WILLIAM ALLEN TURNER, PETITIONER V. UNITED STATES OF AMERICA No. 89-7406 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 2a-7a) is not reported. JURISDICTION The judgment of the court of appeals was entered on February 5, 1990. The petition for a writ of certiorari was filed on May 3, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the Pennsylvania offense of burglary is a "violent felony" under the sentence enhancement provision of 18 U.S.C. 924(e)(1) and 924(e)(2)(B)(ii) (Supp. V 1987). 2. Whether the district court properly imposed a consecutive sentence for petitioner's violation of 18 U.S.C. 924(c)(1). 3. Whether the police officers' initial encounter with petitioner, which led to his arrest, violated the Fourth Amendment. STATEMENT 1. Petitioner was indicted in the Western District of Pennsylvania on one count of possession of heroin with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) (Count 1), one count of using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1) (Count 2), and one count of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. 922(g)(1) (Count 3). Before trial, the government filed a notice that petitioner had three previous convictions for burglary under Pennsylvania law, /1/ thus subjecting him to an enhanced minimum term of 15 years' imprisonment under 18 U.S.C. 924(e)(1) (Supp. V 1987) on Count 3. /2/ Pet. App. 2a-3a; Notice, United States v. Turner, Criminal No. 88-102 (W.D. Pa. filed Aug. 4, 1988). 2. On the evening of June 8, 1988, Pittsburgh Police Lieutenant Bell was driving a marked car on routine patrol. Lieutenant Bell spotted petitioner wrapping a handgun in green cloth. Bell then saw fellow officers Brining and Grbach approaching in a police van. Bell told the officers what he had seen. Officers Brining and Grbach drove to catch up with petitioner, who was walking away down the street. As Brining parked the van, Grbach called to petitioner and asked him to come over to speak with them. Petitioner started talking to Grbach, but suddenly ran away as Brining stepped out of the van. The officers chased petitioner to the doorway of a vacant building. As the officers approached him, petitioner raised a cane at them. The officers subdued petitioner by pinning his arms; they then frisked him. The officers found a loaded .38 caliber handgun stuck in petitioner's belt underneath his shirt. In response to Grbach's statement, "I guess you don't have a permit for this gun," C.A. App. 80, petitioner shrugged his shoulders. After petitioner was arrested, a more complete search uncovered a number of bundles of heroin inside his clothes. See Pet. App. 5a; Gov't C.A. Br. 4-6, 20-22. 3. Petitioner filed a pretrial motion to suppress the handgun and heroin, contending that the officers' initial encounter with him amounted to an unconstitutional seizure. After an evidentiary hearing, the district court denied that motion on October 18, 1988. C.A. App. 161-164. The court found that (i)t was obvious when the police officers approached (petitioner) that they were not under orders and did not interpret the words of Lieutenant Bell to be orders that they should arrest him, because they obviously did not take him into custody at that point. Id. at 161. The court credited Lieutenant Bell's testimony that he had seen petitioner holding a gun, and determined that "the arrest came after (petitioner) had attempted to flee across the street." Id. at 162. In these circumstances, the court concluded that the officers' actions were consistent with the Fourth Amendment. 4. The jury convicted petitioner on all counts. /3/ Before sentencing, petitioner challenged the government's request that he receive an enhanced sentence on Count 3 under the Armed Career Criminal Act. Petitioner contended, among other claims, /4/ that 18 U.S.C. 924(e) did not apply to his burglary convictions because those offenses did not fall within the common law definition of burglary. See C.A. App. 542-543. With respect to Count 2, petitioner urged the district court not to impose a consecutive sentence for the conviction under 18 U.S.C. 924(c)(1). /5/ In petitioner's view, such a sentence was not mandatory and would otherwise violate the Double Jeopardy Clause under the circumstances. See C.A. App. 565-567. At sentencing, the district court rejected both of petitioner's arguments. C.A. App. 605-606. The court sentenced petitioner to a term of 27 months' imprisonment on Count 1 and to a consecutive term of 60 months' imprisonment under Section 924(c)(1) on Count 2. In light of the evidence regarding petitioner's prior burglary convictions, see note 1, supra, the court sentenced petitioner to an enhanced term of 15 years' imprisonment under Section 924(e)(1) on Count 3. The court ordered that sentence to run consecutively to the sentence under Section 924(c)(1) imposed on Count 2, but to run concurrently with the sentence imposed on Count 1. In other words, the court intended for petitioner to serve a total term of 20 years' imprisonment. C.A. App. 616. 5. The court of appeals affirmed. Pet. App. 2a-7a. In the court of appeals, petitioner contended that 18 U.S.C. 924(e) did not apply to his burglary convictions because those offenses did not fall within the common law definition of burglary. Pet. C.A. Br. 44. The court rejected that argument without comment. Pet. App. 7a n.2. /6/ Petitioner also argued that the district court erred in imposing a consecutive sentence under Section 924(c)(1) on Count 2. The court rejected that argument as well, concluding that under the plain terms of Section 924(c)(1) petitioner's "five year term of imprisonment imposed must be imposed consecutively to the fifteen year penalty on Count 3." Pet. App. 6a-7a; see note 5, supra. Finally, petitioner contended that the police officers' initial encounter with him amounted to an unconstitutional seizure. The record, the court of appeals determined, showed that petitioner "attempted to hid a gun and ran when he saw a police officer approaching." Pet. App. 5a. Petitioner's conduct therefore gave the police officers "reasonable suspicion that justified stopping him to investigate." Ibid. Furthermore, once the officers found the loaded gun under petitioner's shirt, they had sufficient probable cause to arrest him. Accordingly, the court of appeals held that the district court properly refused to suppress the handgun and heroin. Ibid. /7/ ARGUMENT 1. Petitioner renews his contention (Pet. 13-15) that only those burglaries that satisfy the common law definition of burglary qualify as "violent felon(ies)" under the sentence enhancement provision of 18 U.S.C. 924(e)(1) and 924(e)(2)(B)(ii). In Taylor v. United States, No. 88-7194 (May 29, 1990), decided after this petition had been filed, the Court expressly rejected that construction of the statute. See slip op. 16-19. Instead, the Court concluded that a person has been convicted of burglary for purposes of a Section 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime. Slip op. 22. Petitioner's previous burglary convictions plainly fall within the terms of the statute. See note 1, supra. Accordingly, the district court properly sentenced him to an enhanced sentence under Section 924(e)(1) and 924(e)(2)(B)(ii). 2. Petitioner also contends (Pet. 16-17) that the district court erroneously imposed consecutive sentences on Counts 2 and 3, since "(u)nlike Section 924(c)(1), Section 924(e)(1) contains no language which requires that its sentence be served consecutively to the sentence imposed for the substantive act." Pet. 17. That observation, although factually accurate, is legally irrelevant. Petitioner does not dispute that, under the relevant statutes, the district court must impose mandatory minimum sentences for the violations of Section 924(c)(1) (Count 2) and Section 924(e)(1) (Count 3). And the express terms of Section 924(c)(1) make clear that "the term of imprisonment imposed under this subsection (shall not) run concurrently with any other term of imprisonment." 18 U.S.C. 924(c)(1); see note 5, supra. /8/ Accordingly, the district court correctly declined to impose a sentence that Section 924(c)(1) plainly did not authorize. 3. Finally, petitioner contends (Pet. 18-21) that the police officers effectively "seized" him without sufficient cause when they initially approached him on the street. That argument fails for two reasons. First, this Court has determined that a seizure "requires an intentional acquisition of physical control." Brower v. County of Inyo, 109 S. Ct. 1378, 1380-1381 (1989). Here, the record shows that the police officers merely drove over to petitioner and started talking with him. Such conduct is scarcely tantamount to a police officer's seizure -- or even detention -- of a suspect. /9/ Second, based on Lieutenant Bell's observation that petitioner was carrying a concealed handgun, the police officers would have been entitled to detain petitioner briefly in order to conduct a protective frisk for weapons. Terry v. Ohio, 392 U.S. 1 (1968). In any event, once petitioner ran away and then assaulted the officers with a cane, those officers plainly had probable cause to arrest petitioner. See Kolender v. Lawson, 461 U.S. 352, 366 n.4 (1983); Sibron v. New York, 392 U.S. 40, 66-67 (1968); see also 2 W. LaFave, Search and Seizure Section 3.6(d), at 62 & n.126 (2d ed. 1987). /10/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General SEAN CONNELLY Attorney JUNE 1990 /1/ In April 1964, January 1968, and then again in October 1970, petitioner had been convicted of burglary, which Pennsylvania law defined as "at any time, willfully and maliciously, enter(ing) any building, with intent to commit any felony therein." Penal Code, Art. IX, Section 901, 1939 Pa. Laws 872, 998 (repealed 1973). See Notice, United States v. Turner, Criminal No. 88-102 (W.D. Pa. filed Aug. 4, 1988); see also C.A. App. 582-594; Gov't Exhs. 8, 12. Each of petitioner's burglaries involved unlawful entries into "business establishments." Pet. C.A. Br. 44. /2/ The sentence enhancement provision of 18 U.S.C. 924(e)(1) applies to previously convicted felons who possess or receive a firearm in violation of 18 U.S.C. 922(g). Title 18, United States Code, Section 924(e)(1), provides in pertinent part: In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years * * *. Title 18, United States Code, Section 922(g)(1), refers to any "convict(ion) in any court of a crime punishable by imprisonment for a term exceeding one year." Title 18, United States Code, Section 924(e)(2)(B), provides: (T)he term "violent felony" means any crime punishable by imprisonment for a term exceeding one year that -- (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. /3/ Petitioner's trial began on October 19, 1988. Petitioner, however, failed to appear for trial when it resumed on October 20. The district court therefore continued the trial until October 24. C.A. App. 271-275. Petitioner did not appear on October 24. The district court assumed that petitioner was "voluntarily absent" and accordingly ordered the trial to continue under Fed. R. Crim. P. 43(b). C.A. App. 279. Petitioner was still at large when the jury returned its verdicts on October 25. Id. at 517-522. Federal authorities later apprehended petitioner in Washington, D.C., on May 5, 1989. The district court scheduled petitioner's sentencing for August 2, 1989. Gov't C.A. Br. 4. /4/ Petitioner also argued that the Armed Career Criminal Act was unconstitutional, that his previous convictions were not for criminal conduct sufficiently distinct in time, and that those convictions were stale. C.A. App. 539-541. The district court rejected those arguments, C.A. App. 605-606, as did the court of appeals, Pet. App. 7a n.6. Petitioner has not sought further review of those claims. /5/ Section 924(c)(1) provides in pertinent part: Whoever, during and in relation to any crime of violence or drug trafficking crime * * * for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years. * * * Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried. /6/ In United States v. Palmer, 871 F.2d 1201, 1207-1209 (3d Cir.), cert. denied, 110 S. Ct. 233 (1989), the court of appeals had previously held that "burglary" under Section 924(e)(2)(B)(ii) was not limited to common law burglary. Instead, the court concluded that "burglary" consisted of the modern, generic definition of the crime, i.e., entering or remaining unlawfully within a building with intent to commit an offense. See 871 F.2d at 1205, 1208-1209. /7/ The court of appeals also rejected petitioner's claims that the district court erred in submitting special verdict forms to the jury, Pet. App. 3a-4a, that the government presented insufficient evidence of one of his previous burglary convictions, id. at 7a n.2, that the district court erroneously admitted certain evidence, ibid., and that the district court improperly restricted petitioner's cross-examination of the government's expert witness, ibid. Petitioner has not sought further review of those claims. /8/ For that reason alone, petitioner's reliance (Pet. 17) on Busic v. United States, 446 U.S. 398 (1980), is mistaken. /9/ For that reason, petitioner's suggestion (Pet. 20-21) that this case presents an occasion to revisit the "seizure" question presented in Michigan v. Chesternut, 486 U.S. 567 (1988), is erroneous. /10/ Petitioner asserts (Pet. 19-20) that the court of appeals' decision conflicts with Smith v. Ohio, 110 S. Ct. 1288 (1990). There, the Court held that a search incident to arrest may not be upheld where the probable cause to arrest the suspect arose after the search. Id. at 1290. In so holding, however, the Court expressly noted, citing Terry v. Ohio, that "(n)o contention has been raised in this case that the officer's reaching for the bag involved a self-protective action necessary for the officer's safety." Id. at 1289. Here, the police officers' initial patdown of petitioner was not undertaken incident to an arrest; the officers merely exercised the brief, precautionary step endorsed by the Court in Terry and later cases. Accordingly, the decision below is consistent with Smith v. Ohio.