FOSTER LEE STEPHEN, PETITIONER V. UNITED STATES OF AMERICA No. 90-5596 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A7) is not published, but the judgment is noted at 904 F.2d 704 (Table). JURISDICTION The judgment of the court of appeals was entered on May 30, 1990. The petition for a writ of certiorari was filed on August 28, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court properly denied a motion to suppress on the ground that exigent circumstances justified a warrantless entry into an apartment. 2. Whether offenses must be separated by intervening convictions in order to qualify as predicates for an enhanced sentence under the pre-1988 version of 18 U.S.C. 924(e)(1). STATEMENT Following a jury trial in the United States District Court for the Western District of Texas, petitioner was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g). Under the enhanced penalty provision of 18 U.S.C. 924(e)(1) (Supp. V 1987), /1/ he was sentenced to 216 months' imprisonment, to be followed by a two-year term of supervised release. 1. The evidence at the suppression hearing and the trial showed that, on December 18, 1987, maintenance personnel at a public housing project belonging to the San Antonio Housing Authority informed a security officer that petitioner was pointing a shotgun at them and firing it near the apartments. The security officer, who knew petitioner, in turn shared this information with an off-duty San Antonio police officer who worked part-time for the Housing Authority. The police officer also knew that petitioner had been convicted of violent felonies and that a misdemeanor arrest warrant had been issued for him. Gov't C.A. Br. 3-4. The security officer and the police officer found petitioner standing near the door to an apartment, holding a shotgun in a raised position. The police officer identified himself to petitioner and told him to drop the gun. Petitioner lowered the gun but ran into the apartment of an elderly tenant, Eddie Freeman. The officers knew Freeman and knew that he had complained to the project's management about petitioner's staying in his apartment. Gov't C.A. Br. 4-5. Concerned for Freeman's safety, the police officer knocked on the door and ordered petitioner to come out. Petitioner refused, cursing. The officers thereupon called for additional police officers and obtained a passkey for Freeman's apartment. After prying open a screen door, police gained entry to Freeman's apartment with the passkey. Petitioner was in the bedroom, where Freeman was lying under a blanket. On the bed were several weapons, including the shotgun that petitioner had been holding. Petitioner shouted to the police not to take his guns. Gov't C.A. Br. 5-6. /2/ 2. Prior to trial, petitioner moved to suppress the shotgun on the ground that exigent circumstances did not justify the warrantless entry into the apartment. After a hearing, the district court rejected this contention, finding that the officers had reasonably believed that Freeman was in need of their immediate aid and that "their primary concern in entering the apartment was the safety of Mr. Freeman and other persons in and around (the housing project)." The court also found that the police had properly seized the shotgun because it was in plain view during the course of their legitimate emergency activities. Relying on Mincey v. Arizona, 487 U.S. 385, 392-393 (1978), and Warden v. Hayden, 387 U.S. 294, 298-299 (1967), the court denied the motion to suppress. C.A. R.E. 121-128. 3. The indictment notified petitioner that, upon his conviction, the government would seek to enhance his sentence pursuant to 18 U.S.C. 924(e)(1) because he had been previously convicted of three violent felonies under Texas law. C.A. R.E. 313-314. Two of those convictions were for "Robbery by Assault with Firearms," which petitioner had committed on October 25, 1971, and December 23, 1971, and to which he pleaded guilty on March 27, 1982. Ibid.; Pet. App. A4. His third conviction was for "Aggravated Assault Threat, Deadly Weapon," to which he pleaded guilty on November 14, 1984. C.A. R.E. 313-314. Prior to sentence, petitioner argued that Section 924(e)(1) was inapplicable to him. He claimed that because his robbery convictions had been obtained in the same judicial proceeding, only one of them could qualify as a "previous conviction()" within the meaning of the statute. Therefore, he asserted, he lacked the necessary third predicate offense to qualify for the enhanced sentence. 9 R. 41-43. The district court rejected this argument and applied the enhancement provision. 9 R. 43. 4. The court of appeals affirmed. Pet. App. A1-A7. On the suppression issue, the court found that it is clear that the police officers and security personnel had a reasonable basis to believe that the elderly tenant of the apartment in which (petitioner) secreted himself could be in danger and in need of aid. They knew (petitioner's) history of prior crime; that he had brandished and fired the weapon at others earlier in the day; that Freeman had complained to the management about (petitioner's) presence in the apartment; (petitioner) had fled with the gun from police officers who had properly identified themselves. He barred the policemen's entry, and refused orders to come out. Pet. App. A6-A7. The court ruled that the district court had not clearly erred in finding that these circumstances justified the officers' entry into Freeman's apartment. Pet. App. A7. With regard to the sentencing issue, the court rejected petitioner's interpretation of 18 U.S.C. 924(e)(1). The court relied on United States v. Herbert, 860 F.2d 620, 622 (5th Cir. 1988), cert. denied, 109 S. Ct. 2074 (1989), in which it had held that "convictions arising from multiple criminal transactions, regardless of the number of judicial proceedings involved, constitute separate convictions." Pet. App. A3-A4. ARGUMENT 1. Petitioner renews his argument (Pet. 4-7) that the district court clearly erred in finding that exigent circumstances justified the police officers' entry into Freeman's apartment. This fact-bound claim is without merit. Petitioner's own concessions (Pet. 6) refute his argument: he acknowledges that the first police officer and the security guard both knew petitioner and were aware of his criminal record, saw him standing outside the apartment building with a firearm, had previously been informed that he was pointing the gun at people and firing it near the apartment, and were concerned about the safety of the tenant into whose apartment he fled. In these circumstances, the fact that the police were not certain that Freeman, the elderly tenant, was in the apartment when petitioner ran into it does not -- contrary to petitioner's contention (Pet. 6) -- undermine the finding of exigency, especially in view of petitioner's defiance of the police officer's warning to drop the gun and the officer's additional knowledge that Freeman had previously complained about petitioner's presence in the apartment. See Minnesota v. Olson, 110 S. Ct. 1684, 1690 (1990) (hot pursuit of fleeing felon and risk of danger to third parties may constitute exigent circumstances); United States v. Santana, 427 U.S. 38, 42-43 (1976) (hot pursuit justified warrantless entry of house even though pursuit "ended almost as soon as it began"); Warden v. Hayden, 387 U.S. 294, 298-299 (1967) (hot pursuit and danger to police or others justified warrantless entry and search of home into which armed robbery suspect had fled). /3/ In sum, the court of appeals was correct in upholding the district court's finding of exigent circumstances, and no further review is warranted. /4/ 2. Petitioner also renews his contention (Pet. 7-17) that offenses must be separated by intervening convictions in order to qualify as predicates for an enhanced sentence under the pre-1988 version of 18 U.S.C. 924(e)(1). The plain language of the statute imposed no such requirement, and instead prescribed an enhanced sentence for any felon in possession of a firearm who "has three previous convictions by any court referred to in Section 922(g)(1) of this title for a violent felony." The courts of appeals have therefore uniformly held that the pre-1988 version of Section 924(e)(1) did not mandate that convictions intervene before offenses could be treated as predicates for an enhanced sentence, so long as those convictions arose from separate criminal episodes or transactions. See United States v. Schieman, 894 F.2d 909, 910-913 (7th Cir.), cert. denied, 111 S. Ct. 155 (1990); United States v. Schoolcraft, 879 F.2d 64, 70-75 (3d Cir.), cert. denied, 110 S. Ct. 546 (1989); /5/ United States v. Herbert, 860 F.2d at 622; United States v. Gillies, 851 F.2d 492, 497 (1st Cir.), cert. denied, 488 U.S. 857 (1988); United States v. Rush, 840 F.2d 580, 581 (8th Cir.), cert. denied, 487 U.S. 1238 (1988); United States v. Wicks, 833 F.2d 192, 193 (9th Cir. 1987), cert. denied, 488 U.S. 831 (1988); United States v. Greene, 810 F.2d 999, 1000 (11th Cir. 1986). /6/ Congress expressly adopted the courts of appeals' interpretation of Section 924(e)(1) when, in the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Section 7056, 102 Stat. 4402, it amended that Section to provide that the enhanced sentence applies to otherwise qualified felons who have "three previous convictions * * * (for offenses) committed on occasions different from one another * * *." The amended statute confirms that the construction adopted by the court of appeals, in accord with other circuits, is correct: a felon's three prior convictions need only arise from separate criminal episodes occurring on different occasions. The issue petitioner raises is therefore of no continuing importance and does not warrant further review. /7/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General VICKI S. MARANI Attorney DECEMBER 1990 /1/ At the time of the instant offense, the enhanced sentencing provision of 18 U.S.C. 924(e)(1) provided 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 * * *. /2/ Other elements of the crime were established by proof that the shotgun had been manufactured outside of Texas and by a stipulation that petitioner was a convicted felon when he possessed the shotgun. Gov't C.A. Br. 6. /3/ We question whether petitioner even had standing to raise this Fourth Amendment claim. Although the district court concluded that he did have standing "by virtue of his 'de facto' occupancy of the premises" (C.A. R.E. 127), this conclusion is undermined by the court's factual findings that Freeman, the lessee, had allowed petitioner to stay there for only a week; that "(a)fter a week or so had passed, Freeman asked (petitioner) to leave the apartment," but petitioner refused to do so; that Freeman complained to security about petitioner's unwanted presence, which continued in violation of Freeman's lease; and that Freeman "was afraid to challenge (petitioner) because of (petitioner's) bigger size and younger age and because of (petitioner's) use of weapons." C.A. R.E. 124. We are aware of no case in which a defendant's use of fear and intimidation has been found sufficient to confer standing under the Fourth Amendment. /4/ Petitioner's reliance (Pet. 6-7) on Beck v. Ohio, 379 U.S. 89 (1964), and Welsh v. Wisconsin, 466 U.S. 740 (1984), is misplaced. Beck involved a warrantless search and arrest unsupported by probable cause; the case had nothing to do with the exigent circumstances exception to the warrant requirement. Welsh involved a warrantless, nighttime entry of a defendant's home to arrest him for a civil, nonjailable traffic offense. This Court ruled that neither the hot pursuit doctrine nor safety concerns justified the warrantless arrest, particularly since the police had not immediately or continuously pursued the defendant from the accident scene, where he had abandoned his car. Id. at 753. Beck and Welsh are thus plainly distinguishable from this case, where petitioner -- a known felon whom the police had seen holding a gun in a raised position and who had been reported as firing the gun shortly beforehand -- disobeyed a police officer's order to drop the gun and instead ran into a third party's apartment with it. /5/ Schoolcraft clarified the state of the law in the Third Circuit, and the meaning of United States v. Balascsak, 873 F.2d 673 (3d Cir. 1989). 879 F.2d at 70-75. /6/ Petitioner suggests (Pet. 16-17) that there is a conflict between the courts of appeals and "the majority rule among state jurisdictions in the interpretation and application of habitual offender or enhancement statutes." Whatever the merits of that contention, it is sufficient to note that 18 U.S.C. 924(e)(1), a federal statute, is the only statute at issue here. /7/ Petitioner's reliance (Pet. 11-12) on our confession of error in United States v. Petty, 798 F.2d 1157 (8th Cir. 1986), vacated, 481 U.S. 1034 (1987) is entirely misplaced. In Petty, the court of appeals had found the predecessor statute to apply to a defendant previously convicted on six robbery counts for robbing six victims in a single incident. Contrary to petitioner's contention, our confession of error in Petty (Pet. App. B1-B11) casts no doubt on the propriety of using both of petitioner's robbery convictions to enhance his sentence, since he committed those robberies on different occasions. Contrary to petitioner's contention (Pet. 15-16) concerning the rule of lenity, moreover, the statutory language, structure, and history compel the conclusion that a felon's three prior convictions need only arise from criminal episodes occurring on different occasions.