Opposition Brief — Rashid Turner, Petitioner v. United States

No. 22-7098

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

RASHID TURNER, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

SONJA M. RALSTON

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTIONS PRESENTED

1.

Whether the lower courts correctly applied the good

faith exception to the exclusionary rule, based on a factual

finding that a premature search of petitioner’s cellphone had not

been any “sort of strategic action,” but instead a “mistake” that

the police “attempted to rectify” as soon as it was discovered.

2.

Whether the Double Jeopardy Clause precludes conviction

and sentencing under both the Hobbs Act, 18 U.S.C. 1951(a), and

the Federal Bank Robbery Act, 18 U.S.C. 2113(a), for conduct that

independently satisfies the distinct elements of each statute.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 22-7098

RASHID TURNER, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-13) is not

published in the Federal Reporter but is available at 2022 WL

4137756.

The order of the district court is not published in the

Federal Supplement but is available at 2019 WL 2287967.

JURISDICTION

The judgment of the court of appeals was entered on September

13, 2022.

A petition for rehearing en banc was denied on December

21, 2022 (Pet. App. 14).

The petition for a writ of certiorari

was filed on March 21, 2023.

The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

2

STATEMENT

Following a jury trial in the United States District Court

for the Middle District of Florida, petitioner was convicted on

one count of conspiring to commit Hobbs Act robbery, in violation

of 18 U.S.C. 1951(a); three counts of Hobbs Act robbery, in

violation of 18 U.S.C. 1951(a); three counts of using, carrying,

or brandishing a firearm during or in relation to a crime of

violence, in violation of 18 U.S.C. 924(c)(1)(A)(ii); and two

counts of bank robbery, in violation of the Federal Bank Robbery

Act (FBRA), 18 U.S.C. 2113(a).

Pet. App. 15.

The district court

sentenced petitioner to 492 months of imprisonment, to be followed

by five years of supervised release.

appeals affirmed.

1.

Id. at 16-17.

The court of

Id. at 1-13.

In July 2017, petitioner met a co-conspirator in Fort

Myers, Florida, where they “commiserated over their financial

problems.”

spree.

Pet. App. 2.

Ibid.

The meeting led to a months-long robbery

Between August 2017 and December 2017, petitioner

and two co-conspirators robbed a Family Dollar store, a Dollar

General store, a Wells Fargo bank, and a Seacoast bank, each at

gunpoint.

Presentence Investigation Report ¶ 5.

During the Wells Fargo robbery, petitioner left his cell phone

in a rented Hyundai.

Pet. App. 2.

After petitioner and an

accomplice emerged from the bank, the accomplice realized that the

keys to the Hyundai were still inside.

Ibid.

While the accomplice

3

went back to retrieve the keys, petitioner fled in another vehicle,

leaving behind his phone.

Ibid.

Petitioner got away, but the accomplice’s delayed exit in the

Hyundai

resulted

in

police

pursuit

apprehension after crashing the car.

and

the

accomplice’s

Pet. App. 3.

The next day,

petitioner replaced his phone, transferring his number to a new

phone and deactivating the one that he had left behind in the

Hyundai.

Ibid.

Police obtained a warrant to search the Hyundai, discovered

petitioner’s “locked, password-protected” phone, and entered it

into evidence.

Pet. App. 3.

About a week after the robbery,

Detective Thomas Breedlove prepared an affidavit to obtain a

separate

warrant

supervisor,

to

search

Sergeant

the

William

phone.

Ibid.

Power,

approved

Although

the

his

warrant

application, Detective Breedlove did not immediately present it to

a judge.

Ibid.

More than a month later, when a detective from the neighboring

county in which the crash had occurred asked for information from

the phone, Detective Breedlove discovered that the phone had not

yet been searched.

Pet. App. 3.

Forgetting that he had never

presented the warrant application to a judge, Detective Breedlove

asked Sergeant Power (who was also trained in phone extraction) to

search the phone.

Ibid.; 5/20/19 Tr. (Tr.) 76–78, 109.

Sergeant

Power, assuming that the warrant application he had approved a

4

month earlier had been signed by a judge, carried out the search.

Tr. 81, 108–109.

A

few

days

later,

after

a

follow-up

inquiry

from

the

neighboring-county detective that sought both the phone data and

the warrant itself, Detective Breedlove realized that the warrant

application was still in the file, unsigned.

Tr. 83.

Detective

Breedlove immediately consulted Sergeant Power; they agreed that

Detective Breedlove should amend the application to explain what

had happened and present it to a judge, which he did that day.

Tr. 83, 90, 125.

In assessing the application, the state-court

judge questioned Detective Breedlove to ensure that his affidavit

did not contain any information from the phone.

Pet. App. 3.

Tr. 83-84; see

Only after the judge made the determination to issue

the warrant did Detective Breedlove share the phone’s data with

the inquiring detective, who eventually shared it with the FBI.

Tr. 22-23, 25, 27.

2.

A grand jury in the Middle District of Florida charged

petitioner

with

one

count

of

conspiring

to

commit

Hobbs

Act

robbery, in violation of 18 U.S.C. 1951(a); four counts of Hobbs

Act robbery, in violation of 18 U.S.C. 1951(a); four counts of

using, carrying, or brandishing a firearm during or in relation to

a crime of violence, in violation of 18 U.S.C. 924(c)(1)(A)(ii);

and two counts of bank robbery, in violation of the FBRA, 18 U.S.C.

2113(a).

Pet. App. 3-4.

5

Before trial, petitioner moved to suppress the evidence found

on the phone that he had left in the Hyundai.

D. Ct. Doc. 164

(May 6, 2019). The district court conducted a suppression hearing,

where it heard from both detectives, Sergeant Power, and the FBI

agent.

It found that Detective Breedlove was credible in his

“repentant” “countenance” and that it was “clear” that Detective

Breedlove

“did

not

engage

in

some

sort

of

strategic

Rather, he made a mistake and attempted to rectify it.”

action.

Tr. 134.

The court accordingly found that the officers had acted in good

faith and that application of “the Fourth Amendment exclusionary

rule” was not necessary “to incent these police officers who know

quite well how to conduct themselves.”

In

a

identified

subsequent

two

written

additional

suppression motion.

order,

grounds

Tr. 136.

the

district

for

denying

court

also

petitioner’s

D. Ct. Doc. 209, at 5-14 (May 29, 2019).

First, it found that petitioner had abandoned the phone, based on

petitioner fleeing the robbery scene in a different vehicle,

calling his coconspirator from a different phone as he was fleeing,

promptly switching his number to a new phone, and never seeking

the phone’s return.

Id. at 7.

Second, the court found that the

“inevitable or independent source doctrine” was satisfied.

10.

Id. at

Specifically, it determined that because police had prepared

the warrant affidavit without any input from the warrantless search

and because the neighboring county’s investigation was closing in

on petitioner even before they received the phone data, the phone’s

6

contents would have inevitably, and legally, come to light.

Id.

at 11-13.

Petitioner also moved pretrial to dismiss the two bankfocused Hobbs Act counts, claiming that the Double Jeopardy Clause

rendered the FBRA counts the exclusive basis for punishing that

conduct.

Pet. App. 4.

that motion as well.

3.

for

After a hearing, the district court denied

Ibid.

The jury found petitioner guilty of all charges except

those relating to the robbery of the Family Dollar store.

Pet App. 5; see id. at 20.

Following trial, petitioner moved for

a new trial, asserting, among other grounds, that the trial court

had erroneously allowed the jury to consider charges under both

the Hobbs Act and the FBRA for the Wells Fargo bank robbery on

November 18, 2017, and for the Seacoast bank robbery on December

4, 2017.

D. Ct. Doc. 221, at 1-2 (June 13, 2019).

court denied the motion.

The district

D. Ct. Doc. 222 (June 14, 2019).

The district court sentenced petitioner to a total of 492

months

of

imprisonment,

consisting

of

concurrent

240-month

sentences on the robbery counts and consecutive 84-month sentences

on each of the three firearm counts.

4.

Pet. App. 16-17.

The court of appeals affirmed in an unpublished, per

curiam opinion.

Pet. App. 1-13.

Reviewing the denial of petitioner’s motion to suppress the

cell phone evidence, the court of appeals “agree[d],” on clearerror review, with the district court’s findings that Detective

7

Breedlove had “‘made a mistake’” and did not take “‘some sort of

strategic action’” in connection with the search.

It

accordingly

affirmed

the

district

court’s

Pet. App. 8.

denial

of

the

suppression motion on good-faith grounds, and did not address the

district court’s findings on abandonment or inevitable discovery.

See id. at 7.

The court of appeals further determined that petitioner’s

sentences under the Hobbs Act and the FBRA did not violate the

Double Jeopardy Clause.

Pet. App. 11-13.

Citing this Court’s

decision in Blockburger v. United States, 284 U.S. 299 (1932), and

explaining that the double-jeopardy inquiry turned on “‘a strictly

textual comparison’” of the two statutes without reference to

“legislative history,” the court found that they set forth separate

offenses because “each ‘requires proof of an additional fact which

the other does not.’”

Pet. App. 12 (quoting United States v. Bobb,

577 F.3d 1366, 1373 (11th Cir. 2009), cert. denied, 560 U.S. 928

(2010), and United States v. Smith, 532 F.3d 1125, 1128 (11th

Cir.), cert. denied, 555 U.S. 1007 (2008)).

Specifically, the

court observed that the Hobbs Act requires proof that a robbery or

attempted robbery affected interstate commerce, while the FBRA

requires proof that the robbery was perpetrated on a “‘bank, credit

union, or any savings and loan association.’”

Id. at 13 (quoting

18 U.S.C. 2113); see id. at 12-13; 18 U.S.C. 1951(a).

8

ARGUMENT

Petitioner renews his contentions that detectives did not act

in good faith when searching the phone they found in the Hyundai

(Pet. 13-19) and that Hobbs Act robbery and federal bank robbery

should be treated as the “same offence” for purposes of the Double

Jeopardy Clause (Pet. 19-23).

The court of appeals’ unpublished,

per curiam decision does not implicate any circuit conflict that

warrants this Court’s review.

poor

vehicle

for

further

In any event, this case would be a

review

because

alternative

grounds

support the district court’s denial of petitioner’s suppression

motion,

and

petitioner

--

who

received

concurrent

terms

of

imprisonment and supervised release on the relevant counts -- fails

to identify any meaningful adverse effect attributable to any

double-jeopardy violation.

The petition for a writ of certiorari

should be denied.

1.

The court of appeals correctly determined that even if

a Fourth Amendment violation occurred in the search of the cell

phone that petitioner left in his intended getaway car, the goodfaith

exception

precluded

petitioner’s

reliance

on

the

exclusionary rule to suppress the evidence that phone contained.

See Pet. App. 6-8.

a.

The Fourth Amendment “protects the ‘right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures,’” but “says nothing about

suppressing evidence obtained in violation of this command.” Davis

9

v. United States, 564 U.S. 229, 236 (2011); see Herring v. United

States, 555 U.S. 135, 139 (2009). To “supplement the [Amendment’s]

bare text,” this Court “created the exclusionary rule, a deterrent

sanction

that

bars

the

prosecution

from

introducing

obtained by way of a Fourth Amendment violation.”

at 231-232.

evidence

Davis, 564 U.S.

But because the exclusion of reliable evidence has

“significant costs,” suppression of evidence “‘has always been

[the Court’s] last resort, not [its] first impulse.’”

Utah v.

Strieff, 579 U.S. 232, 237-238 (2016) (quoting Hudson v. Michigan,

547

U.S.

586,

591

(2006)).

The

Court

has

thus

deemed

the

exclusionary rule “applicable only where its deterrence benefits

outweigh its substantial social costs.”

Id. at 237 (quoting

Hudson, 547 U.S. at 591) (ellipses omitted).

Because suppression “cannot be expected, and should not be

applied,

to

deter

objectively

reasonable

law

enforcement

activity,” the Court has held that the exclusionary rule does not

apply “where [an] officer’s conduct is objectively reasonable.”

United States v. Leon, 468 U.S. 897, 919 (1984).

Accordingly,

“evidence obtained from a search should be suppressed only if it

can be said that the law enforcement officer had knowledge, or may

properly

be

charged

with

knowledge,

that

unconstitutional under the Fourth Amendment.”

the

search

was

Ibid. (citation

omitted).

b.

Here, following a suppression hearing at which it heard

testimony from the officers involved, the district court found

10

that no such actual or constructive knowledge could be attributed

to those officers.

See Tr. 134-137.

Observing that Detective Breedlove’s “countenance was one of

repentan[ce],” the court found that “it’s clear to me, as a matter

of how I viewed his testimony, that he did not engage in some sort

of strategic action.”

Tr. 134.

“Rather, he made a mistake and

attempted to rectify it” by informing the judge who ultimately

issued the warrant about the circumstances that had led to that

mistake.

Ibid.; see id. at 85.

The officer who actually conducted

the search had also testified that he believed -- based on his

prior review and approval of a warrant application that petitioner

does not dispute was sufficient to establish probable cause -that the warrant had already been issued.

Id. at 81, 108-109.

In

those circumstances, the district court reasonably determined -and the court of appeals “agree[d]” -- that “‘the Fourth Amendment

exclusionary rule did not require any further activity to incent

these

police

themselves.’”

officers

who

know

quite

well

how

Pet. App. 8 (brackets omitted).

to

conduct

Instead, the

officers’ behavior was akin to the “negligent bookkeeping error”

that this Court found insufficient to merit suppression in Herring

v. United States.

Petitioner’s

See 555 U.S. at 137.

argument

(Pet.

14-15)

for

suppression

is

premised on the assertion that the conduct here was in fact grossly

negligent or reckless. See Pet. 14 (contending that “the deterrent

value of exclusion is strong and tends to outweigh the resulting

11

costs” when a Fourth Amendment violation is “deliberate, reckless,

or grossly negligent”) (citation omitted).

But based on its

evaluation of the officers’ testimony and all of the surrounding

circumstances, the district court found that their error reflected

at most “perhaps negligence.”

Tr. 134.

That determination was

correct, and -- as the court of appeals recognized -- certainly

not clearly erroneous.

See Pet. App. 8.

Petitioner identifies no decision of this Court or any other

court of appeals that has applied the exclusionary rule on facts

similar to those present here.

See Pet. 13-19.

His challenge

thus reflects a bare disagreement with the determinations of the

court of appeals and district court that suppression in this case

would not be worth the cost.

That factbound disagreement with

both lower courts provides no sound basis for this Court’s review.

See Sup. Ct. R. 10; United States v. Johnston, 268 U.S. 220, 227

(1925) (observing that this Court “do[es] not grant a certiorari

to review evidence and discuss specific facts”); see also Kyles v.

Whitley, 514 U.S. 419, 456-457 (1995) (Scalia, J., dissenting)

(“[U]nder what we have called the ‘two-court rule,’ the policy [in

Johnston] has been applied with particular rigor when district

court and court of appeals are in agreement as to what conclusion

the record requires.”) (citing Graver Tank & Mfg. Co. v. Linde Air

Prods. Co., 336 U.S. 271, 275 (1949)).

c.

Such review is particularly unwarranted in light of the

district court’s alternative determinations -- which petitioner

12

does not address -- that petitioner had abandoned the phone in the

getaway vehicle and that the evidence on the phone would inevitably

have been discovered even without the inadvertently warrantless

search.

See Tr. 136-137; D. Ct. Doc. 209, at 5-7 (abandonment);

id. at 10-13 (inevitable discovery).

Given those determinations,

petitioner would not be entitled to relief on his Fourth Amendment

claim even if this Court determined that the good-faith exception

was inapplicable on the facts here.

2.

Petitioner’s double-jeopardy claim (Pet. 19-23) likewise

does not warrant this Court’s review.

a.

The Double Jeopardy Clause protects against “multiple

punishments for the same offense.”

Ohio v. Johnson, 467 U.S. 493,

498 (1984) (quoting Brown v. Ohio, 432 U.S. 161, 165 (1977)).

“Where

the

same

conduct

violates

two

statutory

provisions,”

therefore, courts must “determine whether the legislature

intended that each violation be a separate offense.”

United States, 471 U.S. 773, 778 (1985).

* * *

Garrett v.

The principal “canon of

statutory construction” employed to answer that question is the

“Blockburger rule.” Id. at 779. Under that test, courts analyzing

whether

statutory

provisions

create

“two

distinct

offenses”

exposing a defendant to two distinct punishments ask whether “each

statute requires proof of an additional fact which the other does

not.”

Blockburger v. United States, 284 U.S. 299, 304 (1932)

(citation omitted).

13

Here, petitioner expressly agrees with the lower courts’

determination that the “elements of the Hobbs Act and FBRA are

different because the Hobbs Act requires that the robbery interfere

with interstate commerce while the FBRA requires that the robbery

be of a bank.”

Pet. 21; see Pet. App. 12-13; see also 18 U.S.C.

1951(a) (Hobbs Act prohibition against robbery that “obstructs,

delays, or affects commerce”); 18 U.S.C. 2113(a) (FBRA prohibition

against robbery involving a “bank, credit union, or any savings

and loan association”).

The Hobbs Act also applies only to the

robbery of “personal property,” 18 U.S.C. 1951(b)(1), while the

FBRA applies to robbery of “any property or money or any other

thing of value belonging to, or in the care, custody, control,

management, or possession of, any bank, credit union, or any

savings and loan association, 18 U.S.C. 2113(a) (emphasis added).

Petitioner instead contends (Pet. 22) that courts should

“apply

the

‘same

elements’

test”

adopted

by

this

Court

Blockburger “[o]nly if the legislative intent is unclear.”

in

And

based on that premise, petitioner claims (ibid.) that here, a

“House committee report” makes it “clear” that Congress intended

that bank robbery “would be prosecuted exclusively under the” FBRA,

such that there was no need for the court of appeals to compare

the elements set out in the Hobbs Act and the FBRA in order to

determine whether those statutes established separate offenses for

purposes of the Double Jeopardy Clause.

But even assuming that

14

sufficiently clear legislative history would be sufficient in this

context, such clarity is absent in this case.

The committee report to which petitioner points (Pet. 22-23)

relates to Congress’s addition of extortion to Section 2113(a) of

the FBRA in 1986, explaining that Congress made that amendment to

resolve a circuit conflict over whether “crimes of extortion

directed at federally insured banks” were covered by the FBRA, the

Hobbs Act, or both.

(1986) (House

H.R. Rep. No. 797, 99th Cong., 2d Sess. 33

Report).

The

report

expresses

the

view

that,

following the amendment, bank extortion was to be exclusively

prosecuted under the FBRA.

Ibid.

But Congress made no changes to

the robbery aspect of the statute, and the committee report does

not state that robberies (rather than just extortions) should be

prosecuted exclusively under the FBRA.

See id. at 32 (noting that

before the amendment, extortion was “prosecutable either under the

bank robbery provision or the Hobbs Act”).

b.

Petitioner further suggests (Pet. 20-22) that review of

his double-jeopardy claim is warranted to resolve an asserted

circuit conflict.

That suggestion is unsound.

As the cases on

which petitioner relies make clear, the issue arises infrequently,

with

the

most

recent

case

decided

more

than

15

years

ago.

Moreover, this case would be a poor vehicle in which to address it

because the district court’s choice to impose concurrent rather

than consecutive sentences for petitioner’s convictions under the

Hobbs Act and the FBRA means that petitioner was not, as a

15

practical

matter,

meaningfully

affected

by

the

lower

courts’

arises

only

infrequently.

resolution of the question presented.

First,

the

question

presented

Petitioner identifies (Pet. 20-22) only four published decisions

in which courts have addressed similar questions since Section

2113(a) was adopted in 1948.

See Act of June 25, 1948, ch. 645

§ 2113(a), 62 Stat. 683, 796.*

Two of those cases, however,

involved not bank robbery but rather bank extortion.

See United

States v. Golay, 560 F.2d 866, 869-870 (8th Cir. 1977); United

States v. Beck, 511 F.2d 997, 1000 (6th Cir.), cert. denied, 423

U.S. 836 (1975); see also p. 14, supra (discussing difference

between bank robbery and bank extortion).

And only one actually

grants relief from a Hobbs Act robbery conviction, where the

government

had

reprosecuted

acquittal under the FBRA.

under

that

statute

following

an

See United States v. Holloway, 309 F.3d

649, 651-652 (9th Cir. 2002); see also United States v. McCarter,

406 F.3d 460, 464 (7th Cir. 2005) (finding insufficient prejudice

to justify plain-error relief), overruled on other grounds by

United States v. Parker, 508 F.3d 434 (7th Cir. 2007).

*

In addition to the cases cited by petitioner, the Second

Circuit also addressed the question presented in United States v.

Maldonado-Rivera, 922 F.2d 934 (1990), cert. denied, 501 U.S. 1211

and 501 U.S. 1233 (1991). Consistent with the decision below, the

Second Circuit reasoned that the Double Jeopardy Clause does not

preclude the imposition of punishment for convictions under both

Section 1951 and Section 2113, observing that the “distinct

legislative goals [of the two statutes] confirm the presumption

that Congress intended multiple punishments under these two

sections.” Id. at 983.

16

Second, the district court’s decision to impose concurrent

sentences for petitioner’s Hobbs Act and FBRA convictions makes

this case a poor vehicle in which to consider the double-jeopardy

question.

Because petitioner’s terms of imprisonment under the

FBRA and the Hobbs Act sentences will run concurrently, any error

in

imposing

separate

sentences

for

those

convictions

had

no

apparent practical effect on the length of his prison term.

Pet.

App.

run

16.

The

concurrently.

terms

Id. at 17.

of

supervised

release

likewise

Thus, the only additional sentencing

consequence of the challenged Hobbs Act convictions was a pair of

$100 special assessments.

See Id. at 20.

But the court could

have elected to impose fines for petitioner’s FBRA convictions

substantially in excess of $200.

See 18 U.S.C. 2113(a), 3571(d).

Rather than claiming any prejudice related to his sentence,

petitioner instead claims (Pet. 23) that he “was prejudiced because

he faced two counts for each bank robbery[,] which could give those

counts more credibility to the jury before hearing any evidence.”

This Court has made clear, however, that “[w]hile the Double

Jeopardy

Clause

may

protect

a

defendant

against

cumulative

punishments for convictions on the same offense, the Clause does

not prohibit the [government] from prosecuting [a defendant] for

such multiple offenses in a single prosecution.”

U.S. at 500.

Johnson, 467

Even if petitioner’s view of the question presented

were correct, therefore, petitioner would not be entitled to a

17

retrial.

Resolution of that question accordingly would thus be

inappropriate in the circumstances of this case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

SONJA M. RALSTON

Attorney

JULY 2023