final draft for brief
Post on 30-May-2018
235 Views
Preview:
TRANSCRIPT
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 1/42
Team Identification Letter: CY
Case No. 09-61479
IN THE SUPREME COURT OF THE UNITED STATES
FALL TERM, 2009
__________________________________________________________________
Joseph D. Cornball,
Petitioner,
v.
State of Y
Respondent.
—————————————————————————————————
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE UNITED STATES
__________________________________________________________________
[BRIEF FOR RESPONDENT]
__________________________________________________________________
QUESTION PRESENTED
i
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 2/42
I. The Fourth Amendment ensures that police interference with
an individual’s right to privacy is justified. Deputy Beck
seized and searched petitioner on a reasonable belief that
the car in which petitioner was riding contained unlawfulsubstances. Was the search and seizure of the Petitioner
proper pursuant to the Fourth Amendment of the United
States Constitution?
II. Due Process requires that every fact necessary for the
conviction of a crime be proven beyond a reasonable doubt.
The Federal Post-Release Supervision Sentence Enhancement
Act (The Act) is an indeterminate Statute that requires a
judge to sentence all convicted criminals to a mandatory
period of post-release supervision. Does the Act violate
Petitioner’s Due Process rights?
TABLE OF CONTENTS
ii
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 3/42
QUESTIONS PRESENTED.......................................ii
TABLE OF CONTENTS....................................iii - v
TABLE OF AUTHORITIES................................vi - vii
OPINIONS AND ORDERS BELOW...............................viii
JURISDICTION............................................viii
STATUTORY PROVISIONS....................................viii
STATEMENT OF CASE......................................1 - 4
SUMMARY OF ARGUMENT........................................5
ARGUMENT...................................................6
I. The Fourth Amendment ensures that police
interference with an individual’s right to privacy is
justified. The Deputies’ search and seizure of defendant
was justified under the circumstances. The Sixteenth
Circuit properly held that the conduct of the deputies
did not violate Petitioner’s the Fourth Amendment rights.
5
A.Under the Automobile exception, the police may stop a vehicle in public transaction without a warrant. The
Deputies stopped petitioner’s vehicle upon a reasonable
belief that the driver was intoxicated. The search and
seizure of petitioner’s vehicle was lawful at its
inception. 6
B. The vehicle that Petitioner was riding in was lawfully
seized. Therefore, Petitioner was also detained and the
search and seizure of his person was not in contravention
of the Fourth Amendment 8
1. Under the circumstance, the seizure of the petitioner was
lawful within the meaning of the Fourth Amendment. 8
iii
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 4/42
2. Deputy Beck reasonably suspected that Petitioner was
armed and dangerous, thereby making the frisk lawful.
10
C. The search of the trunk was lawful because the car had
been lawfully seized and the petitioner consented to the
search. 11
1. The Search of the trunk of the car was justified because
the Deputies had lawfully stopped the car and therefore
could lawfully search every part of the vehicle. 12
2. The Petitioner validly consented to the search of the
trunk of the car thereby making the search lawful. 13
II. Due process requires that every fact necessary for the
conviction of a crime be proven beyond a reasonable
doubt. The Federal Post-Release Supervision Sentence
Enhancement Act (The Act) is a determinate Statute that
requires a judge to sentence all convicted criminals to a
mandatory period of post-release supervision. The
Sixteenth Circuit properly held that this statute is
constitutional. 17
A. The act is a sentencing regime which permits the
imposition of post-release supervision on all convicted
criminals. It does not require the judge to engage infactual determinations before imposing post-release
supervision. It therefore does not enhance a defendant’s
penalty beyond statutory maximum. 18
iv
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 5/42
1. The Act does not require the trial court judge to engage
in factual determinations before imposing post-release
supervision. 19
2. The Act requires a judge to sentence all convicted
criminals to a mandatory period of one year post-release
supervision. A year of close supervision upon release
does not increase the penalty for a crime beyond the
prescribed statutory maximum. 20
B.Even if this Court concludes that The Act enhances adefendant’s penalty beyond statutory maximum, this court
should still affirm the decision of the Sixteenth Circuit
because the statute as applied to the defendant before
the court today does not violate the rule that this court
set forth in Apprendi. 23
C. The government has a significant interest in reducing the
rate of recidivism. The Act serves the government’s
significant interest in reducing the rate of recidivism.
26
CONCLUSION.....................................................30
APPENDIX A.................................................ix - x
APPENDIX B...............................................xi - xii
v
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 6/42
TABLE OF AUTHORITIES
Supreme Court Cases
Almendarez-Torres v. United States, 532 U.S. 224, 228 (1998).....
...................................................17, 24, 25, 27
Apprendi v. New Jersey, 530 U.S. 466, 477 (2000).................
.............................................17 - 21, 23, 25 - 26
Arizona v. Johnson, 129 S.Ct. 781, 782, 783, 785, 786 (2009).....
...........................................................8 - 11
Blakely v. Washington, 542 U.S. 296, 303 (2004)...........21, 22
Brendlin v. California, 551 U.S. 249, 250 (2007).............5, 8
California v. Carney, 471 U.S. 386 (1985).......................6
Carroll v. United States, 267 U.S. 132, 146, 149, 153 (1925)..5 -
7
Ewing v. California, 538 U.S. 11, 25-27 (2003)............26 - 28
Hamling v. United States, 418 U.S. 87, 117 (1974)..............17
Harris v. United States, 536 U.S. 545, 547 (2002).....18, 21 - 23
Johnson v. California, 547 U.S. 843, 854 (2006)................26
Jones v. United States, 526 U.S. 227, 233 (1999)...........21, 22
Katz v. United States, 389 U.S. 347, 357 (1967).................5
McMillan v. Pennsylvania, 477 U.S. 79, 84-91 (1986)...17, 21 - 23
Muehler v. Mena, 544 U.S. 93(2005)..............................9
Schneckloth v. Bustamonte, 412 U.S. 218, 221, 222,227, 234 (1973)........................................................5, 14, 15
Smith v. Doe, 538 U.S. 84, 103 (2003)..........................26
Terry v. Ohio, 392 U.S. 1, 6, 10, 19, 24 (1968).........6, 10, 11
United States v. Mendenhall, 446 U.S. 544, 545 (1980)...........6
vi
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 7/42
United States v. Ross, 456 U.S. 798, 799 (1982)...........11 - 13
Warden v. Hayden, 387 U.S. 294 (1967)...........................6
Wong Sun v. United States, 371 U.S. 471 (1963).................16
Federal Cases
Johnson v. Quander, 440 F.3d 489, 497 (DC Cir. 2006).......27, 28
United States v. Castello, 415 F.3d 407,408,412 (5th Cir. 2005)
..........................................................11 - 13
United States v. Doggett, 230 F.3d 160, 164 (5th Cir. 2000)..18 -
20
United States v. Garcia, 252 F.3d 838, 842 (6th Cir. 2001).....18
United States v. Kincade, 379 F.3d 813, 839 (9th Cir. 2004)....26
United States v. Lopez, 777 F.2d 543, 548 (10th Cir. 1985)....11,
12, 14
United States v. Rebmann, 226 F.3d 521, 524 (6th Cir. 2000)....18
Constitutional Provisions
U.S. Const. amend. IV......................................passim
U.S. Const. amend V........................................passim
U.S. Const. amend VI.......................................passim
Other Authorities
Blacks Law Dictionary 1297 (8th ed. 2004)......................26
Federal Post-Release Supervision Sentence Enhancement Act..passim
http://www.ojp.usdoj.gov/bjs/reentry/recidivism.htm ...........27
vii
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 8/42
OPINIONS AND ORDERS BELOW
The opinion of the United States Court of Appeals for the
Sixteenth Circuit is reported in Cornball v. State of Y, 502
F.8th 1983 (16th Cir. 2009). (R. at p. 27). The judgment of the
United States District Court for the District of Y, case number
Criminal Number: 09-61479 is provided in the Record. (R. at p.
14-26).
JURISDICTION
The judgment of the Sixteenth Circuit was entered on
September 14, 2009. The jurisdiction of this Court rests on 28
U.S.C. § 1257 (2000).
STATUTORY PROVISIONS
The relevant statutory provisions are set out in Appendix A and
Bto this brief.
viii
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 9/42
STATEMENT OF CASE
I. Statement of Facts
One Friday night, Joseph (Joe) Cornball and a few of his
friends decided to hang out at their favorite bar, Freeks n’
Geeks in the State of Y. (R. at p. 5). After consuming a number
of intoxicating beverages, they decided to drive back to State
of X, where they lived. (R. at p. 6). Cletus Jackson was in the
driver’s seat while Joe was the passenger. (R. at p. 6).
Right before the students entered the bridge back into
State X, Deputies Beck and Limbaugh became suspicious of the
car. (R. at p. 7). They followed the car for miles before they
decided to pull it over. (R. at p. 7). They observed a bumper
sticker that read, “Either grass or gas...No one rides for
free!!” affixed on the trunk and suspected that the driver was
intoxicated. (R. at p. 15).
While Deputy Limbaugh performed the sobriety test, Deputy
Beck questioned Joe. (R. at p. 15). He learned that Joe was
from Tenement City, which has the highest crime rate in the
State of Y. (R. at p. 15). He also noticed that Joe was wearing
navy blue—a color consistent with gang activity—from head to
toe. (R. at p. 15). With this in mind, Deputy Beck requested
that Joe turn down the head banging music in the car and step
outside. (R. at p. 15). When he exited the car, Deputy Beck
ix
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 10/42
frisked Joe. (R. at p. 15). Deputy Beck allowed Joe to get back
into the car and asked “mind if I search the car?” (R. at p. 9).
Joe shrugged and replied “here we go.” (R. at p. 9). Upon
receiving permission, Deputy Beck walked to the trunk of the car
and began to search inside. (R. at p. 9). He discovered a
briefcase with a loaded handgun inside of it. (R. at p. 9).
Deputy Beck took Joe’s driver’s license and conducted a
background check which revealed that Joe had been previously
convicted of a crime and was currently on probation. (R. at p.
10). Joe was subsequently placed under arrest for the probation
violation and possession of a loaded firearm. (R. at p. 10).
II. Procedural History
Petitioner was charged with both state and federal crimes.
(R. at p. 12). He was not convicted of the state charges on the
gun charge due to a hung jury. (R. at p. 12). The U.S.
Attorney’s Office for the District of Y picked up the case and
thus Joe’s case is currently in the federal system with
jurisdiction arising from U.S.C. § 3231. (R. at p. 12). The
federal statute at issue mirrors its State Y Counterpart. (R. at
p. 12). He was found guilty for felony possession of a loaded
firearm and probation violation. (R. at p. 12, 40). Joe was
sentenced to ten years incarceration followed by a term of five
years release supervision under the Post Release Supervision
Sentence Enhancement Act. (R. at p. 14, 40). He appealed the
x
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 11/42
trial court decision with a motion for a new trial pursuant to
Rule 33 of the Federal Rules of Criminal Procedure. (R. at 14,
40). The United States District Court for the District of Y
denied the motion for a new trial and the United States Court of
Appeals for the Sixteenth Circuit granted leave to appeal the
decision of the District court based on the constitutionality of
Petitioner’s search and arrest under the Fourth Amendment and
the constitutionality of the post-release supervision statute in
accordance with the Due Process clause. (R. at p. 40). The
Court of Appeals held that both the search and arrest and the
post-release supervision statute were constitutional. (R. at p.
40). The Supreme Court of the United States granted the
Petitioner’s writ of certiorari. (R. at p. 40).
III. Standard of Review
The Supreme Court of the United States gives no deference
to a lower court’s interpretation of the United States
Constitution. Such determinations are considered to be de novo
as this court possesses original jurisdiction over these issues.
See U.S. Const. art III, § 2; see also Marbury v. Madison, 5
U.S. 127 (1803).
SUMMARY OF ARGUMENT
xi
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 12/42
The Sixteenth Circuit properly found that the search and
seizure of the person of the Petitioner was lawful. The stop and
seizure of the vehicle in which the Petitioner was riding was
which was lawful under the automobile exception. Furthermore,
since the Petitioner was a passenger in a vehicle that had been
lawfully seized it was not unlawful to search the person of the
petitioner. Also the Petitioner consented to the search of the
trunk of the seized vehicle. Respondent respectfully asks the
court, in their own analysis, to find that the search and
seizure of the Petitioner did not violate the rights of the
Petitioner under the Fourth Amendment.
Secondly, the Sixteenth Circuit properly found that The
Federal Post-Release Supervision Sentence Enhancement Act is
constitutional because it does not violate the Due Process
rights of the Petitioner. The Act is a determinate sentencing
regime that requires all convicted criminals to be monitored
upon release from prison and does not enhance the penalty of a
crime. Furthermore, the application of the Act to the Petitioner
did not violate the rule that the Supreme Court set forth in
Apprendi. Respondent respectfully asks the court, in their own
analysis, to affirm both of the lower court rulings.
ARGUMENT
I. The Fourth Amendment ensures that police interference
with an individual’s right to privacy is justified.
xii
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 13/42
The Deputies’ search and seizure of defendant was
justified under the circumstances. The Sixteenth
Circuit properly held that the conduct of the deputies
did not violate Petitioner’s the Fourth Amendment
rights.
The Fourth Amendment protects the right of people to be
secure in their persons, houses, papers and effects and
restricts police from unreasonable conduct by requiring that
searches and seizures be approved by a detached and neutral
magistrate. U.S. Const. amend. IV. Searches and seizures
conducted outside the judicial process are per se unreasonable
under the Fourth Amendment unless they are supported by probable
cause or fall within a category of well delineated exceptions.
Katz v. United States, 389 U.S. 347, 357 (1967). The Supreme
Court has recognized an automobile exception, (Carroll v. United
States, 267 U.S. 132 (1925)), an exception for searches of
individuals on in a vehicle that has been seized. (Brendlin v.
California, 551 U.S. 249 (2007)), and an exception for searches
made by consent (Schneckloth v. Bustamonte, 412 U.S. 218
(1973)). The reasonableness of search and seizure is to be
determined based on the totality of the circumstances. United
States v. Mendenhall, 446 U.S. 544, 545 (1980). Under the facts
of this case, the search and seizure of the Petitioner and the
car was reasonable. Thus, the decision of the Sixteenth Circuit
should be affirmed.
xiii
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 14/42
A. Under the Automobile exception, the police may stop a
vehicle in public transaction without a warrant. The
Deputies stopped petitioner’s vehicle upon a reasonable
belief that the driver was intoxicated. The search and
seizure of petitioner’s vehicle was lawful at its inception.
The Fourth Amendment requires that an officer’s action be
justified at its inception and be reasonably related in scope to
the circumstances which justified the interference in the first
place. Terry v. Ohio, 392 U.S. 1, 19 (1968)(citing Warden v.
Hayden,387 U.S. 294 (1967)). Under the automobile exception,
the police may stop a vehicle in public transaction without a
warrant. Carroll, 267 U.S. 132, 146 (1925). The fact that
automobiles are readily mobile justifies a lesser degree of
protection. Id. at 153. A search and seizure without a warrant,
made upon a reasonable belief that an automobile contains that
which is by law subject to seizure and destruction, the search
and seizure are valid. Id. at 149. Unlike a house which is
widely recognized by society as one’s sanctuary, an automobile
is often placed in public transactions and therefore subject to
less constitutional protection. California v. Carney, 471 U.S.
386, 386 (1985).
In Carroll, the court upheld the validity of a search and
seizure where defendants were unlawfully transporting liquor in
an automobile. 267 U.S. 132, 149. The court stated that the
officers in that case had a reasonable belief that the
xiv
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 15/42
defendants were transporting intoxicating liquor and that
justified the search and seizure of the vehicle. Id. The
Supreme Court reasoned that without the automobile warrant
exception, it would be impossible to stop automobiles engaged in
illegal trafficking due to their ability to quickly move from
place to place. Id. at 146.
Like in Carroll, the conduct of Deputies Beck and Limbaugh
was valid because they had reason to believe that the car that
the Petitioner was riding in contained unlawful contraband.
Upon following the car, the deputies noticed the bumper sticker
that read “Either grass or gas... no one rides for free!!”—a
statement reasonably believed to refer to marijuana. (R. at p.
6).
The deputies were not required to have knowledge that
unlawful contraband was, in fact, present since they had reason
enough to stop and search the defendant’s car in the first
place.
B. The vehicle that Petitioner was riding in was lawfully
seized. Therefore, Petitioner was also detained and the
search and seizure of his person was not in contraventionof the Fourth Amendment.
The Supreme Court has held that a “stop and frisk” may be
conducted without violating the Fourth Amendment's ban on
unreasonable searches and seizures if two conditions are met: 1)
xv
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 16/42
the investigatory stop, amounting to a temporary detention, must
be lawful; and 2) to proceed from a stop to a frisk, the officer
must reasonably suspect that the person stopped is armed and
dangerous. Arizona v. Johnson, 129 S.Ct. 781, 781 (2009). The
first condition is met when, in an on-the-street encounter, a
police officer reasonably suspects that the person he seeks to
detain is committing or has committed a crime. Id. This court
recently confirmed that a police officer effectively seizes
“everyone in the vehicle,” the driver and all passengers for the
duration of a traffic stop. Id. at 782 (citing Brendlin, 551
U.S. 249). The stop and frisk conducted by Deputy Beck did not
violate Petitioner’s Fourth Amendment rights.
1. Under the circumstance, the seizure of the petitioner was
lawful within the meaning of the Fourth Amendment.
A traffic stop necessarily curtails the travel of a
passenger just as much as it halts the driver and the police
intrusion on privacy does not normally distinguish between the
two. Brendlin, 551 U.S. 249, 250. Therefore, once law
enforcement seizes a car during a traffic stop, the seizure
extends to passengers as well. Arizona v. Johnson, 129 S.Ct.
781, 782. The seizure of the driver and passengers remains
reasonable throughout the duration of the stop. Id. at 783.
Thus, an officer's inquiries into matters unrelated to the
justification for the traffic stop do not convert the encounter
xvi
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 17/42
into something other than a lawful seizure, so long as the
inquiries do not measurably extend the stop's duration. Id.
(citing Muehler v. Mena, 544 U.S. 93(2005)).
In Johnson, the Supreme Court held that the detention of
the defendant, a passenger in a lawfully stopped vehicle, was
permissible pursuant to the legitimate stop of the vehicle even
though the officer questioned him on a matter unrelated to the
stop. Id. The court reasoned that a reasonable passenger would
understand that during the time a car is lawfully stopped, he or
she is not free to terminate the encounter with the police. Id.
At the outset, the seizure of Petitioner, in this case, was
not unlawful because petitioner was a passenger in a vehicle
that had been lawfully stopped. Like in Johnson, the deputy
could lawfully question the petitioner about matters unrelated
to the stop if criminal activity was reasonably suspected.
2. Deputy Beck reasonably suspected that Petitioner was armed
and dangerous, thereby making the frisk lawful.
A law enforcement officer’s reasonable suspicion that a
person may be involved in criminal activity permits the officer
to stop the person for a brief time and take additional steps to
investigate further. Terry, 392 U.S. 1 at 10. Upon reasonable
suspicion that any occupants of a lawfully seized vehicle may be
xvii
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 18/42
armed and dangerous, police may frisk them for weapons. Johnson,
129 S.Ct. 781 at 782. During a routine traffic stop, the
officer may perform a ‘patdown’ of a driver and any passengers
to protect the safety of the officer and the public. Id.
In Terry, an officer approached two men who he believed
might be planning a robbery. 392 U.S. 1 at 6. He feared that
they might have a gun. Id. The court held that that the officer
had the right to pat down the outer clothing of the men for his
own protection. Id. at 24. In Johnson, the Supreme Court held
that the frisking of the defendant was lawful because the
defendant had been lawfully seized and that, based on the
circumstances, the officer had reason to believe that the
defendant was armed and dangerous. 129 S.Ct. 781 at 786. The
defendant, in that case, was dressed in clothing that depicted
membership in a particular gang. Id at. 785.
The Petitioner here was found to be from a “high-crime”
neighborhood. (R. at p. 15). Furthermore, the petitioner was
dressed in gang-related attire—a blue fitted hat, blue jeans,
blue tee-shirt, and blue Michael Jordan sneakers. (R. at p. 20).
Deputy Beck, like the officer in Johnson reasonably believed
that the petitioner was a member of a gang because of his
clothing. As in Terry, this aroused his suspicion that the
petitioner might be armed and dangerous therefore he frisked
him. While, the Petitioner believed that he was being
xviii
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 19/42
mistreated because of his race, the frisk was reasonable as long
as the officers believed that he was armed and dangerous. The
frisk was limited to the outer layer of Petitioner’s garments
and did not amount to a full blown search. The officer simply
neutralized any threat of harm to himself and as such, his frisk
was lawful.
C. The search of the trunk was lawful because the car had been
lawfully seized and the petitioner consented to the search.
If a search is justified as to a lawfully stopped vehicle,
then it is justified to every part of that vehicle. United
States v. Castelo, 415 F.3d 407, 412 (5th Cir. 2005)(citing
United States v. Ross, 456 U.S. 798 (1982)). One of the well
established exceptions to the technical requirements for a valid
search is searches conducted pursuant to consent. United States
v. Lopez, 777 F.2d 543, 548 (10th Cir. 1985). The deputies
believed that the car petitioner was riding in might contain
unlawful contraband which gave them probable cause to search the
car.
1. The Search of the trunk of the car was justified because
the Deputies had lawfully stopped the car and therefore
could lawfully search every part of the vehicle.
Where probable cause justifies the search of a lawfully
stopped vehicle, “it justifies the search of every part of the
vehicle and its contents that may conceal the object of the
xix
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 20/42
search”. Castelo, 415 F3d. 407, 412(Citing United States v.
Ross, 456 U.S. 798 (1982)). The scope of a warrantless search
of an automobile thus is not defined by the nature of the
container in which the contraband is secreted but rather, it is
defined by the object of the search and the places in which
there is probable cause to believe that it may be found. Ross,
456 U.S. 798 at 799.
In Ross, the defendant was convicted of possession of
narcotics with intent to distribute after police officers
stopped the defendant and conducted a warrantless search of the
trunk. Id. at 798. The officers found a closed brown paper bag
containing white powder which was later determined to be heroin.
Id. The Supreme Court held that Police officers who have
legitimately stopped an automobile and who have probable cause
to believe that contraband is concealed somewhere within it may
conduct a warrantless search of the vehicle. Id. In Castelo,
the defendants were stopped by officers upon probable belief
that the defendants were hauling illegal drugs. 415 F.3d 407 at
408. The officers searched the defendants’ truck and retrieved
cocaine bricks. Id. The Fifth Circuit held the search to be
lawful because based on the totality of the circumstances the
officers had probable cause to search the vehicle. Id at 412.
xx
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 21/42
In this case, Deputies Beck and Limbaugh followed a car
that had a bumper sticker reading “Either grass or gas... no one
rides for free!”—a statement reasonably believed to refer to
marijuana. (R. at p. 6). The deputies had probable cause to
believe that the vehicle petitioner was riding in might contain
illegal drugs. Like the officers in Ross, Deputy Beck could
search the trunk of the car since the vehicle had been lawfully
seized. Like the officers in Castelo, Deputy Beck had probable
cause to believe that the vehicle carried illegal goods and thus
the search of the trunk of the car was lawful under the
automobile exception to the warrant requirement.
2. The Petitioner validly consented to the search of the trunk
of the car thereby making the search lawful.
One of the specifically established exceptions to the
technical requirements for a valid search is searches conducted
pursuant to consent. Consent to search is valid if it is
voluntarily given. United States v. Lopez, 777 F.2d 543, 548,
(10th Circuit 1985)(citing Schneckloth, 412 U.S. 218 (1973)).
Consent to search is voluntary if it is not the product of
duress or coercion, express or implied. Schneckloth, 412 U.S.
218 at 227. For a prosecutor to rely upon consent to justify a
lawful search, he must prove that the consent was, in fact,
xxi
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 22/42
freely and voluntarily given. Id. at 221-222. Whether consent
to search was voluntary or if it was the product of coercion is
a question of fact to be determined from the totality of the
circumstances. Id. at 227. Consent searches are important law
enforcement tools because sometimes they may be the only means
by which an officer can promptly obtain evidence that forms the
basis for a prosecution. Id.
In Lopez, the Tenth Circuit held as valid the defendant’s
consent for their vehicle to be searched. 777 F.2d 543, 548.
When officers asked defendants if they could search their
vehicle, the defendants agreed. Id. The court upheld the search
as valid since there was no coercion or duress and that the
consent of the defendants was freely given. Id. In Schneckloth,
the defendant permitted the law enforcement officer to search
his vehicle. 412 U.S. 218 at 218. Subsequent to the search the
officer found three stolen checks for which the defendants were
arrested. Id. The court held that while knowledge of a right to
refuse consent is a factor to be taken into account, the State
need not prove that the one giving permission to search knew
that he had a right to withhold his consent. Id. at 234.
The search of the trunk and briefcase here was
constitutionally permissible because Joe gave valid consent.
Joe provided thirty percent of the funds to purchase the car
xxii
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 23/42
that he was a passenger in. He was the subject of the search
and the person against whom the evidence is admitted. Because
Joe had some interest in the car, he was present when the search
occurred and exercised some dominion over the vehicle, he had
standing to both consent to the search. In the case at bar,
consent was the initial basis for entry into the vehicle by law
enforcement. When Deputy Beck state “mind if I search the car?”
Joe shrugged his shoulder and stated “here we go.” The statement
by Joe was reasonably interpreted as cooperation and consent to
search the vehicle. There were no threats or showing of force
by the officers. Joe was not restrained while the search took
place and at no time did Joe or any others in the vehicle object
to the search. Absent any signs of duress or coercion, a
voluntary consent will be held constitutionally valid as is in
the case at bar. The firearm found which provides the basis of
the charges against go are not fruit of the poisonous tree and
were properly admitted against him. See Wong Sun v. United
States, 372 U.S. 41 (1963).
Because the stop of the vehicle that the Petitioner was a
passenger in was legal at its inception, Petitioner was also
lawfully seized within the meaning of the Fourth Amendment.
Officers had a reasonable suspicion to believe that the
Petitioner was armed and dangerous and thus the frisk was
xxiii
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 24/42
justified. Further, the initial basis for the search of the
trunk was consent given by the Petitioner. Thus, this court
should uphold the decision of the Sixteenth Circuit.
II. Due Process requires that every fact necessary for the
conviction of a crime be proven beyond a reasonable doubt.
The Federal Post-Release Supervision Sentence Enhancement
Act (The Act) is a determinate Statute that requires a
judge to sentence all convicted criminals to a mandatory
period of post-release supervision. The Sixteenth Circuit
properly held that this statute is constitutional.
The Fifth Amendment right to due process and the Sixth
Amendment right to a jury trial, taken together entitle a
criminal defendant to a jury determination that he is guilty of
every element of the crime with which he is charged, beyond a
reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 477
(2000). Due process requires that an indictment set forth each
element of the crime that it charges. Almendarez-Torres v.
United States, 532 U.S. 224, 228 (1998)(citing Hamling v. United
States, 418 U.S. 87, 117 (1974)). But, it need not set forth
xxiv
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 25/42
factors relevant only to the sentencing of an offender found
guilty of the charged crime. Almendarez-Torres, 532 U.S. at 228
(citing McMillan v. Pennsylvania, 477 U.S. 79, 84-91(1986). The
Supreme Court in Apprendi held that, “other than the fact of
prior conviction, any fact that increases penalty for crime
beyond the prescribed statutory maximum must be submitted to a
jury and proved beyond reasonable doubt.” 530 U.S. at 490. On
the other hand, the Supreme Court has held that a judge is
permitted to apply sentencing factors to increase the sentence
of a criminal but not beyond the statutory maximum. See Harris
v. United States, 536 U.S. 545, 547 (2002). The Act, which
imposes a one year post-release supervision on all convicted
criminals, is constitutional because it does not violate the due
process rights of criminals. This court should affirm the
decision of the Sixteenth Circuit since the government has an
enormous interest in reducing the rate of recidivism and
protecting the safety of the community at large.
A. The Act is a sentencing regime which permits the imposition of
post-release supervision on all convicted criminals. It does not
require the judge to engage in factual determinations before
imposing post-release supervision. It therefore does not enhancea defendant’s penalty beyond statutory maximum.
Some Circuit Courts have held that after Apprendi, the duty
of courts in reviewing imposition of “enhancements” under
Apprendi is to “examine whether 1) the trial judge engaged in a
xxv
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 26/42
factual determination of a fact outside the jury verdict; and 2)
whether that determination increased the maximum penalty for the
crime charged in the indictment.” United States v. Garcia, 252
F.3d 838, 842 (6th Cir. 2001)(citing United States v. Rebmann,
226 F.3d 521, 524 (6th Cir.2000)); United States v. Doggett, 230
F.3d 160, 164 (5th Cir. 2000).
1. The Act does not require the trial court judge to engage in factual determinations before imposing post-release
supervision.
Factual determination occurs when a judge is required to
find additional facts outside the record to impose the enhanced
punishment. See Doggett, 230 F.3d at 164. A statute that allows
the judge to find, by a preponderance of the evidence, whether a
defendant had the statutory mental requirement in the commission
of a crime violates the Sixth Amendment by permitting a judge to
engage in factual determination. See Apprendi, 530 U.S. at 467-
468.
In Doggett, the Fifth Circuit held that a statute allowing
the trial judge to enhance a defendant’s sentence from 20 years
to life imprisonment based on the trial judge determining the
quantity of drugs the defendant possessed was unconstitutional.
230 F.3d at 164. The court reasoned that the statute in that
xxvi
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 27/42
case clearly called for a factual determination regarding the
quantity of the controlled substance, and that factual
determination significantly increases the maximum penalty. Id.
In Apprendi, the Supreme Court held that a statute which allowed
the trial judge to enhance a defendant’s sentence maximum from
10 years to 20 years by finding by a preponderance of the
evidence that a defendant “acted with a purpose to intimidate a
group of individuals because of race” was unconstitutional. 530
U.S. at 492. The court held that the statute allowed the trial
judge to make a factual determination of an element of the crime
in violation of the defendant’s due process rights. Id.
Under The Act all convicted offenders will be closely
monitored upon the release from incarceration. Unlike the
statutes in Doggett and Apprendi, which require a trial court to
find additional facts, the statute is an indeterminate
sentencing regime that mandates a judge to subject all convicted
criminals to one year post release supervision to closely
monitor offenders upon their release in an effort to reduce
recidivism. The trial judge, under the Federal Act in the case
before us, is not required by the statute to find additional
factors in order to apply the one year post-release supervision.
xxvii
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 28/42
Under The Act, the powers of the jury are not usurped by
the trial judge as in Doggett and Apprendi where the trial
judges make factual determinations of elements of the crime.
2. The Act requires a judge to sentence all convicted
criminals to a mandatory period of one year post-release
supervision. A year of close supervision upon release does
not increase the penalty for a crime beyond the prescribed
statutory maximum.
A statute that requires a judge to find additional facts
outside the jury verdict in order to impose an enhanced sentence
enhances a defendant’s penalty beyond statutory maximum.
Apprendi, 530 U.S. at 492. “Statutory maximum” is the maximum
sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict. Blakely v. Washington, 542 U.S.
296, 303 (2004). A statute which provides for “steeply higher”
penalties conditioned on further facts enhances the penalty of
defendants beyond the statutory maximum. See Jones v. United
States, 526 U.S. 227, 233 (1999). On the other hand, a statute
which requires a judge to engage in a factual determination in
order to increase the minimum sentence a defendant could be
subjected to was upheld as constitutional. See Harris, 536 U.S.
at 547; see also McMillan, 477 U.S. at 84-91.
In Blakely, this Court held that where the trial court
judge was required to find that the defendant had acted with
“deliberate cruelty” before sentencing him to prison for more
xxviii
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 29/42
than three years beyond what the law required, enhanced
defendant’s punishment beyond the statutory maximum; the statute
was therefore unconstitutional. 542 U.S. at 314. The court
reasoned that because the trial judge could not have enhanced
punishment without engaging in a factual determination of the
facts pertinent to the crime, the defendant’s sentence was
beyond the statutory maximum. Id. In Jones, this court held that
a statute which enhanced the defendant’s sentence from 15 years
to 25 years was unconstitutional because the statute allowed the
trial judge to impose a steeply higher penalty conditioned on
the fact that the defendant’s conduct resulted in injury a fact
which was not set forth in the jury verdict and a fact which
should have been considered as an element of the crime. 526 U.S.
at 233.
The Act in this case can be distinguished from the statutes
in Jones and in Blakely. Unlike the statute in Blakely, the Act
does not increase the sentence of an offender. It only provides
that upon the release from prison, an offender be closely
monitored and supervised by parole officers for a period of one
year in the interest of protecting the community at large and
reducing the rate of recidivism. Also, unlike the statute in
Jones which increased the defendant’s from 15 years in prison to
xxix
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 30/42
25 years in prison, this statute only requires that the
defendant be monitored upon release for only a year.
In Harris, this court held as constitutional a statute that
raised the minimum sentence faced by a defendant face from 5
years to seven years based on the factual determination by the
trial court that the defendant brandished a firearm in the
commission of the crime. 536 U.S. at 568. This court reasoned
that “brandishing” a firearm was a sentencing factor and not an
element of the crime. Id. The decision in Harris also reaffirmed
McMillan, in which this court upheld a statute which required a
judge to impose a minimum sentence of five years if the trial
judge “upon considering any additional evidence offered at
trial” found by a preponderance of the evidence that the
defendant “visibly possessed a firearm” during the commission of
the crime. Harris, 536 U.S. at 568.
Even if The Act is found by this court to enhance
punishment, it is comparable to the statutes in Harris and
McMillan. This is because like a statute that increases a
mandatory minimum sentence, the Act requires that all released
offenders be closely monitored for a year after their release.
The requirements of this statute do not affect the maximum
sentence that the defendant is exposed to. Rather it is a
sentencing regime that requires, at minimum, that every
xxx
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 31/42
convicted criminal be closely monitored for a year upon release.
An ex-offender need not face re-incarceration unless they prove
that they are not ready to be integrated into society by
indulging in conduct that violates the period of supervision.
B. Even if this Court concludes that The Act enhances a
defendant’s penalty beyond statutory maximum, this court
should still affirm the decision of the Sixteenth Circuit
because the statute as applied to the defendant before the
court today does not violate the rule that this court set
forth in Apprendi.
In Apprendi, this Court held that “other than the fact of a
prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” 530 U.S. at
490. This court has recognized that the Sixth Amendment did not
require that the fact of prior convictions be treated as an
element of a crime. Id. The Court explained that recidivism is a
traditional, if not the most traditional, basis for a sentencing
court's increasing an offender's sentence. Id. This Court has
recognized that to hold that the Constitution requires that
recidivism be deemed an ‘element’ of petitioner's offense would
mark an abrupt departure from a long-standing tradition of
treating recidivism as going to the punishment only. Almendarez-
Torres, 523 U.S. at 244.
xxxi
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 32/42
In Almendarez-Torres, an alien who pleaded guilty to having
been found in the United States after being deported in
violation of a federal statute was subject to a maximum term of
imprisonment of two years. 523 U.S. at 226. The trial court
extended his maximum term of imprisonment to 20 years pursuant
to a statute that increased the defendant’s sentence if a prior
“removal was subsequent to a conviction for commission of an
aggravated felony.” Id. This court upheld the decision
concluding that the Sixth Amendment did not require that the
fact of prior convictions be treated as an element of
Almendarez-Torres' offense. Id. at 243. In Apprendi, the Supreme
Court - after holding unconstitutional a New Jersey “hate crime”
statute which authorizes the trial judge to increase the
sentence of the defendant upon the finding by the judge that the
defendant committed the crime with racial intent - reaffirmed
its holding in Almendarez-Torres that a prior conviction is a
sentencing factor which need not be proved beyond a reasonable
doubt. 530 U.S. at 492. This court again reaffirmed the
recidivism exception in its recent decision in United States v.
Booker, 543 U.S. 220, 238 (2005) by “reaffirming its holding in
Apprendi” which incorporating the Almendarez-Torres recidivism
exception. Id.
xxxii
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 33/42
Upon the application of The Act, the defendant was
sentenced to a 5-year period of post-release supervision. (R. at
p. 12). The Act authorized a 5-year period of post-release
supervision for an ex-offender who has been previously
incarcerated for nine months or more. (R. at p. 42). Like
Almendarez-Torres, the only factor that the trial judge is
required to consider is the fact that the defendant is an ex-
offender. The defendant had previously been incarcerated for
nine months (R. at p. 6) and based on that fact he received his
five year post-release supervision. (R. at p. 12). The sentence
imposed by the judge pursuant to the Act is in conformity with
the recidivist exception in Apprendi.
Should this Court decide to read this statute as enhancing
the penalty of convicted criminals, this court should still
affirm the decision of the sixteenth Circuit because in relation
to this particular defendant statute does not violate the rule
that this Court set forth in Apprendi.
C. The government has a significant interest in reducing the
rate of recidivism. The Act serves the government’s
significant interest in reducing the rate of recidivism.
Recidivism has been defined as a tendency to relapse into a
habit of criminal activity or behavior. BLACK’S LAW DICTIONARY
1297 (8th ed. 2004). The Supreme Court has frequently stressed
xxxiii
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 34/42
the pressing need to reduce recidivism among the offender
population. United States v. Kincade, 379 F.3d 813, 839 (9th
Cir. 2004)(citing Ewing V. California, 538 U.S. 11, 25-27
(2003)); Smith v. Doe, 538 U.S. 84, 103(2003)). The Supreme
Court has recognized that recidivism is a serious public safety
concern throughout the Nation. Samson v. California, 547 U.S.
843, 854 (2006)(citing Ewing,538 U.S. at 26). Society therefore
has an enormous interest in reducing recidivism. Kincade, 379
F.3d at 839. The 1994 recidivism study by the Department of
Justice estimated that 67.5% of prisoners released in 1994 were
rearrested within 3 years; also, within 3 years, 51.8% of
prisoners released during the year were back in prison.
http://www.ojp.usdoj.gov/bjs/reentry/recidivism.htm. Recidivism
has therefore long been recognized as a legitimate basis for
increased punishment. Ewing 538 U.S. at 25 (citing Almendarez-
Torres, 523 U.S. at 230). The government is “quite justified” in
taking steps to keep tabs on ex-convicts, in order to deter
recidivism. Johnson v. Quander, 440 F.3d 489, 497 (D.C. Cir.
2006).
In Ewing, the Supreme Court upheld California's “three
strikes” law holding that the sentence of a felony grand theft
defendant to term of 25 years to life for theft of three golf
clubs was not grossly disproportionate and thus did not violate
xxxiv
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 35/42
Eighth Amendment's prohibition against cruel and unusual
punishment. Ewing, 538 U.S. at 30. The court reasoned that the
sentence was justified by state's public-safety interest in
incapacitating and deterring recidivist felons. Id. at 25. The
Supreme Court in Ewing noted that selecting the sentencing
rationales is generally a policy choice to be made by the
legislature and not federal courts. Id.
In Johnson, the District of Columbia Circuit Court upheld a
statute which required a probationer convicted of two counts of
felony level unarmed robbery to provide DNA sample under DNA
Analysis Backlog Elimination Act (DNA Act). 440 F.3d at 496. The
Court reasoned that the government's interests in monitoring
probationers, deterring recidivism, and protecting public, and
it outweighed the probationer's privacy interest in his identity.
Id. at 496.
Like the statutes in Ewing and Johnson, the Federal Post-
Release Supervision Sentence Enhancement Act was enacted to
further Congress’ goal of protecting the safety of the community
at large and reducing the rate of recidivism. Unlike the statute
in Ewing which requires greater sentences for ex-offenders this
Act only requires supervision upon release. The strains that
this Act places on the defendant’s freedom are relatively
minimal. Furthermore the government’s interest in protecting the
xxxv
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 36/42
general public and reducing the rate of recidivism far outweigh
the defendant’s interest in being free of any encumbrances after
release.
This court has always recognized that selecting sentencing
rationales is at the discretion of the legislature. Congress has
made a deliberate policy choice that its goal of protecting the
safety of the community at large and reducing the rate of
recidivism is furthered by the enactment of this Act. This Court
has long tradition of giving deference to legislative policy
choices, this Court should therefore uphold the Federal Post-
Release Supervision Sentence Enhancement Act as constitutional
and affirm the decision of the Sixteenth Circuit.
CONCLUSION
The Fourth Amendment of the United States Constitution
permits a warrantless search and seizure where the search and
seizure falls within one of the exceptions recognized by the
Supreme Court. The search and seizure of the Petitioner’s person
was under the automobile exception. Furthermore, the Federal
Post-Release Supervision Sentence Enhancement Act, which was
enacted to reduce the rate of recidivism, neither increases the
statutory maximum penalty for a crime nor does it violate the
rule which the Supreme Court set forth in Apprendi. Respondent
respectfully asks this Court to affirm the lower court rulings.
xxxvi
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 37/42
Respectfully Submitted,
CY
Attorney for Respondent
APPENDIX A
State Y General Criminal Code (“G.C.C.”) § 22B-1505.2
Post-Release Supervision Sentence Enhancement Act
xxxvii
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 38/42
(a) The purpose of this Act is to ensure that upon release from
incarceration, all convicted criminals are closely monitored and
supervised by State Y parole Deputies in the interests of
protecting the safety of the community at-large and reducing the
recidivism rate in our state. A prisoner to whom this Article
applies shall be released from prison for post-release
supervision on the date equivalent to his maximum imposed prison
term, less any earned time awarded by the Department of
Correction or the custodian of a local confinement facility
under G.C.C. 22B-1430.13(d). If a prisoner has not been awarded
any earned time, the prisoner shall be released for post-release
supervision on the date equivalent to his maximum prison
term(s).
(b) A prisoner shall not refuse post-release supervision. If a
convicted offender fails to meet with his parole officer or
otherwise violates any condition of his release, he is subject
to re-incarceration for the remainder of his supervision period
(c) A supervisee's period of post-release supervision shall be
for a period of one year unless the supervisee is an ex-offender
who has been previously incarcerated for nine months or more
pursuant to Article 23A of Chapter 10 of the G.C.C. Such
supervisees shall be required to serve a post-release period of
xxxviii
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 39/42
five years. The conditions of post-release supervision are as
authorized in G.C.C. 17A-1868.4.
(d) A supervisee's period of post-release supervision may be
reduced while the supervisee is under supervision by earned time
awarded by the Department of Correction, pursuant to rules
adopted in accordance with law. A supervisee is eligible to
receive earned time credit toward the period of supervision for
compliance with reintegrative conditions described in G.C.C.
17A-1868.4.
(e) When a supervisee completes the period of post-release
supervision, the sentence or sentences from which the supervisee
was placed on post-release supervision are terminated.
APPENDIX B
Federal Post-Release Supervision Sentence Enhancement Act
xxxix
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 40/42
(a) The purpose of this Act is to ensure that upon release from
incarceration, all convicted criminals are closely monitored and
supervised by parole officers in the interests of protecting the
safety of the community at-large and reducing the recidivism
rate in our state. A prisoner to whom this Article applies shall
be released from prison for post-release supervision on the date
equivalent to his maximum imposed prison term, less any earned
time awarded by the Department of Correction or the custodian of
a local confinement facility under Regulation 8A-14.13(b). If a
prisoner has not been awarded any earned time, the prisoner
shall be released for post-release supervision on the date
equivalent to his maximum prison term(s).
(b) A prisoner shall not refuse post-release supervision. If a
convicted offender fails to meet with his parole officer or
otherwise violates any condition of his release, he is subject
to re-incarceration for the remainder of his supervision period.
(c) A supervisee's period of post-release supervision shall be
for a period of one year unless the supervisee is an ex-offender
who has been previously incarcerated for nine months or more
pursuant to Article 10A of Chapter 112 of the Regulation. Such
supervisees shall be required to serve a post-release period of
five years. The conditions of post-release supervision are as
authorized in Regulation. 13A-18.2.
xl
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 41/42
(d) A supervisee's period of post-release supervision may be
reduced while the supervisee is under supervision by earned time
awarded by the Department of Correction, pursuant to rules
adopted in accordance with law. A supervisee is eligible to
receive earned time credit toward the period of supervision for
compliance with reintegrative conditions described in
Regulation. 13A-18.6
(e) When a supervisee completes the period of post-release
supervision, the sentence or sentences from which the supervisee
was placed on post-release supervision are terminated.
xli
8/14/2019 Final Draft for Brief
http://slidepdf.com/reader/full/final-draft-for-brief 42/42
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Respondent’s
Brief was served on all parties on March 16, 2009, by depositing
the briefs in the U.S. Mail, postage prepaid or by personal
delivery.
CY
Attorney for Respondent
CERTIFICATE OF COMPLIANCE
I certify that this brief contains thirty pages not
including the cover page, table of contents table of
authorities, or appendix.
I further certify that I have complied with the rules of
the U. S. Supreme Court for brief submission.
CY
Attorney for Respondent.
top related