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No. 15-212
IN THE
United States Court of Appeals
for the Ames Circuit
____________________________________
ARNOLD DAVID PIKE,
Appellant,
v.
UNITED STATES OF AMERICA,
Appellee.
____________________________________
On Appeal from
The United States District Court
for the District of Ames
____________________________________
BRIEF FOR APPELLANT
____________________________________
The Jimmie Lee Jackson Memorial Team
A. ZOE BEDELL
SAMUEL BLOCK
MEGHAN CLEARY
CHEN-CHEN JIANG
D. PATRICK KNOTH
KAVYA NAINI
Counsel for the Appellant
Oral Argument:
Wednesday, March 25, 2015
6:15 PM
Ames Courtroom
Harvard Law School
QUESTIONS PRESENTED
1. Because suppression deters flagrant police misconduct, courts suppress
evidence stemming from unconstitutional searches undertaken deliberately and
culpably. Without a warrant or justification, Agent Dickerson knowingly
fabricated a life-or-death emergency, employed scare tactics to get into Arnold
Pike’s home, snooped in Pike’s bedroom without permission, and rifled through
Pike’s personal property. Did the district court err in denying Pike’s motion to
suppress the seized evidence?
2. Under United States Sentencing Guidelines Manual § 4B1.1, Arnold Pike
cannot be a career offender unless a conviction under Ames Revised Statute §
545.15 (A) and (D) necessarily 1) involves force against another person or 2) is
as dangerous as burglary, arson, extortion, and use of explosives. Section 545.15
(A) and (D) criminalizes only the discharge of a firearm with recklessness
toward the harm, an offense that 1) involves no other person and 2)
encompasses such inoffensive conduct as excitedly shooting a gun into the sky.
Did the district court err in sentencing Pike as a career offender?
i
TABLE OF CONTENTS
QUESTIONS PRESENTED ..............................................................................i!
TABLE OF CONTENTS .................................................................................. ii!
OPINION BELOW ............................................................................................. 1!
JURISDICTION ................................................................................................. 1!
CONSTITUTIONAL, STATUTORY, AND REGULATORY
PROVISIONS INVOLVED ............................................................................... 1!
STATEMENT OF THE CASE .......................................................................... 2!
SUMMARY OF ARGUMENT ........................................................................... 7!
ARGUMENT ..................................................................................................... 12!
I. Standard of review.................................................................................. 12!
II. The district court erred in denying Pike’s motion to
suppress because the benefits of deterring Dickerson’s
deliberate and culpable conduct far outweigh the costs. ................. 12!
A. Dickerson’s search of Pike’s home violated the Fourth
Amendment, and the resulting search warrant was thus
invalid. .................................................................................................... 13!
1. Dickerson’s warrantless search of Pike’s home was
unconstitutional. .................................................................................. 13!
a. Dickerson’s coercion precludes consent.......................................... 14!
b. Even if Dickerson had permission to check gas appliances,
he had no authority to enter Pike’s bedroom and dig
through his belongings.................................................................... 16!
2. Without the illegally obtained evidence, no probable cause
existed to support a search warrant. .................................................. 17!
B. Suppression of the unconstitutionally obtained evidence is the
only appropriate response to Dickerson’s warrantless search. ........... 19!
1. Dickerson acted deliberately and culpably when he repeatedly
violated Pike’s privacy. ........................................................................ 20!
2. The benefits of deterring Dickerson’s highly intrusive behavior
through suppression outweigh any costs. .......................................... 21!
ii
3. Dickerson’s unconstitutional search of Pike’s home taints the
subsequent warrant, and any resulting evidence must be
suppressed as “fruit of the poisonous tree.” ....................................... 23!
a. No “fruit of the poisonous tree” exceptions excuse
Dickerson’s unconstitutional search. ............................................. 24!
b. The good-faith exception also does not apply, and the
evidence seized from Pike’s house must be suppressed. ............... 25!
i. This Court should not apply the good-faith exception
when a search warrant is the fruit of the illegal police
misconduct.................................................................................. 25!
ii. Even if the good-faith exception could apply to a tainted
search warrant, Dickerson’s unconstitutional actions bar
its application. ............................................................................ 29!
III. The district court erred in sentencing Pike as a career
offender because discharging a firearm without intent to
harm is not a “crime of violence.” ........................................................... 31!
A. Celebratory shooting is the least culpable and most typical
conduct criminalized by § 545.15 (A) and (D), and therefore is
the only conduct relevant to the “crime of violence” inquiry
under the categorical approach. ............................................................ 32!
B. Interpretations of the Armed Career Criminal Act apply with
equal force to the language of § 4B1.2. ................................................. 35!
C. Pike’s prior offense is not a “crime of violence” because it does
not fall within the force clause, the enumerated crimes, or the
residual clause. ...................................................................................... 36!
1. Pike’s prior offense does not satisfy the force clause. ........................ 36!
2. Pike’s prior offense was not an enumerated crime. ........................... 36!
3. Pike’s prior offense does not fall within the residual clause. ............ 36!
a. Pike’s prior offense is not similar in kind to the enumerated
crimes. .............................................................................................. 37!
i. Pike’s prior offense was reckless, not purposeful. ................... 37!
ii. Pike’s prior offense was not violent and aggressive. .............. 39!
b. Pike’s prior offense is not similar in degree of risk to the
enumerated crimes.......................................................................... 40!
iii
4. Whether or not Pike’s prior offense falls within the residual
clause, he cannot be sentenced as a career offender because
the clause is void for vagueness. ......................................................... 43!
D. Sentencing Pike as a career offender violates the Guidelines’
purposes.................................................................................................. 46!
CONCLUSION ................................................................................................. 48!
APPENDIX........................................................................................................ 49!
iv
TABLE OF AUTHORITIES
Cases!
Begay v. United States,
500 U.S. 192 (2008) ............................................................................... passim
Chambers v. United States,
555 U.S. 122 (2009) ....................................................................................... 32
Coates v. City of Cincinnati,
402 U.S. 611 (1971) ....................................................................................... 43
Connally v. Gen. Constr. Co.,
269 U.S. 385 (1926) ....................................................................................... 44
Davis v. United States,
131 S.Ct. 2419 (2011) ................................................................................... 26
Descamps v. United States,
133 S.Ct. 2276 (2013) .................................................................................... 32
Grayned v. City of Rockford,
408 U.S. 104 (1972) ................................................................................. 10, 43
Illinois v. Gates,
462 U.S. 213 (1983) ...................................................................................... 18
Illinois v. Krull,
480 U.S. 340 (1987) ....................................................................................... 26
James v. United States,
550 U.S. 192 (2007) ..................................................................... 33, 40, 41, 44
Johnson v. United States,
135 S.Ct. 939 (2015) ...................................................................................... 44
Johnson v. United States,
559 U.S. 133 (2010) ....................................................................................... 39
Kolender v. Lawson,
461 U.S. 352 (1983) ...................................................................................... 44
Lewis v. United States,
385 U.S. 206 (1966) ................................................................................. 14, 16
v
Maryland v. Pringle,
540 U.S. 366 (2003) ....................................................................................... 18
Murray v. United States,
487 U.S. 533 (1988) ....................................................................................... 24
Nix v. Williams,
467 U.S. 431 (1984) ....................................................................................... 25
Olmstead v. United States,
277 U.S. 438 (1928) ....................................................................................... 22
Papachristou v. City of Jacksonville,
405 U.S. 156 (1972) ...................................................................................... 43
Payton v. New York,
445 U.S. 573 (1980) ............................................................................. 7, 12, 13
People v. Jefferson,
43 A.D.2d 112 (N.Y. App. Div. 1973) ............................................................ 14
Shepard v. United States,
544 U.S. 13 (2005). ....................................................................................... 33
State v. Berhe,
139 Wash. App. 1066 (Wash. Ct. App. 2007) ............................................... 39
State v. Engle,
731 N.W.2d 852 (Minn. Ct. App. 2007) ........................................................ 39
Sykes v. United States,
131 S.Ct. 2267 (2011) ............................................................................ passim
Taylor v. United States,
495 U.S. 575 (1990) .................................................................................. 9, 32
United States v. Bigelow,
914 F.2d 966 (7th Cir. 1990) ......................................................................... 41
United States v. Boaz,
558 F.3d 800 (8th Cir. 2009) ......................................................................... 52
United States v. Ceccolini,
vi
435 U.S. 268 (1978) ....................................................................................... 24
United States v. Christensen,
559 F.3d 1092 (9th Cir. 2009) ....................................................................... 37
United States v. Clarkson,
551 F.3d 1196 (10th Cir. 2009) .................................................................... 27
United States v. Coronado,
603 F.3d 706 (9th Cir. 2010) ......................................................................... 38
United States v. Cotton,
722 F.3d 271 (5th Cir. 2013) ......................................................................... 16
United States v. Garcia,
997 F.2d 1273 (9th Cir. 1993) ....................................................................... 14
United States v. Gear,
577 F.3d 810 (7th Cir. 2009) ......................................................................... 33
United States v. Giraldo,
743 F. Supp. 152 (E.D.N.Y. 1990) ................................................................. 14
United States v. Gore,
636 F.3d 728 (5th Cir. 2011) ......................................................................... 52
United States v. Hardin,
539 F.3d 404 (6th Cir. 2008) ......................................................................... 14
United States v. Harrison,
639 F.3d 1273 (10th Cir. 2011) ............................................................... 14, 15
United States v. Hemingway,
734 F.3d 323 (4th Cir. 2013) ......................................................................... 31
United States v. Hernandez-Galvan,
632 F.3d 192 (5th Cir. 2011) ......................................................................... 12
United States v. Herrick,
545 F.3d 53 (1st Cir. 2008) ...................................................................... 35, 39
United States v. Herring,
555 U.S. 135 (2009) .............................................................................. passim
vii
United States v. Jenkins,
396 F.3d 751 (2005) ................................................................................. 29, 30
United States v. Jones,
132 S.Ct. 945 (2012) ...................................................................................... 13
United States v. Jones,
978 F. Supp. 2d 632 (E.D. La. 2013) ............................................................. 39
United States v. Karo,
468 U.S. 705 (1984) ....................................................................................... 18
United States v. King,
673 F.3d 274 (4th Cir. 2012) ..................................................................... 9, 33
United States v. Lanier,
520 U.S. 259 (1997) ....................................................................................... 46
United States v. Lee,
631 F.3d 1343 (11th Cir. 2011) ..................................................................... 52
United States v. Leon,
468 U.S. 897 (1984) ............................................................................. 8, 25, 26
United States v. Lillard,
685 F.3d 773 (8th Cir. 2012) ......................................................................... 52
United States v. Lipscomb,
619 F.3d 474 (5th Cir. 2010) ......................................................................... 52
United States v. Lynch,
518 F.3d 164 (2d Cir. 2008) ........................................................................... 45
United States v. Mayer,
560 F.3d 948 (9th Cir. 2009) ..................................................................... 9, 33
United States v. McClain,
444 F.3d 556 (6th Cir. 2005) ................................................................... 28, 29
United States v. McGill,
618 F.3d 1273 (11th Cir. 2010) ..................................................................... 52
United States v. McGough,
412 F.3d 1232 (11th Cir. 2005) ..................................................................... 12
viii
United States v. Phillips,
752 F.3d 1047 (6th Cir. 2014) ....................................................................... 12
United States v. Prater,
766 F.3d 501 (6th Cir. 2014) ......................................................................... 45
United States v. Reilly,
76 F.3d 1271 (2d Cir. 1996) ........................................................................... 28
United States v. Song Ja Cha,
597 F.3d 995 (9th Cir. 2010) ......................................................................... 23
United States v. Thomas,
757 F.2d 1359 (2d Cir. 1985) ......................................................................... 28
United States v. Vasey,
834 F.2d 782 (9th Cir. 1987) ......................................................................... 27
United States v. Voustianiouk,
685 F.3d 206 (2d Cir. 2012) ........................................................................... 20
United States v. Wanless,
882 F.2d 1459 (9th Cir. 1989) ....................................................................... 18
United States v. Woods,
576 F.3d 400 (7th Cir. 2009) .................................................................. 36, 37
Wilson v. Commonwealth,
No. 2012-CA-001153-MR, 2014 WL 6686504 (Ky. Ct. App. Nov. 26,
2014) ............................................................................................................... 39
Wong Sun v. United States,
371 U.S. 471 (1963) ............................................................................. 8, 13, 23
Ybarra v. Illinois,
445 U.S. 85 (1979) ......................................................................................... 18
Statutes!
18 U.S.C. § 3553 (2014) ..................................................................................... 47
18 U.S.C. § 3742 (2014) ....................................................................................... 1
ix
28 U.S.C. § 1291 (2012) ....................................................................................... 1
Ames Revised Statute § 545.15 ................................................................ passim
Armed Career Criminal Act, 18 U.S.C. § 924 (2006) ...................................... 35
Colo. Rev. Stat. § 12-43.4-104 ........................................................................... 46
Florida Career Offender Registration Act, Fla. Stat. Ann. § 775.261
(West) (2013) .................................................................................................. 47
Other Authorities !
Amy V. Rapkiewicz, Fatal Wounds Sustained from “Falling Bullets”:
Maintaining a High Index of Suspicion in a Forensic Setting, 59 J.
Forensic Sci. 268 (2014) .......................................................................... 42, 43
Black's Law Dictionary (10th ed. 2014) ........................................................... 39
David A. Harris, How Accountability-Based Policing Can Reinforce —
Or Replace — The Fourth Amendment Exclusionary Rule, 7 Oh. St. J.
Crim. L. 149 (2009) ........................................................................................ 22
Drive by America, Violence Policy Center........................................................ 34
Evan Tsen Lee et. al, Which Felonies Pose a “Serious Risk of Injury” for
Federal Sentencing Purposes?, 26 Fed. Sent’g Rep. 118 (2013) .................. 45
Garen J. Wintemute, et al., Epidemiology and Clinical Aspects of Stray
Bullet Shootings in the United States, 73 J. Trauma & Acute Care
Surgery 215 (2012) ........................................................................................ 34
Jeremy Gray, Birmingham Police New Year's Eve Operation: 13
Arrests, 10 Guns Seized, 488 Gunfire Calls, AL.com, Jan. 1, 2014 ............ 34
Knight Ridder, Men Fight to Prevent Celebratory New Years, Lubbock
Avalanche-Journal, Dec. 31, 1996 ................................................................ 34
Maya Brehm & John Borrie, Use of Explosive Weapons in Populated
Areas: Some Questions and Answers 1–2 (2010).......................................... 41
Merriam-Webster's Collegiate Dictionary 24 (11th ed. 2003) ........................ 39
x
None Hurt by Falling Bullets for Third Consecutive New Year’s Eve,
The Times-Picayune, Jan. 1, 2012 ................................................................ 42
Samuel Walker, Taming the System: The Control of Discretion in
Criminal Justice 1950-1990 (1993) .............................................................. 21
U.S. Sent’g Comm’n, Report on the Continuing Impact of United States
v. Booker on Federal Sentencing: Part C 4 (2012) ....................................... 35
Wayne R. LaFave, “Case-by-Case Adjudication” Versus “Standardized
Procedures”: The Robinson Dilemma, 1974 Sup. Ct. Rev. 127 (1974) ........ 28
Yale Kamisar, In Defense of the Search and Seizure Exclusionary Rule,
26 Harv. J.L. & Pub. Pol’y 119 (2003) .......................................................... 21
Regulations!
U.S. Sentencing Guidelines Manual § 4B1.1 (2014) ............................... passim
U.S. Sentencing Guidelines Manual § 4B1.2 (2014) ............................... passim
Constitutional Provisions!
U.S. Const. amend. IV. ............................................................................... 13, 17
xi
OPINION BELOW
The unreported opinion of the United States District Court for the
District of Ames, United States v. Arnold David Pike, No. 14-cr-9450 (D. Ames
Nov. 25, 2014), is reproduced at page 21 of the Joint Appendix. The unreported
sentencing judgment is reproduced at page 38 of the Joint Appendix.
JURISDICTION
The judgment on the motion to suppress evidence was entered on
November 25, 2014. The district court entered the sentence on January 5, 2015.
Appellant Arnold Pike filed a timely notice of appeal on January 8, 2015. This
court has jurisdiction under 28 U.S.C. § 1291 (2013) and 18 U.S.C. § 3742 (a)
(2013).
CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS
INVOLVED
Pertinent constitutional, statutory, and regulatory provisions are
reproduced in an appendix to this brief.
1
STATEMENT OF THE CASE
On
August
12,
2014,
Agent
Dickerson
violated
Arnold
Pike’s
constitutional rights by intruding upon Pike’s home without warrant or cause.
On January 5, 2015, a district court judge incorrectly labeled Pike a career
offender and sentenced him under an unconstitutional provision. Yet it is Pike
who will pay the ultimate price for these constitutional violations: he will be
imprisoned based on illegally obtained evidence and will be branded a career
offender for life. Now, Pike appeals these decisions and asks the Court to right
these wrongs.
It all began on the night of August 12, 2014, when Dickerson sat in his
unmarked police car waiting for any evidence of suspicious activity. J.A. 6. He
was monitoring 130 Holmes Drive, a suspected marijuana grow house. J.A. 6.
There was little activity until around 8:00 PM, when Arnold Pike, who lived
across the street, walked over to 130 Holmes Drive and knocked on his
neighbor’s door. J.A. 6. Pike chatted with his neighbor at the doorway for a few
minutes, and at the end of their “calm looking conversation,” the neighbor
handed Pike a duffel bag, and Pike returned home. J.A. 6, 12. It was dark
outside, and Dickerson could not make out what the neighbor looked like or
what was inside the duffel bag, but his interest was piqued. J.A. 12–13. Based
on that one conversation, Dickerson abandoned his stakeout. J.A. 13. He was
convinced an illicit transaction had taken place, and he wanted to
investigate — immediately. J.A. 13.
2
Dickerson had never seen Pike before; he did not even know his name.
J.A. 22. But Dickerson decided to take action: if he could not see the bag from
Pike’s doorway, he would deceive Pike to gain entry to the home. J.A. 13.
Dickerson needed a ruse that would get him into Pike’s home as quickly as
possible, but since he knew nothing about Pike, his go-to disguise as a drug
buyer would not work. J.A. 14. Dickerson knew from his training that
impersonating a utility worker was acceptable, and that it was not out of the
ordinary for gas repairmen to visit so late at night. J.A. 14. Dickerson settled
on his ruse: he would pretend there was a gas leak that threatened Pike’s
safety. J.A. 14.
Dickerson knocked on Pike’s front door. J.A. 7. When Pike answered,
Dickerson peered inside but could not see the bag. J.A. 13. The ruse was on.
Posing as a gas repairman, Dickerson lied to Pike about a reported gas leak
and asked to enter Pike’s home. J.A. 15. Pike declined, saying he did not smell
any gas. J.A. 15. Undeterred, Dickerson warned Pike that gas leaks do not
always have an odor. J.A. 16. But, if Pike let him in, Dickerson could guarantee
there was no leak and ensure Pike’s safety. J.A. 19. Dickerson knew that with a
real gas leak, a mere spark could cause a deadly explosion. J.A. 17. He designed
his ruse to present Pike with only two options: let a gas repairman in, or risk
injury and death to both himself and those around him. J.A. 17.
Figuring “better safe than sorry,” Pike allowed Dickerson to investigate
the leak. J.A. 19. Dickerson asked to see the gas-related appliances in the
3
kitchen and basement. J.A. 20. Pike watched as Dickerson “examined” the
kitchen stove. J.A. 15. But wanting to eat dinner, Pike stayed in the kitchen
and gave Dickerson specific directions to the basement — and only the
basement. J.A. 20. All Dickerson saw there were boxes and a few suitcases. J.A.
15. Evidently, this was highly suspicious: in Dickerson’s view, “people in this
neighborhood don’t normally travel a lot.” J.A. 15. On the way back to the
kitchen, still empty-handed, Dickerson peeked into Pike’s bedroom from the
hallway and saw a duffel bag on the bed. J.A. 16. Dickerson could not see
anything inside of it. J.A. 18. Though Dickerson knew there was no reason a
gas repairman would need to go into a bedroom, he entered anyway. J.A. 18.
Dickerson unzipped the bag and dug through it. J.A. 7. He removed a package,
examined the leafy substance inside, and estimated its weight. After putting it
back, Dickerson snuck out of the room. J.A. 7, 18–19, 22. Before leaving,
Dickerson noted Pike’s name and assured him that everything was fine.
J.A. 23.
Dickerson raced back to the office and wrote up a warrant affidavit based
on his observations in Pike’s home. J.A. 23. A magistrate judge granted the
search warrant that very night. J.A. 23. FBI agents found six pounds of
marijuana during their search the next morning. J.A. 23.
Procedural History
On September 19, 2014, a grand jury indicted Pike under 21 U.S.C.
§ 841. J.A. 11. Pike moved to suppress all evidence resulting from Dickerson’s
4
initial search. J.A. 23. The district court agreed the warrant affidavit was
based on an unconstitutional search because Dickerson’s ruse had “crossed the
line that separates consent from coercion.” J.A. 24. However, the court applied
the good-faith exception to admit evidence because Dickerson’s coercion, though
unconstitutional, was “close to the line of validity.” J.A. 25.
Pike accepted responsibility for his actions and pleaded guilty, so the
government recommended a sentencing reduction. J.A. 26. Pike retained the
right to appeal the denial of his motion to suppress evidence and to withdraw
his guilty plea if the appeal were successful. J.A. 26, 31. During its sentencing
hearing on January 5, 2015, the district court assessed Pike’s criminal history
to determine his eligibility for the career offender enhancement under United
States Sentencing Guidelines Manual (USSG) § 4B1.1. J.A. 28. Pike’s prior
convictions were for possession with intent to distribute marijuana and the
discharge of a weapon in a public place with recklessness towards the harm.
J.A. 28. The latter, which violated Ames Revised Statute § 545.15 (A) and (D),
was notably the only time Pike ever shot a gun. J.A. 34. The district court held
Pike’s criminal history qualified him as a career offender. J.A. 36.
The career offender enhancement had a significant impact on Pike’s
sentence. It changed Pike’s criminal history category from III to VI and drove
up Pike’s base offense level from 10 to 22. J.A. 31. This pushed the advisory
sentencing range from 10–16 months to 84–105 months. J.A. 31. Pike objected
to the enhancement and requested a downward variance from the Guidelines,
5
emphasizing that he was neither a career criminal nor a violent person. J.A.
32–35. The district court agreed, noting, “a sentence within the Guidelines’
range would be very harsh” for him. J.A. 36. The judge recognized that Pike
was not the “worst of the worst,” the intended targeted for the enhancement.
Nonetheless, she believed it would be “wrong to ignore” the guidelines, and
imposed a thirty-month prison sentence, followed by four years of supervised
release. J.A. 36. On January 8, 2015, Pike filed a timely notice of appeal. J.A.
39.
6
SUMMARY OF ARGUMENT
I.
The Fourth Amendment demands the highest respect for the sanctity of
the home. Dickerson repeatedly violated this protection by invading Pike’s
home without a warrant and rummaging through Pike’s belongings without
cause. Suppression safeguards all citizens’ privacy by deterring flagrant police
misconduct and arbitrary intrusion. The district court erred in denying Pike’s
motion to suppress unconstitutionally obtained evidence, and this Court must
now vacate that denial.
The primacy of the home under the Fourth Amendment is undisputed; a
police invasion of an individual’s home without a warrant is “presumptively
unreasonable” and unconstitutional. Payton v. New York, 445 U.S. 573, 586
(1980). Yet Dickerson — lacking a warrant or even the probable cause to get
one — ignored this presumption and trespassed on Pike’s privacy and into his
home. While consent could have justified Dickerson’s warrantless entry, there
can be no consent without meaningful choice. See Schneckloth v. Bustamonte,
412 U.S. 218, 222, 227 (1973). By choosing a gas-leak ruse that offered Pike a
life-or-death choice, Dickerson denied Pike the opportunity to truly consent.
Moreover, even if Dickerson had permission to enter as a gas repairman, he
exceeded the scope of any explicit or implicit authority the second he stepped
into Pike’s bedroom. See Florida v. Jardines, 133 S.Ct. 1409, 1415–16 (2013).
Stripping Dickerson’s affidavit of unconstitutionally obtained evidence would
leave only bare assertions unable to support probable cause. The resulting
7
search warrant was therefore invalid, and the subsequent search was
unconstitutional.
These constitutional violations cannot go unanswered; all evidence must
be suppressed. Courts consider two interrelated factors when deciding to
suppress: 1) whether the officer acted deliberately and culpably in violating the
Constitution and 2) whether the benefits of deterrence outweigh the costs.
United States v. Herring, 555 U.S. 135, 142, 145 (2009). Here, both factors call
for suppression. Dickerson carefully selected a ruse to coerce his way into
Pike’s home, snuck into Pike’s bedroom without permission, and rummaged
through Pike’s bag. Deterring this deliberate misconduct has significant
benefits — most importantly, minimizing needless intrusions into the home.
And given the abundance of lawful investigatory options, suppression poses
little cost. Deterring this behavior through suppression ensures that the Fourth
Amendment truly protects the home. Moreover, the “fruit of the poisonous tree”
doctrine dictates that suppression applies to all evidence stemming from the
initial constitutional violation. See Wong Sun v. United States, 371 U.S. 471,
484 (1963). Therefore, all evidence gathered from Pike’s home must be
suppressed.
The district court erred in admitting this evidence through the good-faith
exception. This exception was created for situations when the police conducting
a search rely, in good faith, on a warrant later found invalid based on a
technical error. United States v. Leon, 468 U.S. 897, 905 (1984). It plainly does
8
not apply here, where the warrant’s invalidity stems from Dickerson’s
deliberate and culpable misconduct. Even when circuits erroneously apply the
good-faith exception to tainted search warrants, they still require that the
initial police misconduct be objectively reasonable, a hurdle that Dickerson’s
flagrant constitutional violations cannot clear. This Court must vacate the
denial of the motion to suppress.
II.
Not only was Pike unjustly convicted, but he was also unjustly
sentenced. Pike has fired a gun once in his life. He never intended to hurt
anyone: He did not aim a gun at a person. He did not shoot a gun at a person.
Pike may not have been as careful as the law demands, but his single reckless
discharge ought not make him a career offender for life.
Pike’s sentence must be overturned because he was incorrectly labeled a
career offender under USSG § 4B1.1. For Pike to be a career offender, his prior
violation of Ames Revised Statute § 545.15 (A) and (D) must qualify as a “crime
of violence,” as defined by USSG § 4B1.2. To make this determination, courts
use a categorical approach, looking to the statutory language and not a
defendant’s specific actions. See Taylor v. United States, 495 U.S. 575, 600–01
(1990). The specific way Pike breached § 545.15 (A) and (D) is therefore
irrelevant; only the least culpable or most typical conduct criminalized by §
545.15 (A) and (D) must be a “crime of violence” for the whole statute to qualify.
See United States v. King, 673 F.3d 274, 278 (4th Cir. 2012); United States v.
Mayer, 560 F.3d, 948, 960 (9th Cir. 2009). Here, this relevant conduct is
9
celebratory shooting — excitedly firing a gun into the air with no target in
mind. Jurisprudence regarding both § 4B1.1 and similarly worded statutes
shows that this conduct does not have any of the characteristics of a “crime of
violence.” Pike was therefore incorrectly sentenced.
Pike’s careless discharge of a firearm does not fall within the three
definitions of a “crime of violence” articulated by § 4B1.2. His crime does not
fall within the force clause: Pike did not use force against another person. Pike
did not commit an enumerated crime: he did not burglarize a home, set a fire,
extort a person, or detonate an explosive. Nor does Pike’s crime fall within the
residual clause: he did not do anything similar, in kind or risk, to the
enumerated crimes. See Begay v. United States, 553 U.S. 137, 143 (2008). Pike’s
crime is not similar in kind, as shooting with no intent to harm is not
purposeful, violent, or aggressive. Pike’s crime is not similar in risk, because
both common sense and statistics show that indiscriminately shooting into the
air is less risky than any of the enumerated crimes. Pike’s crime was not a
“crime of violence.”
Branding Pike as a career offender is not only inaccurate, but also
affronts the Guidelines’ purposes and the Constitution. Enhancing Pike’s
sentence does not improve public safety, promote rehabilitation, or properly
reflect the triviality of Pike’s prior offenses. Nor is it constitutional. The
residual clause’s failure to articulate an explicit standard contradicts the
fundamental principle of due process. See Grayned v. City of Rockford, 408 U.S.
10
104, 108 (1972). As the many circuit splits show, courts are unable to determine
whether a crime is similar to a list of dissimilar crimes. The residual clause is
unconstitutionally vague and ought to be struck down. No matter the means,
there is only one end: Pike’s sentence must be vacated.
11
ARGUMENT
I. STANDARD OF REVIEW
In considering whether a district court erred in denying a motion to
suppress, circuit courts review legal conclusions de novo and factual findings
for clear error. See, e.g., United States v. McGough, 412 F.3d 1232, 1236 (11th
Cir. 2005). Whether a defendant’s prior conviction falls within the meaning of a
“crime of violence” is considered de novo, see, e.g., United States v. HernandezGalvan, 632 F.3d 192, 196 (5th Cir. 2011), as are challenges to the
constitutionality of a statute, see, e.g., United States v. Phillips, 752 F.3d 1047,
1049 (6th Cir. 2014).
II. THE DISTRICT COURT ERRED IN DENYING PIKE’S MOTION TO
SUPPRESS BECAUSE THE BENEFITS OF DETERRING
DICKERSON’S DELIBERATE AND CULPABLE CONDUCT FAR
OUTWEIGH THE COSTS.
Under the Fourth Amendment, there is no place like home. The Supreme
Court has repeatedly affirmed this principle, holding that warrantless searches
of the home are “presumptively unreasonable” and thus unconstitutional.
Payton, 445 U.S. at 586. Although consent can justify a warrantless search,
Dickerson’s coercive ruse precluded consent. Without the information from
Dickerson’s illegal entry, there was not enough evidence to find probable cause.
Because the warrant was therefore invalid, courts must suppress all
unconstitutionally obtained evidence, provided that the benefits of deterring
deliberate police misconduct outweigh the costs. Herring, 555 U.S. at 142.
Here, the costs do not rival the benefits of deterring Dickerson’s flagrant
12
constitutional violations: Dickerson coerced his way into Pike’s home, invaded
Pike’s bedroom, and rummaged through Pike’s belongings, all without cause.
Dickerson’s constitutional violations taint everything that comes after,
including his search warrant affidavit and the evidence seized from Pike’s
home the next day. See Wong Sun, 371 U.S. at 484. The good-faith exception
cannot excuse this violation, and no other exception applies. This evidence
must be suppressed.
A.
Dickerson’s search of Pike’s home violated the Fourth
Amendment, and the resulting search warrant was thus invalid.
1. Dickerson’s warrantless search of Pike’s home was unconstitutional.
Police are meant to uphold the laws, not write their own. Police are
meant to protect citizens, not exploit their fear. The Constitution enshrines
these principles, yet Dickerson ignored them. The Fourth Amendment
guarantees every citizen the right “to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.” U.S. Const.
amend. IV. This protection is highest in the sanctity of the home; in order to
“minimize[] the danger of needless intrusions” and limit excessive police zeal,
warrantless searches of a home are “presumptively unreasonable.” Payton, 445
U.S. at 586. And a search has “undoubtedly occurred” when the government
physically trespasses on private property to obtain information. United States
v. Jones, 132 S.Ct. 945, 950 n.3 (2012).
Dickerson had no warrant or probable cause, yet he trespassed and
searched Pike’s home nonetheless. But his violations did not stop with his
13
entry. When Dickerson intruded into Pike’s bedroom, he performed an
unconstitutional search. When he unzipped Pike’s duffel bag, he performed an
unconstitutional search. And when he rifled through Pike’s bag and pulled out
its contents, he performed an unconstitutional search. At any of these points,
Dickerson could have stopped, but he deliberately chose not to. He trampled
the bounds of the Fourth Amendment, and his search was patently
unconstitutional and unjustified.
a. Dickerson’s coercion precludes consent.
There is no consent when an officer leads a homeowner to believe he
faces a life-or-death decision. The government must prove that the individual
consented freely and voluntarily. Bustamonte, 412 U.S. at 222. While law
enforcement officers may use ruses or undercover identities, these ruses cross a
line — and there is no voluntary consent — when they leave a homeowner with
no meaningful choice. Compare United States v. Harrison, 639 F.3d 1273, 1276,
1281 (10th Cir. 2011) (coercive ruse about bomb reported in defendant’s
apartment), United States v. Hardin, 539 F.3d 404, 424–25 (6th Cir. 2008)
(coercive ruse about water leak in upstairs apartment), United States v.
Giraldo, 743 F. Supp. 152, 154 (E.D.N.Y. 1990) (coercive gas leak ruse), and
People v. Jefferson, 43 A.D.2d 112, 113–14 (N.Y. App. Div. 1973) (same), with
Lewis v. United States, 385 U.S. 206, 210–11 (1966) (permissible ruse about
prospective marijuana buyer), and United States v. Garcia, 997 F.2d 1273, 1280
(9th Cir. 1993) (permissible ruse about prospective renters looking at
14
apartment). When a police officer misleads a citizen to believe he is in danger,
there is no meaningful choice. The ruse is impermissible.
This is especially true where a ruse leads a citizen to fear for his life. In
Harrison, government agents falsely told the defendant that they believed
there was a bomb planted in his apartment; he initially hesitated to let them
in, but consented after they stressed the danger. 639 F.3d at 1276. The Court
disregarded Harrison’s subjective fear: the question was whether the ruse was
inherently coercive. Id. at 1281. In holding there was no consent, the Tenth
Circuit emphasized that Harrison’s choice — to either allow the agents to
enter or accept that his apartment might explode — was no real choice at all.
Id. at 1280.
Like the agents in Harrison, Dickerson offered Pike a life-or-death
“choice” with only one real option. Dickerson knew that a gas leak was
dangerous, and in fact selected this ruse because Pike would have to rely on
Dickerson’s supposed expertise. J.A. 14, 17. As in Harrison, Pike first tried to
dismiss Dickerson, but Dickerson persisted, noting that gas leaks do not always
give off a strong smell and promising to make sure the house was safe. J.A. 16.
Pike then let Dickerson in, as any reasonable person would, figuring it was
“better safe than sorry.” J.A. 19. If this ruse were permissible, it would give law
enforcement carte blanche to enter any citizen’s home. Because choosing
between “safe” and “sorry” — between letting a gas repairman in, or having
your home explode — is inherently coercive, Pike did not freely consent to
15
Dickerson’s search. Everything that happened after Dickerson entered is thus
unconstitutional.
b. Even if Dickerson had permission to check gas appliances, he had
no authority to enter Pike’s bedroom and dig through his belongings.
Fourth Amendment protections do not stop at the front door. Consent
does not provide government agents with a license “to conduct a general
search.” Lewis, 385 U.S. at 211. The scope of consent is limited by explicit and
implicit authorization. An individual explicitly consenting to a search “may of
course delimit as he chooses the scope of the search.” Florida v. Jimeno, 500
U.S. 248, 252 (1991) (emphasis added). The scope of consent is also implicitly
limited to what a “typical reasonable person [would] have understood by the
exchange between the officer and the suspect.” Id. at 251.
For example, in United States v. Cotton, 722 F.3d 271 (5th Cir. 2013), the
court found that officers exceeded the defendant’s explicit consent to search
luggage in a car when they searched the car’s trunk and cabin as well. Id. at
274–76. Authority to search luggage in the car was not authority to search the
entire car. Likewise, Dickerson only asked to see, and Pike only agreed to show,
the gas appliances: the stove, furnace, and gas meter. J.A. 15, 20. Pike’s explicit
directions clearly limited Dickerson to entering the basement and only the
basement. J.A. 20. Dickerson exceeded the scope of Pike’s consent the second he
stepped into the bedroom. As in Cotton, Dickerson’s authority to examine gas
appliances in the house was not authority to search the entire house.
16
Dickerson also violated the implicit consent typically granted to a gas
repairman on a house call. When police enter a home without a warrant,
explicit consent, or exigency, they are bound by the same norms that bind all
other visitors. See Jardines, 133 S.Ct. at 1415–16. For example, in Jardines,
the Court held that although the police may approach the home and knock on
the door, they cannot use a drug-sniffing dog on the home’s front porch: “the
background social norms that invite a visitor to the front door do not invite him
there to conduct a search.” Id. at 1416. Similarly, the background social norms
of inviting a repairman to examine a home’s gas appliances do not invite him to
enter the homeowner’s bedroom, unzip a duffel bag, and rummage through the
bag’s contents. Any houseguest — repairman or otherwise — knows this is
unacceptable. Dickerson himself could not think of a single reason for a gas
repairman to go into the bedroom, much less dig through Pike’s bag. J.A. 18–
19. Even if Pike had granted limited consent to search the home for a gas leak,
Dickerson exceeded the implied and express scope of that consent.
2. Without the illegally obtained evidence, no probable cause existed to
support a search warrant.
Dickerson’s uncorroborated hunch does not justify a search warrant. The
Fourth Amendment requires all warrants to demonstrate “probable cause,
supported by oath or affirmation.” U.S. Const. amend. IV. Probable cause only
exists when there is a “fair probability” or “substantial chance” that law
enforcement will find evidence or criminal activity. Safford Unified Sch. Dist.
No. 1 v. Redding, 557 U.S. 364, 371 (2009) (quoting Illinois v. Gates, 462 U.S.
17
213, 238, 243 n.13 (1983)). Illegally obtained information cannot be used to
establish probable cause — courts strike this information from the affidavit
and evaluate the warrant application without it. United States v. Karo, 468
U.S. 705, 719 (1984). For example, in United States v. Wanless, 882 F.2d 1459
(9th Cir. 1989), the court held there was no probable cause after it stripped an
affidavit of illegally obtained evidence. Id. at 1464–66. Though the remaining
evidence included needle marks in the defendant’s arm, his admission of
having “shot up” two days prior, and a syringe cap and “bindle,” there was no
probable cause because there was no physical evidence of the drugs themselves.
Id.
Likewise, after Dickerson’s affidavit is stripped of unconstitutionally
obtained information, there is no probable cause. Before Dickerson entered
Pike’s home, his only “evidence” was a casual conversation between Pike and
his neighbor, who was suspected of — but not proven to be — growing
marijuana. J.A. 6. Even if Dickerson’s four years on the force suggested that
this was suspicious, speaking with a suspicious individual does not equal
probable cause. See Maryland v. Pringle, 540 U.S. 366, 372–73 (2003). “[M]ere
propinquity to others independently suspected of criminal activity does not,
without more, give rise to probable cause.” Id. (quoting Ybarra v. Illinois, 445
U.S. 85, 91 (1979)). Though Dickerson suspected the neighbor’s duffel bag
contained drugs, he had significantly less physical evidence than the officers in
Wanless. Even Dickerson’s observations from the kitchen, basement, and
18
hallway do not establish probable cause. Closed boxes, luggage, and a duffel
bag are not physical evidence of drugs. Pike’s possession of a few suitcases
hardly creates a “substantial chance” of criminality, despite Dickerson’s
personal belief that no one in the neighborhood travels. J.A. 15. Here,
Dickerson tenuously connected a few hunches, but his bare suspicions do not
establish probable cause.
B. Suppression of the unconstitutionally obtained evidence is the
only appropriate response to Dickerson’s warrantless search.
Dickerson decided constitutional limits did not apply to him; suppression
ensures future officers do not make the same choice. A court must apply the
exclusionary rule and suppress unconstitutionally obtained evidence when
doing so significantly furthers compliance with the law. Courts consider two
factors when determining if suppression would have this effect: 1) whether the
officer acted deliberately and culpably in violating the Constitution and 2)
whether the benefits of deterrence outweigh the costs. See Herring, 555 U.S. at
142, 145. These two considerations interact: deterrence is most effective when
an officer acts deliberately and culpably. Pike’s is the paradigmatic case where
both factors compel suppression. Dickerson’s calculated ruse and unauthorized
entry into Pike’s home were flagrant and unnecessary invasions of privacy
when Dickerson had plenty of lawful ways to investigate instead. Suppressing
the illegal fruits of Dickerson’s search now would deter officers from these
burdensome intrusions in the future.
19
1. Dickerson acted deliberately and culpably when he repeatedly violated
Pike’s privacy.
Pretending a man’s life is at risk to get into his house does not happen by
accident. When officers, like Dickerson, act deliberately and culpably while
violating the Constitution, the only appropriate response is to suppress any
evidence gained. See Herring, 555 U.S. at 144 . The purpose of this exclusionary
rule is not to remedy the constitutional violation; instead, it deters future police
misconduct. While an inadvertent mistake or casual error may not be
deterrable, “intentional conduct that [is] patently unconstitutional” is precisely
what the exclusionary rule was designed to prevent. Id. at 143. For example, in
United States v. Voustianiouk, 685 F.3d 206 (2d Cir. 2012), the court
suppressed thousands of illegally seized child pornography files. Id. at 209–10.
The police had a warrant to search the first floor of the apartment building, but
then searched the second floor when they realized the suspect lived there
instead. Id. The court held the evidence must be suppressed because the
“officers did not stumble into the second-floor apartment by accident.” Id. at
215. Instead of considering other available options, such as securing a new
warrant, they knowingly exceeded the scope of their authority. Their actions
were no mistake, so their conduct was deliberate and culpable.
Dickerson’s actions were similarly deliberate. He did not accidently
stumble into Pike’s home; he purposefully selected a ruse tailored to leave Pike
no choice but to grant him access. Dickerson did not take any reasonable steps
to investigate, such as conducting surveillance or interviewing neighbors.
20
Instead, he entered Pike’s home and searched through Pike’s bedroom and
personal belongings without a warrant, much less probable cause. At every
step, Dickerson could have followed the law but decided not to. His invasion of
Pike’s privacy was deliberate and culpable.
2. The benefits of deterring Dickerson’s highly intrusive behavior through
suppression outweigh any costs.
The benefits gained from deterring Dickerson’s misconduct are exactly
those anticipated by the exclusionary rule. While nothing can right a past
constitutional wrong, suppression is critical to the preservation and
implementation of the Fourth Amendment when it deters those wrongs going
forward. See Herring, 555 U.S. at 141. Suppression deters constitutional
violations by incentivizing law enforcement officers to respect the law. In fact,
the exclusionary rule has had precisely this deterrent effect. Since the rule’s
introduction, there have been “wide-ranging reforms in the education, training,
and supervision of police officers” that have improved their professionalism and
respect for constitutional rights. Samuel Walker, Taming the System: The
Control of Discretion in Criminal Justice 1950–1990, at 51 (1993). New York
City’s former police commissioner described the exclusionary rule’s value,
noting it led his department to reconsider its procedures, develop new policies,
and rebuild its institutions, “sometimes from their very foundations upward.”
Yale Kamisar, In Defense of the Search and Seizure Exclusionary Rule, 26
Harv. J.L. & Pub. Pol’y 119, 123–24 (2003). The value is easy to imagine in this
case: if Dickerson’s unconstitutionally obtained evidence is suppressed, future
21
officers will not use coercive ruses to invade people’s houses without cause.
Instead, officers will be trained to build their cases within constitutional
bounds, using legal methods to investigate without infringing on citizens’
rights — precisely what suppression was designed to accomplish.
Moreover, suppression — and the resulting compliance with the law it
encourages — enhances police legitimacy by showing citizens the law applies to
all. See David A. Harris, How Accountability-Based Policing Can Reinforce —
Or Replace — The Fourth Amendment Exclusionary Rule, 7 Oh. St. J. Crim. L.
149, 163 (2009). This, in turn, encourages respect for police actions and more
virtuous behavior from citizens. Id. at 164. As Justice Brandeis noted, “If the
government becomes a lawbreaker, it breeds contempt for law . . . . To declare
that . . . the government may commit crimes in order to secure the conviction of
a private criminal would bring terrible retribution.” Olmstead v. United States,
277 U.S. 438, 468 (1928) (Brandeis, J., dissenting). Allowing Dickerson’s
violations to stand would undermine police legitimacy.
Any costs of suppression pale in comparison to the benefits to be gained.
While suppression could potentially limit law enforcement’s investigatory
options going forward and let a specific individual go free, neither consideration
is weighty here. Given the number of investigatory options Dickerson had
besides unconstitutionally entering Pike’s house, suppression will not
meaningfully restrict investigations. Moreover, in this specific case, the crime
at issue is a relatively minor offense, and even the government acknowledges
22
that Pike is just a small player in a “much larger” operation. J.A. 34. Courts
have been willing to suppress evidence in much more serious cases involving
crimes like human trafficking and child pornography. See, e.g., Voustianiouk,
685 F.3d at 217 (suppressing thousands of files of child pornography); United
States v. Song Ja Cha, 597 F.3d 995, 1007 (9th Cir. 2010) (suppressing
evidence of, among other offenses, sex trafficking and enticement to travel for
the purpose of prostitution). Courts place a high premium on preventing
egregious privacy intrusions, even at the cost of letting very culpable offenders
go free. “Losing” Pike is a small price to pay for protecting citizens’ security and
privacy in their homes. Because Dickerson’s behavior is deliberate and
culpable, and because the benefits of deterrence are so high, suppression is the
appropriate response.
3. Dickerson’s unconstitutional search of Pike’s home taints the
subsequent warrant, and any resulting evidence must be suppressed
as “fruit of the poisonous tree.”
Suppression is not limited to the initial constitutional violation — an
unconstitutional search poisons any evidence that follows. When an officer
violates the Constitution, any evidence stemming from this act must be
suppressed as “fruit of the poisonous tree.” See Wong Sun, 371 U.S. at 484. In
Wong Sun, officers entered the defendant’s house and arrested him without
probable cause. Id. at 484. The Court suppressed the defendant’s post-arrest
statements because they flowed from this constitutional violation; the
statements were “fruit” of the “poisonous” police misconduct. Id. at 485. Like
23
the Wong Sun officers, Dickerson also acted without probable cause when he
illegally entered Pike’s house to search it. The “poison” from this constitutional
violation tainted all “fruit” that followed, including all evidence seized during
the subsequent, warranted search.
a. No “fruit of the poisonous tree” exceptions excuse Dickerson’s
unconstitutional search.
When wrongfully obtained evidence is not closely or exclusively tied to
the constitutional violation, three exceptions to the “fruit of the poisonous tree”
doctrine might apply: 1) the attenuation exception, 2) the independent basis
exception, and 3) the inevitable discovery exception. None of these exceptions
are relevant here.
The attenuation exception only applies when the discovery of the
challenged evidence is so far removed from the police misconduct that the taint
of the “poison” has dissipated. United States v. Ceccolini, 435 U.S. 268, 273–74
(1978). There is no dissipation here: Dickerson’s Fourth Amendment violation
is a direct and immediate cause of the discovery of all later evidence. The
search warrant could not have been obtained but-for Dickerson’s illegal search,
and the subsequent search occurred within twenty-four hours without any
intervening events. There was no attenuation, and this exception cannot apply.
Under the independent basis exception, evidence will not be suppressed
if officers can show it was separately obtained through independent, legal
means. See Murray v. United States, 487 U.S. 533, 542 (1988). Here, there was
no sufficient basis for the search warrant without Dickerson’s observations
24
during his illegal search of Pike’s home. See also supra Part II.A.2. Because
there was no alternate, independent basis for the warrant, the exception is
inapplicable.
For the inevitable discovery exception to apply, the Government must
prove “the [tainted] information ultimately or inevitably would have been
discovered by lawful means.” Nix v. Williams, 467 U.S. 431, 444 (1984). In Nix,
officers learned the location of a body from an illegally obtained confession, but
the Court did not suppress because the record showed a search party — two
hundred volunteers using a well-organized grid system — would have
inevitably discovered the body. Id. at 448–49. Unlike Nix, the record does not
contain any pre-existing, concrete plan that would have led to the discovery of
any evidence in Pike’s house. No exceptions apply.
b. The good-faith exception also does not apply, and the evidence
seized from Pike’s house must be suppressed.
i. This Court should not apply the good-faith exception when a
search warrant is the fruit of the illegal police misconduct.
The good-faith exception cannot absolve Dickerson’s unconstitutional
search simply because another officer executed the warrant. This exception
only admits evidence when law enforcement officers have relied in good faith on
search warrants that are later invalidated on technical grounds. See Leon, 468
U.S. at 921. In these cases, there is no deterrable police misconduct, so
suppression cannot serve its primary purpose. The exception does not, however,
permit evidence when a warranted search is based on the fruit of a deliberate,
25
unconstitutional search. In Leon, officers searched a house based on a warrant
they believed was reliable, but because the magistrate had erred in issuing the
warrant without probable cause, the search was unconstitutional. Id. at 902,
905. Nonetheless, the Court admitted the evidence because the only error was
the magistrate’s, and there was no police misconduct to deter. Id. at 921. Since
Leon, the Court has applied the good-faith exception to cases where warrants
were later found deficient because of subsequent statutory changes, shifts in
case law, and record-keeping errors. See Illinois v. Krull, 480 U.S. 340, 356
(1987); Davis v. United States, 131 S.Ct. 2419, 2429 (2011); Herring, 555 U.S. at
148. All of these cases share a single theme: the officers involved followed the
law in good faith, and the warrant was either invalidated because of 1) a
neutral third party or 2) police actions so far removed as to be unrelated and
undeterrable.1
But where officers have deliberately disregarded the law, the good-faith
exception cannot save them. For example, the Court has said that the goodfaith exception does not apply when a police officer falsely or recklessly created
an affidavit that supports a search warrant. See Leon, 468 U.S. at 923. In
Davis, the Court further emphasized that officers who flagrantly violated the
law were not the intended beneficiaries of the good-faith exception. 131 S.Ct. at
2427. Several circuits have followed this reasoning and held that the good-faith
The fact that different officers performed the initial search and executed the warrant does not
change the analysis. See Leon, 468 U.S. at 923 n.24. The Court recently confirmed this by
evaluating all officers’ misconduct when applying the good-faith exception. See Herring, 555
U.S. at 140.
1
26
exception is never an option when a search warrant is based on the fruits of
illegal police misconduct. See, e.g., United States v. Clarkson, 551 F.3d 1196,
1203 (10th Cir. 2009); United States v. Vasey, 834 F.2d 782, 789 (9th Cir. 1987).
In Vasey, the Ninth Circuit refused to apply the good-faith exception because a
police officer illegally searched a vehicle and used his findings to obtain a
search warrant. Id. Because “the constitutional error was made by the officer
[and] . . . not by the magistrate,” there was police misconduct to deter, so the
good-faith exception did not apply. Id. Even the magistrate’s approval of the
warrant did not “sanitize” the tainted affidavit; magistrates only assess
probable cause, not the legality of the initial search. Id. The Vasey rule best
comports with the tenets of the Fourth Amendment and the spirit of the goodfaith exception: it encourages law enforcement to seek a warrant and deters
them from deliberately invading a citizen’s property and privacy.
Like the Vasey officer, Dickerson deliberately conducted a search without
a warrant or consent. Dickerson disregarded a constitutional amendment and
well-established protections of the home, creating his own law instead when he
forced his way into Pike’s home. This misconduct is deterrable, see supra Part
II.B.1, and therefore not what the good-faith exception was intended to cover.
In Leon, the Court rewarded an officer for seeking a warrant before conducting
a search of a home. If the good-faith exception applied to Pike’s case, this Court
would reward Dickerson for not seeking one.
27
Yet some circuits have erroneously applied the good-faith exception even
when a search warrant affidavit is based on the fruits of an unconstitutional
search. These circuits have permitted evidence on a case-by-case basis if they
determine the illegal actions in preparing the warrant were objectively
reasonable, yet still, somehow, unconstitutional. See, e.g., United States v.
McClain, 444 F.3d 556, 565 (6th Cir. 2005). But reasonableness and
constitutionality are one and the same in the Fourth Amendment context: an
officer that conducts an unconstitutional search by definition has acted
unreasonably. Jimeno, 500 U.S. at 250 (noting the Fourth Amendment
“proscribes [searches] which are unreasonable”). This extension of the goodfaith exception is illogical and certainly should not be adopted here.
As would be expected, this logical fallacy has led to arbitrary results both
within and between circuits. Compare, e.g., United States v. Thomas, 757 F.2d
1359, 1368 (2d Cir. 1985) (admitting evidence even though the search warrant
was based on an officer’s unconstitutional search), with United States v. Reilly,
76 F.3d 1271, 1280
(2d Cir. 1996) on reh'g, 91 F.3d 331 (2d Cir. 1996)
(suppressing evidence because the warrant affidavit was based on information
gained in an unconstitutional search). This arbitrariness further confuses trial
courts administering the rule and police officers trying to follow the law. See
Wayne
R.
LaFave,
“Case-by-Case
Adjudication”
Versus
“Standardized
Procedures”: The Robinson Dilemma, 1974 Sup. Ct. Rev. 127, 141–43 (1974).
28
The good-faith exception should never apply when an unconstitutional initial
search taints the resulting search warrant.
ii. Even if the good-faith exception could apply to a tainted search
warrant, Dickerson’s unconstitutional actions bar its application.
Applying the good-faith exception to Dickerson’s flagrant, warrantless
entry would open every citizen’s door to police intrusion. Even circuits that
sometimes admit evidence seized with a tainted search warrant nonetheless
require the initial police violation to be “close to the line of validity.” McClain,
444 F.3d at 553. To make this determination, courts evaluate whether the
officers acted objectively reasonably given the totality of the circumstances. See
id. at 543.
Two Sixth Circuit examples illustrate this principle. In McClain, officers
fearing an ongoing burglary searched an abandoned house after noticing a light
on and the front door ajar. Id. at 559–60. Instead of a burglar, the officers
discovered marijuana-growing equipment. Id. at 560. Other officers used this
evidence to obtain a warrant and returned to conduct a further search. Id. The
court applied the good-faith exception because the officers’ belief that there was
an ongoing burglary was objectively reasonable, though insufficient for
probable cause. Id. at 565–66. In contrast, in United States v. Jenkins, 396 F.3d
751 (2005), officers coerced their way into a suspected drug-dealer’s hotel room
and searched his bags. Id. at 755. After finding drugs, the officers returned
with a warrant. Id. at 755–57.
The court refused to apply the good-faith
exception because the initial warrantless search was unreasonable and
29
unconstitutional. Id. at 761. The officers had not received clear consent before
entering the room, and they had no need to search the defendant’s bags without
a warrant. Id. at 755, 761. The critical difference between the cases was the
justification for the officers’ unconstitutional searches: A misjudgment about
the exigency of the situation, which called for an immediate decision, was close
to the line of validity and could therefore not be deterred. In contrast, a fishing
expedition involving calculated coercion and an unauthorized search was not
close to the line and can and must be deterred.
Dickerson’s misconduct was also far from the line of validity. There was
no exigency for him to misjudge; there was no risk of violence or destruction of
property. Between the coercion, the bag search, and the complete disregard for
the law, Dickerson’s behavior was at least as unreasonable as that in Jenkins.
His training changes nothing; being trained to break the law does not make
your conduct constitutional. Dickerson’s actions cannot be tolerated, much less
rewarded: acting without justification or probable cause is not just objectively
unreasonable, but also the exact deliberate misconduct that could and should
be deterred.
While Pike might be the current victim of an unconstitutional search,
the true value of suppression is in protecting the bedrock constitutional rights
of all citizens. These fundamental protections are what individuals stand to
lose if the good-faith exception provides a back door for law enforcement to
violate the constitution without repercussion. For these reasons, suppressing
30
evidence from Dickerson’s unconstitutional search helps ensure a more
effective and principled justice system that respects individuals’ rights to
privacy and security in their homes.
III. THE DISTRICT COURT ERRED IN SENTENCING PIKE AS A
CAREER OFFENDER BECAUSE DISCHARGING A FIREARM
WITHOUT INTENT TO HARM IS NOT A “CRIME OF VIOLENCE.”
Punishment serves no purpose when it is not deserved. Sentencing
enhancements are thus reserved for the “worst of the worst”: they apply only
when warranted by egregious criminality. USSG § 4B1.1, therefore, only
enhances the criminal sentences of career offenders — adult defendants who
have two prior convictions that are either “crimes of violence” or controlled
substance offenses.2 See U.S.S.G. § 4B1.1 (2014); id. § 4B1.2. As defined in
§ 4B1.2, a crime can qualify as a “crime of violence” in three ways. First, if a
crime “has as an element the use, attempted use, or threatened use of physical
force against the person of another,” it qualifies under the Guidelines’ “force
clause.” § 4B1.2(a); see United States v. Hemingway, 734 F.3d 323, 327 (4th Cir.
2013). Second, if a crime is one specifically enumerated in the Guidelines —
burglary of a dwelling, arson, extortion, and the use of explosives — it is a
“crime of violence.” See Begay, 500 U.S. 192, 197 (2008). Third, if a crime is like
one of the enumerated crimes and “otherwise involves conduct that presents a
serious potential risk of physical injury to another,” it falls under the
The parties agree that Pike can only be sentenced as a career offender if his prior violation of
Ames Revised Statute § 545.15 (A) and (D) constitutes a “crime of violence.” Pike’s 2008 intent
to distribute marijuana charge qualifies as a controlled substance offense under § 4B1.1.
2
31
Guidelines’ “residual clause.” § 4B1.2(a); see Chambers v. United States, 555
U.S. 122, 125 (2009).
Pike’s conviction under Ames Revised Statute § 545.15 (A) and (D), for
the discharge of a firearm “made in reckless disregard of the risk of injury or
death to others,” does not qualify as a “crime of violence” in any of these three
ways. Section 545.15 (A) and (D) does not categorically proscribe a “crime of
violence,” because the least culpable and the most typical conduct it bars —
shooting in the air — is not a “crime of violence.” See Taylor, 495 U.S. at 600–
01. Under precedent regarding both § 4B1.2 and other statutes using identical
language, shooting in the air fits none of the three definitions of a “crime of
violence.” Sentencing Pike as a career offender would violate both the
fundamental principle of due process enshrined in the Constitution and the
purposes of the Guidelines. Pike’s unjust sentence must be vacated.
A. Celebratory shooting is the least culpable and most typical
conduct criminalized by § 545.15 (A) and (D), and therefore is the
only conduct relevant to the “crime of violence” inquiry under
the categorical approach.
Under a categorical approach, it does not matter how a defendant
committed his crime; courts will consider only the least culpable or most typical
conduct prohibited by a statute to determine if the statute categorically
proscribes a “crime of violence.”3 See King, 673 F.3d at 278 (considering the
The modified categorical approach does not apply here because § 545.15 (A) and (D)
criminalizes a single, indivisible crime — the intentional discharge of a firearm in a public
place made with reckless disregard to the harm — and the modified approach only applies to
divisible statutes. See Descamps v. United States, 133 S.Ct. 2276, 2285, 2293 (2013). If it did
apply, this Court would have to vacate Pike’s sentence because the relevant charging
3
32
“least culpable proscribed conduct”); Mayer, 560 F.3d at 960 (considering how
the crime is typically committed). To determine the least culpable or most
typical conduct, courts look to both common sense and statistics. See James v.
United States, 550 U.S. 192, 207 (2007).
In our case, common sense shows that the least culpable conduct
criminalized by § 545.15 (A) and (D) — celebratory gunfire — is also the
conduct that statistics show is most typical. In Vega v. People of Ames, 10 Ames
25 (Ames 2004), the Supreme Court of Ames noted that § 545.15 (D) “covered a
broad[] range of shootings,” from indiscriminate drive-by shootings to
celebratory shootings into the sky. Id. at 25. Of these crimes, shooting into the
air without a target is intuitively less culpable than aiming and shooting a gun
at a building or vehicle.
The limited statistics available show that this conduct is also the most
typical: celebratory shooting is by far the most common violation of § 545.15 (A)
and (D). See, e.g., United States v. Gear, 577 F.3d 810, 812 (7th Cir. 2009)
(“Most convictions under [an analogous] law appear to arise from shooting guns
into the air.”). Compare, for example, the relative frequency of drive-by and
celebratory shootings. More celebratory shootings are recorded in individual
cities in a single night than drive-by shootings are in multiple months
nationwide. For example, in New Orleans, police estimate that “gun-happy
celebrants have fired as many as 200,000 bullets to ring in the New Year.”
documents required for the modified categorical analysis are unavailable. See Shepard v.
United States, 544 U.S. 13, 27 (2005).
33
Knight Ridder, Men Fight to Prevent Celebratory New Years’ Eve Gunshots,
Lubbock Avalanche-Journal, Dec. 31, 1996. In 2008, on New Year’s Eve alone,
the Dallas police received more than 1,500 shots-fired calls. Garen J.
Wintemute, et al., Epidemiology and Clinical Aspects of Stray Bullet Shootings
in the United States, 73 J. Trauma & Acute Care Surgery 215, 219 (2012). In
Birmingham, in 2012, hundreds of New Year’s Eve gunfire calls-for-service are
received every year — there were over 560 in 2012 and 488 in 2014. See Jeremy
Gray, Birmingham Police New Year's Eve Operation: 13 Arrests, 10 Guns
Seized, 488 Gunfire Calls, AL.com (Jan. 1, 2014), http://blog.al.com/spotnews/
2014/01/birmingham_police_new_years_ev.html. And in Philadelphia in 2013,
the police report ten times as many as shots-fired calls over five hours on New
Years’ than any other night. Philadelphia Authorities Warn Against Firing
Guns
on
New
Year’s
Eve,
CBSPhilly
(Dec.
31,
2014),
http://philadelphia.cbslocal.com/2014/12/31/philadelphia-authorities-warnagainst-new-years-eve-celebratory-gunfire/. In contrast, during the last six
months of 2010, there were only 733 reported drive-by shootings nationwide.
This number includes shootings with an intent to harm, which would not be
covered by § 545.15 (A) and (D). Drive by America, Violence Policy Center
(2010), http://www.vpc.org/studies/driveby2010.pdf. Though these statistics are
admittedly scant and not perfectly comparable, they consistently point in a
single direction: the most common and least culpable conduct that § 545.15 (D)
34
criminalizes is celebratory shooting. Celebratory shooting is then the only
conduct relevant to Pike’s “crime of violence” inquiry.
B. Interpretations of the Armed Career Criminal Act apply with
equal force to the language of § 4B1.2.
To analyze § 4B1.2, courts rely on interpretations of the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924 (2006), a statute which also increases the
sentences of federal defendants with three prior “violent felony” convictions, id.
The language of the two statutes is nearly identical. Like § 4B1.2, ACCA
defines violent felonies using a force clause, list of enumerated crimes, and
residual clause. Indeed, Congress drafted § 4B1.2 to match ACCA. See U.S.
Sent’g Comm’n, Report on the Continuing Impact of United States v. Booker on
Federal Sentencing: Part C 4 (2012). The only difference between the text of the
two statutes is that ACCA lists “burglary” as an enumerated crime, whereas
the USSG lists “burglary of a dwelling.” The nonbinding Sentencing
Commission commentary accompanying the USSG also suggests some
additional crimes that may qualify as “crimes of violence.” U.S.S.G. § 4B1.2,
cmt. n.1 (2014). But these superficial distinctions are irrelevant; courts refer to
the ACCA and Guidelines “interchangeably” when reviewing a sentence
imposed under § 4B1.1. E.g., United States v. Woods, 576 F.3d 400, 404. (7th
Cir. 2009); See also, United States v. Herrick, 545 F.3d 53, 58 (1st Cir. 2008)
(“Precedent in this circuit, as well as in others, requires the application of case
law interpreting ‘violent felony’ in ACCA to ‘crime of violence’ in U.S.S.G.
35
§ 4B1.2(1) . . . .”). Here then, ACCA precedent governs the analysis of Pike’s
sentence.
C. Pike’s prior offense is not a “crime of violence” because it does
not fall within the force clause, the enumerated crimes, or the
residual clause.
1. Pike’s prior offense does not satisfy the force clause.
To qualify under the force clause, a crime must entail the use of force
“against the person of another.” U.S.S.G. § 4B1.2. Section 545.15 (A) and (D),
however, can be violated by shooting into the air — an act against no other
person. See Vega, 10 Ames 25. In fact, § 545.15 (A) and (D) is predicated on a
conscious disregard of other persons. Shootings made with intent to cause
death or bodily harm to another are criminalized by a wholly separate portion
of the statute, § 545.15 (C), which Pike did not violate. Pike’s conviction cannot
therefore be a crime of violence under the force clause.
2. Pike’s prior offense was not an enumerated crime.
Pike’s conviction under § 545.15 (A) and (D) is not for burglary, arson,
extortion, or the use of explosives. It is not an enumerated offense identified as
a “crime of violence.”
3. Pike’s prior offense does not fall within the residual clause.
Shooting a gun in the air is nothing like the enumerated crimes. To fall
within the residual clause, a “crime of violence” must be similar to the the
enumerated crimes in “otherwise present[ing] a serious potential risk of
physical injury to another.” U.S.S.G. § 4B1.2. Statutes that criminalize only
36
reckless disregard of harm must be both similar in kind and similar in risk to
satisfy this requirement. Begay, 553 U.S. at 143. This is a particularly high
standard; other kinds of crimes need only be similar in degree of risk. See Sykes
v. United States, 131 S.Ct. 2267, 2275–76 (2011) (observing that the Begay
Court used this two-part inquiry because the crime before it was in the class of
strict liability, negligence, and recklessness crimes). Pike’s prior offense was a
crime of recklessness and neither similar in kind nor similar in degree of risk to
the enumerated crimes. It is therefore not a “crime of violence.”
a. Pike’s prior offense is not similar in kind to the enumerated crimes.
A felony must be “committed in . . . a purposeful, violent, and aggressive
manner” to be similar in kind to § 4B1.2’s enumerated crimes. Begay, 553 U.S.
at 145 (emphasis added). “Because the Court in Begay used the conjunction
‘and,’ all three of its criteria — ‘purposeful, violent, and aggressive’ — must be
satisfied” before a crime may be deemed similar in kind. E.g., United States v.
Christensen, 559 F.3d 1092, 1095 (9th Cir. 2009). Pike’s crime, by contrast, was
reckless and non-confrontational. It is not similar in kind to the residual
clause’s enumerated crimes.
i. Pike’s prior offense was reckless, not purposeful.
Crimes committed without intent to harm are crimes of recklessness.
Intentional crimes require both intent to act and intent to cause harm; if the
intent to cause the harm is absent, the offense is a crime of recklessness. See,
e.g., Woods, 576 F.3d at 410–11. A drunk driver, for example, is convicted only
37
for his recklessness regarding the risk he creates, not for the fact that he
intentionally got behind the wheel. Whether or not he intended to drive drunk,
his crime is the same: it is a crime of recklessness. See Begay, 553 U.S. at 146.
Indeed, finding these offenses purposeful would obliterate the line between
recklessness and intentional crimes, as every crime of recklessness must begin
with a volitional act.
Likewise, intentionally discharging a firearm with reckless disregard to
the consequences is a crime of recklessness. As with drunk driving, the
underlying conduct of pulling the trigger is intentional, but the potential harm
caused by doing so is not. Relying on this exact distinction, the Ninth Circuit
held in United States v. Coronado, 603 F.3d 706 (9th Cir. 2010), that
California’s reckless discharge statute — nearly identical to §545.15 (A) and (D)
— proscribes a crime of gross negligence. Id. at 708. The court recognized that
while Coronado’s discharge was intentional, it was not intended to harm
anyone, so the crime itself was not purposeful. Id. at 711–12. This same logic
applies to Pike’s offense. While Pike’s discharge of a firearm was intentional,
see § 545.15 (A), any harm that resulted was not. Compare § 545.15 (D)
(imposing liability for recklessness) with § 545.15 (C) (imposing liability for
intentionally endangering another person). A conviction under § 545.15 (A) and
(D) is therefore not a “purposeful” crime, just as the drunk driving in Begay and
the reckless firearm discharge in Coronado were not.4
Of state statutes substantially similar to § 545.15 (A) and (D), a vast majority have been
classified by state courts as recklessness crimes. See e.g., United States v. Jones, 978 F. Supp.
4
38
ii. Pike’s prior offense was not violent and aggressive.
Lighting someone’s property on fire is violent; breaking into someone’s
home is aggressive. Celebratory shooting is neither. “Violent” conduct is
“[v]ehemently or passionately threatening.” Black's Law Dictionary 1801 (10th
ed. 2014). “Aggressive” conduct is “a forceful action . . . [especially] when
intended to dominate or master.” Herrick, 545 F.3d at 58 (quoting MerriamWebster's Collegiate Dictionary 24 (11th ed. 2003)).
A violation of § 545.15 (A) and (D) can only be deemed violent and
aggressive if these definitions apply to the most typical or least culpable
conduct that the statute criminalizes — celebratory shooting. See supra Part
III.A. But excitedly shooting a gun into the air to celebrate a wedding or the
Fourth of July is not conduct intended “to dominate or master another.”
Violations of § 545.15 (A) and (D) are likewise not “vehemently or passionately
threatening.” Firearm use — from target shooting to shooting in the air — is
often nonviolent. Because § 545.15 (A) and (D) criminalizes a broad range of
conduct, including celebratory shooting, it is distinguishable from narrower
firearm statutes that specifically target violent and aggressive conduct through
their aggravating elements. See United States v. Alexander, 609 F.3d 1250,
1258 (11th Cir. 2010) (“[I]t would be an exceptional case for one to fire from a
2d 632, 636 (E.D. La. 2013); Wilson v. Commonwealth, No. 2012-CA-001153-MR, 2014 WL
6686504, at *4 (Ky. Ct. App. Nov. 26, 2014); State v. Engle, 731 N.W.2d 852, 860 (Minn. Ct.
App. 2007); State v. Berhe, 139 Wash. App. 1066, 1067 (Wash. Ct. App. 2007). When evaluating
a state court conviction to determine whether career offender status is warranted, courts are
bound by the state supreme court’s interpretation its own law. See Johnson v. United States,
559 U.S. 133, 138 (2010).
39
vehicle within 1,000 feet of another person without violence and aggression.”).
Because a conviction under § 545.15 (A) and (D) is not categorically purposeful,
violent, and aggressive, it cannot be a “crime of violence.”
b. Pike’s prior offense is not similar in degree of risk to the
enumerated crimes.
A crime can only be a “crime of violence” if it is as dangerous as the
enumerated crimes, and shooting in the air is plainly not as dangerous as
burglary, arson, extortion, and use of explosives. See Begay, 553 U.S. at 143;
Sykes, 131 S.Ct. at 2275–76 (requiring a risk assessment for all crimes, even
non-recklessness crimes for which the similar in kind inquiry is unnecessary).5
To analyze risk, the court relies primarily on its common sense, though its
assessment is often aided by reference to statistics. See, e.g., Sykes, 131 S.Ct. at
2274 (noting that while “statistics are not dispositive,” they are helpful where
“they confirm the [Court’s] commonsense conclusion”).
A commonsense comparison of Pike’s crime to the enumerated examples
illustrates the dramatic difference between the two. Joyfully shooting a gun
into the air to celebrate a wedding is intuitively less risky than setting a home
ablaze or detonating explosives. Unlike Pike’s crime, the enumerated crimes
present a high risk of escalation. Burglary, for example, can quickly escalate in
the event of a surprise confrontation. James v. United States, 550 U.S. 192,
Though the Court once compared the risk of the crime in question “to that posed by its closest
analog among the enumerated offenses,” James v. United States, 550 U.S. 192, 203 (2007), such
analysis has been subsumed by the more comprehensive risk assessment the Court now
performs. And as a practical matter, a comparison of a crime with its apparent closest analog is
irrelevant where, as here, the crime is demonstrably less risky than all the enumerated crimes.
5
40
203–04 (2007). The fire set by an arsonist can engulf an entire neighborhood
with ease. And extortion can grow increasingly violent as pressure for illicit
funds increases. See United States v. Bigelow, 914 F.2d 966, 974 (7th Cir. 1990).
Even when they do not spread, explosions and fires can result in a sizeable
radius of physical devastation. See Maya Brehm & John Borrie, Use of
Explosive Weapons in Populated Areas: Some Questions and Answers 1–2
(2010). The enumerated crimes have destruction as their goal; none are
performed in celebration. By contrast, thousands of people shoot in the air to
celebrate holidays, and shooting with no target in mind is a single, contained
event, unlikely to escalate. Even if someone were to be hit, the impact is limited
to a single person. It is readily apparent then that a conviction under § 545.15
(A) and (D) does not entail the same degree of risk as the enumerated crimes.
The limited statistics available about reckless discharges6 confirm this
intuition. To determine a crime’s degree of risk, the Court looks to proxies like
the number of injuries per violation. See Sykes, 131 S.Ct. at 2274–75. In Sykes,
for instance, the Court considered relevant statistics showing 3.2 injuries per
every 100 burglaries and 3.3 injuries per every 100 arsons. Id. Though the
exact rate of injuries per violation of § 545.15 (A) and (D) is unknown, data
suggests that shooting a gun in the air is far less likely to cause an injury than
the enumerated crimes. Despite the thousand-plus celebratory shootings that
took place in Birmingham, Alabama, on New Year’s Eve in 2013, not a single
The CDC, for example, notes that “few data exist regarding . . . injuries related to celebratory
gunfire.” Ctr. For Disease Control, New Year’s Eve Injuries Caused by Celebratory Gunfire—
Puerto Rico, 2003, 53 Morbity & Mortality Wkly. Rep. 1171, 1174 (2004).
6
41
injury was reported. See Gray, supra. In New Orleans, where hundreds of
thousands of bullets were fired on New Year’s Eve, no celebratory shooting
injuries were reported over the most recent three years with available
statistics. None Hurt by Falling Bullets for Third Consecutive New Year’s Eve,
The Times-Picayune, Jan. 1, 2012, http://www.nola.com/crime/index.ssf/2012/
01/no_one_hit_by_falling_bullets.html.
These
numbers
reflect
the
“low
probability of serious injury or death” from falling bullets. Amy V. Rapkiewicz,
Fatal Wounds Sustained from “Falling Bullets”: Maintaining a High Index of
Suspicion in a Forensic Setting, 59 J. Forensic Sci. 268, 270 (2014). Moreover,
to the extent that these statistics are ambiguous, lenity counsels for their
ambiguities to be resolved in favor of the defendant.
Statistics regarding only the magnitude of injury are unhelpful without
statistics regarding the frequency of injury; the riskiness of an activity is based
not only on the severity of harm if injured, but also the actual likelihood of
injury. Everyone understands that plane crashes can be fatal, but their rarity
means that flying is still one of the safest modes of travel. Likewise, some
studies have shown that serious injury or death can result in the off chance one
is struck by a falling bullet. See, e.g., Ctr. For Disease Control, New Year’s Eve
Injuries Caused by Celebratory Gunfire — Puerto Rico, 2003, 53 Morbity &
Mortality Wkly. Rep. 1171, 1174 (2004) (unable to determine the number of
celebratory shootings, but noting that of 19 persons hit by potential celebratory
gunfire over two days, 36% were hit in the head). But these numbers miss the
42
mark: they are unhelpful to the risk analysis because they show only the
chance of harm if struck and say nothing about the likelihood of a strike. In
fact, statistics regarding the magnitude of harm suggest celebratory gunfire
may not be very risky. If injuries were severe, and the likelihood of being struck
by celebratory gunfire were high, one would expect to see significant numbers
of injuries or deaths. However, available numbers seem to show the opposite: of
2,647 homicides from gunshots over a 14-year period reported in Miami-Dade
County, only two cases (.07%) could have been caused by celebratory gunfire.
See Rapkiewicz, supra, at 1068. Existing statistics cumulatively point toward a
single conclusion: the typical and least culpable violation of § 545.15 (A) and
(D) is less risky than the enumerated crimes. Statistics therefore confirm what
common sense already indicate: Pike’s conviction was not a “crime of violence.”
4. Whether or not Pike’s prior offense falls within the residual clause, he
cannot be sentenced as a career offender because the clause is void for
vagueness.
Congress cannot simply enact a vague statute and direct courts to give it
meaning as they please. See Papachristou v. City of Jacksonville, 405 U.S. 156,
165 (1972). Due Process demands that a statute “provide explicit standards for
those who apply [it].” Grayned, 408 U.S. at 108. Although a statute with “an
imprecise but comprehensible normative standard” is permissible, a statute is
void for vagueness when it specifies no standard at all, such that a person “of
common intelligence must necessarily guess at its meaning.” Coates v. City of
Cincinnati, 402 U.S. 611, 614 (1971) (quoting Connally v. Gen. Constr. Co., 269
43
U.S. 385, 391 (1926)) (internal quotation mark omitted). If a statute does not
provide the requisite explicit standards, it must be struck down. See Kolender
v. Lawson, 461 U.S. 352, 36–62 (1983).
Section 4B1.2’s residual clause gives judges no “explicit standard” to
determine what crimes constitute “crimes of violence.” Its use of “otherwise
similar” in reference to a set of entirely dissimilar crimes is more than
imprecise: it specifies no standard at all.7 As Justice Scalia explains, while “the
phrase ‘shades of red,’ standing alone, does not generate confusion or
unpredictability; . . . the phrase ‘fire-engine red, light pink, maroon, navy
blue, or colors that otherwise involve shades of red’ assuredly does so.” James,
550 U.S. at 230 n.7 (Scalia, J., dissenting). A judge trying to determine whether
lime green “otherwise involves shades of red” would have no way of doing so;
she would necessarily have to guess at the clause’s meaning.
Section 4B1.2’s residual clause presents the same problem. Judges have
the impossible task of figuring out what crimes are “otherwise similar” to four
dissimilar crimes: burglary, arson, extortion, and the use of explosives.
Endeavor, for a moment, to reconcile these crimes. Burglary of a dwelling and
arson are property crimes; extortion and explosives are not. Extortion is
directed at a person, and may or may not entail physical force. No single motive
The Supreme Court has never interpreted § 4B1.2’s residual clause itself, though it has long
labored to find meaning in the ACCA’s identical provision. See Sykes, 131 S.Ct. at 2270
(identifying the instant case as the latest in the ACCA interpretation series). Having thus
tried, and failed, to give meaning to this meaningless provision, the Court is now hearing an
argument in April on the residual clause’s vagueness. Johnson v. United States, 135 S.Ct. 939
(2015).
7
44
drives the commission of all the crimes; while extortion and burglary have
economic ends, motives for the other crimes vary. And extortion is significantly
more dangerous than burglary of a dwelling and arson — at least according to
statistics that are themselves scant and ever-changing. See Evan Tsen Lee et.
al, Which Felonies Pose a “Serious Risk of Injury” for Federal Sentencing
Purposes?, 26 Fed. Sent’g Rep. 118, 120–22 (2013). The listed crimes
demonstrably fail to articulate any comprehensible standard.
The difficulty that courts have had interpreting and applying the
ACCA’s identical language demonstrates the residual clause’s failure to
articulate such a standard. The Supreme Court has announced three different
tests in four different cases over the course of four years trying to give meaning
to the residual clause. See Sykes, 131 S.Ct. at 2270 (listing the cases comprising
the ACCA interpretation series). The circuits too have struggled to find a
standard in this standardless clause, predictably splitting in their attempts to
do so and generating arbitrary and disparate sentencing outcomes. Even when
applying the residual clause to the same New York third-degree burglary
statute, for example, the Second and Sixth Circuits have found different
answers to the same question: while the Second Circuit holds that third-degree
burglaries are categorically crimes of violence, see United States v. Lynch, 518
F.3d 164, 170 (2d Cir. 2008), the Sixth Circuit asserts that they are not, see
United States v. Prater, 766 F.3d 501, 519 (6th Cir. 2014)). These “disparate
45
decisions” demonstrate unconstitutional vagueness. See United States v.
Lanier, 520 U.S. 259, 269 (1997).
Consider, for example, a hypothetical defendant whose criminal history
includes convictions for the distribution of marijuana, conspiracy, and the
possession of a sawed-off shotgun. If sentenced in Georgia (Eleventh Circuit),
this defendant would have only one conviction for a “crime of violence.” If
sentenced in Arkansas (Eighth Circuit), he would have two “crimes of violence.”
And in Mississippi (Fifth Circuit), this same defendant would be a career
offender. 8 Furthermore, if his three convictions were for possession of
marijuana, he would be a career offender in most circuits while not even a
criminal in others. See, e.g., Colo. Rev. Stat. § 12-43.4-104 (outlining procedures
for legal retail sale of marijuana). A defendant’s liberty should not hinge on the
fortuities of forum.
Such arbitrary and disparate outcomes cannot be tolerated. Allowing the
residual clause to continue producing such results would not only violate
Congress’s sentencing mandate, but also the Constitution’s promise of Due
Process. Pike’s liberty, and that of countless others, now turns on this senseless
statute. The time has come to strike it down.
D. Sentencing Pike as a career offender violates the Guidelines’
purposes.
Career offender enhancements are intended to punish the worst
criminals, who pose the greatest threat to society — not low-level offenders like
8
See appendix p. 52 for chart depicting these circuit splits.
46
Pike. Indeed, sentencing courts are limited to imposing only “sentence[s]
sufficient, but not greater than necessary, to comply with [the Guidelines’]
purposes,” which include public safety, rehabilitation, and the need to provide
proportional punishment. 18 U.S.C. § 3553 (2014). But Pike poses no threat to
public safety. He has fired a gun once in his life, and never with intent to harm.
J.A. 34. Sentencing Pike as a career offender imposed an unjust punishment
that did not reflect the seriousness of his offense. As the sentencing judge said
herself, a sentence within the career offender range “would be very harsh for
[Pike].” J.A. at 36. The enhancement unjustly exposes Pike to an additional five
to six years in prison. Finally, the career offender label does nothing but
impede Pike’s rehabilitation. Pike is 28 years old and wants only to “make
something of [his] life.” J.A. 35. An enhanced sentence means his most
productive years will be spent behind bars, and the career offender label will
brand him for life. See, e.g., Florida Career Offender Registration Act, Fla. Stat.
Ann. § 775.261 (West) (2013). Ultimately, enhancing Pike’s sentence under
§ 4B1.1 not only offends the conscience, but also violates the purposes of
sentencing that this Court is statutorily bound to protect.
Pike has made some mistakes. He has accepted responsibility for them
and is willing to do his time. But no defendant ought spend a single day more
in prison than is warranted under the law. Pike is no exception; he is not a
career offender, and being branded as such is an injustice. Unfairly applying
the career offender enhancement exposes not only Pike, but also generations of
47
defendants to the risk of disproportional punishment. An enhancement meant
to apply only to the “worst of the worst” would now apply to the least. This
result cannot stand; the Court must vacate the sentence that now robs Pike of
his liberty.
CONCLUSION
For the reasons stated above, we respectfully request that this Court
vacate both the denial of the motion to suppress evidence and Pike’s sentence.
February 23, 2015
Respectfully submitted,
The Jimmie Lee Jackson
Memorial Team
__________________________
ZOE BEDELL
__________________________
SAM BLOCK
__________________________
MEGHAN CLEARY
__________________________
CHEN-CHEN JIANG
__________________________
PATRICK KNOTH
__________________________
KAVYA NAINI
48
APPENDIX
The Fourth Amendment to the Constitution of the United States
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
U.S.S.G., § 4B1.1, 18 U.S.C.A.
(Selected Subsections)
(a) A defendant is a career offender if (1) the defendant was at least eighteen
years old at the time the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a crime of violence
or a controlled substance offense; and (3) the defendant has at least two prior
felony convictions of either a crime of violence or a controlled substance offense.
(b) Except as provided in subsection (c), if the offense level for a career offender
from the table in this subsection is greater than the offense level otherwise
applicable, the offense level from the table in this subsection shall apply. A
career offender's criminal history category in every case under this subsection
shall be Category VI.
Offense Statutory Maximum
(1) Life
(2) 25 years or more
(3) 20 years or more, but less than 25 years
(4) 15 years or more, but less than 20 years
(5) 10 years or more, but less than 15 years
(6) 5 years or more, but less than 10 years
(7) More than 1 year, but less than 5 years
Offense Level*
37
34
32
29
24
17
12.
(c) If the defendant is convicted of 18 U.S.C. § 924(c) or § 929(a), and the
defendant is determined to be a career offender under subsection (a), the
applicable guideline range shall be determined as follows:
(1) If the only count of conviction is 18 U.S.C. § 924(c) or § 929(a), the
applicable guideline range shall be determined using the table in subsection
(c)(3).
(2) In the case of multiple counts of conviction in which at least one of the
counts is a conviction other than a conviction for 18 U.S.C. § 924(c) or § 929(a),
49
the guideline range shall be the greater of-(A) the guideline range that results by adding the mandatory minimum
consecutive penalty required by the 18 U.S.C. § 924(c) or § 929(a) count(s) to
the minimum and the maximum of the otherwise applicable guideline range
determined for the count(s) of conviction other than the 18 U.S.C. § 924(c) or §
929(a) count(s); and
(B) the guideline range determined using the table in subsection (c)(3).
(3) Career Offender Table for 18 U.S.C. § 924(c) or § 929(a) Offenders
§ 3E1.1 Reduction Guideline Range for the 18 U.S.C. § 924(c) or § 929(a)
Count(s)
No reduction
2-level reduction
3-level reduction
360-life
292-365
262-327.
U.S.S.G., § 4B1.2, 18 U.S.C.A.
(a) The term “crime of violence” means any offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that-(1) has as an element the use, attempted use, or threatened use of physical
force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical
injury to another.
(b) The term “controlled substance offense” means an offense under federal or
state law, punishable by imprisonment for a term exceeding one year, that
prohibits the manufacture, import, export, distribution, or dispensing of a
controlled substance (or a counterfeit substance) or the possession of a
controlled substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
(c) The term “two prior felony convictions” means (1) the defendant committed
the instant offense of conviction subsequent to sustaining at least two felony
convictions of either a crime of violence or a controlled substance offense (i.e.,
two felony convictions of a crime of violence, two felony convictions of a
controlled substance offense, or one felony conviction of a crime of violence and
one felony conviction of a controlled substance offense), and (2) the sentences
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for at least two of the aforementioned felony convictions are counted separately
under the provisions of § 4A1.1(a), (b), or (c). The date that a defendant
sustained a conviction shall be the date that the guilt of the defendant has been
established, whether by guilty plea, trial, or plea of nolo contendere.
Ames Revised Statutes § 545.15
Intentional discharge of a firearm in a public place
(A) Any person who intentionally discharges a firearm in a public place,
including a public street, highway, school, playground, park, or a building
owned or operated by the government, shall be guilty of an offense.
(B) If the discharge occurred in a school, playground, park, or other place where
children are actually present, or in a building owned or operated by the
government, the offense shall be a felony in the first degree notwithstanding
any other provision of law (including subsection (D) of this Section).
(C) If the discharge was made with intent to cause death or bodily harm to
another, the offense shall be a felony in the first degree.
(D) If the discharge was made in reckless disregard of the risk of injury or
death to others, the offense shall be a felony in the second degree.
(E) Otherwise, the offense shall be a misdemeanor in the second degree.
(F) This section does not apply to the discharge of a firearm that is otherwise
authorized by law.
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Sample of Circuit Splits on “Crime of Violence” Classifications
Crime
Does this crime qualify as a “crime of violence”?
Yes
Conspiracy
No
Fifth Circuit
United States v. Gore, 636
F.3d 728 (5th Cir. 2011)
Eighth Circuit
United States v. Boaz, 558
F.3d 800 (8th Cir. 2009)
Eleventh Circuit
United States v. Lee, 631
F.3d 1343 (11th Cir. 2011)
Possession
of a sawedoff shotgun
Fifth Circuit
United States v. Lipscomb,
619 F.3d 474 (5th Cir.
2010)
Eighth Circuit
United States v. Lillard,
685 F.3d 773 (8th Cir.
2012)
52
Eleventh Circuit
United States v. McGill,
618 F.3d 1273 (11th Cir.
2010)