US V Raphael Hunt-Irving Reply Brief

Case: 19-1636 Document: 79 Page: 1 Date Filed: 02/03/2020
No. 19-1636
In the United States Court of Appeals

for the Third Circuit
UNITED STATES OF AMERICA
Appellee,
v.
RAPHAEL HUNT-IRVING,
Appellant.
Appeal from the United States District Court

for the Eastern District of Pennsylvania (McHugh, J.)
(District Court Criminal Action No. 14-520-5)
REPLY BRIEF
Peter J. Scuderi (Pa. Bar No. 32802) Alan Gura (Va. Bar No. 68842)
121 South Broad Street GURA PLLC
Suite 1400 916 Prince Street, Suite 107
Philadelphia, PA 19107 Alexandria, VA 22314
215.546.5650 703.835.9085/703.997.7665
February 3, 2020 Counsel for Appellant

TABLE OF CONTENTS
Table of Contents.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. Admission of the Cash and Scale Tainted the Conviction. . . . . . . . 3
A. The District Court Correctly Rejected the Government’s

Waiver Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. The Agents Seized the Rifle as a Consequence of the

Protective Sweep. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C. The Protective Sweep Violated Hunt-Irving’s Fourth

Amendment Rights, as the Agents Could Not Articulate a
Valid Reason for Sweeping His Residence.. . . . . . . . . . . . . . 13
D. The Protective Sweep Tainted the Subsequent Consent. . . 18
E. It is Reasonably Possible that the Physical Evidence

Swayed the Jury to Convict Hunt-Irving. . . . . . . . . . . . . . . 23
II. Former Counsel Did Not Effectively Assist His Client. . . . . . . . . 25
i
III. The Second Amendment Bars Hunt-Irving’s “Felon-in-

Possession” Conviction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
A. The Legislature Cannot Disarm People Merely

By Labeling Them “Felons”. . . . . . . . . . . . . . . . . . . . . . . . . 27
B. Hunt-Irving’s Predicate Offense was Not “Serious”

Under the Multifactor Test. . . . . . . . . . . . . . . . . . . . . . . . . . 33
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Required Certifications
Certificate of Service
ii
TABLE OF AUTHORITIES
Cases
Beers v. Att’y Gen.,

927 F.3d 150 (3d Cir. 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Binderup v. Atty. Gen’l,

836 F.3d 336 (3d Cir. 2016) (en banc). . . . . . . . . . . . . . . . . . . 26-29, 32
Brown v. Illinois,
422 U.S. 590 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21, 22
District of Columbia v. Heller,

554 U.S. 570 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Holloway v. Atty. Gen’l, No. 18-3595,

2020 U.S. App. LEXIS 1561 (3d Cir. Jan. 17, 2020). . . 1, 26-29, 32, 33
Kanter v. Barr,
919 F.3d 437 (7th Cir. 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32
Marks v. United States,

430 U.S. 188 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Maryland v. Buie,
494 U.S. 325 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 16, 17, 22
Medina v. Whitaker,
913 F.3d 152 (D.C. Cir. 2019) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
New York v. Quarles,

467 U.S. 649 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Segura v. United States,

468 U.S. 796 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
iii
United States v. Ayala, No. 4:10-CR-234,

2011 U.S. Dist. LEXIS 49454, 2011 WL 1769146
(E.D. Tex. May 9, 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
United States v. Brown,

69 F. Supp. 2d 925 (E.D. Mich. 1999). . . . . . . . . . . . . . . . . . . . . . 10, 17
United States v. Fuentes, No. 4:11-CR-118,

2011 U.S. Dist. LEXIS 153004, 2011 WL 7169215
(E.D. Tex. Nov. 10, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
United States v. Howard,

729 F. App’x 181 (3d Cir. 2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Robeles-Ortega,

348 F.3d 679 (7th Cir. 2003) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22
United States v. Rose,

538 F.3d 175 (3d Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
United States v. Washington,

869 F.3d 193 (3d Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
United States v. White,

336 F. App’x 185 (3d Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Wong Sun v. United States,

371 U.S. 471 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
iv
Statutes and Rules
18 U.S.C. § 922(g)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29
Fed. R. Crim. P. 12(b)(3)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Fla. Stat. § 379.233. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Fla. Stat. § 403.161(1)(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Ohio Rev. Code Ann. § 3734.83. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Ohio Rev. Code Ann. § 3734.99. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Other Authorities
Erika Pesantes, Love hurts: Man arrested for

releasing helium balloon with his girlfriend,
Sun Sentinel, February 22, 2013, available at
http://articles.sun-sentinel.com/2013-02-22/
news/fl-helium-balloon-environmental-
crime-20130222_1_helium-balloon-fhp-
trooper-wood-storks (last visited Jan. 28, 2020). . . . . . . . . . . . . . . . . 30
Ohio woman faces $10K fine, 4 years’ prison for 4 extra tires,
Atlanta Journal-Constitution, Sept. 27, 2018, available at
https://www.ajc.com/news/national/ohio-woman-faces-
10k-fine-years-prison-for-extra-tires/OU6DRSZvzAYg
O9tPjWZK2J/ (last visited Jan. 28, 2020). . . . . . . . . . . . . . . . . . . . . . 30
State of Florida v. Anthony Cade Brasfield,

Broward County (Fl.) Case No.
13002444CF10A (filed Feb. 18, 2013). . . . . . . . . . . . . . . . . . . . . . . . 30
v
INTRODUCTION
The central overriding problem with the government’s case is its
agents’ admissions that they “swept” Hunt-Irving’s home because that is
just what they do when arresting people. Without some constitutionally-
adequate reason to conduct a “protective sweep,” the sweep was
unlawful. The purported consent that followed it was tainted, as was the
physical evidence it produced.
Should the Court reach the Second Amendment issue, it would find a
less-stable precedential landscape. The parties’ debate as to which
standard controls and how it applies is now informed by Holloway v.
Atty. Gen’l, No. 18-3595, 2020 U.S. App. LEXIS 1561 (3d Cir. Jan. 17,
2020). Hunt-Irving’s felon-in-possession conviction cannot stand under
Holloway’s dangerousness-based approach, or under Judge Ambro’s
multifactor test that it adopted, though Hunt-Irving preserves his
argument that dangerousness with arms is the traditional basis for
disarmament.
1
SUMMARY OF ARGUMENT
The District Court correctly rejected the government’s claim that
Hunt-Irving waived his sweep-based arguments. Accordingly, it did not
reach Hunt-Irving’s alternative claim that any waiver should be excused
owing to his former counsel’s ineffectiveness. Should this Court reverse
the District Court’s waiver decision, waiver should nonetheless be
excused on ineffective assistance grounds.
The government’s claim that the sweep did not lead to the rifle’s
discovery contradicts common sense. As the District Court found, the
agents did not sit around and wait on Hunt-Irving to answer questions
before commencing their sweep. The agents began sweeping immediately
upon entering . They directed the sweep at all closets, including the
upstairs bedroom closet where the rifle was visible in plain view. As
Agent Glenn admitted, the sweep produced the rifle.
The sweep was not remotely constitutional. Police may not, without
more, search different levels of a home upon arresting an individual just
inside the front door. The unconstitutional sweep, and the rifle it
produced, tainted the subsequent consent. And the physical evidence
2
seized as a result probably made a difference in the outcome. Although
the government now asserts its ambiguity, that evidence formed the
centerpiece of an otherwise weak case that would have turned on why
Hunt-Irving cared about a package. Hunt-Irving explained that the
package was sent by his supplier of marijuana, for personal consumption.
But the government pointed to the cash and the scale in asserting that
Hunt-Irving expected cocaine for distribution.
With respect to the felon-in-possession count, Hunt-Irving maintains
that dangerousness is the proper standard for disarmament. Under the
multifactor test, felony classification informs but does not end the
inquiry. Courts, not legislatures, decide whether the loss of rights is
constitutional. Hunt-Irving should prevail under any standard.
ARGUMENT
I. ADMISSION OF THE CASH AND SCALE TAINTED THE CONVICTION.
A. The District Court Correctly Rejected the Government’s

Waiver Argument.
The government claims that Hunt-Irving waived his challenge to his
home’s “sweep” by not moving to suppress evidence on that ground
before trial. But notwithstanding the government’s claim that it “did not
3
argue waiver on the basis of Rule 12(b)(3)(C) in the district court,” Gov’t
Br. 17 n.3, the argument is a familiar one—and the District Court
correctly rejected it.
The government argued that the District Court “raised this [sweep]
issue at the pre-trial suppression hearing and the defendant’s counsel
appeared to abandon any argument with regard to the seizure of the
firearm during the protective sweep.” Appellant’s Supplemental
Appendix (“ASA”) 3, R.230 at 6. The District Court understood this as
arguing waiver:
[T]he government contends that the issue is waived. Hunt Irving

disagrees, and reserves the right to assert ineffective assistance of
counsel in the event that the issue is deemed waived. I therefore first
address this threshold issue of waiver.
App.20.
As the government notes, the District Court’s opinion denying the
new trial motion states that “[t]he current motion advances a different
basis for suppression.” Gov’t Br. 20 (quoting App.20). But different from
what? The quoted sentence appears immediately after the District
Court’s description of its ruling, not of Hunt-Irving’s previous motion.
Thus, one way to read the statement is that the basis for suppression
4
argued in the new trial motion differed from the arguments that the
District Court previously reached, not necessarily from those previously
advanced by former counsel.
The opinion’s language that follows resolves the ambiguity. “At the
suppression hearing,” former counsel “did not focus on[] the
permissibility of the security sweep,” but he did note it. App.20.
Hunt Irving’s [former counsel] made an argument similar to the one

Hunt Irving now makes, asserting that the sweep would have
occurred regardless of the circumstances: “. . . if you look at the
situation, the search in its totality . . . it’s clear that these agents were
going to search . . . . ”
Id. (citation omitted). The District Court held “that the issue of the
constitutionality of the sweep of the second floor in general is not
waived.” App.21.
Indeed, Hunt-Irving’s former counsel opened his argument by
criticizing the fact that the agents “swept” the home notwithstanding
the facts that they lacked a search warrant, that Hunt-Irving had already
been arrested in the foyer, and that Hunt-Irving had denied that others
were in the home. App.303:11-21. And counsel connected the fruit of
that sweep—the rifle—to the request for consent. App.304:11-16.
5
Notably, the government took advantage of its opportunity to have the
agents explain how and why they conducted the “sweep,” even if it now
shies away from or offers an unconventional gloss on the transcript.
To be sure, Hunt-Irving’s first trial counsel could have made a more
robust argument with respect to the sweep. But that is not to say that
the argument was not initially presented. The District Court held that it
was, and the record supports that holding.1
B. The Agents Seized the Rifle as a Consequence of the

Protective Sweep.
The government claims that the rifle was seized as the product of
Hunt-Irving’s voluntary statement, not the sweep: “The defendant made
this statement [about the rifle] before the protective sweep began.” Gov’t
Br. 23. This is a new position on appeal. Previously the government
stated, “After the officers began their protective sweep, the defendant
Should this Court reach the issue, and disagree with the District
1
Court’s decision, Hunt-Irving would have good cause to have such waiver
excused. His former counsel’s failure to adequately preserve a significant
issue that he had identified and argued would be a case of ineffective
assistance of counsel readily discernible from the record. United States v.
Rose, 538 F.3d 175, 177 (3d Cir. 2008). This Court could choose to
remand that question to the District Court, but it could also decide the
matter here and proceed to the merit of Hunt-Irving’s argument. United
States v. White, 336 F. App’x 185, 187 & n.3 (3d Cir. 2009).
6
informed them that he had a hunting rifle in the closet.” ASA.4, R.230 at
8. The government’s initial position was the correct one. And when it
took that position, the government only defended the protective sweep’s
legality; it did not argue that the rifle was seized outside the sweep’s
context.
As Hunt-Irving noted in his opening brief, at 7 n.1, there is some
testimony supporting the government’s new position as to the sequence
of events, and the government makes good use of it. But the District
Court found that the sweep was conducted as Hunt-Irving was being
questioned. “Agent Glenn, the team leader, asked Hunt Irving if there
were any other people, or any weapons, in the home. Meanwhile, the
team of agents immediately began a ‘protective sweep of the entire
building.’” App.16-17 (citing App.125:7-126:4) (emphasis added).
Agent Glenn testified that his team did not wait for Hunt-Irving’s
answers before “sweeping” the residence:
Q: [W]hile the rest of the team was conducting the security

sweep, what was happening?
A. I would have been asking the defendant if there was any

other person that was inside the building, if there were any
large dogs, and if there were any weapons in the house.
7
App.125:25-126:4. Agent Schmidt corroborated this much: “to the
question of, you know, any weapons, I know there was some hesitation
but at the same time we started clearing, if you would or making the
property safe.” App.269:11-13.
And Agent Schmidt stressed that regardless of what Hunt-Irving
would say, the agents were bound to search the closet: “We’re going to
actually do a complete sweep of the property to clear each room—
bathroom, closets to make sure that there’s nobody—no threats inside
the residence.” App.269:17-20 (emphasis added). Agent Glenn also
expected a thorough search as a matter of course: “they would have
pressed all the way through the building to find every angle, every
corner, every closet, under every bed, to make sure that that building was
secure.” App.155:3-6 (emphasis added).
There is no divorcing protective sweeps from their accompanying
interrogations. The government makes a cursory reference to the
independent source doctrine, but here there was no separate, valid
search warrant or consent. It cites no cases where a sweep’s questioning
8
phase was held to be an independent source of evidence apart from the
actual searching. Yet some instructive authority exists.
In United States v. Ayala, No. 4:10-CR-234, 2011 U.S. Dist. LEXIS
49454, 2011 WL 1769146 (E.D. Tex. May 9, 2011), police burst into an
apartment upon mistaking defendant’s football-induced exclamations for
a violent assault. The protective sweep, which had revealed drugs, cash,
and paraphernalia in plain view, was valid. But the gun to which
defendant directed police was excluded “because it was not lawfully
within the scope of the protective sweep and not otherwise discoverable
under the independent-source rule.” 2011 U.S. Dist. LEXIS 49454, at
*19.
In United States v. Fuentes, No. 4:11-CR-118, 2011 U.S. Dist. LEXIS
153004, 2011 WL 7169215 (E.D. Tex. Nov. 10, 2011), the defendant told
police about the location of a hidden gun before they conducted a valid
protective sweep. But while his statements were admissible, the gun was
not, as its discovery exceeded the sweep’s valid scope. Because “nothing
in the record indicates that officers ever sought a search warrant to
search the apartment for a weapon after Fuentes and his wife told
9
officers of its existence[,] the independent-source doctrine is
inapplicable.” 2011 U.S. Dist. LEXIS 153004, at *18.
In United States v. Brown, 69 F. Supp. 2d 925 (E.D. Mich. 1999), “the
protective sweep was not based upon any articulable suspicion, but
rather was undertaken as a matter of standard ATF policy.” Id. at 930. It
was thus invalid. Id. at 931. Yet “at some point during the protective
sweep,” the defendant signed a “Consent to Search” form. Id. This, too,
could not validate the seizure, because it did “not [occur] during a search
conducted pursuant to this consent.” Id. at 932. The guns were only
admissible under the inevitable discovery doctrine because the police
could have performed a second search pursuant to the defendant’s
written consent. Id. at 933-34. But unlike the facts here, the sweep and
its products were not used to gain that written consent. Id. at 934.
While the Brown court determined that defendant’s statement and
consent were obtained as part of a “separate and independent
investigation,” id. at 933, the agents here shared the more practical view
of the events, as reflected in Ayala and Fuentes. They did not parse the
sweep’s elements into discrete doctrinal boxes. For them, asking about
10
the presence of alleged hazards is part and parcel of the sweeping
process, “almost second nature.” App.269:2. Had the agents not intended
to sweep the residential floor, there would not have been any point in
asking Hunt-Irving sweep-related questions. And so, Agent Glenn
explained that “we were still conducting the security sweep, and there
was one of our agents that had found a large caliber rifle on that
protective sweep that was visible in plain view.” App.127:4-7.
To be sure, Agent Glenn then clarified, as prompted, that Hunt-Irving
answered the gun question, “finally,” “before that agent [Schmidt] found
that weapon.” App.127:8-12. But Glenn did not relate that Schmidt
located the gun in response to Hunt-Irving’s direction; he merely stated
that Schmidt later brought the gun downstairs. Schmidt filled in this
gap, claiming that he went for the gun in response to Hunt-Irving’s
statement. App.271:2-9. But this occurred “at the point where we were
conducting the protective sweep.” App.270:22-23. Only later would
Schmidt offer the sequence urged by the government, that Hunt-Irving
spoke of the gun “initially in the beginning before the sweep was
undergoing.” App.293:22-23.
11
This third version of events is the least likely. Officers concerned for
their safety would not patiently wait for a shy or recalcitrant arrestee to
reveal the location of (what they would perceive to be) hidden dangers
before sweeping. As Agent Schmidt testified, “[w]e’re going to actually
do a complete sweep of the property,” App.269:17-18, regardless.
In any event, the record amply supports the District Court’s
determination that the sweep occurred contemporaneously with Hunt-
Irving’s interrogation. The relevant question is not, then, at what point
during this very thorough sweep of Hunt-Irving’s home—before or after
the gun statement—the agents found the rifle in plain view. As the
government’s brief suggests, the relevant question is whether the rifle
was found “as a consequence of the protective sweep.” Gov’t Br. 23-24.
The government now answers that question in the negative by seizing
on the unlikeliest of several timelines, inconsistent with the District
Court’s factual determination. But Agent Glenn had the correct answer:
“one of our agents . . . found [the] rifle on that protective sweep that was
visible in plain view.” App.127:5-7.2
As the government notes, “Hunt-Irving has not argued that

2
Glenn’s questions provide any basis for suppression of the AK-47.” Gov’t
12
C. The Protective Sweep Violated Hunt-Irving’s Fourth

Amendment Rights, as the Agents Could Not Articulate a
Valid Reason for Sweeping His Residence.
Without citing any precedent, or responding to that offered by Hunt-
Irving, or engaging the testimony as to the home’s layout, the
government posits that the agents could have searched the upstairs of
his home because people might come down the staircase. And although it
has the burden of proof in justifying a “protective sweep,” the
government complains that the sweep should be presumed constitutional
because allegedly, “the layout of the premises is not fully developed in
the record.” Gov’t Br. 26 n.10.
This asserted per-se rule allowing sweeps up and down staircases,
because different floors are adjacent to each other, is barely better than
the agents’ automatic sweep policy. It does not matter that Hunt-Irving
“had in fact come down those very stairs in the minutes before his
arrest.” Gov’t Br. 25. Mr. Buie had just come up the stairs from his
Br. 22 n.6. That is because the rifle was not discovered as a consequence
of those questions. In any event, New York v. Quarles, 467 U.S. 649
(1984) is irrelevant, as the rifle sitting by itself in an upstairs closet
posed no danger to the public or the officers, who should have left the
house upon seizing Hunt-Irving.
13
basement when the officers seized him, and yet, the Supreme Court held
that allowance of a protective sweep under such circumstances “is
decidedly not ‘automatic,’ but may be conducted only when justified by a
reasonable, articulable suspicion that the house is harboring a person
posing a danger to those on the arrest scene.” Maryland v. Buie, 494
U.S. 325, 336 (1990). The Supreme Court did not uphold the sweep; it
remanded the matter for application of the correct standard.
In Buie’s wake, no court has ever accepted the notion that the police
have carte blanche authority to sweep different residential levels of a
building. This Court should not be the first to do so. The government
failed to address any of the six cases rejecting its other-floors-are-
adjacent proposition, and this Court’s implicit rejection of that view in
United States v. Howard, 729 F. App’x 181 (3d Cir. 2018). Moreover,
contrary to the government’s footnoted claim, the record is replete with
descriptions of the building’s layout. See, e.g., Opening Br. 3. And even if
there were something unusual about Hunt-Irving’s building that made
the second floor “adjacent” to the first for Buie purposes, it was the
government’s burden to prove that when its agents took the stand and
14
explained their reasons for sweeping. But the only reasons given by the
agents was their general desire to sweep, and their custom, practice, or
policy of doing so.
The government bristles at any suggestion that its agents acted
pursuant to an unconstitutional custom, practice, or policy, claiming that
Hunt-Irving has “recharacterize[d] the agents’ testimony that they
routinely take appropriate and lawful precautions for their own safety
into an assertion that they have a policy of committing violations of the
Constitution.” Gov’t Br. 27. As the government reads the transcripts, the
agents merely testified that “they frequently perform protective sweeps
when they enter a residence to execute an arrest warrant.” Gov’t Br. 26.
And the government invests a good deal of effort explaining that “Fourth
Amendment inquiries do not concern themselves with individuals’
subjective intent.” Gov’t Br. 27.
Three points:
First, not every thing that the police might do as a “precaution for
their own safety” is therefore lawful or constitutional. A custom, policy
or practice of automatically sweeping every home upon entry may well
15
offer marginal officer safety benefits, but the Fourth Amendment
forecloses that approach. Were the agents worried about the “potentially
very deadly” risks of being on “their adversary’s turf,” Gov’t Br. 24, they
should have either left the building upon seizing Hunt-Irving in the
front foyer, or testified as to their “reasonable, articulable suspicion” for
sweeping. Buie, 494 U.S. at 336. They could have also chosen a different
place to arrest him.
But having chosen to invade Hunt-Irving’s home, the agents chose to
accept the Fourth Amendment’s limitations on their conduct there. The
Supreme Court acknowledges that a suspect’s home might be dangerous.
It still requires that protective sweeps be “justified by a reasonable,
articulable suspicion that the house is harboring a person posing a
danger to those on the arrest scene.” Buie, 494 U.S. at 336.
Second, by pointing to the agents’ policy of automatically sweeping
homes, Hunt-Irving is not suggesting that their subjective intent
determines a search’s constitutionality. There will be times when sweeps
are objectively justified, in agreeable coincidence with the agents’
erroneous belief that sweeps are always justified. But here, the agents
16
explained their decision to sweep only by referring to their custom,
practice, or policy of sweeping. They did not identify any objectively
adequate, Buie-compliant justification.
Finally, the District Court termed Hunt-Irving’s arguments Buie
arguments “well-reasoned,” App.23, quoting some of Agent Schmidt’s
problematic testimony. App.22 n.4. One court found an unlawful sweep
policy on similar agent testimony. See Brown, 69 F. Supp. 2d at 930-31.
Is it fair to claim that the agents “swept” the home pursuant to a policy?
Agent Glenn thought so:
Q . . . [C]onsistent with your policy, the other, I guess eight —

seven or eight agents, they make a protective sweep of the
residence . . . . Is that an accurate statement?
A Yes, Sir.
App.154:2-6. Here is how he described that policy moments earlier:
Our weapons are drawn from the outside of the building . . . And once
we enter the building, our weapons are still drawn . . . from there, we
would have conducted a security sweep of the — a protective sweep of
the entire building, the first floor and the second floor.
App.125:1-11. Agent Schmidt agreed that the sweep was premeditated.
“We’re going to actually do a complete sweep of the property.”
App.269:17-18.
17
The government’s take, that the agents merely testified to frequently
taking precautions, lacks basis in the record. The agents did not say,
“frequently, we are told that other people are in the house,” or
“frequently, we hear noises coming from upstairs areas that we need to
check out.” Hunt-Irving does not doubt, and the Court might well
assume, that constitutionally-adequate bases for protective sweeps do
often arise. But they do not always arise, as protective sweeps are an
exception to the warrant requirement. They did not arise here, as the
presence of stairs did not justify the sweep of Hunt-Irving’s home.
D. The Protective Sweep Tainted the Subsequent Consent.
The agents lacked any reasonable, articulable suspicion (or any
suspicion, for that matter) that a dangerous individual might have been
hiding on Hunt-Irving’s second floor. Yet they swept that second level
anyway, less than thirty minutes before obtaining Hunt-Irving’s consent
to conduct another search. Was that consent tainted by the search’s
illegality?
Hunt-Irving has not argued that evidence must be suppressed
“whenever an illegality existed, regardless of whether the challenged
18
conduct played any part in the discovery of the evidence.” Gov’t Br. 32.
Of course the illegality has to cause the consent. Otherwise, there could
be no taint to purge. As Hunt-Irving noted, the issue is “whether the
challenged evidence was ‘come at by exploitation of [the initial] illegality
or instead by means sufficiently distinguishable to be purged of the
primary taint.’” Opening Br. 29 (quoting Segura v. United States, 468
U.S. 796, 804-05 (1984)); Wong Sun v. United States, 371 U.S. 471, 488
(1963). That question is answered per the three factors set out in Brown
v. Illinois, 422 U.S. 590 (1975).
The government, however, defends the District Court’s failure to
conduct a Brown analysis on four different grounds. All lack merit. It
first claims that the rifle was irrelevant because allegedly, “[t]he agents
conducting the protective sweep were looking for threats to their safety,
not for evidence.” Gov’t Br. 32. Assuming the agents were motivated by
safety concerns is beside the point. The sweep was illegal because the
agents lacked a reasonable, articulable suspicion to conduct the sweep.
Next, although it had just confirmed that the agents were “looking for”
something, the government claims that “[n]othing in the record supports
19
the defendant’s claim that the agents conducted a search rather than a
sweep.” Id. But a “sweep,” or “looking for” things, is a search. That is
why the Fourth Amendment governs its parameters. The government
then repeats its position that the rifle was not seized as a consequence of
the sweep, Gov’t Br. 33, but that is not a separate or new contention
from what has been addressed already.
Finally, the government denies that the agents exploited the rifle in
seeking Hunt-Irving’s consent. But what else where they doing when “it
was put to the defendant—listen, you know, we’re seizing the AK-47,
you know?” App.277:5-7. The government denies “that anyone
threatened the defendant with criminal charges for possessing the rifle,”
and asserts that the “[t]he record does not show whether the agents
speaking to Hunt-Irving were aware that he had a prior felony
conviction.” Gov’t Br. 34 & n.13. Then why seize the rifle? “[W]ith the
exception of Hunt Irving’s prior felony, his possession of the rifle was
lawful.” App.31. The rifle’s seizure itself confirms the agents’ knowledge
of Hunt-Irving’s record. It beggars belief that the biographical packets
each agent received about Hunt-Irving, App.114:10-17, 248:5-9, failed to
20
disclose his weapons prohibition, and that prohibition is the only
possible reason for seizing the rifle. Telling him of the rifle’s seizure was
a non-too veiled prosecutorial threat.
Apart from the government’s concession that the temporal proximity
prong favors Hunt-Irving, Gov’t Br. 35, the government’s Brown
analysis fares no better. First, it misreads Brown, which acknowledged
that Miranda warnings are “an important factor, to be sure,” but then
set out its three attenuation prongs, including “intervening
circumstances.” Brown, 422 U.S. at 603-04. The Miranda warnings are
not, themselves, an “intervening circumstance.”
The agents’ threats to disrupt Hunt-Irving’s funerals while they
applied for a search warrant might have supplied him with another
motivation to consent, but it hardly lessened the impact of the sweep, or
of the rifle’s exploitation.3 And it is somewhat incongruous to posit the
act of consent as a meaningful intervening circumstance between the
illegality and the consent. “[A]ll written consents” are not, per se, “an
3
The agents calculated, correctly, that Hunt-Irving would be
sensitive to avoiding disruption of the day’s funerals. But if they had a
basis for a search warrant, they could have also picked a different day to
apply for one.
21
‘intervening circumstance’ breaking the causal chain.” United States v.
Robeles-Ortega, 348 F.3d 679, 684 (7th Cir. 2003) (citations omitted).
As for the most important factor, “the purpose and flagrancy of the
official misconduct,” Brown, 422 U.S. at 604, the government merely
recites the alleged protective interest in sweeping, and denies, again,
that the agents threatened to prosecute Hunt-Irving’s possession of the
rifle. But it still offers no “reasonable, articulable suspicion” for the
sweep, Buie, 494 U.S. at 336, which lasted fifteen minutes, and which
targeted a residential floor that the agents so wanted to search that they
would have disrupted funerals to seek a warrant. The flagrancy of
asserting that sweeps may be performed as a matter of course is self-
evident, as is the fact that by telling Hunt-Irving of the rifle’s seizure,
the agents were threatening his prosecution for possessing it.
The agents conducted an unlawful “sweep” justified by nothing
(except, perhaps, the presence of stairs in a two-story buiding). Within
half an hour, during which time they exploited the sweep’s fruits, they
had their consent. That consent was tainted.
22
E. It is Reasonably Possible that the Physical Evidence

Swayed the Jury to Convict Hunt-Irving.
The government makes extensive use of the record in attempting to
establish the sweep’s legality. It offers a voluminous supplemental
appendix to discuss the recorded conversations among the other alleged
conspirators. But when it comes to showing why physical evidence was
unnecessary to tie Hunt-Irving to this supposed “wiretap case,” Gov’t
Br. 39, it submits nothing but a conclusory assertion that the recordings
sufficiently implicated Hunt-Irving. As for the physical evidence, the
government now agrees with Hunt-Irving that it was irrelevant. But that
was not its position at trial, where the evidence likely made a difference.
The third superceding indictment is chronologically out-of-order, but
its story begins with count 7. This, the indictment’s major count,
charged a conspiracy listing 40 overt acts related to the distribution of
over 5 kilograms of cocaine. Hunt-Irving was acquitted of this count.
The government offers that Hunt-Irving would have been convicted of
the other counts, even without the physical evidence, because he
expressed concern about a missing cocaine shipment. Gov’t Br. 39. But
Hunt-Irving never discussed a shipment of “cocaine.” Hunt-Irving uses
23
marijuana, which the agents here smelled and discovered at his home.
See, e.g. App.42:2-6, 285:17-20, 397:18-22. Hunt-Irving had a history of
buying marijuana from Pinkney and discussing those purchases over the
phone. ASA.21:18-23, R.246, 21:18-23. The government has alleged that
Pinkney sells marijuana. App.74-75, ¶¶6-7. Hunt-Irving testified that he
would not say “marijuana” when discussing the drug by phone, but used
various euphemisms—and his reference to the intercepted package was
to marijuana he was buying for personal use. ASA.24:4-25:10, R.246,
24:4-25:10.
The government opened the case discussing the scale and cash, and
emphasized these items’ purported links to cocaine distribution.
ASA.9:11-25, ASA.10:17-20, R.241, 13:11-25, 14:17-20. “[T]he fact that
Mr. Hunt-Irving has a digital scale in his residence, along with the
$15,000 in cash all demonstrate that he was in for this deal and he was
in for this agreement throughout the three charged conspiracies.”
ASA.9:21-25, R.241, 13:21-25. Its agent testified as to the scale’s
relevance. ASA.15:24-17:23, R.245, 13:24-15:23. The government’s
closing attacked Hunt-Irving’s marijuana alibi by pointing to the scale
24
and cash. ASA.29:17-19, 30:12-19, R.247, 44:17-19, 45:12-19. The jury
believed enough of Hunt-Irving’s case, or had sufficient doubt of the
government’s case, to acquit him on the major conspiracy count. It is
reasonably likely that the scale and cash played a role in obtaining the
convictions.
II. FORMER COUNSEL DID NOT EFFECTIVELY ASSIST HIS CLIENT.
The parties are in apparent agreement over the relevant Sixth
Amendment standard. Hunt-Irving acknowledges that ineffective
assistance claims are typically not reviewed on direct appeal, and the
government acknowledges that this Court addresses such claims on
direct appeal “where ineffectiveness—or its absence—is plain on the
existing record.” Gov’t Br. 43. And Hunt-Irving’s ineffective assistance
claim remains conditional; there may not be a need to reach the issue.
But the government errs in its description of the record, which plainly
reveals that the rifle was illegally obtained pursuant to an unauthorized
sweep—and that counsel, despite moving to suppress the rifle, also
stipulated to its existence. The government posits no “reasonable
strategy” for this position. United States v. Washington, 869 F.3d 193,
25
204 (3d Cir. 2017). It claims only that counsel should not have bothered
with a motion to suppress because no Fourth Amendment violation
occurred. Even if one assumes that an officer who is told of a “nearby”
weapon may secure it, that does not necessarily mean that the weapon
may be admitted into evidence. Under the government’s view, seizing a
homeowner at his front door authorizes the government to use at trial
any implement that could have been used as a weapon, found anywhere
in the building. The weapon here was not “nearby,” and posed no threat.
III. THE SECOND AMENDMENT BARS HUNT-IRVING’S “FELON-IN-

POSSESSION” CONVICTION.
Dangerousness, not any sort of inherently-indeterminate moral
judgment, has always been and remains the proper constitutional basis
for disarmament. Holloway, this Court’s latest pronouncement on the
subject, leaned in that direction even as it adopted a version of Judge
Ambro’s “serious crime” inquiry announced in Binderup v. Atty. Gen’l,
836 F.3d 336 (3d Cir. 2016) (en banc).
Judge Hardiman’s Binderup “dangerousness” concurrence may not
have commanded a majority, but neither did Part III of Judge Ambro’s
plurality, which saw only seven of fifteen judges offering those convicted
26
of “serious” crimes as the historically proscribed class. See Binderup, 836
F.3d at 339 n.1; id. at 387 n.72 (Fuentes, J., dissenting). To the extent
Holloway resolved that dispute (there remains time for an en banc
petition in that case) by adopting a version of Judge Ambro’s plurality,
Hunt-Irving preserves his right to argue that Holloway should be
reconsidered.4
The government does not argue that Hunt-Irving’s predicate offense
was dangerous. It claims only that all felonies are automatically
disqualifying. It also claims that Hunt-Irving’s offense is “serious” under
Judge Ambro’s multifactor test. Both contentions are wrong.
A. The Legislature Cannot Disarm People Merely

By Labeling Them “Felons.”
The government errs in claiming that under this Court’s precedent,
felony classification is “decisive” as to the constitutionality of
disarmament. Gov’t Br. 12. Circuit law or not, Judge Ambro’s Binderup
concurrence did not go quite that far. “[T]here are no fixed criteria for
Holloway renders largely academic the parties’ debate as to

4
whether Beers v. Att’y Gen., 927 F.3d 150 (3d Cir. 2019) controls the
outcome of a Section 922(g)(1) case, and how Binderup should be
understood in light of Marks v. United States, 430 U.S. 188 (1977).
27
determining whether crimes are serious enough to destroy Second
Amendment rights.” Binderup, 836 F.3d at 351 (Ambro, J.) That opinion
acknowledged that presumptions, such as that applied to felon
disarmament in District of Columbia v. Heller, 554 U.S. 570 (2008), may
be overcome. Id. at 350 (Ambro, J.). It rejected the notion that a
legislative body can define the contours of a constitutional right. Id. at
350-51. It described classification as an important element in
determining whether the predicate offense is “serious,” but offered that
factor as one to be balanced among others. And, as the government
acknowledges, the plurality reserved answering whether a felon could
obtain as-applied relief from Section 922(g)(1). Id. at 353 n.6 (Ambro, J.).
Judge Ambro’s Binderup plurality, as adopted by the Holloway
majority, holds that “[a]t step one, the challenger must ‘identify the
traditional justifications for excluding from Second Amendment
protections the class of which he appears to be a member[.]’” Holloway,
2020 U.S. App. LEXIS 1561, at *8 (quoting Binderup, 836 F.3d at 347
(Ambro, J.)). Under this approach, the “historically excluded class” is
comprised of “convicts,” specifically, those convicted of “serious crimes.”
28
Id. (citing Binderup, 836 F.3d at 350). Not all felonies are, by that virtue,
“serious” crimes. The “classification of the offense” is but one of
“various factors [that] may be informative.” Id. (citing Binderup, 836
F.3d at 351-52).
When this Court “deemed” Holloway’s predicate offense “a
disqualifying felony,” triggering Section 922(g)(1)’s presumptive validity,
it did not end its opinion. Holloway, 2020 U.S. App. LEXIS 1561 at *9.
Rather, this Court “examine[d] whether Holloway’ crime was
nonetheless” insufficiently serious, id., stressing that the misdemeanor/
felony distinction “is not dispositive.” Id. at *12. “[N]ot only is the
distinction minor and often arbitrary, some states do not use the
distinction at all.” Id. (citations and internal quotation marks omitted).
And the flip side of observing that “numerous misdemeanors involve
conduct more dangerous than many felonies,” id. (internal quotation
marks omitted), is that many felonies are less dangerous than many
misdemeanors. See, e.g., Binderup, 836 F.3 at 372 n.20 (Hardiman, J.,
concurring). The arbitrary and excessive nature of many felony
classifications is readily apparent. Transporting more than ten scrap
29
tires without a permit is a two-to-four year felony in Ohio. Ohio Rev.
Code Ann. §§ 3734.83, 3734.99. Not everyone running afoul of this law is
a serious criminal. Ohio woman faces $10K fine, 4 years’ prison for 4
extra tires, Atlanta Journal-Constitution, Sept. 27, 2018, available at
https://www.ajc.com/news/national/ohio-woman-faces-10k-fine-years-pris
on-for-extra-tires/OU6DRSZvzAYgO9tPjWZK2J/ (last visited Jan. 28,
2020).
Overcharging is another problem. For example, while Florida
punishes the release of balloons as a noncriminal infraction subject to a
$250 fine, Fla. Stat. § 379.233, one Florida man faced a third-degree
felony charge, punishable by five years imprisonment, for releasing a
dozen heart-shaped balloons as a gesture to his girlfriend.5 Should that
transgression have cost him his Second Amendment rights, forever?
5
See Erika Pesantes, Love hurts: Man arrested for releasing helium
balloon with his girlfriend, Sun Sentinel, February 22, 2013, available at
http://articles.sun-sentinel.com/2013-02-22/news/fl-helium-balloon-
environmental-crime-20130222_1_helium-balloon-fhp-trooper-wood-stor
ks (last visited Jan. 28, 2020). Defendant was initially charged with
felony pollution, Fla. Stat. § 403.161(1)(a), albeit coded as “Haul Waste
Tire w/out a Permit.” See State of Florida v. Anthony Cade Brasfield,
Broward County (Fl.) Case No. 13002444CF10A (filed Feb. 18, 2013).
30
The question is not whether this Court ought to substitute its
judgment for that of a legislature as to the classification (or creation) of
crimes. Gov’t Br. 54. The question is whether a legislature may
substitute its judgment for that of this Court as to what is constitutional.
Legislatures can classify people’s behavior as they wish. Courts,
however, have the final word as to whether that behavior justifies the
loss of a fundamental right.
Regardless of whether the historically barred class is composed of
“dangerous” or “serious” or “unvirtuous” criminals, it cannot be that
people lose a fundamental constitutional right merely because the
legislature assigns them a label. This Court’s precedent reflects this
much. And contrary to the government’s assertions, even some of the
more grudging courts are still uncomfortable going quite the
government’s distance. See Kanter v. Barr, 919 F.3d 437, 450 n.12 (7th
Cir. 2019); Medina v. Whitaker, 913 F.3d 152, 160 (D.C. Cir. 2019) (“[w]e
need not decide today if it is ever possible for a convicted felon to show
that he may still count as a ‘law-abiding, responsible citizen.”).
31
Yet rather than address these serious concerns with disarming anyone
labeled a “felon,” the government goes even further. It finds, in the
dissent from Pennsylvania’s ratifying convention, alleged historical
support for “disarming convicted criminals” generally. Gov’t Br. 55
(citation omitted). But “[a]s far as I can find, no one even today reads
this provision to support the disarmament of literally all criminals, even
nonviolent misdemeanants.” Kanter, 919 F.3d at 456 (Barrett, J.,
dissenting). “[U]sing ‘real danger of public injury’ to draw the line is
both internally coherent and consistent with founding- era practice.” Id.
The government does not much engage with historical sources in
offering something other than dangerousness as the traditional basis for
disarmament.6 Yet even “virtuousness” or “seriousness” are judicial
benchmarks. Holloway confirms, if nothing else, that this Court will ask
whether the purportedly-disabling offense meets a constitutionally-
required standard for disarmament. That standard, however else
disputed, is not a reflexive approval of whatever the legislature decided.
6
Its rote analogizing of the felon-in-possession ban to other
collateral consequences ignores the fact that “these forfeitable rights
have different histories and different constitutional dimensions.”
Binderup, 836 F.3d at 359 n.14 (Hardiman, J., concurring).
32
B. Hunt-Irving’s Predicate Offense was Not “Serious”

Under the Multifactor Test.
The words “danger” or “dangerous” appear twenty times in
Holloway’s majority opinion, as it short-circuits the multifactor test by
declaring that “[a] crime that presents a potential for danger and risk of
harm to self and others is ‘serious.’” Holloway, 2020 U.S. App. LEXIS
1561, at *10 (citation and footnote omitted). Plainly there is nothing
dangerous about Hunt-Irving’s predicate offense here, and the
government does not argue otherwise.
As Holloway demonstrates, “dangerous” encompasses a greater range
of behavior than “violent,” the second prong of Judge Ambro’s
multifactor test. Nor can the government dispute the fact that Hunt-
Irving received a no-jail sentence. Nor does the government challenge
Hunt-Irving’s cross-jurisdictional survey, showing that only 17 of the
government’s proposed 35 relevant state crimes are felonies. The
government merely repeats the 35-state statistic, Gov’t Br. 67, but the
fourth prong does not ask whether tampering with public records is
broadly illegal. Rather, the prong asks whether that crime is serious by
33
examining its classification and punishment. On this score, the balance
tilts in Hunt-Irving’s favor.
In other words, apart from felony classification, the other three
Binderup plurality prongs, as well as Holloway’s dangerousness analysis,
all weigh against the indictment.
CONCLUSION
This Court should reverse the judgment below. This Court should also
remand the case with instructions to grant Raphael Hunt-Irving’s
motions to suppress all physical evidence seized from his home, and to
dismiss count six of the third superseding indictment.
Dated: February 3, 2020 Respectfully submitted,
Peter J. Scuderi Alan Gura

Peter J. Scuderi (Pa. Bar No. 32802) Alan Gura (Va. Bar No. 68842)
121 South Broad Street GURA PLLC
Suite 1400 916 Prince Street, Suite 107
Philadelphia, PA 19107 Alexandria, VA 22314
215.546.5650 703.835.9085/703.997.7665
Counsel for Appellant
34
CERTIFICATION OF BAR MEMBERSHIP
I certify that I am an attorney in good standing of the bar of the Third

Circuit.
/s/ Alan Gura
Alan Gura
I certify that I am an attorney in good standing of the bar of the Third

Circuit.
/s/ Peter J. Scuderi
Peter J. Scuderi
DATED: February 3, 2020

CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Fed. R. App.

P. 32(a)(7)(B)(ii) because it contains 6,363 words.
2. This brief complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) and the type style requirements of Fed. R. App. P.
32(a)(6) because this brief has been prepared in proportionately
spaced typeface using Corel WordPerfect in 14 point Century
Schoolbook font.
3. The text of the electronic brief is identical to the text in the paper
copies.
4. This file was scanned for viruses using a currently-subscribed

Norton 360 Anti-Virus installation and was found to be virus-free.
/s/ Alan Gura

Alan Gura
Attorney for Appellant
Dated: February 3, 2020
CERTIFICATE OF SERVICE
I hereby certify that on February 3, 2020, I electronically filed the

foregoing brief with the Clerk of this Court by using the appellate
CM/ECF system. The participants in the case are registered CM/ECF
users and service will be accomplished by the appellate CM/ECF system.
I declare under penalty of perjury that the foregoing is true and

correct.
Executed this the 3rd day of February, 2020
/s/ Alan Gura

Alan Gura

US V Raphael Hunt-Irving Reply Brief

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

US V Raphael Hunt-Irving Reply Brief

Încărcat de

Drepturi de autor:

Formate disponibile

Case: 19-1636 Document: 79 Page: 1 Date Filed: 02/03/2020

In the United States Court of Appeals

UNITED STATES OF AMERICA

Appeal from the United States District Court

February 3, 2020 Counsel for Appellant

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

I. Admission of the Cash and Scale Tainted the Conviction. . . . . . . . 3

A. The District Court Correctly Rejected the Government’s

B. The Agents Seized the Rifle as a Consequence of the

C. The Protective Sweep Violated Hunt-Irving’s Fourth

D. The Protective Sweep Tainted the Subsequent Consent. . . 18

E. It is Reasonably Possible that the Physical Evidence

II. Former Counsel Did Not Effectively Assist His Client. . . . . . . . . 25

III. The Second Amendment Bars Hunt-Irving’s “Felon-in-

A. The Legislature Cannot Disarm People Merely

B. Hunt-Irving’s Predicate Offense was Not “Serious”

Beers v. Att’y Gen.,

Binderup v. Atty. Gen’l,

District of Columbia v. Heller,

Holloway v. Atty. Gen’l, No. 18-3595,

Marks v. United States,

New York v. Quarles,

Segura v. United States,

United States v. Ayala, No. 4:10-CR-234,

United States v. Brown,

United States v. Fuentes, No. 4:11-CR-118,

United States v. Howard,

United States v. Robeles-Ortega,

United States v. Rose,

United States v. Washington,

United States v. White,

Wong Sun v. United States,

Statutes and Rules

18 U.S.C. § 922(g)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29

Fed. R. Crim. P. 12(b)(3)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Fla. Stat. § 379.233. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Fla. Stat. § 403.161(1)(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Ohio Rev. Code Ann. § 3734.83. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Ohio Rev. Code Ann. § 3734.99. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Erika Pesantes, Love hurts: Man arrested for

State of Florida v. Anthony Cade Brasfield,

The central overriding problem with the government’s case is its

agents’ admissions that they “swept” Hunt-Irving’s home because that is

just what they do when arresting people. Without some constitutionally-

adequate reason to conduct a “protective sweep,” the sweep was

physical evidence it produced.

less-stable precedential landscape. The parties’ debate as to which

standard controls and how it applies is now informed by Holloway v.

2020). Hunt-Irving’s felon-in-possession conviction cannot stand under

Holloway’s dangerousness-based approach, or under Judge Ambro’s

multifactor test that it adopted, though Hunt-Irving preserves his

argument that dangerousness with arms is the traditional basis for

The District Court correctly rejected the government’s claim that

Hunt-Irving waived his sweep-based arguments. Accordingly, it did not

reach Hunt-Irving’s alternative claim that any waiver should be excused

owing to his former counsel’s ineffectiveness. Should this Court reverse

the District Court’s waiver decision, waiver should nonetheless be

excused on ineffective assistance grounds.

discovery contradicts common sense. As the District Court found, the

before commencing their sweep. The agents began sweeping immediately

Agent Glenn admitted, the sweep produced the rifle.

more, search different levels of a home upon arresting an individual just

produced, tainted the subsequent consent. And the physical evidence