No. 13-201
IN THE SUPREME COURT OF THE UNITED STATES
ROY HINKLEY,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondents.
On Appeal from a judgment rendered by the United States Court of Appeals for the Thirteenth
Circuit
Brief for Respondents
Team # 5
Counsel for Respondents
QUESTIONS PRESENTED FOR REVIEW
I.
Whether a police officer may conduct a safety sweep of a residence that is not
incident to an arrest when he has consent to enter the residence but does not have
probable cause or a warrant for the search?
II.
Whether possession of a sawed-off shotgun constitutes a “violent felony” under the
Armed Career Criminal Act, 18 U.S.C. §924(e).
i
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW …………………….……………………………… i
TABLE OF CONTENTS ………………………………………..……………………………… ii
TABLE OF AUTHORITIES …………………………………………………………………… iv
CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE ………………………... 1
STATEMENT OF THE CASE ………………………………………………………………….. 2
OPINIONS BELOW …………………………………………………………………………….. 5
SUMMARY OF ARGUMENT …………………………………………………………………. 6
ARGUMENT ……………………………………………………………………………………. 8
I.
II.
A POLICE OFFICER CAN CONDUCT A PROTECTIVE SWEEP ABSENT AN
ARREST WHEN HE HAS CONSENT TO LAWFULLY ENTER THE
RESIDENCE AND POSSESSES REASONABLE SUSPICION THAT THE
PREMISES HARBORS A DANGEROUS INDIVIDUAL …………….……………. 8
A.
Protective sweeps absent an arrest are lawful because an officer’s need to protect
himself from an armed and dangerous third party is present regardless of whether
an arrest has taken place ………………………………………………………… 9
B.
Reasonable Suspicion should be the standard employed for a protective sweep
when the officer is lawfully on the premises, feels he is in danger and can point to
specific and articulable facts that warrant an intrusion ………………………… 16
THE UNLAWFUL POSSESSION OF A SAWED-OFF SHOTGUN QUALIFIES
AS A PREDICATE “VIOLENT FELONY” UNDER THE ARMED CAREER
CRIMINAL ACT BECAUSE IT CREATES A SERIOUS POTENTIAL RISK OF
PHYSICAL INJURY THAT IS COMPARABLE TO THE LEVELS OF RISK
THAT BURGLARY, ARSON, EXTORTION AND THE USE OF EXPLOSIVES
PRESENT….…………………………………………….…………………………….. 22
A.
Unlawful possession of a sawed-off shotgun inherently presents the kind of
serious potential risk of physical injury that the Armed Career Criminal Act
contemplates …………………………………………………………………… 24
B.
Unlawful possession of a sawed-off shotgun presents a serious potential risk of
physical injury that is comparable to level of risk presented by burglary, extortion
and the use of explosives ………………………………………………………. 27
ii
CONCLUSION ………………………………………………………………………………… 31
CERTIFICATE OF SERVICE ………………………………………………………………… 32
CERTIFICATE OF COMPLIANCE …………………………………………………………... 33
APPENDIX A ………………………………………………………………………………….. 34
iii
TABLE OF AUTHORITIES
United States Supreme Court Cases
Begay v. U.S.,
553 U.S. 137 (2008) ………………………………………………………………. Passim
Chambers v. U.S.,
555 U.S. 122 (2009) ……………………………………………………………………. 23
James v. U.S.,
550 U.S. 192 (2007) ………………………………………………………………. Passim
Maryland v. Buie,
494 U.S. 325 (1990) ….…………………………………………………………… Passim
Michigan v. Long,
463 U.S. 1032 (1983) ……………………………………………………………... Passim
Sykes v. U.S.,
131 S.Ct 2267 (2011) …………………………………………………………... 23, 27, 28
Taylor v. U.S.,
495 U.S. 575 (1990) ……………………………………………………………. 23, 24, 27
Terry v. Ohio,
392 U.S. 1 (1968) …………………………………………………………………. Passim
U.S. v. Knights,
534 U.S. 112 (2001) …………………………………………………………………12, 15
United States Court of Appeals Circuit Court Cases
U.S. v. Daoust,
916 F.2d 757 (1st Cir. 1990) ……………………………………………………… Passim
U.S. v. Davis,
290 F.3d 1239 (10th Cir. 2002) ………………………………………………………... 20
U.S. v. Garcia,
997 F.2d 1273 (9th Cir. 1993) …………………………………………………………. 13
U.S. v. Gould,
364 F.3d 578 (5th Cir. 2004) (en banc) …………………………………………… Passim
iv
U.S. v. Lillard,
685 F.3d 773 (8th Cir. 2012) ………………………………………………………...… 25
U.S. v. McGill,
618 F.3d 1273 (11th Cir. 2010) …………………………………………………….. 28-29
U.S. v. Miller,
430 F.3d 93 (2nd Cir. 2005) ……………………………………………………………. 12
U.S. v. Patrick,
959 F.2d 991 (D.C. Cir. 1992) …………………………………………………………. 12
U.S. v. Reid,
226 F.3d 1020 (9th Cir. 2000) ……………………………………………………13, 19-20
U.S. v. Romain,
393 F.3d 63 (1st Cir. 2004) …………………………………………………………….. 16
U.S. v. Taylor,
248 F.3d 506 (6th Cir. 2001) …………………………………………………………... 12
U.S. v. Torres-Castro,
470 F.3d 992 (10th Cir. 2006) …………………………………………………………. 14
U.S. v. Vincent,
575 F.3d 820 (8th Cir. 2009) …………………………………………………………... 29
U.S. v. Wilson,
306 F.3d 231 (5th Cir. 2002) …………………………………………………………... 12
U.S. v. Woodrum,
202 F.3d 1 (1st Cir. 2000) …………………………………………………………... 15-16
Statutory Provisions
18 U.S.C.A. § 924 (2006) …………………………………………………………………. Passim
26 U.S.C.A. § 5845 (2006) ………………………………………………………………... Passim
26 U.S.C.A. § 5861 (2006) ………………………………………………………………... Passim
Other Authorities
H.R. Rep. No. 98-1073, (1984) ………………………………………………………………… 24
U.S. SENTENCING GUIDELINES MANUAL § 4B1.2 (2006) …………………………………... 25-26
v
U.S. SENTENCING GUIDELINES MANUAL app. C. sup., amend. 674 (2004) ………………… 26
Constitutional Provisions
U.S. CONST. amend. IV. …………………………………………………………………... Passim
vi
CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE
This case involves the Fourth Amendment of the United States Constitution, the Armed
Career Criminal Act, 18 U.S.C. § 924 and the National Firearms Act, 26 U.S.C. § 5845 and §
5861. The provisions, in pertinent part, are set forth in Appendix A to the brief.
1
STATEMENT OF THE CASE
A Citizen’s History of Criminal Acts
Long before the offense that ultimately brought him before this Court, Mr. Hinkley had
already established a record of breaking the law. At the early age of fifteen, Mr. Hinkley was
tried and convicted for first-degree burglary. (R. at 3.) Faced with peer pressure, he burglarized
his neighbor’s home to retrieve memorabilia that would impress his friends. Id. Mr. Hinkley was
not incarcerated, but instead sentenced to three years of home confinement and electronic
monitoring. Id. Because of this leniency, Mr. Hinkley was able to complete high school, pursue
higher education, and enter the workforce to provide for his family. Id. Nonetheless, Mr.
Hinkley again broke the law when faced with pressure once more.
When he was unable to pay his bills during the housing crisis of 2007, Mr. Hinkley again
turned to crime to alleviate his problems. (R. at 4.) Disregarding the risk of serious harm to
neighboring businesses, he burned down his own business in order to collect insurance proceeds.
Id. When he was thereafter convicted of arson, the prosecution and judge again showed leniency
during sentencing because of Mr. Hinkley’s financial hardship. Id. Instead of jail time, he was
given just one year of probation, allowing him to continue to work and provide for his family. Id.
Mr. Hinkley soon took advantage of this extra chance.
Following the destruction of his construction business, Mr. Hinkley relocated to a lowerincome area to save money on rent. Id. The area also featured a high rate of crime, with multiple
armed-burglaries near Mr. Hinkley’s new home. Id. Facing the pressures of living in a highcrime neighborhood, Mr. Hinkley sought to possess a firearm, despite the fact that it was
unlawful to do so because of his previous convictions. Id. Ignoring the law, he contacted a friend
to purchase a full-sized shotgun. Id. Instead of the traditional shotgun, however, Mr. Hinkley
2
was presented with a sawed-off shotgun with a 16-inch barrel. (R. at 5.) Mr. Hinkley accepted
the sawed-off shotgun, recognizing the benefits of concealment and maneuverability of this
weapon in home defense. Id.
One evening shortly thereafter, Mr. Hinkley stepped outside of his home, armed with this
shotgun, to address a noise he heard. Id. Mr. Hinkley was met by a group of police officers that
were investigating a burglary in the vicinity. Id. Officer Terrence Sanford, a former officer with
the Bureau of Alcohol, Tobacco and Firearms, approached Mr. Hinkley and learned that he was a
convicted felon in possession of an unregistered sawed-off shotgun. Id.
Mr. Hinkley was charged with possession of an unregistered sawed-off shotgun. Id. Yet
again, the law showed Mr. Hinkley leniency. Id. Instead of incarceration, Mr. Hinkley accepted
an offer for ten years of probation and five years of home monitoring, so that Mr. Hinkley would
be able to provide for his family and a daughter suffering from cancer. Id. Undeterred by the law,
in spite of the opportunities he had been given, and with much to lose, Mr. Hinkley yet again
decided to purchase a firearm – this time, a .40 caliber semi-automatic handgun.
An Officer’s Efforts to Ensure Safety
On the evening of June 1, 2011, multiple police officers were again in Mr. Hinkley’s
neighborhood responding to a burglary. Id. Officer Sanford knocked on Mr. Hinkley’s door. Id.
The officer explained to Mr. Hinkley that there had been another burglary, that the burglar’s
description matched that of the burglar who killed his neighbor, and that police officers were
going door-to-door to ensure that the burglar was not hiding out in the homes. Id. Mr. Hinkley
then allowed Officer Sanford to enter his home. (R. at 6.)
Officer Sanford was familiar with the layout of the Mr. Hinkley’s home because all of the
neighborhood homes had the same floor plan. Id. Officer Sanford recognized that the door
3
across the living room led into the kitchen, and the kitchen had a backdoor that led to the
backyard. Id. Officer Sanford then requested to check the home to ensure a burglar had not
broken in and taken refuge. Id. Mr. Hinkley refused, and told the officer that he had not heard
anything all night and that his backdoor was locked. Id. Office Sanford, however, did not take
these assurances for granted. Id. He proceeded to perform a brief sweep of the home as a
precaution. Id. Officer Sanford opened the kitchen door, but before entering, saw a semiautomatic handgun on Mr. Hinkley’s kitchen counter. Id. Mr. Hinkley was then arrested and
charged with being a felon is possession of a firearm in violation of 18 U.S.C §922(g)(1). Id.
4
OPINIONS BELOW
The decision of the United States District Court for the District of North Greene is
unreported and is referenced on page two of the Opinion and Order of the United States Court of
Appeals for the Thirteenth Circuit. The slip opinion of the Thirteenth Circuit is found at pages 211 of the Opinion and Order of the United States Court of Appeals for the Thirteenth Circuit.
The Court of Appeals affirmed the District Court’s findings in part and vacated the District
Court’s findings in part. The Court of Appeals held that Roy Hinkley’s motion to suppress was
properly denied and his conviction for a possession of a firearm by a felon was proper. The
Court of Appeals additionally held that possession of an unregistered “sawed-off shotgun” is not
a predicate “violent felony” under the Armed Career Criminal Act, and thus the imposition of the
minimum fifteen-year sentencing requirement under the Armed Career Criminal Act was
improper.
5
SUMMARY OF ARGUMENT
This Court should affirm the Petitioner’s conviction because the Fourth Amendment
allows an officer to perform a protective sweep absent an arrest based upon reasonable suspicion.
Additionally, this Court should reverse the Thirteenth Circuit’s decision to vacate the Petitioner’s
sentence because the unlawful possession of a sawed-off shotgun is a predicate “violent felony”
under the Armed Career Criminal Act.
An officer may lawfully conduct a protective sweep when the officer conducts a brief and
limited search of the premises and the search is conducted for the protection of the officer’s
safety. This Court has held that there are other circumstances, other than an arrest, that may
justify a protective sweep. In fact, some courts have extended the protective sweep doctrine to
include any circumstance where an officer is lawfully on the premises. The Thirteenth Circuit
correctly reasoned that allowing protective sweeps to only occur in arrest situations would
jeopardize the safety of an officer. Thus, allowing protective sweeps to only occur incident to an
arrest would be in direct contrast to the mandated “reasonableness” grounded in the Fourth
Amendment.
Furthermore, the Thirteenth Circuit also correctly decided that reasonable suspicion is the
appropriate standard for a protective sweep. This Court in Terry v. Ohio set out that reasonable
suspicion was appropriate where the officer could point to specific and articulable facts that
reasonably warrant the officer to believe that the area to be swept harbors a dangerous individual.
392 U.S. 1, 21 (1968). While this standard is considerably less demanding than that needed to
show probable cause, the officer must still prove that he has more than a mere hunch or intuition
of possible criminal activity. Further, reasonable suspicion is governed by an objective standard.
Id. Thus, this Court must look to the facts and circumstances surrounding each situation and
6
conclude whether the officer could have reasonably believed that the area contained a dangerous
individual. Therefore, protective sweeps should be governed by the same level of suspicion
required by this Court in Terry.
The Thirteenth Circuit erred in holding that possession of an unregistered “sawed-off
shotgun” is not a predicate “violent felony” under the Armed Career Criminal Act, 18 U.S.C.
§924(e). The Armed Career Criminal Act defines a violent felony as a crime punishable by
imprisonment for more than one year that:
has as an element the use, attempted use, or
threatened use of physical force against the person of another; or is burglary, arson, or extortion,
involves the use of explosives, or otherwise involves conduct that presents a serious potential
risk of physical injury to another. Because the unlawful possession of a sawed-off shotgun does
not have as an element the use, attempted use or threatened of physical force against another, and
because it is not burglary, arson, extortion and does not involve the use of explosives, possession
of a sawed-off shotgun is only qualifies as violent felony because it otherwise involves conduct
that presents a serious risk of physical injury to another. This Court has held that where an
offense does not involve strict liability or reckless or negligent conduct, an offense “otherwise
presents a serious risk of physical injury” when the level of risk is comparable to the risk
presented by one of the enumerated offenses. Possession of a sawed-off shotgun satisfies this
test because it presents a serious potential risk of physical injury to another that is comparable to
burglary, extortion and the use of explosives. Therefore, the unlawful possession of a sawed-off
shotgun qualifies as a predicate violent felony under the Armed Career Criminal Act.
7
ARGUMENT
I.
A POLICE OFFICER CAN CONDUCT A PROTECTIVE SWEEP ABSENT AN
ARREST WHEN HE HAS CONSENT TO LAWFULLY ENTER THE
RESIDENCE AND POSSESSES REASONABLE SUSPICION THAT THE
PREMISES HARBORS A DANGEROU INDIVIDUAL.
This Court must affirm the defendant’s conviction because the Fourth Amendment does
not prohibit protective sweeps absent an arrest. A protective sweep occurs when an officer
conducts “a quick and limited search of [the] premises” that is “conducted to protect the safety of
police officers or others.” Maryland v. Buie, 494 U.S. 325, 327 (1990). However, an officer
must first lawfully be on the premises by consent, a warrant, probable cause or exigent
circumstances. Id. Additionally, an officer is only permitted to conduct a search of those areas
in which a person could be hiding. Id. Furthermore, a protective sweep must be justified by the
circumstances and must not last longer than is necessary to eliminate the suspicion of danger. Id.
at 335.
In determining whether protective sweeps are justified, courts must also balance the
individual’s privacy interest against the government’s legitimate interest. Terry v. Ohio, 392 U.S.
1, 21 (1968). This Court has held that officer safety is a legitimate governmental interest and is
afforded the utmost protection. See id. at 23. Officer safety is a paramount concern in such
high-risk situations and thus a brief intrusion into an individual’s privacy interest is far
outweighed by the immediate concern for officer safety. Michigan v. Long, 463 U.S. 1032, 1047
(1983). Concern for officer safety does not diminish just because an officer may not have an
arrest warrant to conduct a protective sweep. U.S. v. Gould, 364 F.3d 578, 581 (5th Cir. 2004)
(en banc). An officer is at risk of an ambush by an unknown third party when performing a
protective sweep of the premises whether or not he contains an arrest warrant. See id. Therefore,
there is no definitive rule that a protective sweep may only be conducted once an arrest has been
8
made. See id. Instead, this Court must look to the facts and circumstances surrounding each
individual case. Id.
Reasonable suspicion should be employed when determining if a protective sweep is
justified. Although reasonable suspicion is a less demanding standard than probable cause, it
still requires this Court to balance the individual’s interest against the government’s interest.
Terry, 392 U.S. at 21. An officer’s need to protect himself and other potential victims of
violence is a highly safeguarded governmental interest. Buie, 494 U.S. at 335. Thus, an officer
conducting a protective sweep pursuant to a reasonable belief that he is in danger outweighs the
brief intrusion upon an individual’s privacy interest. Terry, 392 U.S. at 332. Moreover, when
determining the reasonableness of a search, the officer must point to specific and articulable facts
that warrant a search. Id. at 21. Thus, an officer must have more than a mere hunch or intuition
that the area harbors a dangerous individual. Id. In addition, the officer must look to the
surrounding circumstances to determine whether those facts justify invading the individual’s
privacy interest. Id. Therefore, if an officer has reasonable suspicion that he is in danger by a
third party, the protective sweep is justified. See id. Thus, it is imperative that this Court holds
that an officer may perform a protective sweep absent an arrest when an officer can point to
specific and articulable facts that warrant a finding of reasonable suspicion.
A.
Protective sweeps absent an arrest are lawful because an officer’s need to
protect himself from an armed and dangerous third party is present
regardless of whether an arrest has taken place.
Recognizing the growing importance of an officer’s safety, this Court first considered the
constitutionality of a warrantless search in Terry v. Ohio. 392 U.S. 1 (1968). In Terry, the
officer performed a protective frisk of the individual’s outer clothing to ensure that the suspect
was not armed and dangerous. Id. at 7. Additionally, the officer did not arrest the suspect before
9
the limited search took place.
Id.
This Court in Terry dispensed of the probable cause
requirement. Id. Instead, this Court explained that in dangerous situations, an officer must be
given the right to protect himself when he possesses reasonable belief that he is in danger. Id. at
21. Here, it recognized that a brief “stop and frisk” is a minimal intrusion of one’s Fourth
Amendment rights. Id. at 24–25. Thus, this Court stated that when balancing the interests, there
is a greater concern for officer safety when the suspect could unexpectedly remove a weapon that
could fatally harm the officer. Id. at 22. Therefore, “it would be unreasonable to require that
police officers take unnecessary risks in the performance of their duties.” Id. This Court in
Michigan v. Long validated and extended the principles articulated in Terry. 463 U.S. 1032
(1983). In Long, this Court further affirmed two principles set out in Terry. See generally
Michigan v. Long, 463 U.S. 1032 (1983). First, that “roadside encounters between police and
suspects are especially hazardous” and that substantial dangers arise when a suspect may have
weapons within his surrounding area. Id. at 1033. Second, a suspect is “no less dangerous
simply because he is not arrested.” Id. at 1050. Thus, the protective search of a passenger
compartment of a vehicle was upheld when the officer had reason to believe the vehicle
contained potentially dangerous and harmful weapons. Id. at 1049. Therefore, Long reaffirmed
that a brief intrusion into an individual’s privacy interest is far outweighed by the immediate
concern for officer safety. Id.
The principles first articulated in Terry and Long prompted the establishment of the
protective sweep doctrine.
See generally Maryland v. Buie, 494 U.S. 325 (1990).
In the
landmark case of Maryland v. Buie, this Court established that a protective sweep occurs when
an officer conducts “a quick and limited search of [the] premises” and is “conducted to protect
the safety of police officers or others.” Id. at 327. However, an officer is only permitted to
10
conduct a search of those areas in which a person could be hiding. Id. Furthermore, a protective
sweep must be justified by the surrounding circumstances and cannot last longer than is
necessary to eliminate the suspicion of danger. Id. at 335–36. For example, the police in Buie
obtained an arrest warrant to enter the suspect’s home. Id. at 328. The police then entered the
suspect’s home and blocked off the basement area so that no armed and dangerous third party
could surprise the officers. Id. The suspect then emerged from the basement and was placed
under arrest. Id. Thereafter, another officer entered the basement to ensure there were no other
potentially dangerous individuals in the house. Id.
This Court in Buie reasoned that “the risk of danger in the context of an arrest in the
home is as great as, if not greater than, it is in an on-the-street or roadside investigatory
encounter.” Id. at 333. Additionally, when an officer is inside a suspect’s home, he is “at the
disadvantage of being on his adversary’s turf.” Id. An officer is more likely to be ambushed in
the confines of the suspect’s home rather than in open and familiar settings. Id. Even though
such an intrusion infringes upon one’s cherished personal security interest, such a brief intrusion
is necessary to protect an officer from harm. Id. Thus, “that interest is sufficient to outweigh the
intrusion such procedures may entail.”
Id. at 334.
This Court further emphasized that a
protective sweep should be justified by the surrounding circumstances, indicating that an arrest is
not always a precursor to performing a protective sweep. Id. at 335. Alternatively, having an
arrest prior to conducting a protective sweep is one out of many factors that must be considered.
See id. Moreover, a protective sweep is not automatically justified in every situation, but is only
justified when the officer possesses reasonable suspicion that the house “harbors an individual
posing a danger to those on the arrest scene.” Id. at 334. Therefore, this Court held that the
Fourth Amendment allows for an officer to conduct a warrantless protective sweep when the
11
officer has a reasonable belief that the area to be swept harbored an individual who posed a
danger to the officer within the home. Id. at 335.
Following this Court’s decision in Buie, the majority of circuits below have affirmatively
answered that an officer can perform a protective sweep absent an arrest. See U.S. v. Daoust,
916 F.2d 757 (1st Cir. 1990); U.S. v. Miller, 430 F.3d 93 (2nd Cir. 2005); U.S. v. Gould, 364
F.3d 578 (5th Cir. 2004) (en banc); U.S. v. Taylor, 248 F.3d 992 (6th Cir. 2001); U.S. v. Garcia,
997 F.2d 1273 (9th Cir. 1993); U.S. v. Patrick, 959 F.2d 991 (D.C. Cir. 1992). This Court
should also uphold the validity of a protective sweep absent an arrest warrant.
See id.
Specifically, the Fifth Circuit sitting en banc in U.S. v. Gould overturned the bright-line rule set
out in U.S. v. Wilson, thereby ruling that protective sweeps can occur in non-arrest situations.
364 F.3d 578, 580 (5th Cir. 2004) (en banc). In Gould, the officers received a tip that the suspect
planned to kill two judges. Id. at 580. Acting on the tip, the officers went to the suspect’s home.
Id. The officers were told that the suspect was sleeping, but were given consent by another
individual to enter the home. Id. Upon entering, the officers noticed the bedroom door was open
and that no one was sleeping in the bed. Id. Fearing that the hidden suspect was armed and
dangerous, the officers conducted a protective sweep of the bedroom. Id.
There is no definitive rule that a protective sweep may only be conducted once an arrest
has been made. See id. at 581. In fact, the language in Buie indicates that there are situations
other than “incident to [an] arrest,” where an officer may feel he is in imminent danger and
conduct a protective sweep. Id. This Court has stated that the opinion in Buie does not stand for
the proposition “that an opinion upholding the constitutionality of a particular search implicitly
holds unconstitutional any search that is not like it.” U.S. v. Knights, 534 U.S. 112, 112 (2001).
Additionally, the majority in Buie does not suggest that this Court would have rendered the
12
protective sweep unconstitutional if the officer had entered pursuant to lawful consent rather than
an arrest warrant. Gould, 364 F.3d at 581. In arriving at the holding in Buie, this Court heavily
relied on Terry and Long, both of which did not involve an arrest. Id. Thus, while an arrest is
highly relevant, “it is not always, or per se, an indispensible element of a protective sweep.” Id.
at 584.
The Ninth Circuit also joined the majority viewpoint in U.S. v. Garcia. 997 F.2d 1273
(9th Cir. 1993). The officers in Garcia were given consent to enter the suspect’s home. Id. at
1277. Once inside, the officers performed a protective sweep of the premises absent an arrest.
Id. The court in Garcia focused on whether the officers were lawfully on the premises and
whether the officers’ safety was at risk because of a possible unknown third party. Id. at 1282.
The court held that the protective sweep was constitutional because the officers were securing
the home to protect themselves from an unknown dangerous third party. Id. Alternatively, the
Ninth Circuit held the protective sweep in U.S. v. Reid unconstitutional. 226 F.3d 1020, 1028
(9th Cir. 2000). However, the protective sweep in Reid was invalid because the officers were not
given consent to be within the suspect’s home. Id. at 1025–26. Therefore, the Ninth Circuit
stands firm in its decision to uphold protective sweeps that occur absent an arrest when an officer
is lawfully on the premises. See id. Additionally, the First Circuit has also upheld protective
sweeps absent an arrest. U.S. v. Daoust, 916 F.2d 757, 759 (1st Cir. 1990). In U.S. v. Daoust,
the officers entered the suspect’s home pursuant to a search warrant for weapons contained
within the suspect’s kitchen. 916 F.2d 757, 758 (1st Cir. 1990). However, once lawfully inside
the home, the officers conducted a protective sweep of the surrounding rooms to ensure they
were safe from any armed and dangerous third party. Id. at 759. The court reasoned that the
officers possessed reasonable suspicion of danger because the home was isolated, the suspect
13
owned a gun, and the suspect had a history of violence. Id. Thus, the officers had reason to
believe they would be subject to an ambush in the isolated cabin by an unknown third party. Id.
Therefore, the court held that the safety interest outweighed the individual’s privacy interest and
that the officer’s reasonable suspicion justified a protective sweep. Id.
Protective sweeps are deemed constitutional when an officer reasonably believes he is in
danger. See Buie, 494 U.S. at 327. However, this does not allow for all officers to conduct
protective sweeps at their sole discretion, as the officer must lawfully be within the home and the
sweep must be conducted pursuant to a legitimate governmental interest. See id. at 583. It has
been held that an officer may perform a protective sweep incident to an arrest because the
suspect is dangerous and thus can pose a danger to the arresting officer. Id. However, as this
Court set out in Terry, the lack of an arrest warrant does not make an officer less susceptible to
danger than an officer who possesses an arrest warrant.
Id. at 582.
Thus, there are
circumstances other than incident to an arrest that would expose the officer to the same dangers
and would justify the officer protecting himself by performing a protective sweep. Id. For
example, the officer in Buie would have been exposed to the same level of danger, regardless of
whether the suspect had been arrested. See id. at 581. Only one circuit has affirmatively held
that a protective sweep is only justified when incident to an arrest. See U.S. v. Torres-Castro,
470 F.3d 992, 1001 (10th Cir. 2006). However, the majority in Torres-Castro acknowledged
that this is the minority view. Id. at 997. The court explained that they are bound by their own
precedent and cannot adopt the majority view until an en banc panel determines otherwise. Id.
This Court, unlike the Tenth Circuit, is not bound by Tenth Circuit precedent and thus should not
adopt this minority per se rule.
14
The cornerstone of the Fourth Amendment is the determination of whether a search or
seizure is “reasonable.” Terry, 392 U.S. at 19. Reasonableness of a search is determined by
assessing “the degree to which [the search] intrudes upon an individual’s privacy” against “the
degree to which [the search] is needed for the promotion of legitimate governmental interests.”
Knights, 534 U.S. at 118–19. This Court has mandated that this balancing test must always be
employed when determining whether a reasonable search has occurred under the Fourth
Amendment. Buie, 494 U.S. at 332. Further, upholding an individual’s privacy interest should
not come at the expense of the government’s interest in safeguarding officer safety. Terry, 392
U.S. at 23. In fact, many more officers have been killed in non-arrest situations than pursuant to
an arrest. See id. This shows that the governmental interest is even stronger in non-arrest
situations than in arrest cases. See id. For example, the officers in Terry attempted to prevent a
crime before it could be carried out. See id. at 7. In contrast, the officers in Buie arrested a
suspect who had already committed the crime. See Buie, 494 U.S. 325 at 328. Therefore, the
government’s interest in preventing crimes before they occur is just as important as the
government’s interest in arresting a wanted criminal.
When determining if a protective sweep is constitutional, a protective sweep is justified
when an officer reasonably believes that an individual poses a danger to the officers on the scene.
Id. at 325. Reasonableness, however, is an objective standard. U.S. v. Woodrum, 202 F.3d 1, 7
(1st Cir. 2000). Thus, this Court must look to the facts and circumstances surrounding the
officer’s unique situation. Terry, 392 U.S. at 21. Thereafter, this Court must determine whether
it was reasonable for the officer to have believed he was in danger. See id. Thus, determination
must be made on a factual basis of each individual case. See id. Having a bright-line rule would
deprive officers of their right to take necessary precautions to protect themselves when lawfully
15
inside a home. See Gould, 364 F.3d at 581–86. Furthermore, employing a bright-line rule would
force an officer to decide between his own safety and conducting a lawful investigation. See id.
Rather, when employing the mandated balancing test, protective sweeps in non-arrest situations
can weigh heavily in favor of a justified protective sweep. See id. Thus, establishing a brightline rule would prove to be entirely unreasonable and would be contrary to the mandated Fourth
Amendment “reasonableness” test. See id. Therefore, this Court should rule that an officer may
conduct a protective sweep when he is lawfully on the premises and reasonably believes that he
must conduct a search of areas where a dangerous individual could be hiding.
B.
Reasonable Suspicion should be the standard employed for a protective
sweep when the officer is lawfully on the premises, feels he is in danger and
can point to specific and articulable facts that warrant an intrusion.
Protective sweeps must be governed by reasonable suspicion in order to uphold the
government’s legitimate interest in officer safety. Reasonable suspicion requires an officer to
have “specific and articulable facts, which taken together with rational inferences from those
facts reasonably warrants an officer to believe that the area to be swept harbors a dangerous
individual.” Terry, 392 U.S. at 21. Additionally, reasonable suspicion is an objective standard,
and “centers upon the objective significance of the particular facts under all the circumstances.”
U.S. v. Woodrum, 202 F.3d 1, 7 (1st Cir. 2000). While this is a less demanding standard than
probable cause, the officer’s suspicion must be more than a mere “hunch, intuition, or desultory
inkling of possible criminal activity.” U.S. v. Romain, 393 F.3d 63, 71 (1st Cir. 2004). Further,
the balancing test must always be employed when determining whether reasonable suspicion is
the appropriate standard for a protective sweep. Buie, 393 U.S. at 332. This Court must balance
the nature of the invasion of the individual’s Fourth Amendment rights against the government’s
legitimate interest.
Id.
This Court set out in Terry that officer safety is a legitimate
16
governmental interest. Terry, 392 U.S. at 23. Additionally, it held that “the need for law
enforcement officer’s to protect themselves and other prospective victims of violence” outweighs
the brief intrusion upon an individual’s privacy interest. Id. at 24.
This Court has ruled that reasonable suspicion is the appropriate standard when an officer
is conducting a brief and limited search for weapons. See id. at 21. This was exemplified in
Terry, when a police officer observed a suspect “casing” a store for a potential robbery. Id. at 6.
The officer briefly frisked the individual and found a weapon on his person. Id. at 7. This Court
explained that probable cause is not required to frisk an individual when the intrusion is one that
is limited in scope and nature. Id. at 21. Therefore, this Court held that reasonable suspicion
was the appropriate standard. Id. at 30. Further expanding the doctrine of reasonable suspicion,
this Court upheld an officer’s reasonable suspicion for a protective search of an automobile when
the officer had specific and articulable facts that the automobile contained a weapon. Long, 463
U.S. at 1035. Thus, this Court affirmed its longstanding proposition that the interests weigh
heavily in favor of officer safety when the officer has a reasonable belief based on specific and
articulable facts that the individual possesses a weapon. Id. Justifying its decision, this Court
explained that the individual’s infringed privacy interest is minimal compared to an officer’s
need to protect himself “and other prospective victims of violence in situations where [he]
lack[s] probable cause to arrest.” Id. at 1047. Additionally, an officer has a stronger need to
protect himself when conducting a search of places where a weapon could be stored. Id. at 1048.
Thus, this Court further expanded the doctrine of reasonable suspicion to instances where an
officer’s safety was at risk and the nature of the privacy intrusion was both brief and limited in
scope. Id. at 1038. Therefore, this Court in Terry and Long held that reasonable suspicion is the
appropriate standard when an officer is conducting a brief and limited search of an individual.
17
The standard of suspicion required to conduct an in-home protective sweep was first
thoroughly analyzed by this Court in Buie. Buie, 494 U.S. at 327. First, the balancing test was
employed to determine if reasonable suspicion was the appropriate standard. Id. at 332. Here,
this Court analogized an in-home protective sweep to a Terry “stop and frisk.” Id. at 331. It
determined that protective sweeps exhibit the same characteristics of a Terry “stop and frisk.” Id.
Just like a Terry stop, a protective sweep is also limited in scope and nature because an officer is
only permitted to inspect the areas in which an individual could be hiding.
Id. at 335.
Additionally, this Court ruled in favor of the protective sweep doctrine so that an officer can
protect himself by eliminating the possibility of a third party ambush. Id. Further, the protective
sweep cannot last “longer than is necessary to dispel the reasonable suspicion of danger” and for
the officer to leave the premises. Id. at 335–36. Officer safety is afforded the utmost protection
when conducting a protective sweep because “[t]he risk of danger in the . . . home is as great as,
if not greater than, it is in an on-the-street or roadside investigatory encounter.” Id. at 333. Thus,
an in-home protective sweep is unlike an officer conducting a search on a public street or
highway. Id. Here, the officer is placed at “the disadvantage of being on the adversary’s turf.”
Id.
Thus, the possibility of an ambush inside a suspect’s unknown dwelling is far more
dangerous than in more open and familiar settings.
Id.
Therefore, this Court held that
reasonable suspicion is the appropriate standard when an officer is conducting a protective sweep
because it is a brief, limited search of the suspect’s home and is conducted to ensure the safety of
the officers and other potential victims. Id. at 327.
It is well settled that reasonable suspicion is the appropriate standard when conducting a
protective sweep. See Gould, 364 F.3d at 587. For example, the court in Daoust held that there
was “an objective basis for a reasonable suspicion of risk to the safety of the officers.” Daoust,
18
916 F.2d at 759. The officers in Daoust saw a shotgun through the window of the suspect’s
home. Id. at 758. The suspect lived in an isolated log cabin and had no means of electricity or
telephone. Id. The officers retrieved a search warrant and came back and entered the suspect’s
home.
Id. at 759.
Upon entering the home, they conducted a protective sweep of the
surrounding rooms. Id. The court reasoned that the officers possessed reasonable suspicion of
danger because the suspect lived in an isolated cabin, owned a gun, and had a criminal history of
violence. Id. Thus, it was reasonable for the officers to have feared that the suspect or someone
else could be within the home and use a weapon against them. Id. Additionally, the court in
Gould held that reasonable suspicion justified the officers’ protective sweep of the suspect’s
home. Gould, 364 F.3d at 593. The officers in Gould received a tip that the suspect was prone
to violence and planned to kill two judges. Id. at 591. The officers went to the suspect’s home,
where another individual answered the door and informed the officers that the suspect was in bed
sleeping. Id. at 592. However, the open bedroom door revealed to the officers that there was no
one inside. Id. Fearing that the armed and dangerous suspect might “launch a surprise attack
from a hidden location,” the officers conducted a protective sweep of the premises. Id. Further,
the officers had reasonable suspicion because the suspect had “ready access to lethal weapons,”
the officers were on his turf, and the suspect was not where the individual claimed him to be. Id.
Again, the court expressly rejected that probable cause is needed to conduct a protective sweep.
Id. Therefore, the officers possessed reasonable suspicion to conduct a protective sweep to
protect themselves from potentially armed and dangerous third parties. Id.
Contrastingly, the court in U.S. v. Reid rendered a protective sweep unconstitutional.
United States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2000). The officers in Reid believed an
individual was committing narcotics violations. Id. at 1022. The officers went to the suspect’s
19
partner’s home, where they had reason to believe the suspect was residing. Id. Thereafter, they
were greeted by an unknown third individual. Id. at 1023. Upon greeting the officers, the
individual fled the apartment. Id. Subsequently, the officers restrained him outside of the home
and placed him in handcuffs. Id. The officers then asked the individual if anyone else was in the
home, to which he replied, “No.” Id. Smelling burning marijuana emanating from the home, the
officers went back inside and conducted a protective sweep of the home. Id. The court reasoned
that the smell of burning marijuana alone does not satisfy the officers’ burden of pointing to
specific and articulable facts. Id. at 1028. Further, it is possible that one person can smoke
marijuana alone. Id. Therefore, the court implicitly held that although reasonable suspicion is
the appropriate standard, the officers did not possess specific and articulable facts to justify
reasonable suspicion. See id. Moreover, the court in U.S. v. Davis ruled a protective sweep
unconstitutional because the officers could not have reasonably believed they were in danger.
290 F.3d 1239, 1243 (10th Cir. 2002). The officers in Davis went to the suspect’s home and
asked to come inside. Id. at 1241. The suspect declined to let the officers inside, instead
allowing his wife to speak to the officers outside the home, while he retreated back inside. Id.
Subsequently, the officers pushed the refusing wife out of the way and forcefully entered the
home. Id. The officers claimed that they “entered for the limited purpose of protecting officer
safety by gaining control of [the defendant],” whom they believed was going inside to retrieve a
weapon. Id. However, there was no evidence that the officers believed the defendant was a
violent man nor was there any evidence that the defendant had acted in an aggressive manner. Id.
at 1243. Thus, the court held that the officers did not have reasonable suspicion to search the
premises. Id. at 1244. Thus, the facts in Reid and Davis are highly distinguishable and should
not apply to the present situation.
20
In the present case, the defendant lived in a high crime neighborhood. R. at 4. Within a
one-month span, “four houses on [the defendant’s] street were burglarized, as well as several
cars.” Id. Specifically, an armed robbery had occurred two doors away from the defendant’s
home. R. at 4. On another occasion, “the homeowner across the street from [the defendant’s]
home was shot and killed during a home invasion.” R. at 5. Unable to lawfully obtain a weapon
because of his prior felonies, the defendant purchased a handgun from a friend in an effort to
protect himself. Id. On June 1, 2011, Officer Sanford approached the defendant’s door and
explained that he was investigating another burglary in the neighborhood. Id. Additionally, he
explained that the description of the burglar “was identical to the description of the burglar who
had killed [the defendant’s] neighbor” in a previous burglary. Id.
Similar to Gould, Officer Sanford was given consent to enter the residence. R. at 6.
Additionally, just as the officers in Gould and Daoust had reason to believe the suspect was
armed and dangerous, Officer Sanford had reasonable belief that the runaway burglar was armed
and dangerous. Id. Furthermore, just as the officers in Gould received a tip, Officer Sanford
received reports that the burglar fled in the direction of the suspect’s apartment and was hiding
out in one of the neighboring apartments. R. at 5. Although the officers in Gould and Daoust
conducted a search of the suspect’s home, here the officer had reason to believe that the suspect
could be hiding within the defendant’s home. R. at 6 Additionally, Officer Sanford recognized
the defendant from his previous arrest for possessing an unlawful sawed-off shotgun. Id. Just as
the court reasoned in Gould and Daoust, the officer here had reason to believe the defendant’s
home contained a readily available weapon and thus needed to protect himself against the lethal
weapon. Id. Further, Officer Sanford was familiar with the basic layout of these homes and
knew that where he was standing in the living room contained several doors that led to other
21
rooms. Id. He also “knew that the house had a backdoor that led from the backyard into the
kitchen.” Id. Thus, the suspect could have unknowingly been hiding out in the defendant’s
home. See id. Just as the officers in Gould gathered reasonable suspicion before performing the
protective sweep, Officer Sanford also made reference to these specific and articulable facts
before conducting the protective sweep of the kitchen, where he believed the suspect could be
hiding. Id. Although the defendant refused to consent to a search of his premises, the defendant
“did not rescind his consent for Officer Sanford to be present in his home.” Id. Thus, Officer
Sanford remained lawfully on the premises. During his protective sweep, Officer Sanford
opened the closed kitchen door to prevent the armed and dangerous suspect from ambushing the
officer.
Id.
Just as the court in Gould and Daoust held that reasonable suspicion is the
appropriate standard and that the facts supported a finding of reasonable suspicion, this Court
should also hold that Officer Sanford had reasonable suspicion to conduct the protective sweep
and protect himself from the potentially armed and dangerous third party. Gould, 364 F.3d at
584; Daoust, 916 F.2d at 759. Therefore, this Court must rule that reasonable suspicion should
govern protective sweeps so that an officer may take reasonable means to protect himself from
an unknown armed and dangerous third party.
II.
THE UNLAWFUL POSSESSION OF A SAWED-OFF SHOTGUN QUALIFIES
AS A PREDICATE “VIOLENT FELONY” UNDER THE ARMED CAREER
CRIMINAL ACT BECAUSE IT CREATES A SERIOUS POTENTIAL RISK OF
PHYSICAL INJURY THAT IS COMPARABLE TO THE LEVELS OF RISK
THAT BURGLARY, ARSON, EXTORTION AND THE USE OF EXPLOSIVES
PRESENT.
The Thirteenth Circuit erred in holding that possession of an unregistered “sawed-off
shotgun” is not a predicate “violent felony” under the Armed Career Criminal Act, 18 U.S.C.
§924(e) (“ACCA”). The ACCA imposes a minimum fifteen-year sentence for a felon who is
convicted of unlawfully possessing a firearm and has three or more previous convictions for
22
violent felonies. 18 U.S.C. §924(e)(1). A violent felony is defined as a crime punishable by
imprisonment for more than one year that:
(i)
(ii)
has as an element the use, attempted use, or threatened use of physical force
against the person of another; or
is burglary, arson, or extortion, involves the use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another.”
Id. § 924(e)(2)(B)
This Court first analyzed the second phrase of clause (ii) (“the residual clause”) in James
v. U.S., 550 U.S. 192 (2007), to determine when and under what circumstances an offense would
“otherwise involve conduct that presents a serious potential risk of physical injury to another.”
Beginning with James, and continuing through Begay v. U.S., 553 U.S. 137 (2008), Chambers v.
U.S., 555 U.S. 122 (2009) and finally Sykes v. U.S., 131 S.Ct. 2267 (2011), what emerged from
this Court is a framework that initially focuses on the level of risk of the offense in question.
Sykes, 131 S.Ct. at 2275. If the offense in question requires a purposeful or knowing state of
mind and presents a level of risk that is comparable to that of the most closely related
enumerated offense in § 924(e)(2)(B)(ii), the offense qualifies as “violent felony.” Id. The
Court will only inquire if an offense is roughly similar in kind to the enumerated offenses if the
offense in question does not have a strict mens rea requirement – that is, does not require that the
violator act knowingly or intentionally. Id. The Court determines that an offense is roughly
similar in kind of it involves purposeful, violent and aggressive conduct that is typical of the
enumerated offenses. Begay, 553 U.S. at 145. While not dispositive, statistical evidence is also
used to provide a conclusive answer concerning the risks that a crime presents Sykes, 131 S.Ct. at
2275; Chambers, 555 U.S. at 129.
Further, in evaluating whether an offense is a violent felony, the offense is examined
categorically. Taylor v. U.S., 495 U.S. 575, 602 (1990). That is, courts look only to the statutory
23
definition of the crime and how it is generally committed to determine if it should be included
within the residual clause, and not to the circumstances under which an offender may have
committed the crime on a particular occasion. Begay, 553 U.S. at 140.
The National Firearms Act proscribes the unlawful possession of a sawed-off shotgun, in
§ 5861(d) stating that “it shall be unlawful for any person ... to receive or possess a firearm
which is not registered to him in the National Firearms Registration and Transfer Record, ”
where § 5845(a) identifies a sawed-off shotgun as “a weapon made from a shotgun is such
weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than
18 inches in length.” 18 U.S.C. § 5845, § 5861 (2006).1
A.
Unlawful possession of a sawed-off shotgun inherently presents the kind of
serious potential risk of physical injury that the Armed Career Criminal Act
contemplates.
The Armed Career Criminal Act was enacted in 1984 in a congressional effort to curb the
recidivism of armed, habitual criminals. H.R. Rep. No. 98-1073, at 1 (1984). Congressional
findings noted that a large percentage of American households were affected by crimes involving
violence, and that a large percentage of these crimes were committed by a very small percentage
of repeat offenders. Id. Throughout the evolution of ACCA’s legislative history, Congress’s
focus has remained with averting the special societal danger created when a particular type of
offender – the violent, career offender – possesses a gun. Begay, 553 U.S. at 146; Taylor, 495
U.S. at 587. For this reason, the ACCA’s text has always explicitly examined a criminal’s past
crimes to determine if those crimes are of a violent nature so as to indicate that “there is an
increased likelihood that the offender is the kind of person who might deliberately point the gun
1
See United States v. Michel, 446 F.3d 1122 (10th Cir. 2006)(holding that although government
was required to prove that defendant knew he was in possession of a sawed-off shotgun, it was
not required to prove that the defendant knew the weapon was unregistered).
24
and pull the trigger.” Begay, 553 U.S. at 146. If such an increased likelihood is shown, the
offender is subjected to a mandatory minimum fifteen-year mandatory prison term when
convicted for unlawfully possessing a firearm. Id.
The unlawful possession of a sawed-off shotgun is exactly the kind of violent crime that
the ACCA contemplates because such a weapon is not useful except for violent and criminal
purposes. U.S. v. Lillard, 685 F.3d 773, 776 (8th Cir. 2012). People do not shorten their
shotguns to hunt or shoot skeet. U.S. v. Upton, 512 F.3d 394, 404 (7th Cir. 2008). Instead, the
barrel is deliberately manipulated and decreased in length for two reasons: it makes the gun
easier to conceal and it increases the spread of the shot, which in turn, inflicts more damage from
close range. Id. It is for this exact reason that Congress requires the registration of all sawed-off
shotguns.
Id. Its possession is sufficient to enable violence itself, if not the threat of violence,
and also indicates that the possessor is prepared to enter into a kind of conflict that seeks
maximum damage to his or her combatant. Lillard, 685 F.3d at 776.
The United States Sentencing Commission (“USSC”) further supports that a sawed-off
shotgun should be considered a violent felony under the ACCA. Just three years after the ACCA
was enacted, the USSC’s Sentencing Guidelines went into effect to set forth uniform punishment
schemes for offenders convicted of federal crimes.
Under the Guidelines, certain repeat
offenders are subject to a career offender sentence enhancement if he or she has, inter alia,
committed certain “crimes of violence.” U.S. SENTENCING GUIDELINES MANUAL § 4B1.2
(2004). Notably, the definition of the predicate “crime of violence” is nearly identical to the
ACCA’s definition of violent felony.2 However, where the ACCA’s text lacks explicit guidance
2
“The term ‘crime of violence’ means any offense under federal or state law, punishable by
imprisonment for a term exceeding ne year, that –
25
as to what offenses other than those enumerated qualify as a “violent felony,” the Guidelines’
application notes make it clear that unlawful possession of a firearm described in 26 U.S.C. §
5845(a), is such another crime of violence. U.S. SENTENCING GUIDELINES MANUAL § 4B1.2
cmt. n.1 (2004). Further, the 2004 amendment to § 4B1.2 explains that possession of such a
firearm described in 26 U.S.C. § 5845(a) qualifies a crime of violence because “Congress has
determined that those firearms ... are inherently dangerous and when possessed unlawfully, serve
only violent purposes.” U.S. SENTENCING GUIDELINES MANUAL app. C. sup., amend. 674 at
134 (2004). In James, this Court recognized the persuasive authority of the USSC Sentencing
Guidelines’ identification of which crimes pose a risk of violence similar to those enumerated in
the statute, noting that such judgments are based on the Commission’s review of empirical
sentencing data. James, 550 U.S. at 206. This Court explained that “[t]he Commission, which
collects detailed sentencing data on virtually every federal criminal case, is better able than any
individual court to make an informed judgment about the relation between a particular offense
and the likelihood of accompanying violence.” James, 550 U.S. at 206, quoting U.S. v. Doe, 960
F.2d 221, 225 (1st Cir. 1992).
Just as this Court in James held that the USSC Sentencing
Guidelines provide evidence that attempted burglary possesses the requisite risk to qualify as a
violent felony, so too should this Court now hold that the Guidelines offer the same persuasive
evidence to qualify the unlawful possession of a sawed-off shotgun as a violent felony.
(1) has an element the use, attempted use, or threatened use of physical force against the
person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical injury to
another.”
U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a) (2006)
26
B.
Unlawful possession of a sawed-off shotgun presents a serious potential risk
of physical injury that is comparable to level of risk presented by burglary,
extortion and the use of explosives
Possession of a sawed-off shotgun presents a serious potential risk of physical injury that
is comparable to the level of risk presented by burglary.
In analyzing burglary from a
categorical standpoint, regardless of a jurisdiction’s exact definition or label, burglary always
possesses the basic elements of “unlawful or unprivileged entry into, or remaining in, a building
or structure, with intent to commit a crime.” Taylor, 495 U.S. at 599. And while the level of risk
of serious potential that burglary presents is sufficient enough to have qualified it as crime under
the ACCA, the elements of the crime itself do not generate risk. James, 550 U.S. at 203.
Burglary does not necessarily involve the use or threat of force against a person, nor does the
completion of the break-in or crime committed therein by themselves threaten injury. Id. at 204.
In fact, categorically speaking, the aim of burglary is not to have a violent confrontation at all;
the perpetrator seeks to complete a crime within the structure or dwelling and escape before
being caught. Id. Burglary’s risk of injury arises from the possibility that an innocent party may
appear while the break in is occurring. Id. Indeed, it is dangerous because it can end in a violent
confrontation. Sykes, 131 S.Ct at 2273. Extortion presents a risk of serious potential injury in a
similar fashion. Categorically speaking, extortion involves the practice of obtaining something
or compelling some action by threatening to do bodily harm in the future.
Black’s Law
Dictionary, 126 (9th ed. 2009). Although the elements of this crime involve force or violence,
what the perpetrator seeks, ultimately, is to obtain the object or action of his desire, and to use
force as a last resort. Therefore, the real risk of physical injury arises from possibility of violent
confrontation inherent in the crime, just as with burglary.
27
Possession of a sawed-off shotgun is comparable in risk to burglary because it too creates
the potential risk of a violent confrontation. Like burglary, categorically speaking, the potential
risk of physical injury from possession of a sawed-off shotgun does not stem from the elements
of the crime, but from the possibility of violent confrontation inherent in the crime itself.
Sawed-off shotguns are inherently dangerous because they are not useful except for violent and
criminal purposes. Possession of this kind of dangerous weapon indicates that the possessor is
“prepared to use violence” and “ready to enter into conflict”, which in turn creates a danger for
those nearby. Possession of a short shotgun reveals that the perpetrator is the kind of person who,
like the burglar, and like the extortionist, is dangerously comfortable in a violent situation, is
comfortable inflicting violence and causing harm to another if the need should arise, regardless if
that violent circumstance is actually realized.
Furthermore, the Thirteenth Circuit’s reliance on the flawed reasoning in U.S. v McGill,
618 F.3d 1273 (11th Cir. 2010), should not deter this Court from recognizing that possession of a
sawed-off shotgun additionally poses a comparable level of risk to the level that use of
explosives presents. As an initial matter, both the opinion below and the opinion in McGill
erroneously apply the Begay test. As this Court made clear in Sykes, if the offense in question
requires knowledge or intent, whether it is similar “in kind” to an enumerated offense does not
factor into the violent felony analysis. Sykes, 131 S.Ct. at 2275. Because possession of a sawedoff shotgun requires knowledge, the only analysis necessary is into its level of risk as compared
to an enumerated crime’s level of risk, not whether the crime itself is inherently similar to any
one of enumerated offenses. Id. And yet the Thirteenth and Eleventh Circuit nonetheless rely on
such a misplaced and misleading “in kind” analysis to hold that the unlawful possession of a
sawed-off shotgun is not a violent felony. See McGill, 618 F.3d at 1279 (“[P]ossession of an
28
outlawed short-barreled shotgun is not ‘similar in kind’ to the crimes listed in the ACCA’s
residual clause. Possession of a short-barreled shotgun fails [Begay] for this reason.”).
Notwithstanding that the Eleventh and Thirteenth circuits’ reasoning must be set aside
because of its misapplication of this Court’s jurisprudence, the Eleventh Circuit’s suggestion that
the “use of explosives” referenced in the ACCA relates specifically to the type of explosives
regulated by the National Firearms Act in § 5845(a) and (d) is presumptuous and unfounded.
There is no indication in the ACCA’s legislative history that the “use of explosives” the ACCA
contemplates is same as the very narrow set of explosives regulated by the National Firearms Act.
Section 5845(d) of the National Firearms Act, for example, provides a detailed definition of what
type of explosives are regulated, and specifically excludes “any device which is neither designed
nor redesigned for use as a weapon.” It could very well be that the ACCA sought to include
these very explosives, and to conclude otherwise has no basis. Indeed, explosives are regulated
by other congressional acts in other contexts. See generally 18 U.S.C. § 842.
What the Thirteenth and Eleventh Circuits do not do is evaluate the level of risk
presented by possession of a sawed-off shotgun, which is what the Court’s jurisprudence requires.
Unlawful possession of sawed-off shotguns presents a comparable level of risk as the use of
explosives because they both have the potential to inflict indiscriminate carnage. U.S. v. Vincent,
575 F.3d 820, 826 (8th Cir. 2009). As stated above, the shortened barrel of the shotgun increases
the spread of the shot so that when firing from closer range, the sawed-off shotgun will cause
more damage than would the traditional shotgun. Upton, 512 F.3d at 404.
Therefore, the unlawful possession of a sawed-off shotgun does indeed qualify as a
predicate violent felony under the ACCA. The serious potential risk of physical harm to an
individual other than the possessor is inherent to the weapon itself, and therefore its mere
29
possession qualifies it as a violent felony. Because the offense requires knowledge, and because
the risk that the offense presents is similar to the risk presented by burglary, extortion and the use
of explosives, the test that this Court has set forth is satisfied.
30
CONCLUSION
The decision of the Thirteenth Circuit should therefore be affirmed in part and reversed in
part for the following reasons. First, protective sweeps are constitutional when an officer is
lawfully on the premises, has the reasonable belief that the area harbors a dangerous individual,
and conducts a quick and limited search of the premises in order to protect himself. Additionally,
the standard employed for protective sweeps must be reasonable suspicion because it allows
officers to protect themselves when they have the reasonable belief they are in danger while also
balancing the interests of the individual. Moreover, the unlawful possession of a sawed-off
shotgun, in contravention of 26 U.S.C § 5845 and §5861, is a predicate violent felony under the
Armed Career Criminal Act. The unlawful possession of such a dangerous weapon inherently
presents the kind of serious potential risk of physical injury to another the ACCA contemplates,
and therefore its classification as a violent felony is consistent with legislative intent. Further,
possession of a sawed-off shotgun presents a level of risk that is comparable to the level of risk
that the enumerated offenses of burglary, extortion and the use of explosives present. Because
such a crime categorically requires a knowing possession, this Court’s test to qualify an offense
as a “violent felony” under the ACCA’s residual clause is satisfied.
31
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail to:
Associate Dean Alan Woodlief, Elon University School of Law, 201 North Greene Street,
Greensboro, North Carolina, 27401, on this 6th day of March, 2013 by undersigned counsel.
Team #5
Counsel for Respondent
32
CERTIFICATE OF COMPLIANCE
This brief is in compliance with the Official Supreme Court Rules, except as provided in
the Elon Official Rules.
/s/ Team #5
_________________
33
APPENDIX A
U.S. CONST amend. IV provides:
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.
18 U.S.C. § 924(e) in pertinent part provides:
(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
(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, or otherwise
involves conduct that presents a serious potential risk of physical injury to another
26 U.S.C.A. § 5845 in pertinent part provides:
(a) Firearm.--The term “firearm” means (1) a shotgun having a barrel or barrels of less
than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an
overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a
rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if
such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less
than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun;
(7) any silencer (as defined in section 921 of Title 18, United States Code); and (8) a destructive
device. The term “firearm” shall not include an antique 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.
(f) Destructive device.--The term “destructive device” means (1) any explosive,
incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellant charge of more
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than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter
ounce, (E) mine, or (F) similar device; (2) any type of weapon by whatever name known which
will, or which may be readily converted to, expel a projectile by the action of an explosive or
other propellant, the barrel or barrels of which have a bore of more than one-half inch in
diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as
particularly suitable for sporting purposes; and (3) any combination of parts either designed or
intended for use in converting any device into a destructive device as defined in subparagraphs
(1) and (2) and from which a destructive device may be readily assembled. The term “destructive
device” shall not include any device which is neither designed nor redesigned for use as a
weapon; any device, although originally designed for use as a weapon, which is redesigned for
use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold,
loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684(2),
4685, or 4686 of Title 10 of the United States Code; or any other device which the Secretary
finds is not likely to be used as a weapon, or is an antique or is a rifle which the owner intends to
use solely for sporting purposes.
26 U.S.C. § 5861 in pertinent part provides:
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;
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