In the Supreme Court of the United States In the Supreme Court of ...

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Since Buie, the majority of circuit courts ruling on this issue have correctly held that protective sweeps are not limited to arrests. This conclusion is logical because neither Terry nor Long involved searches incident to arrest. Incorporating Terry, Long, and Buie, the Fifth Circuit distilled protective sweeps into four elements: (1) the officer must be legally and legitimately on the premises; (2) the officer must have a reasonable suspicion of danger; (3) the officer must limit the sweep’s scope; and (4) the officer must limit the sweep’s duration. This case meets all four elements. First, the Officer was legally and legitimately on the premises because the officer was searching for a dangerous burglary suspect, and the Convict gave the Officer permission to enter the house. Second, the officer reasonably suspected danger because eyewitnesses saw the suspect fleeing in the direction of the Convict’s house. The suspect had just committed a violent burglary in that neighborhood and matched the description of someone who had murdered the Convict’s neighbor. Third and fourth, the officer limited both the scope and duration of the sweep by looking briefly into the kitchen. The Officer’s protective sweep was reasonable under the safety doctrine, and therefore was reasonable under the Fourth Amendment. To protect citizens from future harm, Congress adopted the ACCA, a sentencing measure to keep violent repeat felons off the street. Under the ACCA’s residual clause, an offense is a violent felony if “it otherwise involves conduct that presents a serious potential physical risk of injury to another.” This Court initially interpreted the word “otherwise” to require a degree of risk similar to any of the statute’s enumerated offenses: burglary, robbery, arson, or conduct involving the use of explosives. Although this Court later added a “purposeful, violent, and aggressive conduct” requirement, this Court’s most recent case addressing the clause narrowed the application of this requirement to strict liability cases and negligent or 5
eckless conduct. Other felony offenses, therefore, qualify as a predicate violent felony if there is a serious potential risk of physical injury to another that is similar in degree, and in kind, to one of the four enumerated offenses. Felony possession of an unregistered sawed-off shotgun qualifies as a violent felony under the residual clause because it involves conduct that presents a serious potential risk of physical injury to another and the degree of risk involved exceeds that of the enumerated offenses. The design of the weapon is not for hunting or sport, but rather for inflicting serious harm to others. This is why this Court and Congress consider these weapons inherently dangerous. Further, they serve no lawful purpose. Congress, in passing the National Firearms Act, presumed the unwillingness to register these weapons meant the possessor was inclined to use it against others. This predisposition toward violence is a much greater risk of injury to others than simple burglary. This offense in not a strict liability crime and requires knowledge of possession, a higher level of mens rea than mere negligence or recklessness. Therefore, this Court need not analyze the offense for purposeful, violent, and aggressive conduct. Even if analyzed, however, this offense would still qualify because its lack of a lawful purpose indicates that typically, the weapon is possessed for future harmful use. Because possession of a sawed- off shotgun is inherently dangerous, has no lawful purpose, and requires registration due to its close association with violent criminal activity, it is a predicate violent felony under the ACCA. STANDARD OF REVIEW Courts review motions to suppress under a mixed standard of review. United States v. Chavez, 281 F.3d 479, 483 (5th Cir. 2002). Courts review factual findings for clear error and legal findings de novo. Id. Additionally, Courts view the evidence in the “light most favorable” to the party that won in the district court. Id. 6
Page 1 and 2: No. 13-201 ________________________
Page 3 and 4: TABLE OF CONTENTS ii Page Questions
Page 5 and 6: TABLE OF CONTENTS-Continued iv Page
Page 7 and 8: TABLE OF AUTHORITIES-Continued vi P
Page 9 and 10: TABLE OF AUTHORITIES-Continued B. F
Page 11 and 12: investigators quickly determined th
Page 13: Procedural History On October 1, 20
Page 17 and 18: The three seminal rulings governing
Page 19 and 20: Amendment intrusion was outweighed
Page 21 and 22: go on unlimited fishing expeditions
Page 23 and 24: had waited for a search warrant to
Page 25 and 26: The First Circuit found a protectiv
Page 27 and 28: determine whether an offense qualif
Page 29 and 30: eexamined the same issue in light o
Page 31 and 32: F.3d at 7 (commenting that Congress
Page 33 and 34: Subcommittee on Crime of the House
Page 35 and 36: only other listed offenses involvin
Page 37 and 38: The possession of an unregistered s
Page 39 and 40: U.S. Const. amend. IV APPENDIX Rele
Page 41 and 42: (h) to receive or possess a firearm
Page 43 and 44: term applies regardless of whether
Page 45: U.S. Sentencing Guidelines Manual

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