of Mr. Hinkley’s case, but merely at
the language in the statute at issue, 495 U.S. at 576, therefore, it is immaterial that Mr. Hinkley
was a felon in possession at the time of this charge. The categorical placement of §5861(d) into
a violent felony under the ACCA would apply to all defendants regardless of the circumstances
around their failure to register the shotgun.
19
This Court should not “classify possessing one type of NFA outlawed weapon as a violent felony
when the ACCA speaks only to the use of another.” Id. In light of the statutory language, it
would be incorrect to classify the mere possession of an unregistered firearm as a violent felony
when Congress explicitly limited the use of explosives, and not their possession. See Bradford,
766 F.Supp at 909.
For these reasons, the mere possession of an unregistered sawed-off shotgun is not
“similar in kind” to the crimes enumerated in the ACCA’s residual clause and, therefore, Mr.
Hinkley does not qualify for the ACCA fifteen-year enhancement, as he does not have three
offenses. See Begay, 553 U.S. at 143.
B. Possession Of An Unregistered Sawed-off Shotgun Is Not An ACCA Predicate
Felony Because It Does Not Involve The Same Degree Of Purposeful, Violent, And
Aggressive Conduct, Because Unlike the Enumerated Crimes, It Involves Merely
Passive Behavior.
Even if this Court were to find that mere possession imposes a serious risk similar to
crimes of burglary, arson, extortion, or crimes involving the use of explosives, this Court should
still affirm the Circuit Court because the second required prong of the Begay test is not met. Id.
In determining whether an offense constitutes a violent felony pursuant to the ACCA under the
second prong of Begay, the offense must also involve the same or similar kind of “purposeful,
violent, and aggressive” conduct similar in degree to the enumerated crimes of burglary, arson,
extortion, or crimes involving the use of explosives. 18 U.S.C. § 924(e)(2)(B)(ii); Begay, 553
U.S. at 143. The ACCA enumerated violent felonies should be read to limit the crimes that the
clause covers “to crimes that are roughly similar, in kind as well as in degree of risk posed, to the
examples themselves.” Begay, 553 U.S. at 143. These enumerated felonies require much more
than mere possession and involve active behavior. See Bradford, 766 F.Supp at 909.
Although the use of sawed-off shotguns may be dangerous and impose a serious risk of
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injury, its mere possession simply “creates a potential for violence and aggression that is
ordinarily realized only if possession ripens into use.” Bradford, 766 F.Supp at 909 (citing
Vincent, 575 F.3d at 830 (Gruender, J. dissenting)); See U.S. v Archer, 531 F.3d 1347 (11th Cir.
2008) (held that carrying a concealed weapon does not involve the aggressive, violent conduct
that the Supreme Court noted is inherent in the enumerated offenses); U.S v. Polk, 577 F.3d. 515
(3rd Cir. 2009) (held that possession of a prohibited object designed to be used as a weapon
while in federal prison does not constitute a crime of violence, because it is not similar in kind to
the “overt active conduct” required by the enumerated offenses.)
If this Court were to find that mere possession of an unregistered sawed-off shotgun
constitutes a violent felony under the ACCA, it would be setting a dangerous precedent, which
would expand and broaden the residual clause to include any crime that has a hypothetical
connection to violence. Id. Surely, this would be overlooking Begay’s recent narrowing of the
residual clause to crimes, which are similar in kind, and instead would expand the clause to
include offenses not intended by the legislature.
Further, illegal possession of a sawed-off shotgun is a passive crime. See Bradford, 766
F.Supp at 909. “The distinction between active and passive crimes is vital when evaluating
offenses under the Career Offender Guidelines to determine if they entail ‘purposeful, violent,
and aggressive conduct.’” U.S. v. Polk, 577 F.3d 515, 519 (7th Cir. 2009) (citation omitted). For
instance, the Seventh Circuit in Polk held that although the possession of a weapon in prison
involved a high degree of risk, Begay requires that the risk be similar in kind to the crimes set
out, and that the crime should “involve overt, active conduct that results to harm to a person or
property.” Id. (citation omitted). Therefore, the Court ruled that possession of a firearm while
incarcerated did not qualify as an ACCA predicate felony. Id. at 120.
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Mr. Hinkley did not use the sawed-off shotgun, but merely possessed it, therefore, his
passive crime should not qualify as a violent felony under the ACCA. As his acts were not overt
because the statute only criminalizes mere possession of an unregistered sawed-off shotgun, not
use of the weapon. See 26 U.S.C. §5861(d). Harm to a person or property cannot occur because
of the mere failure to register a firearm. Compare Bradford, 766 F.Supp.2d at 909 (ruling that
defendant was improperly sentenced under the ACCA guidelines for merely possessing a sawedoff shotgun); distinguish Sykes v. U.S., 131 S.Ct 2267 (2011) (ruling that vehicle flight
constituted a violent felony). This Court should not expand the ACCA’s residual clause to
include crimes that have a hypothetical connection to violence. See Bradford, 766 F.Supp.2d at
909.
Because mere possession of an unregistered sawed-off shotgun is not purposeful, violent,
and aggressive, but instead is a passive act that places no one at risk, this Court should hold that
it is not enough to satisfy Begay’s second-prong and qualify as a predicate violent felony under
the ACCA. For the reasons previously stated, this Court should affirm the Thirteenth Circuit’s
determination that the mere possession of an unregistered sawed-off shotgun does not qualify as
violent felony pursuant to the ACCA.
CONCLUSION
This Court should reverse and remand this case to the Thirteenth Circuit, so that the court
may apply the correct standard of probable cause for a protective sweep of a residence for a third
party suspect. Additionally, this Court should affirm the Thirteenth Circuit’s finding that Mr.
Hinkley’s mere possession of an unregistered sawed-off shotgun is not enough to qualify as a
violent predicate felony under the ACCA, with instructions for resentencing.
Respectfully submitted,
22
Counsel for the petitioner
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