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__________________________________________________________________
Joseph D. Cornball,
Petitioner,
v.
State of Y
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
JURISDICTION............................................viii
STATUTORY PROVISIONS....................................viii
STATEMENT OF CASE......................................1 - 4
SUMMARY OF ARGUMENT........................................5
ARGUMENT...................................................6
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
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
iv
1. The Act does not require the trial court judge to engage
in factual determinations before imposing post-release
supervision. 19
CONCLUSION.....................................................30
APPENDIX A.................................................ix - x
v
TABLE OF AUTHORITIES
Arizona v. Johnson, 129 S.Ct. 781, 782, 783, 785, 786 (2009).....
...........................................................8 - 11
Carroll v. United States, 267 U.S. 132, 146, 149, 153 (1925)..5 -
7
vi
United States v. Ross, 456 U.S. 798, 799 (1982)...........11 - 13
Federal Cases
..........................................................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
Other Authorities
http://www.ojp.usdoj.gov/bjs/reentry/recidivism.htm ...........27
vii
OPINIONS AND ORDERS BELOW
F.8th 1983 (16th Cir. 2009). (R. at p. 27). The judgment of the
14-26).
JURISDICTION
STATUTORY PROVISIONS
viii
STATEMENT OF CASE
I. Statement of Facts
car. (R. at p. 7). They followed the car for miles before they
free!!” affixed on the trunk and suspected that the driver was
from Tenement City, which has the highest crime rate in the
that Joe turn down the head banging music in the car and step
into the car and asked “mind if I search the car?” (R. at p. 9).
10). Joe was subsequently placed under arrest for the probation
denied the motion for a new trial and the United States Court of
Court of Appeals held that both the search and arrest and the
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
upon release from prison and does not enhance the penalty of a
did not violate the rule that the Supreme Court set forth in
ARGUMENT
Katz v. United States, 389 U.S. 347, 357 (1967). The Supreme
States v. Mendenhall, 446 U.S. 544, 545 (1980). Under the facts
of this case, the search and seizure of the Petitioner and the
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.
warrant. Carroll, 267 U.S. 132, 146 (1925). The fact that
an automobile. 267 U.S. 132, 149. The court stated that the
xiv
defendants were transporting intoxicating liquor and that
was valid because they had reason to believe that the car that
Upon following the car, the deputies noticed the bumper sticker
6).
place.
The Supreme Court has held that a “stop and frisk” may be
“everyone in the vehicle,” the driver and all passengers for the
U.S. 249). The stop and frisk conducted by Deputy Beck did not
xvi
into something other than a lawful seizure, so long as the
she is not free to terminate the encounter with the police. Id.
to stop the person for a brief time and take additional steps to
xvii
armed and dangerous, police may frisk them for weapons. Johnson,
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
defendant was armed and dangerous. 129 S.Ct. 781 at 786. The
and did not amount to a full blown search. The officer simply
was lawful.
C. The search of the trunk was lawful because the car had been
lawfully seized and the petitioner consented to the search.
United States v. Ross, 456 U.S. 798 (1982)). One of the well
v. Lopez, 777 F.2d 543, 548 (10th Cir. 1985). The deputies
car.
vehicle and its contents that may conceal the object of the
xix
search”. Castelo, 415 F3d. 407, 412(Citing United States v.
trunk. Id. at 798. The officers found a closed brown paper bag
Id. The Supreme Court held that Police officers who have
that the defendants were hauling illegal drugs. 415 F.3d 407 at
xx
In this case, Deputies Beck and Limbaugh followed a car
search the trunk of the car since the vehicle had been lawfully
cause to believe that the vehicle carried illegal goods and thus
the search of the trunk of the car was lawful under the
xxi
freely and voluntarily given. Id. at 221-222. Whether consent
vehicle, the defendants agreed. Id. The court upheld the search
his vehicle. 412 U.S. 218 at 218. Subsequent to the search the
officer found three stolen checks for which the defendants were
need not prove that the one giving permission to search knew
xxii
that he was a passenger in. He was the subject of the search
Joe had some interest in the car, he was present when the search
consent was the initial basis for entry into the vehicle by law
Joe shrugged his shoulder and stated “here we go.” The statement
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
the case at bar. The firearm found which provides the basis of
the charges against go are not fruit of the poisonous tree and
Petitioner was armed and dangerous and thus the frisk was
xxiii
justified. Further, the initial basis for the search of the
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
reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 477
States, 418 U.S. 87, 117 (1974)). But, it need not set forth
xxiv
factors relevant only to the sentencing of an offender found
the other hand, the Supreme Court has held that a judge is
v. United States, 536 U.S. 545, 547 (2002). The Act, which
xxv
factual determination of a fact outside the jury verdict; and 2)
226 F.3d 521, 524 (6th Cir.2000)); United States v. Doggett, 230
1. The Act does not require the trial court judge to engage in
factual determinations before imposing post-release
supervision.
468.
230 F.3d at 164. The court reasoned that the statute in that
xxvi
case clearly called for a factual determination regarding the
U.S. at 492. The court held that the statute allowed the trial
recidivism. The trial judge, under the Federal Act in the case
xxvii
Under The Act, the powers of the jury are not usurped by
States, 526 U.S. 227, 233 (1999). On the other hand, a statute
judge was required to find that the defendant had acted with
xxviii
than three years beyond what the law required, enhanced
reasoned that because the trial judge could not have enhanced
beyond the statutory maximum. Id. In Jones, this court held that
which was not set forth in the jury verdict and a fact which
at 233.
xxix
25 years in prison, this statute only requires that the
xxx
convicted criminal be closely monitored for a year upon release.
490. This court has recognized that the Sixth Amendment did not
xxxi
In Almendarez-Torres, an alien who pleaded guilty to having
concluding that the Sixth Amendment did not require that the
sentence of the defendant upon the finding by the judge that the
exception. Id.
xxxii
Upon the application of The Act, the defendant was
1297 (8th ed. 2004). The Supreme Court has frequently stressed
xxxiii
the pressing need to reduce recidivism among the offender
http://www.ojp.usdoj.gov/bjs/reentry/recidivism.htm. Recidivism
2006).
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
Analysis Backlog Elimination Act (DNA Act). 440 F.3d at 496. The
Id. at 496.
xxxv
general public and reducing the rate of recidivism far outweigh
release.
CONCLUSION
CY
APPENDIX A
xxxvii
(a) The purpose of this Act is to ensure that upon release from
term(s).
xxxviii
five years. The conditions of post-release supervision are as
17A-1868.4.
APPENDIX B
xxxix
(a) The purpose of this Act is to ensure that upon release from
prisoner has not been awarded any earned time, the prisoner
xl
(d) A supervisee's period of post-release supervision may be
Regulation. 13A-18.6
xli
CERTIFICATE OF SERVICE
CY
CERTIFICATE OF COMPLIANCE
CY
xlii