Team 33

Docket No. 13-201

In The

SUPREME COURT OF THE UNITED STATES

Spring Term 2013

ROY HINKLEY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_______________________________________

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT

________________________________________

BRIEF FOR PETITIONER

________________________________________

ii

TABLE OF CONTENTS

Page No.

TABLE OF AUTHORITIES ........................................................................................................ iv

QUESTION PRESENTED .............................................................................................................1

STATEMENT OF THE CASE .......................................................................................................2

SUMMARY OF THE ARGUMENT .............................................................................................6

ARGUMENT AND CITATIONS OF AUTHORITY ....................................................................8

I. THE UNITED STATES COURT OF APPEALS’ RULING SHOULD BE

REVERSED BECAUSE THE FOURTH AMENDMENT PROHIBITS POLICE

THAT ARE LAWFULLY PRESENT TO CONDUCT A PROTECTIVE SWEEP

OF A HOME WHEN NO OBJECTIVELY REASONABLE ARTICULABLE

FACTS POINT THE OFFICER TO BELIEVE A DANGER TO PERSONS ON

THE PREMISES EXISTS.

…………………………………………………………………………………………...8

A. The Court of Appeals erred in denying petitioner’s motion

to suppress by upholding the officer’s search based on petitioners

consent to enter and failing to recognize petitioners refusal to allow

search of the home……………………………………………………….....10

B. Absent reasonable, articulable suspicion that the premises in which police

are present harbors a person posing an immediate danger to those on the

premises, a protective sweep cannot be conducted without a warrant ....13

II. THE COURT OF APPEALS DECISION SHOULD BE AFFIRMED

BECAUSE POSSESSION OF AN UNREGISTERED SAWED-OFF

SHOTGUN FAILS THE BEGAY TEST AS A PREDICATE

VIOLENT FELONY ...............................................................................................18

A. Petitioner’s crime is not similar in kind to the enumerated crimes

Because Petitioner’s inactive crime involved mere possession ..................21

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B. Possession of a sawed-off shotgun is also not similar in degree of

Risk to the enumerated crimes because it is not a purposeful,

Violent, or aggressive crime……………………………………………….25

C. There is no legislative intent to include possession of a sawed-off

Shotgun as a violent felony under the Armed Career Criminal Act .........29

CONCLUSION .............................................................................................................................34

iv

TABLE OF AUTHORITIES

United States Supreme Court Cases:

Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003) ....................................................................30

Begay v. United States, 553 U.S. 137 (2008) ....................................................................... passim

Brigham City v. Stuart, 547 U.S. 398 (1943) ..............................................................................14

Carroll v. United States, 267 U.S. 132 (1925) ................................................................................8

Chambers v. United States, 555 U.S. 122 (2009) ...............................................................18,25,32

Illinois v. Rodriguez, 497 U.S. 177 (1990) ...................................................................................17

James v. United States, 550 U.S. 192 (2007) ................................................................................29

Johnson v. United States, 333 U.S. 10 (1948) ..............................................................................15

Katz v. United States, 389 U.S. 347 (1967) ..................................................................................15

Maryland v. Buie, 494 U.S. 325 (1990) ..............................................................................13,14,15

Mincey v. Arizona, 437 U.S. 385 (1978) ........................................................................................8

Stacey v. Emery, 97 U.S. 642 (1878) .............................................................................................8

Sykes v. United States, 131 S.Ct. 2267 (2011) .............................................................................18

Taylor v. United States, 495 U.S. 575 (1990) ....................................................................... passim

United States v. Knights, 534 U.S. 112 (2001) ...............................................................................9

Circuit Court Cases:

United States v. Archer, 531 F.3d 1347 (11th Cir. 2008) .................................................22, 23,24

United States v. Baker, 665 F.3d 51 (2nd Cir. 2012) ....................................................................27

United States v. Brown, 629 F.3d 290 (2nd Cir. 2012) ................................................................27

United States v. Christensen, 559 F.3d 1092 (9th Cir. 2009) .......................................................27

United States v. Flores, 477 F.3d 431 (6th Cir. 2007) .............................................................22,27

v

United States v. Gould, 364 F.3d 578 (5th Cir. 2004) ..................................................................13

United States v. Johnson, 616 F.3d 85 (2nd Cir. 2010) ................................................................27

United States v. Lawrence, 627 F.3d 1281 (9th Cir. 2010) .....................................................27,28

United States v. McGill, 618 F.3d 1273 (11th Cir. 2010) ..................................................23,24,28

United States v. McWeeney, 454 F.3d 1030 (9th Cir. 2006) ........................................................12

United States v. Pruitt, 458 F.3d 477 (6th Cir. 2007) .....................................................................9

United States v. Taylor, 248 F.3d 506 (6th Cir. 2001) .................................................................13

United States v. Torres, 470 F.3d 992 (10th Cir. 2009) ................................................................14

United States v. Werra, 638 F.3d 326 (1st Cir. 2011) ...............................................................9,16

United States v. Whitson, 597 F.3d 1218 (11th Cir. 2010) .....................................................26,28

District Court Cases:

United States v. Johnson, 704 F.Supp. 1404 (E.D.Mich. 1989) ...................................................27

State Supreme Court Cases:

State of New Jersey v. Davilia, 999 A.2d 1116 (2010) ......................................................11,14,15

State Court of Appeals Cases:

State of Oregon v. White, 211 Or.App. 210 (2007) ......................................................................10

Constitutional Provisions:

U.S. Const. Amend. IV ......................................................................................................... passim

U.S. Const. Amend. VI ...................................................................................................................8

Statutory Provisions:

18 U.S.C.A. § 924(e)(1) (2006) ........................................................................................... passim

18 U.S.C.A. § 922(g)(2006) ..................................................................................................5,18,25

26 USCA § 5845(a)(1)(2012) ......................................................................................................20

vi

26 USCA § 5861(b)(2012) ............................................................................................................21

Legislature Materials:

S. 2312, 99th

Cong., 2d Sess. (1986) .............................................................................................29

H.R. 4639, 99th

Cong., 2d Sess. (1986) ...................................................................................29,30

H.R. 4768, 99th

Cong., 2d Sess. (1986) ........................................................................................29

132 Cong.Re. 7697 (1986) ............................................................................................................29

H.R.Rep. No. 99-849 (1986) .........................................................................................................30

H.R.Rep. No. 98-1073 (1984) .......................................................................................................29

Electronic Sources:

The Bureau of Alcohol, Tobacco, Firearms and Explosives,

History of the National Firearms Act, (March 2013)

http://www.atf.gov/firearms/nfa/ ..............................................................................................20

Other Materials:

Office of Enforcement and Programs, Bureau

of Alcohol, Tobacco, Firearms and Explosives,

National Firearms Handbook (2009) ........................................................................................20

1

QUESTIONS PRESENTED

I. Does the fourth amendment prohibit police that are lawfully present to conduct a

protective sweep of a home when no objectively reasonable articulable facts point the

officer to believe a danger to persons on the Premises exists?

II. Congress amended the Armed Career Criminal Act, or 18 U.S.C.A. § 924(e)(2)(B),

broadening the act’s reach while keeping the statute’s crimes enumerated only to

arson, burglary, extortion, and use of explosives. The act’s residual clause only

includes crimes that otherwise present a serious risk to another in order to qualify as a

predicate violent felony. Does Petitioner’s simple possession of a sawed-off shotgun

rise to the level of purposeful, violent, and aggressive conduct, similar in kind the

enumerated crimes?

2

STATEMENT OF THE CASE

Course of Proceedings and Dispositions of Court Below

Roy Hinkley was indicted on one count of being a felon in possession with a firearm in

District Court for the District of North Greene. (R. at 2). In this trial, Hinkley moved to have the

firearm suppressed on fourth amendment grounds and the District Court denied the motion to

suppress. (R. at 2). Hinkley plead guilty to the offense, reserving his right to appeal the denial of

the motion to suppress the firearm. (R. at 2).

The United States Court of Appeals for the Thirteenth circuit held that the motion to

suppress the firearm was valid, but that the District Court erred at sentencing Roy Hinkley under

the Armed Career Criminal Act of 1984. This Supreme Court of the United States of America

granted certiorari on a date not specified in the record.

Statement of the Facts

Roy Hinkley’s (“Hinkley”) first violation of the law took place at the early age of fifteen,

when he was arrested and convicted of first degree burglary in the Superior Court for High Point

County, North Greene. (R. at 3). In that case, Hinkley broke into a neighbor’s house on a dare to

steal an item from the house. (R. at 3). The item that Hinkley stole was a baseball signed by a

famous baseball player Gaylord Perry. (R. at 3). Hinkley waited for the neighbor to leave the

house and when he entered the house, triggered a silent alarm and surrendered to police shortly

after they arrived on the scene. (R. at 3). For this offense, Hinkley was charged as a juvenile for

first degree burglary and given a sentence of three years home confinement with electronic

monitoring. (R. at 3). Hinkley completed this sentence without incident. (R. at 3).

Hinkley earned his Bachelor’s degree in Construction Science and Business

administration and sought to get at Masters in business administration. (R. at 3). Hinkley’s wife

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became pregnant in his first year of undergraduate studies, and he dropped out of school to go

work for his uncle’s construction business to help support his wife and daughter. (R. at 3).

Hinkley’s uncle died after Hinkley became a partner in the business and Hinkley guided the

company through several years of success until the housing market collapsed in 2007. (R. at 3,4).

The construction company struggled to make payroll and Hinkley was unable to pay personal

bills including his family’s insurance premiums. (R. at 4). Hinkley’s daughter was diagnosed

with leukemia in June 2007, and since his family’s insurance policy had lapsed, Hinkley was

faced with independently financing his daughters leukemia treatments. (R. at 4). No insurance

provider would offer Hinkley’s daughter coverage because of her preexisting condition. (R. at 4).

Hinkley soon took drastic measures by burning down his construction business in hopes

of recovering the insurance proceeds to pay his mounting bills. (R. at 4). Hinkley plead guilty to

the charge of arson based on videotape evidence of him leaving the construction business on the

night of the fire carrying a can of gasoline. (R. at 4). The prosecutor and judge sentenced Hinkley

to one year of probation in lieu of jail time so that Hinkley’s wife would not need to take care of

their daughter alone. (R. at 4). Hinkley was forced to close the construction business, and began

work as a real estate agent in order to pay his mounting bills. (R. at 4). Hinkley’s new job paid

substantially less, and in order to save money on rent, he moved to a lowed middle class area of

town where the rent was cheap but the crime was high. (R. at 4).

After a series of burglaries and an armed home invasion, Hinkley became fearful of his

family’s safety and wanted to procure a firearm for home defense. (R. at 4). Hinkley was unable

to purchase a firearm for protection because of his status as a convicted felon. (R. at 4). Hinkley

purchased a 12-gauge shotgun from a friend in order to protect himself. (R. at 4). The friend

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convinced Hinkley to purchase a sawed-off shotgun (16 inch barrel) on advice that the shotgun

would be more easily maneuverable. (R. at 5).

A few days after purchasing the shotgun, Hinkley heard strange sounds coming from

outside of his home and went to investigate the noises while carrying his shotgun. (R. at 5). The

noise being made outside was generated from police officers looking for a burglary suspect, and

one officer Terrence Sanford (“Officer Sanford”) noticed Hinkley’s gun had a shortened barrel.

(R. at 5). Officer Sanford was a former officer with the Bureau of Alcohol, Tobacco, and

Firearms (“ATF”) and recognized that the gun that Hinkley was carrying was illegal to own

without it being registered under the National Firearms Act (“NFA”). (R. at 5). Officer Sanford

approached Hinkley and asked if the gun was registered under the NFA, and the officer soon

discovered that Hinkley was a convicted felon and that the gun was not registered. (R. at 5).

Hinkley was charged with the possession of an unregistered sawn-off shotgun, and plead guilty

to the offense in return for ten years of probation, five years of home monitoring, and no jail

time. (R. at 5).

A mere two months after Hinkley was convicted of possession of a sawed-off shotgun,

Hinkley’s neighbor across the street was shot and killed in a home invasion. (R. at 5). Hinkley

decided that he must purchase a firearm to protect his family, and that since he could not move

out of the neighborhood because of his financial condition, Hinkley believed this to be the most

reasonable way to protect his family from the violence in the area. (R. at 5). On June 1 2011,

Hinkley went to a friend’s property to get proficient at using his .40 caliber pistol he had

purchased for home defense. (R. at 5). Hinkley returned home that night intending to clean the

weapon, and placed it on the counter in his kitchen for this purpose since his wife and daughter

were out of town. (R. at 5).

5

After Hinkley cooked dinner and was sitting down to eat, Officer Sanford knocked on his

door. (R. at 5). Officer Sanford explained to Hinkley that there had been another burglary and

that the description of the burglar matched the description of the burglar who had killed

Hinkley’s neighbor. (R. at 5). Officer Sanford then went on to state that residents in the

neighborhood had seen the burglar flee in the direction of Hinkley’s home and that the police

were going door to door to “ensure that the burglar was not hiding out in any of the homes.” (R.

at 5). Officer Sanford then asked if he could ask him some questions inside because it was

raining so hard outside. (R. at 5,6). Hinkley permitted the officer to come inside out of the rain to

ask a few questions. (R. at 6).

Officer Sanford recognized Hinkley from the previous arrest, and recognized the layout

of the houses in the neighborhood since they were all built on the same basic floor plan. (R. at 6).

Officer Sanford did not believe that Hinkley was the burglar, but did ask Hinkley if he could

look around the house to see if the burglar had broken in to take refuge in Hinkley’s home. (R. at

6). Hinkley refused this request, stating that he had not heard anything out of the ordinary all

night long, that he keeps his backdoor locked up tight, and that he surely would have heard

someone enter since he was awake and aware all night. (R. at 6). Despite Hinkley’s refusal,

Officer Sanford proceeded to perform a sweep of the house as a “precaution.” (R. at 6). Officer

Sanford then opened the closed door into the kitchen and discovered the .40 caliber semi-

automatic handgun on the kitchen counter. (R. at 6). Hinkley was charged with being a felon in

possession of a firearm in violation of 18 U.S.C. §922 (g)(1). (R. at 6).

6

SUMMARY OF THE ARGUMENT

The core of the Fourth Amendment is layered with protections geared to safeguard the

people against unreasonable searches and seizures. Despite the recognition that the amendment

protects people not places, the courts have always recognized heightened protection of the

“home”. The Fourth amendment requires a search of a home to be supported by a warrant that

comports with the probable cause text of the amendment. However, courts have carved out

exceptions to this warrant requirement. These exceptions are rare and stringently reviewed when

implicated to bypass the warrant requirement. When the circumstances of a Fourth amendment

search take place in the “home” of a defendant, the court must stress the importance of

determining the validity of the entry to the home and the validity of the subsequent search. The

determination of the lawfulness of the police entry to a home is crucial to any defendant’s motion

to suppress the evidence obtained from such an entry and search because exclusionary rule

prohibits any evidence obtained from an illegal entry or search from being used against the

defendant in the case against him.

In determining the reasonableness of a search, a court must weigh the individual’s

privacy rights in balance with the government interest in question. In the instant case, because

the search of a home is per se unreasonable, the burden is upon the State to show the exigency of

circumstances outweighed the privacy rights of the individual so as to justify the search of the

home. The validity of entry by the police is undisputed, a restricted consent to enter was granted

to the police. However, upon consent to enter the home, the State must establish that the

circumstances of the situation were such as to justify the protective sweep. Simply, the restricted

consent to enter the property, to escape the rain, coupled with an explicit denial of consent to

search must be outweighed by exigent circumstances or sudden danger once inside. Nonetheless,

7

the officer can neither point to particularized facts that the intended suspect of the search had

entered the home nor can the officer point to particularized facts that the officer was in danger. In

fact, the officer is on the record confirming he felt no threat from the petitioner nor had any

belief the petitioner was the burglar.

Of all the exceptions to the fourth amendment warrant requirement, the consent exception

is arguably the easiest “in” for a police offer to obtain. The allowance of such a warrantless

protective sweep under these circumstances will virtually erase all layers of protection the Fourth

amendment exists to protect. To preserve the life of the Fourth Amendment the court must hold

officers to heightened standard when a warrant is not present.

In early 1980’s, the United States legislature crafted a statute that would give states the

option of implementing a mandatory sentence for criminals convicted of being felons in

possession of a firearm, who have had three prior violent felonies or drug arrests. The three prior

violent crimes could involve the use, attempted use, or threatened use of force against another,

OR be the crime of burglary. This statute became known as the Armed Career Criminal Act.

In 1984, the statute made it through the legislature and went on to enjoy success during

the next year. During amendment proposals in 1986, there was no talk of adding in language

about possessing weapons, other than the “use of explosives”. In 1986, the legislature passed

their amended statute, which added arson, extortion, and use of explosives to the list of

enumerated crimes, and also added a residual clause that would capture “otherwise” potentially

risky conduct to the person of another. This final version of the statute was intended to be narrow

enough to keep up the enumerated crimes prioritized yet broad enough to maintain the spirit of

capturing career criminals.

8

The residual clause and the enumerated crimes has been the bone of contention of circuit

courts in the past twenty-seven years. Courts are split on the best way to apply the enumerated

crimes language and exactly which crimes are potentially risky conduct to the person of another.

Petitioner asks this court to reject simple possession of a sawed-off shotgun as a predicate

violent felony because this crime is not similar in kind to the enumerated crimes, and is not

violent or aggressive enough to fall into the residual clause. To liken an inactive crime like

possession to the enumerated crimes, or to put it into the residual catchall, would be to expand

the language of the statute far beyond its intended reach.

ARGUMENT

I. THE UNITED STATES COURT OF APPEALS’ RULING SHOULD BE

REVERSED BECAUSE THE FOURTH AMENDMENT PROHIBITS POLICE

THAT ARE LAWFULLY ON THE PREMISES TO CONDUCT A

PROTECTIVE SWEEP OF A HOME WHEN NO OBJECTIVELY

REASONABLE ARTICULABLE FACTS POINT THE OFFICER TO BELIEVE

A DANGER TO PERSONS ON THE PREMISES EXISTS.

The Fourth Amendment, in relevant part, protects the right of citizens to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S.

Const. Amend. VI. The cornerstone to a valid search is the reasonableness of that search. The

Supreme Court has stated “searches and seizures inside a home without a warrant are

presumptively unreasonable,” Brigham City v. Stuart, 547 U. S. 398, 403 (1943), the

presumption that a warrantless search is unreasonable may be overcome when “the exigencies of

the situation make the needs of law enforcement so compelling that a warrantless search is

objectively reasonable under the Fourth Amendment,” Mincey v. Arizona, 437 U. S. 385, 394

(1978). In further part, the Fourth Amendment provides “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to be

9

searched, and the persons or things to be seized.” all searches and seizures must be reasonable;

and a warrant may not be issued unless probable cause is properly established and the scope of

the authorized search is set out with particularity. A fundamental definition of probable cause is

explained by Justice Shaw as, “a reasonable ground of suspicion, supported by circumstances

sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of

the offence with which he is charged.” Stacey v. Emery, 97 U.S. 642, 645 (1878) see also Carroll

v. United States, 267 U.S. 132 (1925).

Under the “warrant preference” theory of the Fourth Amendment, the majority of this

court upholds that the Fourth Amendment mandates every search and seizure be authorized by a

valid warrant with the allowance of few narrowly tailored exceptions. In the Supreme Court case

of Katz v. U.S., this court held “searches conducted outside the judicial process, without prior

approval by judge or magistrate, are per se unreasonable under Fourth Amendment, subject only

to a few specifically established and well delineated exceptions.” 389 U.S. 347 (1967). The six

exceptions to the fourth amendment warrant requirement enjoy a lesser standard than that of

probable cause standard in order to justify a police officer’s warrantless search or arrest. Justice

Jackson opined in Johnson v. United States; “The point of the Fourth Amendment, which is often

not grasped by zealous officers, is not that it denies law enforcement the support of the usual

inferences which reasonable men draw from evidence. Its protection consists in requiring that

those inferences be drawn by a neutral and detached magistrate instead of being judged by the

officer engaged in the often competitive enterprise of ferreting out crime.” 333 U.S. 10 (1948)

(emphasis added).

The reasonableness of any(?) fourth amendment search is determined by weighing the

degree to which the search intrudes on the individual’s privacy against the degree to which the

10

search is needed to promote a legitimate government interest. United States v. Knights, 534 U.S.

112 (2001). In determining if a reasonable expectation of privacy has been violated, the Court

uses a two-part test. ;First, whether the defendant has exhibited an actual, subjective, expectation

of privacy, and whether such subjective expectation is one that society is prepared to recognize

as objectively reasonable.” U.S. v. Werra, 638 F.3d 326, 331 (1st Cir. 2011) see also Pruitt, 458

F.3d 483 (2008) (noting that reasonable belief may be generated by consideration of common

sense factors and evaluating the totality of the circumstances).

The issue that exists in the present case is whether or not the expectation of petitioner’s

privacy was violated and if that violation was justified by the consent by which Officer Sanford

entered petitioner’s the home; and whether the suspicions that lead to the subsequent search of

the home, meet the requirements of a valid search in accordance with the Constitution.

A. The Court of Appeals erred in denying petitioner’s motion to suppress by

upholding the officer’s search based on petitioner’s consent to enter and failing

to recognize petitioners refusal to allow search of home.

. Officer Sanford was allowed into the home of petitioner on the night of June 1, 2011

and the State contends the officer obtained consent to enter the home was justified under the

consent exception to the warrant requirement to conduct a protective sweep. As established by

this court, the test of Fourth Amendment implication is one based on reasonableness. The court

in State v. White held, “we must consider whether a reasonable person would have understood

by the exchange between the officer and the consenting party that the defendant actually

consented….That requires a consideration of the particular circumstances of the exchange,

including the substance of the officer’s request” 211 Or. App 210 (2007)(emphasis added). This

objective determination must look into whether or not a reasonable person giving consent would

11

have further understood that the consent given also encompassed authorizing the officer to

conduct the challenged action.

i. Use of coercive tactics to obtain occupant’s consent invalidates the

consent otherwise legally obtained.

Petitioner acquiesced to the officer’s request to enter the home, but the issue in

contention is whether this consent to enter justified the officer’s subsequent search of the home.

The Fourth Amendment prohibits unreasonable searches of a home without a warrant but the

prohibition does not apply to situations in which voluntary consent has been obtained. Illinois v.

Rodriguez, 497 U.S. 177, 181 (1990) The reason for the Officer’s entry in the record was for

Officer Sanford ask a few questions, since it was raining quite hard outside. (R. at 5). Nothing in

this statement suggests that this is a request for consent to search the home. No reasonable

person in a similar situation and circumstance would conclude that the Officer’s request to enter

the home to avoid the rain also implies a request to search the home.

The questions of Officer Sanford could have been asked from where Officer Sanford was

standing on the stoop of the home. Petitioner only consented to his entry to avoid the rain while

he asked a few questions. What can be inferred from the record is that Officer Sanford used the

excuse of the precipitation to simply “find” a way into the home. Logically, Officer Sanford was

already wet so staying outside the home would not change his current state thus there is no

reason to avoid the rain when one has already succumb to it.

The New Jersey Supreme Court in State v. Davilia, in which the court expressed its

concern toward upholding arbitrary protective sweeps following lawful police presence by

stating, “there is too great a potential for a pretextual use of otherwise lawful police presence as

opportunity to conduct a warrantless search of a home…. Those concerns are particularly

relevant where, as in this case, the lawfulness of the police entry is based on consent of the

12

occupant.” 999. A.2d 1116 (2010) (emphasis added). There are no grounds from which the state

may argue that the exchange between petitioner and the officer constituted an understanding that

a reasonable person in similar circumstances, by consenting to an officer to enter to ask a few

questions, also would have been consent to enter for investigatory reasons. 1 The allowance of

such tactics would engender police officers to claim all sorts of reasons to “lawfully” ask an

occupant to enter the home and then use that consent to enter for purposes not encompassed by

the scope of the consent This court must reverse the ruling of the Court of Appeals that the

consent to enter was valid consent to search the home or the fundamental principles of the Fourth

Amendment will effectively disappear.

ii. The authorization to search based on consent can be revoked at any

time by an express statement of revocation or actions that would

objectively illustrate the authorizing party is revoking the underlying

consent.

The authority by which a police officer obtains consent and the scope of such consent for

that matter is specifically restricted to the terms of the consent. However a person is free, after

initially giving consent, to delimit or withdraw his or her consent at any time U.S. v. McWeeney,

454 F.3d 1030, 1034 (9th Cir. 2006) The record states Officer Sanford asked petitioner if “he

could look around the house,” and Petitioner expressly refused this request. Officer Sanford

proceeded to search the home despite this verbal withdrawal of consent. The revocation or

expressed refusal of consent is a clear indication that any subsequent search conducted by a Law

enforcement officer , is in fact unconstitutional search for purposes of the Fourth Amendment. A

1 It remains unknown as to whether or not the practice of asking to enter the home of an un-

involved party to ask questions is a common procedure practiced by the police department.

Department procedures are a leg by which courts will stand on to evaluate the individual conduct

of an officer since these methods ensure uniformity of procedures and prevent rogue officer

action.

13

Fourth Amendment legal maxim states that an officer cannot search for elephant in a matchbox

Restricting searches conducted by law enforcement officers is done to prevent overstepping the

legal boundaries that are set in place to maintain the integrity of the Fourth amendment and

respect for officers of the law. These boundaries aim to ensure that the expectation of privacy the

Fourth Amendment protects is not violated by officers of the law. An officer cannot justifiably

broaden the scope of a subsequent action based on the limited scope of a previous action. The

Court of Appeals improperly concluded that Officer Sanford’s search of the premises was

justified by the consent of the Petitioner and this Court should reverse the lower courts order

denying petitioners motion to suppress.

B. Absent Reasonable, Articulable Suspicion That The Premises In Which Police

Are Present Harbors a Person Posing A Danger To Those On The Premises, A

Protective Sweep Cannot Be Conducted Without A Warrant.

The purpose of such a protective sweep is to protect the safety of the officer who remains

at the scene, and for that reason, the sweep must be limited to a cursory search of the premises

for the purpose of finding persons hidden there who would threaten the officer's safety. U.S. v.

Taylor, 248 F.3d 506, 513-14 (6th Cir. 2001). The protective sweep analysis requires such action

on the basis that a reasonable individualized suspicion exists, rather than generalized suspicion.

The officer may look to circumstances of pre-existing police knowledge that a specific individual

is a dangerous or violent criminal, combined with the surprise once the police are on the

premises. United States v. Gould, 364 F.3d 578, 584 (5th Cir. 2004) (en banc)

In the case of Maryland v. Buie, the Supreme Court of the United States ruled that

protective sweeps are permitted incident to an arrest to protect the safety of the officers from

other dangerous persons inside the house that could unexpectedly launch an attack. 110 S.Ct.

1093 (1990). The court specifically permitted a properly limited search incident to an in home

14

arrest if an arresting officer has specific and articulable facts that support the search for the safety

of the officers and others on the scene. Id. at 1094. The Supreme Court also stated that a search

in the immediate vicinity of the arrestee without a need for a warrant or probable cause is valid.

Id. at 1094. It is important to note that the Court states that this protective sweep is valid incident

to an arrest, but does not state that a protective sweep is accessible to officers in situations where

no arrest is being made or contemplated.

The case of U.S. v. Torres Castro involves similar circumstances as the case currently

under review. In the Torres case, the United States Court of Appeals for the Tenth Circuit held

that protective sweeps are permitted when officers possess a reasonable belief based on specific

and articulable facts which, taken together with the rational inferences from those facts,

reasonably warrant the officer in believing that the area swept harbors an individual posing a

threat to the officer or others. 470 F.3d 996 (2006). The officer that searched the defendants

house was aware of the alleged abusive conduct, and based on this information, went to the

house of the defendant to conduct a “knock and talk.” Id. at 998. The court held that the

circumstances around the arrest of the defendant warranted the officers to perform a protective

sweep to make sure that no hidden threat was lurking in the house. Id. at 999. The officers in this

case already knew of the alleged abuse and had knowledge that the defendant had a weapon in

the house despite the fact that he was an illegal immigrant. Id. at 998. The suspicious activity of

the occupants before the officers knocked on the door, along with all of the other circumstances

made the search objectively reasonable. The court mentions that a protective sweep should

always be based on objectively reasonable suspicion, and should always be done in connection

with an arrest.

15

One of the cornerstone rules established in 4th amendment protective sweep

jurisprudence is set out by the New Jersey Supreme court in State v. Davilia in which the court,

(citing United States Supreme Court case Maryland v. Buie), struck down the validity of a

warrantless protective sweep that subsequently turned up criminal activity on the grounds that

the officers lacked particular suspicion of a certain degree to substantiate a warrantless protective

sweep. 999A.2d 1116, 1129-30 (N.J. 2010) citing Maryland v. Buie 494 U.S. at 336. In Davilia,

officers were (1) investigating a ruthless double murder which occurred in the area; (2) The

murders were committed with a firearm; (3) the murders occurred within the proceeding 48

hours; (4) The murders were committed by several African- American males (which matched the

race of the occupants of the home); (5) The gun used in the murders was missing; (6) The

apartment searched was in the area of the murders; and (7) A telephone connected to the murders

was being used to call the apartment that was subsequently searched during the Police

investigation of murders. Aside from seven different pieces of evidence for police to base a

search on, and consent to enter the home, the Court still found the actions of the police did not

validate a warrantless protective sweep of the home. Id. at 1121. A comparison of the facts in

this case and the one at presently disputed reveals why the circumstances surrounding Officer

Sanford’s suspicion do not justify his protective sweep.

On June 1, 2011 Officer Terrence Sanford was investigating a burglary that had occurred

recently in petitioner’s neighborhood and the description that was given of the burglar by

neighbors matched the description of the suspect that had recently killed petitioner’s neighbor.

The information that Officer Sanford obtained from the neighbors was that the burglar had “fled

in the direction of petitioner’s home” and that the police were going door to door to check and

see if the burglar was hiding out in any of the homes. (R. at 5) This is the only piece of evidence

16

known to Officer Sanford as to the whereabouts of the fleeing suspect. Officer Sanford’s

available evidence to conduct his investigation was limited to (1) knowledge of a murder in the

neighborhood and (2) uncorroborated testimony from a neighbor claiming they witnessed the

supposed suspect run in the “general” direction of petitioner’s home and, (3) prior non-violent

criminal history of petitioner. (R. at 5)

At the time in question, Officer Sanford possessed only a general suspicion rather than

the legally required individualized suspicion. Officer Sanford was aware of petitioner’s criminal

history but this evidence weighs in favor of Officer Sanford’s actions only slightly. Officer

Sanford had no particular individualized suspicion of the fleeing suspect’s whereabouts. See U.S.

v. Werra, 638 F.3d 326, 337-38 (1st Cir. 2011) (Court ruled protective sweep unconstitutional

based on information obtained from a former police informant as to the whereabouts of suspect

in which informant told the officers she had seen the suspect at the residence at some point

“recently”—a term that could refer to days or weeks earlier – and because the information was

uncorroborated).. The general direction of a fleeing suspect only provides a direction for the

officer to start looking and in no way provides any reasonable officer operating under the same

circumstances the particularized suspicion that a suspect would be a particular domicile.

Allowing an officer to pursue an investigation with such minimal evidence, which permits

officers to compromise the expectation of privacy of an area that remains the most sacred of

areas for fourth amendment purposes, would be a dire mistake by this court. Officers would need

only a single general statement by anyone to validate the entrance and top-to-bottom search of

someone’s home. The privacy rights of Hinkley violated in this search by Officer Sanford were

in no way justified by the government interests asserted. Absent any exigent circumstances or

17

corroborated evidence present to Officer Sanford before the search, the fourth amendment

requires that a warrant be obtained to conduct such a search of one’s home.

the record also states Officer Sanford supported his request to search with the notion of

ensuring no one had broken into the home. Upon reassurance by the petitioner that no one had

broken in and that his back door was locked, Officer Sanford’s disregarded these statements by

the petitioner and began his search. If Sanford was there to search for a potential intruder he

could have easily done a quick investigation of the perimeter of the house to see if any windows

were broken or if there were any signs of forced entry. A broken window observed by Officer

Sanford may have provided him the necessary cause for alarm to substantiate a protective sweep

upon his consented entry because he could have then possessed reasonable articulable facts that

pointed to an individualized suspicion that the safety of the occupants was at risk. Without such

evidence, the only two entry points would have been the front and back door which petitioner

personally confirmed remained locked all night long. Officer Sanford’s suspicion could have in

no way risen to the level set out by the courts so much as to point to articulable facts that would

suggest with individualized particularity that the home contained a person that was a threat to the

occupant or the officer.

If the court permits the suppression of the evidence to pass the probable cause step of

analysis, then the court would be allowing a presumptively unreasonable search to take place that

do not fulfill the totality of the circumstances test that the Supreme Court applies to determine if

probable cause existed at the time of a search. The fourth amendment does not support the search

of Hinkley’s residence under the circumstances in this case because of the lack of facts that

support the search of the house based on the stated reason to protect the occupant. While the state

may argue that the search should be allowed because petitioner did permit the officer to enter

18

into the residence initially, the consent to enter does not constitute consent to search. Petitioner’s

express refusal of consent to search the domicile and the lack of articulable facts supporting a

search provide a clear basis as to why the search of petitioner’s home amounted to that of an

unconstitutional violation of petitioners reasonable expectation of privacy as protected by the

Fourth amendment to the Constitution.

II. THE COURT OF APPEALS DECISION SHOULD BE AFFIRMED BECAUSE

POSSESSION OF AN UNREGISTERED SAWED OFF SHOTGUN FAILS THE

BEGAY TEST AS A PREDICATE VIOLENT FELONY.

In 1986, Congress amended and passed the Armed Career Criminals Act (“ACCA” or

“The Act”), which enhances sentences for those deemed to be “career criminals,” more explicitly

felons in possession of firearms. Armed Career Criminal Act, 18 U.S.C.A. § 924(e)(1) (2006).

The Act codifies a mandatory fifteen year sentence for any felon in possession of a firearm who

violates 18 U.S.C.A. § 922(g) and has “three previous convictions by any court” for a “violent

felony or a serious drug offense, or both,” committed on different occasions. Id. Circuit courts

are currently split on the meaning and interpretation of the term “violent felony.” The Supreme

Court of the United States in past years has dealt with interpretation of this term as it applies to

failure to report for penal confinement, driving under the influence, and eluding police in a

vehicle (with the two prior crimes considered not to be violent offenses and the latter construed

to be a violent offense). See Chambers v. U.S., 555 U.S. 122 (2009); Begay v. U.S., 553 U.S.

137 (2008); Sykes v. U.S., 131 S.Ct. 2267 (2011).

The Act defines a violent felony as not only being a crime punishable by more than a

year imprisonment, but one that also “has as an element the use, attempted use, or threatened use

of physical force against” another person (“i”), or is “burglary, arson, or extortion, involves use

explosives, or otherwise involves conduct that presents a serious potential risk of physical injury

19

to another” (“ii”). 18 U.S.C.A. § 924(e)(1)(2)(B). The latter half of part “ii” of the violent

offense definition is referred to as the “residual clause.” Chambers, 555 U.S. at 124. This

“catchall” has been the source of contention and division amongst the circuit courts.

In 2008, the United States Supreme Court in Begay v. U.S. refined the test for

determining whether a crime is a “violent felony” under the provisions of ACCA. Begay, 553

U.S. at 144-45. The first step is consideration of the offense generically, without facts or details

of how the offender committed the act or “how the crime was committed on a particular

occasion.” Id. at 141: see also Taylor v. U.S., 495 U.S. 575, 589 (1990)(courts need only look to

conviction and elements of offense). This step is called the “categorical approach” and takes into

consideration only how the law defines the offense and not how a defendant may have

committed the crime. Begay, 553 U.S. at 141. Parts “i” and “ii” of ACCA are applied to this

generic view of the offense. Chambers, 555 U.S. at 125-6. If the offense does not meet the

requirements of part “i” and is not one of the “enumerated offenses” in part “ii,” then the last

step is to analyze whether the offense falls into the “residual” or “catchall” phrase of part “ii”. Id.

at 127. Thus, if the offense is similar in kind and degree to the enumerated offenses, then the

Court may determine that the offense is a predicate violent felony under ACCA and the

enhanced sentencing rules are applied to sentencing.

The Court in Begay notes that the enumerated cases are all “purposeful, violent, and

aggressive conduct,” defining these crimes as characteristic of armed career criminals, and the

sentencing of which satisfies the spirit of The Act. Begay, 553 U.S. at 144. From this, we are left

with a new interpretation of the ACCA rule; a rule in which one must assess the purposeful,

violent, and aggressive nature of the felonious conduct in order to determine its similarity, in

kind and degree, to the enumerated cases. Id. If the offense is similar in kind and degree of risk

20

posed to the enumerated offenses (considering the purposeful, aggressive, and or violent nature

of the conduct), the offense is a predicate violent felony and ACCA applies to sentencing.

Specifically at issue before this Court is whether possession of an unregistered sawed-off

shotgun is such a purposeful, aggressive, and violent offense, alike in kind and degree to the

enumerated offenses, so that The Act would apply to Petitioner’s sentencing and warrant

imposition of a fifteen year mandatory sentence.

Sawed-off shotguns are regulated under the National Firearms Act (NFA). National

Firearms Act, 26 U.S.C.A. § 5801-5872 (2012). Developed after the repeal of prohibition, the

NFA was intended to regulate firearms considered to be “gangster weapons” and “short barreled

shotguns.” The Bureau of Alcohol, Tobacco, Firearms and Explosives, History of the National

Firearms Act, http://www.atf.gov/firearms/nfa/ (last visited March 3, 2013). State laws may

generally differ on the legality of the sawed-off shotgun, provided that owners comply with the

NFA guidelines. Office of Enforcement and Programs, Bureau of Alcohol, Tobacco, Firearms

and Explosives, National Firearms Act Handbook, (2009). Purchasing NFA-eligible firearms

involves restrictions, which include (but are not limited to) required registration, a background

check, and a tax. Violation of any applicable restrictions is considered a felony with potential

monetary sanctions. Id.

The NFA federal statute defining “firearm” includes a “shotgun having a barrel or barrels

less than eighteen (18) inches in length.” 26 USCA § 5845(a) (1) (2012). A firearm is also “a

weapon made from a shotgun if such weapon as modified has an overall length of less than 26

inches or a barrel or barrels of less than 18 inches in length”. Id. § (a) (2). Further, a “shotgun” is

defined as “a weapon designed or redesigned, made or remade, and intended to be fired from the

shoulder and designed or redesigned and made or remade to use the energy of the explosive in a

21

fixed shotgun shell.” Id. § (d). The NFA penalizes “any person” who “receive[s] or possess[es] a

firearm in violation” of the NFA provisions, who “receive[s] or possess[es] a firearm transferred

to him in violation” of the NFA provisions, or who “receive[s] or possess[es] a firearm which is

not registered to him in the National Firearms Registration and Transfer Record.” Id. § 5861(b),

(c), (d). Petitioner concedes that he was in possession of a sawed-off shotgun in violation of the

NFA rules because he possessed such a firearm without proper NFA procedures. R. at 5.

However, this felony is a far cry from the predicate violent felonies proscribed in ACCA.

Possession of a sawed-off shotgun does not fall within the purview of part (i) of ACCA’s

definition of violent felony because the NFA definition(s) regarding possession of a sawed-off

shotgun does not consider as an element the “use, attempted use, or threatened use of physical

force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). Therefore, part (i) of ACCA’s

test does not apply in our analysis because it is not at issue when considering Petitioner’s

possession of the shotgun “generically.”

Specifically at issue is application of part (ii) of ACCA’s violent felony definition, which

lays out the enumerated crimes and the “residual clause.” Petitioner seeks this court’s affirmation

that possession of an unregistered sawed-off shotgun in violation of the NFA is not a predicate

violent offense that would trigger ACCA for three reasons: first, the Petitioner’s crime is not

similar in kind to the enumerated crimes; second, the Petitioner’s crime is not similar in degree

to the enumerated crimes; and third, there is no legislative history to show that Congress

intended crimes like possession of a sawed-off shotgun to be included under ACCA.

A. Petitioner’s crime is not similar in kind to the enumerated crimes because

Petitioner’s inactive crime involved mere possession.

The enumerated crimes illustrate that the scope of ACCA’s part (ii) covers only similar

crimes, not every crime. U.S. v. Archer, 531 F.3d 1347, 1350 (11th

Cir. 2008). The word “use” is

22

used in the language of the statute to the exclusion of the word “possession.” Begay v. U.S., 553

U.S. at 144. To give effect to the statute is to give effect to every clause and word of the statute,

which is to limit the crimes that the clause covers to those that are roughly similar in kind to the

examples themselves. Id. at 143.

In 2007, the Sixth Circuit court refused to “greatly expand” the enumerated crimes in

ACCA’s (ii) to include “any offense that creates a public risk” when applying ACCA to the

crime of carrying a concealed weapon. U.S. v. Flores, 477 F.3d 431, 436 (6th

Cir. 2007). The

court plainly noted that the enumerated crimes in ACCA do not include “carrying a concealed

weapon” and that “tellingly, the statute provides that the use – rather than the possession – of

explosives is conduct that rises to the level of a violent felony.” Id. The Sixth Circuit interpreted

the issue of possession of weapons as not being a crime that qualifies under the ACCA. The use

(emphasis added) of explosives and not the mere possession of explosives is what qualifies under

the ACCA. Id. The Sixth Circuit rejected stretching the crime of “use of explosives” to include

possession of a firearm, holding that the enumerated crimes involve “affirmative and active

conduct that is not inherent in the crime of carrying a concealed weapon.” Id. This decision

reflects the unwillingness of the Sixth Circuit to stretch the language of ACCA beyond “use,”

which would risk “incongruous results.” Id. at 434.

The Eleventh Circuit similarly noted that carrying a concealed weapon “is a passive

crime centering [on] possession” in distinguishing this crime from the enumerated crimes. U.S.

v. Archer, 531 F.3d 1347, 1351 (11th

Cir. 2008). This is analogous to the Sixth Circuit’s

reasoning in the application of ACCA to mere possession of firearms. The Eleventh Circuit

likened carrying a concealed weapon to drunk driving, an analogy not without logic: both the

crime of possession/carrying a concealed weapon and the crime of drunk driving present a risk of

23

harm but neither of these risks are similar to the crimes enumerated in ACCA. Id. at 1350. The

court noted that the enumerated crimes are included to be illustrative of the types of crimes

intended to be captured by ACCA. Id. Unlike crimes against property or persons, simply

carrying a concealed weapon “is a passive crime centering [on] possession,” not around an

offense aimed at something or someone else. Id. at 1347. While the Eleventh Circuit’s reasoning

in Archer is not identical to that of the Sixth Circuit, both Circuits hold that a crime of possession

is not a close enough match to the enumerated crimes to be captured by ACCA.

Per another Eleventh Circuit holding, possession of a short-barreled shotgun is not even

similar enough in kind to its closest analog, the “use of explosives,” to be captured by ACCA.

U.S. v. McGill, 618 F.3d 1273, 1277 (11th

Cir. 2010); See also James v. United States, 550 U.S.

192, 203 (2007)(crime involves the requisite risk when the risk posed by [the crime in question]

is comparable to that posed by its closest analog among the enumerated offenses”) . This is in

spite of the fact that “Congress treats and regulates explosives and short-barreled shotguns in the

same category in the NFA.” Id. The “stretch” towards “incongruous results” the Sixth Circuit

warned against is likewise rejected by the Eleventh Circuit. This circuit explicitly holds that

possession of a shotgun is not like use of an explosive. Id. at 1279.

In deciding that possession of a short-barreled shotgun fails the Begay similarity test, the

Eleventh Circuit refused to classify the possession of one type of NFA weapon as a violent

felony when “ACCA speaks only to the use of another.” Id. at 1279. The Eleventh Circuit is

unwilling to expand the word “use” to include “possession,” when “possession” has been

excluded from the language of ACCA. The McGill court acknowledges the Archer decision,

recognizing that possession of a sawed-off shotgun is dangerous but notes that “possession of

explosives” was not even included in ACCA’s language. Id. The Eleventh Circuit thus concluded

24

that possession of an outlawed short-barreled shotgun is not similar in kind to the enumerated

crimes. Id.

These decisions are a sample of the circuit courts’ reasoning and all have facts similar to

the facts in the present case. All defendants were arrested and convicted of possession of a

firearm in some manner: whether carrying a concealed weapon or possession of a short-barreled

shotgun in violation of the NFA. Like the defendants in these cases, the Petitioner was convicted

of a crime of possession, not use. R. at 5. This is most like the McGill case, where the Eleventh

Circuit held that the ACCA statute does not capture a crime like possession of a sawed-off

shotgun because the crime of possession is so unlike the enumerated crimes.

Courts are not ignorant to the dangers posed by possessing a gun or any other type of

firearm; however, as noted by the Eleventh Circuit, language including possession of a firearm

was wholly excluded from the language of the statute. The Petitioner readily concedes that his

possession of a sawed-off shotgun, in violation of the NFA’s rules, was unlawful. However,

possession is not comparable to the use of explosives or the “affirmative and active” nature of

the enumerated crimes.

These decisions emphasize the inherent “inaction” of merely possessing a firearm, and

the counter-intuitiveness of likening a crime of possession to a crime of use. There exists a

general reluctance to expand the enumerated crimes to include possession of a firearm when the

language of the statute only explicitly uses the word “use.” This reasoning helps to limit the

scope of the clause to offenses similar to the enumerated crimes, which the Begay court noted

are illustrative of what kind of violent felonies the statute intended to capture. Therefore,

possession of a sawed-off shotgun cannot be deemed similar in kind to the enumerated offenses.

25

B. Possession of a sawed-off shotgun is also not similar in degree of risk to the

enumerated crimes because it is not a purposeful, violent, and aggressive crime.

A crime is a violent crime under ACCA if the crime “otherwise involves conduct that

presents a serious potential risk of physical injury to another.” 18 U.S.C.A. § 924(e) (2) (B) (ii).

The word “otherwise” is meant to refer to a crime that is similar to the listed examples in respect

to the degree of risk the conduct creates. Begay v. U.S., 553 U.S. at 144. To fall within the scope

of the residual clause as a crime of violence, the crime in question must contain “purposeful,

violent, and aggressive conduct.” Id.; Chambers v. U.S., 555 U.S. 122 (2009).

The United States Supreme Court set the standard for crimes in the residual clause in

Begay v. United States. 555 U.S. 137 (2008). The Court decided that driving under the influence,

generically, is not a violent crime under ACCA because, even though the crime may be

dangerous, the crime does not involve “purposeful, violent, and aggressive” conduct like the

enumerated crimes. Id. at 144-145. To allow ACCA’s reach to any crime that is dangerous or

presents a serious risk of physical harm would open up ACCA to crimes “far removed from the

deliberate kind of behavior” the statute was intended to capture. Begay v. U.S., 553 U.S. at 147.

The Court stated that purposeful, violent, and aggressive characteristics are most typical of an

offender who would “point a gun and pull the trigger,” therefore keeping with the spirit of the

statute. Id.

A year later, the United States Supreme Court held in Chambers v. U.S. that failure to

report for penal confinement is not a “violent crime” under ACCA. 555 U.S. 122 (2009).

Holding that such a crime is “a far cry from the purposeful, violent, and aggressive conduct

potentially at issue” of an enumerated crime, the Court conditions that the crime must be as

purposeful, violent, and aggressive as the conduct of using explosives, burgling a dwelling, or

committing arson. Id. at 692.

26

The Eleventh Circuit has already decided the issue of whether possession of a sawed-off

shotgun is a violent felony under ACCA using the Begay analysis. U.S. v. McGill, 618 F.3d

1273 (11th

Cir. 2010). Deciding to the contrary, the Eleventh Circuit notes at length the

“stringent” “registration requirements” that the NFA requires for some firearms, and the

unlawfulness of possession of such an unregistered weapon. Yet there is a decided lack of

aggressive or violent conduct mentioned in the elements of the NFA guidelines. Id. at 1278. The

Court agrees with the argument that “the act of possession does not, without more…involve any

aggressive or violent behavior.” Id. at 1277.

An analysis of purposeful, violent, and aggressive conduct also requires looking at the

crime in question “generically” and separating the crime and its “target offense.” U.S. v.

Whitson, 597 F.3d 1218, 1223 (11th

Cir. 2010). This means separating the crime of conspiracy

from whatever it was that the defendant was conspiring to do. Id. Therefore, although the results

of some potentially violent conspiracy may pose a risk of danger, the Eleventh Circuit examined

the crime in question “alone.” Id. This reasoning led the court to reject conspiracy as a violent

crime: conspiracy without more “confrontation” is not a crime of violence captured by ACCA.

Id.

The crime in question must also be separated from tenuous outcomes. U.S. v. Flores, 477

F.3d 431, 435 (6th

Cir. 2007). The Sixth Circuit noted that the “generic crime of carrying a

concealed weapon” has no indicators of purposeful, aggressive, and violent conduct without

taking the generic reading into an inappropriate, fact-specific context. Id. at 438. See also United

States v. Johnson, 704 F.Supp. 1403 (E.D.Mich. 1989). The court ultimately agreed that carrying

a concealed weapon is not a violent felony because the harm is “not so immediate as to present a

serious risk of physical injury to another.” Id. at 435. Thus, simply possessing or carrying a

27

concealed weapon does not automatically mean a violent outcome. See also U.S. v. Christensen,

559 F.3d 1092 (9th 2009) (statutory rape could involve consensual conduct and thus does not

instantly suggest aggressive or violent conduct that triggers ACCA).

A survey of jurisdictions across the United States affirms that conduct must be “more

confrontational.” Rioting in a prison has been held by the Second Circuit as qualitatively

purposeful, aggressive, and violent. U.S. v. Johnson, 616 F.3d 85 (2nd

Cir. 2010). See U.S. v.

Brown, 629 F.3d 290 (2nd

Cir. 2011) (holding that assault of a corrections officer is a violent

felony); and also U.S. v. Baker, 665 F.3d 51 (2nd

Cir. 2012)(holding that escape from a

correctional facility is a violent felony). The Ninth Circuit has held similarly. See U.S. v.

Lawrence, 627 F.3d 1281 (9th

Cir. 2010) (holding that force must be present and applied

intentionally, implicating action and aggressive conduct).

The factor that unites these separate holdings is that all the cases involve crimes whose

elements are not only active and affirmative conduct, but are also characteristic of violent,

purposeful, and aggressive conduct that is unquestionably “confrontational.” Where there is no

confrontation or implication of confrontation in the elements of the questioned crime, there is no

violent felony.

Petitioner’s activities were concededly unlawful. However much like failure to report to a

correctional facility or conspiracy, Petitioner’s possession of a sawed-off shotgun is not actively

purposeful, violent, and aggressive conduct. Simple possession of a sawed-off shotgun indicates

no purpose, no violence, and no aggression. In fact, looking at the crime of unlawful possession

of a sawed-off shotgun shows no elements of aggressiveness or force. Should this Court use the

Ninth Circuit’s reasoning, like in U.S. v. Lawrence, the marked lack of force in the elements of

the crime would render possession of a sawed-off shotgun nonviolent and ACCA inapplicable.

28

Likewise, should this Court follow the Eleventh Circuit, as in U.S. v. McGill, the lack of the

degree of risk in mere possession of a sawed-off shotgun is inapposite to the risk inherent in the

enumerated crimes. The decidedly non-confrontational nature of, without more, merely

possessing something (in this instance, a sawed-off shotgun) is not with the spirit of The Act. As

well, Petitioner’s possession of the sawed-off shotgun bears only tenuous links to a possibly

violent outcome. Simple possession gives no indication of an inherently dangerous activity such

as arson or burglary.

Therefore, the Petitioner’s crime is unlike the enumerated crimes in degree of risk

because the elements of Petitioner’s crime do not indicate any purposeful, violent, and

aggressive conduct. Because the nexus between possession of the shotgun and a violent, forceful

result is too tenuous and should not be considered, the Court should avoid accepting an

erroneous connection between the two. There is simply no indication of purpose, aggressiveness,

and violence in mere possession.

C. There is no legislative intent to include possession of a sawed-off shotgun as a

violent felony under the Armed Career Criminal Act.

The Armed Career Criminal Act is representative of an effort of Congress to decrease the

number of “career criminals” in the United States by providing mandatory sentencing for such

habitual violators. Taylor v. U.S., 495 U.S. 575, 581 (1990). In 1984, the House Judiciary

Committee Report explained that career criminals are more likely to commit certain violent and

theft-related crimes. H.R.Rep. No. 98-1073, at 1 (1984). The Act was originally intended to

target those criminals by providing that only three prior crimes of robbery or burglary,

considered the “most common violent street crimes,” would trigger The Act’s reach. H.R.Rep.

No. 98-1073, pp. 1, 3 (1984). The Act enjoyed success in the next year and spurred talks of

29

expanding the language of ACCA from just the crimes of “robbery or burglary” so that the

“sweep” of ACCA would be more “effective.” 132 Cong.Re. 7697 (1986).

In 1986, two bills were proposed for that expansion that would amend ACCA’s terms to

those that we presently use today. Taylor v. U.S., 495 U.S. at 583. The first bill (“4639”) was a

broad approach that would encompass any crime whose elements were “the use, attempted use,

or threatened use of physical force against the person or property of another,” or any felony that

involved a substantial risk of physical force against the person or property of another used in the

course of committing the offense. S. 2312, 99th

Cong., 2d Sess. (1986); H.R. 4639, 99th

Cong.,

2d Sess. (1986). Contrarily, the second bill (“4768”) only contains language that would capture

“any State or Federal felony that has as an element the use, attempted use, or threatened use of

physical force against the person of another.” H.R. 4768, 99th

Cong., 2d Sess. (1986).

Opponents of the narrow approach criticized proposition bill 4768 for lack of reaching

“crimes against property” as the broad approach had. Taylor v. U.S., 495 U.S. at 586. Opponents

of the broad approach criticized bill 4639 for “lack of prioritizing” offenses and for being overly-

inclusive. Id. Much debate between the two approaches centered on “what violent felonies

involving physical force against property should be included in the definition of violent felony.”

H.R.Rep. No. 99-849 (1986). A bill introduced that would have restricted the predicate offenses

to crimes involving violence against persons was rejected. Id. Ultimately, a compromise bill

(“4885”) was reached that would include the “use, attempted use, or threatened use” language as

well as the residual clause. Id. The question of which felonies against property should be

included in part (ii) was answered with burglary, arson, extortion, and use of explosives: crimes

that the Subcommittee agreed represent State and Federal crimes against property, which also

present a risk of harm to others. Id.

30

The absence of possession of a sawed-off shotgun from the discussion and its exclusion

from the language of ACCA is significant. The lack of crimes of possession suggests that

Congress likely had no intention of including them. The statutory canon of construction

“expressio unius est exclusio alterius” helps to interpret this exclusion. The Supreme Court of the

United States asserts that this rule applies when items in an “associated group or series” creates

the inference that items not mentioned were intentionally excluded. Barnhart v. Peabody Coal

Co., 537 U.S. 149, 168 (2003). This means that language that was not included was purposely

excluded when the included terms are part of a group or series.

The discussions of which terms to include and which terms to exclude in the amended

1986 Armed Career Criminal Act indicates that Congress was taking into consideration the most

efficient manner of expanding the language of ACCA. The prospect of adding all crimes that

may cause injury to people was proposed and rejected by Congress. The knowledge of firearms

and their inherent dangerousness were known to Congress during re-drafting. Congress had

opportunity to add crimes of possession, such as Petitioner’s possession of a sawed-off shotgun,

but they did not. Mentioned during planning was that “crimes against property which are

inherently dangerous…should be considered as predicate offenses”. Possession of a sawed-off

shotgun is not a crime against property like arson or burglary. Furthermore, if Congress had

intended possession of a sawed-off shotgun, or possession of any type of weapon, they would

have included that language.

Utilizing expressio unius est exclusio alterius, none of the enumerated crimes are similar

to a crime of mere possession, nor is a crime of possession implicated in the residual clause. A

reading of House Reports shows that Congress did not seriously consider including possession of

a weapon in the language of ACCA during their lengthy discussions of amendment; as well, the

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lack of a crime of possession in the series of crimes indicates that such a crime was intentionally

left out.

Therefore, there is no legislative history for inclusion of possession of a sawed-off

shotgun in the language of ACCA, nor can we add such a crime faithfully applying our canons of

construction. The decision of the Court of Appeals must be affirmed because it is in accord with

legislative intent and follows the principles of statutory cons

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CONCLUSION

The ruling of the United States Court of Appeals in affirming the denial of Petitioner’s

motion to suppress the search of his home must be reversed because there exists no reasonable,

articulable facts that indicate there was a danger inside the Petitioner’s premises. The consent

that Petitioner granted for Officer Sanford to enter his home did not include consent to search the

Petitioner’s home. There was no warrant, no consent to search, and no facts that would warrant

Officer Sanford’s “protective sweep”. This altogether means that the Officer’s search violated

the 4th

Amendment and that the denial of Petitioner’s motion to dismiss the search was improper.

Even if this Court were to find that the search of Petitioner’s home was proper and that

Petitioner was a felon in possession of a firearm, the Petitioner does not qualify for mandatory

sentencing under the Armed Career Criminal Act. The Act’s reach only goes towards crimes

similar to the enumerated crimes or crimes that are purposeful, violent, or aggressive.

Petitioner’s prior conviction for possession of a sawed-off shotgun cannot qualify as either of

these types of crimes. Possession is an inactive crime which does not necessarily involve any

use, and is not similar in kind to any of the enumerated crimes. As well, merely possessing a

sawed-off shotgun is not purposeful, aggressive, or violent.