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July 2018

THE

FEDERAL LAW ENFORCEMENT

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Welcome to this installment of The Federal Law Enforcement Informer (The Informer). The Legal Training Division of the Federal 

Law Enforcement Training Centers’ Office of Chief Counsel is dedicated to providing law enforcement officers with quality, useful 

and timely United States Supreme Court and federal Circuit Courts of Appeals reviews, interesting developments in the law, and 

legal articles written to clarify or highlight various issues. The views expressed in these articles are the opinions of the author and 

do not necessarily reflect the views of the Federal Law Enforcement Training Centers. The Informer is researched and written by 

members of the Legal Division. All comments, suggestions, or questions regarding The Informer can be directed to the Editor at 

(912) 267-3429 or FLETC-LegalTrainingDivision@dhs.gov. You can join The Informer Mailing List, have The Informer delivered 

directly to you via e-mail, and view copies of the current and past editions and articles in The Quarterly Review and The Informer by 

visiting https://www.fletc.gov/legal-resources. 

This edition of The Informer may be cited as 7 INFORMER 18.
2

The Informer – July 2018

Case Summaries

Circuit Courts of Appeals

First Circuit

United States v. Diaz-Jimenez: Whether officers conducted a lawful protective sweep

of the defendant’s house after arresting him.....................................................................................6

Second Circuit

United States v. Jones: Whether officers lawfully searched the defendant’s car under 

the automobile exception to the Fourth Amendment’s warrant requirement and whether 

the car was located within the curtilage of the defendant’s home at the time of the search................7

Simon v. City of New York: Whether an Assistant District Attorney and two police

officers were entitled to qualified immunity for failing to conform to the terms of an

arrest warrant for the plaintiff under the state material witness statute..............................................8

Fourth Circuit

United States v. Kehoe: Whether officers had reasonable suspicion to believe the 

defendant was involved in criminal activity when they seized him at a bar.......................................9

Sixth Circuit

United States v. Christian: Whether an officer’s search warrant affidavit established 

probable cause to justify the issuance of a search warrant for the defendant’s residence................10

Eighth Circuit

United States v. Pulido-Ayala: Whether the warrantless search of the defendant’s car 

was lawful after a drug-dog entered the vehicle through an open door and alerted to the 

presence of drugs............................................................................................................................12

United States v. Tuton: Whether the warrantless search of the defendant’s bag, located 

in the luggage compartment of a commercial bus, was reasonable.................................................13

Tenth Circuit

United States v. Latorre: Whether an officer established reasonable suspicion to detain

the defendant as he flew his aircraft cross-country without an active transponder..........................14

Eleventh Circuit

United States v. Obando: Whether a painted flag on the side of a vessel constituted a 

valid claim of nationality or registry under the Maritime Drug Law Enforcement Act...................15

Manners v. Canella: Whether police officers were entitled to qualified immunity after the 

plaintiff alleged the officers used excessive force when they arrested him.....................................16

United States v. Morales: Whether officers obtained valid consent from a third party to 

search the defendant’s bedroom.....................................................................................................17
3

FLETC Talks

A brief review of United States Supreme Court cases involving a variety of Constitutional 

issues relevant to law enforcement officers.

1. Arizona v. Gant (Search Incident to Arrest – Vehicles)

In Gant, the Supreme Court outlined two situations in which the passenger compartment 

of a vehicle can be searched incident to arrest. Do you remember what they are? 

https://www.youtube.com/watch?v=p-Ts09utgKQ

For the court’s opinion: https://www.supremecourt.gov/opinions/08pdf/07-542.pdf

♦

2. Government Employees and Free Speech Rights

The First Amendment permits, in certain circumstances, government employees, to 

include police officers, to speak as private citizens on matters of public concern. Click on 

the link below for a discussion on the limitations a government employer can place on its 

employees right to free speech under the First Amendment.

https://www.youtube.com/watch?v=W6EBfL9_oPY

♦

3. Minnesota v. Dickerson (Plain-Touch Doctrine)

When a police officer detects contraband through his or her sense of touch during a lawful 

Terry frisk, does the Fourth Amendment permit the officer to seize it? 

https://www.youtube.com/watch?v=3s4bDZ83krww

For the Court’s opinion: https://supreme.justia.com/cases/federal/us/508/366/case.pdf

♦

4. O’Connor v. Ortega (Government Workplace Searches)

A discussion of government employee Fourth Amendment rights regarding workplace 

administrative searches involving supervisors investigating suspected violations of agency 

policy, in comparison to law enforcement officers investigating criminal offenses.

https://www.youtube.com/watch?v=WeTm3GrzR4Q

For the Court’s opinion: https://supreme.justia.com/cases/federal/us/480/709/case.html

♦
4

FLETC Informer Webinar Schedule 

1. Kalkines and Garrity Overview (1-hour)

Presented by John Besselman, Senior Advisor for Training, Office of Chief Counsel, 

Federal Law Enforcement Training Centers, Glynco, Georgia

(John.Besselman@fletc.dhs.gov)

John Besselman will look at these two important cases and how they affect the 

government's ability to obtain statements from its employees that may be suspected of 

criminal activity. 

Tuesday August 7, 2018 – 2:30 p.m. Eastern / 1:30 p.m. Central / 

12:30 p.m. Mountain / 1130 a.m. Pacific

Thursday August 9, 2018 – 10:30 am. Eastern / 9:30 a.m. Central /

8:30 a.m. Mountain / 7:30 a.m. Pacific

To participate in either webinar: https://share.dhs.gov/garrity/

♦

2. United States Supreme Court Update (1-hour)

Presented by Mary M. Mara, Attorney-Advisor / Senior Instructor, Federal Law 

Enforcement Training Centers, Artesia, New Mexico (mary.m.mara@fletc.dhs.gov)

As the Supreme Court recently concluded its 2017-2018 session, it is a good time to see 

how the Court ruled on key criminal justice issues. This webinar will review five cases in 

which the Court addressed issues such as: Fourth Amendment searches regarding a 

person’s cell site location information and vehicles located near a residence; the reasonable 

expectation of privacy a person has in a rental car; and the potential officer liability 

regarding the use of deadly force. 

Wednesday August 8, 2018 – 3:00 p.m. Eastern / 2:00 p.m. Central / 

1:00 p.m. Mountain / 12 p.m. Pacific

To participate in this webinar: https://share.dhs.gov/artesia

♦

3. Carpenter v. United States: New Rules on Tracking Suspects (1-hour)

Presented by Patrick Walsh, Attorney-Advisor / Branch Chief, Federal Law Enforcement 

Training Centers, Glynco, Georgia (patrick.walsh@fletc.dhs.gov)

In Carpenter v. United States, decided on June 22, 2018, the Supreme Court explained 

how the Fourth Amendment applies when the government tracks a suspect’s location when 

it obtains cell site location information (CSLI) from a suspect’s cell phone service 

provider. This webinar will discuss the short-term and long-term implications of the 

Carpenter decision, including how applications under Section 2703(d) of the Stored 

Communications Act must be changed immediately and the impact Carpenter might have 

on other methods law enforcement officers use to track the location of suspects. 
5

Wednesday August 15, 2018 – 3:00 p.m. Eastern / 2:00 p.m. Central / 

1:00 p.m. Mountain / 12 p.m. Pacific

To participate in this webinar: https://share.dhs.gov/walsh/

♦

4. Use of Force: Articulation (1-hour)

Presented by Mary M. Mara, Attorney-Advisor / Senior Instructor, Federal Law 

Enforcement Training Centers, Artesia, New Mexico (mary.m.mara@fletc.dhs.gov).

Knowing when to use force is vital, but if an officer cannot clearly explain later why he or 

she used force, the officer risks losing the legal battle that may follow. This webinar will 

help law enforcement officers better articulate facts and understand the legal principles 

that drive this ever-growing area of concern for the law enforcement community.

Wednesday August 22, 2018 – 3:00 p.m. Eastern / 2:00 p.m. Central / 

1:00 p.m. Mountain / 12 p.m. Pacific 

To participate in this webinar: https://share.dhs.gov/artesia

♦

5. Video-Only Surveillance: Refresher / Case Law Update

Presented by Patrick Walsh, Attorney-Advisor / Branch Chief, Federal Law Enforcement 

Training Centers, Glynco, Georgia (patrick.walsh@fletc.dhs.gov)

This webinar will discuss issues that arise when installing a pole camera around a target’s 

home and other legal implications of which law enforcement officers must be aware when 

utilizing video-only surveillance in other contexts. Mr. Walsh will review appellate court 

cases that have directly analyzed these issues as well as U.S. Supreme Court cases that 

might apply in this evolving area of the law.

Wednesday August 29, 2018 – 3:00 p.m. Eastern / 2:00 p.m. Central / 

1:00 p.m. Mountain / 12 p.m. Pacific

To participate in this webinar: https://share.dhs.gov/walsh/

♦

To Participate in a FLETC Informer Webinar

1. Click on the link to access the Homeland Security Information Network (HSIN).

2. If you have a HSIN account, enter with your login and password information.

3. If you do not have a HSIN account, click on the button next to “Enter as a Guest.”

4. Enter your name and click the “Enter” button.

5. You will now be in the meeting room and will be able to participate in the event.

6. Even though meeting rooms may be accessed before an event, there may be times when a meeting room is 

closed while an instructor is setting up the room.

7. If you experience any technical issues / difficulties during the login process, please

call our audio bridge line at (877) 446-3914 and enter participant passcode 5537573 when prompted. 
6

CASE SUMMARIES

Circuit Courts of Appeal

First Circuit

United States v. Diaz-Jimenez, 2018 U.S. App. LEXIS 15868 (1st Cir. PR June 13, 2018)

Two armed men entered a bank in San Lorenzo, Puerto Rico and robbed it. After the men left the 

bank, they drove away in a white van. Police officers quickly determined the identities of the 

robbers and learned that the men were possibly located at a house in a nearby residential area. As 

the officers waited down the street for the SWAT team to arrive, one of the robbers, Hector 

Serrano-Acevedo, drove past their location. The officers stopped Serrano and arrested him. 

Approximately thirty minutes later, the SWAT team arrived, went to house, and knocked on the 

front door. After receiving no answer, the SWAT team opened the door and while remaining 

outside, called out to the people inside the home. Diaz’s wife came out of the house first and was 

detained. Diaz came out of the house a short time later and was immediately arrested and 

handcuffed. The SWAT team then conducted a protective sweep of Diaz’s house. During the

sweep, the officers saw money on top of a bed and inside a toilet. The officers reported what they 

saw to the lead investigator, who asked Diaz for consent to search the house. Diaz verbally 

consented, but refused to sign a consent-to-search form. Based on Diaz’s consent, officers 

searched Diaz’ house and discovered evidence connecting Diaz to the bank robbery.

The government charged Diaz and Serrano with armed bank robbery. 

Diaz filed a motion to suppress the evidence recovered from his house, arguing that the protective 

sweep conducted by the SWAT team violated the Fourth Amendment. The government argued 

the officers had reason to believe that a person involved in the robbery was inside Diaz’s home 

when they arrived; therefore, the protective sweep was lawful.

A protective sweep is a quick and limited search of a premises incident to arrest, conducted to 

protect the safety of the police officers or others. For a protective sweep to be lawful, there must 

be articulable facts, along with rational inferences drawn from those facts, that would cause a 

reasonable officer to believe that the area to be swept harbors a person that poses a danger to the 

officers or others. 

As Serrano and Diaz had already been detained at the time of the sweep, and Diaz’s wife was 

outside the house, the court reasoned that the government’s argument depended upon the presence 

of facts which supported a reasonable belief that at the time of the sweep, there was a third bank 

robber in the house. However, the court found that the government did not provide any facts 

supporting its position that a third person remained inside the house after Diaz and his wife came 

out. The lead investigator admitted that during the investigation he had not received any 

information that suggested the existence of a third bank robber. Instead, the evidence known to 

the officers consistently established that only two people were involved in the bank robbery. As 

a result, the court held that any assumption that there was a third bank robber was based purely 

on unfounded speculation, not articulable facts; therefore, the physical evidence discovered in 

Diaz’s house during the sweep should have been suppressed. 
7

The court further held that Diaz’ subsequent consent to search his home was invalid, because it 

was tainted by the unlawful protective sweep. The Court found that the lead investigator sought 

and received Diaz’s consent immediately after the SWAT team told him that they saw money in 

the house during the protective sweep, after Diaz was already in handcuffs. The court noted that 

the government provided no evidence that Diaz would have independently consented to the search 

if not for the unlawful sweep and the evidence discovered by the officers while conducting it.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca1/16-2009/16-2009-

2018-06-13.pdf?ts=1528923605

*****

Second Circuit

United States v. Jones, 2018 U.S. App. LEXIS 16409 (2d Cir. CT June 19, 2018)

After receiving a tip that Jones was involved in drug trafficking, police officers confirmed that he 

lived in an apartment located in a three-story, multi-family apartment building. While conducting 

surveillance, officers saw two individuals leaving Jones’s building and conducted a traffic stop. 

During the stop, the officers seized crack cocaine, which they learned was purchased from Jones 

at his apartment. 

A short time later, the officers arrested Jones after he left his building. The officers searched 

Jones incident to arrest and seized approximately $4,000 from his person. The officers then 

obtained a warrant to search Jones’s apartment and discovered crack cocaine, marijuana, drug 

paraphernalia, and ammunition. After searching the apartment, an officer went to the parking lot 

and located Jones’s car. The parking lot was accessible to the tenants of Jones’s apartment, as 

well as to the tenants of another multi-family apartment building next door. The officer looked 

into the rear window and saw a box of Lawman-brand ammunition. Knowing that Jones was 

prohibited from possessing ammunition because he was a convicted felon, officers conducted a 

warrantless search of Jones’s car and seized cocaine, a digital scale, firearms, and ammunition.

The government charged Jones with a variety of criminal offenses. 

Jones filed a motion to suppress the evidence seized from his car. First, Jones argued that the 

officers did not have probable cause to search the vehicle; therefore, the automobile exception to 

the Fourth Amendment’s warrant requirement did not apply. 

The court disagreed. The officer knew that Jones was a convicted felon who could not legally 

possess ammunition. As a result, when the officer saw the box of ammunition in the vehicle, the 

court concluded that the officer had probable cause to believe that Jones’s car contained evidence 

of the crime of possession of ammunition by a felon. Alternatively, even without the officer’s 

observation, the court found that by the time the officers searched Jones’s car, they had established 

probable cause that it contained evidence related to Jones’s involvement in drug trafficking. 

Next, Jones argued that he had an expectation of privacy in his car, because the parking lot in 

which it was located was within the curtilage of his home.

Again, the court disagreed. In Collins v. Virginia, the Supreme Court held that the automobile 

exception does not permit “a police officer, uninvited and without a warrant, to enter the curtilage 

of a home in order to search a vehicle parked therein.” First, the court held that the parking lot 
8

was not within the curtilage of Jones’s home, because it was a common area accessible to the 

other tenants of his apartment building and to tenants of a multi-family apartment building next 

door. Second, the court found that Jones did not have exclusive control over the parking lot,

because he did not have the authority to exclude the tenants from using it. Consequently, the court 

held that Jones did not have a reasonable expectation of privacy when he parked his car there. 

Finally, Jones argued that there were no exigent circumstances that justified the warrantless search 

of his car, because all of the suspects were in custody and the officers had secured the area by the 

time they searched it.

The court commented that the automobile exception does not have a separate exigency 

requirement, explaining that it only requires that a car be readily mobile and that probable cause 

exists to believe that it contains contraband.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca2/16-87/16-87-2018-

06-19.pdf?ts=1529418609

*****

Simon v. City of New York, 893 F.3d 83 (2d Cir. NY 2018)

An Assistant District Attorney (ADA) obtained a warrant to arrest Simon under the New York 

State material witness statute. The warrant authorized officers to take Simon into custody and 

bring her to court on August 11, 2008 at 10:00 a.m. for a hearing to determine if she should be 

adjudged a material witness. The ADA gave the warrant to two New York City Police Department 

detectives.

On August 11, 2008, the detectives arrested Simon a little after 10:00 a.m. The detectives 

transported Simon to their precinct, put her in a small room, and closed the door. Simon remained 

in the room by herself for most of the day. Late in the afternoon, the detectives took Simon to the 

courthouse, where she met with the ADA who questioned her briefly about the case he was 

investigating. After the ADA realized that Simon did not have information pertinent to the case, 

the detectives told Simon she was free to leave, but that she had to return the next day to answer 

more questions. The detectives reminded Simon that they still had a warrant for her arrest.

At 9:00 a.m., the next day, the detectives went to Simon’s apartment and told her she had to go 

back to the precinct to answer more questions and again mentioned the arrest warrant. The 

detectives drove Simon to the precinct and put her in a small room. Simons was questioned about 

the case throughout the day and was allowed to leave at 5:00 p.m. Over the two days, Simon was 

held by the ADA and detectives for eighteen hours.

Simon filed a lawsuit under 42 U.S.C. § 1983 claiming the ADA and the detectives (defendants)

falsely arrested and imprisoned her in violation of the Fourth Amendment. Specifically, Simon 

argued that her detention on both days was unlawful, because the material witness warrant 

required the officers to take her to court on August 11, 2008 at 10:00 a.m. for a hearing. 

After the district court granted the defendants qualified immunity, Simon appealed.

The Second Circuit Court of appeals reversed the district court and held that the defendants were 

not entitled to qualified immunity.
9

The court found that the warrant directed police officers to arrest Simon “forthwith” and to “bring 

her before this Court in order that a proceeding may be conducted to determine whether she is to 

be adjudged a material witness.” The warrant further stated that the proceeding was to take place 

on August 11, 2008 at 10:00 a.m. The court held that the officers violated the Fourth Amendment 

by subjecting Simon to a daylong detention at the precinct instead of producing her in court at the 

appointed time for the hearing. 

The court further held that Simon’s daylong detention on August 11, 2008 violated clearly 

established law. Even though the court could find no prior cases concerning the unlawful 

detention of a person pursuant to a material witness warrant, the court held it was obvious that 

“flouting the plain terms of the warrant, as the defendants did here” was unreasonable. 

Next, the court held that the detectives seized Simon for Fourth Amendment purposes on August 

12, 2008. Although the detectives claimed that Simon voluntarily consented to go back to the 

precinct with them to answer questions, the court found no reasonable person in Simon’s position 

would have believed that she was free to refuse to accompany the detectives to the precinct. First, 

after Simon’s detention on August 11, the detectives reminded Simon that they had a warrant for 

her arrest and ordered her return the next day. Second, the next morning, the detectives went to 

Simon’s home, mentioned the arrest warrant, and told Simon that she had to accompany them to 

the precinct to answer more questions. Because this was seizure and not a consensual encounter, 

the court concluded that the detectives violated Simon’s Fourth Amendment rights.

Finally, the court held that on August 12, 2008, it was clearly established that securing a person’s 

presence at a police station with tactics employed by the detectives in this case was equivalent to 

conducting a formal arrest, for which probable cause to believe a crime has been committed is 

required. As a result, the court held that the defendants violated Simon’s clearly established 

Fourth Amendment right to be free from a suspicionless arrest and they violated Simon’s right to 

have the warrant that was issued for her arrest executed in conformity with its terms. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca2/17-1281/17-1281-

2018-06-21.pdf?ts=1529589606

*****

Fourth Circuit

United States v. Kehoe, 2018 U.S. App. LEXIS 16624 (4th Cir. VA June 20, 2018)

The Newport News Police Department received two phone calls reporting that a man was drinking 

at a sports bar while carrying a concealed firearm. The first caller reported he was at the sports 

bar and that a white male wearing “a blue-and-white striped shirt” had a gun “on his side” “under 

his shirt” and had been drinking. The caller gave the operator his first name and phone number. 

The second caller, an off-duty police officer, told the operator that a bartender at the sports bar 

had called him and stated that a white male was at the bar was “intoxicated” and “carrying a 

firearm.” 

Based on these two phone calls, officers were dispatched to the sports bar, which was located in 

a “known problem area.” In the past, officers had responded to a number of calls at the bar and 

surrounding area for incidents involving gunshots, intoxicated individuals refusing to leave the 

bar, and fights in the parking lot. 
10

At the bar, the officers spoke to a bartender who told them that several patrons had reported that 

a white male in a blue-and-white striped shirt had a gun. The bartender stated that he had not seen 

the gun himself, but that he had seen a “bulge.” The bartender told the officers the man was 

located in the adjacent pool hall area. 

The officers went to the pool hall area and saw a man matching the description of the suspect, 

later identified as Kehoe. When the officers spoke to Kehoe, they noticed his speech was slightly 

slurred. Because the confined space, loud music, and pool tables made it difficult to have a 

conversation, the officers asked Kehoe to step outside with them. After Kehoe did not comply, 

the officers asked Kehoe to stand up and produce identification. When Kehoe stood up, the 

officers placed their hands on him and steered him toward the exit. Once outside, the officers 

again noticed Kehoe’s speech was slurred and his eyes were glassy, suggesting that he had 

consumed alcohol. The officers then handcuffed Kehoe, frisked him, and found a handgun 

concealed underneath his shirt. The officers arrested Kehoe.

The government charged Kehoe with being a felon in possession of a firearm. 

Kehoe filed a motion to suppress the gun arguing that the officers lacked reasonable suspicion to 

believe he was involved in criminal activity when they seized him by placing their hands on him 

and escorting him out of the bar.

The court found that under Virginia law, to lawfully seize Kehoe, the officers needed reasonable 

suspicion to believe that while in the bar, Kehoe was carrying a concealed handgun and drinking 

alcohol. Based on the totality of the circumstances, the court held that when the officers seized 

Kehoe, they had reasonable suspicion to believe he was involved in criminal activity. First, the 

officers received a tip from the first 911 caller that a white male wearing a blue-and-white striped 

shirt was at the bar, carrying a concealed weapon, and drinking. Second, once at the bar, the 

officers corroborated several key facts from the first caller’s tip before they seized Kehoe. 

Specifically, the officers learned from the bartender that several patrons had reported that a white 

man in a blue-and-white striped shirt was carry a concealed weapon. The officers then identified 

the only man in the bar who matched the description, Kehoe. When the officers spoke to Kehoe, 

they noticed that his speech was slightly slurred. Finally, the officers knew the bar was located 

in a known “problem area.” 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca4/17-4536/17-4536-

2018-06-20.pdf?ts=1529521229

*****

Sixth Circuit

United States v. Christian, 2018 U.S. App. LEXIS 17377 (6th Cir. MI June 26, 2018)

On September 3, 2015, a police officer drafted an affidavit in support of a search warrant for 

Christian’s residence. The affidavit sought authorization to search the residence for controlled 

substances, firearms, records relating to trafficking in controlled substances, and cash that might 

be the proceeds from the sale of controlled substances. A state magistrate judge issued the search 

warrant and officers executed it on September 4, 2015. The officers seized heroin, cocaine, and 

marijuana, as well as two firearms from Christian’s residence. 

The government charged Christian with several drug-related offenses.
11

Christian filed a motion to suppress the evidence seized from his residence. Christian argued that 

the search warrant was not supported by probable cause, because the officer’s affidavit contained 

stale information and it failed to establish a sufficient nexus between the evidence sought and his 

residence. The district court denied Christian’s motion and he was convicted on all counts with 

which he was charged. Christian appealed the denial of his motion to suppress to the Sixth Circuit 

Court of Appeals. 

To establish probable cause to justify the issuance of a search warrant, the officer seeking the 

warrant must submit to the magistrate an affidavit that establishes a “fair probability” that 

contraband or evidence of a crime will be found at the place to be searched at the time the warrant 

is executed. This requires a nexus or connection between the place to be searched and the evidence 

sought. 

Here, the court held that the search warrant affidavit failed to establish probable cause to believe 

that evidence sought by the officers would be located at Christian’s residence; therefore, the 

district court should have suppressed the evidence seized by the officers. 

First, in his affidavit, the officer stated that prior search warrants were issued for Christian’s 

residence in 2009 and 2011 for drugs and that Christian had drug-related convictions, the most 

recent being from 2011. However, the court concluded that even if these facts support the 

conclusion that Christian was engaged in drug sales at his residence at some point, there was no 

evidence to suggest that these sales were continuous when the search warrant was sought and 

executed in September 2015.

Second, in his affidavit the officer stated that Christian sold drugs to a confidential informant (CI) 

during a controlled buy at his residence eight months prior to the execution of the search warrant. 

However, the affidavit provided very little detail regarding the controlled buy. For example, the 

affidavit did not: 1) state whether the officers observed the buy, 2) identify the type or amount of 

the controlled substance purchased, 3) indicate how the purchase was initiated, 4) reveal how the 

CI had purchased drugs from Christian previously, 4) or disclose whether the CI saw large 

quantities of drugs in Christian’s possession or in the residence. As a result, the court held that a 

single controlled buy of an unknown quantity of an unknown drug by a CI with an unknown 

relationship to Christian did not establish that Christian was engaged in protracted or continuous 

drug trafficking.

Third, in his affidavit the officer stated he had received information from several debriefs of 

subjects who stated that Christian was large scale drug dealer who had sold them drugs at his 

residence within the last four months. The court found that this statement provided no indication 

as to the veracity or reliability of the information received from these subjects or provide any 

factual basis by which the magistrate could assess their reliability or veracity. 

Finally, in his affidavit the officer stated that while conducting surveillance on September 3, 2015, 

officers seized drugs from a person who was seen “walking away from the area” of Christian’s 

residence. The court found that the officer’s use of the term “in the area” was a vague description 

that did not place the person at Christian’s residence. The court noted that without a direct 

statement that the officers saw the person entering or leaving Christian’s residence, or even at the 

residence, the court was not going to read this fact into the affidavit. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca6/17-1799/17-1799-

2018-06-26.pdf?ts=1530037822
12

*****

Eighth Circuit

United States v. Pulido-Ayala, 892 F.3d 315 (8th Cir. MO 2018)

Police officers set up a ruse checkpoint to investigate drug trafficking on Interstate 70. 

Immediately before an exit ramp, the officers placed several signs that announced a fictitious drug 

checkpoint located a quarter-mile ahead. During this time, an officer saw a car abruptly change 

lanes without using a turn signal and exit the highway after passing the checkpoint sign. The 

driver failed to obey the stop sign at the top of the exit ramp and immediately returned to the 

highway, travelling in the opposite direction, away from the fictitious checkpoint. 

A police officer stopped the car for two traffic violations and brought the driver, Pulido, back to 

his patrol car. In the meantime, another officer remained near the car and spoke with the 

passenger, Sandoval. A few minutes later, an officer arrived with a drug-dog, which he planned 

to walk around the exterior of Pulido’s car. However, before doing so, the officer asked Sandoval 

whether he wished to remain in the car during the dog sniff or get out. Sandoval exited the car, 

leaving the passenger-side door open. 

The officer brought the dog to the rear of Pulido’s car and when he signaled the dog to begin his

sniff, the dog immediately pulled the officer toward the open passenger-side door. The dog then 

jumped into the car through the open door and alerted to the presence of drugs at the fender area. 

The officer pulled the dog out of the car and attempted to walk him around Pulido’s car again; 

however, the dog jumped back into the car through the open door and alerted at the same location. 

Officers searched Pulido’s car and found three kilograms of cocaine inside the fender.

The government charged Pulido with a drug-related offense.

Pulido filed a motion to suppress the evidence seized from his car. Pulido argued that officer 

conducted an unlawful search of his car when he allowed the drug-dog to enter it through the open 

door. 

The court recognized that the use of a drug-sniffing dog around the exterior of a vehicle that has 

been lawfully stopped does not violate the Fourth Amendment. The court also noted that police 

officers generally cannot search the interior of a vehicle unless they have probable cause to believe 

that the vehicle contains contraband or evidence of a crime. Finally, the court found that while a 

drug-dog is an instrumentality of the police and thus subject to the same Fourth Amendment 

requirements, it is foreseeable that trained canines will react instinctively to the scent of drugs 

inside a vehicle. 

However, the court did not determine whether the drug-dog instinctively jumped into Pulido’s car

or not. Instead, the court held that the officers had probable cause to search the Pulido’s car under 

the automobile exception to the Fourth Amendment’s warrant requirement before the dog entered 

it. Given the strong reaction of the drug dog while he was outside the car, together with Pulido’s 

suspicious reaction to the drug checkpoint, the court concluded that the officers had probable 

cause to believe that Pulido’s car contained contraband the moment before the dog crossed the 

threshold into the interior of the car. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca8/17-1371/17-1371-

2018-06-05.pdf?ts=1528212626
13

*****

United States v. Tuton, 2018 U.S. App. LEXIS 17176 (8th Cir. AR June 25, 2018)

A police officer stopped a commercial bus for following another vehicle too closely. The officer 

knew that the particular bus line was popular along the U.S.-Mexico border and that drug 

traffickers stored drugs in unlabeled, apparently abandoned luggage to keep police from linking a 

bag to a passenger if drug were discovered in the luggage. While talking with the driver, the 

officer noticed that his hands were trembling and that he appeared to be nervous. The officer 

found this odd, because he believed that professional drivers typically interacted more 

comfortably with law enforcement and regulatory authorities than average drivers. The driver 

told the officer that he was transporting four passengers from southern Texas to Milwaukee; 

however, the passenger manifest indicated the passengers were travelling to Chicago. Along with 

this inconsistency, the officer thought it was suspicious that the bus company would undertake a 

costly cross-county trip with only four passengers. 

After asking the bus driver about the presence of contraband on the bus, the officer obtained 

consent from the bus driver to search the bus’s luggage compartment. Inside the luggage 

compartment, the officer saw five or six bags with name tags and a black bag with no apparent 

markings or name tag. The officer opened the black bag, reached inside, and felt what he believed 

was a false bottom. While trying to access the hidden compartment, the officer saw a name tag 

bearing Tuton’s name concealed beneath the bag’s collapsed handle. The officer stopped 

searching the bag, requested a canine unit, entered the bus, and questioned Tuton. 

A few minutes later, an officer arrived with a drug dog. Although the dog sniffed the individual 

bags in the luggage compartment, he did not alert on any specific bag. Instead, the dog provided 

an alert which caused the officer to believe that drugs were located somewhere in the luggage 

compartment. The officers searched all of the bags in the luggage compartment and found eight 

pounds of cocaine in Tuton’s bag after breaking through the false bottom.

The government charged Tuton with possession with intent to distribute cocaine. 

Tuton filed a motion to suppress the evidence found in his bag, claiming the officer committed 

several Fourth Amendment violations. The district court denied Tuton’s motion to suppress and 

he appealed to the Eighth Circuit Court of Appeals.

First, the court held that the officer lawfully expanded the traffic stop when he asked the bus driver 

about the presence of contraband on the bus and if he could search the bus. The court added that 

Tuton had no authority to object to the bus driver’s consent to search the bus and that Tuton was 

not seized during the search, as “he made the decision to ride the bus to its destination.”

Second, the court did not decide whether the officer’s initial search of Tuton’s bag, in which he 

discovered the false bottom was unlawful. Instead, the court concluded that even if the officer 

acted unreasonably by opening what he believed to be abandoned property, stopping his search 

and requesting the canine unit after discovering his mistake was reasonable. Citing Utah v. Strieff, 

the court added that “all the evidence suggests that the [mistake] was an isolated instance of 

negligence that occurred in connection with a bona fide investigation.” In these circumstances, 

the court held that exclusionary rule did not require the suppression of the evidence subsequently 

discovered in Tuton’s bag based on the drug dog’s alert.
14

Third, the court held that the drug dog’s alert established probable cause to search the bags in the 

luggage compartment. The court found that the dog and his handler had completed a 320-hour 

training course the previous year, the dog had earned a high accuracy rating for positive and 

negative alerts, and had trained in various environments.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca8/17-1493/17-1493-

2018-06-25.pdf?ts=1529940652

*****

Tenth Circuit

United States v. Latorre, 893 F.3d 744 (10th Cir. WY 2018)

Officer Weidler, an Illinois state trooper who supervised the state police’s aviation unit, used a 

radar system to monitor an aircraft that was flying through Illinois airspace without an active 

transponder. Later that day, Officer Weidler identified the registered owner of the plane as Bruce

Latorre from California. Officer Weidler learned from the United States Customs Air and Marine 

Operations Center (AMOC) that the AMOC had a record of previous cases involving Latorre and 

that the AMOC’s database alerted whenever Latorre’s aircraft was identified on radar. Officer 

Weidler also discovered that Latorre has previous arrests for distribution and possession of 

marijuana, distribution of controlled substances, and weapons offenses. 

The next day, Officer Weidler learned that Latorre’s plane had landed in Buffalo, New York, 

where it remained overnight before it took off the next morning. Officer Weidler tracked Latorre’s 

airplane as it flew through Illinois heading west. 

On the third day of the investigation, Officer Weidler learned that Latorre’s plane, still flying 

west, would likely land at the airport in Evanston, Wyoming to refuel. Officer Weidler contacted 

officers in Wyoming and told them of his investigation into Latorre’s flight. Officer Mathson 

arrived at the Evanston airport and followed Latorre from the airport lobby to his aircraft. Near 

the aircraft, Officer Mathson pulled his shirt and coat back to reveal his badge and gun and asked 

to see Latorre’s aircraft registration and pilot’s license. During an ensuing conversation with 

Officer Mathson and other officers that had arrived, Latorre consented to a search of his aircraft. 

Officer Mathson searched Latorre’s aircraft and found a vacuum-sealed bag containing $519,935 

in cash. In subsequent interviews, Latorre admitted his role in a conspiracy in which he 

transported marijuana to New York and brought money back to California.

The government charged Latorre with trafficking marijuana.

Latorre filed a motion to suppress the evidence seized from his aircraft, arguing that Officer 

Mathson did not have reasonable suspicion to detain him at the Evanston airport.

The court disagreed, concluding that three factors, taken together, supported reasonable suspicion 

to suspect that Latorre was involved in criminal activity: Latorre’s unusual travel itinerary, the 

lack of an active transponder on Latorre’s aircraft, and Latorre’s criminal history. 

First, Latorre flew from California to New York where he spent one night. Latorre then embarked 

on the two-day flight back to California the next morning. The court held that traveling a long 

distance and staying only one night at his destination contributed to a finding of reasonable 

suspicion.
15

Second, Latorre embarked on two cross-country flights without an active transponder on his 

aircraft. The court recognized that transponders add a level of safety for pilots, as they transmit 

the aircraft’s altitude to air traffic control to prevent collisions with other aircraft. The court found 

that flying without an active transponder contributes to reasonable suspicion, because it 

demonstrates an interest in avoiding detection at the risk of increased danger. 

Third, the officers knew that Latorre had previous arrests for distribution and possession of 

marijuana, distribution of controlled substances, and weapons offenses. 

Although Officer Weidler established reasonable suspicion to stop Latorre, he did not perform the 

actual stop, Officer Mathson did. However, the court held that Officer Weidler’s reasonable 

suspicion was imputed to Officer Mathson through the collective knowledge doctrine; therefore, 

Officer Mathson’s detention of Latorre was lawful. 

The court further held that Latorre voluntarily consented to the search of his aircraft. First, 

although Officer Mathson pulled his coat behind his badge and firearm and displayed them to 

Latorre, Officer Mathson never touched his firearm. Second, Latorre’s subsequent conversation 

with the officers took place in the public lobby of the airport, the officers wore plainclothes, and 

they did not display their weapons. Third, the officer did not threaten Latorre or make him any 

promises in exchange for his cooperation. Fourth, when Latorre gave consent, he was not 

handcuffed. Finally, there was no evidence that the officers coerce Latorre’s consent to search 

his plane with a show of authority and one of the officers told Latorre that he was free to leave at 

any time. Under these circumstances, the court held that a reasonable person would believe he 

was free to leave or to deny the officers’ request to search. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca10/17-8066/17-8066-

2018-06-21.pdf?ts=1529596862

*****

Eleventh Circuit

United States v. Obando, 891 F.3d 929 (11th FL Cir. 2018)

Crew members aboard a Marine Patrol Aircraft saw the crew of the Siempre Malgarita, a 32-foot 

“go-fast” vessel, throwing packages into the water. The Siempre Malgarita was located in 

international waters approximately 208 nautical miles off the coast of Guatemala. A nearby 

United States Coast Guard cutter, the Edmonton, launched a small vessel and recovered the 

packages, which tested positive for cocaine. 

The Edmonton then launched a second vessel to intercept the Siempre Malgarita. The guardsmen 

boarded the Siempre Malgarita and encountered Obando and two other crewmen. When the 

guardsmen tried to determine the nationality of the Siempre Malgarita, none of the crewmen made 

a verbal claim of nationality or registry for the vessel. In addition, the crewmen could not produce 

documents establishing nationality or the identity of the homeport of the vessel or its last port of 

call. When asked, one of the crew members told the guardsmen that “he did not know” the vessel’s 

nationality. The guardsmen noticed a flag painted on the hull of the vessel, which they believed 

to be a Columbian flag. However, when they asked one of the crewmen about the flag, he claimed 

that it was the flag of Ecuador, which is similar in appearance to the Columbian flag. 
16

The Coast Guard contacted the government of Ecuador which could not confirm the nationality 

or registry of the Siempre Malgarita. Consequently, the guardsmen determined that the Siempre 

Malgarita was a vessel without nationality subject to the jurisdiction of the United States under 

the Maritime Drug Law Enforcement Act and arrested the crewmembers for drug-related offenses.

The Maritime Drug Law Enforcement Act grants the United States extraterritorial jurisdiction 

over “vessels without nationality.” The Act states that a vessel is “without nationality” if the 

person in charge of the vessel fails to make a claim of nationality or registry for that vessel upon 

request by an officer of the United States. One of the ways for a person in charge of a vessel to 

make a claim of nationality or registry is by “flying its nation’s ensign or flag.” If the person in 

charge of a vessel in international waters makes a claim of foreign nationality that is affirmed by 

the asserted nation, the United States generally must obtain consent from that nation before 

exercising jurisdiction. 

In this case, Obando and the other crew members filed a motion to dismiss the charges, claiming 

that the United States lacked jurisdiction under the Maritime Drug Law Enforcement Act. 

Specifically, they argued that the Columbian flag painted on the side of the Siempre Malgarita

was a claim of Columbian nationality that obligated the Coast Guard to ask Columbian officials 

whether the vessel was registered there and whether Columbia consented to the exercise of 

jurisdiction by the United States. 

The court held that the painted flag on the side of the Siempre Malgarita was not a valid assertion 

of nationality under the Maritime Drug Law Enforcement Act. The court found that the ordinary 

meaning of the word “flying” requires a flag to be capable of freely moving in the air. In addition, 

the court noted that a maritime treatise, maritime etiquette, and other federal statutes concerning 

the display of flags “clearly imply that a flag flies only when hoisted in the air.” 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca11/17-11202/17-

11202-2018-06-01.pdf?ts=1527877889

*****

Manners v. Cannella, 891 F.3d 959 (11th Cir. FL 2018)

Officer Cannella saw a car disregard a stop sign and decided to conduct a traffic stop. Officer 

Canella got behind the car, driven by Manners, and activated his emergency lights and siren. Even 

though Manners knew a police officer was ordering him to stop, he drove approximately three 

blocks and pulled into a gas station. Once stopped, Manners exited his car and confronted Officer 

Canella, who told Manners to get back inside his car. After Manners refused repeated orders to 

get back into his car, Officer Cannella told Manners that he was under arrest. As Officer Cannella 

attempted to handcuff Manners, a physical struggle ensued between the men. During the struggle, 

both men fell back into Manners’s car. Officer Cannella tried to pull Manners out of the vehicle, 

but Manners continued to resist him. At the time of the incident, Manners was 6 feet 2 inches tall 

and weighed 240 pounds while Officer Canella was 5 feet 10 inches tall and weighed 215 pounds. 

A short time later, Officer Sabillon arrived on scene, saw Manners fighting with Officer Canella, 

and deployed her taser against Manners. Afterward, both officers gained control of Manners and 

handcuffed him. 

Manners went on trial on charged of battery on a law enforcement officer and resisting a police 

officer; however, a he was acquitted on both counts by a jury.
17

Manners subsequently sued Officers Cannella and Sabillon, claiming the officers used excessive 

force in arresting him in violation of the Fourth Amendment and for false arrest under Florida 

law.

The district court held that the officers were entitled to qualified immunity, finding that the 

officers did not violate any of Manners’s clearly established constitutional rights. Manners 

appealed.

The Eleventh Circuit Court of Appeals agreed with the district court, holding that the officers 

were entitled to qualified immunity. First, the court held that Officer Cannella had probable cause 

to arrest Manners for fleeing or attempting to elude a law enforcement officer under Florida law. 

In this case, Manners’s failure to stop when he reasonably and practicably could have, and when 

he knew Officer Cannella was ordering him to stop, provided probable cause for Officer Cannella 

to arrest him.

Second, the court applied the factors outlined by the U.S. Supreme Court in Graham v. Connor

and held that the officers’ use of force against Manners was objectively reasonable. The court 

found that the first Graham factor, the severity of the crime, favored Manners, as Officer Cannella 

initially saw Manners disregard a stop sign.

However, the court added that the second Graham factor, the immediacy of the threat, favored the 

officers. The court concluded that a reasonable officer on the scene could believe that Manners 

posed a threat to Officer Cannella when Manners, who was physically larger than Officer 

Cannella, moved back into his car and tried to escape the officer’s grasp. In addition, when Officer 

Sabillon arrived and saw Manners struggling with Officer Cannella, she could have reasonably 

believed that Manners posed a threat to him. 

The court held that the third Graham factor, resisting arrest, strongly favored the officers. 

Manners refused to be handcuffed and struggled with Officer Cannella’s initial efforts and later 

with Officer Sabillon’s efforts to arrest him for at least three minutes. During this time, the court 

concluded that it was reasonable for the officers to strike Manners and deploy a taser against him. 

The court added that video evidence clearly showed that the officers stopped using force against 

Manners once he was handcuffed and subdued. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca11/17-10088/17-

10088-2018-06-04.pdf?ts=1528146056

*****

United States v. Morales, 2018 U.S. App. LEXIS 17885 (11th Cir. FL June 29, 2018)

Officers suspected that Morales was selling drugs out of a house in Miami Gardens, Florida. Two 

officers went to the house where they encountered Berta Lang. Lang did not speak English, so 

one of the officers spoke to her in Spanish. The officer told Lang they were conducting a criminal 

investigation and asked her if she lived in the house. Lang told the officer she did, along with her 

daughter, Morales, and the couple’s two small children. The officer asked Lang if she had access 

to the entire house, including her daughter’s and Morales’s room and Lang responded that she 

did. Lang told the officer that she went into the couple’s room to clean it and take care of the 

kids. The officer told Lang that she had the right to refuse consent at any point, but Lang stated 

that she had “nothing to hide.” Lang initially gave the officer verbal consent to search the house 

and a short time later, she signed a consent-to-search form. Although the consent-to-search form 
18

was in English, the officer explained it to her in Spanish and told her a second time that she had 

the right to refuse consent.

Officers searched the closet in Morales’s bedroom and found several handguns and ammunition 

in a duffel bag. The officers arrested Morales, who had remained outside the house speaking with 

some other men while the officers spoke to Lang, obtained her consent, and searched the house.

The government charged Morales with being a felon in possession of a firearm. 

Morales filed a motion to suppress the evidence seized from the duffel bag in his bedroom closet, 

which the district court denied. Morales appealed. 

Morales argued that the Lang did not voluntarily consent to the search of the house. 

The court disagreed. First, there were only two officers inside the house and they did not draw 

their guns, raise their voices, or handcuff Lang. Second, the officers did not threaten or intimidate 

Lang to obtain her consent to search. Third, the officers testified that Lang fully cooperated and 

that she was very calm and professional when she spoke to them. Finally, the officer made sure 

that Lang understood that she had the right to refuse consent, first when he obtained her verbal 

consent and again when she signed the consent-to-search form. 

Morales also argued that even if Lang’s consent to search was voluntary, it was not valid because 

he was a physically present co-occupant, who was intentionally denied an opportunity to refuse

the officers’ entry and search of the house.

When people share a dwelling, a co-occupant can generally give valid consent if that person has 

“joint access or control” over the area to be searched. However, the consent of one co-occupant 

is not valid if another co-occupant is physically present and objects to the search. Because he was 

a physically present co-occupant, Morales argued that the officers were required to ask him for 

his consent to enter and search his house.

Again, the court disagreed. When the officers arrived, Morales was not present at the door when 

they spoke with Lang. Instead, Morales remained outside the house and was not involved in the 

conversation between the officers and Lang. In addition, there was nothing to indicate that the 

officers removed Morales from the doorway so that he could refuse consent to search. The court 

concluded that Morales was nothing more than a “potential objector,” and that the officers did not 

have a duty to ask him whether he objected to the search. Consequently, the court held that Lang’s 

consent was sufficient to allow the officers to search the house after she stated that she lived in 

the house and that she had access to the entire house, including Morales’s bedroom to clean it and 

take care of the children.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca11/16-16507/16-

16507-2018-06-29.pdf?ts=1530289842

*****