Docket No. 14-1107

In the Supreme Court of the United States

December Term 2015 ________________________________________________________________

Ben Carter,

Petitioner,

V.

United States of America,

Respondent.

________________________________________________________________

On Writ of Certiorari to the United States Court of Appeals for the Thirteenth Circuit

________________________________________________________________

BRIEF OF PETITIONER BEN CARTER ________________________________________________________________

ORAL ARGUMENT REQUESTED

Attorney for Petitioner Malik Price, Cedric R. Jones, and Ben Carter.

To the Honorable Justice of the West Virginia Thirteenth Circuit Court of Appeals

Lucy LegalLegal Law Fir,100 BD AvFairmont, WV 26554

TABLE OF CONTENTS

TABLE OFAUTHORITIES.................................... ii ASSIGNMENTS OF ERROR................................... 1

STATEMENT OF THE CASE.................................. 1 SUMMARY OF THE ARGUMENT................................ 10

STATEMENT REGARDING ORAL ARGUMENT AND DECISION......... 13

ARGUMENT............................................... 13

I. THE POLICE SEIZED MR.BEN CARTER BY USING DEADLY FORCE WITHOUT PROBABLE CAUSE BY SHOOTING HIM IN THE LEG. THIS ILLEGAL SEIZURE DIRECTLY LED TO THE DISCOVERY OF THE CONTENTS OF THE BACKPACK IN MR. CARTER’S CAR, AND THE FOURTH AMENDMENT MANDATES THE SUPPRESSION OF THE EVIDENCE BECAUSE IT IS FRUIT OF THE POSIONOUS TREE, THE CHARGES AGAINST MR. CARTER BE DISMISSED....................................... 14

A. The police illegally seized Ben Carter by shooting him................................................ 14

B. There was no evidence that would justify the police using deadly force against carter. There had been no indication that carter had a weapon or he took part in any crime............................. 18

C. The evidence found in Carter’s backpack recovered only because the police shot and wounded Carter..... 23

II. THE RULING OF THE LOWER COURT SHOULD BE REINSTATED BECAUSE AGENT HOLDER VIOLATED MR. CARTER’S DUE PROCESS RIGHTS............................................... 25

Conclusion................................................ 26

Certificate of Service.................................... 27

i

TABLE OF AUTHORITIES

Bailey v. United States , 134 S. Ct. 484, 187 L. Ed. 2d 327, (2013 U.S.) ..................................... 19

Brower v. Cnty. of Inyo, 489 U.S. 593,(1989).......... 16-17

Brown v. Illinois, 422 U.S. 59, (1975)................ 23

California v. Hodari D., 499 U.S. 621, (1991)......... 14,17

Carr v. Tatangelo, 338 F.3d 1259 (11th Cir. 2003)..... 16

Cole v. Bone, 993 F.2d 1328, (8th Cir. 1993) ......... 13

Nelson v. City of Davis, 685 F.3d 867(9th Cir. 2012).. 16

Ornelas v. United States, 517 U.S. 690, (1996)........ 13

Pruitt v. City of Montgomery, 771 F.2d 1475(11th Cir. 1985)...................................... 18 Reichman v. Harris, 252 F. 371, (6th Cir. 1918)....... 22

Rodriguez v. Passinault, 637 F.3d 675 (6th Cir. 2011). 16

Sibron v. New York, 392 U.S. 40 (1968)................ 20

Tennessee v. Garner, 471 U.S. 1,(1985)................ 18,20

United States v. Black, 733 F.3d 294, (9th Cir. 2013). 14,25

United States v. Russell, 411 U.S. 423 (1973).......... 25

ii

ASSIGNMENTS OF ERROR

1. The defendant’s rights were violated under the Fourth Amendment

of the United State Constitution

a. The shooting of Mr. Carter caused him injury; therefore,

Carter was not able to exercise his free will to end the

encounter on his own.

b. There had been no indication that Carter had a weapon or

he took part in any crime.

c. The evidence found in Carter’s backpack was recovered only

because the police shot and wounded Carter.

2. The police did not have the evidence that would justify the use

of deadly force against Mr. Carter.

STATEMENT OF THE CASE

In May 2009, the Bureau of Alcohol, Tobacco, Firearms, and

Explosives (ATF), began working on a project entitled Operation

Gideon. Operation Gideon was a set of reverse-sting operations

that were supposed to find and arrest individuals who were

committing violent home robberies of houses where drugs were

stashed in many of the area’s residential neighborhoods. (Tr. p.

2-3) ATF felt that this was a safer way to arrest suspects before

they actually reach the drug stash houses.

In August 2012, the ATF agents set up numerous reverse-sting

operations in the Apate metropolitan area. These reverse-stings

were a result of the increased number of violent criminal

activities during the summer months in this area. The majority of

the ATF’s operations were in the City of Green Ridge, which was

the largest, most racially diverse area. The city has an

overwhelming majority of black residents.

On March 8, 2013, the Confidential Informant (CI) went to a

block party located on the Southside, Green Ridge, where he was

supposed to meet people to commit home invasion robberies as per

the orders given to him by the ATF Special Undercover Agent,

Antonio Miller. (Tr. p. 4) The CI approached Defendant Malik

Price at the block party and asked him if he wanted to be a part

of a big payday. (Tr. p. 4) Malik indicated that he was willing,

and that was when the CI told of the plan to rob the stash house.

Malik thought the CI’s plan was funny and he walked away. Later,

Terrance Price approached the CI and wanted to know if he had any

information on good “come ups.”(Tr. p. 5) That was when the CI

told Terrance he had a friend with information about a house that

had some good drugs. The CI went on to ask Terrance if he would

be interested in getting a crew together to rob the house. They

would each get $500,000 after all of the drug money was divided.

(Tr. p. 5)

On March 12, 2013, Miller, Terrance and the CI had a meeting

at a diner on the outskirts of the city. (Tr. p. 5) Miller gave

Terrance the plan to rob the stash house. Terrance agreed to get

a few people together and they all would meet up again before

committing the robbery of the stash house.

On March 19, 2013, Terrance had a second meeting with Miller

and the CI outside a thrift store in Southside, Green Ridge. (Tr.

p. 5) This time Terrance had brought his friend, Cedrick R.

Jones. They had described to Miller several plans they had to rob

the house, but Miller was not okay with any of plans that the

crew had devised. Miller told them to rethink their plans and to

get more people to be a part of their crew. Terrance then

proceeded to see if Miller had weapons that they could use in the

commission of the robbery. Miller indicated that he did not, but

he questioned their intentions to carry out an armed robbery of

the drug stash house.

On March 22, 2013 they had a third meeting, and this time

Terrance brought his friend, DeAndre Ingram. (Tr. p. 5) Terrance

told Miller this was not his friend, Tinderman, but he was just

as good at getting the materials needed to commit the robbery.

(Tr. p. 5) Terrance bragged to Miller about Ingram’s bank

robberies and all of the weapons that he had. Ingram insisted on

knowing the address of the stash house and the layout of the

house before he would agree to take part in the robbery. Miller

called his fake drug boss and gave the crew the address of the

house as well as the layout of the house. The crew agreed to

commit the robbery in two weeks when the big shipment of drugs

was due to be moved. Miller’s only job was to unlock the front

and back doors as he entered the house to get his drugs.

On April 4, 2013, at approximately 8:35 a.m., Agent Miller

once again met up with Terrance and Jones outside of the thrift

store. (Tr. p. 6) This time Terrance brought along his brother,

Malik. At 8:45 a.m., Ingram pulled up in an unmarked white van.

(Tr. p. 6) He ordered everyone to get inside. The crew would

spend the next hour discussing the plan that they had for the

robbery. Around 10:00 a.m., the crew along with Miller, left the

park and began the drive north toward the stash house. (Tr. p. 6)

Within five miles from the house Miller had Ingram pull the van

over. They were waiting for the dealer’s phone call.

At 10:40 a.m., Miller received a phone call. He stepped out

of the van to take the call. (Tr. p. 6) When Miller was

approximately twenty feet away, a number of ATF agents rushed in

and threw a stun grenade at the driver’s side of the van. Shortly

after the grenade exploded, Terrance came out of the van from the

passenger’s side of the van with a pistol. Terrance turned the

gun on the ATF agents and shot a number of times before he was

critically wounded. One of Terrance’s shots hit ATF agent, Sarah

Nelson, in the back and severed the lower section of her spinal

cord. She was left paralyzed from the waist down. (Tr. p. 6)

Before the ATF agents could take the crew into custody

Ingram stepped on the gas and fled the scene with Jones and

Malik. (Tr. p. 6) Ingram led ATF agents and the local police on a

two mile chase through neighborhoods before he crashed the van

into an electrical pole going 50 mph. (Tr. pp. 6-7) Ingram died

on impact of the crash and Jones and Malik were seriously

injured. ATF agents searched the van and found items hidden in

compartment located in the trunk. ATF agents found numerous empty

duffel bags and one full of weapons, a large wrench, and a box of

red T-shirts with bandanas.

The local police informed the ATF agents that an anonymous

caller reported seeing two suspicious males loitering on the

street corner near the fake stash house. (Tr. p. 7) The caller

described that the men were wearing baggy clothes and hoodies

that covered their whole faces; he also said that they had been

on the street corner for more than thirty minutes. The caller

went on to state that one of the men had a large backpack and was

frequently fidgeting with something in one of his pockets.

ATF Agents Holder and Martin went to the scene and

investigated the report of the two suspicious males. The agents

drove to the fake stash house. They were wearing jackets with

“ATF Special Agent” printed on the front and back of the jackets.

(Tr. p. 7) As the ATF agents were heading toward Garden Street,

they saw two men dressed in gray hoodies and jeans standing on a

street corner looking in the directions of the so called stash

house. The agents had parked their cars about 150 feet behind the

suspects and walked up to the suspects and asked them “what’s

going on gentlemen?” (Tr. p. 7) The suspects looked at the agents

and began running away from the stash house. Holder yelled

“Federal Agents! Stop and put your hands up!” (Tr. p. 7) The

suspects did not listen and kept running. The agents began to

chase after the suspects on foot.

After pursuing them for about 600 feet, Michael Robey

stopped and pulled something out of his pocket and pointed the

item in the air. Then Mr. Robey turned towards the agents, with

his hands up in the air. The suspect said, “This is a fake gun,

please don’t shoot me!” (Tr. p. 7). The ATF agents pulled their

guns and yelled at him to drop his weapon. The man went to place

the object on the ground, but pointed in the agent’s direction as

he was placing it on the ground. Holder shot this suspect in the

chest, later they would learn that this man’s name was Michael

Roby. (Tr. p. 8) ATF agent Martin called for backup while Holder

went after the other suspect.

Holder continued chasing the suspect with the backpack for

700 feet. (Tr. p. 8) Holder identified himself as an ATF Agent

and ordered the suspect to stop, but the suspect kept on running.

When they were approximately twenty feet from the car, the

suspect slowed down and peered over his shoulder at Agent Holder,

then reached into his pocket for something. Holder reacted and

shot at the suspect three times. The suspect was hit and he

screamed out in pain and began limping; he continued to pull the

object which was his car key from his pocket. The suspect made it

to his car and fled. Holder radioed ATF and the local police

about the suspect escaping and provided a description of the car

in which he fled. There was no sight of the car until 3:45 p.m.

when a local police officer found a car matching the description

of Mr. Carter’s in a ditch along the road. (Tr. p. 8) The police

officer approached the car and the only thing that he saw was

that both seats were covered in blood.

The car keys were still in the ignition and the officer

turned the car over to see if it was still working. The car was

in working condition and had over half a tank of gas. The officer

found the suspect’s opened backpack in the back seat which the

contents were scattered all over the back of the car. Some of the

contents that found were two vodka bottles, a small gas canister,

a butane lighter with the name “Tinderman” engraved on it, and

plain paint rags. It was later determined that the car was

wrecked within approximately two miles of the stash house. (Tr.

p. 8)

Ten hours later the local police received a phone call from

an ICU nurse at a local hospital reporting that there was a

patient at the hospital that matched the description of their

suspect. (Tr. p. 9) The nurse reported that the suspect had two

bullets in his right leg and was suffering from a great deal of

blood loss. ATF agents identified the man as the suspect.

The suspect was arrested twenty-four hours after he came out

of surgery. He was read his Miranda Rights and the agents got a

very clear statement that the suspect understood the rights as

they were read to him. The ATF agents began questioning him. The

man stated his name was Ben Carter and he was in Apate was for

business. Carter then went on to indicate that he felt the police

were crazy for shooting him because he was not armed. The ATF

agents went on to ask Carter about Terrance and the robbery crew.

He denied knowing any of them, on about the robbery plan. One of

the ATF Agents then proceeded to ask Carter about the lighter

with the name Tinderman on it and the black backpack; then asked

for an attorney.

The defendants were arrested and charged with a number of

federal crimes, including the possession of twenty-five kilograms

of cocaine with the intent to sell, possession of firearms in

connection with drug trafficking, murder, and conspiracy to

commit arson. On April 30, 2013, Ben Carter moved to suppress the

contents of his black backpack based upon unlawful search and

seizure. (Tr. p. 9) Carter argued that the ATF agents used deadly

force to contain him, which made the discovery of his backpack

contents fruit of the poisonous tree, are subject to exclusion

under the Fourth Amendment. On May 2, 2013 the defendants moved

to have their indictment overturned under the entrapment

provision set forth in the Fifth Amendment. (Tr. p. 9) On May 29,

2013 the Court heard arguments on the motions. The Court found

for the defendants on both motions. (Tr. p. 2) All of the

defendants in this case were immediately released from custody.

The Thirteenth Circuit Court reversed the lower court’s

decision. The Thirteenth Circuit Court ruled that the defendants’

Fourth and Fifth Amendment rights were not violated. The

defendants were taken back into custody. The defendants in this

case petitioned for Writ of Certiorari, which was granted.

SUMMARY OF THE ARGUMENT

This Court should find in favor of the defendants, reverse

the Thirteenth Circuit Court, and reinstate the ruling of the

District Court. District Court correctly found: 1) the ATF Agents

and Police did seize the defendant, Ben Carter, after Agent

Holder shot him in his right leg; 2) the agents had no probable

cause to seize defendant Carter, nor did they have probable cause

use deadly force; and 3) the illegal seizure by the use of deadly

force lead to discovery the contents of the backpack in of Mr.

Carter’s car.

When a police officer or government agent decides that it is

necessary to use force against a suspect, it is considered a

seizure. Any action that does not allow a person to be able to

walk away from a situation is also considered a seizure. Under

this rule, when Agent Holder decided to shoot Mr. Carter in the

right leg it limited his ability to walk away from the situation;

therefore, his freedom to leave was limited, which constituted a

seizure.

In the case against Ben Carter, there was no real probable

cause to use deadly force to seize him. Neither the police nor

the ATF agents observed or received any reports that the

defendant, Carter, or his friend were taking part in any criminal

activity. The ATF agents in this case received an anonymous tip

that stated that Mr. Carter and his friend were standing on a

sidewalk close to the so-called stash house. Agent Holder never

saw Ben Carter possess a weapon, nor observed him taking part in

any criminal activity. Mr. Carter did not show any signs of

belonging to any area gang. In this case, there existed no

probable cause to seize Carter and, if one did exist, there was

no cause for the ATF agents to use deadly force against the

defendant. In order for the police to use deadly force against a

suspect, there needs to be some evidence that the suspect

committed a crime and that the suspect was a danger to the public

at large or law enforcement. Nothing in the actions of Mr. Carter

indicated that there was probable cause for Agent Holder to use

deadly for to stop him.

The wrongful shooting of Mr. Carter led to the police being

able to discover the contents of his black backpack in the

backseat of his car. Mr. Carter had crashed his car due to the

pain and blood loss he was experiencing after being shot by Agent

Holder. The only reason police were able to discover the contents

of Carter’s backpack was because they found it at the site where

he had crashed his car. It was the crash that led to the improper

seizure by ATF agent Holder. The Fourth Amendment to the United

States Constitution states that evidence discovered by illegal

seizure will be suppressed. No other evidence exists against Mr.

Carter; therefore, the charges against him must be dismissed.

The ruling of the Thirteenth Circuit Court must be

overturned because it is so was shocking and so outrageous that

it violated justice for the defendants. The police and government

agents are supposed to target criminals and prevent crimes. In

this case, the ATF agents overstepped their role in law

enforcement. They set up a situation that would lead to the

arrest of the individuals they had convinced to take part in this

set up.

The ATF Agency in this case created a situation that allowed

individuals who were living at the poverty level to make some

fast cash. The agents looked for individuals to carry out the

crime of robbery of a stash house that they had set up. The

decision to use the area of Green Ridge was based on the

information that the agents had received from an informant. This

informant did not know anything about the area except that the

area was poor.

ATF Agent Miller used the robbery crew members’ economic

status to persuade them into taking part in the robbery of the

stash house and to get them to create a plan on how they were

going to carry out the robbery. It was the living conditions of

the crew that caused them to want to take part in this robbery,

and ATF Agent Miller kept reminding them of the large sums of

money that each of the members would receive once the job was

completed. Agent Miller took part in the initial planning of the

robbery of the stash house, provided resources, and his actions

used against the crew was a form of entrapment.

Stash house robberies create a danger for the public at

large. These types of stings cause harm to not only the

individuals involved but also to innocent bystanders. Those who

were involved in this reverse-sting operation would not have even

attempted to commit a robbery if it were not for the persuasion

from Agent Miller. Therefore, the case against the all of the

defendants needs to be dismissed on the grounds that their Fifth

Amendment rights were violated.

ARGUMENT

I. THE POLICE SEIZED MR.BEN CARTER BY USING DEADLY FORCEWITHOUT PROBABLE CAUSE BY SHOOTING HIM IN THE LEG. THIS ILLEGAL SEIZURE DIRECTLY LED TO THE DISCOVERY OF THE CONTENTS OF THE BACKPACK IN MR. CARTER’S CAR, AND THE FOURTH AMENDMENT MANDATES THE SUPPRESSION OF THE EVIDENCE BECAUSE IT IS FRUIT OF THE POSIONOUS TREE, THE CHARGES AGAINST MR. CARTER BE DISMISSED.

A. THE POLICE ILLEGALLY SEIZED BEN CARTER BY SHOOTING HIM .

In the case of California v. Hodari D., 499 U.S. 621,(1991)

the Court held the word 'seizure' means the putting of ones hands

or the application of physical force to restrain movement.

California v. Hodari D., According to Hodari, a person may be

seized with the use of little force or just the touching of a

suspect. Hodari D. 499 U.S. at 625. A Tennessee statute provides

a clause wherein, if after a police officer has given notice of

an intent to arrest a suspect and the suspect flees then the

officer may use all necessary means to arrest the suspect. The

Court in Tennessee v. Garner, 471 U.S. 1, 7 (1985) held that when

an officer hinders the suspect from being able to walk away, he

or she has seized the suspect.

In the case Tennessee v. Garner, a Memphis police officer

was acting under the statute when he shot and killed Garner's son

after he was told to stop. The victim’s father brought the suit

against the police alleging that his son’s constitutional right

were violated when the officer shot Garner. The Sixth Circuit

Court found that the officers’ actions were constitutional. The

Court of Appeals reversed the District Courts decision. When

appealed to the Supreme Court the court held that the Tennessee

statute was unconstitutional in that the use of deadly force

against a suspect that is not dangerous, and who is fleeing, is

not necessary. When a police officer shoots a suspect that is

running away, it is a seizure by the use of deadly force that is

in accordance with the reasonable requirement that is contained

within the Fourth Amendment of the United States Constitution.

In the present case the police employed the use of deadly

force to seize Ben Carter by shooting him in his leg multiple

times. The use of deadly force by the ATF Agent denied Ben Carter

his freedom to leave a situation that would have resulted in his

illegal arrest by ATF Agent Holder. In the case against Mr.

Carter, ATF Agent Holder had no probable cause to be chasing

after him, nor was there evidence that Mr. Carter was doing

anything that would be considered illegal.

The Thirteenth Circuit Court concluded that the ATF Agent

was just trying to seize Mr. Carter. Even though Agent Holder

employed the use of deadly force to stop Mr. Carter, he managed

to get away. Therefore, that led to the Thirteenth Circuit Court

to rule that there was no true seizure of Mr. Carter. The Circuit

Court should have but did not rely on the ruling in the case

Brower v. Cnty. of Inyo, 489 U.S. 593, (1989). In the Bower case

the court determined that anything that placed a limit on a

suspect’s freedom was a form of a seizure. The language used in

Brower v. Cnty. of Inyo, 489 U.S. 593, (1989), declared that if a

government agent or a police officer shoots a citizen, it is a

form of seizure by law enforcement agents. In the case of

Rodriguez v. Passinault, 637 F.3d 675 (6th Cir. 2011), the Court

held that even if a suspect is not hit by police bullets, the

suspect is still seized, which goes with the wording of the

Fourth Amendment to the United States Constitution. In Nelson v.

City of Davis, 685 F.3d 867 (9th Cir. 2012), a citizen was hit in

the eye with a pepper spray bullet (plastic bullets filled with

pepper spray), the Court determined that the citizen was seized.

Also in Carr v. Tatangelo, 338 F.3d 1259 (11th Cir. 2003), the

Court ruled even if a citizen was hit by a bullet and still able

to get away, the suspect was still seized.

Even when suspects or citizens are hurt and are still able

to get away from law enforcement government agent, they are still

seized. The Fourth Amendment of the United States Constitution

does not require a person to be totally immobile to be seized. We

learn from Hodari D., 499 U.S. at 625–26 the slightest touch is

considered a seizure. When the slightest touch is used there

still leaves a possibility for the suspect to be able to escape

because they are not total restrained. The slightest touch

hinders the freedom of movement of the suspect. The Thirteenth

Circuit Court inaccurately relied on the rule of seizure to find

against Mr. Carter.

In the Bower case, Bower was attempting to flee from the

police when the police side swiped his car, causing the suspect

to crash his car. The Bower case contained, the o side swiping

of the suspect’s car by the police was a way that the suspect's

freedom of movement was hindered and constituted a seizure.

Brower, 489 U.S. at 596–597. Even after the police had stopped a

suspect’s vehicle from working, the suspect still may or may not

be able to flee from the police on foot. However, the Court

ruled that if a police officer hinders a suspect’s car from

working that is enough, under the Fourth Amendment, to be

consider a seizure. The slightest touch or the damage to a

suspect’s vehicle is enough for the courts to rule that the

suspect was seized.

When an officer tackles a suspect there is still a chance

that the suspect will be able to flee from the officer. However,

in the case where an officer shoots an individual, such as was

the case with Mr. Carter, the ability to freely leave the

situation has been altered. In Mr. Carter’s case, once he was

shot, he did not have complete ability escape. If a suspect’s

ability to freely escape has been hindered in any way, under the

Fourth Amendment, it is considered a seizure. In Mr. Carter’s

case, even though he was able to get away from ATF Agent Holder,

he was still considered seized. Therefore, it can only be

concluded that Mr. Carter was seized when shot by Agent Holder.

B. THERE WAS NO EVIDENCE THAT WOULD JUSTIFY THE POLICE USING DEADLY FORCE AGAINST CARTER. THERE HAD BEEN NO INDICATION THAT CARTER HAD A WEAPON OR HE TOOK PART IN ANY CRIME.

The Fourth Amendment to the United States Constitution

establishes when deadly force can be used. In Tennessee v.

Garner, 471 U.S. 1, (1985) the Court held the police or

government official were only to use deadly force when the

suspect in question is creating a threat not only to the officer

but also the general public. Also in Pruitt v. City of

Montgomery, 771 F.2d 1475 (11th Cir. 1985)the Eleventh Circuit

Court determined that an officer should not employ the use of

deadly force unless the suspect in question has a weapon or the

officer believes that there is enough probable cause to suspect

that the offender has a weapon. In Mr. Carter's case, Agent

Holder did not have any probable cause to use deadly force to

attempt to seize the defendant. Agent Holder and Martin received

a report from an anonymous caller who reported two suspicious

looking males standing on a public street near the stash house.

There was no reason to believe that these two individuals had

committed any crime. The agents were relying on an

unsubstantiated tip from an anonymous caller. There was nothing

to show that Mr. Carter had done anything illegal.

The Court in Bailey v. United States, 134 S. Ct. 484, 187 L.

Ed. 2d 327,(2013 U.S.) concluded that an officer of the law must

have probable cause to believe that the suspect had actually

committed a crime. In Mr. Carter's case, ATF Agent Holder relied

on reports from an anonymous caller, and when he came upon Mr.

Carter and his friend, they were just standing on the sidewalk.

Agent Holder in this case had no probable cause to suspect that

Mr. Carter had committed a crime. Mr. Carter had the right to

leave the situation. Since there was no probable cause that Mr.

Carter had committed a crime, he was free to leave and he was not

under any obligation to follow the commands of Agent Holder.

In Sibron v. New York, 392 U.S. 40 (1968), the Court

determined the flight of a suspect is not probable cause for a

seizure. "Specific knowledge on the part of the officer relating

the suspect to the evidence of crime" is required, and here it

was lacking since no evidence existed that Mr. Carter committed

any crime at all. Id. at 66. Therefore, there was no

justification for Agent Holder to use deadly force to seize Mr.

Carter. When Agent Holder decided to use deadly force to stop

Mr. Carter, he grossly stepped over the line of probable cause

that the Fourth Amendment established. The Garner case determined

that, when a police officer shoots an unarmed suspect, the

officer had in turn violated the suspect’s Constitutional Rights

under the Fourth Amendment. Garner, 471 U.S. at 3. In Garner, the

Court focused on the facts that the police officer saw Garner

with a weapon. Id. at 22. Even the fact that Garner was in the

commission of night time burglary, the Court ruled that the

officer had no probable cause to use deadly force on Garner

because there was no evidence that the officer or the general

public was in any danger. Id. at 21. Garner describes the concept

that the suspicion that a citizen might be dangerous is not

enough to justify the police or government agents shooting that

citizen.

When comparing the Garner case with Mr. Carter's case, it is

clear that there was substantially less evidence that Mr. Carter

was a danger to the general public or the ATF Agent. Mr. Carter

did not have any weapons in his possession, nor did he make any

threats against the public or ATF Agent Holder. Mr. Carter simply

just began running away from Agent Holder. Agent Holder did not

possess any evidence, nor was there evidence at the scene that

Mr. Carter had committed a crime. There was no reason that Agent

Holder should have used deadly force, which resulted in injury of

Mr. Carter. The finding in Garner is that the officer violated

Garner's Fourth Amendment Rights. Based upon Garner, Mr.

Carter’s Fourth Amendment Rights were violated by Agent Holder.

The government may argue that after the Agent shot Michael

Roby, Mr. Carter fled, and then reached swiftly into his pocket,

probable cause existed. (Tr. P. 8). The first flaw in the

government’s argument is that the agents had no reason to believe

that Mr. Carter was attempting to pull a weapon from his pocket.

Maybe if the agents or police had seen Mr. Carter with a weapon

earlier, or the anonymous caller told the police that they had

seen Mr. Carter with a weapon, then the shooting would be

justified. If there was some reasonable indication that Mr.

Carter rather than his friend Michael Roby was armed, the use of

deadly force would have been justified. There was no such

evidence and Agent Holder had no justification to shoot Mr.

Carter.

Even if the Court would find that Mr. Carter's actions of

reaching into his pocket, would put the public and Agent Holder

in danger, the action under the Fourth Amendment does not give a

government agent or the police enough probable cause to employ

the use of deadly force. There is a clear description of the

probable cause standard set forth in the Fourth Amendment of the

United States Constitution.

In Reichman v. Harris, 252 F. 371, 381–82 (6th Cir. 1918)

the Sixth Circuit Court states the same justification can be

used when a police officer puts a citizen’s life in danger or

fears that the officer might kill them they have the right to use

self-defense against the officer who was putting their lives in

danger. Mr. Robey was attempting to surrender and yelled at Agent

Holder and told him that he had a fake gun. Agent Holder shot and

killed Mr. Roby when he was trying to surrender to him. Once

Agent Holder had shot and killed Mr. Roby, he continued chasing

Mr. Carter with his gun drawn and eventually he shot Mr. Carter

in the leg.

C. THE EVIDENCE FOUND IN CARTER’S BACKPACK RECOVERED ONLY BECAUSE THE POLICE SHOT AND WOUNDED CARTER.

In the United States v. Crews, 445 U.S. 463, (1980) the

court ruled that any evidence that was discovered because of a

violation of the Fourth Amendment is not admissible in any court

of law. Brown v. Illinois, 422 U.S. 59, 603–04 (1975), set forth

a procedure to determine if the evidence was discovered as a

violation of Constitutional rights. Brown informs us that the

Court needs to consider the following questions to determine if

the evidence violated the suspects Constitutional rights: What

part, if any, did the suspect’s free will play in the discovery

of the evidence? How proximate was the illegality to the

discovery of the evidence? Were there any superseding

circumstances? What part did the government agents play? How

obvious was the violation? Brown v. Illinois, 422 U.S. 59, 603–04

(1975). When looking at the criteria set forth by the court in

Brown, the only evidence against Mr. Carter was discovered from

his black backpack. This evidence must be suppressed because it

would have not been discovered if Agent Holder had not shot him

in the leg, which lead to Mr. Carter wrecking his car, after

attempting to flee from the illegal action of Agent Holder.

Therefore, the evidence in Mr. Carter's backpack must be

suppressed.

In Mr. Carter's case, he did ultimately lead Agent Holder to

his car was running away from Holder. Mr. Carter had already

witnessed his friend, Michael Roby, be shot and killed by an ATF

agent. Mr. Carter decided to try to make it to his car that was

parked in a nearby parking lot. On his way to the car Agent

Holder shot him in the leg but he made it to his car and left the

scene. Driving away from the scene, Mr. Carter was in a great

deal of pain and was losing a lot of blood. Due to his pain and

blood loss from the gunshot wound, Mr. Carter crashed his car

approximately a mile from where he was shot. After he crashed his

car, he left the scene of the accident on foot, leaving his

backpack in the backseat of his car. Mr. Carter crashed his car

as a direct result of the use of deadly force by Agent Holder in

an effort to totally immobilize Mr. Carter. If Mr. Carter had not

been shot by Agent Holder, he would not have wrecked his car;

therefore, the police would not have discovered the contents of

his backpack. The discovery of the contents of the backpack are

fruits of the poisonous tree. Therefore, the evidence gained from

the poisonous tree must be suppressed based upon the Fourth

Amendment.

II. THE RULING OF THE LOWER COURT SHOULD BE REINSTATED BECAUSE AGENT HOLDER VIOLATED MR. CARTER’S DUE PROCESS RIGHTS.

The ATF agents in the Carter case were entrapping African-

American males in this reverse-sting. The agents promised these

impoverished males a chance to make a lot of money quickly. The

actions of the agents were shocking, and it was a clear violation

of the definition of the justice. In United States v. Russell,

411 U.S. 423 (1973), the Court ruled that when government agents

were involved in the commission of an outrageous crime, the Due

Process Clause does not allow for the prosecution of the arrested

suspects. When government agents take outrageous actions, the

concept of fairness has been violated, therefore causing the

reversal of convictions.

United States v. Black, 733 F.3d 294, 301 (9th Cir. 2013)

established the criteria to be used to determine if the actions

of a government agent were outrageous; which are as follows:

“(1) known criminal characteristics of the defendants; (2) individualized suspicion of the defendants; (3) the government's role in creating the crime of conviction; (4) the government's encouragement of the defendants to commit the offense conduct; (5) the nature of the government's participation in the offense conduct; and (6) the nature of the crime being pursued and necessity for the actions taken in light of the nature of the criminal enterprise at issue.”

The Thirteenth Circuit Court decided not to follow the

criteria to determine if the government agent’s actions were

outrageous. In this case, the criteria set forth in Black should

have been applied and determined that the actions of the

government agents were outrageous and no arrests should have

happened.

CONCLUSION

WHEREFORE the defendant respectfully requests this Honorable

Court to Grant his motion to reinstate the ruling of

the District Court and overrule the Thirteenth District Court.

Date: December 3, 2015

___________________William J. Ihlenfeld, II,United States AttorneyNorthern District ofWest Virginia

CERTIFICATE OF SERVICE

I, Lucy Legal, state that I served the above by mailing a copy to the Prosecuting Attorney’s Office for Marion County, West Virginia at 213 Jackson St., Fairmont, WV 26554.

Date: December 3, 2015

___________________Lucy LegalLegal Law Firm100 Broadway Ave.

Fairmont, WV 26554Telephone Number: 304-304-3044