WILLIAM ALLEN TURNER, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-7406

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Third Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 2a-7a) is not
reported.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 5,
1990.  The petition for a writ of certiorari was filed on May 3, 1990.
 The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the Pennsylvania offense of burglary is a "violent
felony" under the sentence enhancement provision of 18 U.S.C.
924(e)(1) and 924(e)(2)(B)(ii) (Supp. V 1987).

   2. Whether the district court properly imposed a consecutive
sentence for petitioner's violation of 18 U.S.C. 924(c)(1).

   3. Whether the police officers' initial encounter with petitioner,
which led to his arrest, violated the Fourth Amendment.

                               STATEMENT

   1. Petitioner was indicted in the Western District of Pennsylvania
on one count of possession of heroin with intent to distribute it, in
violation of 21 U.S.C. 841(a)(1) (Count 1), one count of using and
carrying a firearm during and in relation to a drug trafficking crime,
in violation of 18 U.S.C. 924(c)(1) (Count 2), and one count of
possession of a firearm by a previously convicted felon, in violation
of 18 U.S.C. 922(g)(1) (Count 3).  Before trial, the government filed
a notice that petitioner had three previous convictions for burglary
under Pennsylvania law, /1/ thus subjecting him to an enhanced minimum
term of 15 years' imprisonment under 18 U.S.C. 924(e)(1) (Supp. V
1987) on Count 3.  /2/ Pet. App. 2a-3a;  Notice, United States v.
Turner, Criminal No. 88-102 (W.D. Pa. filed Aug. 4, 1988).

   2. On the evening of June 8, 1988, Pittsburgh Police Lieutenant
Bell was driving a marked car on routine patrol.  Lieutenant Bell
spotted petitioner wrapping a handgun in green cloth.  Bell then saw
fellow officers Brining and Grbach approaching in a police van.  Bell
told the officers what he had seen.  Officers Brining and Grbach drove
to catch up with petitioner, who was walking away down the street.  As
Brining parked the van, Grbach called to petitioner and asked him to
come over to speak with them.  Petitioner started talking to Grbach,
but suddenly ran away as Brining stepped out of the van.  The officers
chased petitioner to the doorway of a vacant building.  As the
officers approached him, petitioner raised a cane at them.  The
officers subdued petitioner by pinning his arms;  they then frisked
him.  The officers found a loaded .38 caliber handgun stuck in
petitioner's belt underneath his shirt.  In response to Grbach's
statement, "I guess you don't have a permit for this gun," C.A. App.
80, petitioner shrugged his shoulders.  After petitioner was arrested,
a more complete search uncovered a number of bundles of heroin inside
his clothes.  See Pet. App. 5a;  Gov't C.A. Br. 4-6, 20-22.

   3. Petitioner filed a pretrial motion to suppress the handgun and
heroin, contending that the officers' initial encounter with him
amounted to an unconstitutional seizure.  After an evidentiary
hearing, the district court denied that motion on October 18, 1988.
C.A. App. 161-164.  The court found that

      (i)t was obvious when the police officers approached
      (petitioner) that they were not under orders and did not
      interpret the words of Lieutenant Bell to be orders that they
      should arrest him, because they obviously did not take him into
      custody at that point.

Id. at 161.  The court credited Lieutenant Bell's testimony that he
had seen petitioner holding a gun, and determined that "the arrest
came after (petitioner) had attempted to flee across the street." Id.
at 162.  In these circumstances, the court concluded that the
officers' actions were consistent with the Fourth Amendment.

   4. The jury convicted petitioner on all counts.  /3/ Before
sentencing, petitioner challenged the government's request that he
receive an enhanced sentence on Count 3 under the Armed Career
Criminal Act.  Petitioner contended, among other claims, /4/ that 18
U.S.C. 924(e) did not apply to his burglary convictions because those
offenses did not fall within the common law definition of burglary.
See C.A. App. 542-543.  With respect to Count 2, petitioner urged the
district court not to impose a consecutive sentence for the conviction
under 18 U.S.C. 924(c)(1).  /5/ In petitioner's view, such a sentence
was not mandatory and would otherwise violate the Double Jeopardy
Clause under the circumstances.  See C.A. App. 565-567.

   At sentencing, the district court rejected both of petitioner's
arguments.  C.A. App. 605-606.  The court sentenced petitioner to a
term of 27 months' imprisonment on Count 1 and to a consecutive term
of 60 months' imprisonment under Section 924(c)(1) on Count 2.  In
light of the evidence regarding petitioner's prior burglary
convictions, see note 1, supra, the court sentenced petitioner to an
enhanced term of 15 years' imprisonment under Section 924(e)(1) on
Count 3.  The court ordered that sentence to run consecutively to the
sentence under Section 924(c)(1) imposed on Count 2, but to run
concurrently with the sentence imposed on Count 1.  In other words,
the court intended for petitioner to serve a total term of 20 years'
imprisonment.  C.A. App. 616.

   5. The court of appeals affirmed.  Pet. App. 2a-7a.  In the court
of appeals, petitioner contended that 18 U.S.C. 924(e) did not apply
to his burglary convictions because those offenses did not fall within
the common law definition of burglary.  Pet. C.A. Br. 44.  The court
rejected that argument without comment.  Pet. App. 7a n.2.  /6/
Petitioner also argued that the district court erred in imposing a
consecutive sentence under Section 924(c)(1) on Count 2.  The court
rejected that argument as well, concluding that under the plain terms
of Section 924(c)(1) petitioner's "five year term of imprisonment
imposed must be imposed consecutively to the fifteen year penalty on
Count 3." Pet. App. 6a-7a;  see note 5, supra.

   Finally, petitioner contended that the police officers' initial
encounter with him amounted to an unconstitutional seizure.  The
record, the court of appeals determined, showed that petitioner
"attempted to hid a gun and ran when he saw a police officer
approaching." Pet. App. 5a.  Petitioner's conduct therefore gave the
police officers "reasonable suspicion that justified stopping him to
investigate." Ibid.  Furthermore, once the officers found the loaded
gun under petitioner's shirt, they had sufficient probable cause to
arrest him.  Accordingly, the court of appeals held that the district
court properly refused to suppress the handgun and heroin.  Ibid.  /7/

                               ARGUMENT

   1. Petitioner renews his contention (Pet. 13-15) that only those
burglaries that satisfy the common law definition of burglary qualify
as "violent felon(ies)" under the sentence enhancement provision of 18
U.S.C. 924(e)(1) and 924(e)(2)(B)(ii).  In Taylor v. United States,
No. 88-7194 (May 29, 1990), decided after this petition had been
filed, the Court expressly rejected that construction of the statute.
See slip op. 16-19.  Instead, the Court concluded

      that a person has been convicted of burglary for purposes of a
      Section 924(e) enhancement if he is convicted of any crime,
      regardless of its exact definition or label, having the basic
      elements of unlawful or unprivileged entry into, or remaining
      in, a building or structure, with intent to commit a crime.

Slip op. 22.  Petitioner's previous burglary convictions plainly fall
within the terms of the statute.  See note 1, supra.  Accordingly, the
district court properly sentenced him to an enhanced sentence under
Section 924(e)(1) and 924(e)(2)(B)(ii).

   2. Petitioner also contends (Pet. 16-17) that the district court
erroneously imposed consecutive sentences on Counts 2 and 3, since
"(u)nlike Section 924(c)(1), Section 924(e)(1) contains no language
which requires that its sentence be served consecutively to the
sentence imposed for the substantive act." Pet. 17.  That observation,
although factually accurate, is legally irrelevant.  Petitioner does
not dispute that, under the relevant statutes, the district court must
impose mandatory minimum sentences for the violations of Section
924(c)(1) (Count 2) and Section 924(e)(1) (Count 3).  And the express
terms of Section 924(c)(1) make clear that "the term of imprisonment
imposed under this subsection (shall not) run concurrently with any
other term of imprisonment." 18 U.S.C. 924(c)(1);  see note 5, supra.
/8/ Accordingly, the district court correctly declined to impose a
sentence that Section 924(c)(1) plainly did not authorize.

   3. Finally, petitioner contends (Pet. 18-21) that the police
officers effectively "seized" him without sufficient cause when they
initially approached him on the street.  That argument fails for two
reasons.  First, this Court has determined that a seizure "requires an
intentional acquisition of physical control." Brower v. County of
Inyo, 109 S. Ct. 1378, 1380-1381 (1989).  Here, the record shows that
the police officers merely drove over to petitioner and started
talking with him.  Such conduct is scarcely tantamount to a police
officer's seizure -- or even detention -- of a suspect.  /9/

   Second, based on Lieutenant Bell's observation that petitioner was
carrying a concealed handgun, the police officers would have been
entitled to detain petitioner briefly in order to conduct a protective
frisk for weapons.  Terry v. Ohio, 392 U.S. 1 (1968).  In any event,
once petitioner ran away and then assaulted the officers with a cane,
those officers plainly had probable cause to arrest petitioner.  See
Kolender v. Lawson, 461 U.S. 352, 366 n.4 (1983);  Sibron v. New York,
392 U.S. 40, 66-67 (1968);  see also 2 W. LaFave, Search and Seizure
Section 3.6(d), at 62 & n.126 (2d ed. 1987).  /10/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   SEAN CONNELLY

      Attorney

   JUNE 1990

   /1/ In April 1964, January 1968, and then again in October 1970,
petitioner had been convicted of burglary, which Pennsylvania law
defined as "at any time, willfully and maliciously, enter(ing) any
building, with intent to commit any felony therein." Penal Code, Art.
IX, Section 901, 1939 Pa. Laws 872, 998 (repealed 1973).  See Notice,
United States v. Turner, Criminal No. 88-102 (W.D. Pa. filed Aug. 4,
1988);  see also C.A. App. 582-594;  Gov't Exhs. 8, 12.  Each of
petitioner's burglaries involved unlawful entries into "business
establishments." Pet. C.A. Br. 44.

   /2/ The sentence enhancement provision of 18 U.S.C. 924(e)(1)
applies to previously convicted felons who possess or receive a
firearm in violation of 18 U.S.C. 922(g).  Title 18, United States
Code, Section 924(e)(1), provides in pertinent part:

         In the case of a person who violates section 922(g) of this
      title and has three previous convictions by any court referred
      to in section 922(g)(1) of this title for a violent felony or a
      serious drug offense, or both, such person shall be fined not
      more than $25,000 and imprisoned not less than fifteen years * *
      *.

Title 18, United States Code, Section 922(g)(1), refers to any
"convict(ion) in any court of a crime punishable by imprisonment for a
term exceeding one year."

   Title 18, United States Code, Section 924(e)(2)(B), provides:

      (T)he term "violent felony" means any crime punishable by
      imprisonment for a term exceeding one year that -- (i) has as an
      element the use, attempted use, or threatened use of physical
      force against the person of another;  or (ii) is burglary,
      arson, or extortion, involves use of explosives, or otherwise
      involves conduct that presents a serious potential risk of
      physical injury to another.

   /3/ Petitioner's trial began on October 19, 1988.  Petitioner,
however, failed to appear for trial when it resumed on October 20.
The district court therefore continued the trial until October 24.
C.A. App. 271-275.  Petitioner did not appear on October 24.  The
district court assumed that petitioner was "voluntarily absent" and
accordingly ordered the trial to continue under Fed. R. Crim. P.
43(b).  C.A. App. 279.  Petitioner was still at large when the jury
returned its verdicts on October 25.  Id. at 517-522.  Federal
authorities later apprehended petitioner in Washington, D.C., on May
5, 1989.  The district court scheduled petitioner's sentencing for
August 2, 1989.  Gov't C.A. Br. 4.

   /4/ Petitioner also argued that the Armed Career Criminal Act was
unconstitutional, that his previous convictions were not for criminal
conduct sufficiently distinct in time, and that those convictions were
stale.  C.A. App. 539-541.  The district court rejected those
arguments, C.A. App. 605-606, as did the court of appeals, Pet. App.
7a n.6.  Petitioner has not sought further review of those claims.

   /5/ Section 924(c)(1) provides in pertinent part:

         Whoever, during and in relation to any crime of violence or
      drug trafficking crime * * * for which he may be prosecuted in a
      court of the United States, uses or carries a firearm, shall, in
      addition to the punishment provided for such crime of violence
      or drug trafficking crime, be sentenced to imprisonment for five
      years. * * * Notwithstanding any other provision of law, the
      court shall not place on probation or suspend the sentence of
      any person convicted of a violation of this subsection, nor
      shall the term of imprisonment imposed under this subsection run
      concurrently with any other term of imprisonment including that
      imposed for the crime of violence or drug trafficking crime in
      which the firearm was used or carried.

   /6/ In United States v. Palmer, 871 F.2d 1201, 1207-1209 (3d Cir.),
cert. denied, 110 S. Ct. 233 (1989), the court of appeals had
previously held that "burglary" under Section 924(e)(2)(B)(ii) was not
limited to common law burglary.  Instead, the court concluded that
"burglary" consisted of the modern, generic definition of the crime,
i.e., entering or remaining unlawfully within a building with intent
to commit an offense.  See 871 F.2d at 1205, 1208-1209.

   /7/ The court of appeals also rejected petitioner's claims that the
district court erred in submitting special verdict forms to the jury,
Pet. App. 3a-4a, that the government presented insufficient evidence
of one of his previous burglary convictions, id. at 7a n.2, that the
district court erroneously admitted certain evidence, ibid., and that
the district court improperly restricted petitioner's
cross-examination of the government's expert witness, ibid.
Petitioner has not sought further review of those claims.

   /8/ For that reason alone, petitioner's reliance (Pet. 17) on Busic
v. United States, 446 U.S. 398 (1980), is mistaken.

   /9/ For that reason, petitioner's suggestion (Pet. 20-21) that this
case presents an occasion to revisit the "seizure" question presented
in Michigan v. Chesternut, 486 U.S. 567 (1988), is erroneous.

   /10/ Petitioner asserts (Pet. 19-20) that the court of appeals'
decision conflicts with Smith v. Ohio, 110 S. Ct. 1288 (1990).  There,
the Court held that a search incident to arrest may not be upheld
where the probable cause to arrest the suspect arose after the search.
 Id. at 1290.  In so holding, however, the Court expressly noted,
citing Terry v. Ohio, that "(n)o contention has been raised in this
case that the officer's reaching for the bag involved a
self-protective action necessary for the officer's safety." Id. at
1289.  Here, the police officers' initial patdown of petitioner was
not undertaken incident to an arrest;  the officers merely exercised
the brief, precautionary step endorsed by the Court in Terry and later
cases.  Accordingly, the decision below is consistent with Smith v.
Ohio.