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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 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



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



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



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



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

http://www.ojp.usdoj.gov/bjs/reentry/recidivism.htm

http://www.ojp.usdoj.gov/bjs/reentry/recidivism.htm



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 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



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. 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



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. 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



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 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



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



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

xxix



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. Almendarez-

Torres, 523 U.S. at 244.

xxxi



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



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



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



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



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



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



(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



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.

xli



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.

final draft for brief

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