Table of contents2

Docket No. 14-1107
In the Supreme Court of the United States
December Term 2015
________________________________________________________________
Ben Carter,
Petitioner,
V.
United States of America,
Respondent.
________________________________________________________________
On Writ of Certiorari to the United States Court of Appeals for
the Thirteenth Circuit
________________________________________________________________
BRIEF OF PETITIONER BEN CARTER
________________________________________________________________
ORAL ARGUMENT REQUESTED
Attorney for Petitioner Malik Price, Cedric R. Jones, and Ben
Carter.
To the Honorable Justice of the WestVirginiaThirteenthCircuit Court of Appeals
Lucy Legal
Legal Law Fir,
100 BD Av
Fairmont,WV 26554

TABLE OF CONTENTS
TABLE OFAUTHORITIES.................................... ii
ASSIGNMENTS OF ERROR................................... 1
STATEMENT OF THE CASE.................................. 1
SUMMARY OF THE ARGUMENT................................ 10
STATEMENT REGARDING ORAL ARGUMENT AND DECISION......... 13
ARGUMENT............................................... 13
I. THE POLICE SEIZED MR.BEN CARTER BY USING DEADLY
FORCE WITHOUT PROBABLE CAUSE BY SHOOTING HIM IN THE
LEG. THIS ILLEGAL SEIZURE DIRECTLY LED TO THE
DISCOVERY OF THE CONTENTS OF THE BACKPACK IN MR.
CARTER’S CAR, AND THE FOURTH AMENDMENT MANDATES
THE SUPPRESSION OF THE EVIDENCE BECAUSE IT IS FRUIT
OF THE POSIONOUS TREE, THE CHARGES AGAINST MR. CARTER
BE DISMISSED....................................... 14
A. The police illegally seized Ben Carter by shooting
him................................................ 14
B. There was no evidence that would justify the
police using deadly force against carter. There had
been no indication that carter had a weapon or he
took part in any crime............................. 18
C. The evidence found in Carter’s backpack recovered
only because the police shot and wounded Carter..... 23
II. THE RULING OF THE LOWER COURT SHOULD BE REINSTATED
BECAUSE AGENT HOLDER VIOLATED MR. CARTER’S DUE PROCESS
RIGHTS............................................... 25
Conclusion................................................ 26
Certificate of Service.................................... 27
i

TABLE OF AUTHORITIES
Bailey v. United States, 134 S. Ct. 484, 187 L. Ed. 2d
327, (2013 U.S.) ..................................... 19
Brower v. Cnty. of Inyo, 489 U.S. 593,(1989).......... 16-17
Brown v. Illinois, 422 U.S. 59, (1975)................ 23
California v. Hodari D., 499 U.S. 621, (1991)......... 14,17
Carr v. Tatangelo, 338 F.3d 1259 (11th Cir. 2003)..... 16
Cole v. Bone, 993 F.2d 1328, (8th Cir. 1993) ......... 13
Nelson v. City of Davis, 685 F.3d 867(9th Cir. 2012).. 16
Ornelas v. United States, 517 U.S. 690, (1996)........ 13
Pruitt v. City of Montgomery, 771 F.2d 1475
(11th Cir. 1985)...................................... 18
Reichman v. Harris, 252 F. 371, (6th Cir. 1918)....... 22
Rodriguez v. Passinault, 637 F.3d 675 (6th Cir. 2011). 16
Sibron v. New York, 392 U.S. 40 (1968)................ 20
Tennessee v. Garner, 471 U.S. 1,(1985)................ 18,20
United States v. Black, 733 F.3d 294, (9th Cir. 2013). 14,25
United States v. Russell, 411 U.S. 423 (1973).......... 25
ii

ASSIGNMENTS OF ERROR
1. The defendant’s rights were violated under the Fourth Amendment
of the United State Constitution
a. The shooting of Mr. Carter caused him injury; therefore,
Carter was not able to exercise his free will to end the
encounter on his own.
b. There had been no indication that Carter had a weapon or
he took part in any crime.
c. The evidence found in Carter’s backpack was recovered only
because the police shot and wounded Carter.
2. The police did not have the evidence that would justify the use
of deadly force against Mr. Carter.
STATEMENT OF THE CASE
In May 2009, the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF), began working on a project entitled Operation
Gideon. Operation Gideon was a set of reverse-sting operations
that were supposed to find and arrest individuals who were
committing violent home robberies of houses where drugs were
stashed in many of the area’s residential neighborhoods. (Tr. p.
2-3) ATF felt that this was a safer way to arrest suspects
before they actually reach the drug stash houses.
In August 2012, the ATF agents set up numerous reverse-
sting operations in the Apate metropolitan area. These reverse-
stings were a result of the increased number of violent criminal
activities during the summer months in this area. The majority

of the ATF’s operations were in the City of Green Ridge, which
was the largest, most racially diverse area. The city has an
overwhelming majority of black residents.
On March 8, 2013, the Confidential Informant (CI) went to a
block party located on the Southside, Green Ridge, where he was
supposed to meet people to commit home invasion robberies as per
the orders given to him by the ATF Special Undercover Agent,
Antonio Miller. (Tr. p. 4) The CI approached Defendant Malik
Price at the block party and asked him if he wanted to be a part
of a big payday. (Tr. p. 4) Malik indicated that he was willing,
and that was when the CI told of the plan to rob the stash
house. Malik thought the CI’s plan was funny and he walked away.
Later, Terrance Price approached the CI and wanted to know if he
had any information on good “come ups.”(Tr. p. 5) That was when
the CI told Terrance he had a friend with information about a
house that had some good drugs. The CI went on to ask Terrance
if he would be interested in getting a crew together to rob the
house. They would each get $500,000 after all of the drug money
was divided. (Tr. p. 5)
On March 12, 2013, Miller, Terrance and the CI had a
meeting at a diner on the outskirts of the city. (Tr. p. 5)
Miller gave Terrance the plan to rob the stash house. Terrance
agreed to get a few people together and they all would meet up
again before committing the robbery of the stash house.

On March 19, 2013, Terrance had a second meeting with
Miller and the CI outside a thrift store in Southside, Green
Ridge. (Tr. p. 5) This time Terrance had brought his friend,
Cedrick R. Jones. They had described to Miller several plans
they had to rob the house, but Miller was not okay with any of
plans that the crew had devised. Miller told them to rethink
their plans and to get more people to be a part of their crew.
Terrance then proceeded to see if Miller had weapons that they
could use in the commission of the robbery. Miller indicated
that he did not, but he questioned their intentions to carry out
an armed robbery of the drug stash house.
On March 22, 2013 they had a third meeting, and this time
Terrance brought his friend, DeAndre Ingram. (Tr. p. 5) Terrance
told Miller this was not his friend, Tinderman, but he was just
as good at getting the materials needed to commit the robbery.
(Tr. p. 5) Terrance bragged to Miller about Ingram’s bank
robberies and all of the weapons that he had. Ingram insisted on
knowing the address of the stash house and the layout of the
house before he would agree to take part in the robbery. Miller
called his fake drug boss and gave the crew the address of the
house as well as the layout of the house. The crew agreed to
commit the robbery in two weeks when the big shipment of drugs
was due to be moved. Miller’s only job was to unlock the front
and back doors as he entered the house to get his drugs.

On April 4, 2013, at approximately 8:35 a.m., Agent Miller
once again met up with Terrance and Jones outside of the thrift
store. (Tr. p. 6) This time Terrance brought along his brother,
Malik. At 8:45 a.m., Ingram pulled up in an unmarked white van.
(Tr. p. 6) He ordered everyone to get inside. The crew would
spend the next hour discussing the plan that they had for the
robbery. Around 10:00 a.m., the crew along with Miller, left the
park and began the drive north toward the stash house. (Tr. p.
6) Within five miles from the house Miller had Ingram pull the
van over. They were waiting for the dealer’s phone call.
At 10:40 a.m., Miller received a phone call. He stepped out
of the van to take the call. (Tr. p. 6) When Miller was
approximately twenty feet away, a number of ATF agents rushed in
and threw a stun grenade at the driver’s side of the van.
Shortly after the grenade exploded, Terrance came out of the van
from the passenger’s side of the van with a pistol. Terrance
turned the gun on the ATF agents and shot a number of times
before he was critically wounded. One of Terrance’s shots hit
ATF agent, Sarah Nelson, in the back and severed the lower
section of her spinal cord. She was left paralyzed from the
waist down. (Tr. p. 6)
Before the ATF agents could take the crew into custody
Ingram stepped on the gas and fled the scene with Jones and
Malik. (Tr. p. 6) Ingram led ATF agents and the local police on

a two mile chase through neighborhoods before he crashed the van
into an electrical pole going 50 mph. (Tr. pp. 6-7) Ingram died
on impact of the crash and Jones and Malik were seriously
injured. ATF agents searched the van and found items hidden in
compartment located in the trunk. ATF agents found numerous
empty duffel bags and one full of weapons, a large wrench, and a
box of red T-shirts with bandanas.
The local police informed the ATF agents that an anonymous
caller reported seeing two suspicious males loitering on the
street corner near the fake stash house. (Tr. p. 7) The caller
described that the men were wearing baggy clothes and hoodies
that covered their whole faces; he also said that they had been
on the street corner for more than thirty minutes. The caller
went on to state that one of the men had a large backpack and
was frequently fidgeting with something in one of his pockets.
ATF Agents Holder and Martin went to the scene and
investigated the report of the two suspicious males. The agents
drove to the fake stash house. They were wearing jackets with
“ATF Special Agent” printed on the front and back of the
jackets. (Tr. p. 7) As the ATF agents were heading toward Garden
Street, they saw two men dressed in gray hoodies and jeans
standing on a street corner looking in the directions of the so
called stash house. The agents had parked their cars about 150
feet behind the suspects and walked up to the suspects and asked

them “what’s going on gentlemen?” (Tr. p. 7) The suspects looked
at the agents and began running away from the stash house.
Holder yelled “Federal Agents! Stop and put your hands up!” (Tr.
p. 7) The suspects did not listen and kept running. The agents
began to chase after the suspects on foot.
After pursuing them for about 600 feet, Michael Robey
stopped and pulled something out of his pocket and pointed the
item in the air. Then Mr. Robey turned towards the agents, with
his hands up in the air. The suspect said, “This is a fake gun,
please don’t shoot me!” (Tr. p. 7). The ATF agents pulled their
guns and yelled at him to drop his weapon. The man went to place
the object on the ground, but pointed in the agent’s direction
as he was placing it on the ground. Holder shot this suspect in
the chest, later they would learn that this man’s name was
Michael Roby. (Tr. p. 8) ATF agent Martin called for backup
while Holder went after the other suspect.
Holder continued chasing the suspect with the backpack for
700 feet. (Tr. p. 8) Holder identified himself as an ATF Agent
and ordered the suspect to stop, but the suspect kept on
running. When they were approximately twenty feet from the car,
the suspect slowed down and peered over his shoulder at Agent
Holder, then reached into his pocket for something. Holder
reacted and shot at the suspect three times. The suspect was hit
and he screamed out in pain and began limping; he continued to

pull the object which was his car key from his pocket. The
suspect made it to his car and fled. Holder radioed ATF and the
local police about the suspect escaping and provided a
description of the car in which he fled. There was no sight of
the car until 3:45 p.m. when a local police officer found a car
matching the description of Mr. Carter’s in a ditch along the
road. (Tr. p. 8) The police officer approached the car and the
only thing that he saw was that both seats were covered in
blood.
The car keys were still in the ignition and the officer
turned the car over to see if it was still working. The car was
in working condition and had over half a tank of gas. The
officer found the suspect’s opened backpack in the back seat
which the contents were scattered all over the back of the car.
Some of the contents that found were two vodka bottles, a small
gas canister, a butane lighter with the name “Tinderman”
engraved on it, and plain paint rags. It was later determined
that the car was wrecked within approximately two miles of the
stash house. (Tr. p. 8)
Ten hours later the local police received a phone call from
an ICU nurse at a local hospital reporting that there was a
patient at the hospital that matched the description of their
suspect. (Tr. p. 9) The nurse reported that the suspect had two

bullets in his right leg and was suffering from a great deal of
blood loss. ATF agents identified the man as the suspect.
The suspect was arrested twenty-four hours after he came
out of surgery. He was read his Miranda Rights and the agents
got a very clear statement that the suspect understood the
rights as they were read to him. The ATF agents began
questioning him. The man stated his name was Ben Carter and he
was in Apate was for business. Carter then went on to indicate
that he felt the police were crazy for shooting him because he
was not armed. The ATF agents went on to ask Carter about
Terrance and the robbery crew. He denied knowing any of them, on
about the robbery plan. One of the ATF Agents then proceeded to
ask Carter about the lighter with the name Tinderman on it and
the black backpack; then asked for an attorney.
The defendants were arrested and charged with a number of
federal crimes, including the possession of twenty-five
kilograms of cocaine with the intent to sell, possession of
firearms in connection with drug trafficking, murder, and
conspiracy to commit arson. On April 30, 2013, Ben Carter moved
to suppress the contents of his black backpack based upon
unlawful search and seizure. (Tr. p. 9) Carter argued that the
ATF agents used deadly force to contain him, which made the
discovery of his backpack contents fruit of the poisonous tree,
are subject to exclusion under the Fourth Amendment. On May 2,

2013 the defendants moved to have their indictment overturned
under the entrapment provision set forth in the Fifth Amendment.
(Tr. p. 9) On May 29, 2013 the Court heard arguments on the
motions. The Court found for the defendants on both motions.
(Tr. p. 2) All of the defendants in this case were immediately
released from custody.
The Thirteenth Circuit Court reversed the lower court’s
decision. The Thirteenth Circuit Court ruled that the
defendants’ Fourth and Fifth Amendment rights were not violated.
The defendants were taken back into custody. The defendants in
this case petitioned for Writ of Certiorari, which was granted.
SUMMARY OF THE ARGUMENT
This Court should find in favor of the defendants, reverse
the Thirteenth Circuit Court, and reinstate the ruling of the
District Court. District Court correctly found: 1) the ATF
Agents and Police did seize the defendant, Ben Carter, after
Agent Holder shot him in his right leg; 2) the agents had no
probable cause to seize defendant Carter, nor did they have
probable cause use deadly force; and 3) the illegal seizure by
the use of deadly force lead to discovery the contents of the
backpack in of Mr. Carter’s car.
When a police officer or government agent decides that it
is necessary to use force against a suspect, it is considered a
seizure. Any action that does not allow a person to be able to

walk away from a situation is also considered a seizure. Under
this rule, when Agent Holder decided to shoot Mr. Carter in the
right leg it limited his ability to walk away from the
situation; therefore, his freedom to leave was limited, which
constituted a seizure.
In the case against Ben Carter, there was no real probable
cause to use deadly force to seize him. Neither the police nor
the ATF agents observed or received any reports that the
defendant, Carter, or his friend were taking part in any
criminal activity. The ATF agents in this case received an
anonymous tip that stated that Mr. Carter and his friend were
standing on a sidewalk close to the so-called stash house. Agent
Holder never saw Ben Carter possess a weapon, nor observed him
taking part in any criminal activity. Mr. Carter did not show
any signs of belonging to any area gang. In this case, there
existed no probable cause to seize Carter and, if one did exist,
there was no cause for the ATF agents to use deadly force
against the defendant. In order for the police to use deadly
force against a suspect, there needs to be some evidence that
the suspect committed a crime and that the suspect was a danger
to the public at large or law enforcement. Nothing in the
actions of Mr. Carter indicated that there was probable cause
for Agent Holder to use deadly for to stop him.

The wrongful shooting of Mr. Carter led to the police being
able to discover the contents of his black backpack in the
backseat of his car. Mr. Carter had crashed his car due to the
pain and blood loss he was experiencing after being shot by
Agent Holder. The only reason police were able to discover the
contents of Carter’s backpack was because they found it at the
site where he had crashed his car. It was the crash that led to
the improper seizure by ATF agent Holder. The Fourth Amendment
to the United States Constitution states that evidence
discovered by illegal seizure will be suppressed. No other
evidence exists against Mr. Carter; therefore, the charges
against him must be dismissed.
The ruling of the Thirteenth Circuit Court must be
overturned because it is so was shocking and so outrageous that
it violated justice for the defendants. The police and
government agents are supposed to target criminals and prevent
crimes. In this case, the ATF agents overstepped their role in
law enforcement. They set up a situation that would lead to the
arrest of the individuals they had convinced to take part in
this set up.
The ATF Agency in this case created a situation that
allowed individuals who were living at the poverty level to make
some fast cash. The agents looked for individuals to carry out
the crime of robbery of a stash house that they had set up. The

decision to use the area of Green Ridge was based on the
information that the agents had received from an informant. This
informant did not know anything about the area except that the
area was poor.
ATF Agent Miller used the robbery crew members’ economic
status to persuade them into taking part in the robbery of the
stash house and to get them to create a plan on how they were
going to carry out the robbery. It was the living conditions of
the crew that caused them to want to take part in this robbery,
and ATF Agent Miller kept reminding them of the large sums of
money that each of the members would receive once the job was
completed. Agent Miller took part in the initial planning of the
robbery of the stash house, provided resources, and his actions
used against the crew was a form of entrapment.
Stash house robberies create a danger for the public at
large. These types of stings cause harm to not only the
individuals involved but also to innocent bystanders. Those who
were involved in this reverse-sting operation would not have
even attempted to commit a robbery if it were not for the
persuasion from Agent Miller. Therefore, the case against the
all of the defendants needs to be dismissed on the grounds that
their Fifth Amendment rights were violated.
ARGUMENT
I. THE POLICE SEIZED MR.BEN CARTER BY USING DEADLY FORCE

WITHOUT PROBABLE CAUSE BY SHOOTING HIM IN THE LEG. THIS ILLEGAL
SEIZURE DIRECTLY LED TO THE DISCOVERY OF THE CONTENTS OF THE
BACKPACK IN MR. CARTER’S CAR, AND THE FOURTH AMENDMENT MANDATES
THE SUPPRESSION OF THE EVIDENCE BECAUSE IT IS FRUIT OF THE
POSIONOUS TREE, THE CHARGES AGAINST MR. CARTER BE DISMISSED.
A. THE POLICE ILLEGALLY SEIZED BEN CARTER BY SHOOTING HIM.
In the case of California v. Hodari D., 499 U.S. 621,(1991)
the Court held the word 'seizure' means the putting of ones
hands or the application of physical force to restrain movement.
California v. Hodari D., According to Hodari, a person may be
seized with the use of little force or just the touching of a
suspect. Hodari D. 499 U.S. at 625. A Tennessee statute provides
a clause wherein, if after a police officer has given notice of
an intent to arrest a suspect and the suspect flees then the
officer may use all necessary means to arrest the suspect. The
Court in Tennessee v. Garner, 471 U.S. 1, 7 (1985) held that
when an officer hinders the suspect from being able to walk
away, he or she has seized the suspect.
In the case Tennessee v. Garner, a Memphis police officer
was acting under the statute when he shot and killed Garner's
son after he was told to stop. The victim’s father brought the
suit against the police alleging that his son’s constitutional
right were violated when the officer shot Garner. The Sixth
Circuit Court found that the officers’ actions were
constitutional. The Court of Appeals reversed the District
Courts decision. When appealed to the Supreme Court the court

held that the Tennessee statute was unconstitutional in that the
use of deadly force against a suspect that is not dangerous, and
who is fleeing, is not necessary. When a police officer shoots a
suspect that is running away, it is a seizure by the use of
deadly force that is in accordance with the reasonable
requirement that is contained within the Fourth Amendment of the
United States Constitution.
In the present case the police employed the use of deadly
force to seize Ben Carter by shooting him in his leg multiple
times. The use of deadly force by the ATF Agent denied Ben
Carter his freedom to leave a situation that would have resulted
in his illegal arrest by ATF Agent Holder. In the case against
Mr. Carter, ATF Agent Holder had no probable cause to be chasing
after him, nor was there evidence that Mr. Carter was doing
anything that would be considered illegal.
The Thirteenth Circuit Court concluded that the ATF Agent
was just trying to seize Mr. Carter. Even though Agent Holder
employed the use of deadly force to stop Mr. Carter, he managed
to get away. Therefore, that led to the Thirteenth Circuit Court
to rule that there was no true seizure of Mr. Carter. The
Circuit Court should have but did not rely on the ruling in the
case Brower v. Cnty. of Inyo, 489 U.S. 593, (1989). In the Bower
case the court determined that anything that placed a limit on a
suspect’s freedom was a form of a seizure. The language used in

Brower v. Cnty. of Inyo, 489 U.S. 593, (1989), declared that if
a government agent or a police officer shoots a citizen, it is a
form of seizure by law enforcement agents. In the case of
Rodriguez v. Passinault, 637 F.3d 675 (6th Cir. 2011), the Court
held that even if a suspect is not hit by police bullets, the
suspect is still seized, which goes with the wording of the
Fourth Amendment to the United States Constitution. In Nelson v.
City of Davis, 685 F.3d 867 (9th Cir. 2012), a citizen was hit
in the eye with a pepper spray bullet (plastic bullets filled
with pepper spray), the Court determined that the citizen was
seized. Also in Carr v. Tatangelo, 338 F.3d 1259 (11th Cir.
2003), the Court ruled even if a citizen was hit by a bullet and
still able to get away, the suspect was still seized.
Even when suspects or citizens are hurt and are still able
to get away from law enforcement government agent, they are
still seized. The Fourth Amendment of the United States
Constitution does not require a person to be totally immobile to
be seized. We learn from Hodari D., 499 U.S. at 625–26 the
slightest touch is considered a seizure. When the slightest
touch is used there still leaves a possibility for the suspect
to be able to escape because they are not total restrained. The
slightest touch hinders the freedom of movement of the suspect.
The Thirteenth Circuit Court inaccurately relied on the rule of
seizure to find against Mr. Carter.

In the Bower case, Bower was attempting to flee from the
police when the police side swiped his car, causing the suspect
to crash his car. The Bower case contained, the o side swiping
of the suspect’s car by the police was a way that the suspect's
freedom of movement was hindered and constituted a seizure.
Brower, 489 U.S. at 596–597. Even after the police had stopped a
suspect’s vehicle from working, the suspect still may or may not
be able to flee from the police on foot. However, the Court
ruled that if a police officer hinders a suspect’s car from
working that is enough, under the Fourth Amendment, to be
consider a seizure. The slightest touch or the damage to a
suspect’s vehicle is enough for the courts to rule that the
suspect was seized.
When an officer tackles a suspect there is still a chance
that the suspect will be able to flee from the officer. However,
in the case where an officer shoots an individual, such as was
the case with Mr. Carter, the ability to freely leave the
situation has been altered. In Mr. Carter’s case, once he was
shot, he did not have complete ability escape. If a suspect’s
ability to freely escape has been hindered in any way, under the
Fourth Amendment, it is considered a seizure. In Mr. Carter’s
case, even though he was able to get away from ATF Agent Holder,
he was still considered seized. Therefore, it can only be
concluded that Mr. Carter was seized when shot by Agent Holder.

B. THERE WAS NO EVIDENCE THAT WOULD JUSTIFY THE POLICE
USING DEADLY FORCE AGAINST CARTER. THERE HAD BEEN NO
INDICATION THAT CARTER HAD A WEAPON OR HE TOOK PART IN ANY
CRIME.
The Fourth Amendment to the United States Constitution
establishes when deadly force can be used. In Tennessee v.
Garner, 471 U.S. 1, (1985) the Court held the police or
government official were only to use deadly force when the
suspect in question is creating a threat not only to the officer
but also the general public. Also in Pruitt v. City of
Montgomery, 771 F.2d 1475 (11th Cir. 1985)the Eleventh Circuit
Court determined that an officer should not employ the use of
deadly force unless the suspect in question has a weapon or the
officer believes that there is enough probable cause to suspect
that the offender has a weapon. In Mr. Carter's case, Agent
Holder did not have any probable cause to use deadly force to
attempt to seize the defendant. Agent Holder and Martin received
a report from an anonymous caller who reported two suspicious
looking males standing on a public street near the stash house.
There was no reason to believe that these two individuals had
committed any crime. The agents were relying on an
unsubstantiated tip from an anonymous caller. There was nothing
to show that Mr. Carter had done anything illegal.
The Court in Bailey v. United States, 134 S. Ct. 484, 187
L. Ed. 2d 327,(2013 U.S.) concluded that an officer of the law

must have probable cause to believe that the suspect had
actually committed a crime. In Mr. Carter's case, ATF Agent
Holder relied on reports from an anonymous caller, and when he
came upon Mr. Carter and his friend, they were just standing on
the sidewalk. Agent Holder in this case had no probable cause to
suspect that Mr. Carter had committed a crime. Mr. Carter had
the right to leave the situation. Since there was no probable
cause that Mr. Carter had committed a crime, he was free to
leave and he was not under any obligation to follow the commands
of Agent Holder.
In Sibron v. New York, 392 U.S. 40 (1968), the Court
determined the flight of a suspect is not probable cause for a
seizure. "Specific knowledge on the part of the officer relating
the suspect to the evidence of crime" is required, and here it
was lacking since no evidence existed that Mr. Carter committed
any crime at all. Id. at 66. Therefore, there was no
justification for Agent Holder to use deadly force to seize Mr.
Carter. When Agent Holder decided to use deadly force to stop
Mr. Carter, he grossly stepped over the line of probable cause
that the Fourth Amendment established. The Garner case
determined that, when a police officer shoots an unarmed
suspect, the officer had in turn violated the suspect’s
Constitutional Rights under the Fourth Amendment. Garner, 471
U.S. at 3. In Garner, the Court focused on the facts that the

police officer saw Garner with a weapon. Id. at 22. Even the
fact that Garner was in the commission of night time burglary,
the Court ruled that the officer had no probable cause to use
deadly force on Garner because there was no evidence that the
officer or the general public was in any danger. Id. at 21.
Garner describes the concept that the suspicion that a citizen
might be dangerous is not enough to justify the police or
government agents shooting that citizen.
When comparing the Garner case with Mr. Carter's case, it
is clear that there was substantially less evidence that Mr.
Carter was a danger to the general public or the ATF Agent. Mr.
Carter did not have any weapons in his possession, nor did he
make any threats against the public or ATF Agent Holder. Mr.
Carter simply just began running away from Agent Holder. Agent
Holder did not possess any evidence, nor was there evidence at
the scene that Mr. Carter had committed a crime. There was no
reason that Agent Holder should have used deadly force, which
resulted in injury of Mr. Carter. The finding in Garner is that
the officer violated Garner's Fourth Amendment Rights. Based
upon Garner, Mr. Carter’s Fourth Amendment Rights were
violated by Agent Holder.
The government may argue that after the Agent shot Michael
Roby, Mr. Carter fled, and then reached swiftly into his pocket,
probable cause existed. (Tr. P. 8). The first flaw in the

government’s argument is that the agents had no reason to
believe that Mr. Carter was attempting to pull a weapon from his
pocket. Maybe if the agents or police had seen Mr. Carter with
a weapon earlier, or the anonymous caller told the police that
they had seen Mr. Carter with a weapon, then the shooting would
be justified. If there was some reasonable indication that Mr.
Carter rather than his friend Michael Roby was armed, the use of
deadly force would have been justified. There was no such
evidence and Agent Holder had no justification to shoot Mr.
Carter.
Even if the Court would find that Mr. Carter's actions of
reaching into his pocket, would put the public and Agent Holder
in danger, the action under the Fourth Amendment does not give a
government agent or the police enough probable cause to employ
the use of deadly force. There is a clear description of the
probable cause standard set forth in the Fourth Amendment of the
United States Constitution.
In Reichman v. Harris, 252 F. 371, 381–82 (6th Cir. 1918)
the Sixth Circuit Court states the same justification can be
used when a police officer puts a citizen’s life in danger or
fears that the officer might kill them they have the right to
use self-defense against the officer who was putting their lives
in danger. Mr. Robey was attempting to surrender and yelled at
Agent Holder and told him that he had a fake gun. Agent Holder

shot and killed Mr. Roby when he was trying to surrender to him.
Once Agent Holder had shot and killed Mr. Roby, he continued
chasing Mr. Carter with his gun drawn and eventually he shot Mr.
Carter in the leg.
C. THE EVIDENCE FOUND IN CARTER’S BACKPACK RECOVERED ONLY
BECAUSE THE POLICE SHOT AND WOUNDED CARTER.
In the United States v. Crews, 445 U.S. 463, (1980) the
court ruled that any evidence that was discovered because of a
violation of the Fourth Amendment is not admissible in any court
of law. Brown v. Illinois, 422 U.S. 59, 603–04 (1975), set
forth a procedure to determine if the evidence was discovered as
a violation of Constitutional rights. Brown informs us that the
Court needs to consider the following questions to determine if
the evidence violated the suspects Constitutional rights: What
part, if any, did the suspect’s free will play in the discovery
of the evidence? How proximate was the illegality to the
discovery of the evidence? Were there any superseding
circumstances? What part did the government agents play? How
obvious was the violation? Brown v. Illinois, 422 U.S. 59, 603–
04 (1975). When looking at the criteria set forth by the court
in Brown, the only evidence against Mr. Carter was discovered
from his black backpack. This evidence must be suppressed
because it would have not been discovered if Agent Holder had
not shot him in the leg, which lead to Mr. Carter wrecking his

car, after attempting to flee from the illegal action of Agent
Holder. Therefore, the evidence in Mr. Carter's backpack must be
suppressed.
In Mr. Carter's case, he did ultimately lead Agent Holder
to his car was running away from Holder. Mr. Carter had already
witnessed his friend, Michael Roby, be shot and killed by an ATF
agent. Mr. Carter decided to try to make it to his car that was
parked in a nearby parking lot. On his way to the car Agent
Holder shot him in the leg but he made it to his car and left
the scene. Driving away from the scene, Mr. Carter was in a
great deal of pain and was losing a lot of blood. Due to his
pain and blood loss from the gunshot wound, Mr. Carter crashed
his car approximately a mile from where he was shot. After he
crashed his car, he left the scene of the accident on foot,
leaving his backpack in the backseat of his car. Mr. Carter
crashed his car as a direct result of the use of deadly force by
Agent Holder in an effort to totally immobilize Mr. Carter. If
Mr. Carter had not been shot by Agent Holder, he would not have
wrecked his car; therefore, the police would not have discovered
the contents of his backpack. The discovery of the contents of
the backpack are fruits of the poisonous tree. Therefore, the
evidence gained from the poisonous tree must be suppressed based
upon the Fourth Amendment.

II. THE RULING OF THE LOWER COURT SHOULD BE REINSTATED
BECAUSE AGENT HOLDER VIOLATED MR. CARTER’S DUE PROCESS
RIGHTS.
The ATF agents in the Carter case were entrapping African-
American males in this reverse-sting. The agents promised these
impoverished males a chance to make a lot of money quickly. The
actions of the agents were shocking, and it was a clear
violation of the definition of the justice. In United States v.
Russell, 411 U.S. 423 (1973), the Court ruled that when
government agents were involved in the commission of an
outrageous crime, the Due Process Clause does not allow for the
prosecution of the arrested suspects. When government agents
take outrageous actions, the concept of fairness has been
violated, therefore causing the reversal of convictions.
United States v. Black, 733 F.3d 294, 301 (9th Cir. 2013)
established the criteria to be used to determine if the actions
of a government agent were outrageous; which are as follows:
“(1) known criminal characteristics of the defendants; (2)
individualized suspicion of the defendants; (3) the
government's role in creating the crime of conviction; (4)
the government's encouragement of the defendants to commit
the offense conduct; (5) the nature of the government's
participation in the offense conduct; and (6) the nature of
the crime being pursued and necessity for the actions taken
in light of the nature of the criminal enterprise at issue.”
The Thirteenth Circuit Court decided not to follow the
criteria to determine if the government agent’s actions were
outrageous. In this case, the criteria set forth in Black should

have been applied and determined that the actions of the
government agents were outrageous and no arrests should have
happened.
CONCLUSION
WHEREFORE the defendant respectfully requests this
Honorable Court to Grant his motion to reinstate the ruling of
the District Court and overrule the Thirteenth District Court.
Date: December 3, 2015
___________________
William J. Ihlenfeld, II,
United States Attorney
Northern District of
West Virginia

CERTIFICATE OF SERVICE
I, Lucy Legal, state that I served the above by mailing a
copy to the Prosecuting Attorney’s Office for Marion County,
West Virginia at 213 Jackson St., Fairmont, WV 26554.
Date: December 3, 2015
___________________
Lucy Legal
Legal Law Firm
100 Broadway Ave.
Fairmont, WV 26554
Telephone Number: 304-304-3044

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