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Docket No. 14-1107
In the Supreme Court of the United States
December Term 2015 ________________________________________________________________
Ben Carter,
Petitioner,
V.
United States of America,
Respondent.
________________________________________________________________
On Writ of Certiorari to the United States Court of Appeals for the Thirteenth Circuit
________________________________________________________________
BRIEF OF PETITIONER BEN CARTER ________________________________________________________________
ORAL ARGUMENT REQUESTED
Attorney for Petitioner Malik Price, Cedric R. Jones, and Ben Carter.
To the Honorable Justice of the West Virginia Thirteenth Circuit Court of Appeals
Lucy LegalLegal Law Fir,100 BD AvFairmont, WV 26554
TABLE OF CONTENTS
TABLE OFAUTHORITIES.................................... ii ASSIGNMENTS OF ERROR................................... 1
STATEMENT OF THE CASE.................................. 1 SUMMARY OF THE ARGUMENT................................ 10
STATEMENT REGARDING ORAL ARGUMENT AND DECISION......... 13
ARGUMENT............................................... 13
I. THE POLICE SEIZED MR.BEN CARTER BY USING DEADLY FORCE WITHOUT PROBABLE CAUSE BY SHOOTING HIM IN THE LEG. THIS ILLEGAL SEIZURE DIRECTLY LED TO THE DISCOVERY OF THE CONTENTS OF THE BACKPACK IN MR. CARTER’S CAR, AND THE FOURTH AMENDMENT MANDATES THE SUPPRESSION OF THE EVIDENCE BECAUSE IT IS FRUIT OF THE POSIONOUS TREE, THE CHARGES AGAINST MR. CARTER BE DISMISSED....................................... 14
A. The police illegally seized Ben Carter by shooting him................................................ 14
B. There was no evidence that would justify the police using deadly force against carter. There had been no indication that carter had a weapon or he took part in any crime............................. 18
C. The evidence found in Carter’s backpack recovered only because the police shot and wounded Carter..... 23
II. THE RULING OF THE LOWER COURT SHOULD BE REINSTATED BECAUSE AGENT HOLDER VIOLATED MR. CARTER’S DUE PROCESS RIGHTS............................................... 25
Conclusion................................................ 26
Certificate of Service.................................... 27
i
TABLE OF AUTHORITIES
Bailey v. United States , 134 S. Ct. 484, 187 L. Ed. 2d 327, (2013 U.S.) ..................................... 19
Brower v. Cnty. of Inyo, 489 U.S. 593,(1989).......... 16-17
Brown v. Illinois, 422 U.S. 59, (1975)................ 23
California v. Hodari D., 499 U.S. 621, (1991)......... 14,17
Carr v. Tatangelo, 338 F.3d 1259 (11th Cir. 2003)..... 16
Cole v. Bone, 993 F.2d 1328, (8th Cir. 1993) ......... 13
Nelson v. City of Davis, 685 F.3d 867(9th Cir. 2012).. 16
Ornelas v. United States, 517 U.S. 690, (1996)........ 13
Pruitt v. City of Montgomery, 771 F.2d 1475(11th Cir. 1985)...................................... 18 Reichman v. Harris, 252 F. 371, (6th Cir. 1918)....... 22
Rodriguez v. Passinault, 637 F.3d 675 (6th Cir. 2011). 16
Sibron v. New York, 392 U.S. 40 (1968)................ 20
Tennessee v. Garner, 471 U.S. 1,(1985)................ 18,20
United States v. Black, 733 F.3d 294, (9th Cir. 2013). 14,25
United States v. Russell, 411 U.S. 423 (1973).......... 25
ii
ASSIGNMENTS OF ERROR
1. The defendant’s rights were violated under the Fourth Amendment
of the United State Constitution
a. The shooting of Mr. Carter caused him injury; therefore,
Carter was not able to exercise his free will to end the
encounter on his own.
b. There had been no indication that Carter had a weapon or
he took part in any crime.
c. The evidence found in Carter’s backpack was recovered only
because the police shot and wounded Carter.
2. The police did not have the evidence that would justify the use
of deadly force against Mr. Carter.
STATEMENT OF THE CASE
In May 2009, the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF), began working on a project entitled Operation
Gideon. Operation Gideon was a set of reverse-sting operations
that were supposed to find and arrest individuals who were
committing violent home robberies of houses where drugs were
stashed in many of the area’s residential neighborhoods. (Tr. p.
2-3) ATF felt that this was a safer way to arrest suspects before
they actually reach the drug stash houses.
In August 2012, the ATF agents set up numerous reverse-sting
operations in the Apate metropolitan area. These reverse-stings
were a result of the increased number of violent criminal
activities during the summer months in this area. The majority of
the ATF’s operations were in the City of Green Ridge, which was
the largest, most racially diverse area. The city has an
overwhelming majority of black residents.
On March 8, 2013, the Confidential Informant (CI) went to a
block party located on the Southside, Green Ridge, where he was
supposed to meet people to commit home invasion robberies as per
the orders given to him by the ATF Special Undercover Agent,
Antonio Miller. (Tr. p. 4) The CI approached Defendant Malik
Price at the block party and asked him if he wanted to be a part
of a big payday. (Tr. p. 4) Malik indicated that he was willing,
and that was when the CI told of the plan to rob the stash house.
Malik thought the CI’s plan was funny and he walked away. Later,
Terrance Price approached the CI and wanted to know if he had any
information on good “come ups.”(Tr. p. 5) That was when the CI
told Terrance he had a friend with information about a house that
had some good drugs. The CI went on to ask Terrance if he would
be interested in getting a crew together to rob the house. They
would each get $500,000 after all of the drug money was divided.
(Tr. p. 5)
On March 12, 2013, Miller, Terrance and the CI had a meeting
at a diner on the outskirts of the city. (Tr. p. 5) Miller gave
Terrance the plan to rob the stash house. Terrance agreed to get
a few people together and they all would meet up again before
committing the robbery of the stash house.
On March 19, 2013, Terrance had a second meeting with Miller
and the CI outside a thrift store in Southside, Green Ridge. (Tr.
p. 5) This time Terrance had brought his friend, Cedrick R.
Jones. They had described to Miller several plans they had to rob
the house, but Miller was not okay with any of plans that the
crew had devised. Miller told them to rethink their plans and to
get more people to be a part of their crew. Terrance then
proceeded to see if Miller had weapons that they could use in the
commission of the robbery. Miller indicated that he did not, but
he questioned their intentions to carry out an armed robbery of
the drug stash house.
On March 22, 2013 they had a third meeting, and this time
Terrance brought his friend, DeAndre Ingram. (Tr. p. 5) Terrance
told Miller this was not his friend, Tinderman, but he was just
as good at getting the materials needed to commit the robbery.
(Tr. p. 5) Terrance bragged to Miller about Ingram’s bank
robberies and all of the weapons that he had. Ingram insisted on
knowing the address of the stash house and the layout of the
house before he would agree to take part in the robbery. Miller
called his fake drug boss and gave the crew the address of the
house as well as the layout of the house. The crew agreed to
commit the robbery in two weeks when the big shipment of drugs
was due to be moved. Miller’s only job was to unlock the front
and back doors as he entered the house to get his drugs.
On April 4, 2013, at approximately 8:35 a.m., Agent Miller
once again met up with Terrance and Jones outside of the thrift
store. (Tr. p. 6) This time Terrance brought along his brother,
Malik. At 8:45 a.m., Ingram pulled up in an unmarked white van.
(Tr. p. 6) He ordered everyone to get inside. The crew would
spend the next hour discussing the plan that they had for the
robbery. Around 10:00 a.m., the crew along with Miller, left the
park and began the drive north toward the stash house. (Tr. p. 6)
Within five miles from the house Miller had Ingram pull the van
over. They were waiting for the dealer’s phone call.
At 10:40 a.m., Miller received a phone call. He stepped out
of the van to take the call. (Tr. p. 6) When Miller was
approximately twenty feet away, a number of ATF agents rushed in
and threw a stun grenade at the driver’s side of the van. Shortly
after the grenade exploded, Terrance came out of the van from the
passenger’s side of the van with a pistol. Terrance turned the
gun on the ATF agents and shot a number of times before he was
critically wounded. One of Terrance’s shots hit ATF agent, Sarah
Nelson, in the back and severed the lower section of her spinal
cord. She was left paralyzed from the waist down. (Tr. p. 6)
Before the ATF agents could take the crew into custody
Ingram stepped on the gas and fled the scene with Jones and
Malik. (Tr. p. 6) Ingram led ATF agents and the local police on a
two mile chase through neighborhoods before he crashed the van
into an electrical pole going 50 mph. (Tr. pp. 6-7) Ingram died
on impact of the crash and Jones and Malik were seriously
injured. ATF agents searched the van and found items hidden in
compartment located in the trunk. ATF agents found numerous empty
duffel bags and one full of weapons, a large wrench, and a box of
red T-shirts with bandanas.
The local police informed the ATF agents that an anonymous
caller reported seeing two suspicious males loitering on the
street corner near the fake stash house. (Tr. p. 7) The caller
described that the men were wearing baggy clothes and hoodies
that covered their whole faces; he also said that they had been
on the street corner for more than thirty minutes. The caller
went on to state that one of the men had a large backpack and was
frequently fidgeting with something in one of his pockets.
ATF Agents Holder and Martin went to the scene and
investigated the report of the two suspicious males. The agents
drove to the fake stash house. They were wearing jackets with
“ATF Special Agent” printed on the front and back of the jackets.
(Tr. p. 7) As the ATF agents were heading toward Garden Street,
they saw two men dressed in gray hoodies and jeans standing on a
street corner looking in the directions of the so called stash
house. The agents had parked their cars about 150 feet behind the
suspects and walked up to the suspects and asked them “what’s
going on gentlemen?” (Tr. p. 7) The suspects looked at the agents
and began running away from the stash house. Holder yelled
“Federal Agents! Stop and put your hands up!” (Tr. p. 7) The
suspects did not listen and kept running. The agents began to
chase after the suspects on foot.
After pursuing them for about 600 feet, Michael Robey
stopped and pulled something out of his pocket and pointed the
item in the air. Then Mr. Robey turned towards the agents, with
his hands up in the air. The suspect said, “This is a fake gun,
please don’t shoot me!” (Tr. p. 7). The ATF agents pulled their
guns and yelled at him to drop his weapon. The man went to place
the object on the ground, but pointed in the agent’s direction as
he was placing it on the ground. Holder shot this suspect in the
chest, later they would learn that this man’s name was Michael
Roby. (Tr. p. 8) ATF agent Martin called for backup while Holder
went after the other suspect.
Holder continued chasing the suspect with the backpack for
700 feet. (Tr. p. 8) Holder identified himself as an ATF Agent
and ordered the suspect to stop, but the suspect kept on running.
When they were approximately twenty feet from the car, the
suspect slowed down and peered over his shoulder at Agent Holder,
then reached into his pocket for something. Holder reacted and
shot at the suspect three times. The suspect was hit and he
screamed out in pain and began limping; he continued to pull the
object which was his car key from his pocket. The suspect made it
to his car and fled. Holder radioed ATF and the local police
about the suspect escaping and provided a description of the car
in which he fled. There was no sight of the car until 3:45 p.m.
when a local police officer found a car matching the description
of Mr. Carter’s in a ditch along the road. (Tr. p. 8) The police
officer approached the car and the only thing that he saw was
that both seats were covered in blood.
The car keys were still in the ignition and the officer
turned the car over to see if it was still working. The car was
in working condition and had over half a tank of gas. The officer
found the suspect’s opened backpack in the back seat which the
contents were scattered all over the back of the car. Some of the
contents that found were two vodka bottles, a small gas canister,
a butane lighter with the name “Tinderman” engraved on it, and
plain paint rags. It was later determined that the car was
wrecked within approximately two miles of the stash house. (Tr.
p. 8)
Ten hours later the local police received a phone call from
an ICU nurse at a local hospital reporting that there was a
patient at the hospital that matched the description of their
suspect. (Tr. p. 9) The nurse reported that the suspect had two
bullets in his right leg and was suffering from a great deal of
blood loss. ATF agents identified the man as the suspect.
The suspect was arrested twenty-four hours after he came out
of surgery. He was read his Miranda Rights and the agents got a
very clear statement that the suspect understood the rights as
they were read to him. The ATF agents began questioning him. The
man stated his name was Ben Carter and he was in Apate was for
business. Carter then went on to indicate that he felt the police
were crazy for shooting him because he was not armed. The ATF
agents went on to ask Carter about Terrance and the robbery crew.
He denied knowing any of them, on about the robbery plan. One of
the ATF Agents then proceeded to ask Carter about the lighter
with the name Tinderman on it and the black backpack; then asked
for an attorney.
The defendants were arrested and charged with a number of
federal crimes, including the possession of twenty-five kilograms
of cocaine with the intent to sell, possession of firearms in
connection with drug trafficking, murder, and conspiracy to
commit arson. On April 30, 2013, Ben Carter moved to suppress the
contents of his black backpack based upon unlawful search and
seizure. (Tr. p. 9) Carter argued that the ATF agents used deadly
force to contain him, which made the discovery of his backpack
contents fruit of the poisonous tree, are subject to exclusion
under the Fourth Amendment. On May 2, 2013 the defendants moved
to have their indictment overturned under the entrapment
provision set forth in the Fifth Amendment. (Tr. p. 9) On May 29,
2013 the Court heard arguments on the motions. The Court found
for the defendants on both motions. (Tr. p. 2) All of the
defendants in this case were immediately released from custody.
The Thirteenth Circuit Court reversed the lower court’s
decision. The Thirteenth Circuit Court ruled that the defendants’
Fourth and Fifth Amendment rights were not violated. The
defendants were taken back into custody. The defendants in this
case petitioned for Writ of Certiorari, which was granted.
SUMMARY OF THE ARGUMENT
This Court should find in favor of the defendants, reverse
the Thirteenth Circuit Court, and reinstate the ruling of the
District Court. District Court correctly found: 1) the ATF Agents
and Police did seize the defendant, Ben Carter, after Agent
Holder shot him in his right leg; 2) the agents had no probable
cause to seize defendant Carter, nor did they have probable cause
use deadly force; and 3) the illegal seizure by the use of deadly
force lead to discovery the contents of the backpack in of Mr.
Carter’s car.
When a police officer or government agent decides that it is
necessary to use force against a suspect, it is considered a
seizure. Any action that does not allow a person to be able to
walk away from a situation is also considered a seizure. Under
this rule, when Agent Holder decided to shoot Mr. Carter in the
right leg it limited his ability to walk away from the situation;
therefore, his freedom to leave was limited, which constituted a
seizure.
In the case against Ben Carter, there was no real probable
cause to use deadly force to seize him. Neither the police nor
the ATF agents observed or received any reports that the
defendant, Carter, or his friend were taking part in any criminal
activity. The ATF agents in this case received an anonymous tip
that stated that Mr. Carter and his friend were standing on a
sidewalk close to the so-called stash house. Agent Holder never
saw Ben Carter possess a weapon, nor observed him taking part in
any criminal activity. Mr. Carter did not show any signs of
belonging to any area gang. In this case, there existed no
probable cause to seize Carter and, if one did exist, there was
no cause for the ATF agents to use deadly force against the
defendant. In order for the police to use deadly force against a
suspect, there needs to be some evidence that the suspect
committed a crime and that the suspect was a danger to the public
at large or law enforcement. Nothing in the actions of Mr. Carter
indicated that there was probable cause for Agent Holder to use
deadly for to stop him.
The wrongful shooting of Mr. Carter led to the police being
able to discover the contents of his black backpack in the
backseat of his car. Mr. Carter had crashed his car due to the
pain and blood loss he was experiencing after being shot by Agent
Holder. The only reason police were able to discover the contents
of Carter’s backpack was because they found it at the site where
he had crashed his car. It was the crash that led to the improper
seizure by ATF agent Holder. The Fourth Amendment to the United
States Constitution states that evidence discovered by illegal
seizure will be suppressed. No other evidence exists against Mr.
Carter; therefore, the charges against him must be dismissed.
The ruling of the Thirteenth Circuit Court must be
overturned because it is so was shocking and so outrageous that
it violated justice for the defendants. The police and government
agents are supposed to target criminals and prevent crimes. In
this case, the ATF agents overstepped their role in law
enforcement. They set up a situation that would lead to the
arrest of the individuals they had convinced to take part in this
set up.
The ATF Agency in this case created a situation that allowed
individuals who were living at the poverty level to make some
fast cash. The agents looked for individuals to carry out the
crime of robbery of a stash house that they had set up. The
decision to use the area of Green Ridge was based on the
information that the agents had received from an informant. This
informant did not know anything about the area except that the
area was poor.
ATF Agent Miller used the robbery crew members’ economic
status to persuade them into taking part in the robbery of the
stash house and to get them to create a plan on how they were
going to carry out the robbery. It was the living conditions of
the crew that caused them to want to take part in this robbery,
and ATF Agent Miller kept reminding them of the large sums of
money that each of the members would receive once the job was
completed. Agent Miller took part in the initial planning of the
robbery of the stash house, provided resources, and his actions
used against the crew was a form of entrapment.
Stash house robberies create a danger for the public at
large. These types of stings cause harm to not only the
individuals involved but also to innocent bystanders. Those who
were involved in this reverse-sting operation would not have even
attempted to commit a robbery if it were not for the persuasion
from Agent Miller. Therefore, the case against the all of the
defendants needs to be dismissed on the grounds that their Fifth
Amendment rights were violated.
ARGUMENT
I. THE POLICE SEIZED MR.BEN CARTER BY USING DEADLY FORCEWITHOUT PROBABLE CAUSE BY SHOOTING HIM IN THE LEG. THIS ILLEGAL SEIZURE DIRECTLY LED TO THE DISCOVERY OF THE CONTENTS OF THE BACKPACK IN MR. CARTER’S CAR, AND THE FOURTH AMENDMENT MANDATES THE SUPPRESSION OF THE EVIDENCE BECAUSE IT IS FRUIT OF THE POSIONOUS TREE, THE CHARGES AGAINST MR. CARTER BE DISMISSED.
A. THE POLICE ILLEGALLY SEIZED BEN CARTER BY SHOOTING HIM .
In the case of California v. Hodari D., 499 U.S. 621,(1991)
the Court held the word 'seizure' means the putting of ones hands
or the application of physical force to restrain movement.
California v. Hodari D., According to Hodari, a person may be
seized with the use of little force or just the touching of a
suspect. Hodari D. 499 U.S. at 625. A Tennessee statute provides
a clause wherein, if after a police officer has given notice of
an intent to arrest a suspect and the suspect flees then the
officer may use all necessary means to arrest the suspect. The
Court in Tennessee v. Garner, 471 U.S. 1, 7 (1985) held that when
an officer hinders the suspect from being able to walk away, he
or she has seized the suspect.
In the case Tennessee v. Garner, a Memphis police officer
was acting under the statute when he shot and killed Garner's son
after he was told to stop. The victim’s father brought the suit
against the police alleging that his son’s constitutional right
were violated when the officer shot Garner. The Sixth Circuit
Court found that the officers’ actions were constitutional. The
Court of Appeals reversed the District Courts decision. When
appealed to the Supreme Court the court held that the Tennessee
statute was unconstitutional in that the use of deadly force
against a suspect that is not dangerous, and who is fleeing, is
not necessary. When a police officer shoots a suspect that is
running away, it is a seizure by the use of deadly force that is
in accordance with the reasonable requirement that is contained
within the Fourth Amendment of the United States Constitution.
In the present case the police employed the use of deadly
force to seize Ben Carter by shooting him in his leg multiple
times. The use of deadly force by the ATF Agent denied Ben Carter
his freedom to leave a situation that would have resulted in his
illegal arrest by ATF Agent Holder. In the case against Mr.
Carter, ATF Agent Holder had no probable cause to be chasing
after him, nor was there evidence that Mr. Carter was doing
anything that would be considered illegal.
The Thirteenth Circuit Court concluded that the ATF Agent
was just trying to seize Mr. Carter. Even though Agent Holder
employed the use of deadly force to stop Mr. Carter, he managed
to get away. Therefore, that led to the Thirteenth Circuit Court
to rule that there was no true seizure of Mr. Carter. The Circuit
Court should have but did not rely on the ruling in the case
Brower v. Cnty. of Inyo, 489 U.S. 593, (1989). In the Bower case
the court determined that anything that placed a limit on a
suspect’s freedom was a form of a seizure. The language used in
Brower v. Cnty. of Inyo, 489 U.S. 593, (1989), declared that if a
government agent or a police officer shoots a citizen, it is a
form of seizure by law enforcement agents. In the case of
Rodriguez v. Passinault, 637 F.3d 675 (6th Cir. 2011), the Court
held that even if a suspect is not hit by police bullets, the
suspect is still seized, which goes with the wording of the
Fourth Amendment to the United States Constitution. In Nelson v.
City of Davis, 685 F.3d 867 (9th Cir. 2012), a citizen was hit in
the eye with a pepper spray bullet (plastic bullets filled with
pepper spray), the Court determined that the citizen was seized.
Also in Carr v. Tatangelo, 338 F.3d 1259 (11th Cir. 2003), the
Court ruled even if a citizen was hit by a bullet and still able
to get away, the suspect was still seized.
Even when suspects or citizens are hurt and are still able
to get away from law enforcement government agent, they are still
seized. The Fourth Amendment of the United States Constitution
does not require a person to be totally immobile to be seized. We
learn from Hodari D., 499 U.S. at 625–26 the slightest touch is
considered a seizure. When the slightest touch is used there
still leaves a possibility for the suspect to be able to escape
because they are not total restrained. The slightest touch
hinders the freedom of movement of the suspect. The Thirteenth
Circuit Court inaccurately relied on the rule of seizure to find
against Mr. Carter.
In the Bower case, Bower was attempting to flee from the
police when the police side swiped his car, causing the suspect
to crash his car. The Bower case contained, the o side swiping
of the suspect’s car by the police was a way that the suspect's
freedom of movement was hindered and constituted a seizure.
Brower, 489 U.S. at 596–597. Even after the police had stopped a
suspect’s vehicle from working, the suspect still may or may not
be able to flee from the police on foot. However, the Court
ruled that if a police officer hinders a suspect’s car from
working that is enough, under the Fourth Amendment, to be
consider a seizure. The slightest touch or the damage to a
suspect’s vehicle is enough for the courts to rule that the
suspect was seized.
When an officer tackles a suspect there is still a chance
that the suspect will be able to flee from the officer. However,
in the case where an officer shoots an individual, such as was
the case with Mr. Carter, the ability to freely leave the
situation has been altered. In Mr. Carter’s case, once he was
shot, he did not have complete ability escape. If a suspect’s
ability to freely escape has been hindered in any way, under the
Fourth Amendment, it is considered a seizure. In Mr. Carter’s
case, even though he was able to get away from ATF Agent Holder,
he was still considered seized. Therefore, it can only be
concluded that Mr. Carter was seized when shot by Agent Holder.
B. THERE WAS NO EVIDENCE THAT WOULD JUSTIFY THE POLICE USING DEADLY FORCE AGAINST CARTER. THERE HAD BEEN NO INDICATION THAT CARTER HAD A WEAPON OR HE TOOK PART IN ANY CRIME.
The Fourth Amendment to the United States Constitution
establishes when deadly force can be used. In Tennessee v.
Garner, 471 U.S. 1, (1985) the Court held the police or
government official were only to use deadly force when the
suspect in question is creating a threat not only to the officer
but also the general public. Also in Pruitt v. City of
Montgomery, 771 F.2d 1475 (11th Cir. 1985)the Eleventh Circuit
Court determined that an officer should not employ the use of
deadly force unless the suspect in question has a weapon or the
officer believes that there is enough probable cause to suspect
that the offender has a weapon. In Mr. Carter's case, Agent
Holder did not have any probable cause to use deadly force to
attempt to seize the defendant. Agent Holder and Martin received
a report from an anonymous caller who reported two suspicious
looking males standing on a public street near the stash house.
There was no reason to believe that these two individuals had
committed any crime. The agents were relying on an
unsubstantiated tip from an anonymous caller. There was nothing
to show that Mr. Carter had done anything illegal.
The Court in Bailey v. United States, 134 S. Ct. 484, 187 L.
Ed. 2d 327,(2013 U.S.) concluded that an officer of the law must
have probable cause to believe that the suspect had actually
committed a crime. In Mr. Carter's case, ATF Agent Holder relied
on reports from an anonymous caller, and when he came upon Mr.
Carter and his friend, they were just standing on the sidewalk.
Agent Holder in this case had no probable cause to suspect that
Mr. Carter had committed a crime. Mr. Carter had the right to
leave the situation. Since there was no probable cause that Mr.
Carter had committed a crime, he was free to leave and he was not
under any obligation to follow the commands of Agent Holder.
In Sibron v. New York, 392 U.S. 40 (1968), the Court
determined the flight of a suspect is not probable cause for a
seizure. "Specific knowledge on the part of the officer relating
the suspect to the evidence of crime" is required, and here it
was lacking since no evidence existed that Mr. Carter committed
any crime at all. Id. at 66. Therefore, there was no
justification for Agent Holder to use deadly force to seize Mr.
Carter. When Agent Holder decided to use deadly force to stop
Mr. Carter, he grossly stepped over the line of probable cause
that the Fourth Amendment established. The Garner case determined
that, when a police officer shoots an unarmed suspect, the
officer had in turn violated the suspect’s Constitutional Rights
under the Fourth Amendment. Garner, 471 U.S. at 3. In Garner, the
Court focused on the facts that the police officer saw Garner
with a weapon. Id. at 22. Even the fact that Garner was in the
commission of night time burglary, the Court ruled that the
officer had no probable cause to use deadly force on Garner
because there was no evidence that the officer or the general
public was in any danger. Id. at 21. Garner describes the concept
that the suspicion that a citizen might be dangerous is not
enough to justify the police or government agents shooting that
citizen.
When comparing the Garner case with Mr. Carter's case, it is
clear that there was substantially less evidence that Mr. Carter
was a danger to the general public or the ATF Agent. Mr. Carter
did not have any weapons in his possession, nor did he make any
threats against the public or ATF Agent Holder. Mr. Carter simply
just began running away from Agent Holder. Agent Holder did not
possess any evidence, nor was there evidence at the scene that
Mr. Carter had committed a crime. There was no reason that Agent
Holder should have used deadly force, which resulted in injury of
Mr. Carter. The finding in Garner is that the officer violated
Garner's Fourth Amendment Rights. Based upon Garner, Mr.
Carter’s Fourth Amendment Rights were violated by Agent Holder.
The government may argue that after the Agent shot Michael
Roby, Mr. Carter fled, and then reached swiftly into his pocket,
probable cause existed. (Tr. P. 8). The first flaw in the
government’s argument is that the agents had no reason to believe
that Mr. Carter was attempting to pull a weapon from his pocket.
Maybe if the agents or police had seen Mr. Carter with a weapon
earlier, or the anonymous caller told the police that they had
seen Mr. Carter with a weapon, then the shooting would be
justified. If there was some reasonable indication that Mr.
Carter rather than his friend Michael Roby was armed, the use of
deadly force would have been justified. There was no such
evidence and Agent Holder had no justification to shoot Mr.
Carter.
Even if the Court would find that Mr. Carter's actions of
reaching into his pocket, would put the public and Agent Holder
in danger, the action under the Fourth Amendment does not give a
government agent or the police enough probable cause to employ
the use of deadly force. There is a clear description of the
probable cause standard set forth in the Fourth Amendment of the
United States Constitution.
In Reichman v. Harris, 252 F. 371, 381–82 (6th Cir. 1918)
the Sixth Circuit Court states the same justification can be
used when a police officer puts a citizen’s life in danger or
fears that the officer might kill them they have the right to use
self-defense against the officer who was putting their lives in
danger. Mr. Robey was attempting to surrender and yelled at Agent
Holder and told him that he had a fake gun. Agent Holder shot and
killed Mr. Roby when he was trying to surrender to him. Once
Agent Holder had shot and killed Mr. Roby, he continued chasing
Mr. Carter with his gun drawn and eventually he shot Mr. Carter
in the leg.
C. THE EVIDENCE FOUND IN CARTER’S BACKPACK RECOVERED ONLY BECAUSE THE POLICE SHOT AND WOUNDED CARTER.
In the United States v. Crews, 445 U.S. 463, (1980) the
court ruled that any evidence that was discovered because of a
violation of the Fourth Amendment is not admissible in any court
of law. Brown v. Illinois, 422 U.S. 59, 603–04 (1975), set forth
a procedure to determine if the evidence was discovered as a
violation of Constitutional rights. Brown informs us that the
Court needs to consider the following questions to determine if
the evidence violated the suspects Constitutional rights: What
part, if any, did the suspect’s free will play in the discovery
of the evidence? How proximate was the illegality to the
discovery of the evidence? Were there any superseding
circumstances? What part did the government agents play? How
obvious was the violation? Brown v. Illinois, 422 U.S. 59, 603–04
(1975). When looking at the criteria set forth by the court in
Brown, the only evidence against Mr. Carter was discovered from
his black backpack. This evidence must be suppressed because it
would have not been discovered if Agent Holder had not shot him
in the leg, which lead to Mr. Carter wrecking his car, after
attempting to flee from the illegal action of Agent Holder.
Therefore, the evidence in Mr. Carter's backpack must be
suppressed.
In Mr. Carter's case, he did ultimately lead Agent Holder to
his car was running away from Holder. Mr. Carter had already
witnessed his friend, Michael Roby, be shot and killed by an ATF
agent. Mr. Carter decided to try to make it to his car that was
parked in a nearby parking lot. On his way to the car Agent
Holder shot him in the leg but he made it to his car and left the
scene. Driving away from the scene, Mr. Carter was in a great
deal of pain and was losing a lot of blood. Due to his pain and
blood loss from the gunshot wound, Mr. Carter crashed his car
approximately a mile from where he was shot. After he crashed his
car, he left the scene of the accident on foot, leaving his
backpack in the backseat of his car. Mr. Carter crashed his car
as a direct result of the use of deadly force by Agent Holder in
an effort to totally immobilize Mr. Carter. If Mr. Carter had not
been shot by Agent Holder, he would not have wrecked his car;
therefore, the police would not have discovered the contents of
his backpack. The discovery of the contents of the backpack are
fruits of the poisonous tree. Therefore, the evidence gained from
the poisonous tree must be suppressed based upon the Fourth
Amendment.
II. THE RULING OF THE LOWER COURT SHOULD BE REINSTATED BECAUSE AGENT HOLDER VIOLATED MR. CARTER’S DUE PROCESS RIGHTS.
The ATF agents in the Carter case were entrapping African-
American males in this reverse-sting. The agents promised these
impoverished males a chance to make a lot of money quickly. The
actions of the agents were shocking, and it was a clear violation
of the definition of the justice. In United States v. Russell,
411 U.S. 423 (1973), the Court ruled that when government agents
were involved in the commission of an outrageous crime, the Due
Process Clause does not allow for the prosecution of the arrested
suspects. When government agents take outrageous actions, the
concept of fairness has been violated, therefore causing the
reversal of convictions.
United States v. Black, 733 F.3d 294, 301 (9th Cir. 2013)
established the criteria to be used to determine if the actions
of a government agent were outrageous; which are as follows:
“(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.”
The Thirteenth Circuit Court decided not to follow the
criteria to determine if the government agent’s actions were
outrageous. In this case, the criteria set forth in Black should
have been applied and determined that the actions of the
government agents were outrageous and no arrests should have
happened.
CONCLUSION
WHEREFORE the defendant respectfully requests this Honorable
Court to Grant his motion to reinstate the ruling of
the District Court and overrule the Thirteenth District Court.
Date: December 3, 2015
___________________William J. Ihlenfeld, II,United States AttorneyNorthern District ofWest Virginia
CERTIFICATE OF SERVICE
I, Lucy Legal, state that I served the above by mailing a copy to the Prosecuting Attorney’s Office for Marion County, West Virginia at 213 Jackson St., Fairmont, WV 26554.
Date: December 3, 2015
___________________Lucy LegalLegal Law Firm100 Broadway Ave.
Fairmont, WV 26554Telephone Number: 304-304-3044