final brief - elon university 19 brief.pdf · brief on the merits for petitioner roy hinkley _____...
TRANSCRIPT
No. 13-201
__________________________
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 ON THE MERITS
FOR PETITIONER ROY HINKLEY
__________________________
TEAM NO. 19
Counsel for Petitioner
i
QUESTIONS PRESENTED
1. Can a police officer conduct a warrantless protective sweep
of a residence when the officer is lawfully present only by consent
of the homeowner for the limited purpose of aiding with an
investigation?
2. Is a prior conviction for possessing an unregistered short-
barrel shotgun a predicate “violent felony” under the Armed
Career Criminal Act?
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ................................................................... i
TABLE OF CONTENTS ...................................................................... ii
TABLE OF AUTHORITIES ................................................................. iv
CONSTITUTIONAL PROVISIONS AND STATUTES ............................. vii
OTHER AUTHORITIES ................................................................... viii
STANDARD OF REVIEW ................................................................... 1
STATEMENT OF THE CASE ............................................................... 2
SUMMARY OF ARGUMENT .............................................................. 8
ARGUMENT ................................................................................... 10
I. THE EVIDENCE OBTAINED FROM MR. HINKLEY’S HOME MUST BE SUPPRESSED BECAUSE IT WAS THE FRUIT OF A WARRANTLESS AND UNREASONABLE SEARCH UNDER THE FOURTH AMENDMENT .............................................................10
A. The Protective Sweep of Mr. Hinkley’s
Home Was Not Conducted Pursuant to an In-House Arrest And Broadening the Exception to Non-Arrest Circumstances Will Discourage Citizens From Cooperating With Law Enforcement .....................................................12
B. Officer Sanford’s Sweep of Mr. Hinkley’s Home Was Unreasonable Because He Exceeded the Scope of Mr. Hinkley’s Limited Consent And Lacked Reasonable Suspicion That a Third Party Posing A Threat To His Safety Was Present ................................................................ 18
II. MR. HINKLEY’S PRIOR CONVICTION FOR POSSESSING AN UNREGISTERED SHORT-BARREL SHOTGUN IS NOT A “VIOLENT FELONY” UNDER THE ARMED CAREER CRIMINAL ACT BECAUSE IT IS NOT A PROPERTY CRIME INVOLVING PURPOSEFUL, VIOLENT, AGGRESSIVE CONDUCT..................................................... 25 A. Mr. Hinkley’s Prior Conviction for Possessing
iii
an Unregistered Short-Barrel Shotgun is Different in Kind From The ACCA’s Listed Examples Because it is Not Purposeful, Violent, Aggressive Conduct ................................ 28
B. Mr. Hinkley’s Prior Conviction for Possessing an Unregistered Short-Barrel Shotgun is Different in Kind From the ACCA’s Listed Examples Because it is Not a Property Crime ..................................................... 32
C. Mr. Hinkley’s Prior Conviction for Possessing an Unregistered Short-Barrel Shotgun is Different From the ACCA’s Listed Examples in Degree Of Risk Because it Does Not Involve Active Violence and Because Individuals May Lawfully Possess Short-Barrel Shotguns .......................................... 35
CONCLUSION .............................................................................. 40
iv
TABLE OF AUTHORITIES
Page(s)
CASES Begay v. United States,
553 U.S. 137 (2008)................ 25, 26, 28, 30, 32, 34, 35, 39
Begay v. United States, 470 F.3d 964 (10th Cir. 2006).......................................... 35
Chambers v. United States, 555 U.S. 122 (2009) ................................................... 30, 31
Gall v. United States, 552 U.S. 38 (2007) ............................................................. 1
Florida v. Jimeno, 500 U.S. 248 (1991) ................................................... 18, 19 Katz v. United States, 389 U.S. 347 (1967).......................................................... 10 Kyllo v. United States, 533 U.S. 27 (2001)............................................................ 10 Leaf v. Shelnutt, 400 F.3d 1070 (7th Cir. 2005).......................................... 14 Maryland v. Buie, 494 U.S. 325 (1990)...........10, 11, 12, 13, 14, 17, 19, 21, 23 Michigan v. Long 463 U.S. 1032 (1983)............................................ 12, 17, 19 Ornelas v. United States 517 U.S. 690 (1996)............................................................ 1 Schneckloth v. Bustamonte, 412 U.S. 218 (1973).......................................................... 18 Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997).............................................. 14
v
Staples v. United States, 511 U.S. 600 (1994)...................................................................... 27 State v. Davila, 999 A.2d 1116, 1129 (N.J. 2010)................................ 15, 16
Taylor v. United States,
495 U.S. 575 (1990) ..................................... 25, 26, 32 - 34
Terry v. Ohio, 392 U.S. 1 (1968).............................................................. 12
United States v. Amos,
501 F.3d 524 (6th Cir. 2007)................... 29 - 31, 35, 36, 38 United States v. Archer,
531 F.3d 1347 (11th Cir. 2008)........................................ 30 United States v. Barr,
32 F.3d 1320 (8th Cir. 1994)............................................ 27
United States v. Cisneros-Gutierrez, 598 F.3d 997 (8th Cir. 2010)............................................ 15
United States v. Davis, 471 F.3d 938 (8th Cir. 2006)...................................... 15, 19
United States v. Davis 290 F.3d 1239 (10th Cir. 2002) ......................................... 1 United States v. Doe,
960 F.2d 221 (1st Cir. 1992)............................ 29, 35-37, 38 United States v. Flores,
477 F.3d 431 (6th Cir. 2007)...................................... 36, 38 United States v. Freed,
401 U.S. 601 (1971) ......................................................... 27 United States v. Freeman 479 F.3d 743 (10th Cir. 2007).......................................... 13 United States v. Gandia, 424 F.3d 255 (2d Cir. 2005).......................... 13 - 15, 19, 20
vi
United States v. Garza, 125 F. App’x. 927 (10th. Cir 2005).......... 12, 13, 21, 22, 23 United States v. Gould, 364 F.3d 578 (5th Cir. 2004)...................................... 17, 21 United States v. Haste,
292 F. App’x. 249 (4th Cir. 2008).................................... 29
United States v. Jimenez, 419 F.3d 34 (1st Cir. 2005)............................................... 14 United States v. Martins,
413 F.3d 139 (1st Cir. 2005)............................................. 14
United States v. Mathis, 963 F.2d 399 (D.C. Cir. 1992)...........................................32
United States v. McGill,
618 F.3d 1273 (11th Cir. 2010).................. 1, 25, 28, 29, 31 United States v. Moran Vargas 376 F.3d 112 (2d Cir. 2004)........................................ 20, 21
United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992).......................................... 17
United States v. Polk,
577 F.3d 515 (3d. Cir. 2009) .......................................30, 31
United States v. Reid, 226 F.3d 1020 (9th Cir. 2000)...........................................12 United States v. Taylor, 248 F.3d 506 (6th Cir. 2001)............................................ 15 United States v. Waldner, 425 F.3d 514 (8th Cir. 2005)...................................... 22, 23
Welsh v. Wisconsin, 466 U.S. 740 (1984).......................................................... 10
vii
CONSTITUTIONAL PROVISIONS, STATUTES, AND REGULATIONS
U.S. Const. amend. IV ................................................................. 10
18 U.S.C.A. § 922 (West 2012)............................................ 2, 7, 25
18 U.S.C.A. § 924 (West 2012)............................ 25, 26, 28, 32, 34
26 U.S.C.A. § 5811 (West 2012).................................................. 27
26 U.S.C.A. § 5812 (West 2012)...................................,........ 27, 37
26 U.S.C.A. § 5821 (West 2012).................................................. 27
26 U.S.C.A. § 5822 (West 2012)............................................ 26, 37
26 U.S.C.A. § 5845 (West 2012)...................................... 26, 29, 37
26 U.S.C.A. § 5861 (West 2012).................................. 5, 25, 27, 28
27 C.F.R. § 479.63 (2013) ……................................................... 26
27 C.F.R. § 479.85 (2013) ……................................................... 27
Fla. Stat. Ann. § 790.221 (West 2012)......................................... 28
Tenn.Code.Ann. § 39-6-1713 (West 1988).................................. 29
LEGISLATIVE MATERIALS
Armed Career Criminal Legis.: Hearing on H.R. 4639 and H.R.
4768 before the Subcomm. on Crime of the H. Comm. on the
Judiciary, 99th Cong., 2d Sess. (1986) ........................................ 33
H.R. 4639, 99th Cong., 2d Sess. (1986) ...................................... 33
H.R. 4768, 99th Cong., 2d Sess. (1986) ...................................... 33
H.R. 4885, 99th Cong., 2d Sess. (1986) ................................ 33, 34
H.R. Rep. No. 98-1073 (1984)...................................................... 25
H.R. Rep. No. 99-849 (1986)........................................................ 34
viii
OTHER AUTHORITIES
U.S.S.G § 4B1.1 ........................................................................... 30
Bureau of Alcohol, Tobacco, Firearms, and Explosives, U.S. Dep’t
of Justice, Firearms Commerce in the United States: Annual
Statistical Update 2012 (2012)............................................... 37, 38
Office of the Inspector General, U.S. Dep’t of Justice, The Bureau
of Alcohol, Tobacco, Firearms and Explosives’ National Firearms
Registration and Transfer Record: Evaluation and Inspections
Report I-2007-006 (2007)............................................................. 38
How to Buy Machine Guns, Suppressors, Short-Barreled Shotguns,
A.O.W.'s and Shrt [sic] Barreled Rifles, as Regulated by the ATF
and the National Firearms Act, (NFA.), Impact Guns (last visited
Feb. 28, 2013), http://www.impactguns.com/how-to-
order.aspx#class3.......................................................................... 37
Short Barrel Shotgun, Impact Guns (last visited Feb. 28, 2013),
http://www.impactguns.com/short-barrel-shotgun.aspx............... 37
Short-Barreled Shotguns, Long Mountain Outfitters, LLC. (last
visited Feb. 28, 2013),
http://www.longmountain.com/inventory/shortbarreledshotguns/htt
pwwwlongmountaincominventoryshortbarreledshotguns/?edit=1
....................................................................................................... 37
1
STANDARD OF REVIEW
I. MOTION TO SUPPRESS
The question of whether protective sweeps are appropriate in non-arrest situations is a question of law. “Although we accept underlying fact findings unless they are clearly erroneous, ‘the determination of whether those facts satisfy the legal test . . . is subject to de novo review.’” United States v. Davis, 290 F.3d 1239, 1241 (10th Cir. 2002). “[D]eterminations of reasonable suspicion and probable cause should be reviewed de novo on appeal.” Ornelas v. United States, 517 U.S. 690, 699 (1996). “A reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. Id.
II. SENTENCING
This court reviews a sentence for reasonableness under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). However, the question of whether a prior conviction is a violent felony under the Armed Career Criminal Act is a question of law that this court reviews de novo. United States v. McGill, 618 F.3d 1273, 1274-1275 (11th Cir. 2010).
2
STATEMENT OF THE CASE
PROCEDURAL HISTORY
Petitioner Roy Hinkley was arrested on June 1, 2011and charged with being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). R. 5 - 6. Mr. Hinkley filed a motion
to suppress the evidence found as a result of the impermissible protective sweep of his home in
violation of his Fourth Amendment rights. R. 6. The district court held a hearing on the motion
on September 1, 2011 and issued a written order denying the motion on October 1, 2011. R. 6.
On October 5, 2011, Mr. Hinkley pled guilty to the felon-in-possession charge pursuant
to Fed. R. Crim. P. 11(a)(2). R. 6. He reserved the right to appeal the district court’s denial of his
suppression motion. R. 6. The district court held a sentencing hearing on November 1, 2011. R.
6. Mr. Hinkley was sentenced to 180 months imprisonment pursuant to the sentencing
enhancement of the Armed Career Criminal Act (“ACCA”). R. 6. Mr. Hinkley filed a timely
Notice of Appeal. R. 6. He challenged the district court’s denial of his suppression motion based
on the impermissible protective sweep. R. 6. Mr. Hinkley also challenged the use of his prior
conviction for possession of an unregistered short-barrel shotgun as a predicate “violent felony”
for sentencing under the ACCA. R. 6.
On August 1, 2012, the Court of Appeals for the Thirteenth Circuit issued a decision
affirming the district court’s denial of Mr. Hinkley’s motion to suppress and affirming his
conviction. R. 9. The Thirteenth Circuit, however, found that Mr. Hinkley’s prior conviction for
possession of an unregistered short-barrel shotgun was not a “violent felony” under the ACCA.
R. 11. The Court of Appeals vacated his sentence, and remanded the case for resentencing
without the ACCA enhancement. R. 11. This court granted certiorari. R. 12.
3
STATEMENT OF FACTS
Petitioner Roy Hinkley is a husband and father facing fifteen years in prison for trying to
help local police catch a suspected burglar and murderer. R. 5 - 6. Mr. Hinkley’s only daughter
was diagnosed with leukemia in 2007. R. 4. The Hinkley family is unable to obtain insurance
because the leukemia is considered a pre-existing condition. R. 4. The family struggles
financially as most of the family income goes towards her leukemia treatment. R. 4 – 5. Though
Mr. Hinkley has owned his own business and worked his whole life, his family’s mounting
financial struggles led him to make several serious mistakes, resulting in criminal convictions. R.
3-5.
Mr. Hinkley moved with his parents to North Greene just as he was starting high school.
R. 3. He had a difficult time adjusting to his new school and home, and fell in with the wrong
crowd. R. 3. One day after school, his new friends dared him to break into a neighbor’s house. R.
3. Not wanting to be teased and harassed by his new friends, he caved to peer pressure. R. 3.
After waiting for the neighbor to leave, Mr. Hinkley snuck into the house through the back door.
R. 3. He took a baseball signed by a famous baseball player to prove that he completed the dare.
R. 3. As Mr. Hinkley was leaving the house with the ball, two police officers—alerted by the
neighbor’s silent alarm—pulled up. R. 3. Mr. Hinkley was terrified and surrendered
immediately. R. 3. He was tried as a juvenile and convicted of first-degree burglary and
sentenced to three years of home confinement with electronic monitoring. R. 3.
Mr. Hinkley did not take this experience lightly, and resolved to get back on the right
course. R. 3. He completed his sentence without any violations, completed high school, and then
earned a bachelor’s degree in Construction Science and Business Administration from the
4
University of North Greene. R. 3. He also began pursuing a Master’s in Business Administration,
but left school to work full-time when his wife became pregnant. R. 3. He worked for his uncle’s
construction business, becoming part owner after only five years. R. 3. Shortly after becoming a
partner in the business, Mr. Hinkley’s uncle died, leaving the business to Mr. Hinkley. R. 3.
Mr. Hinkley’s business suffered an enormous decline during the 2007 housing crises. R.
4. That same year, his only child, a six-year-old daughter, was diagnosed with leukemia. R. 4.
He was barely able to make payroll and defaulted on his personal bills, including his family’s
health insurance. R. 4. Faced with a tanking business and a gravely ill daughter whose medical
bills he could not afford, Mr. Hinkley made a desperate and foolish decision. R. 4. He set fire to
his business, hoping it would look like an accident so he could collect the insurance proceeds. R.
4. Investigators quickly uncovered the true source of the fire. R. 4. Mr. Hinkley took
responsibility for his actions and pled guilty to arson. R. 4. Recognizing the circumstances of the
offense, the prosecutor and the sentencing judge agreed to a sentence of one year of probation in
lieu of jail so he could continue to care for his daughter. R. 4.
To make ends meet, Mr. Hinkley took a job as a real estate agent. R. 4. The family
continued to struggle financially. R. 4. Mr. Hinkley moved his family to a cheaper rental house
in a neighborhood on the outskirts of North Greene that is known for a high crime rate in order to
make ends meet. R. 4. During their first month in the new house, four other houses on the block
and several cars were burglarized. R. 4. One home was burglarized by an armed individual who
used a semi-automatic handgun to control the homeowner. R. 4. Mr. Hinkley was understandably
afraid for his family’s safety and sought to purchase a gun for protection. R. 4. Because of his
prior felony, he had to convince a friend to purchase a shotgun for him. R. 4-5. Instead of getting
a full-length shotgun, though, the friend supplied him with a shotgun with a 16-inch barrel. R. 5.
5
The friend convinced Mr. Hinkley that the slightly shorter barrel would make it more effective
for home defense. R. 5. The shotgun, however, was not registered to Mr. Hinkley pursuant to the
National Firearms Act (“NFA”). R. 5.
One evening, Mr. Hinkley heard a disturbance outside his home. R. 5. Fearing for his
family, he stepped outside with his new shotgun. R. 5. Several officers were in the area looking
for a burglar. R. 5. One of the officers, Officer Terrence Sanford, recognized that the shotgun
had a shortened barrel and was of the type that could only be lawfully possessed if it was
registered pursuant to the NFA. R. 5. Upon inquiry, he discovered that Mr. Hinkley’s short-
barrel shotgun was not registered. R. 5. Mr. Hinkley ultimately pled guilty to possessing an
unregistered short-barrel shotgun under 26 U.S.C. § 5861. R. 5. He was placed on ten years of
probation and five years of home monitoring, so he could continue to work and remain with his
ailing daughter. R. 5.
Two months later, Mr. Hinkley’s neighbor was murdered during a home invasion. R. 5.
As the crimes in the neighborhood grew more violent and serious, Mr. Hinkley desperately
wanted to move his family out of the neighborhood. R. 5. However, the family’s financial
situation made it impossible to do so. R. 5. Instead Mr. Hinkley concluded that the only way to
protect his family from the chance of home invasions was to purchase another firearm. R. 5. This
time he bought a .40 caliber pistol through the same friend. R. 5.
On the evening of June 1, 2011, Mr. Hinkley was home alone while his wife and
daughter were out of town visiting family. R. 5. He had taken the gun to a friend’s property to
familiarize himself with the weapon. R. 5. After returning, he had placed his pistol on the kitchen
counter so he could clean it after he ate dinner. R. 5. Just as he was starting to eat, he heard a
knock on his front door. R. 5. He answered and found Officer Sanford on his steps who
6
explained that there had been another burglary in the neighborhood. R. 5. The suspect matched
the description of the suspect in his neighbor’s murder. R. 5. Officer Sanford told Mr. Hinkley
that unnamed residents had reported seeing the suspect flee in the general direction of Mr.
Hinkley’s house. R. 5. Officers were canvassing the area looking for the suspect. R. 5. He asked
Mr. Hinkley if he could come inside and ask him a few questions, since it was raining hard
outside. R. 5-6. Mr. Hinkley, wanting to help the investigation, cooperated and allowed Officer
Sanford to enter his home. R. 6. The door to the home opened directly into the living room and
the two men briefly conversed there. R. 6.
Officer Sanford was familiar with the uniform layout of the houses in the area. R. 6. He
knew that the door across from the entryway, on the other side of the living, led into the kitchen
and that there was backdoor leading from the backyard into the kitchen. R. 6. Officer Sanford
also recognized Mr. Hinkley from his prior arrest for possessing an unregistered short-barrel
shotgun, but did not know about his financial trouble or his daughter’s health problems. R. 6.
Officer Sanford did not believe that Mr. Hinkley was the suspect. R. 6. He did not believe
Mr. Hinkley posed any threat to him or others. R. 6. Nonetheless, he asked Mr. Hinkley if he
could look around the house to see if the burglar was present. R. 6. Mr. Hinkley explicitly denied
Officer Sanford’s request for consent to move beyond the living room, but did not affirmatively
ask the officer to leave. R. 6. He assured Officer Sanford that he had not seen or heard anything
unusual that night and that he kept his backdoor locked, so he would have heard someone enter.
R. 6. Officer Sanford disregarded Mr. Hinkley’s denial of consent and proceeded to perform a
brief sweep of the house. R. 6. Officer Sanford opened the closed door from the living room to
the kitchen to look for intruders. R. 6. After opening the door, but before entering the kitchen, he
7
saw a pistol on Mr. Hinkley’s kitchen counter. R. 6. Mr. Hinkley was arrested and charged with
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). R. 6.
8
SUMMARY OF THE ARGUMENT
The search of Mr. Hinkley’s home violated his Fourth Amendment right to be free from
unreasonable searches and seizures. The Court of Appeals erred in finding that an officer may
conduct a warrantless protective sweep outside of the context of an in-home arrest. Courts have
not extended the protective sweep exception to situations where police officers are lawfully
present in a home by consent of the owner. Such a broad interpretation of the protective sweep
exception would discourage citizens from engaging in consented encounters with law
enforcement. An extension would encourage law enforcement officers to use consent as pretext
for gaining entry into homes to conduct warrantless searches. Mr. Hinkley was not under arrest
or investigation when Officer Sanford searched his home. Mr. Hinkley only consented to Officer
Sanford’s request to enter in order to aid with a police investigation of a burglary in the
neighborhood.
Even if protective sweeps are extended to apply outside of arrest situations, Officer
Sanford did not have consent to search areas that were not immediately adjoining Mr. Hinkley’s
living room. Mr. Hinkley consented only to Officer Sanford’s entrance for the limited purpose of
answering questions. Mr. Hinkley also confined the consent to the living room – the area
immediately adjoining the entryway to his home. Officer Sanford exceeded the scope of consent
granted by Mr. Hinkley.
Additionally, Officer Sanford did not have reasonable suspicion that a third party who
posed a danger to his safety was present in the home. Officer Sanford did not suspect that Mr.
Hinkley had committed any crime. No additional information or evidence arose during the
encounter that would lead Officer Hinkley to believe that anyone else was present in Mr.
9
Hinkley’s home. Without the requisite reasonable suspicion, Officer Sanford was not permitted
to enter or search other areas of Mr. Hinkley’s home.
Mr. Hinkley’s prior conviction for possessing an unregistered short-barrel shotgun is not
a “violent felony” under the Armed Career Criminal Act (“ACCA”) because it is different in
kind and in degree of risk from the ACCA’s listed examples. Possessing an unregistered short-
barrel shotgun does not involve any purposeful, violent, or aggressive conduct. This type of
conduct is inherent in the ACCA’s listed examples. The offense of possessing an unregistered
short-barrel shotgun involves only passive behavior—possession and failure to register the
weapon. The ACCA’s plain language shows Congress’ intent to include only more assertive,
violent conduct than mere possession.
Additionally, the offense of possessing an unregistered short-barrel shotgun is different
from the ACCA’s listed examples because it is not a property crime. The plain language and
legislative history of the ACCA shows a clear Congressional intent to include only certain
physically risky crimes against property as predicate offenses.
Finally, Mr. Hinkley’s prior conviction for possessing an unregistered short-barrel
shotgun does not pose the same degree of risk as the listed examples because mere possession
does not involve closely related, active violence. Possession of an unregistered short-barrel
shotgun is not inherently dangerous, otherwise federal law would completely prohibit their
possession, instead of just requiring registration.
For all the foregoing reasons, the decision of the Court of Appeals must be reversed in
regards to the Fourth Amendment claim, and affirmed in regards to sentencing under the Armed
Career Criminal Act.
10
I. THE EVIDENCE OBTAINED FROM MR. HINKLEY’S HOME MUST BE SUPPRESSED BECAUSE IT WAS THE FRUIT OF A WARRANTLESS AND UNREASONABLE SEARCH UNDER THE FOURTH AMENDMENT
This is a case about a citizen’s fundamental right to be free from unreasonable searches
and seizures in his own home while performing the necessary civic duty of aiding police in an
investigation. The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures,” and that right
“shall not be violated, and no Warrants shall issue, but upon probable cause.” U.S. Const. amend.
IV. “[P]hysical entry of the home is the chief evil against which the Fourth Amendment is
directed.” Welsh v. Wisconsin, 466 U.S. 740, 748 (1984). “With few exceptions, the question
whether a warrantless search of a home is reasonable . . . must be answered no.” Kyllo v. United
States, 533 U.S. 27, 31 (2001).
“[S]earches conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth Amendment.” Katz v. United States, 389
U.S. 347, 357 (1967). This rule is “subject only to a few specifically established and well-
delineated exceptions.” Id. “The police bear a heavy burden when attempting to demonstrate an
urgent need that might justify warrantless searches.” Welsh, 466 U.S. at 749-50. Determining
reasonableness requires “balance[ing] the intrusion on the individual's Fourth Amendment
interests against [the search’s] promotion of legitimate governmental interests.” Maryland v.
Buie, 494 U.S. 325, 331 (1990).
In Buie, this Court carved out the protective sweep exception to the warrant requirement.
Buie, 494 U.S. at 334. This Court articulated two types of permissible protective sweeps. Id.
First, officers may conduct a protective sweep “incident to [an] arrest . . . as a precautionary
matter and without probable cause or reasonable suspicion.” Id. This type of sweep is extremely
11
limited and only allows officers to “look in closets and other spaces immediately adjoining the
place of arrest from which an attack could be immediately launched.” Id. (emphasis added).
Second, an officer, in some instances incident to arrest, may conduct a protective sweep
that goes beyond the immediately adjoining area. Id. at 334. The officer may so only when there
are “articulable facts which, taken together with the rational inferences from those facts, would
warrant a reasonably prudent officer in believing that the area to be swept harbors an individual
posing a danger to those on the arrest scene.” Id. This second kind of sweep is “not a full search
of the premises.” Id. at 335. The sweep “may extend only to a cursory inspection of those spaces
[in the home] where a person may be found.” Id. The sweep last “no longer than is necessary to
dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the
arrest and depart the premises.” Id. at 335-36 (emphasis added).
Protective sweeps only apply to in-house arrest scenarios. Mr. Hinkley was cooperating
with Officer Sanford, and granted consent to enter his home for the purpose of aiding with an
investigation. Extending the exception to consent-based entries by law enforcement would
discourage individuals from working with law enforcement during investigations and would
compromise the societal benefit derived from cooperation between citizens and law enforcement.
Even if the protective sweep exception applies outside of the in-house arrest context, the
sweep of Mr. Hinkley’s home was impermissible. Officer Sanford did not have consent to move
beyond the immediate entryway, specifically the living room, of Mr. Hinkley’s home. Officer
Sanford did not have reasonable suspicion that an individual posing a danger to himself or
anyone else was present in the home. The decision of the Court of Appeals must be overruled
because Officer Sanford violated Mr. Hinkley’s Fourth Amendment rights by subjecting him to a
warrantless and unreasonable search.
12
A. The Protective Sweep of Mr. Hinkley’s Home Was Not Conducted Pursuant to an In-House Arrest And Broadening the Exception to Non-Arrest Circumstances Will Discourage Citizens From Cooperating With Law Enforcement
A protective sweep is “reasonable when weighed against the ‘need for law enforcement
officers to protect themselves and other prospective victims of violence.’” Buie, 494 U.S. at 332
(quoting Terry v. Ohio, 392 U.S. 1 (1968) and applying the justification for frisks to protective
sweeps); see also Michigan v. Long, 463 U.S. 1032, 1049 - 50 (1983) (applying Terry rationale
to roadside encounters between officers and citizens). Unlike an on-the-street Terry frisk, “[a]
protective sweep . . . occurs as an adjunct to the serious step of [arresting a person] for the
purpose of prosecuting him for a crime.” Buie, 494 U.S. at 333. A Terry stop occurs on a public
street, while “an in-home arrest puts the officer at the disadvantage of being on his adversary's
‘turf’ [and] [a]n ambush in a confined setting of unknown configuration is more to be feared than
it is in open, more familiar surroundings.” Id. In Buie, the State never argued that the protective
sweep doctrine should apply outside of the arrest context. Id. at 330 (“[P]olice should be
permitted to conduct a protective sweep whenever they make an in-home arrest for a violent
crime [or] in conjunction with a valid in-home arrest whenever the police reasonably suspect a
risk of danger to the officers or others at the arrest scene.”) (emphasis added).
The plain language of Buie limits protective sweeps to situations where officers are
effectuating an arrest. Buie, 494 U.S. at 334. The Ninth Circuit emphasized that the language in
Buie makes clear that only “as an incident to the arrest, officers could conduct protective
sweeps.” United States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2000) (finding that officers
performed an impermissible sweep because the occupant of the apartment was not under arrest).
Similarly, the Tenth Circuit, in United States v. Garza, stated that the language “incident to
13
arrest” was not dicta. 125 F. App'x 927, 931 (10th Cir. 2005). The court reasoned that “[w]hile
the [Buie] Court could have relied on facts other than that the police search in that case was
incident to a lawful arrest, the Court clearly found this fact to be important, if not essential.” Id.;
see also United States v. Freeman, 479 F.3d 743, 750 (10th Cir. 2007) (“This Court has
interpreted Buie to mean that a protective sweep may be conducted only if incident to arrest.”).
An extension of the protective sweep exception to non-adversarial encounters between
citizens and law enforcement inside a home would undermine this Court’s concerns in Buie.
Buie, 494 U.S. at 332 – 333. In United States v. Gandia, officers responded to a report of an
argument between the defendant and another man. 424 F.3d 255, 258 (2d Cir. 2005). The caller
noted that the defendant might be armed. Id. When officers arrived, they frisked the defendant
and found no weapons. Id. Officers asked to speak to the defendant in his apartment to keep the
disputing parties separated, get out of the rain, and for added privacy. Id. The defendant agreed.
Id. The defendant informed officers that he lived alone and officers saw and heard nothing that
would indicate otherwise. Id. Officers did not indicate they felt they were in danger and were
present “for their own convenience (and perhaps for his) while taking his statement.” Id. at 263.
The defendant did not consent to officer’s presence anywhere else in his apartment. Id. at 259 –
260. Nonetheless, Officers searched the defendant’s apartment and he was arrested as a result of
the evidence obtained from the sweep. Id. The Second Circuit suppressed the evidence because
the “search of the apartment was unconstitutional . . . because the police lacked specific,
articulable facts to justify their warrantless search.” Id. at 2631.
1 The court did not decide the issue of whether a protective sweep can occur when officers are not effectuating an arrest. However, the court discussed at length the downfalls of extending protective sweeps to consent entries. United States v. Gandia, 424 F.3d at 258.
14
The Gandia court was concerned that “generously construing Buie will enable and
encourage officers to obtain . . . consent as a pretext for conducting a warrantless search of the
home.” 424 F.3d at 262. The court also noted that the protective sweep exception has been
extended in other circuits only to situations where, “a warrant would . . . have been obtained
through judicial process . . . [or] the presence of emergent conditions in effect assures that the
officers have a non-pretextual reason for entering the premises.” Id. at 263; see also United
States v. Martins, 413 F.3d 139 (1st Cir. 2005) (“[P]olice who have lawfully entered a residence
possess the same right to conduct a protective sweep whether an arrest warrant, a search
warrant, or the existence of exigent circumstances prompts their entry.”) (emphasis added);
United States v. Jimenez, 419 F.3d 34, 41 (1st Cir. 2005) (noting that a protective sweep was
likely impermissible based on entry aided and consented to by another occupant of the home);
Leaf v. Shelnutt, 400 F.3d 1070, 1087 - 88 (7th Cir. 2005) (finding that officer’s sweep was
justified during investigation of an possible ongoing burglary inside an apartment). The court
also noted that protective sweeps are allowable only because “they are limited to that which is
necessary to protect the safety of officers and others.” Gandia, 424 F.3d at 263. The Gandia court
found the sweep of the defendant’s home unreasonable and suppressed the evidence. Id.
The Third, Sixth, and Eighth Circuit have also expanded the exception only to situations
where police are present lawfully via a judicial process. The Third Circuit in Sharrar v. Felsing,
found that “we see no reason to impose a bright line rule limiting protective sweeps to in-home
arrests . . . [because] in some circumstances, an arrest taking place just outside a home may pose
an equally serious threat to the arresting officers.” 128 F.3d 810, 824 (3d Cir. 1997) abrogated on
other grounds by Curley v. Klem, 499 F.3d 1990 (3d. Cir. 2007) (internal quotations omitted).
The Sixth Circuit found that Buie “applies with equal force to an officer left behind to secure the
15
premises while a warrant to search those premises is obtained.” United States v. Taylor, 248 F.3d
506, 513 (6th Cir. 2001). The Eighth Circuit found protective sweeps valid where officers had a
search warrant for a home under investigation in United States v. Davis, 471 F.3d 938, 946 (8th
Cir. 2006), and in a situation where officers observed the destruction of contraband by targets of
a federal drug investigation in United States v. Cisneros-Gutierrez, 598 F.3d 997, 1006 (8th Cir.
2010).
Here, Officer Sanford used the initial consensual entry to Mr. Hinkley’s home as a
pretext to conduct an unreasonable search. As in Gandia, Officer Sanford was present inside the
home for his own convenience - to get out of the rain. R. 5 - 6. Officer Sanford did not indicate
that he intended to conduct any kind of search of Hinkley’s residence and stated only that he
wanted to ask Mr. Hinkley a few questions. R. 5 - 6. Mr. Hinkley consented to Officer Sanford’s
presence in his home for the limited purpose of aiding the officer’s investigation of a burglary. R.
6. When Officer Sanford requested consent to make sure the burglar had not taken refuge in Mr.
Hinkley’s home, Mr. Hinkley refused. R. 6.
This case also does not present a situation where the nature of the contact between law
enforcement and a citizen was adversarial or presented a danger. Officer Sanford did not believe
Mr. Hinkley was the burglar. R. 6. He did not believe that Mr. Hinkley was armed. R. 6. Officer
Sanford did not fear for his safety while in Mr. Hinkley’s home. R. 6. Officer Sanford had no
tangible, visible, or audible evidence that another individual who posed a danger was in the
home. R. 6. Officer Sanford was familiar with the layout of all the homes in the neighborhood
and was not on an adversary’s turf or in a setting of unknown configuration. R. 6.
The New Jersey State Supreme Court recently refused to extend protective sweeps to any
situation where police are lawfully present. State v. Davila, 999 A.2d 1116, 1129 (N.J. 2010).
16
In Davila, officers went to a home that had received numerous calls from a stolen cell phone to
investigate a crime spree that included robbery and a shooting death. Id. at 1119-1120. The
officers knew they lacked probable cause to search the premises, but did not attempt to obtain a
warrant, endeavor to identify to whom the apartment belonged, or who might reside within it. Id.
Instead, they knocked on the apartment door in the hope that someone would answer and allow
them inside. Id. An overnight guest opened the door and allowed officers to enter. Id. Officers
testified they did not feel they were in danger at any point. Id. Immediately after entering,
officers conducted a search. Id. The court adopted a fact-specific four-part test to determine the
validity of a protective sweep and remanded the case. Id. at 1132.
The Davila court engaged in a careful study of federal circuit court precedent and
emphasized that “when police presence in the home is not due to the execution of an arrest
warrant, the legitimacy of the police presence must be probed”. Id. at 1132. “[E]ven the most
generous circuit[s] . . . stop short of affirming protective sweeps in every circumstance . . . [and
are especially] hesitant . . . [where] the government argued that a protective sweep was justified
based on an occupant's invitation or consent.” Id. at 1130.
There is simply too great a potential for the pretextual use of otherwise lawful police presence as an opportunity to conduct a warrantless raid . . . cloaked as a protective sweep; so broad an exception would swallow whole the protections of the warrant requirement. Those concerns are particularly relevant where . . . the police entry is based on the consent of an occupant.
Id. at 1129 – 30. “[P]rotective sweeps based on lawful police presence due to consent are
particularly problematic in that such sweeps are vulnerable to abuse by zealous law enforcement
officers investigating crimes.” Id. at 1132.
The Fifth and D.C. Circuits had the opportunity to consider protective sweeps in the
context of consented entry. These cases are distinguishable in two ways: (1) consent was granted
17
by another individual with lawful authority to do so, and (2) the defendant was the target of an
ongoing investigation. In United States v. Patrick consent was granted by the defendant’s
roommate, the actual lessee of the apartment, who had initially reported that the defendant was
trafficking narcotics. 959 F.2d 991, 996 (D.C. Cir. 1992) abrogated on other grounds by
Apprendi v. New Jersey, 530 U.S. 466 (2000). The D.C. Circuit found the protective sweep
permissible based on officer’s “reasonable belief that one of its inhabitants was trafficking in
narcotics” and because the contraband was in plain view immediately after entering the
apartment Id. at 996 - 997.
In United States v. Gould officers received information that the defendant, a convicted,
violent felon, planned to kill two local judges. 364 F.3d 578, 580 (5th Cir. 2004) abrogated on
other grounds by Kentucky v. King, 131 S. Ct. 1849 (2011). Officers went to the defendant’s
trailer and were granted unlimited access by his roommate. Id. Officers performed a cursory
sweep looking for the defendant and discovered three rifles in plain view. Id. Officers then found
the defendant hiding in the woods, applied for a warrant, and seized the weapons. Id.
The court stated that Buie emphasized the arrest “because the arrest exposed the officers
to danger.” Id. at 581(emphasis added). Further, “if a suspect is ‘dangerous,’ he is no less
dangerous simply because he is not arrested.” Id. at 584 (citing Michigan v. Long, 463 U.S.
1032, 1050 (1983)) (emphasis added). The court specifically focused on the character of the
defendant as it relates to the potential danger to police. Id. The court expressed grave concern
that officers might use consent to “gain[] access in order to . . . make a protective sweep of the
entire home . . . and circumvent the warrant requirement.” Gould at 589.
Officer Sanford did not believe that Mr. Hinkley was the burglar. 6. Mr. Hinkley was not
the target of any investigation. R. 6. In fact, the encounter is a model example of cooperation
18
between a citizen and law enforcement. It is precisely the kind of consensual encounter that
courts feared would be affected by an expansion of the protective sweep exception. The court
below paints these cases with too broad a brush and undermines those concerns. The Court of
Appeals erred by expanding the protective sweep doctrine and their decision must be overruled.
B. Officer Sanford’s Sweep of Mr. Hinkley’s Home was Unreasonable Because He Exceeded the Scope of Mr. Hinkley’s Limited Consent and Lacked Reasonable Suspicion That a Third Party Posing a Threat to His Safety Was Present
Officers need a lawful justification to search beyond the immediately adjoining area.
“[O]ne of the specifically established exceptions to the requirements of both a warrant and
probable cause is a search . . . conducted pursuant to consent.” Schneckloth v. Bustamonte, 412
U.S. 218, 219 (1973). The state must demonstrate that consent was voluntarily given. Id. at 248.
“[T]he scope of a suspect's consent” is measured by “objective reasonableness—what would the
typical reasonable person have understood by the exchange between the officer and the suspect?”
Florida v. Jimeno, 500 U.S. 248, 251 (1991). “The scope of a search is generally defined by its
expressed object.” Id. A citizen “may of course delimit as he chooses the scope of the search to
which he consents.” Id. at 252.
The same concerns that underlie the justification for other expansions of allowable Fourth
Amendment searches underlie the decisions in Schneckcloth and Jimeno. This Court sought a
balance, on the one hand between an officers’ duty to enforce the laws, protect himself and the
community, and on the other hand, the right of the individual to be free from unlawful intrusions.
Schneckcloth, 412 U.S. at 225. “[T]he community has a real interest in encouraging consent, for
the resulting search may yield necessary evidence for the solution and prosecution of crime,
19
evidence that may insure that a wholly innocent person is not wrongly charged with a criminal
offense.” Id. at 243.
Officers may also lawfully move beyond the immediately adjoining area only if they
“possesse[d] a reasonable belief based on ‘specific and articulable facts which, taken together
with the rational inferences from those facts, reasonably warrant[ed]’ the officer in believing,
that the area swept harbored an individual posing a danger to the officer or others.” Buie, 494
U.S. at 327 (quoting Michigan v. Long, 463 U.S. at 1049-50) (internal citations omitted). This
second type of protective sweep is “a quick and limited search of premises, incident to an arrest
and conducted to protect the safety of police officers or others. It is narrowly confined to a
cursory visual inspection of those places in which a person might be hiding.” Id. at 327. All
circuit courts that have extended protective sweeps to non-arrest situations, have done so using
the reasonable suspicion test and emphasized that the test is extremely fact-dependent. See, e.g.,
United States v. Davis, 471 F.3d 938, 946 n.5 (8th Cir. 2006) (“Our opinion analyzes the validity
and proper scope of the sweeps in this case . . . Buie clearly instructs that protective sweeps must
be justified on an individualized basis. Buie does not allow for a sweep in all cases.”).
Consent granted by a citizen to law enforcement to enter a home in order to aid with an
investigation does not constitute blanket consent to search or move beyond the entryway of that
home. Gandia, 424 F.3d at 265 (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991) stating the
test for evaluating scope of consent). In United States v. Gandia, officers responded to a report of
an argument between the defendant and another individual. Id. at 258. Officers asked to speak to
Mr. Gandia in his apartment. Id. Mr. Gandia agreed and informed officers that he lived alone. Id.
The door of the apartment opened directly into Mr. Gandia’s kitchen. Id. A door to one side of
the kitchen led into the bathroom. Id. There was also a doorframe, without a door on the hinges,
20
which led from the kitchen into the adjoining living room. Id. Mr. Gandia did not consent to
officer’s presence anywhere else in his apartment other than his kitchen. Id. at 260. Officers did
not hear or see anything that would indicate the presence of another individual in the apartment.
Id. at 259 – 260. As one officer started to move to other areas of the apartment, Mr. Gandia
asked, “What are you doing? You don't even have a search warrant. What are you searching my
apartment for?” Id. The Second Circuit suppressed the evidence because the “police lacked
specific, articulable facts to justify their warrantless search.” Id. at 263. The court declined to
decide the issue based on consent, but instead found the search impermissible because officers
lacked the requisite reasonable suspicion to search. Id.
The court found that the defendant had not explicitly granted consent to move beyond the
front room and rejected the government’s argument that the defendant impliedly granted consent
to search by allowing the officers into his apartment. Gandia, 424 F.3d at 263. The court relied
heavily on their previous decision in United States v. Moran Vargas, 376 F.3d 112, 115 (2d Cir.
2004), where the government conceded that consent to enter a hotel room did not translate into
consent to search the bathroom, and that Moran Vargas denied consent by shutting the door to
the bathroom.
The Gandia court stated that officers still needed some modicum of evidence that a third
party might be present in the apartment. Id. at 264. The court emphasized that a “protective
sweep is . . . permissible on less than probable cause only because they are limited to that which
is necessary to protect the safety of officers and others.” Id. at 263. Officers were present for
their own convenience, and at any time, could have made their concern about their safety
apparent and explicitly ask permission to search other areas of the apartment. Id. “Lack of
information cannot provide an articulable basis upon which to justify a protective sweep.” Id. at
21
264; See also Moran Vargas, 376 F.3d at 116 (“Reasonable suspicion cannot be based solely on a
suspect's exercise of his constitutional right to revoke or limit the scope of a search to which he
has consented.”); United States v. Gould, 364 F.3d 578, 589 (5th Cir. 2004) abrogated by
Kentucky v. King, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (U.S. 2011) (“Concerns . . . also . . . arise
where the consent to entry is given . . . to a limited area but the protective sweep extends clearly
beyond that area without anything having developed since entry suggestive of . . . more
imminent danger than that initially apparent.”).
In the absence of additional facts, officers may not conduct a protective sweep after
gaining lawful entry based on consent. United States v. Garza, 125 F. App’x. 927, 931 (10th. Cir
2005). In United States v. Garza, officers conducted a knock-and-talk investigation of possible
narcotics sales at a Motel 6. Id. The motel clerk informed police that two rooms were receiving a
high volume of phone calls and visitors, and that one occupant had paid in cash - facts generally
indicative of narcotics sales. Id. at 928 - 929. Officers went to one of the rooms to conduct a
knock-and-talk. Id. A woman answered the door and allowed officers into the room, but did not
consent to the officers’ presence anywhere else or to a search. Id. After a brief conversation the
bathroom door slammed shut. Id. Police requested entrance to the bathroom, but the defendant,
inside the bathroom, refused. Id. Officers entered the bathroom and found the defendant and a
firearm in plain view. Id. The court found that the officers limited information did “not add up to
a ‘reasonable belief’ that the bathroom ‘harbored an individual posing a danger to the officer or
others.’” Id. at 933 (quoting Buie, 494 U.S. at 327).
The Tenth Circuit reiterated that “a protective sweep may only be performed incident to
an arrest.” Garza, 125 F. App’x. at 931. They further distinguished the case from Buie because
“[the woman] voluntarily consented to the officers' entry . . . thus exhibiting a willingness to
22
cooperate.” Id. at 932. This consent, nonetheless, did not translate into consent to search the
bathroom, and no “objectively reasonable belief existed that the bathroom contained a person
posing a danger to either the officers or others.” Id. at 931. “Once in the room, the officers did
not smell drugs or hear running water, which might indicate the possible disposal of narcotics.”
Id. at 932. The officers’ “argument that Mr. Garza's failure to respond created a safety threat
sufficient to allow a protective sweep carries little weight.” Id. “[T]here simply are not specific,
articulable facts in this record that distinguish this from any time a person in a bathroom . . .
declines a consensual encounter with the police.” Id.
In United State v. Waldner, officers arrived at the defendant’s home to serve a Protection
from Abuse order and remove the defendant from the home. 425 F.3d 514, 515 (8th Cir. 2005).
The defendant’s wife had informed police that he owned guns, had assaulted and threatened her.
Id. After the defendant answered the door, officers served him with the order and explained that
he had to leave the premises. Id. at 516. The defendant complied, but requested permission to get
his belongings from inside the house. Id. Officers explained that “before Waldner would be
permitted to go into a room, one or both of the officers would first have to look around that room
for weapons or other people.” Id. The defendant consented and assured officers that there was no
one else in the home. Id. Officers then entered a room the defendant did not, and discovered a
firearm and illegal silencer. Id. The Eighth Circuit found that the officers had conducted an
impermissible protective sweep because they had exceeded the scope of the defendant’s consent
and had no “articulable facts that an unknown individual might be in the office, or anywhere else
in the house, ready to launch an attack. Id. at 517.
The Eighth Circuit in Waldner found that the officers’ sweep was unjustified. Id. at 517.
The defendant cooperated with police and consented only to their specific request to accompany
23
him into his home and sweep rooms he intended to enter. Id at 516. The officer was unlawfully
in the office, an area the defendant had not entered. Id. at 518. Though officers were in a
similarly adversarial context as that of an arrest and had evidence that the defendant may be
armed and violent, officers were still required to show “a reasonable suspicion of dangerous
individuals in the house. Id. at 517. “Buie authorizes protective sweeps for unknown individuals
in a house who may pose a threat to officers as they effectuate an arrest; Buie does not allow a
protective sweep for weapons or contraband.” Id.
Mr. Hinkley consented only to Officer Sanford’s presence in the entryway of his home
for the limited purpose of answering questions about a neighborhood burglary. R. 5 – 6. Officer
Sanford requested entry only because it was raining outside. R. 6. Officer Sanford was only in
Hinkley’s home for his own convenience. R. 6. As in Garza and Waldner, when Officer Sanford
requested consent to sweep the other areas of Mr. Hinkley’s home, Mr. Hinkley denied that
consent R. 6. Nonetheless, Officer Sanford left the living room, opened the door to the kitchen,
and there discovered a semi-automatic weapon. R. 6. By initially requesting consent to move
beyond the living room, Officer Sanford undermined the government’s assertion that the sweep
was consensual. The officer requested consent because he was aware it was a necessary to
perform any search of Mr. Hinkley’s home. Officer Sanford took advantage of Mr. Hinkley’s
cooperation by performing an unconsented sweep of Mr. Hinkley’s private residence.
Officer Sanford also had no reason to believe a third party posing a danger was present in
the home. Officer Sanford was investigating a burglary in the neighborhood. R. 5. Two weeks
prior to this incident, another home in the neighborhood had been burglarized, and the
homeowner shot and killed. R. 5. The only information that Officer Sanford had was that (1) the
description of the suspect in the present burglary matched the description of the suspect from the
24
previous burglary, and (2) that unnamed residents had reported seeing the burglar flee in the
general direction of Mr. Hinkley’s home. R. 5. No one was injured in the current burglary and
there was no information that the individual seen fleeing was carrying a weapon. R. 5. When
Officer Sanford entered Mr. Hinkley’s home, he observed nothing out of the ordinary. R. 6.
Officer Sanford heard no other individuals in the home. R. 6. Officer Sanford did not believe that
Mr. Hinkley posed any danger, or that he was the burglar. R. 6. Officer Sanford had no reason to
disbelieve Mr. Hinkley’s assertion that he had been home all night, did not hear anyone enter or
anything out of the ordinary. R. 6. Mr. Hinkley also assured the officer that he kept his back door
locked. R. 6.
Mr. Hinkley’s consent was extremely limited and did not constitute blanket consent to
search his private home. There were no specific facts amounting to reasonable suspicion that the
home harbored a third party posing a threat to Officer Sanford before or during Officer Sanford’s
encounter with Mr. Hinkley. Accordingly, the Court of Appeals finding that Officer Sanford
conducted a permissible protective sweep is erroneous and must be overruled.
25
II. MR. HINKLEY’S PRIOR CONVICTION FOR POSSESSING AN UNREGISTERED SHORT-BARREL SHOTGUN IS NOT A “VIOLENT FELONY” UNDER THE ARMED CAREER CRIMINAL ACT BECAUSE IT IS NOT A PROPERTY CRIME INVOLVING PURPOSEFUL, VIOLENT, AGGRESSIVE CONDUCT
Congress enacted the Armed Career Criminal Act (“ACCA”) to target a “very small
percentage” of “‘career’ criminals” who commit a “‘large percentage’ of crimes of theft and
violence.” Taylor v. United States, 495 U.S. 575, 581 (1990) (quoting H.R. Rep. No. 98-1073 at
1, 3 (1984)). The ACCA imposes a drastic fifteen-year mandatory minimum sentence on people
who violate 18 U.S.C. § 922(g)2 and have “three previous convictions . . . for a violent felony or
a serious drug offense.” 18 U.S.C.A. § 924(e)(1) (West 2012). A “violent felony” is a “crime
punishable by imprisonment for a term exceeding one year” in one of two categories. 18
U.S.C.A. § 924(e)(2)(B).
The first category of offenses includes those which have “as an element the use,
attempted use, or threatened use of physical force against the person of another.” 18 U.S.C.A. §
924(e)(2)(B)(i). The second category includes any crime that “is burglary, arson, extortion,
involves the use of explosives, or otherwise involves conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C.A. § 924(e)(2)(B)(ii). At issue here is whether Mr.
Hinkley’s prior conviction for possessing an unregistered short-barrel shotgun in violation of 26
U.S.C. § 5861 is a “violent felony” under the ACCA’s residual clause: offenses “otherwise
involve[ing] conduct that presents a serious potential risk of physical injury to another.” R. 9.
In Begay v. United States, 553 U.S. 137 (2008), this Court set out a two-step test for
determining whether a prior conviction falls under the residual clause of the ACCA. See United
States v. McGill, 618 F.3d 1273, 1275 (11th Cir. 2010). First, the crime must involve “conduct
2 This section prohibits certain persons, including convicted felons, from possessing firearms. 18 U.S.C.A. § 922(g)(1) (West 2012).
26
that presents a serious potential risk of physical injury to another.” Begay, 553 U.S. at 141
(quoting 18 U.S.C. § 924(e)(2)(B)(ii)). Second, the crime must be similar both “in kind as well
as in degree of risk” to the four examples listed in 18 U.S.C. § 924(e)(2)(B)(ii)—burglary, arson,
extortion, and the use of explosives. Begay, 553 U.S. at 143. When applying the two prongs,
courts must look at the offense “generically…in terms of how that law defines the offense and
not in terms of how an individual offender might have committed it.” Id. at 141; see also Taylor,
495 U.S. at 601-602 (requiring that courts look only to the fact of conviction and the statutory
definition of the prior offense).
Short-barrel shotguns are regulated by the National Firearms Act (“NFA”). See 26
U.S.C.A. § 5845(a) (West 2012). A shotgun falls within the scope of the NFA if it has a barrel
“less than 18 inches in length” or “an overall length of less than 26 inches.” 26 U.S.C.A. §
5845(a).3 An individual may lawfully possess a short-barrel shotgun by one of two means. They
may “make”4 the short-barrel shotgun after filing an application to register it with the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (“BATF”). See 26 U.S.C.A. § 5822 (West 2012).5
Alternatively, they may apply to have a previously registered short-barrel shotgun “transferred”6
3 Rifles, on the other hand, are only subject to the NFA if they have a barrel length less than 16 inches. 26 U.S.C.A. § 5845(a). 4 “Make” includes “manufacturing . . . putting together, altering, any combination of these, or otherwise producing a firearm.” 26 U.S.C.A. § 5845(i). 5 The making application must identify the maker and the weapon. 26 U.S.C.A. § 5822(a). Additionally, the maker must submit a current photograph, two fingerprint cards, and certificate from the chief of local law enforcement stating that they have “no information indicating that possession of the firearm by the maker would be in violation of State or local law or that the maker will use the firearm for other than lawful purposes.” 27 C.F.R. § 479.63 (2013). 6 “Transfer” includes “selling . . . loaning, giving away or otherwise disposing of.” 26 U.S.C.A. § 5845(j).
27
to them and the transfer registered with the BATF. See 26 U.S.C.A. § 5812 (West 2012).7 Both
methods require paying a $200 tax. See 26 U.S.C.A. §§ 5811, 5821 (West 2012).
A person who possesses a short-barrel shotgun that is not properly registered to him
commits an offense. 26 U.S.C.A. § 5861(d) (West 2012). The government need not prove that
the defendant had knowledge of the length of the shotgun’s barrel and its unregistered status to
convict him of 26 U.S.C. § 5861(d). See United States v. Freed, 401 U.S. 601, 607 (1971)
(holding that the NFA “requires no specific intent or knowledge” that a hand grenade was not
registered); United States v. Barr, 32 F.3d 1320, 1323 (8th Cir. 1994) (suggesting that an
unregistered short-barrel shotgun is a “quasi-suspect” weapon and that defendant’s knowledge of
its specific characteristics need not be proven); but see Staples v. United States, 511 U.S. 600
(1994) (holding, narrowly, that a defendant must have knowledge that his semi-automatic rifle is
capable of fully-automatic fire to be convicted of 26 U.S.C. § 5861(d)).
Mr. Hinkley’s prior conviction for possessing an unregistered short-barrel shotgun is
different in kind from the listed examples in the ACCA because it does not involve purposeful,
violent, or aggressive conduct. Generically, the offense of possessing an unregistered short-barrel
shotgun involves only passive behavior—possession of and failure to register the weapon. The
plain language of the ACCA shows an intent to include only more assertive, violent conduct than
mere possession. Additionally, unlike the listed examples in the ACCA, Mr. Hinkley’s prior
conviction for possessing an unregistered short-barrel shotgun is not a property crime. The plain
language and legislative history of the ACCA shows a clear Congressional intent to include only
7 The transfer application must identify the transferor, the transferee, and the weapon. 26 U.S.C.A. § 5812(a). Additionally, the transferee must submit a current photograph, two fingerprint cards, and certificate from the chief of local law enforcement stating that they have “no information indicating that the receipt or possession of the firearm would place the transferee in violation of State or local law or that the transferee will use the firearm for other than lawful purposes.” 27 C.F.R. § 479.85 (2013).
28
certain physically risky crimes against property as predicate offenses. Finally, Mr. Hinkley’s
prior conviction for possessing an unregistered short-barrel shotgun does not pose the same
degree of risk as the listed example. Mere possession does not involve closely related active
violence. Possession of an unregistered short-barrel shotgun is not inherently dangerous,
otherwise Congress would ban their possession altogether, instead of just requiring registration.
A. Mr. Hinkley’s Prior Conviction for Possessing an Unregistered Short-Barrel Shotgun is Different in Kind From the ACCA’s Listed Examples Because it is Not Purposeful, Violent, Aggressive Conduct
The ACCA’s listed examples—burglary, arson, extortion, and crimes involving the use of
explosives—“indicate[] that the [residual clause] covers only similar crimes, rather than every
crime that ‘presents a serious potential risk of physical injury to another.’” Begay, 553 U.S. at
142 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). The listed crimes “typically involve purposeful,
violent, and aggressive conduct.” Begay, 553 U.S. at 144-145 (internal quotation marks omitted).
Possessing an unregistered short-barrel shotgun is dissimilar from the ACCA’s closest
enumerated analog—the use of explosives. McGill, 618 F.3d at 1277. In McGill, the court held
that knowingly possessing an unregistered short-barrel shotgun, in violation of both Florida and
federal law was not a violent felony for the ACCA. Id. at 1275, 1279; see also 26 U.S.C.A. §
5861; Fla. Stat. Ann. § 790.221 (West 2012). The court found that it was not similar in kind to
the “closest enumerated analog”—use of explosives—and was therefore not a violent felony for
the ACCA. McGill, 618 F.3d at 1277.8
8 The court did not decide whether possessing an unregistered short-barrel shotgun was purposeful, violent or aggressive, but still decided it was not a violent felony for the ACCA. McGill, 618 F.3d at 1277.
29
The court reasoned that unlawfully possessing explosives “is at least as inherently
dangerous, aggressive, and threatening as” possessing an unregistered short-barrel shotgun
because Congress regulates both in the same section of the NFA. McGill, 618 F.3d at 1277,
1279; see also 26 U.S.C.A. § 5845. Yet, “Congress included only the use, but not the possession
of explosives” among the ACCA’s examples. McGill, 618 F.3d at 1277. The court therefore
could not decide that “possessing one type of NFA[-]outlawed weapon as a violent felony when
the ACCA speaks only to the use of another.” Id. at 1279. “To do so would read the word ‘use’
out of the ACCA statute.” Id. at 1279. For this reason, the court held that possessing an
unregistered short-barrel shotgun was not a violent felony for the ACCA. Id.; see also United
States v. Haste, 292 F. App’x. 249, 250 (4th Cir. 2008) (concluding, in light of Begay, that
possession of an unregistered short-barrel shotgun is not a violent felony for the ACCA).
Possessing an unregistered short-barrel shotgun is not assertive or violent conduct. United
States v. Amos, 501 F.3d 524, 530 (6th Cir. 2007). In Amos, the court held that possession of a
short-barrel shotgun is not a violent felony for the ACCA because it “does not fit easily with the
literal language” of the ACCA. Id. at 528 (quoting United States v. Doe, 960 F.2d 221, 224 (1st
Cir. 1992) (holding that possession of a firearm by a felon was not a violent felony for the
ACCA)).9
The ACCA’s plain language “evinces an intent to include only offenses with more
assertive, violent conduct than mere possession.” Amos, 501 F.3d at 530. “[S]imple
possession…takes place in a variety of ways (e.g. in a closet, in a storeroom, in a car, in a
pocket) . . . which do not involve . . . violence.” Id. at 528 (quoting Doe, 960 F.2d at 225).
9 The Amos court analyzed the generic offense of possessing a short-barrel shotgun in violation of Tennessee law. Amos, 501 F.3d at 526 (citing Tenn.Code.Ann. § 39-6-1713 (Repealed by 1989 Pub.Acts, c. 591, § 1)).
30
Because “possession does not fit well with the more active crimes included in the statute,”
unlawfully possessing a short-barrel shotgun was not a violent felony for the ACCA. Amos, 501
F.3d at 528.
Possessing an unregistered short-barrel shotgun is passive behavior that does not involve
any violent or aggressive conduct. Cf. United States v. Polk, 577 F.3d 515, 519 (3d. Cir. 2009).
In Polk, the Third Circuit applied Begay’s two-step analysis and held that possession of a
weapon in prison was not a “crime of violence” for sentencing purposes. Id. at 520.10 The
example crimes of burglary, arson, extortion, and use of explosives all “involve overt, active
conduct that results in harm to a person or property.” Id. at 519. After Begay, the “distinction
between active and passive crimes is vital when evaluating offenses . . . to determine if they
entail purposeful, violent, and aggressive conduct.” Id. (internal quotation marks omitted).
Although possession of a weapon in prison may be purposeful, “it cannot properly be
characterized as conduct that is itself aggressive or violent.” Polk, 577 F.3d at 519. Rather, it is a
“passive crime centering around possession, rather than around any overt action.” Id. (quoting
United States v. Archer, 531 F.3d 1347, 1351 (11th Cir. 2008) (holding that prior conviction for
carrying concealed firearm was not a “crime of violence” for the career offender sentencing
enhancement in U.S.S.G § 4B1.1)). “The act of possession does not…involve any aggressive or
violent behavior.” Polk, 577 F.3d at 519 (quoting Archer, 531 F.3d at 1351); see also Chambers
v. United States, 555 U.S. 122, 128 (2009) (“Conceptually speaking, the crime [of failing to
10 The Third Circuit concluded that Begay’s analysis applied to the definition of “crime of violence” in U.S.S.G § 4B1.1 because it was nearly identical to the language of the ACCA’s “violent felony” section. Polk, 577 F.3d at 518-519. Since Begay, the Supreme Court has vacated Courts of Appeals’ decisions applying the definition of “crime of violence” in U.S.S.G § 4B1.1 and remanded them for reconsideration in light of Begay’s holding. Id.; see also United States v. Archer , 531 F.3d 1347 (11th Cir. 2008). However, even if the Third Circuit applied Begay in the wrong context, its analysis of the two-step Begay test is still valid.
31
report] amounts to a form of inaction, a far cry from the purposeful, violent, and aggressive
conduct at issue when an offender uses explosives against property, commits arson, burgles a
dwelling or residence, or engages in certain forms of extortion.”). The risks of possessing a
weapon in prison “cannot transform a mere possession offense into” a violent and aggressive
offense “similar to the crimes listed.” Polk, 577 F.3d at 520.
Here, Mr. Hinkley’s prior conviction for possessing an unregistered short-barrel shotgun
did not involve any active, violent, or aggressive conduct. The only conduct required for Mr.
Hinkley to be convicted of the offense was possession of the shotgun and failure to register it
with the BATF. As the court noted in McGill, the ACCA’s closest enumerated analog to
possessing an unregistered short-barrel shotgun is the use of explosives. This Court should not
decide that possessing one type of NFA-outlawed weapon is a violent felony when the ACCA
speaks only to the use of another. To do so would read the word “use” out of the ACCA statute.
Additionally, as the court explained in Amos, mere possession would not fit easily with
the literal language of the ACCA, which includes only offenses with assertive, violent conduct.
As in Polk, possessing an unregistered short-barrel shotgun cannot properly be characterized as
conduct that is aggressive or violent. It is a passive crime centered around possession and failure
to register rather than any overt action. As Polk noted, distinguishing between active and passive
crimes is vital when evaluating whether an offense is a violent felony for the ACCA. The
example crimes of burglary, arson, extortion, and use of explosives all involve overt, active
conduct.
The hypothetical risk of harm that may result from possessing an unregistered short-
barrel shotgun cannot transform it into a violent or aggressive offense. As in Chambers,
possessing a short-barrel shotgun that is not registered is, conceptually speaking, a crime of
32
inaction—failure to register the weapon. The decision of the Court of Appeals must be affirmed
because possession of an unregistered short-barrel shotgun is a passive crime that is dissimilar
from the active, aggressive, and violent crimes listed in the ACCA.
B. Mr. Hinkley’s Prior Conviction for Possessing an Unregistered Short-Barrel Shotgun is Different in Kind From the ACCA’s Listed Examples Because it is Not a Property Crime
The ACCA’s residual clause “covers only similar crimes” to the listed examples—
burglary, arson, extortion, and crimes involving the use of explosives—“rather than every crime
that ‘presents a serious potential risk of physical injury to another.’” Begay, 553 U.S. at 142
(quoting 18 U.S.C. § 924(e)(2)(B)(ii)). It is evident from the definition of “violent felony” in the
ACCA that “Congress created two subcategories of prior criminal conduct: First, there are
felonies against the person . . . and second, there are felonies against property . . . that present a
serious potential risk of physical injury.” United States v. Mathis, 963 F.2d 399, 405 (D.C. Cir.
1992); see also Begay, 553 U.S. at 144-145.
The legislative history of the ACCA supports this reading and shows that subsection (ii)
was meant only to include crimes against property. See Taylor, 495 U.S. at 581-587. The original
version of the ACCA, passed in 1984, counted only prior convictions “for robbery or burglary”
as predicate offenses. Id. at 581. Two years later Congress amended the ACCA to expand the
predicate offenses from robbery and burglary to “violent felon[ies] or [] serious drug offense[s].”
Id. at 582. During the amendment process two competing bills were introduced—the final
language resulting from a compromise. Id. at 582-583.
The first bill took a broad approach, making any “crime of violence” a predicate offense
for the ACCA. Taylor, 495 U.S. at 583. It defined “crime of violence” to include any “offense
33
that has as an element the use, attempted use, or threatened use of physical force against the
person or property of another,” or any felony “that, by its nature, involves a substantial risk that
physical force against the person or property of another may be used in the course of committing
the offense.” Id. (emphasis added) (quoting H.R. 4639, 99th Cong., 2d Sess. (1986)). The second
bill took a narrower approach, restricting predicate offenses to “any . . . felony that has as an
element the use, attempted use, or threatened use of physical force against the person of
another.” Taylor, 495 U.S. at 583 (quoting H.R. 4768, 99th Cong., 2d Sess. (1986)).
The first bill was seen as too broad. Taylor, 495 U.S. at 586. The second—narrower—bill
was criticized for excluding property crimes. Id. at 584. In the House Hearing on the bills,
Representative Wyden asked “that at least some violent felonies against property [] be included.”
Id. (quoting Armed Career Criminal Legis.: Hearing on H.R. 4639 and H.R. 4768 before the
Subcomm. on Crime of the H. Comm. on the Judiciary, 99th Cong., 2d Sess. 9, 12 (1986)
[hereinafter House Hearing]). Deputy Assistant Attorney General James Knapp criticized the
narrower bill for excluding “such serious felonies against property as most burglary offenses.”
Taylor, 495 U.S. at 584 (quoting House Hearing at 15). He went on to say, “[W]hat crimes
against property should be included? We think burglary, of course; arson; extortion; and various
explosive offenses . . . [i]t is these crimes against property—which are inherently dangerous—
that we think should be considered as predicate offenses.” Taylor, 495 U.S. at 585 (quoting
House Hearing at 15).
To address the competing concerns, the House Subcommittee on Crime introduced a
compromise bill, H.R. 4885. Taylor, 495 U.S. at 586. The bill included “violent felon[ies]” as
predicate offenses, which it defined as “any crime punishable by imprisonment for a term
exceeding one year that—(i) has as an element the use, attempted use, or threatened use of force
34
against the person of another; or (ii) involves conduct that presents a serious potential risk of
physical injury to another.” Id. (quoting H.R. 4885, 99th Cong., 2d Sess. (1986)).
The Report by the House Committee on the Judiciary explained:
The other major question . . . was as to what violent felonies involving physical force against property should be included in the definition of ‘violent’ felony. The Subcommittee agreed to add . . . crimes against property such as burglary, arson, extortion, use of explosives and similar crimes as predicate offenses where the conduct involved presents a serious risk of injury to a person.
Taylor, 495 U.S. at 587 (quoting H.R. Rep. No. 99-849 at 3 (1986)) (second emphasis added).
The final bill, as enacted, specifically reflected this purpose by adding this language to
subsection (ii): “is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to another.” Taylor, 495
U.S. at 587 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).
The Begay court summarized this history, observing that “Congress sought to expand
[the original predicate offenses] to include both crimes against the person (clause (i)) and certain
physically risky crimes against property (clause (ii)). Begay, 553 U.S. at 143-144 (emphasis
added). “When doing so, congress rejected a broad proposal that would have covered every
offense that involved a substantial risk of the use of physical force against the property of
another.” Id. at 144 (internal quotation marks omitted).
Unlike the listed examples, Mr. Hinkley’s prior conviction for possession of an
unregistered short-barrel shotgun is not a property crime. It does not involve physical force
against property, as in arson or the use of explosives. It also does not involve the invasion or
deprivation of the property of another, as in burglary or extortion. Reading subsection (ii) of the
ACCA to include possession of an unregistered short-barrel shotgun contravenes Congress’ clear
intent as well as the plain language of statute.
35
Congress rejected a broader proposal in favor of language that clearly limited the scope
of subsection (ii) to certain crimes against property which are physically risky. Because
possession of an unregistered short-barrel shotgun is not a crime against property, it is not similar
in kind to the listed examples. It is therefore not a predicate offense for the ACCA and the Court
of Appeals should be affirmed.
C. Mr. Hinkley’s Prior Conviction for Possessing an Unregistered Short-Barrel Shotgun is Different from the ACCA’s Listed Examples in Degree Of Risk Because it Does Not Involve Active Violence and Because Individuals May Lawfully Possess Short-Barrel Shotguns
The risk posed by the ACCA’s listed example crimes is of “closely related, active
violence.” United States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992). Because the listed examples
are committed in a purposeful, violent, and aggressive manner, they are “potentially more
dangerous when firearms are involved.” Begay, 553 U.S. at 145 (quoting Begay v. United States,
470 F.3d 964, 980 (10th Cir. 2006) (McConnell, J., dissenting in part) rev’d Begay, 553 U.S. 137
(2008)). Such violent, aggressive conduct “makes it more likely that an offender, later possessing
a gun, will use the gun deliberately to harm a victim.” Begay, 553 U.S. at 145.
Possession of a short-barrel shotgun is not a violent felony for the ACCA because it can
be lawfully possessed if it is registered. Amos, 501 F.3d at 530. In Amos, the court noted that if
possessing a short-barrel shotgun “were so dangerous in all instances . . . federal law would
prohibit the weapons altogether, rather than allowing their possession if they are registered.” Id.
at 529. Shooting a short-barrel shotgun “can obviously create a serious risk of physical harm to
another, but the same can hardly be said for their mere possession.” Id. While gun control laws
36
serve “serious” and “important goals” of public safety, “violat[ing] . . . their requirements” is not
automatically a violent felony. Id. at 529-30.
The Amos court also relied on the Sixth Circuit’s decision in United States v. Flores, 477
F.3d 431 (6th Cir. 2007), holding that a prior conviction under Michigan law for carrying a
concealed firearm was not a “violent felony.” Amos, 501 F.3d at 529. The Flores court first
noted that carrying a concealed firearm does not involve the “affirmative and active conduct”
that is inherent in the ACCA’s listed examples. Flores, 477 F.3d at 436. The court then explained
that Michigan law allowed people to carry concealed weapons if they had a license. Id. at 438.
The court was thus hesitant to conclude that “the act of carrying a concealed weapon poses such
a serious potential risk of physical injury to others” as to make it violent felony. Id.
The Amos court reasoned that “[c]arrying a concealed weapon comes closer to presenting
a risk of physical injury…as the gun must be on the defendant’s person.” Amos, 501 F.3d at 529.
A person can be convicted of possessing a short-barrel shotgun, though, “for keeping an
unloaded weapon locked or hidden in his attic or basement.” Id. Because individuals may
lawfully possess a short-barrel shotgun if they are registered, the Amos court found that it did not
pose the same degree of risk as the ACCA’s listed examples. Id.
Possessing an unregistered short-barrel shotgun does not pose the same degree of risk as
the ACCA’s listed examples because it does not involve closely related active violence. See Doe,
960 F.2d at 225. In Doe, the First Circuit held that a felon-in-possession-of-a-firearm conviction
was not a violent felony because it did not pose the same degree of risk as the ACCA’s listed
examples. Id. at 224. “One can easily imagine a significant likelihood that physical harm will
often accompany the very conduct that normally constitutes” burglary, arson, extortion, or the
use of explosives. Id. “It is much harder, however, to imagine such a risk of physical harm often
37
accompanying the conduct that normally constitutes firearm possession,” even by a felon. Id. at
224-225.
“[P]ossession…takes place in a variety of ways, [such as] in a closet, [or] in a
storeroom…which do not involve likely accompanying violence.” Doe, 960 F.2d at 225. The
very term “violent felony” calls to mind “a tradition of crimes that involve the possibility of
more closely related, active violence.” Id. “To include possession, one would have to focus upon
the risk of direct future harm that present conduct poses.” Id.
Individuals may lawfully possess a short-barrel shotgun by either making it or having it
transferred to them. See 26 U.S.C.A. § 5845(i), (j). Both methods require registering the shotgun
with the BATF. See 26 U.S.C.A. §§ 5812, 5822. Information and tutorials about how to legally
obtain NFA-regulated weapons like short-barrel shotguns are readily available on the Internet.
See, e.g., How to Buy Machine Guns, Suppressors, Short-Barreled Shotguns, A.O.W.'s and Shrt
[sic] Barreled Rifles, as Regulated by the ATF and the National Firearms Act, (NFA.), Impact
Guns (last visited Feb. 28, 2013), http://www.impactguns.com/how-to-order.aspx#class3. Online
firearms retailers advertise short-barrel shotguns for less than $600. See, e.g., Short Barrel
Shotgun, Impact Guns (last visited Feb. 28, 2013), http://www.impactguns.com/short-barrel-
shotgun.aspx (advertising three models of short-barrel shotguns for $599); Short-Barreled
Shotguns, Long Mountain Outfitters, LLC. (last visited Feb. 28, 2013),
http://www.longmountain.com/inventory/shortbarreledshotguns/httpwwwlongmountaincominve
ntoryshortbarreledshotguns/?edit=1 (advertising short-barrel shotguns for $375).
In 2011, the BATF processed 33,816 applications for the transfer of NFA-regulated
firearms to individuals and 5,477 applications for individuals to make NFA-regulated firearms.
Bureau of Alcohol, Tobacco, Firearms, and Explosives, U.S. Dep’t of Justice, Firearms
38
Commerce in the United States: Annual Statistical Update 2012, at 12 (2012) [hereinafter
Firearms Commerce] available at http://www.atf.gov/publications/firearms/050412-firearms-
commerce-in-the-us-annual-statistical-update-2012.pdf.11 As of March 2012, there were 124,079
short-barrel shotguns registered with the BATF. Firearms Commerce, supra, at 14.
Here, Mr. Hinkley’s prior conviction for possessing an unregistered short-barrel shotgun
involved only passive behavior. The only conduct required for Mr. Hinkley to be convicted of
the offense was possession of the shotgun and failure to register it with the BATF. As the Amos
court noted, simply possessing a short-barrel shotgun does not pose nearly as much risk as firing
one. If possessing a short-barrel shotgun inherently involved closely related, active violence,
Congress would make their possession unlawful under any circumstances. Similarly, the BATF
would not approve thousands of application every year for individuals to make or buy such
weapons if their possession was so inherently dangerous. The important and serious goals served
by the registration process for short-barrel shotguns do not automatically render a violation of
that process a violent felony.
Possessing an unregistered short-barrel shotgun is similar to carrying a concealed
weapon. The Flores and Amos courts found that such conduct does not pose such a serious
potential risk of physical injury to others as to make it violent felony. In fact, possessing a short-
barrel shotgun poses much less risk than carrying a concealed weapon because possession can
take place in a locked cabinet or hidden in an attic or basement. As the court in Doe emphasized,
the conduct involved in simple possession does not involve likely accompanying violence.
11 Form 1 and Form 4 are used by individuals to make or transfer NFA-regulated weapons. See Office of the Inspector General, U.S. Dep’t of Justice, The Bureau of Alcohol, Tobacco, Firearms and Explosives’ National Firearms Registration and Transfer Record: Evaluation and Inspections Report I-2007-006, Appendix I (2007) available at http://www.justice.gov/oig/reports/ATF/e0706/app1.htm.
39
Including possession of an unregistered short-barrel shotgun as a violent felony would
focus upon the risk of future harm that present conduct poses. The listed crimes involve the
possibility of closely related, active violence. As the Begay court noted, this closely related
active violence makes arson, burglary, and extortion much more dangerous when they are
committed with a firearm. It would be absurd to suggest that possessing an unregistered short-
barrel shotgun becomes more dangerous when later possessing a firearm. Because Mr. Hinkley’s
prior conviction for possession of an unregistered short-barrel shotgun does not pose the
immediate risk inherent in the listed examples, it is not a violent felony for the ACCA and the
decision of the Court of Appeals should be affirmed.
40
CONCLUSION
Based on the foregoing, Petitioner, Roy Hinkley Requests that this honorable Court
REVERSE the decision of the Court of Appeals in regards to the Fourth Amendment claim, and
AFFIRM the Court of Appeals in regards to sentencing.
Respectfully Submitted, Team 19 ______________________ Team 19 Attorneys for Petitioner Roy Hinkley Dated: March 5, 2013