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November 2019

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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 

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This edition of The Informer may be cited as 11 INFORMER 19.
2

The Informer – November 2019

Case Summaries

Circuit Courts of Appeals

Seventh Circuit

United States v. Holly: Whether the defendant’s encounter with a police officer was

voluntary or rather constituted a seizure under the Fourth Amendment............................................4

United States v. Haldorson: Whether officers had probable cause to arrest the defendant

and whether the warrantless search of the defendant’s bedroom was justified by exigent

circumstances...................................................................................................................................5

Ninth Circuit

United States v. Norris: Whether the defendant had a reasonable expectation of privacy

in a wireless signal transmitted outside his residence, used to gain access to the internet

through the unauthorized use of his neighbor’s password-protected router......................................6

Tenth Circuit

Lech v. Jackson: Whether the plaintiffs were entitled to compensation from the city

under the Fifth Amendment’s Takings Clause after police officers destroyed the plaintiffs’

house during a 19-hour standoff with an armed suspect....................................................................8

Eleventh Circuit

United States v. Bishop: Whether a police officer established reasonable suspicion to

conduct a Terry frisk of a passenger of a vehicle during a traffic stop..........................................10

United States v. Ochoa: Whether the defendant’s statements were admissible under the

public safety exception to Miranda and whether the defendant validly invoked his right

to counsel.......................................................................................................................................11

United States v. Ross: Whether the officers’ initial warrantless entry into the defendant’s 

motel room was reasonable and whether the defendant retained a reasonable expectation of 

privacy in the room after checkout time........................................................................................12

♦

FLETC Office of Chief Counsel Podcast Series

Fundamentals of the Fourth Amendment – A 15-part podcast series that 

covers the following Fourth Amendment topics: 

Click Here: https://leolaw.podbean.com/

A Flash History of the Fourth Amendment

What is a Fourth Amendment Search?

What is a Fourth Amendment Seizure?

Fourth Amendment Levels of Suspicion

Stops and Arrests

Plain View Seizures

Mobile Conveyance (Part 1 and Part 2)

Exigent Circumstances

Frisks

Searches Incident to Arrest (SIA)

Consent (Part 1 and Part 2)

Inventories

Inspection Authorities
3

FLETC Informer Webinar Schedule

1. Warrantless Vehicle Searches and the Fourth Amendment (1-hour)

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

Enforcement Training Centers, Artesia, New Mexico. 

When may law enforcement officers search a vehicle without a warrant in accordance with 

the Fourth Amendment? Where can they look and what are they authorized to look for? 

This webinar will examine each of these critical questions with respect to Terry frisks, 

searches incident to arrest, warrantless vehicle searches according to Carroll v. United 

States, consent searches, and inventory searches of vehicles. 

Wednesday, December 4, 2019: 3 p.m. Eastern / 2 p.m. Central / 1 p.m. Mountain / 

12 p.m. Pacific 

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

♦

2. Right of Free Speech for Government Employees (1-hour)

Presented by Henry W. McGowen, Attorney-Advisor/Senior Instructor, Federal Law 

Enforcement Training Centers, Artesia, New Mexico. 

We all know that the U.S. Constitution guarantees the right of free speech. But what about 

those who work for the government? Do they enjoy the same rights as everyone else? In 

particular, what about law enforcement officers – are there valid limits to what an officer 

can say on duty? What about off duty? And what about comments, photographs, videos 

on social media? Are law enforcement officers free to criticize the government, some parts 

of the government, and/or their employer? Tune in to this webinar as we look at these 

important First Amendment issues for law enforcement.

Tuesday, December 17, 2019: 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

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4

CASE SUMMARIES

Circuit Courts of Appeal

Seventh Circuit

United States v. Holly, 940 F.3d 995 (7th Cir. 2019)

Two uniformed Chicago Police Department (CPD) officers were patrolling a housing complex on 

the city’s south side when the officers saw David Holly walking on a sidewalk toward their police 

car. As Holly neared the car, he formed a surprised and anxious look and then turned sharply and 

walked in another direction. The officers lost sight of Holly after he went behind a building. At 

this point, one of the officers exited the patrol car and jogged after Holly. The officer located 

Holly standing outside an apartment door ringing the doorbell. The officer identified himself as 

police and asked Holly, “Do you have drugs or a gun?” In response, Holly told the officer that he 

had a gun in his pocket. The officer seized the gun and arrested Holly. 

The government indicted Holly for being a felon in possession of a firearm. Holly filed a motion 

to suppress the gun. Holly claimed that he never saw the police car before being stopped and 

handcuffed. Holly also claimed that when the officer approached him outside the apartment, the 

officer had his gun drawn and ordered Holly to raise his hands. As a result, Holly argued that 

when the officer approached him outside the apartment, the officer unlawfully seized him under 

the Fourth Amendment. 

The court disagreed. First, the court credited the officers’ testimony over Holly’s testimony 

concerning the encounter. The court found that Holly’s testimony was implausible noting that 

Holly was a four-time convicted felon, had an incentive to lie to escape punishment, and in the 

course of the proceedings, offered three inconsistent explanations for why he had a gun. 

Next, the court held that the officer’s initial encounter with Holly was consensual. The court 

noted that not every police encounter implicates the Fourth Amendment. A Fourth Amendment 

seizure occurs when a reasonable person would not feel free to leave. On the other hand, a 

consensual encounter takes place if a reasonable person would feel free to ignore the police and 

go about his business. In addition, the court recognized that “it is well established that a seizure 

does not occur merely because a police officer approaches an individual and asks him or her 

questions.” 

In this case, the court held that Holly’s encounter with the police was voluntary because the 

officer: was alone when he jogged after Holly; nor did he draw his firearm, touch Holly, or order 

Holly to put his hands up. Instead, the officer promptly asked Holly if he had drugs or a gun and 

Holly immediately answered him. Given these circumstances, the court held that a reasonable 

person in Holly’s position would have felt free to disregard the officer and leave.

Holly also argued that the indictment should have been dismissed, arguing that an officer’s failure 

to preserve video footage of his arrest from a nearby Chicago Housing Authority (CHA) camera 

violated his right to due process. 
5

Again, the court disagreed. After Holly’s arrest, an officer following CPD policy left a voicemail 

requesting the video from the CHA. However, the officer did not know that the individual he 

contacted was on military leave and the video was not saved. While the officer’s failure to followup with the CHA may have been negligent, the court held that it did not rise to the level of a 

violation of Holly’s right to due process. The court concluded by commenting “that CPD would 

do well to revisit its preservation protocol – all to protect the interests of CPD itself, citizens, and 

those like Holly who find themselves charged with crime.”

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca7/19-1216/19-1216-

2019-10-18.pdf?ts=1571414416

*****

United States v. Haldorson, 941 F.3d 284 (7th Cir. 2019) 

On June 1, 2015, a confidential informant (CI) made a controlled purchase of cocaine from 

Michael Haldorson in the parking lot of a shopping center. After the purchase, a police 

surveillance team followed Haldorson’s vehicle for a short distance but lost him when they were 

stopped at a red light. Regardless, the surveillance team had not planned to arrest Haldorson that 

day. The CI attempted to set up another controlled buy on June 2nd and June 5th but was 

unsuccessful.

One June 23, 2015, the CI contacted Haldorson and arranged to purchase drugs from him again. 

This time the officers planned to stop Haldorson on the way to the deal and arrest him for the sale 

of the cocaine to the CI on June 1. When officers spotted Haldorson’s vehicle, they conducted a 

traffic stop, arrested Haldorson, and searched the vehicle. Inside Haldorson’s vehicle, officers 

found a variety of illegal drugs, fireworks, and several pipe bombs. 

After finding the pipe bombs, the officers were concerned that Haldorson might have additional 

explosive materials at his residence. When officers asked Haldorson for his current address, he 

initially stated that he was homeless but eventually told the officers that he lived with his parents. 

Officers were skeptical of Haldorson’s claim, as their investigation had revealed that Haldorson 

lived in a different area of town with a woman whom he was dating. When asked if there were 

any additional explosives at his parents’ home, Haldorson responded: “there could be.”

The officers went to Haldorson’s parents’ home at approximately 2:45 a.m. on June 24 2015. 

Haldorson’s parents gave the officers consent to search Haldorson’s room, which revealed drugrelated items but no explosives. Haldorson’s father told the officers that his son did not live in 

the residence but that he lived in a downtown apartment. 

At approximately 4:00 a.m., officers located Haldorson’s apartment and knocked on the door. A 

woman answered the door and told the officers that Haldorson lived there. The woman gave the 

officers consent to search the common areas of the apartment. While inside, the officers 

discovered that Haldorson had a separate bedroom, which was locked. The officers used 

Haldorson’s keys, taken during his arrest, opened his bedroom door, and searched for explosives. 

Inside Haldorson’s bedroom, the officers seized additional explosives. Afterward, the officers 

obtained a warrant to search the apartment and seized drug-related items and two laptop 

computers. 

After Haldorson was indicted on a variety of federal charges, he filed a motion to suppress the 

drugs and explosives seized during the search of his vehicle after his arrest. Haldorson argued 
6

that the information from the controlled buy on June 1, 2015 was too stale on June 23, 2015 to 

support probable cause for an arrest. 

The court disagreed. First, the court noted, it is “well-established” that there is no requirement 

that officers arrest a suspect at “the moment probable cause is established.” Next, the court found 

that the passage of time does not automatically dissipate the probable cause for an arrest, a position 

supported in cases decided by the First, Fifth, Sixth, and Tenth Circuit Courts of Appeal. The 

court added that the concept of staleness is generally more relevant in applications for search 

warrants because, unlike arrests, the focus is on whether evidence of a crime will be found in a 

particular place and often involve a search for perishable or transportable objects, like drugs or 

guns. The court recognized there could be circumstances in which the subsequent investigation 

uncovers new facts or evidence that disproves or discredits the original information that 

established probable cause. However, in this case, the court held that the information provided 

by the CI and the June 1st controlled buy provided probable cause to arrest Haldorson on June 23, 

2015. 

Haldorson also claimed that the warrantless entry and search of his bedroom in the apartment he 

shared with his girlfriend violated the Fourth Amendment. 

Again, the court disagreed. Under the exigent circumstances exception, “a warrantless entry into 

a dwelling may be lawful when there a pressing need for the police to enter but not time for them 

to secure a warrant.” First, explosive materials, including pipe bombs, were found in Haldorson’s 

car. Second, state and federal explosives experts testified that pipe bombs are very volatile and 

dangerous, especially “homemade” pipe bombs. Third, Haldorson admitted that more explosives 

could be at his residence and he falsely told the officers that he lived at his parents’ house, and a 

search of that house uncovered no explosives. Fourth, Haldorson’s actual residence was at a 

apartment, which was surrounded by residential neighbors and businesses. Finally, because of the 

significant concern for public safety and at the hour at which the officers were urgently 

proceeding, around 4:00 a.m., there was no time to obtain a warrant. Based on these facts, the 

court held that the warrantless search of Haldorson’s bedroom fell within the exigent 

circumstances exception to the Fourth Amendment’s warrant requirement. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca7/18-2279/18-2279-

2019-10-23.pdf?ts=1571844640

*****

Ninth Circuit

United States v. Norris, 938 F.3d 1114 (9th Cir. 2019)

A special agent initiated an investigation into the possession and distribution of child pornography 

through a peer-to-peer file-sharing network (P2P network). On two separated dates, the agent

downloaded child pornography from username “boysforboys1.” After the second download, the 

agent determined the suspect used an Internet Protocol Address (IP address) of 64.160.118.55

registered to AT&T Internet Services (AT&T). In response to a subpoena, AT&T identified the 

subscriber associated with the IP address as residing in Apartment 242. 

The agent obtained a search warrant for Apartment 242. Upon execution of the warrant, agents

discovered that the password-protected wireless internet router (router) located in Apartment 242 

used an IP address of 69.105.80.128 rather than the 64.160.118.55 IP address previously used by
7

"boyforboys1." The search revealed that no devices in Apartment 242 contained any evidence of 

child pornography or of the P2P file-sharing program used by "boyforboys1."

The agents identified all the devices that had recently connected to the router located in Apartment 

242 and discovered two unknown devices identified as “bootycop” and “CK.” The agents were 

able to identify the media access control address (MAC) address for the “CK” device. Because 

the apartment residents could not identify either unknown device, the agents suspected that “CK” 

and “bootycop” accessed the router in Apartment 242 without the owners’ permission. 

The agents attempted to identify the location of the “CK” device using “Moocherhunter” software. 

Moocherhunter is an open-source wireless tracking software program designed to identify 

computers trespassing on wireless computer networks. Moocherhunter enables the detection of 

wireless traffic without directly accessing any device. With Moocherhunter in passive mode and 

using a wireless antenna, agents captured signal strength readings to locate the MAC address 

associated with the “CK” device. Specifically, Moocherhunter was installed on a laptop computer 

and connected to a directional antenna. The Moocherhunter program was provided the MAC 

address from the “CK” device and approximately seventeen location readings were taken in the 

vicinity of Apartment 242. The readings were significantly higher when the antennae was aimed 

in the direction of Apartment 243. As a result, the agents concluded that the “CK” device was 

most likely located in Apartment 243. After identifying Apartment 243 as the target apartment, 

the agents waited for "boyforboys1" to log on to the P2P network.

A week later, "boyforboys1" logged onto the P2P network and distributed child pornography from 

the 69.105.80.128 IP address linked to the wireless router in Apartment 242. The agents

downloaded child pornography files from "boyforboys1," and went to Apartment 242 to confirm 

whether "boyforboys1" utilized the "CK" or "bootycop" devices to distribute the child 

pornography. With the consent of a resident of Apartment 242, the agents determined that the 

"CK" and "bootycop" devices were currently logged into the wireless router belonging to the 

residents of Apartment 242.

After a short time, "CK" disconnected from the router, leaving only "bootycop" connected to the 

router. Again using the Moocherhunter software and a wireless antenna, the agents measured the 

signal strength of MAC address associated with “bootycop,” taking readings from Apartment 242 

and from a nearby vacant apartment, with permission from the apartment manager. The agents

concluded that: (1) "CK" and "bootycop" exhibited similar signal strengths; (2) "CK" and 

"bootycop" were associated with each other; (3) Apartment 243 housed both devices; and (4) both 

had gained unauthorized access to the password-protected router in Apartment 242.

Based on the Moocherhunter data, the agents obtained a search warrant for Apartment 243. When

the agents executed the search warrant, they discovered evidence of child pornography.

The government charged Alexander Norris with two child pornography-related offenses. Norris 

filed a motion to suppress the evidence seized from his apartment. Norris claimed that the use of 

the Moocherhunter software constituted a warrantless search of his apartment in violation of the 

Fourth Amendment. 

The district court denied Norris’ motion. First, the court held that no Fourth Amendment search 

occurred because the agents did not intrude upon Norris’ property. Second, the court held that 

Norris lacked a subjective, reasonable expectation of privacy because he connected to a third 

party’s router without authorization. Consequently, the court concluded that Norris assumed the 

risk that his signal would reveal the MAC addresses from his devices to law enforcement officers. 
8

The district court also ruled that society was not prepared to recognize an expectation of privacy 

for an individual who gains access to a third-party’s password protected router. Norris appealed.

The Ninth Circuit Court of Appeals agreed with the district court and found that Norris lacked 

any subjective expectation of privacy in the emission of the signal strength of the MAC addresses 

emanating from outside his apartment. Although physically located in his apartment, Norris'

wireless signal reached outside his residence to connect to the wireless router in Apartment 242. 

The agents captured Norris' wireless signal strength outside Norris' residence to determine the 

source of the signal. The court noted that the agents’ actions in this case may be likened to locating 

the source of loud music by standing and listening in the common area of an apartment complex. 

Although the music is produced within the apartment, the sound carries outside the apartment. 

Just as no physical intrusion inside the apartment would be required to determine the source of 

the loud music, no physical intrusion into Norris' residence was required to determine the strength 

of the wireless signal emanating from the devices in his apartment.

The court added that even if Norris had a subjective expectation of privacy in the wireless signal 

transmitted outside his apartment, it felt that society is not prepared to recognize an expectation 

of privacy as reasonable when an individual gains access to the internet through the unauthorized 

use of a third party’s password-protected router located outside his residence. Consequently, the 

court concluded that no Fourth Amendment search occurred in this case. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca9/17-10354/17-

10354-2019-11-04.pdf?ts=1572890497

*****

Tenth Circuit

Lech v. Jackson, 2019 U.S. App. LEXIS 32393 (10th Cir. CO Oct. 29, 2019) 

On June 3, 2015, officers from the City of Greenwood Village police department responded to a 

burglar alarm at Leo and Alfonisa Lech’s home. At the time, the Lechs’ son, John, lived at the 

home with his girlfriend and their nine-year old son. Upon arrival, officers discovered that Robert 

Seacat, an armed criminal suspect, who was attempting to evade capture by the Aurora Police 

Department, was inside. 

To prevent Seacat from escaping, officers positioned their vehicles in the driveway of the Lechs’

home. Seacat then shot at the officers from inside the garage, striking one of the police vehicles. 

For approximately five hours, negotiators attempted to convince Seacat to surrender. After these 

efforts to negotiate proved unsuccessful, officers employed increasingly aggressive tactics, i.e.,

they fired several rounds of gas munition into the home, breached the home’s doors with a BearCat 

armored vehicle so they could send in a robot to deliver a “throw phone” to Seacat, and used 

explosives to create sight lines and points of entry to the home. The officers also sent in a tactical 

team to apprehend Seacat. However, Seacat fired at the officers while they were inside, requiring 

them to leave. The officers eventually used the BearCat to open multiple holes in the home and 

again deployed the tactical team to apprehend Seacat. During their second entry, the officers 

disarmed Seacat and arrested him. 

As a result of this 19-hour standoff, the Lechs’ home was rendered uninhabitable. While the City 

offered to help with temporary living expenses while the Lechs demolished and rebuilt their home, 

it otherwise denied liability for the incident and declined to provide further compensation. 
9

The Lechs sued the City of Greenwood Village and several of its police officers claiming 

violations of the Takings Clause of the Fifth Amendment of the United States Constitution and 

Article II, Section 15 of the Colorado Constitution. In support of their claims, the Lechs argued 

that the defendants violated their constitutional rights by first damaging their home during their 

attempt to apprehend Seacat and afterward by refusing to compensate the Lechs for cost of 

reconstruction.

The district court dismissed the case against the defendants. First, the court held that when a state 

acts pursuant to its police power, rather than the power of eminent domain, under which property 

may not be taken for public use without compensation, its actions do not constitute a taking. Next, 

the court held that because the officers destroyed the Lechs’ home while attempting to enforce the 

state’s criminal laws, they acted pursuant to the state’s police power. Consequently, the court 

held that any damage to the Lechs’ home fell outside the scope of the Takings Clause. 

The Lechs appealed. First, the Lechs argued that any physical appropriation of private property 

by the government, whether committed pursuant to the power of eminent domain or the police 

power, gives rise to a per se taking and therefore requires compensation under the Takings Clause. 

The Tenth Circuit Court of Appeals disagreed. A state exercises is authority under it police power 

when it “controls the use of property by the owner for the public good,” while it exercises its 

power of eminent domain when it “takes property for public use.” The court found that three 

federal circuit courts of appeal and the Court of Federal Claims have distinguished between the 

state’s police power and the power of eminent domain in cases involving the government’s direct 

physical interference with private property and allegations of Takings Clause violations. 

In addition, the court cited a case decided in 1997 in which it held that a plaintiff failed to establish 

a Takings Clause violation where federal agents physically damaged his property by tearing out 

doorjambs and removing pieces of interior trim from his home while executing a search warrant. 

Consequently, the court held that when the state acts pursuant to its police power, rather than the 

power of eminent domain, its actions do not constitute a taking for purposes of the Takings Clause. 

Next, the Lechs argued that even if the defendant’s destruction of their home was not a per se 

taking under the Takings Clause, the officer’s actions that caused the destruction of their home 

did not fall within the scope of the state’s police powers. 

Again, the court disagreed. The court cited a case decided by the Court of Federal Claims in 2017, 

which held that entering a person’s property to effect an arrest was “perhaps the most traditional 

function of the police power.” In that case, the court concluded that the plaintiffs did not suffer “a 

taking of their property for public use” when the United States Marshals Service “used gunfire, 

smoke bombs, tear gas, a battering ram, and a robot to gain entry to the plaintiff’s rental property”

to apprehend a fugitive. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca10/18-1051/18-1051-

2019-10-29.pdf?ts=1572364865

*****
10

Eleventh Circuit

United States v. Bishop, 940 F.3d 1242 (11th Cir. 2019) 

Deputy Floyd was in a marked patrol car when he saw a pickup truck disregard a stop sign while 

exiting an apartment complex. Deputy Floyd began following the truck and saw it disregard 

another stop sign. Deputy Floyd stopped the truck and as he approached, he saw Antonio Davis

in the driver’s seat and Michael Bishop in the passenger seat. Earlier that day, Deputy Floyd had 

stopped a woman that he subsequently arrested for possession of heroin. The woman told Deputy 

Floyd that she was going to Michael Bishop’s house. Deputy Floyd called for a K-9 unit to come 

to the scene because of the woman’s earlier statement to him and because he knew Davis had been 

involved with illegal drugs in the past. 

Deputy Miller, a K-9 handler, and Deputy Dunsford arrived to assist Deputy Floyd. Deputy 

Dunsford had worked as a corrections officer at the county jail and recognized Davis and Bishop 

as former inmates.

Deputy Dunsford approached the driver’s side of the truck and asked Davis to exit the vehicle. 

Davis complied without issue. As Deputy Dunsford was performing a Terry frisk of Davis, 

Bishop, still seated in the truck, told him that he had no right ask Davis to get out of the truck. At 

this point, Bishop was agitated, fidgeting around in his seat, and acting defensively. When Deputy 

Dunsford asked Bishop to exit the truck, Bishop adamantly refused and stated that Deputy 

Dunsford had no right to ask him to get out of the truck. After multiple requests to exit the truck, 

Bishop complied. Based on Bishop’s general behavior and reluctance to exit the truck, Deputy 

Dunsford was concerned that Bishop might be hiding a firearm or a weapon on his person, so he 

decided to conduct a Terry frisk. While conducting a pat-down of Bishop’s outer clothing, Deputy 

Dunsford felt a firearm magazine in Bishop’s left pocket, which he removed. Deputy Dunsford 

then found a handgun in Bishop’s left pant leg, which he also removed. Afterward, it was 

determined that the firearm was a stolen semi-automatic handgun with a high-capacity magazine. 

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

motion to suppress the firearm. While conceding the traffic stop was lawful, Bishop argued that 

the Terry frisk was unlawful because Deputy Dunsford lacked reasonable suspicion to believe that 

he was armed and dangerous. 

The court disagreed. To determine whether a suspicion is reasonable, the court must evaluate the 

totality of the circumstances surrounding the stop, including the collective knowledge of all 

officers involved in the stop. In addition, the court noted that reasonable suspicion may exist 

“even if each fact alone is susceptible of innocent explanation.” In their collective knowledge, 

the deputies knew that (1) Bishop had been an inmate at the county jail; (2) a woman who was 

arrested with heroin on her person earlier that day told Deputy Floyd that she was heading to 

Bishop’s house; (3) Bishop was argumentative and noncompliant, adamantly refusing to comply 

with lawful orders to exit the truck; and (4) Bishop was agitated, fidgeting, moving around in his 

seat, and very defensive. Based on the totality of the circumstances, the court held that it was 

reasonable for Deputy Dunsford to believe that his safety or the safety of the other deputies was 

in danger; therefore, he was justified in conducting a Terry frisk of Bishop. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca11/17-15473/17-

15473-2019-10-11.pdf?ts=1570804228

*****
11

United States v. Ochoa, 28 Fla. L. Weekly Fed. C 508 (11th Cir. 2019)

Police officers obtained a warrant to arrest Daniel Ochoa for the robbery of an armored Brinks 

truck in which Ochoa shot one of the truck’s crewmembers and stole a bag containing $30,000. 

A SWAT team was dispatched to arrest Ochoa at his residence. Upon arrival, the SWAT team 

leader, FBI Special Agent Geoffrey Swinerton, ordered everyone out of the residence. Five 

people, including Ochoa, exited the residence. Ochoa was arrested; however, before allowing the 

SWAT team to conduct a protective sweep, Agent Swinerton asked Ochoa if there were any 

dangerous items inside the residence. Ochoa told Agent Swinerton that there was a handgun in a 

drawer in one of the bedrooms. Agent Swinerton then gave the SWAT team permission to conduct 

a protective sweep of the residence; however, the SWAT team did not search for, or retrieve, the

handgun. 

Following his arrest, Ochoa was transported to the FBI field office where Task Force Officer 

Starkey interviewed him. Officer Starkey provided Ochoa with an “Advice of Rights” form, 

which included Ochoa’s Miranda rights. Officer Starkey reviewed each statement on the form 

with Ochoa, and Ochoa answered “Yes” when asked whether he understood each right. 

The final portion of the form was entitled “WAIVER OF RIGHTS” and stated: “I have read this 

statement of my rights and I understand what my rights are. At this time, I am willing to answer 

questions without a lawyer present.” After Officer Starkey read this provision, Ochoa stated that 

he did not “really agree with that one.” Ochoa expressed concern that if he said “yes” that it meant 

he was “willing to cooperate.” At this point, Officer Starkey attempted to further explain the 

Waiver of Rights provision by telling Ochoa that he had the right to have an attorney present and 

if that Ochoa requested an attorney, he would not ask him any questions. Ochoa told Officer 

Starkey that he understood, signed the Advice of Rights form, and agreed to speak to Officer 

Starkey without an attorney present. While Ochoa did not confess to the robbery, he told Officer 

Starkey that there was a gun in a drawer in one of the bedrooms. 

While Officer Starkey interviewed Ochoa, other agents remained at Ochoa’s residence to secure 

the area until a search warrant could be obtained. The search warrant application referenced 

Ochoa’s pre-Miranda statement to Agent Swinerton and Ochoa’s post-Miranda statement to 

Officer Starkey concerning the presence of a gun in the residence. After obtaining the warrant, 

agents searched Ochoa’s residence and found evidence that linked Ochoa to the robbery, including 

a handgun.

First, Ochoa filed a motion to suppress his pre-Miranda statements to Agent Swinerton. Ochoa 

argued that his statements about the gun in the residence were the result of questioning that 

occurred after his arrest but before he was informed of his Miranda rights. 

The Eleventh Circuit Court of Appeals held that Ochoa’s statements to Agent Swinerton fell 

within the public safety exception to the Miranda requirement. Law enforcement officers must 

inform suspects of their Miranda rights before conducting custodial interrogations to protect the 

suspects’ Fifth Amendment right against self-incrimination. However, in New York v. Quarles, 

the Supreme Court established the public safety exception to the Miranda requirement. The public 

safety exception allows law enforcement officers to question a suspect without first informing 

him of his Miranda rights when they reasonably believe doing so is necessary to protect either 

themselves or the public. 
12

Here, it was undisputed that Ochoa was “in custody” for Miranda purposes when Agent Swinerton 

questioned Ochoa about the presence of weapons in the residence and that Ochoa had not been 

informed of his Miranda rights. Nonetheless, the court concluded that Agent Swinerton asked 

questions he reasonably believed were necessary to secure the residence following Ochoa’s arrest. 

Agent Swinerton knew he was dealing with a potentially violent suspect who might be in 

possession of a firearm and it was reasonable for him to ask Ochoa about the presence of firearms 

before he sent the SWAT team into the residence. 

Next, Ochoa filed a motion to suppress the statements he made to Officer Starkey during his postMiranda interview. Ochoa argued that he made statements to Officer Starkey that clearly 

indicated that he did not wish to speak to Officer Starkey without a lawyer present, but Officer 

Starkey questioned him anyway.

The court recognized: “[w]hen a person undergoing a custodial interrogation states that he wishes 

to remain silent, the questioning must end and if he expresses a desire to consult with an attorney, 

the questioning must cease until one is provided for him.” However, a suspect’s invocation of his 

rights must be unequivocal. Specifically, a suspect must articulate his desire to have an attorney 

present with sufficient clarity that a “reasonable police officer” would understand the statement 

to be a request for an attorney or to cease further questioning. If a suspect does not do so, officers 

do not have an obligation to stop questioning.

In this case, the court held that Ochoa did not validly invoke his right to counsel or his right to 

remain silent. While Ochoa’s statement that he did not “really agree” with the Waiver of Rights 

provision could have been interpreted as a request for an attorney it was also an expression of 

confusion as to what he was agreeing to by signing the form, which is how Officer Starkey 

understood it. Under these circumstances, the court held that is was appropriate for Officer 

Starkey to ask follow-up questions to clarify what Ochoa meant by his ambiguous statement. 

Afterward, Ochoa told Officer Starkey that he would “speak without an attorney.” Because Ochoa 

did not unequivocally and unambiguously invoke either this right to counsel or his right to remain 

silent, the court held that Officer Starkey was not obligated to stop questioning him.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca11/16-17609/16-

17609-2019-10-25.pdf?ts=1572039039

*****

United States v. Ross, 28 Fla. L. Weekly Fed. C 522 (11th Cir. 2019)

Police officers with a joint state-federal task force went to a Pensacola motel to arrest Wali Ross, 

a known fugitive with a history of violence and drug crimes, on three outstanding felony warrants. 

Although the officers had received information that Ross was staying at the motel, he was not a 

registered guest. While conducting surveillance, an officer saw Ross leave Room 113, walk to a 

truck in the parking lot and then return to his room. A few minutes later, Ross exited his room 

and approached the truck again. However, Ross saw the officers and fled. The officers pursued 

Ross but he eluded them. Realizing that none of the officers had remained at the motel, the officers 

thought that Ross might have gone back to Room 113. 

When the officers returned to the motel ten minutes later, they saw Ross’ truck in the parking lot 

and the door to Room 113 closed. An officer retrieved a room key and a copy of the room’s 

registration from the manager, which showed that the room was rented for one night to a woman 

named Donicia Wilson.
13

Using the key, the officers entered Room 113 to locate and arrest Ross. Once inside, the officers 

conducted a protective sweep but Ross was not in the room. However, while exiting the room, 

one of the officers saw in plain view a grocery bag in which the outline of a firearm was clearly 

visible. The officer seized the gun and left. 

After securing the firearm at approximately 10:45 a.m., the officers asked the motel manager for 

consent to search Room 113. The manager refused to allow the officers entry into Room 113 until 

11:00 a.m., the motel’s standard checkout time. At 11:00 a.m., the manager gave the officers 

permission to search Room 113 where the officers found a quantity of heroin, a digital scale, and 

a cell phone. 

The government charged Ross with being a felon in possession of a firearm and possession of 

heroin with intent to distribute. Ross filed a motion to suppress the evidence found during both 

entries into his motel room. 

Ross argued that the officers’ initial entry and protective sweep, in which the firearm was seized,

violated the Fourth Amendment because it was not reasonable for the officers to believe that he 

was inside Room 113. 

First, the court rejected the government’s argument that Ross abandoned any reasonable 

expectation of privacy in his room when he fled, which would have precluded Ross from 

challenging the officers’ initial entry and sweep of his room. When Ross fled, he locked the room 

and kept the key with him. In addition, only 10 minutes elapsed from the time Ross fled and the 

officers entered Room 113. The court concluded this was not enough time for Ross to have 

abandoned his privacy interest in the room. 

Next, the court held that the officers’ initial entry and protective sweep of Ross’s room did not 

violate the Fourth Amendment. An arrest warrant, based on probable cause, implicitly carries 

with it the limited authority to enter a dwelling in which the suspect lives when there is reason to 

believe the suspect is inside. A person’s hotel room is considered a “dwelling” in this context. 

To enter a hotel room to execute an arrest warrant, a law enforcement officer must have a 

reasonable belief that: (1) the room is in fact the suspect’s and; (2) the suspect is inside. Once 

inside the room, officers may perform a protective sweep of the premises and they are allowed to 

seize any contraband in plain view. 

In this case, the court found that the officers knew that Ross was staying in Room 113, as they 

had watched him exit the room, approach a truck in the parking lot, return to the room, and then

reemerge. The court also found that it was reasonable for the officers to believe that Ross had

returned to Room 113 after their failed pursuit, given that the pursuit lasted no more than 10 

minutes and when officers returned to the motel they saw Ross’ truck in the parking lot. Because 

the officers reasonably believed that Ross was in Room 113, the court held the officers had 

authority: (1) to enter the room to execute the arrest warrants; (2) to conduct a limited protective 

sweep of the room to ensure that no one inside posed a danger to them, and (3) to seize the gun, 

which they found in plain view. 

Ross further argued that the officers’ second entry and search of his room violated the Fourth 

Amendment, regardless of the manager’s consent, because it would not have occurred without the 

officers’ first unlawful entry. 
14

The court held that Ross had no reasonable expectation of privacy in Room 113 after the 11:00 

a.m. checkout time and that the motel manager gave the officers valid consent to search the room 

at that point. As a result, the court concluded that Ross had no standing to object to the officers’ 

second entry and search of the room that uncovered the drug-related evidence.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca11/18-11679/18-

11679-2019-10-29.pdf?ts=1572375638

*****