R24
Docket No. 14-1107
In the Supreme Court of the United States
October Term 2014
Malik Price; Cedrick R. Jones; and
Ben Carter,
Petitioners,
v.
UNITED STATES of America,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRTEENTH CIRCUIT
BRIEF FOR RESPONDENT
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................................. ii
TABLE OF AUTHORITIES ...................................................................................................... iv
STATEMENT OF ISSUES PRESENTED FOR REVIEW ................................................... viii
STATEMENT OF FACTS ............................................................................................................1
1.
ATF Initiates Operation Gideon to Find and Arrest Would-Be Robbers. ...................2
2.
ATF Finds Crew Willing to Rob Stash House; Crew Begins Planning. .......................3
3.
ATF Conducts the Sting Operation. ................................................................................4
4.
Procedural History.............................................................................................................6
SUMMARY OF THE ARGUMENT ...........................................................................................6
STANDARD OF REVIEW ...........................................................................................................7
ARGUMENT ..................................................................................................................................8
I.
II.
The Backpack’s Contents Are Admissible: There Was No Seizure; Agent Holder
Had Probable Cause to Use Deadly Force; and Defendant Carter’s Abandonment of
the Evidence is Too Attenuated to Agent Holder’s Gunshots to Suppress it. ..............8
A.
ATF Never Seized Defendant Carter: His Movement Was Not Terminated. .........9
B.
Agent Holder’s Use of Deadly Force was Reasonable in Light of the Split-Second
Policing Decisions He was Forced to Make. .........................................................12
C.
The Discovery of the Backpack’s Contents is Too Attenuated From the Gunshot
To Apply the Exclusionary Rule............................................................................14
The Outrageous Government Conduct Doctrine Has Been Discarded, and ATF’s
Actions Were Appropriately Tailored to Stem the Tide of Stash House Robberies in
Green Ridge. .....................................................................................................................15
A.
The Outrageous Government Conduct Doctrine Neither Was Nor Is Valid. ........16
B.
ATF’s Conduct Was Appropriately Tailored to the Crime Investigated. ..............21
1.
ATF Had Knowledge of the Crewmembers’ Criminal Characteristics. ....22
2.
ATF Did Not Create, Encourage, or Participate in the Robbery. .............23
ii 3.
ATF’s Actions Were Necessary Due to the Unreported and Dangerous
Nature of Stash House Robberies. .............................................................25
CONCLUSION ............................................................................................................................25
iii TABLE OF AUTHORITIES
CASES:
Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999) .............................................................................11
Alabama v. White, 496 U.S. 325 (1990) ........................................................................................13
Brendlin v. California, 551 U.S. 249 (2007) .................................................................................10
Brinegar v. United States, 338 U.S. 160 (1949) ................................................................12–13, 14
Brooks v. Gaenzle, 614 F.3d 1213 (10th Cir. 2010) ......................................................................11
Brower v. County of Inyo, 489 U.S. 593 (1989) ........................................................................9, 10
California v. Hodari D., 499 U.S. 621 (1991) ...........................................................................9, 10
Carroll v. United States, 267 U.S. 132 (1925)...............................................................................13
Ciminillo v. Streicher, 434 F.3d 461 (6th Cir. 2006) .....................................................................11
County of Sacramento v. Lewis, 523 U.S. 833 (1998) .....................................................................9
Elkins v. United States, 364 U.S. 206 (1960)...................................................................................8
Florida v. Bostick, 501 U.S. 429 (1991) ..........................................................................................9
Florida v. J.L., 529 U.S. 266 (2000) ..............................................................................................13
Florida v. Jimeno, 500 U.S. 248 (1991) ........................................................................................12
Florida v. Royer, 460 U.S. 491 (1983) ..........................................................................................12
Graham v. Connor, 490 U.S. 386 (1989) ......................................................................................12
Greene v. United States, 454 F.2d 783 (9th Cir. 1971) ...........................................................17, 24
Hampton v. United States, 425 U.S. 484 (1976)......................................................................17, 19
Herring v. United States, 555 U.S. 135 (2009)........................................................................14, 15
Hilaire v. City of Laconia, 71 F.3d 10 (1st Cir. 1995)...................................................................11
Hudson v. Michigan, 547 U.S. 586 (2006) ....................................................................................14
iv Illinois v. Gates, 462 U.S. 213 (1983) .....................................................................................13, 14
Jacobson v. United States, 503 U.S. 540 (1992) .....................................................................17, 19
Katz v. United States, 389 U.S. 347 (1967) ...................................................................................12
Lytle v. Bexar County Tex., 560 F.3d 404 (5th Cir. 2009) .............................................................11
Mapp v. Ohio, 367 U.S. 643 (1961)...............................................................................................19
Mathews v. United States, 485 U.S. 58 (1988) ............................................................16, 17, 19, 20
Michigan v. Chesternut¸ 486 U.S. 567 (1988) ...............................................................................12
Moore v. Indehar, 514 F.3d 756, 758 (8th Cir. 2008) ...................................................................11
Nardone v. United States, 308 U.S. 338 (1939).............................................................................14
Ornelas v. United States, 517 U.S. 690 (1996)................................................................................8
Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357 (1998) ..............................................................14
Schultz v. Braga, 455 F.3d 470 (4th Cir. 2006) .............................................................................11
Scott v. Harris, 550 U.S. 372 (2007) .......................................................................................11, 12
Sherman v. United States, 356 U.S. 369 (1958) ......................................................................17, 18
Sibron v. New York, 392 U.S. 40 (1968)..................................................................................12, 13
Sorrells v. United States, 287 U.S. 435 (1932) ..................................................................17, 18, 21
Tennessee v. Garner, 471 U.S. 1 (1985) ..............................................................................8, 12, 14
Terry v. Ohio, 392 U.S. 1 (1968) .....................................................................................................8
Thomas v. Durastanti, 607 F.3d 655 (10th Cir. 2010)...................................................................10
Thompson v. Whitman, 85 U.S. (18 Wall.) 457 (1874) .................................................................10
United States v. Amawi, 695 F.3d 457 (6th Cir. 2012), cert. denied 133 S. Ct. 1474 (2013)........17
United States v. Biswell, 700 F.2d 1310 (10th Cir. 1983) .............................................................21
United States v. Black, 733 F.3d 294 (9th Cir. 2013) ............................................................ passim
v United States v. Bogart, 783 F.2d 1428 (9th Cir. 1986) ................................................................22
United States v. Bradley, 196 F.3d 762 (7th Cir. 1999).................................................................11
United States v. Citro, 842 F.2d 1149 (9th Cir. 1988) ...................................................................24
United States v. Dupree, 617 F.3d 724 (3d. Cir. 2010) .............................................................9, 10
United States v. Emmert, 829 F.2d 805 (9th Cir. 1987)...........................................................22, 25
United States v. Erwin, 520 F. App’x 179 (4th Cir. 2013) ............................................................17
United States v. Gurolla, 333 F.3d 944 (9th Cir. 2003).............................................................8, 22
United States v. Haile, 685 F.3d 1211 (11th Cir. 2012) ................................................................17
United States v. Hasan, 718 F.3d 338 (4th Cir. 2013) ...................................................................17
United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011) ...........................................................17
United States v. McClelland, 72 F.3d 717 (9th Cir. 1995) ............................................................21
United States v. Massie, 65 F.3d 843 (10th Cir. 1995) ....................................................................8
United States v. Mendenhall, 446 U.S. 544 (1980) .........................................................................9
United States v. Mosley, 965 F.2d 906 (10th Cir. 1992) ....................................................23, 24, 25
United States v. Owen, 580 F.2d 365 (9th Cir. 1978) ....................................................................21
United States v. Russell, 411 U.S. 423 (1973) ....................................................................... passim
United States v. Santana, 6 F.3d 1 (1st Cir. 1993)...................................................................17, 20
United States v. Smith, 924 F.2d 889 (9th Cir. 1991) ....................................................................21
United States v. Sneed, 34 F.3d 1570 (10th Cir. 1994) ..................................................................24
United States v. So, 755 F.2d 1350 (9th Cir. 1985) .......................................................................21
United States v. Stenberg, 803 F.2d 422 (9th Cir. 1986) ...............................................................23
United States v. Stinson, 647 F.3d 1196 (9th Cir. 2011) ...............................................................16
United States v. Twigg, 588 F.2d 373 (3d Cir. 1978) ....................................................................17
vi United States v. Westmoreland, 712 F.3d 1066 (7th Cir. 2013) ..............................................16, 18
United States v. Williams, 547 F.3d 1187 (9th Cir. 2008) .......................................................21, 22
Vaughan v. Cox, 343 F.3d 1323 (11th Cir. 2003) ..........................................................................11
Wong Sun v. United States, 371 U.S. 471 (1963) ......................................................................8, 14
OTHER AUTHORITIES:
U.S. Const. amend. IV .....................................................................................................................8
Dru Stevenson, Entrapment and the Problem of Deterring Police Misconduct, 37 Conn. L. Rev.
67 (2004) ......................................................................................................................19–20
Stephen A. Gardbaum, “The Government Made Me Do It”: A Proposed Approach to
Entrapment Under Jacobson v. United States, 79 Cornell L. Rev. 995 (1994).................18
vii STATEMENT OF ISSUES PRESENTED FOR REVIEW
I.
Under the Fourth Amendment: (1) was Defendant Carter seized when he evaded police and fled the scene after he was hit by gunfire; (2) did Agent Holder have probable cause to use deadly force when he thought Defendant Carter was reaching for a gun in a dense residential neighborhood after he had just confronted an apparent gun held by Defendant Carter’s accomplice; and (3) is evidence found in an off-­‐site, abandoned vehicle hours after the gunfire too attenuated to qualify for exclusion?
II.
Under the Fifth Amendment: (1) does or should this Court recognize the outrageous government conduct doctrine when it has consistently rejected the objective entrapment defense—its analogue; and (2) was ATF’s conduct outrageous when it investigated a dangerous, largely unreported crime by finding and locating individuals with propensity to commit that crime, and verifying whether they would actually engage in the criminal conduct?
viii STATEMENT OF FACTS
This case arises out of a stash house robbery reverse sting operation initiated by the
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in Green Ridge, Apate. R. at 3.
ATF’s operation had attracted a crew of six: Ben Carter, DeAndre Ingram, Cedrick Jones, Malik
and Terrance Price, and Michael Roby. Every crewmember—except Malik—had prior
convictions involving either drugs or theft. R. at 33–34. ATF was unaware of their convictions,
but it procured evidence of their predispositions before the sting was conducted. R. at 18, 38–43.
Terrance proclaimed robbery was his “family business.” R. at 38. Jones—Terrance’s
“right hand gunner,” who “always” worked with him—boasted that he had robbed people, and
would do it again. R. at 39. Carter, initially identified only as “Tinderman,”1 was alleged to be
able to get everything the crew needed for the robbery; he “kn[ew] how to do this kind of stuff.”
R. at 40. Ingram was introduced as a “[s]traight enforcer” who killed people, stole cars, and
robbed banks. R. at 42. He touted himself as a “professional,” and grilled ATF Special Agent
Antonio Miller regarding details of the stash house before agreeing to participate in the robbery.
R. at 43. Roby was not involved in the planning of the robbery, but was identified later. R. at 8.
Finally, while Malik had no prior convictions, he did not join until the twilight hour. R. at 6.
ATF sought to arrest all six crewmembers, but only successfully arrested Defendants
Jones, Malik, and Carter during the sting. R. at 34. Unfortunately, due to complications during
the sting, the remaining three members of the robbery crew, Terrance, Ingram, and Roby, died.
R. at 33–34. The crew had set out to steal over $1 Million in cocaine. R. at 36.
1
The District Court did not specifically find that Defendant Carter was in fact “Tinderman,” but
it is a reasonable inference. He was arrested in a hospital after he crashed his car into a ditch. R.
at 8–9. Officers found a butane lighter engraved “Tinderman” in the car. R. at 8. He denied
participation in the robbery, but fell quiet after officers showed him the lighter. R. at 8. He
subsequently asked for a lawyer. R. at 8. It appears Carter and “Tinderman” are the same person.
1 1.
ATF Initiates Operation Gideon to Find and Arrest Would-Be Robbers.
In May 2009, ATF launched Operation Gideon, whereby ATF “conduct[ed] a series of
reverse-sting operations designed to find and arrest people engaging in violent home robberies of
drug stash houses in residential neighborhoods.” R. at 2. It did so because “stash house robberies
are largely unreported crimes that pose a great risk of violence in residential neighborhoods.” R.
at 31. ATF sent a Confidential Informant (CI) to find individuals willing to meet an ATF agent
posing as a “disgruntled drug courier” wanting to steal the contents of his boss’s stash house. R.
at 2–3. Most cases went on for months, but this case was over in less than a month. R. at 3–6.
In August 2012, ATF shifted its focus away from cities like Miami, Florida and towards
four metropolitan areas within the state of Apate. R. at 3. This was “in response to an increased
number of shootings, kidnappings, and other criminal activity that occurred during the summer
months of that year.” R. at 3. The majority of ATF’s operations occurred in Green Ridge, Apate,
which is “home to over 8,000 gang members, in 74 separate gangs.” R. at 3. These reverse-stings
have resulted in some injuries and deaths, but have led to a “decrease in the level of violence and
number of kidnappings that have become associated with stash house robberies.” R. at 3.
In this case, ATF directed the CI to target the “worst part” of Green Ridge, the Southside
area. R. at 3–4. “The CI’s role was to find people that were willing to commit a home invasion
robbery.” R. at 4. He did not focus on criminal history or race, but rather searched for “shady
people” who had “an interest in robbing a drug stash house,” i.e. a predisposition towards
committing stash house robberies. R. at 4. He conducted his searches at block parties and bars.
R. at 4. Upon locating an interested individual, he would set up a meeting with Agent Miller. R.
at 4. If Agent Miller determined they were genuinely interested, he would give them details
regarding the stash house robbery and commence the sting. R. at 4.
2 2.
ATF Finds Crew Willing to Rob Stash House; Crew Begins Planning.
On March 8, 2013, ATF’s CI approached Defendant Malik at a block party in Southside
and “asked him if he was interested in a big payday.” R. at 4. Although Defendant Malik initially
said yes, he “laughed dismissively” at the stash house robbery scheme and walked away. R. at 4.
Ten minutes later, unsolicited, Terrance approached the CI and inquired about the scheme. R. at
5. The CI—unaware that Terrance was Defendant Malik’s brother—informed him about the
scheme and set up a meeting with Agent Miller. R. at 4–5. They met three times. R. at 5–6.
During the first meeting, Agent Miller gauged Terrance’s interest and described the stash
house and amount of cocaine inside. R. at 5. Although Terrance initially declined the stash house
robbery, thinking there was only “6 to 8 kilos” of cocaine, he recommitted when Agent Miller
informed him there was twenty-five kilograms or more in the stash house. R. at 35–36. This
amount was “the typical amount of cocaine usually stolen” in stash houses. R. at 58. Terrance
was concerned for Agent Miller’s safety, but he had already talked to prospective crewmembers.
R. at 36. He was ready to proceed, even though he might be shot at. R. at 36–37. He inquired
whether he needed to kill the stash house’s guards, and how many crewmembers were necessary.
R. at 37. Agent Miller told Terrance that it was his “call.” R. at 37. He offered the use of a car
and a safe house, but Terrance only accepted the use of the safe house. R. at 38.
During the second meeting, Agent Miller dismissed Terrance’s plan to rob the stash
house, telling him to get more crewmembers; Terrance had only brought Defendant Jones. R. at
5. Terrance asked for better weapons, but Agent Miller declined, questioning Terrance’s desire
and ability to rob the stash house. R. at 5. Then, when Jones questioned Agent Miller’s motives,
Agent Miller offered to get another crew. R. at 40. Terrance interjected, and promised to get
“Tinderman”—who could get them everything they needed—to join the crew. R. at 5, 40–41.
3 During the third and final meeting, Terrance and Jones introduced Agent Miller to
Ingram, who was replacing “Tinderman.” R. at 5. Terrance pleaded that Ingram was better than
“Tinderman” at “supplying materials and being able to commit the robbery.” R. at 5–6. Ingram
demanded to know the location and layout of the stash house, which Agent Miller supplied. R. at
6. After looking at the house on Google Maps, he determined that “we can do this.” R. at 43. He
had a “failsafe plan,” and all Agent Miller had to do was unlock the front or back door. R. at 6.
3.
ATF Conducts the Sting Operation.
On April 4, 2013, Agent Miller met Terrance and Defendant Jones to conduct the
robbery. R. at 6. Terrance brought his brother Defendant Malik to join them. R. at 6. Ingram
arrived in a white van and drove them to a park to discuss the robbery further, during which the
crewmembers discussed what they were going to do with their spoils. R. at 6, 44. En route to the
stash house, Ingram pulled over the van so that Agent Miller could wait for a phone call from his
drug boss—their signal to go. R. at 6. Once Agent Miller’s phone rang, he exited the van. R. at 6.
Immediately, ATF agents approached the van and threw a stun grenade to incapacitate
the armed crew. R. at 6. After it detonated, Terrance exited the van and shot his gun several
times before being mortally wounded. R. at 6. Special Agent Sarah Nelson was shot in the back
and was subsequently paralyzed. R. at 6. Ingram, Jones, and Malik fled the scene in the van, but
later crashed into an electrical pole. R. at 6–7. “Ingram died on impact,” but ATF agents arrested
Defendants Jones and Malik. R. at 7. In the van, ATF agents found six empty duffel bags and
one full duffel bag with a loaded pistol, two airsoft guns that looked like pistols, red oversized
wrench tools, and a box full of red plain T-shirts and bandanas. R. at 7, 52.
Meanwhile, an anonymous tipster reported “suspicious” people that had been loitering
near the stash house for half an hour. R. at 7. “[O]ne of the men was wearing a large black
4 backpack and the other kept fidgeting with something in his pocket.” R. at 7. They were later
identified as Roby and Defendant Carter. R. at 8–9. Special Agents Bradley Holder and Brett
Martin were immediately dispatched to investigate. R. at 7. The agents, wearing clearly marked
ATF jackets, attempted to question the men, “what’s going on today gentlemen?” R. at 7.
The men bolted away from the vicinity of the stash house, ignoring the agents’ command
to stop and put their hands up. R. at 7. Roby, “the man without the backpack,” eventually
stopped. R. at 7. He pulled out what appeared to be a pistol and pointed it in the air, declaring
that it was fake. R. at 7–8&n.6. Agents Holder and Martin ordered him to put it down. R. at 7. As
Roby put the gun down, he pointed it towards the agents. R. at 7–8. Fearing for his and his
partner’s lives, Agent Holder shot Roby in the chest. R. at 8, 59.
Defendant Carter, the suspect with the backpack, continued running through a dense
residential neighborhood bordering an athletics field seemingly part of a school. R. at 50. Agent
Holder was immediately ordered by Agent Martin to pursue Defendant Carter; he did not have
time to ascertain whether Roby’s gun was real. R. at 8, 60. After ignoring another command to
stop, Defendant Carter reached into his pocket. R. at 8. Agent Holder, fearing for his life after
having just seen Roby point a gun at him, shot three times at Defendant Carter. R. at 8, 60. After
the fact, it appeared he was grabbing a car key. R. at 8. He fled the scene in his car. R. at 8.
Some hours later, police discovered a car matching the description of the getaway vehicle
one mile from the scene. R. at 8. The car was abandoned with its doors left open, keys inside,
and a half-tank of gasoline. R. at 8. Inside, police found Defendant Carter’s black backpack left
open; its supposed contents, materials that could be used for homemade explosive devices, “were
strewn across the backseat floor.” R. at 8. In addition, they found a butane lighter engraved with
the word “Tinderman.” R. at 8. Defendant Carter was nowhere to be found. R. at 8.
5 Ten hours later, an ICU nurse at a nearby hospital reported a patient matching the
suspect’s description. R. at 9. After arrival at the hospital, agents identified him as Defendant
Carter. R. at 9. The agents did not return to arrest and question him until the following day after
he had recovered from surgery. R. at 9. Although he initially denied knowing anything about the
robbery, he later asked for a lawyer after he was shown the backpack found in his car. R. at 9.
4.
Procedural History.
Defendants were indicted on April 24, 2013 for “violations of numerous federal laws,
carrying a mandatory sentence of at least fifteen years in prison.” R. at 9. “Defendant Carter
moved to suppress the contents of the backpack under the Fourth Amendment,” and “Defendants
moved to dismiss the indictment under the Fifth Amendment.” R. at 9. Aside from disputing
Defendant Carter’s Fourth Amendment arguments, the government argued that dismissal of the
indictment was inappropriate where Defendants “manifested a propensity to commit the
robbery” and had “admitted to similar conduct in the past.” R. at 16. On June 6, 2013, the United
States District Court for the District of Apate granted both motions. R. at 16, 23. The government
appealed, and the Thirteenth Circuit Court of Appeals reversed the District of Apate on both
grounds on May 13, 2014. R. at 24. This Court granted certiorari on June 17, 2014. R. at 32.
SUMMARY OF THE ARGUMENT
Defendant Carter must show that he was seized by Agent Holder shooting him, that the
use of deadly force in the seizure was unreasonable, and that the seizure resulted in the discovery
of evidence in order to suppress the evidence found in his car. Though laudable, his challenge
fails in every respect. First, no seizure occurred. His movement—fleeing from ATF—was not
terminated, and he was not found for over ten hours. Second, any seizure was reasonable. Agent
Holder feared for his life: He had just had what he believed was a gun pointed at him by Roby;
6 and Defendant Carter started pulling an unidentified object from his pocket after he realized
Agent Holder was behind him. Finally, any unreasonable seizure did not result in the discovery
of the evidence in Defendant Carter’s car. The discovery was simply too attenuated. He
successfully fled from Agent Holder, and the car was found abandoned some hours later with the
evidence strewn about inside. Any unreasonable seizure did not cause Defendant Carter to
abandon his car or the incriminating items inside. For any and all of these reasons, the evidence
found in Defendant Carter’s vehicle cannot be suppressed under the Fourth Amendment.
Defendants’ Fifth Amendment due process challenge under the outrageous government
conduct doctrine is not supported in law or fact. While some circuits have latched onto dicta
from this Court as creating the doctrine, others have appropriately—and recently—rejected it.
And for good reason: The doctrine is nearly indistinguishable from objective entrapment, a
doctrine this Court has repeatedly and consistently rejected at every new challenge to the
propriety of subjective entrapment. Once again, this Court should resolve this case on
Defendants’ propensities, which are adequately supported both by prior convictions and pre-sting
inculpatory statements to an ATF agent. Regardless, Defendants have simply not raised a
legitimate challenge to ATF’s stash house reverse sting operation. It was not outrageous. As this
Court noted, society is at war with the criminal classes. ATF’s use of a reverse sting to capture
those who would otherwise engage in stash house robberies was the best and only option
available to investigate a dangerous, largely unreported crime in a city containing 8,000 gang
members comprising 74 gangs. Accordingly, Defendants’ indictments cannot be dismissed.
STANDARD OF REVIEW
Whether and when a seizure occurred, whether officers had probable cause to use deadly
force, and whether the abandonment of the evidence was too attenuated from alleged police
7 misconduct is reviewed de novo. See United States v. Massie, 65 F.3d 843, 847 (10th Cir. 1995);
see also Ornelas v. United States, 517 U.S. 690, 697 (1996) (holding mixed questions of fact and
Fourth Amendment law enjoy “independent appellate review” to promote a unitary system of
law). Under the Fourth Amendment, findings of fact are reviewed for clear error, and the
evidence is viewed in a light most favorable to the prevailing party. Massie, 65 F.3d at 847.
Whether the government’s conduct is a valid basis for dismissing an indictment is reviewed de
novo. United States v. Black, 733 F.3d 294, 301 (9th Cir. 2013). Under the outrageous
government conduct doctrine, the evidence is viewed in “the light most favorable to the
government,” and findings of fact are reviewed for clear error. United States v. Gurolla, 333 F.3d
944, 950 (9th Cir. 2003).
ARGUMENT
I.
The Backpack’s Contents Are Admissible: There Was No Seizure; Agent Holder
Had Probable Cause to Use Deadly Force; and Defendant Carter’s Abandonment of
the Evidence is Too Attenuated to Agent Holder’s Gunshots to Suppress it.
The Fourth Amendment protects individuals from unreasonable government searches and
seizures. U.S. Const. amend. IV. To determine whether the Fourth Amendment applies here, this
Court must first determine “whether and when” a seizure occurred. Terry v. Ohio, 392 U.S. 1, 16
(1968). A seizure, however, does not offend the Fourth Amendment unless it is unreasonable.
Elkins v. United States, 364 U.S. 206, 222 (1960). As such, evidence does not need to be
suppressed unless it can be fairly said to have resulted from the unreasonable seizure. Id. When a
suspect poses serious physical harm to officers or others, an officer is able to use deadly force to
effectuate a seizure. Tennessee v. Garner, 471 U.S. 1, 11 (1985). Finally, if the obtainment of
evidence was too attenuated or was accomplished legally by other means, it is not excluded. See
id.; Wong Sun v. United States, 371 U.S. 471, 487–88 (1963).
8 To suppress the evidence, Defendant Carter must win on all three Fourth Amendment
issues before this Court: (1) Whether a physical seizure occurred when he fled even after being
shot by Agent Holder; (2) whether Agent Holder lacked probable cause to use deadly force when
he had just confronted Roby pointing a realistic looking gun at him; and (3) whether Defendant
Carter abandoned the backpack only because of the gunshots. Cf. United States v. Dupree, 617
F.3d 724, 730 (3d. Cir. 2010). His challenges fail because Agent Holder’s attempted seizure
failed, he used deadly force in fear for his life, and Defendant Carter’s abandonment of the
evidence is too attenuated to warrant suppression.
A.
ATF Never Seized Defendant Carter: His Movement Was Not Terminated.
ATF never seized Defendant Carter, and so there was no violation of his Fourth
Amendment protections. A “seizure” occurs where the police, via “physical force or show of
authority,” terminate or restrains the freedom of the suspect to walk away. See, e.g., Florida v.
Bostick, 501 U.S. 429, 434 (1991). A seizure is determined in light of all surrounding facts and
circumstances, United States v. Mendenhall, 446 U.S. 544, 554 (1980), but “termination of
freedom of movement through means intentionally applied” has been adopted as a necessity by
this Court, Brower v. County of Inyo, 489 U.S. 593, 597 (1989) (emphasis omitted). Accordingly,
the Brower standard requires both the intent to seize and the termination of movement before a
seizure occurs. Brower 489 U.S. at 597. Although this Court recognized that common law
seizures may occur the moment an officer grasps a suspect, California v. Hodari D., 499 U.S.
621, 624 (1991), it later confirmed that seizures must terminate movement to elicit Fourth
Amendment protections, see County of Sacramento v. Lewis, 523 U.S. 833, 844–45&n.7 (1998).
To trigger a seizure, the suspect must be “stopped by the very instrumentality set in
motion” for the seizure, and there must have been an “intentional acquisition of physical
control.” Brower, 489 U.S. at 599. Indeed, although a seizure technically occurs the moment of
9 an officer’s grasp, it immediately ends when the suspect refuses to succumb to the physical
force. Hodari D., 499 U.S. at 626. The distinction between the creation and the continuance of a
seizure is crucial in situations involving fleeing suspects, where a suspect’s escape from the
physical grasp removes him from protection under the Fourth Amendment. See Thompson v.
Whitman, 85 U.S. (18 Wall.) 457, 471 (1874) (quoted in Hodari D., 499 U.S. at 625) (“A seizure
is a single act, and not a continuous fact.”). For example, no seizure occurs if a police cruiser
sideswipes a fleeing car, but does not produce the crash that terminated the defendant’s freedom.
Brower, 489 U.S. at 597. The physical touch—sideswiping the car—flatly does not qualify as a
seizure unless it was successful in stopping the car—terminating its movement. Id.
This Court was clear in Hodari D. that it upheld the Brower standard. 499 U.S. at 628–
29. The defendant’s refusal to stop during the pursuit foreclosed a seizure under the Fourth
Amendment at the time he abandoned the evidence. Id. at 629. It even compared the facts before
it to those in Brower. Id. at 628 (quoting Brower, 489 U.S. at 597) (“We did not consider the
possibility that a seizure could have occurred during the course of the chase because, as we
explained, that ‘show of authority’ did not produce his stop.”). The defendant in Hodari D. was
seized only when the officer tackled him, which was after he discarded the evidence. Id. at 629.
Importantly, while the District of Apate relied on this Court’s common law seizure analysis in
Hodari D., at least two circuits have recognized it as dicta, and that termination of movement is
still required. See Dupree, 617 F.3d at 730 n.5 (noting termination of movement still required
under Hodari D.); Thomas v. Durastanti, 607 F.3d 655, 663 (10th Cir. 2010) (noting seizure
without termination of movement is dicta in Hodari D.). Similarly, this Court has termed
seizures without termination as “attempted seizures,” whereby the officer intended to seize the
suspect, yet failed to do so. See Brendlin v. California, 551 U.S. 249, 254 (2007) (“[T]here is no
10 seizure without actual submission; otherwise, there is at most an attempted seizure.”); Scott v.
Harris, 550 U.S. 372, 384&n.10 (2007) (“[T]erminating the car chase . . . constitutes a seizure”).
There is wide agreement by the Courts of Appeals adopting the Brower standard when
suspects flee police. The Fourth, Seventh, and Tenth circuits have directly adopted the Brower
standard where there is subsequent flight. See Schultz v. Braga, 455 F.3d 470, 472 (4th Cir.
2006); United States v. Bradley, 196 F.3d 762 (7th Cir. 1999); Brooks v. Gaenzle, 614 F.3d 1213
(10th Cir. 2010). Although the First, Third, Fifth, and Sixth Circuits have adopted the Hodari D.
standard, they only do so where the suspects did not flee after the police shot them; termination
of movement continues to be the crux of the seizure. See St. Hilaire v. City of Laconia, 71 F.3d
10, 26 (1st Cir. 1995) (paralysis); Abraham v. Raso, 183 F.3d 279, 282, 288 (3d Cir. 1999)
(death); Lytle v. Bexar County Tex., 560 F.3d 404, 410 (5th Cir. 2009) (same); Ciminillo v.
Streicher, 434 F.3d 461, 466 (6th Cir. 2006) (suspects turned themselves in). Only the Eighth
and Eleventh Circuits have incorrectly adopted the common law standard where a seizure occurs
despite subsequent flight. See Moore v. Indehar, 514 F.3d 756, 758, 762 (8th Cir. 2008);
Vaughan v. Cox, 343 F.3d 1323, 1329&n.5 (11th Cir. 2003). The flight distinction, however,
makes the Brower standard a practical one with respect to attempted seizures, and conforms to
this Court’s definition of seizure, and the requirement for termination of movement.
No matter how this Court views seizure, Defendant Carter was not seized by the gunshots
because he subsequently fled from Agent Holder in his car. R. at 8. Under the Brower standard,
Agent Holder’s gunshots did not seize Defendant Carter because he successfully fled from police
subsequent to the bullets striking him. Under the common law theory dicta in Hodari D.,
Defendant Carter was seized when Agent Holder shot him, but his seizure ended the moment he
fled the scene. His seizure was not continuous, and he was not stopped by police activity that
11 was intended to end his flight. Instead, he escaped from the officers, fled on foot and in his
vehicle, abandoned the vehicle, was not spotted by passersby or police agents, and eventually
obtained medical treatment of his wounds. R. at 8–9. Officers did not find or arrest Defendant
Carter until being called by hospital personnel over ten hours after the initial gunshots. R. at 8–9.
B.
Agent Holder’s Use of Deadly Force was Reasonable in Light of the Split-Second
Policing Decisions He was Forced to Make.
Agent Holder’s use of deadly force was reasonable because it was supported by probable
cause. “The touchstone of the Fourth Amendment is reasonableness.” Florida v. Jimeno, 500
U.S. 248, 250 (1991) (citing Katz v. United States, 389 U.S. 347, 360 (1967)). As such, this
Court has adopted an objective reasonableness standard to analyze police conduct that provides
significant deference to police decisions in the field. See Ohio v. Robinette, 519 U.S. 33, 39
(1996); Harris, 550 U.S. 372 (2007). This standard requires acknowledgement that police
officers are forced to make instantaneous judgments about the force necessary in “circumstances
that are tense, uncertain, and rapidly evolving.” Graham v. Connor, 490 U.S. 386, 396–97
(1989). The reality of “endless variations of the facts and circumstances” implicating the Fourth
Amendment precludes use of bright-line rule or litmus test. Florida v. Royer, 460 U.S. 491, 506
(1983); see also Michigan v. Chesternut¸ 486 U.S. 567, 572 (1988) (reiterating bright-line rules
are unworkable). Further, flight may be considered along with other specific knowledge when
assessing the officer’s actions. Sibron v. New York, 392 U.S. 40, 66–67 (1968). “Where the
officer has probable cause to believe that the suspect poses a threat of serious physical harm,
either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using
deadly force.” Garner, 471 U.S. at 11.
Probable cause exists where the facts and circumstances would cause a reasonable person
to believe that an offense is being or has been committed. Brinegar v. United States, 338 U.S.
12 160, 175–76 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). This analysis
turns on the probability of crime, and accordingly provides for reasonable police error. Id. at 176.
Notably, investigation is often required to corroborate anonymous tips to establish probable
cause, but extreme circumstances may diminish the need for more searching review of the tip’s
veracity. Florida v. J.L., 529 U.S. 266, 272–74 (2000). While anonymous tips often require
corroboration, they are still appropriate considerations to protect the community from crime. See
Illinois v. Gates, 462 U.S. 213, 227–28 (1983); Alabama v. White, 496 U.S. 325, 329–32 (1990).
After the van shootout, Agents Holder and Martin were radioed that an anonymous tipster
reported “suspicious” individuals at the stash house. R. at 6–7. The individuals were standing
outside the stash house at the exact time the robbery was to take place. R. at 7. In approaching
the scene, Agents Holder and Martin knew they were in a dense residential area with homes,
parks, and a school. R. at 7, 46–51. This factored into their analysis of the potential dangers in a
chase. They studied the men’s movements. One man fidgeted with his pockets, while another
carried a large backpack possibly containing a firearm like the duffel bag in the van from the
other sting participants. R. at 7. Officers corroborated the appearance, location, and actions of the
unidentified suspects according to the tip. R. at 7. The men immediately ran from the agents,
which was appropriately considered by the agents as they pursued them. R. at 7; Sibron, 392
U.S. at 66–67. In addition, the agents were aware of the violence associated with the other
members of the drug crew, and could consider those actions. R. at 7.
Agents Holder and Martin reasonably believed that Defendant Carter posed a threat to
them and the residents of the community. Both men refused to stop, ignoring the agent’s orders.
R. at 6–8. Roby pointed what appeared to be a gun at the agents. R. at 7–8&n.6. Even after Roby
was shot, Defendant Carter continued to flee. R. at 8. Then, he began fidgeting into his own
13 pockets just like Roby, the suspect with the apparent gun, had done earlier. R. at 8. To Agent
Holder, Defendant Carter was a deadly threat at that moment. See Garner, 471 U.S. at 11. It was
objectively reasonable to use deadly force in a volatile situation where Defendant Carter
reasonably posed an immediate and deadly threat not only to Agent Holder, but also to the public
in the residential neighborhood. R. at 7, 46–51. Agent Holder had more than corroborated the tip,
he had established probable cause, and he knew he had to act. See Brinegar, 338 U.S. at 176.
C.
The Discovery of the Backpack’s Contents is Too Attenuated From the Gunshot
To Apply the Exclusionary Rule.
This Court exercises extreme caution in excluding evidence even where there is a Fourth
Amendment violation. See Gates, 462 U.S. at 223; Pa. Bd. of Prob. & Parole v. Scott, 524 U.S.
357, 363 (1998); Hudson v. Michigan, 547 U.S. 586, 591 (2006) (stating exclusion is the “last
resort, not [the] first impulse”). The exclusionary rule imposes high social costs, namely setting
guilty and dangerous criminal free. Hudson, 547 U.S. at 591. Accordingly, even where there is
wrongful conduct, evidence is not excluded unless it was discovered only because of the
wrongful conduct, “or instead by means sufficiently distinguishable to be purged of primary
taint.” Wong Sun, 371 U.S. at 487–88 (citing Nardone v. United States, 308 U.S. 338, 341
(1939)). “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that
exclusion can meaningfully deter it.” Herring v. United States, 555 U.S. 135, 144 (2009).
Otherwise, it is not worth the cost. See id.
The attenuated chain between the gunshot and discovery of the evidence shows any taint
had been purged, and invoking the exclusionary rule will unduly burden our public safety
officials with little gained for the justice system. Finding Defendant Carter’s vehicle was too
attenuated from the gunshots. After Agent Holder opened gunfire, Defendant Carter fled both on
foot and in his vehicle. R. at 8. Defendant Carter was no longer being chased when he abandoned
14 the evidence, and there were no sightings or leads before the vehicle was found abandoned in the
ditch. R. at 8. Accordingly, it seems that he simply abandoned the vehicle. What precisely
happened between Defendant Carter’s flight and the abandonment of the vehicle is unknown, R.
at 9, but it was not a result of the gunshots. The fact there were no operating problems and was a
half-tank of gas does not show he was forced to leave the vehicle. R. at 9. Quite the opposite,
Defendant Carter was able to abandon the vehicle, and he did not show up to the hospital until
ten hours later. R. at 9. In addition, the evidence was strewn about the back of the car, so it may
have never even been in the backpack, which would sever any link to the gunshot because the
evidence would not have been on Defendant Carter at that time. R. at 9.
Suppressing the evidence would also not deter any conduct by the officers. Herring, 555
U.S. at 144. Since the vehicle was abandoned, the only conduct attributable to finding the
evidence was that of the officer who actually found the vehicle—not Agent Holder. R. at 9.
Suppressing the evidence would effectively punish officers for locating evidence after a crime,
and would chill effective investigations immediately after a crime that may lead to evidence
helpful to either the prosecution, the defense, or both. There is no deterrent value in suppressing
the evidence, which is also too attenuated from the gunshot, and this Court should affirm the
Thirteenth Circuit and hold the evidence is admissible under the Fourth Amendment.
II.
The Outrageous Government Conduct Doctrine Has Been Discarded, and ATF’s
Actions Were Appropriately Tailored to Stem the Tide of Stash House Robberies in
Green Ridge.
This Court has effectively rejected the outrageous government conduct doctrine, and this
issue should be resolved on the presence of Defendants’ propensities. The outrageous
government conduct doctrine is based on dicta from one of this Court’s entrapment cases: “[W]e
may some day be presented with a situation in which the conduct of law enforcement agents is so
outrageous that due process principles would absolutely bar the government from invoking
15 judicial processes to obtain a conviction.” See United States v. Russell, 411 U.S. 423, 431–32
(1973). But not all circuits recognize this doctrine. E.g., United States v. Westmoreland, 712 F.3d
1066, 1071 (7th Cir. 2013). This case is properly decided under an entrapment analysis, which
proscribes convictions only where (1) the defendant had no propensity to engage in the criminal
conduct, and (2) the government induced the criminal conduct. Mathews v. United States, 485
U.S. 58, 63 (1988). Otherwise, dismissal of the indictment is limited to “extreme cases” where a
conviction in light of the government’s conduct “violates fundamental fairness” and is “so
grossly shocking and so outrageous as to violate the universal sense of justice.” United States v.
Stinson, 647 F.3d 1196, 1209 (9th Cir. 2011) (internal quotation marks omitted).
The robbery crew in this case had the propensity to commit this crime. All except one
had prior convictions relating to drugs or theft. R. at 33–34. In addition, all three of the
crewmembers that ATF knew about before the sting commenced had stated during meetings with
Agent Miller that they had engaged in similar conduct before. R. at 18, 38–43. Therefore, any
entrapment claim must fail. Regardless, even Defendants’ outrageous government conduct claim
must fail. ATF’s use of deception in baiting otherwise untargeted individuals was both necessary
and reasonable in light of the crime being investigated. Agent Miller was investigating a largely
unreported, dangerous crime in the worst area of a city with large amounts of stash house
robberies. R. at 31. Defendants’ indictments were valid and should not be dismissed.
A.
The Outrageous Government Conduct Doctrine Neither Was Nor Is Valid.
While this Court has granted certiorari regarding outrageous government conduct, it is
questionable whether this doctrine even exists in this Court.2 R. at 32. “Outrageous misconduct is
2
Sup. Ct. R. 24(a)(1) prohibits parties from raising additional issues on appeal. Whether the
outrageous government conduct doctrine exists is a threshold question necessarily included in a
determination of whether it can be or is satisfied. It is appropriately reviewed on appeal.
16 the deathbed child of objective entrapment, a doctrine long since discarded in the federal courts.”
United States v. Santana, 6 F.3d 1, 3 (1st Cir. 1993). This Court has effectively rejected the
outrageous government conduct doctrine by consistently rejecting the objective entrapment
analysis, which similarly focuses the analysis on the government’s conduct—not the defendant’s
subjective propensity. See Sorrells v. United States, 287 U.S. 435 (1932) (establishing the
entrapment defense as a subjective approach); Sherman v. United States, 356 U.S. 369 (1958)
(majority using subjective approach); Russell, 411 U.S. 423 (same); Hampton v. United States,
425 U.S. 484 (1976) (same); Mathews, 485 U.S. 58 (unanimous support of subjective approach);
Jacobson v. United States, 503 U.S. 540 (1992) (dispute over application of subjective
approach). This Court should once again put the outrageous government conduct doctrine, i.e.
objective entrapment, to rest.
While the district court stated that “nearly all Circuit Courts recognize” the doctrine,
there are only two reported cases in which the circuits have voided a conviction due to
outrageous government conduct. R. at 16; see United States v. Twigg, 588 F.2d 373 (3d Cir.
1978); Greene v. United States, 454 F.2d 783 (9th Cir. 1971). By contrast, the Sixth, Seventh,
and Eleventh circuits have recently confirmed their rejection of the doctrine.3 See United States
v. Amawi, 695 F.3d 457, 483 (6th Cir. 2012), cert. denied 133 S. Ct. 1474 (2013); Westmoreland,
712 F.3d at 1071; United States v. Jayyousi, 657 F.3d 1085, 1111 (11th Cir. 2011). The Fourth
Circuit has described the doctrine as “‘moribund,’” and after Hamilton it survives only in theory.
United States v. Hasan, 718 F.3d 338, 343 (4th Cir. 2013); United States v. Erwin, 520 F. App’x
179, 180 (4th Cir. 2013) (quoting Santana, 6 F.3d at 4).
3
The Eleventh Circuit does recognize the use of “outrageous government conduct” in the
sentence manipulation context, but not as a basis for completely avoiding conviction. See, e.g.,
United States v. Haile, 685 F.3d 1211, 1221–22 (11th Cir. 2012).
17 This Court first recognized the entrapment defense in the early part of the twentieth
century in Sorrells, 287 U.S. at 443. Whether the focus should be on the defendant’s conduct
(subjective entrapment) or the government’s conduct (objective entrapment, i.e. outrageous
government conduct) has been heavily discussed, and the legal profession has analyzed in depth
each of this Court’s entrapment decisions. See Stephen A. Gardbaum, “The Government Made
Me Do It”: A Proposed Approach to Entrapment Under Jacobson v. United States, 79 Cornell L.
Rev. 995, 1007–21 (1994) (analyzing Sorrells, Sherman, Russell, Hampton, Mathews, and
Jacobson). The subjective approach has survived the objective approach challenge. Id.
Justice Brennan’s fight with the subjective entrapment doctrine signifies this Court’s
abandonment of the outrageous government conduct doctrine. While Justice Brennan was not on
the bench when this Court recognized the subjective entrapment doctrine in Sorrells, he was on
the bench when this Court decided Sherman. In Sherman, this Court’s second foray into the
entrapment doctrine, Justice Brennan concurred with Justice Frankfurter in urging this Court to
focus on the government’s conduct—not the propensity of the defendant. 356 U.S. at 378–85
(Frankfurter, J., concurring). This Court refused to heed his call, however, and it resolved the
appeal on objective entrapment grounds. Id. at 376 (majority opinion).
Not dissuaded by this Court’s focus on the defendant’s propensity, he renewed his
opposition fifteen years later in Russell, joining Justice Douglas’ dissent. 411 U.S. at 435–50
(Douglas, J., dissenting). But this Court again resolved the case on objective entrapment grounds.
Id. at 433 (majority opinion). This Court noted that the propensity requirement had been
criticized yet twice affirmed in Sorrells and Sherman. Id. at 433–34. In addition, equal criticism
had been made of the concurring opinions in those cases suggesting that the focus should be on
18 governmental conduct. Id. at 434. This Court cautioned lower courts against using a
“‘chancellor's foot’ veto over law enforcement practices of which it did not approve.” Id. at 435.
Three years later, Justice Brennan again beseeched this Court to focus on the
government’s conduct in Hampton, authoring his own dissent, in which Justices Stewart and
Marshall joined. 425 U.S. at 495–500 (Brennan, J., dissenting). Hamilton was the crescendo,
with only a plurality confirming the propriety of the subjective entrapment approach to the
exclusion of the outrageous government conduct doctrine. Id. at 489–91 (lead opinion). Justices
Powell and Blackmun, while concurring in the judgment, cautioned against nailing the coffin
shut on the outrageous government conduct doctrine. Id. at 491–495 (Powell, J., concurring). Yet
again, the outrageous government conduct doctrine survived only in theory, not in practice.
Following this crescendo, Justice Brennan “bow[ed] to stare decisis,” noting this Court
“has spoken definitively” on the issue, and joined the rest of this Court in analyzing the
propensity of the defendant. Mathews, 485 U.S. at 66–67 (Brennan, J., concurring). This finality
is demonstrated in Jacobson. Justice Brennan was not on the bench at the time this Court decided
Jacobson, but the battle had already been lost: the contention was simply over how to apply the
subjective entrapment doctrine. See generally 503 U.S. 540.
This Court recognizes that rules must be fashioned to deter the government from
encroaching on constitutional rights. See, e.g., Mapp v. Ohio, 367 U.S. 643, 656 (1961). There
are good reasons, however, why this Court has rejected focusing solely on government conduct.
As one commentator has put it: “Entrapment may be unfair, unjust, and verging on
totalitarianism; it may be wasteful, or an unsound use of public resources; and it may violate the
Constitution in one or more ways. All of these may be valid reasons to allow a generous
entrapment defense to the accused.” Dru Stevenson, Entrapment and the Problem of Deterring
19 Police Misconduct, 37 Conn. L. Rev. 67, 74–75 (2004) (citations omitted). “Acquitting
defendants as a means of deterring police misconduct, however, is a public policy fraught with
problems . . . .” See id. at 75–79 (discussing the “bad cop” problem). More important, however,
is that subjective entrapment accomplishes everything the outrageous government conduct
doctrine does, but without letting “plainly guilty defendants go free.” Id. at 99. In addition, the
government must confront the fact that “kinder, gentler sting operations are less likely to fool
actual criminals, who are savvy and suspicious.” See id. at 99–100. Such considerations are why
this Court has steadfastly observed that the Constitution confides the execution of federal laws
“primarily to the Executive Branch of the Government . . . .” E.g., Russell, 411 U.S. at 435.
This Court should reject the outrageous government conduct doctrine and affirm the
Thirteenth Circuit’s reversal of the District of Apate’s dismissal of Defendants’ indictments. This
doctrine is the “deathbed child of objective entrapment, a doctrine long since discarded in the
federal courts.” Santana, 6 F.3d at 3. It is not based in this Court’s binding precedent, and it is
unsound in policy. Reviewing the defendant’s propensity prevents letting “plainly guilty
defendants go free.” Stevenson, supra at 99. But that is not the case here.
Every crewmember that Agent Miller knew about at the conclusion of the third meeting
had informed him of aspects of their criminal past. R. at 18, 38–43; see also infra Part II.B.1. As
such, they fail the first prong of the entrapment analysis: propensity. Mathews, 485 U.S. at 63. In
addition, every crewmember had convictions for crimes involving drugs or theft. R. at 33–34. All
except Malik, the very one who declined the CI’s initial proposal, but then showed up the day of
the robbery with his brother Terrance, who was in charge of planning the entire robbery. R. at 4–
6, 34. Malik’s propensity is irrelevant where ATF did not induce him into the criminal conduct,
the second prong of the entrapment analysis. Mathews, 485 U.S. at 63. Accordingly, Defendants’
20 convictions must be affirmed: they cannot satisfy a defense of entrapment, and this Court has
rejected the outrageous government conduct doctrine.
B.
ATF’s Conduct Was Appropriately Tailored to the Crime Investigated.
Even if this Court reviews the outrageous government conduct doctrine, ATF’s conduct
was not outrageous. “Outrageous government conduct is not a defense, but rather a claim that
government conduct in securing an indictment was so shocking to due process values that the
indictment must be dismissed.” United States v. Williams, 547 F.3d 1187, 1199 (9th Cir. 2008).
The conduct “must be repugnant to the American system of justice.” United States v. Smith, 924
F.2d 889, 897 (9th Cir. 1991). It is “an extremely high standard.”4 Id. There is no “bright line”
test for outrageous conduct; it is analyzed under the “totality of the circumstances.” See United
States v. Black, 733 F.3d 294, 302–04 (9th Cir. 2013). Dismissing an indictment, however, is a
“harsh, ultimate sanction.” United States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978).
As an initial consideration, it is not outrageous to use “artifice and stratagem to ferret out
criminal activity.” Sorrells, 287 U.S. at 441. Such stratagem, however, manifestly cannot include
“excessive” coercion. United States v. McClelland, 72 F.3d 717, 721 (9th Cir. 1995); see also
United States v. Biswell, 700 F.2d 1310, 1314 (10th Cir. 1983). Infiltrating a criminal
organization, approaching individuals engaged in or contemplating a criminal act, and providing
necessary items to a suspect are not indicia of outrageous government conduct. Black, 733 F.3d
at 302 (citing United States v. So, 755 F.2d 1350, 1353 (9th Cir. 1985)). As this Court duly
noted: “Society is at war with the criminal classes, and courts have uniformly held that in waging
this warfare the forces of prevention and detection may use traps, decoys, and deception to
obtain evidence of the commission of crime.” Sorrells, 287 U.S. at 453–54.
4
Indeed, the Ninth Circuit, which wholly accepts the doctrine, rejected a claim with remarkably
similar facts to those here. See United States v. Black, 733 F.3d 294, 298–310 (9th Cir. 2013).
21 Determining outrageous government conduct at the margins is difficult. United States v.
Bogart, 783 F.2d 1428, 1438 (9th Cir. 1986). The government cannot, however, create new
crimes “merely for the sake of pressing criminal charges.” United States v. Emmert, 829 F.2d
805, 812 (9th Cir. 1987) (citation omitted). Similarly, government conduct is outrageous when it
“engineers and directs a criminal enterprise from start to finish.” Williams, 547 F.3d at 1199
(quoting United States v. Gurolla, 333 F.3d 944, 950 (9th Cir. 2003)).
The Ninth Circuit has identified several factors for evaluating the government’s conduct:
(1) known criminal characteristics of the defendants; (2) individualized suspicion
of the defendants; (3) the government's role in creating the crime of conviction;
(4) the government's encouragement of the defendants to commit the offense
conduct; (5) the nature of the government's participation in the offense conduct;
and (6) the nature of the crime being pursued and necessity for the actions taken
in light of the nature of the criminal enterprise at issue.
Black, 733 F.3d at 303. However, “[t]hese do not constitute a formalistic checklist, but help
focus our analysis of the totality of circumstances.” Id. at 304. Factors (1) and (2) touch on
similar issues of the defendant’s characteristics, and are discussed together below. Similarly,
factors (3), (4), and (5) focus on the government’s conduct in the specific operation, and are
discussed together. Factor (6), the need for the specific operation, is discussed last.
1.
ATF Had Knowledge of the Crewmembers’ Criminal Characteristics.
Although individualized suspicion of a defendant is important, it is not required. See
Black, 733 F.3d at 304. This is particularly true where the government “has focused on a
category of persons it had reason to believe were involved in the type of illegal conduct being
investigated.” Id. Knowledge of past criminal acts or criminal propensity may alleviate a lack of
individualized suspicion, which is only one consideration in the totality of the circumstances. Id.
ATF did not have knowledge of the crewmembers’ criminal convictions or individualized
suspicion of them at the start of the operation, but Agent Miller obtained knowledge of prior
22 criminal activity and their criminal propensity before the sting operation commenced. R. at 18,
38–43. Crime was Terrance’s “family business.” R. at 38. Defendant Jones was Terrance’s “right
hand gunner,” and he claimed to have robbed people. R. at 39. He was also ready to do it again.
R. at 39. Ingram was a “[s]traight enforcer”—a “professional.” R. at 42. He killed people, robbed
banks, and stole cars. R. at 42. Defendant Carter, a.k.a. Tinderman, “kn[ew] how to do this kind
of stuff.” R. at 40. Regardless, ATF’s operation was focused on the worst part of Green Ridge
where criminal activity had recently increased, and the CI focused his searches in an area likely
to elicit the type of person involved in stash house robberies—the illegal conduct being
investigated. R. at 2–4. Therefore, any lack of individualized suspicion is outweighed by Agent
Miller’s knowledge of the crewmembers’ criminal propensities, and is not a valid basis for
dismissing Defendants’ indictments.
2.
ATF Did Not Create, Encourage, or Participate in the Robbery.
The duration and nature of the government’s participation, as well as the necessity of the
government’s interaction, are crucial considerations. Black, 733 F.3d at 308–09. Unfortunately,
“[g]overnment agents often need to play the role of criminals in order to apprehend criminals,
and this role occasionally entails unseemly behavior.” United States v. Mosley, 965 F.2d 906,
910 (10th Cir. 1992). Although the government’s passivity during the crime is considered,
United States v. Stenberg, 803 F.2d 422, 431 (9th Cir. 1986), this Court has held that the
government’s supply of difficult-to-obtain chemicals is “scarcely objectionable,” Russell, 411
U.S. at 432. Officers often must give something of value to suspects to gain their confidence. Id.
Merely affording “opportunities or facilities” to suspects for criminal use is not
outrageous government conduct. Id. at 435. Sometimes “deceit is the only practicable law
enforcement technique available.” Id. at 436. Notably, “the government can suggest the illegal
activity, can provide supplies and expertise for the activity, and can act as both supplier and
23 buyer in sales of illegal goods in order to induce the defendant to repeat, continue, expand, or
extend the criminal activity.” United States v. Sneed, 34 F.3d 1570, 1577 (10th Cir. 1994) (citing
Mosley, 965 F.2d at 911–12); see also Hampton, 425 U.S. at 485, 489–90 (holding the
government can act as both buyer and seller of illegal goods); United States v. Citro, 842 F.2d
1149, 1153 (9th Cir. 1988) (suggesting criminal activity does not necessarily “create” it). The
duration of the government’s participation is a consideration, but it can be at least a few months.
Compare Mosley, 965 F.2d at 908 (holding three months was appropriate); with Greene, 454
F.2d at 786 (holding three years was not).
The government did not “create” the crime when the CI baited generally “people that
were willing to commit a home invasion robbery.” R. at 4; Sneed, 34 F.3d at 1577; Citro, 842
F.2d at 1153. In addition, Agent Miller did not encourage the robbery. Actually, he offered to
call the robbery off, but Terrance declined, promising he could acquire the services of Tinderman
in order to keep his crew involved with the robbery. R. at 5, 40–41. In doing so, Agent Miller
merely ascertained whether the crewmembers were serious in engaging in criminal conduct.
Similarly, the nature of the government’s participation weighs in the government’s
favor—it was not outrageous in any way. Agent Miller’s participation was nowhere near as
objectionable as the government acting as both buyer and seller in a drug sale, which this Court
has approved. Hampton, 425 U.S. at 489–90. The operation lasted less than a month. R. at 3–6;
cf. Mosley, 965 F.2d at 908 (three months upheld). Agent Miller refused to provide firearms to
the crew. R. at 5. And while he offered the use of a car—which Terrance declined—and a safe
house, these items were not difficult to obtain. R. at 38. Yet, even if they were, it is “scarcely
objectionable,” and gained Agent Miller credibility with the crew. Russell, 411 U.S. at 432
24 Deceit was invaluable in this operation because stash house robberies are rarely reported,
yet dangerous. R. at R. at 31; Russell, 411 U.S. at 436. Accordingly, the government was simply
playing the role of a criminal in order to apprehend other criminals. Mosley, 865 F.2d at 910. Its
conduct was not outrageous, and is not a valid basis for dismissing Defendants’ indictments.
3.
ATF’s Actions Were Necessary Due to the Unreported and Dangerous
Nature of Stash House Robberies.
Finally, this Court should look to the nature of the investigative technique in light of the
crime being investigated before condemning essential, effective investigative practices. Black,
733 F.3d at 309. In addition to the concerns above, this Court must also be mindful that large
financial incentives are appropriate in drug investigations, because such sums are commonplace
in drug trafficking. United States v. Emmert, 829 F.2d 805, 812 (9th Cir. 1987). ATF was
investigating a dangerous, largely unreported crime. R. at 31. As ATF unfortunately experienced
in its attempt to seize the crewmembers in the van: this danger is real. R. at 6–7. In addition,
ATF was not haphazardly seeking out stash house robbers. It was specifically investigating the
“worst part” of a city inhabited by “8,000 gang members, in 74 separate gangs.” R. at 3–4. There
was simply no other way for ATF to focus on stash house robbers, other than by baiting them
into a sting operation. The sting operation had to sound legitimate; otherwise, stash house
robbers would back out—as Terrance almost did. R. at 35; Emmert, 829 F.2d at 812. ATF’s
actions were tailored to the dangerous, unreported nature of the crime, and should not be
disturbed. This Court should hold that Defendants’ indictment should not be dismissed.
CONCLUSION
Respondent requests this Honorable Court affirm the Thirteenth Circuit Court of
Appeals’ decision reversing the United States District Court for the District of Apate’s order
suppressing the evidence dismissing the indictments.
25