Department of Homeland Security

Federal Law Enforcement Training Centers

Office of Chief Counsel

Legal Training Division 

June 2017

THE

FEDERAL LAW ENFORCEMENT

-INFORMER- A MONTHLY LEGAL RESOURCE AND COMMENTARY FOR LAW 

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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 

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This edition of The Informer may be cited as 6 INFORMER 17.
2

The Informer – June 2017 

Article: 

Foreign Nationals: What Law Enforcement Needs to Know.....................................5

By Henry W. McGowen, Attorney Advisor / Senior Instructor, Office of Chief Counsel, Legal

Division, Artesia, New Mexico.

Case Summaries

United States Supreme Court

Cty. of Los Angeles v. Mendez: Whether the Ninth Circuit’s provocation rule was 

in conflict with Graham v. Connor regarding the manner in which a claim of excessive 

force against a police officer should be determined under 42 U.S.C. § 1983.....................................8

Honeycutt v. United States: Whether forfeiture pursuant to 21 U.S.C. § 853(a)(1)

is limited to property the defendant, himself, actually acquired as the result of the crime.................9

Hernandez v. Mesa: Whether the plaintiffs could sue a Border Patrol agent under Bivens,

as the result of an incident involving the cross-border shooting of the plaintiffs’ son.....................10

Circuit Courts of Appeals

First Circuit

United States v. Almonte-Báez: Whether the officers’ warrantless entry into the 

defendant’s apartment was supported by exigent circumstances (destruction of evidence)............12

United States v. Diaz-Rosado: Whether the defendant’s written confession was voluntary........13

United States v. Ramdihall; United States v. Hillaire: Whether an 82-minute detention

was reasonable, the voluntariness of the defendant’s consent to search, whether a trooper 

established reasonable suspicion to detain the defendant after completing a traffic ticket, 

and whether the warrantless swiping of credit cards through a card reader was lawful...................14

Second Circuit

United States v. Lyle: Whether an unauthorized and unlicensed driver of a rental car

had standing to object to an inventory search after officers impounded the car...............................16

United States v. Ulbricht: Whether the government could collect IP address information

through the use of pen register / trap and trace orders under Title 18 U.S.C. §§ 3121-3127,

and whether warrants to search the defendant’s laptop computer and electronic media 

accounts satisfied the Fourth Amendment’s particularity requirement...........................................17

Fifth Circuit

United States v. Wallace: Whether suppression of evidence was a remedy available for an

alleged violation of a pen register / trap and trace order, and whether it was lawful for the

government to obtain real-time GPS location of the defendant’s cell phone (prospective cell

site data) with a §2703(d) court order rather than a search warrant based on probable cause..........18
3

Sixth Circuit

United States v. Dunning: Whether an officer was required to include the source code

in his search warrant affidavit from a software program that identified IP addresses that 

used peer-to-peer networks to download and share child pornography..........................................19

Seventh Circuit

United States v. Radford: Whether the defendant was seized for Fourth Amendment 

purposes while being questioned by an officer on a train, and whether the defendant’s

consent to search her bags was voluntary........................................................................................19

Ninth Circuit

S. B. v. County of San Diego: Whether an officer was entitled to qualified immunity 

after he shot and killed a knife-wielding man.................................................................................20

Tenth Circuit

United States v. Morgan: Whether an officer exceeded the scope of the traffic stop when

he asked the defendant for identification, ordered him off his bicycle, tackled the defendant 

to the ground, and deployed a taser against him............................................................................21

Eleventh Circuit

Jones v. Fransen: Whether a K-9 officer used excessive force in violation of the Fourth

Amendment when he released his canine to locate the plaintiff, and whether the plaintiff

could bring a claim for negligence directly against the police-dog.................................................22

♦

FLETC Informer Webinar Series 

1. Thursday July 6, 2017 (1:00 p.m. Mountain Daylight Time)

Live Webinar: Foreign Nationals and Law Enforcement Officers (1-hour)

Presented by Henry W. McGowen – Attorney-Advisor / Senior Instructor

Federal Law Enforcement Training Centers, Artesia, New Mexico.

This webinar will discuss issues law enforcement officers face when they 

encounter foreign national suspects, to include diplomats and those without 

diplomatic status. 

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

♦

2. Tuesday July 11, 2017 (1:00 p.m. Eastern Daylight Time)

Live Webinar: The Law on Drones in the United States (2-hours)

Presented by Robert H. Cauthen, Attorney-Advisor / Assistant Division Chief, 

Federal Law Enforcement Training Centers, Glynco, Georgia.

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

♦
4

3. Wednesday July 26, 2017 (11 a.m. Mountain Daylight Time)

Live Webinar: Advanced Affidavit Writing (1-hour) 

Presented by Michelle M. Heldmyer, Attorney-Advisor / Senior Instructor,

Federal Law Enforcement Training Centers, Artesia, New Mexico.

This webinar will review the components of search warrant and arrest warrant 

affidavits, while providing practical tips and guidance on how law enforcement 

officers can work effectively with their prosecutors to draft these documents.

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

♦

4. Wednesday July 26, 2017 (1:30 p.m. Mountain Daylight Time)

Live Webinar: The Assimilative Crimes Act (ACA) and the Violence Against 

Women Reauthorization Act of 2013 (VAWA) (1-hour)

Presented by Robert Duncan, Attorney-Advisor / Senior Instructor,

Federal Law Enforcement Training Centers, Artesia, New Mexico.

To participate in this webinar: http://share.dhs.gov/indianlaw/

♦

Visit https://share.dhs.gov/informer for any additional live webinars, rewind 

replays or Bruce’s Brown Bag webinars that might be offered in July.

♦

Virtual Symposium – July 24 and 25, 2017

The Federal Law Enforcement Training Centers and partner organizations are sponsoring an 

interactive virtual continuing legal education (CLE) training conference to develop and enhance 

knowledge of agency/component missions, emerging areas of law, and new developments in 

training. The virtual conference will be held on July 24 and 25, 2017, from 10:30 a.m. EDT to 

4:00 p.m. EDT and can be accessed by visiting http://share.dhs.gov/symposium. Registration 

is not required. Attendees with a HSIN login may use existing credentials. Attendees without a 

HSIN login may log in as a guest. Please contact Tammy Fields at tammy.fields@fletc.dhs.gov 

or Robert Duncan at robertduncan@fletc.dhs.gov for more information.

♦

To participate in a FLETC Informer Webinar / Virtual Symposium

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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.
5

Foreign Nationals: What Law Enforcement Needs to Know

By

Henry W. McGowen

Attorney Advisor / Senior Instructor

Office of Chief Counsel

Federal Law Enforcement Training Centers

Artesia, New Mexico

Introduction

Do you ever come into contact with non-U.S. citizens in your line of work? Millions of foreign 

nationals are in the U.S. right now, so chances are if you have not, you will. The United States is 

a desirable destination for a great number of people around the world. While working overseas 

before joining FLETC, I discovered almost everyone I met wanted to visit the U.S.; some even 

wanted to move here. People come to our country for a variety of reasons: business, tourism, 

diplomatic missions, family visits, American citizenship, and even some involved in criminal 

activity. While most foreign nationals in the U.S. are law-abiding, some do get into trouble (some 

by accident and some on purpose). Those of us working in the U.S. criminal justice system –

Federal, State and Tribal – need to know what to do with these individuals when they break the 

laws of our country.

Generally, we may encounter two main categories of foreign national suspects: those with 

diplomatic status and those without. And as you might guess, different rules apply to each category 

of suspect. This article explores some important rules for both diplomats and non-diplomats.

In order to know how to handle different foreign national suspects, let’s first look at where these 

rules came from. Two international conventions address these types of foreign visitors: the Vienna 

Convention on Diplomatic Relations1 (dealing as you might suspect with diplomats) and the 

Vienna Convention on Consular Relations2 (dealing with all other foreign nationals). Both were 

written and adopted under the umbrella of the United Nations. The U.S. has signed both and, as 

such, have agreed to abide by their terms.

Dealing with Diplomats

We all have heard of diplomatic immunity (which is great to have if you can get it!); however, 

you may have wondered where it came from and why special rules apply to diplomats. The Vienna 

Convention on Diplomatic Relations was adopted on 14 April 1961 by the United Nations 

Conference on Diplomatic Intercourse and Immunities held in Vienna, Austria. The requirements 

of this convention entered into force in the U.S. in 1972.3

We have sent diplomats around the world to represent the U.S. in foreign relations with other 

nations. They need protection from interference with their role as representatives of the U.S. 

through detentions, arrests or prosecutions. In turn, we offer the same protection to diplomats from 

other countries working in the U.S.

 1 http://legal.un.org/avl/pdf/ha/vcdr/vcdr_e.pdf. 2 http://legal.un.org/avl/pdf/ha/vccr/vccr_e.pdf. 3 This was followed up with the Diplomatic Relations Act in 1978, which codified these issues (22 U.S.C. § 245). 
6

If you encounter a foreign national whom you reasonably suspect is committing a crime, you first 

need to determine whether s/he has diplomatic immunity. If the suspect is a diplomat and can 

communicate with you, s/he will let you know. Do not take their word for it though; you must 

confirm it. They should have diplomatic documents, including possibly a diplomatic passport and 

an official document recognizing their diplomatic status from our State Department. Additionally, 

you can call the State Department’s DSS Command Center at (571) 345–3146 to verify the 

information.4 If the suspect does in fact have diplomatic immunity, then the following rules apply.

You may detain the diplomat until you verify his/her status. You are not, however, permitted to 

arrest or charge the individual, no matter how serious the crime. Do not handcuff unless the 

diplomat poses an immediate safety threat. Do not search or frisk the person, his/her vehicle, or 

personal belongings unless it is necessary for officer safety. It is good to investigate the situation 

and prepare a report. You need to make a record of what occurred; why you stopped them, and 

what steps were taken. This is also important for your protection in case questions are ever raised 

about why you stopped that ambassador. Records of police encounters can be reviewed by the 

State Department if questions ever arise about the incident.

Officers may stop and cite diplomats for moving traffic violations; this is not considered detention 

or arrest. However, a diplomat may not be compelled to sign, or even pay, the citation. You may 

ask, what is the point of citing them if they do not have to pay the fine? If nothing else, a written 

record should be made as to why you stopped the diplomat for the same reason you want to make 

a record of your other encounters with diplomats. 

And Now Everyone Else

Most foreign nationals in the U.S. have no diplomatic status. For these foreign nationals who 

commit crimes while in the U.S., rules formalized in the Vienna Convention on Consular 

Relations (VCCR) apply. The VCCR was adopted in 1963, also in Vienna, Austria, and signed by 

the U.S. in 1969. The VCCR covers a much broader range of topics than just foreign nationals 

behaving badly; however, for our purposes here we will just address this aspect.5

If you encounter a suspect whom you think may be a foreign national, you are allowed to ask 

about the person’s citizenship for purposes of complying with the VCCR. Some 5th Amendment 

concerns have been raised about whether asking about citizenship without first giving Miranda

warnings could amount to an interrogation for 5th Amendment purposes. This is a separate issue 

from asking about their legal status in the U.S. Therefore, simply asking about citizenship does 

not encroach into this area of the law and is considered permissible. 

When you detain or arrest foreign suspects, you need to advise them of their right to have consular 

officials from their country notified of their situation. Additionally, foreign suspects must be 

allowed reasonable access to consular and/or legal officials from their country while in custody. 

The courts are also required to advise foreign national arrestees of these rights.

 4 There are various levels of diplomatic immunity; for purposes of this article we will deal with full immunity. You 

can refer to the State Department’s manual, “Diplomatic and Consular Immunity: Guidance for Law Enforcement 

and Judicial Authorities” for further information on this; link listed below in footnote 8. 5 See Article 36 of the Vienna Convention on Consular Relations, 1963.
7

A quick word on “detention,” as that may have caught your attention. This term is included in the 

VCCR along with “arrest.”6 Some countries use the term “detention” differently than in the U.S., 

i.e. suspects may be locked up and held for several days without formal charges; they are only 

being “detained” while an investigation ensues to determine whether there is enough evidence to 

formally arrest and charge them. This can be particularly true for foreign nationals who may flee 

to their home country if released. For application of the VCCR, this term has been interpreted in 

the U.S. as an extended detention. In other words, if a suspect is detained for several hours and 

not allowed access to a phone or other forms of communication, then we need to inform her/him 

of the right to contact a consular office from their country. Such notification is not required during 

the typical brief detention, such as a Terry stop. 

In addition, you need to determine if the foreign national is from a country that must be notified 

that their citizen has been detained/arrested. The U.S. has agreements with some countries that 

make this mandatory, regardless of the suspect’s wishes. The U.S. has agreements with other 

countries however where reporting is discretionary. A list of these countries can be found in the 

State Department’s manual on Consular Notification and Access.7

Whether or not a foreign national is legally in the U.S. does not affect the notification requirements 

of the VCCR. Either way, these rights apply. Similarly, we need to remember that foreign 

nationals are entitled to the usual Constitutional safeguards, such as protections against 

unreasonable search and seizure, and Miranda warnings for custodial interrogation. 

Conclusion

The United States is party to many international conventions and treaties. The two mentioned here 

only cover part of the landscape of international commitments related to our criminal justice 

system. You can find more information in two very useful documents published by the State 

Department.8 They provide practical information for law enforcement and other criminal justice 

actors dealing with foreign nationals. Also, I will be offering a webinar on this topic in early July. 

Please feel free to join me as we take a more in depth look at this category of suspect and how we 

handle them. With more and more people coming in and out of the U.S. due to political upheavals, 

economic migration and the increasing effects of globalization, these issues will only be 

increasing. Tune in and let’s discuss how we can prepare for it.

 6 See Article 36, Vienna Convention on Consular Relations, link provided in footnote 1.

7 The link to this manual is the second one listed below in footnote 8. 8 https://www.state.gov/documents/organization/150546.pdf and 

https://travel.state.gov/content/dam/travel/CNAtrainingresources/CNA_Manual_4th_Edition_August2016.pdf
8

CASE SUMMARIES

United States Supreme Court

Cty. of Los Angeles v. Mendez, 2017 U.S. LEXIS 3396 (U.S. May 30, 2017)

Los Angeles County Deputies Conley and Pederson were part of a team of police officers that 

went to a residence owned by Paula Hughes to search for Ronnie O’Dell, a wanted parolee. 

Deputies Conley and Pederson were assigned to clear the rear of Hughes’ property and cover the 

back door of Hughes’ residence. The deputies were told that a man named Mendez lived in the 

backyard of Hughes’ residence with Jennifer Garcia. Deputies Conley and Pederson went through 

a gate and entered the backyard where they saw a small plywood shack. The deputies entered the 

shack without a search warrant, and without knocking and announcing their presence. Inside the 

shack, the deputies saw the silhouette of a man pointing, what appeared to be a rifle, at them. 

Deputies Conley and Pederson fired fifteen shots at the man, later identified as Mendez. Mendez 

and Garcia both sustained gunshot wounds. The deputies later discovered that Mendez had been

pointing a BB gun that he kept by his bed to shoot rats inside the shack. 

Mendez and Garcia (Mendez) sued Conley, Pederson and the Los Angeles County Sheriff’s 

Department under 42 U.S.C. § 1983 alleging that the deputies committed three violations of the 

Fourth Amendment. First, Mendez claimed that the deputies executed an unreasonable search by 

entering the shack without a warrant (the “warrantless entry claim”). Second, Mendez claimed 

that the deputies performed an unreasonable search because they failed to announce their presence 

before entering the shack (the “knock and announce claim”). Finally, Mendez claimed that the 

deputies used excessive force by discharging their firearms after entering the shack (the “excessive 

force claim”).

The district court found Deputy Conley liable on the warrantless entry claim, concluding that 

entry into the shack was not supported by exigent circumstances or another exception to the 

warrant requirement. The court found both deputies liable on the knock and announce claim. 

Finally, the court held that the deputies did not use excessive force in violation of the Fourth 

Amendment, as it was reasonable for the deputies to mistakenly believe Mendez’s BB gun was a 

rifle. Nonetheless, the court held that the deputies were liable for the shooting under the Ninth 

Circuit’s provocation rule and awarded approximately four million dollars in damages. The 

provocation rule states, 

“Where an officer intentionally or recklessly provokes a violent 

confrontation, if the provocation is an independent Fourth 

Amendment violation, he may be held liable for his otherwise 

defensive use of deadly force.” 

The district court held that because the officers violated the Fourth Amendment by entering the 

shack without a warrant, which proximately caused the injuries to Mendez and his wife, it was 

proper to hold the officers liable for their injuries under the provocation rule. 
9

On appeal, the Ninth Circuit Court of Appeals reversed the district court and held that the deputies 

were entitled to qualified immunity on the knock and announce claim. However, the court agreed 

with the district court and held that the warrantless entry of the shack violated clearly established 

law, but was attributable to both deputies. Finally, the court applied the provocation rule and held 

the deputies liable for their use of force finding that the officers had intentionally and recklessly 

brought about the shooting by entering the shack without a warrant in violation of clearly 

established law. 

Los Angeles County and the deputies appealed, and the United States Supreme Court agreed to 

hear the case. The issue before the Court was whether the Ninth Circuit’s provocation rule was 

in conflict with Graham v. Connor regarding the manner in which a claim of excessive force 

against a police officer should be determined under 42 U.S.C. § 1983.

The Supreme Court held that the Fourth Amendment provides no basis for the provocation rule. 

The Court stated that a different Fourth Amendment violation, such as the unlawful entry into the 

shack, could not transform a later, reasonable use of force into an unreasonable seizure. The Court 

noted that the provocation rule’s fundamental flaw is that it uses another constitutional violation 

to manufacture an excessive force claim where one would not otherwise exist. The Court 

emphasized the exclusive framework for analyzing excessive force claims is set out in Graham. 

If there is no excessive force claim under Graham, there is no excessive force claim at all. Once 

a use of force is deemed reasonable under Graham, it may not be found unreasonable by reference 

to some separate constitutional violation. 

The Court added that to the extent a plaintiff has other Fourth Amendment claims, such as 

Mendez’s claim that the deputies violated the Fourth Amendment by unlawfully entering his 

shack, those claims should be analyzed separately. The Court remanded the case to the Ninth 

Circuit Court of Appeals suggesting that the court “revisit the question whether proximate cause 

permits respondents” (Mendez) “to recover damages for their shooting injuries based on the 

deputies’ failure to secure a warrant at the outset.” 

For the Court’s opinion: https://www.supremecourt.gov/opinions/16pdf/16-369_09m1.pdf

*****

Honeycutt v. United States, 2017 U.S. LEXIS 3556 (U.S. 2017)

Terry Honeycutt managed sales and inventory for a hardware store owned by his brother, Tony 

Honeycutt. After observing several “edgy looking folks” purchasing an iodine-based waterpurification product known as Polar Pure, Terry Honeycutt contacted the local police department

to inquire whether the iodine crystals in the product could be used to manufacture 

methamphetamine. An officer confirmed that individuals were using Polar Pure for this purpose 

and advised Honeycutt to cease selling it if the sales made Honeycutt “uncomfortable.” 

Notwithstanding the officer's advice, the store continued to sell large quantities of Polar Pure. 

Although each bottle of Polar Pure contained enough iodine to purify 500 gallons of water, and 

despite the fact that most people have no legitimate use for the product in large quantities, the 

brothers sold as many as 12 bottles in a single transaction to a single customer. Over a 3-year 

period, the store grossed roughly $400,000 from the sale of more than 20,000 bottles of Polar 

Pure.

Following an investigation, a federal grand jury indicted the Honeycutt brothers for various 

offenses relating to their sale of iodine while knowing or having reason to believe it would be 
10

used to manufacture methamphetamine. In addition, the government sought forfeiture money 

judgments against each brother pursuant to 21 U.S.C. §853(a)(1) in the amount of $269,751.98, 

which represented the hardware store's profits from the sale of Polar Pure. Title 21 U. S. C. 

§853(a)(1), mandates forfeiture of “any proceeds the person obtained, directly or indirectly, as the 

result of” drug distribution.

Tony Honeycutt pleaded guilty and agreed to forfeit $200,000 under §853(a)(1). Terry Honeycutt

went to trial and was convicted of conspiracy to distribute iodine knowing that it would be used 

to manufacture methamphetamine.

Although the government conceded that Terry Honeycutt had no controlling interest in the store 

and did not personally benefit from the sales of Polar Pure, the government asked the district court 

to hold him jointly and severally liable for the profits from the illegal sales of Polar Pure. 

Consequently, the government sought a money judgment of $69,751.98, against Terry Honeycutt, 

the amount of the conspiracy profits outstanding after Tony Honeycutt's forfeiture payment. 

The district court declined to enter a forfeiture judgment, finding that Terry Honeycutt was a 

salaried employee who had not personally received any profits from sale of Polar Pure. The 

government appealed.

The Sixth Circuit Court of Appeals reversed. The court held, as co-conspirators, the brothers were 

“jointly and severally liable for any proceeds of the conspiracy.” As a result, the court concluded 

that each brother bore full responsibility for the entire forfeiture judgment. Terry Honeycutt 

appealed and the United States Supreme Court agreed to hear the case to resolve a disagreement 

among the Courts of Appeals regarding whether joint and several liability applied under 21 U.S.C. 

§853.

The Supreme Court held that forfeiture pursuant to Title 21 U.S.C. §853(a)(1) is limited to 

property the defendant, himself, actually acquired as the result of the crime. In this case, the 

government conceded that Terry Honeycutt had no ownership interest in his brother's store and 

did not personally benefit from the Polar Pure sales. Consequently, because Terry Honeycutt 

never obtained tainted property as a result of the crimes for which he was convicted, he could not 

be ordered to forfeit any money under §853(a)(1).

For the Court’s opinion: https://www.supremecourt.gov/opinions/16pdf/16-142_7l48.pdf

*****

Hernandez v. Mesa, 2017 U.S. LEXIS 4059 (U.S. 2017)

A United States Border Patrol Agent, Jesus Mesa, Jr., standing in the United States, shot and killed 

Sergio Hernandez Guereca, a fifteen-year old Mexican citizen, standing in Mexico. Hernandez’s 

parents (plaintiffs) filed a lawsuit against Agent Mesa under Bivens, alleging that Agent Mesa 

violated their son’s rights under the Fourth and Fifth Amendments. Specifically, the plaintiffs 

alleged that Agent Mesa violated the Fourth Amendment by using excessive force against 

Hernandez, and the Fifth Amendment by depriving Hernandez of due process. 

The Fifth Circuit Court of Appeals, sitting en banc, without deciding the issue, assumed that the 

plaintiffs could sue Agent Mesa under Bivens. However, the court then held that the plaintiffs 

failed to state a claim for a violation of the Fourth Amendment because Hernandez was a Mexican 

citizen who had no “significant voluntary connection to the United States” and “was on Mexican 
11

soil at the time he was shot.” Consequently, the court dismissed the plaintiff’s Fourth Amendment 

excessive force claim.

The court further held that Agent Mesa was entitled to qualified immunity on the plaintiffs’ Fifth 

Amendment due process claim. Again, the court did not decide whether the plaintiffs could sue 

Agent Mesa under Bivens. Instead, the court granted Agent Mesa qualified immunity, finding 

that at the time of the shooting it was not clearly established that shooting across the United States 

border into Mexico and injuring someone with no significant connection to the United States was 

unlawful. 

Significantly, the Fifth Circuit Court of Appeals dismissed the lawsuit without deciding whether 

the plaintiffs had stated a valid constitutional claim under the Fourth or Fifth Amendments and 

whether they could sue Agent Mesa under Bivens. 

The Supreme Court vacated the Fifth Circuit Court of Appeal’s judgment and remanded the case. 

First, the Court found that the Fifth Circuit should determine whether the plaintiffs can sue Agent 

Mesa for the alleged Fourth and Fifth Amendment violations under Bivens. In Ziglar v. Abbasi, 

decided on June 19, 2017 the Supreme Court provided guidance on how the lower courts should 

determine whether a plaintiff can bring a lawsuit under Bivens. The Court suggested that the Fifth 

Circuit might be able to resolve the Bivens questions in this case in light of the guidance provided 

in Abbasi. 

The court further held that the Fifth Circuit Court of Appeals erred in granting Agent Mesa 

qualified immunity on the plaintiffs’ Fifth Amendment claim. The Fifth Circuit held that at the 

time of the shooting, Hernandez was “an alien who had no significant voluntary connection to . . 

. the United States.” However, the Court found that it was undisputed that Hernandez’s nationality 

and the extent of his ties to the United States were unknown to Agent Mesa at the time of the 

shooting. As a result, the Court concluded it was not proper to grant Agent Mesa qualified 

immunity based on those facts.

For the Court’s opinion: https://www.supremecourt.gov/opinions/16pdf/15-118_97bf.pdf

*****
12

Circuit Courts of Appeal

First Circuit

United States v. Almonte-Báez, 2017 U.S. App. LEXIS 8472 (1st Cir. Mass. May 12, 2017)

While investigating a drug trafficking ring, officers learned that two members of the ring planned 

to rob Medina because Medina received bulk drug shipments every week. The officers knew that 

Medina had a prior conviction for a drug offense and that he had sold heroin to a confidential 

informant a few months earlier. In an effort to prevent the robbery, the officers attempted to locate 

Medina. 

While conducting surveillance, officers saw Medina leave an apartment building on Cedar Street

carrying a large trash bag and get into a car. The officers followed Medina and stopped him after 

he committed a traffic violation. During the stop, the agents searched the car and found over 

$370,000 in the trash bag. When questioned, Median could not explain why he was transporting 

such a large amount of cash. 

The officers went back to the building on Cedar Street and confirmed that Medina rented an 

apartment there. The officers went to Medina’s apartment, knocked on the front door, and 

announced their identity. The officers heard the sound of someone inside the apartment running 

toward the back of the apartment. Concerned that the person inside the apartment was trying to 

escape or destroy evidence, the officers decided to enter the apartment. When the officers noticed 

that the front door was sealed shut, they moved to a side door, broke it down, and entered the 

apartment. Inside the apartment, the officers detained Baez, who was attempting to flee out the 

back door. While conducting a protective sweep, the officers saw heroin, packaging material, and 

scales in plain view. Based on these observations, the agents obtained a warrant to search the 

apartment and seized approximately 20 kilograms of heroin. 

The government charged Baez with two drug offenses. Baez filed a motion to suppress the 

evidence seized from the apartment. Baez argued that the officers’ warrantless entry into the 

apartment violated the Fourth Amendment; therefore, the evidence observed in plain view should 

have been suppressed, along with the evidence seized under the search warrant. 

In affirming the district court, the court held that exigent circumstances justified the officers’ 

warrantless entry into the apartment. The exigent circumstances exception to the Fourth 

Amendment’s warrant requirement requires law enforcement officers to:

1. Establish probable cause that contraband or evidence of a crime will be found on 

the premises; and

2. To show that an exigency, such as the imminent loss of evidence, existed.

In this case, the court held that the officers established probable cause that contraband or evidence 

of a crime would be located in the apartment. First, the officers knew that Medina rented the 

apartment and reasonably suspected that he received weekly heroin shipments at that address. 

Second, earlier that day officers saw Medina carrying a large trash bag that contained hundreds 

of thousands of dollars out of the apartment. Third, Medina could not explain to the officers why 

he was transporting such a large quantity of cash. Fourth, the officers knew that Medina had a 
13

prior conviction for a drug offense and that he had sold heroin to a confidential informant a few 

months earlier. 

Next, the court held that the officers established the potential for the destruction of evidence 

located inside the apartment. First, when the officers knocked on the door and identified 

themselves, they heard someone inside the apartment running away from the door. Second, the 

officers saw that the front door was sealed shut. Third, the officers knew that drugs can be flushed 

down a toilet or washed down a drain. Given what the officers knew and what they reasonably 

suspected, the court held that the officers had reason to believe that the person inside the apartment 

was trying to destroy evidence. 

Because the officers’ warrantless entry to the apartment was supported by exigent circumstances, 

the court held that the evidence observed in plain view along with the evidence seized pursuant to 

the search warrant was admissible at trial. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca1/15-2367/15-2367-

2017-05-12.pdf?ts=1494621004

*****

United States v. Diaz-Rosado, 2017 U.S. App. LEXIS 8728 (1st Cir. P.R. May 18, 2017)

Officer Mendez arrested Diaz for carjacking and transported him to the police station where he 

advised Diaz of his Miranda rights verbally and in writing. After Diaz signed the Miranda-rights 

form, he told Officer Mendez that he wanted to tell him something. Officer Mendez told Diaz 

that if he had anything to say that he should write it on the reverse side of the Miranda-rights form. 

Diaz subsequently wrote and signed a statement in which he confessed to the carjacking. 

Prior to trial, Diaz filed a motion to suppress his written confession. Diaz argued that his 

confession was not voluntary because he was under the influence of controlled substances when 

he made it. 

For a suspect’s confession to be found involuntary, there must be some coercive police activity, 

even if only in the form of a custodial interrogation. In this case, Diaz never claimed that Officer 

Mendez subjected him to a custodial interrogation or otherwise coerced him into confessing. 

Instead, Diaz told Officer Mendez that he wanted to tell him something, and Officer Mendez 

simply told Diaz that if he had something to say, to write it down on the back of the Mirandarights form. In addition, the court commented that Diaz cited no case law that requires the 

suppression of a volunteered confession solely because the suspect was under the influence of a 

controlled substance at the time of the confession. Instead of arguing for suppression, the court 

noted that Diaz could have argued to the jury that his confession was not credible because he made 

it while under the influence of controlled substances. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca1/15-1010/15-1010-

2017-05-18.pdf?ts=1495134004

*****
14

United States v. Ramdihall, 2017 U.S. App. LEXIS 8727 (1st Cir. Me. May 18, 2017);

United States v. Hillaire, 857 F.3d 128 (1st Cir. Me. May 18, 2017)

Ramdihall and Hillaire were convicted in federal court in the District of Maine for conspiracy to 

possess and use counterfeit access devices with intent to defraud. The government’s case against 

the defendants was based upon evidence seized from their car during three different traffic stops. 

On appeal, the defendants challenged the district court’s denial of their motion to suppress 

evidence discovered during two of the traffic stops. 

The first stop occurred in Kittery, Maine. At approximately 1:30 a.m., an employee of a 7-Eleven 

told a police officer that he was concerned about people in the 7-Eleven who were buying 

thousands of dollars’ worth of gift cards with other gift cards. The employee identified the car in 

the parking lot that belonged to the people buying the gift cards. The officer approached the car 

and asked the defendants if they knew the woman inside the store. Hillaire told the officer the 

woman was with them, but he denied knowing anything about using gift cards to purchase gift 

cards. Ramdihall also denied knowing anything about gift cards and told the officer they had 

stopped to get gas even though he could not explain why he was not parked at a gas pump. While 

talking to the defendants, the officer saw electronic devices in boxes in the car near Hillaire’s feet. 

When the woman returned to the car, she told the officer that she was using the gift cards to buy 

new gift cards so she could go shopping because the gift cards that she had sometimes did not 

work. When the officer asked about shopping, neither the woman nor the defendants could name 

the stores they had visited. At 1:55 a.m., the officer contacted a detective and called him to the 

scene because he suspected the defendants might be engaged in fraud. Sometime afterward,

Ramdihall gave consent to search the trunk of the car. Inside the trunk, the officers found a large 

number of laptop computers and other electronic devices. The officers asked the three individuals 

to whom the equipment belonged. After no one claimed ownership, the officers seized the items 

and allowed Ramdihall, Hillaire, and the woman to leave at 3:17 a.m. 

Ramdihall argued that the duration of the traffic stop was unreasonably long and became an 

unlawful seizure as it progressed.

The court disagreed. By 1:55 a.m., the officer had established reasonable suspicion to believe the 

defendant was involved in criminal activity. Although the 82-minute seizure was lengthy, the 

court held that Ramdihall could not show that this amount of time was longer than reasonably 

necessary for the officers to investigate the possible illegal activity in which they believed he was 

engaged. 

The court further held that Ramdihall voluntarily consented to the search of the car. A person 

who is lawfully detained may still voluntarily give consent to a search. Here, the court noted that 

the officers did not handcuff Ramdihall nor did they display or draw their weapons, and the 

questioning that occurred was “mild” in nature. 

The second stop occurred during a traffic stop on Interstate 70 in Ohio. A state trooper stopped 

Ramdihall for speeding. Hillaire was a passenger in the vehicle. When the trooper asked to see 

Ramdihall’s license and registration, Ramdihall “surreptitiously” opened the center consoled then 

closed it very quickly, during which time the trooper saw a plastic baggie inside. Ramdihall told 

the trooper that the bag contained tobacco. During this time, the trooper learned that the car was 

a rental that had been leased by an absent third party. The trooper also learned that Ramdihall 

and Hillaire were driving to Columbus, Ohio from New York, but there was no visible luggage in 
15

the car. Finally, Ramdihall told the trooper they planned to stay in Columbus for a few days and 

appeared to be surprised when the trooper told him that the rental agreement expired the next day. 

When the trooper went back to his vehicle to write a speeding ticket, he called a K-9 unit to the 

scene. The trooper finished writing his ticket at 10:40 a.m., and the K-9 unit arrived at 10:46 a.m. 

At 10:49 a.m., the K-9 alerted to the presence of narcotics. The troopers searched the vehicle and 

found a bundle of seventeen credit cards in Hillaire’s name under the spare tire cover in the trunk. 

The troopers swiped the credit cards’ magnetic strips through a card reader. The troopers 

discovered that the information recorded on some of the cards’ strips did not match the numbers 

and expiration dates on the front sides of those cards, indicating that those cards were counterfeit. 

The troopers later found tobacco in the baggie in the center console and a small amount of 

marijuana in the passenger’s side of the car.

First, Ramdihall argued that after the trooper completed the traffic ticket at 10:40 a.m., the trooper 

detained him without reasonable suspicion until 10:46 a.m., to allow the K-9 unit to arrive. 

The court agreed with the district court, which found that the trooper established reasonable 

suspicion to justify the additional six-minute delay after he completed the traffic ticket based on 

the following facts: (1) the trooper’s observation of the plastic baggie in the center console; (2) 

the manner in which Ramdihall opened and closed the center console; (3) the fact that the car was 

a rental and the renter was not present, which the trooper testified was an indicator of drug 

trafficking; (4) the defendants’ “dubious” explanation for why they were driving to Columbus; 

(5) the inconsistency between Ramdihall’s claim that the defendants would be in Columbus for 

several days and the fact that the rental was due to expire the next day; and (6) the absence of 

visible luggage in the car, despite Ramdihall’s claim that the men had been driving for several 

days. 

Next, Ramdihall and Hillaire argued that the warrantless swiping of the credit cards through the 

credit card reader violated the Fourth Amendment. 

Again, the court disagreed. The only evidence presented on the matter in the district court 

established that the magnetic strips on the back of credit cards contain only the card number and 

expiration date, which are routinely given to retailers and are visible on the front of the card. In 

a footnote, the court cited two cases in which the Sixth and Eighth Circuits have held that there is 

no reasonable expectation of privacy in the strips on the back of credit cards.1

For the court’s opinions: http://cases.justia.com/federal/appellate-courts/ca1/15-1841/15-1841-

2017-05-18.pdf?ts=1495134005 and http://cases.justia.com/federal/appellate-courts/ca1/15-

1692/15-1692-2017-05-18.pdf?ts=1495134004. 

*****

 1 See United States v. Bah, (8 INFORMER 15 ) and United States v. DE L’Isle, (7 INFORMER 16).
16

Second Circuit

United States v. Lyle, 856 F.3d 191 (2d Cir. N.Y. May 9, 2017)

Police officers noticed a knife clipped to Lyle’s pants as Lyle exited a car. When the officers

asked Lyle about the knife, Lyle told them that he was legally permitted to carry the knife to 

perform his job. When the officers asked Lyle about the car, Lyle initially denied driving the car, 

but later admitted to the officers that he had been driving it. The officers asked Lyle for 

identification and Lyle produced a driver’s license with the expiration date scratched off. The 

officers confirmed that Lyle’s driver’s license was suspended, that the vehicle Lyle was driving 

was a rental car, and that Lyle was not an authorized driver under the rental agreement. Lyle told 

the officers that his girlfriend had rented the car and given him permission to drive it. The officers 

arrested Lyle for driving with a suspended license and for possessing an illegal knife. The officers 

denied Lyle’s request to allow his girlfriend to come and pick up the car and impounded it. At 

the police station, officers conducted an inventory search and found over one pound of 

methamphetamine and approximately $39,000 in cash in the trunk of the car.

The government charged Lyle with several drug-related offenses.

Lyle filed a motion to suppress the evidence discovered during the inventory search. 

The court held that Lyle had no reasonable expectation of privacy in the rental car; therefore, he 

did not have standing to object to the inventory search. 

First, the court noted that the Second Circuit has not addressed the issue of whether an 

unauthorized driver of a rental car has a reasonable expectation of privacy in the car. The majority 

of the circuits that have considered the issue have concluded that an unauthorized driver of a rental 

car lacks a legitimate expectation of privacy in the car, unless some extraordinary circumstances 

exist.1

 A minority of circuits have held that an unauthorized driver has a reasonable expectation 

of privacy in a rental car if the authorized driver gave him or her permission to use the car.2

Finally, the Sixth Circuit has refused to adopt either position. Instead, the Sixth Circuit examines 

the totality of the circumstances to determine if an unauthorized driver has a reasonable 

expectation of privacy in a rental car.

Next, the court concluded that it did not need to decide the issue of whether Lyle had a reasonable 

expectation of privacy in the car. In addition to being an unauthorized driver, Lyle was also an 

unlicensed driver; therefore, Lyle should not have been driving any car because his license was 

suspended. A rental company that knew this fact would not have given Lyle permission to drive 

its car nor allowed another renter to do so. Under these circumstances, the court held that Lyle 

did not have a reasonable expectation of privacy in the rental car. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca2/15-958/15-958-

2017-05-09.pdf?ts=1494340213

*****

 1 3rd, 4th, 5th, and 10th Circuits.

2 8th and 9th Circuits.
17

United States v. Ulbricht, 2017 U.S. App. LEXIS 9517 (2d Cir. N.Y. May 31, 2017)

A jury convicted Ulbricht a/k/a Dread Pirate Roberts (DPR) of drug trafficking and other crimes 

related to his creation and operation of Silk Road, an online marketplace whose users primarily 

purchased and sold illegal goods and services. On appeal, Ulbricht argued, among other things, 

that evidence introduced against him at trial should have been suppressed because the government 

obtained it in violation of the Fourth Amendment. 

After Ulbricht became a primary suspect in the government’s investigation of Silk Road, the 

government obtained five “pen/trap” orders under Title 18 U.S.C. §§ 3121-3127. The orders 

authorized the government to collect internet protocol (IP) address data for Internet traffic to and 

from Ulbricht’s home wireless router and other devices that regularly connected to Ulbricht’s 

home router. In each order, the government specified that it did not seek to obtain the contents of 

any communications. Instead, the government sought to collect only “dialing, routing, addressing, 

and signaling information” that was similar to data captured by “traditional telephonic pen 

registers and trap and trace devices.” Ulbricht claimed that the pen/trap orders violated the Fourth 

Amendment because he had a reasonable expectation of privacy in the IP address routing 

information that the orders allowed the government to collect.

The court joined the other circuits that have considered this issue and held that collecting IP 

address information, without content, is “constitutionally indistinguishable” from the use of pen 

registers and trap and trace devices to collect telephone dialing information.1 As a result, the court 

held that the pen register and trap and trace orders did not violate the Fourth Amendment.

Ulbricht also argued that the warrants authorizing the search and seizure of his laptop computer 

as well as his Facebook and Google accounts violated the Fourth Amendment’s particularity 

requirement.

To satisfy the Fourth Amendment’s particularity requirement, a warrant must: 

1. Identify the specific offense for which the government has established probable 

cause;

2. Describe the place to be searched; and

3. Specify the items to be seized by their connection or nexus to the crimes for which 

the government has established probable cause.

The court held that the warrants authorizing the government to search the defendant's laptop 

computer as well as his electronic media accounts did not violate the Fourth Amendment’s

particularity requirement. First, the warrants explicitly incorporated by reference an affidavit 

listing the crimes charged, which included narcotics trafficking, computer hacking, money 

laundering, and murder-for-hire offenses. The affidavit also described the workings of Silk Road, 

the role of DPR in operating the site, and included information that established probable cause to 

believe that Ulbricht and DPR were the same person. Second, the warrants described the places 

to be searched. Third, the warrants listed the information to be seized and described how this 

information was connected to the offenses for which Ulbricht was charged. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca2/15-1815/15-1815-

2017-05-31.pdf?ts=1496241010

 1 3rd, 4th, 6th, 8th, and 9th Circuits.
18

*****

Fifth Circuit

United States v. Wallace, 857 F.3d 685 (5th Cir. Tex. May 22, 2017)

A confidential informant (CI) told a police officer that Wallace, a wanted fugitive, was living in 

Austin. The CI also gave the officer Wallace’s cell phone number. After the officer confirmed 

that Wallace had an outstanding arrest warrant, he obtained a Ping Order for Wallace’s cell phone 

under the federal pen-trap statute, Section 2703(d) of the Stored Communications Act, and state 

law. The Ping Order allowed officers to obtain real-time GPS location (prospective cell site data)

of Wallace’s cell phone from AT&T. The officers used this information to locate and arrest

Wallace. When the officers arrested Wallace, they found a pistol and ammunition on the ground 

near him, as well as ammunition in his pocket.

The Government charged Wallace with being a felon in possession of a firearm. 

Wallace filed a motion to suppress the evidence. First, Wallace argued that the Ping Order was 

invalid because the government failed to show that it sought an order to obtain information 

relevant to an “ongoing criminal investigation,” as required by the federal pen-trap statute and the 

Texas Code of Criminal Procedure. Wallace claimed that the phrase “ongoing criminal activity” 

implied “new criminal activity,” and did not cover the arrest warrant for his probation violation. 

The court concluded that even if the Ping Order was issued in violation of the pen-trap statute or 

state law, Wallace was not entitled to suppression of the evidence as neither the pen-trap statute 

nor the Texas Code of Criminal Procedure provides for suppression of evidence as a remedy for 

a violation.

Wallace also argued that the government violated the Fourth Amendment by obtaining his 

prospective cell site data by obtaining a §2703(d) court order based upon “specific articulable 

facts,” instead of a search warrant based upon probable cause. 

The court disagreed. The court found little distinction between historical cell site data and

prospective cell site data. In this case, the court held that the information the government 

requested was, in fact, a stored historical record because it was received by the cell phone service 

provider and stored, if only momentarily, before being forwarded to the officers. The court then 

concluded that like historical cell site information, prospective cell site data is not covered by the 

Fourth Amendment.1

 Consequently, the court concluded that it is constitutional to authorize the 

collection of prospective or historical cell site information under §2703(d) if an application meets 

the lesser “specific and articulable facts” standard, rather than the Fourth Amendment’s probable 

cause standard.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/16-40702/16-40702-

2017-05-22.pdf?ts=1495495848

*****

 1 In U.S. v. Skinner, the Sixth Circuit, the only appellate court to address the issue to date, held that obtaining 

prospective cell site data is not a Fourth Amendment search. The court reasoned that when a person voluntarily uses 

a cell phone, he has no reasonable expectation of privacy in the GPS data and location of his cell phone. 

See: 9 INFORMER 12. 
19

Sixth Circuit

United States v. Dunning, 857 F.3d 342 (6th Cir. Ky. May 18, 2017)

A police officer used a computer program that is part of a law enforcement software package 

known as the Child Protection System (CPS), to search for internet protocol (IP) addresses that 

had recently shared child pornography on a peer-to-peer (P2P) file-sharing network. The CPS 

software locates specified files on public P2P networks and records the IP addresses that have 

downloaded and made available for sharing files containing child pornography. When the 

software finds shared materials on these public networks, it logs the date, time hash values, file 

name, and IP address. After the officer received a CPS report, he obtained a warrant to search 

Dunning’s residence for evidence of child pornography. During the search, officers seized 

numerous electronic devices, which contained thousands of images of child pornography.

The government indicted Dunning for knowingly receiving and possessing child pornography.

Dunning filed a motion to suppress the evidence seized by the officers. Dunning argued that the 

search warrant application was not supported by probable cause because the officer did not have 

the source code for the CPS software, which rendered any information in the CPS report 

unreliable. 

The court disagreed. First, the court reiterated that along with the First Circuit, it has rejected the 

argument that a higher degree of certainty is required when the government uses software to locate 

IP addresses. Second, the officer established that he was trained to use, and had previously used 

software to investigate child pornography crimes. Third, the officer identified and confirmed that 

the files containing child pornography had been shared by Dunning’s IP address on various dates. 

Finally, the court noted that the CPS software merely records information it finds on public P2P 

networks, automating law enforcement’s task of searching those public networks, a task that could 

be done in real-time using publicly available tools. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca6/16-5164/16-5164-

2017-05-18.pdf?ts=1495134052

*****

Seventh Circuit

United States v. Radford, 856 F.3d 1147 (7th Cir. Ill. May 22, 2017)

A uniformed police officer boarded an Amtrak train in Galesburg, Illinois to conduct a voluntary 

interview of Radford, whom he suspected might be transporting illegal drugs. The officer 

knocked on the door to Radford’s roomette, which measured 3 1⁄2 feet by 6 1⁄2 feet, and Radford, 

without having to stand, opened the door. The officer identified himself and told Radford that he 

was doing “security checks” to “check for people transporting illegal narcotics on trains.” The 

officer requested Radford’s identification and train ticket. Radford handed the officer her 

identification and told him that she had an electronic train ticket, which was on her phone. After 

examining Radford’s identification, the officer asked her a series of security questions and then 

asked Radford if she was transporting any illegal narcotics. After Radford replied, “no,” the 

officer asked her if he could search her luggage. Radford told the officer, “I guess so. You’re 

just doing your job.” The officer asked Radford to step out of the roomette so he could search her 
20

luggage and Radford complied. The officer searched Radford’s purse and makeup bag and found 

707 grams of heroin.

The government charged Radford with possession with intent to distribute heroin. Radford filed 

a motion to suppress the evidence, arguing that the officer only discovered the heroin after he had 

unlawfully seized her. Radford claimed that she was intimidated by the officer because the 

roomette was small; the officer was in uniform and armed; the officer was white and she was 

black, and the officer did not tell Radford that she had a right to refuse to answer his questions or 

consent to a search of her bags. 

The court disagreed. First, the officer did not enter the roomette until Radford consented to the 

search of her bags. Second, the officer’s uniform and firearm established his identity as a police 

officer. Third, there cannot be a rule that a police officer is forbidden to speak to a person of 

another race. Finally, because the officer did not threaten to arrest Radford, there was no need to 

tell Radford that she did not have to answer his questions or consent to a search. As a result, the 

court held that the officer did not seize Radford when he questioned her. 

Radford further argued that she did not voluntarily consent to a search of her bags. 

Again, the court disagreed. The court concluded that Radford’s response “I guess so,” to the 

officer’s request to search her bags was the same as answering, “yes.” In addition, the court noted 

that there was no other evidence to indicate that Radford’s response was not voluntary.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca7/16-3768/16-3768-

2017-05-22.pdf?ts=1495467059

*****

Ninth Circuit

S. B. v. County of San Diego, 2017 U.S. App. LEXIS 8452 (9th Cir. Cal. May 12, 2017)

On August 24, 2013, three deputies went to David Brown’s residence after family members 

reported that Brown, who had mental health issues, had been acting aggressively that day, and 

had warned that “someone was gonna get hurt” if he did not get alcohol. The deputies discovered 

that Brown was under the influence of Valium and had been drinking and taking medications all 

day. When Deputies Moses and Vories entered the house, they did not see Brown, but heard 

cabinets and drawers in the kitchen area opening and closing. After announcing their presence, 

Deputies Moses and Vories entered the kitchen from different sides of the wall that separated the 

kitchen and the living room. At this point, the deputies saw Brown, who had kitchen knives 

sticking out of his pockets. Deputy Moses pointed his gun at Brown and ordered him to raise his 

hands. Although Brown appeared to be under the influence, he eventually raised his hands to his 

shoulders, and complied when Deputy Moses ordered him to drop to his knees.

While Deputy Moses covered Brown at gunpoint, Deputy Vories and Deputy Billieux, who had

now entered the kitchen, moved towards Brown to handcuff him. According to Deputy Moses, 

as soon as this occurred, Brown looked at Deputy Vories, lowered his arm, and told Deputy Vories 

to get away from him. Brown reached back, produced a knife with a six-to-eight-inch blade, 

moved as if he were going to get up, and pointed the knife at Deputy Vories. Believing that 

Deputy Vories was in imminent danger, Deputy Moses shot Brown three or four times, less than 

one second after Brown grabbed the knife, killing him.
21

The plaintiffs sued Deputy Moses and the County of San Diego claiming that Deputy Moses used 

excessive force in violation of the Fourth Amendment when he shot and killed Brown. 

Deputy Moses filed a motion for summary judgment based on qualified immunity, which the 

district court denied after a hearing, which included testimony from Deputies Moses, Vories, and 

Billieux. Specifically, the district court found three material factual inconsistencies in the 

deputies’ testimony, which it concluded needed to be resolved by a jury. First, whether Brown 

was on his knees or attempting to stand when he grabbed the knife and was shot. Second, whether 

Deputy Moses could see the other deputies clearly when he fired his weapon. Finally, whether 

Deputy Vories was three to five feet or six to eight feet from Brown when Brown grabbed the 

knife. Depending on how a jury resolved these inconsistencies, the district court held that a 

reasonable juror could conclude that Deputy Moses used excessive force when he shot Brown. 

Deputy Moses appealed. 

The Ninth Circuit Court of Appeals reversed the district court, holding that Deputy Moses was 

entitled to qualified immunity. To determine whether an officer is entitled to qualified immunity, 

the court considers: (1) whether there has been a violation of a constitutional right; and (2) 

whether that right was clearly established at the time of the officer’s alleged misconduct. 

First, the court agreed with the district court that a reasonable juror could find a Fourth 

Amendment violation based on the inconsistencies from the deputies’ testimony. 

However, the court disagreed with the district court and held that it was not clearly established on 

August 24, 2013 that using deadly force in this situation, even viewed in the light most favorable 

to the plaintiffs, would constitute excessive force under the Fourth Amendment. The court noted 

that the general use of force principles outlined in Graham v. Connor and Tennessee v. Garner do 

not by themselves create clearly established law outside an obvious case. Instead, a court must 

“identify a case where an officer acting under similar circumstances as [Moses] was held to have 

violated the Fourth Amendment.” Here the court could not find such a case, and this case did not 

involve an “obvious” or “run-of-the-mill” violation of the Fourth Amendment under Graham and 

Garner. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca9/15-56848/15-56848-

2017-05-12.pdf?ts=1494608643

*****

Tenth Circuit

United States v. Morgan, 855 F.3d 1122 (10th Cir. Okla. May 2, 2017)

At approximately 10:30 p.m., a police officer stopped a man for riding a bicycle against traffic 

and not using a bicycle headlight. As the officer approached the man, he saw the man move his 

hands towards his pants pockets. The officer ordered the man to keep his hands out of his pockets 

and asked him for identification. The man told the officer that he had done nothing wrong and 

had no identification. The man eventually told the officer that his name was Stanford Wallace, 

and gave the officer a birthdate and social security number. During this time, the officer noticed 

that as the man sat on his bicycle he kept his head and body straight forward, not making eye 

contact. 
22

After the officer ran the man’s information through police databases, he received back a “no 

result” response. A “no result” response means that no match exists for the information entered, 

which caused the officer to believe that the man had lied about his identity. The officer called for 

backup, reapproached the man, and asked him to step off his bicycle. The man refused to get off 

his bicycle and after backup officers arrived, he refused a second request to get off the bicycle, 

reaching for his front pants pocket instead. Believing that the man might be grabbing for a 

concealed weapon, the officers tackled him to the ground. Once on the ground, the man concealed 

his arms under his stomach, preventing the officers from handcuffing him. After the man refused 

to show his hands, one of the officers deployed his taser against him. The officers then handcuffed 

and frisked the man, finding a loaded handgun in his front pants pocket. The officers transported 

the man to the station where they identified him by his fingerprints as Philip Morgan. 

The government charged Morgan with being a felon in possession of a firearm and ammunition.

Morgan filed a motion to suppress the firearm, arguing the officer exceeded the scope of the traffic 

stop by asking him for identification, then ordering him off his bicycle, and finally by taking him 

to the ground and deploying his taser against him. 

The court disagreed. First, there was no dispute that the officer lawfully stopped Morgan after he 

saw Morgan violate the traffic laws by riding his bicycle against traffic and failing to use a 

headlight in the dark. 

Second, as part of the lawful stop, the court held that the officer was authorized to request 

Morgan’s identification even though Morgan was not required to have a driver’s license to ride 

his bicycle. In addition, when Morgan gave the officer a false name, he delayed the officer’s 

ability to learn his true identity. As a result, the officer could not immediately write a citation and 

complete the stop. The court concluded that Morgan was responsible for extending the duration 

of the stop, not the officer. 

Third, the court held that the officer did not violate the Fourth Amendment by ordering Morgan 

to get off his bicycle. The court saw little difference between the officer ordering Morgan off his 

bicycle and when an officer orders a driver to step out of an automobile during a traffic stop, 

which is allowed under the Fourth Amendment.

Fourth, the court held that after Morgan disobeyed earlier commands not to reach inside his pants 

pocket, it was reasonable for the officers to tackle him to the ground to protect their own safety. 

Finally, once on the ground, the court found that the officers were justified in deploying a taser 

against Morgan after he refused their commands to remove his hand from beneath himself.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca10/16-5015/16-5015-

2017-05-02.pdf?ts=1493740858

***** 

Eleventh Circuit

Jones v. Fransen, 2017 U.S. App. LEXIS 8816 (11th Cir. Ga. May 19, 2017)

Jones’ ex-girlfriend called 911 and reported that Jones had broken into her apartment and was 

carrying a television to his car, which was parked at her apartment complex. Officers Towler and 

Ross responded as well as Officer Fransen and his police-canine, Draco. Once on scene, the 
23

officers believed that Jones had fled down a ravine into an area with heavy vegetation. Officer 

Fransen issued a “canine warning” and after receiving no response, entered the ravine with Draco 

to find Jones. Officers Ross and Towler provided backup. At some point Officer Fransen released 

Draco who located Jones. When Officer Fransen reached Jones, Draco was attached to Jones’ 

arm. According to Jones, Draco attacked him while he was lying motionless on the ground, and 

Draco refused to release his bite when Officer Fransen tried to pull him from Jones’ arm. Jones 

also claimed the other officers did nothing to protect him from Draco’s attack. As a result of this 

incident, Jones claimed that he suffered significant injury to his arm.

Jones sued Officers Fransen, Ross, Towler, Canine Draco, Gwinett County, and the Gwinett 

County Sheriff in his official and personal capacities. 

First, Jones sued Officer Fransen under 42 U.S.C. § 1983 alleging an excessive use of force, in 

violation of the Fourth Amendment, and Officers Ross and Towler under § 1983 for failing to 

intervene and stop the canine attack.

The court held that the officers were entitled to qualified immunity. Without deciding whether 

the officers violated Jones’ constitutional rights, the court held that at the time of the incident it 

was not clearly established that the officers’ conduct violated the Fourth Amendment. Although 

there is case law in the Eleventh Circuit concerning police-canine bites, the court found that none 

of the cases involved a factual scenario that was similar enough to this case to have put the officers 

on notice that their actions violated a clearly established right. 

In addition, the court held that the officers’ actions in this case were not so obviously 

unconstitutional that it would have been readily apparent that their conduct was unlawful, even in 

the absence of case law. When Jones fled, he led the officers into physically challenging terrain 

and he did not respond to Officer Fransen’s K-9 warnings. Consequently, a reasonable officer 

faced with this situation could have been concerned, at the time Draco was released, about entering 

the heavy brush to apprehend Jones and being met by a potential ambush. 

Second, Jones sued Gwinnett County and the Gwinnett County Sheriff, in his official capacity, 

for negligence. The court held that the defendants were entitled to sovereign immunity, and 

dismissed this claim.

Third, Jones sued Officers Fransen, Towler, Ross and the sheriff, in their personal capacities, for 

negligence. The court held that the defendants were entitled to official immunity as provided in 

the Georgia constitution because Jones set forth no facts suggesting that the officers “acted 

maliciously or with an actual intent to cause harm.” As a result, the court dismissed this claim.

Finally, Jones sued “Officer K-9 Draco” for negligence in his individual capacity. The court 

dismissed this claim because under Georgia law only a “person” may be held liable for negligence, 

and as defined in the negligence statute, the word “person” does not include dogs.1

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca11/16-10715/16-

10715-2017-05-19.pdf?ts=1495222278

*****

 1 Similarly, the Seventh Circuit rejected the idea that a dog could be sued under 42 U.S.C. § 1983.