Final Draft For Brief

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

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 unlawful substances. 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

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 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 I.

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

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 in factual determinations before imposing post-release supervision. It therefore does not enhance a defendant’s penalty beyond statutory maximum. 18

iv

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 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. 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

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

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

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

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

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

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

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

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

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

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 contravention of 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

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

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

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. they might have a gun. Id.

He feared that

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

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

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

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

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

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. by the officers.

There were no threats or showing of force

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

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

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 enhance a 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

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 467468. 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

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

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

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

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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

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. AlmendarezTorres, 523 U.S. at 244.

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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.

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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 exoffender. 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

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 AlmendarezTorres, 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

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 PostRelease 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

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 PostRelease 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

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

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(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

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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

(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

(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.

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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.

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