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This edition of The Informer may be cited as 2 INFORMER 15.
The Informer – February 2015

Article

Remember the First Amendment- So Smile . . . You May Be On Candid Camera

Tim Miller, Attorney Advisor / Senior Instructor – FLETC Legal Division..................................................5

 ♦

Case Summaries

United States Supreme Court

Department of Homeland Security v. MacLean: Whether a federal air marshal was 

entitled to whistleblower protection after he was fired for disclosing sensitive security

information to a reporter without authorization...........................................................................8

 ♦

Circuit Courts of Appeals

Second Circuit

Coggins v. Buonora: Whether an officer was entitled to absolute immunity and/or

qualified immunity for allegedly falsifying evidence which led to the malicious

prosecution of the plaintiff...........................................................................................................9

United States v. Broughton: Whether the defendant was in custody for Miranda

purposes when a CBP officer escorted her to a private search area in the airport.......................9

Fourth Circuit

United States v. Hill: Whether officers were authorized to search a probationer’s 

apartment without a warrant under the terms of his supervised release....................................10

Covey v. Assessor of Ohio County: Whether officers were entitled to qualified 

immunity for entering the plaintiff’s curtilage to conduct a knock and talk interview.............11

Fifth Circuit

Trent v. Wade: Whether an officer was entitled to qualified immunity for entering the 

plaintiff’s home while in hot pursuit of an individual, and whether the officer lawfully

seized the plaintiff’s all-terrain vehicle from his property........................................................12

United States v. Montgomery: Whether the seizure of evidence from the defendant’s 

cell phone was tainted by an alleged unlawful Terry frisk........................................................13

Sixth Circuit

United States v. Gaston: Whether officers established reasonable suspicion to detain 

the defendant.............................................................................................................................14

2
Seventh Circuit

United States v. Webster: Whether a suspect had a reasonable expectation of 

privacy while seated in the back of a police squad car..............................................................15

United States v. Barta: Whether the government’s tactics in a sting operation 

amounted to an inducement that entrapped the defendant.........................................................15

Eighth Circuit

United States v. Gunnell: Whether a pretextual stop violated the Fourth Amendment..........16

United States v. Patrick, Whether the defendant’s arrest and seizure of evidence 

were valid after a confidential informant mistakenly identified the defendant to 

officers.......................................................................................................................................17

Tenth Circuit

United States v. Gilmore, Whether officers lawfully seized the defendant under the

community caretaking doctrine.................................................................................................18

Eleventh Circuit

United States v. Holt, Whether officers unlawfully prolonged the duration of two

traffic stops to allow time for a canine unit to arrive.................................................................19

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4
Remember the First Amendment –

So Smile . . . You May Be on Candid Camera

Tim Miller

Attorney Advisor / Senior Instructor

Office of Chief Counsel / Legal Division

Federal Law Enforcement Training Center

Glynco, Georgia

The Candid Camera television program began with a little jingle, “When the least expected, 

you’re elected, you’re the star today ...” The program caught ordinary people on camera in 

some of life’s less than ordinary, embarrassing situations. Candid Camera was funny, and the 

stars seemed to take it in good fun. The same has not always been true for police officers 

caught on camera by private citizens. Officers have seized recording devices and even 

arrested the people recording them. But their embarrassment was not so much being caught 

on the camera; it was the subsequent lawsuit for civil rights violations.1

To start, the First Amendment provides that Congress shall make no law abridging the 

freedom of speech or of the press.2

 Freedom of expression prohibits the government from 

limiting the pot of information from which the public may draw. And anyone - a professional 

journalist or a citizen journalist with no training - may add to the pot.3

 Notably, the 

assassination of President John F. Kennedy and the beating of Rodney King were recorded by 

bystanders. More and more, scenes on the evening news are coming from people with a ready 

cell phone or digital camera who just happened to be there. 

The right to make audiovisual recordings of public officials is highest in public forums. 

Public forums are public places like city streets, sidewalks, and parks - - places where the 

people have traditionally exercised First Amendment freedoms.4 The right could be described 

this way: The people have a qualified right to openly record police officers performing their 

1 Constitutional tort claims may be brought against a law enforcement officer under two separate, but related, 

bases. Title 42 U.S.C. § 1983 allows plaintiffs to sue public officials acting under color of state [local, territorial, 

or District of Columbia] law. Section 1983 was enacted in April 1871 in the wake of the American Civil War as 

part of the Civil Rights Act of that era. Noticeably absent was any mention of federal officials – acting under 

color of federal law. Federal officials remained immune from suit under § 1983 until June 1971. Just a couple 

of months after § 1983’s 100th Anniversary, the Supreme Court decided Bivens v. Six Unknown Federal 

Narcotics Agents, 403 U.S. 388 (1971). In Bivens, the Court created an analogy to § 1983. The so called Bivens

Analogy allows plaintiffs to sue federal officials, acting under color of federal law, for certain Constitutional 

violations. 

2 The First Amendment provides in part that “Congress shall make no law ... abridging the freedom of speech, or 

the press...” Title 42 U.S.C. § 1983 is authority to sue state and local officers for First Amendment violations. 

See for example Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014)(city police officers were sued under §1983 after the 

plaintiff was arrested for attempting to make an audio visual recording of a traffic stop) and Glik v. Cunniffe, 655 

F.3d 78 (1st Cir. 2011)(city police officers were similarly sued after the plaintiff was arrested for recording an 

officer effecting an arrest in a public park.) The Supreme Court has assumed, without deciding, that the Bivens

Analogy allows First Amendment claims against federal officers. See Wood v. Moss, 572 U.S. ___, 134 S. Ct. 

2056, 2066 (2014). 

3 The First Amendment extends further than the text’s proscription on laws abridging the freedom of speech, or 

of the press, and encompasses a range of conduct related to the gathering and dissemination of information. See 

Gericke, 753 F.3d at 7 (the Constitution protects the right of individuals to videotape police officers performing 

their duties in public); ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012)(audio and audio visual recordings are 

media of expression commonly used for the preservation and dissemination of information and are included 

within the free speech and free press guaranty); and, Glik, 655 F.3d at 82. 4 See McCullen v. Coakley, 573 U.S. ___, 134 S. Ct. 2518 (2014).

5

 
duties in public forums when the officers are speaking at a volume audible to the unassisted 

ear. One example might be recording a police officer effecting an arrest in a public park. 

Another might be filming a traffic stop from a sidewalk.5

 

If someone is in a public forum, he probably has a right to record the sights and sounds 

around him. That would include a citizen standing on a public sidewalk and photographing 

the exterior of a government building. As a result, an officer who seizes the recording device 

of a person filming the exterior of a federal courthouse may face the same predicament as 

another officer who seizes the recording device of someone filming the officer.6

But I don’t like it... No doubt, the officers involved in these lawsuits did not like it, either. 

Bystanders videotaping a traffic stop or arrest may be distracting. And after the bombing of 

the Alfred P. Murrah Federal Building in Oklahoma City and other terrorist attacks, someone 

standing on a sidewalk and photographing the bland exterior of a public building may seem 

suspicious. Still, this is what separates the United States from police states. Our system of 

government expects law enforcement officers to endure significant burdens caused by citizens 

exercising their First Amendment rights. Even provocative and challenging speech, along 

with videotaping, falls within the protection of the First Amendment. Name calling, 

questioning an officer’s authority, or telling the officer, “You’ll be on the evening news” -

that all goes with the job.7

 

But there must be exceptions... Obviously there are - exceptions. An order to stop recording 

can be constitutionally imposed when an officer can reasonably conclude that the filming is 

subject to a reasonable time, place, or manner restriction. Reasonable? For one, an officer 

may have a reasonable expectation of privacy in what is being said. The federal wiretap 

statute for example would prohibit someone from using a sensitive audio recording device, 

like a parabolic microphone, to eavesdrop on the conversation of an officer and witness after 

the two separated themselves from the crowd and made other reasonable efforts to keep their 

conversation private.8 

Even an open recording may be subject to a reasonable restriction. Since officers can control 

the movements of the occupants of a car during a traffic stop, ordering a passenger to get back 

in the car may be reasonable despite the passenger’s objection that “I can’t put you on the 

evening news from back there.” Some traffic stops, particularly when the detained individual 

is armed, might justify a safety measure - - for example, a command that bystanders disperse. 

And a preexisting statute, ordinance, or other published restriction may limit where someone 

5 See Gericke, 753 F.3d 1; Glik, 655 F.3d 78; and ACLU, 679 F.3d 583. 6 See for example, Federal Protective Service Information Bulletin (Report Number HQ-IB-012-2010) dated 

August 2, 2010 construing 41 C.F.R. § 102-74.420 not to prohibit individuals from photographing the exterior of 

federal buildings from publicly accessible places. This article focuses on recordings made on traditional public 

forums, not those made on government property. Government installations and other property that are not by 

tradition or designation forums for public communication are non-public forums, and the government can 

regulate speech, so long as the regulation is reasonable and not an effort to suppress expression merely because 

public officials oppose the speakers’ views. See for example Greer v. Spock, 424 U.S. 828 (1976)(a military 

installation is a non-public forum). 7 See Gericke, 753 F.3d at 8 (a right to film police activity carried out in public, including a traffic stop, remains 

unfettered unless a reasonable restriction is imposed or in place)(citations omitted).

8 The federal government and nearly all states have statutes addressing wiretapping and eavesdropping 

protecting conversational privacy. See for example the Omnibus Crime Control and Safe Streets Act of 1968,

Title 18 U.S.C.§§ 2510-2520 (2006). 

6

 
can record. Imagine a curious onlooker who illegally parks his car beside the road and starts 

filming.9

And the person photographing the federal building ...? Obviously, a police officer has the 

same rights as a private citizen. The officer can approach and ask questions, just like anyone 

else. The officer can also effect a temporary, investigative seizure that is reasonable under the 

Fourth Amendment if the officer can articulate facts that criminal activity is afoot. With 

probable cause, even more intrusive measures can be taken. The suspect may be arrested and 

a warrant issued to search the recording device.10

Quite simply, it is reasonableness that separates law enforcement in the United States from 

law enforcement in police states. And reasonableness always depends on the officer’s ability 

to articulate facts that justify the measures taken. Absent those facts, all the officer can do is 

smile for the camera. 

 

 

 

9 See Gericke, 753 F.3d at 8 (discussing some reasonable time, place, or manner restrictions for traffic stops). 10 See Federal Protective Service Information Bulletin cited previously for guidance for Federal Protective 

Service officers encountering individuals taking photographs of the exterior of federal buildings.

7

 
CASE SUMMARIES

United States Supreme Court

Dep't of Homeland Sec. v. MacLean, 574 U.S. ___, 2015 U.S. LEXIS 755 (U.S. Jan. 21, 

2015)

In July 2003, the Department of Homeland Security issued a confidential advisory concerning 

a potential hijacking plot. The Transportation Security Administration (TSA) then briefed all 

air marshals, including MacLean, about the plot. A few days after the briefing, MacLean 

received a text message from the TSA canceling all overnight missions from Las Vegas until 

early August. MacLean, who was stationed in Las Vegas, told his supervisor and the DHS 

Inspector General’s office he believed the cancellation of overnight missions would 

jeopardize public safety. When MacLean did not receive a satisfactory response, MacLean 

told a reporter about the canceled missions. The reporter published a story about the TSA’s 

decision to cancel overnight missions, which led several members of Congress to criticize the 

TSA. Within twenty-four hours, the TSA reversed its decision and put air marshals back on 

overnight flights. After the TSA discovered MacLean was the reporter’s source of 

information, he was fired for violating a TSA regulation concerning the disclosure of sensitive 

security information (SSI) without authorization.

MacLean challenged his firing before the Merit Systems Protection Board (MSPB), arguing 

his disclosure was protected under the Whistleblower Protection Act of 1989 (WPA) because 

he reasonably believed the leaked information disclosed a substantial and specific danger to 

public health or safety. The MSPB ruled against MacLean, finding he did not qualify for 

protection under the WPA because his disclosure was “specifically prohibited by law,” as it 

violated the TSA regulation prohibiting the unauthorized disclosure of SSI. 

On appeal, the Court of Appeals for the Federal Circuit vacated the decision by the MSPB and 

the government appealed to the United States Supreme Court.

First, the Supreme Court held the exemption from protection under the WPA for disclosures 

“specifically prohibited by law” does not apply to disclosures prohibited solely by TSA 

regulations. Instead, the exemption for disclosures “specifically prohibited by law” requires 

the underlying prohibition, such as the unauthorized disclosure of SSI in this case, to be 

contained in the language of a statute. 

Second, the court held the Aviation and Transportation Security Act of 2001 (ATSA), which 

authorized the TSA to create regulations, did not specifically prohibit MacLean’s disclosure 

of information to the reporter. Instead, the court found the ATSA authorized the TSA to 

“prescribe regulations.” Therefore, by its own terms, the ATSA did not prohibit anything. 

Click HERE for the court’s opinion.

*****

8
Circuit Courts of Appeal

Second Circuit

Coggins v. Buonora, 2015 U.S. App. LEXIS 487 (2d Cir. N.Y. Jan. 13, 2015)

Coggins sued Buonora under 42 U.S.C. § 1983 claiming Buonora and another officer 

conspired to knowingly falsify and omit material facts from police reports, as well as lie to the 

district attorney and grand jury, which resulted in the malicious prosecution of Coggins. 

Even though Buonora admitted he lied to the grand jury, Buonora claimed he was entitled to 

absolute immunity for any act associated with his perjury. 

In Rehberg v Paulk, the United States Supreme Court held grand jury witnesses, including 

law enforcement officers, have “absolute immunity from any § 1983 claim based on the 

witness’ testimony,” even if that testimony is perjurious. However, the Supreme Court 

suggested this absolute immunity does not extend to activity a witness conducts outside the 

grand jury room. 

In this case, the court held Buonora was not entitled to absolute immunity because Coggins’

suit was not based on Buonora’s perjurious grand jury testimony. Instead, Coggins’

allegations were based on Buonora’s police reports, the statements of another officer, 

Buonora’s statements to the district attorney and police radio transmissions. Because these 

facts existed before Buonora perjured himself before the grand jury, the court found Coggins 

had the ability to prove his allegations without relying on Buonora’s grand jury testimony.

The court further held Buonora was not entitled to qualified immunity because the alleged 

falsification of evidence and the related conspiracy, if true, constituted a violation of clearly 

established law and no objectively reasonable officer could have thought otherwise.

Click HERE for the court’s opinion.

*****

United States v. Broughton, 2015 U.S. App. LEXIS 780 (unpublished) (2d Cir. N.Y. Jan.

20, 2015)

Broughton arrived at John F. Kennedy International Airport on a flight from Jamaica. Before 

Broughton reached the airport’s customs checkpoint, a uniformed Customs and Border 

Protection (CBP) officer randomly selected her for an examination of her luggage. When the 

officer examined Broughton’s luggage in an open area, just beyond the customs checkpoint, 

the officer found a woman’s wedge-heeled shoe that was very heavy. When the officer 

probed the shoe, he discovered a white powdery substance inside the heel of the shoe. The 

officer moved Broughton to the CBP’s private search area, where a field test of the white 

substance found in the shoe tested positive for cocaine. The officer then arrested Broughton. 

A further search of Broughton’s luggage uncovered three additional shoes containing cocaine. 

While Broughton’s luggage was being examined in the private search area, she told CBP

officers the shoes did not belong to her, but rather to a friend with whom she was travelling. 

After the officer arrested Broughton, she said her friend might have “some kind of connection 

with drugs and shoes.” 

9
After Broughton’s arrest, Homeland Security Investigations (HSI) agents arrived to interview

her. One of the agents advised Broughton of her Miranda rights, which she waived. The 

interview lasted for approximately fifteen minutes. The agents then took Broughton to their 

offices to conduct a follow-up interview. During the two interviews, Broughton made 

incriminating statements to the agents. 

Broughton argued she was in custody for Miranda purposes when the CBP officer escorted 

her to the private search area. As a result, Broughton claimed her un-Mirandized statements 

to the CBP officer should have been suppressed.

The court disagreed. The court noted that a reasonable traveler arriving at an American 

airport will expect some constraints as well as questions concerning his or her authorization to 

enter the country. Here, the CBP officer was engaged in a routine aspect of border control, 

examining Broughton’s luggage, when he encountered the suspicious shoe. When the officer 

discovered the white powdery substance, he escorted Broughton, without placing her in 

handcuffs, to a more private part of the airport. It was only after the officer confirmed the 

substance in the shoe was cocaine and he arrested Broughton that she was in custody for 

Miranda purposes. 

The court added that even if Broughton was in custody when she made all three statements to 

the CBP officers, Miranda was not required because the officers did not “interrogate” 

Broughton. Instead, the court concluded Broughton voluntarily and spontaneously made 

statements regarding her friend’s ownership of the shoes. 

The court further held Broughton’s statements to the HSI agents were admissible, as they 

were voluntarily made after a valid waiver of her Miranda rights. 

Click HERE for the court’s opinion.

***** 

Fourth Circuit

United States v. Hill, 2015 U.S. App. LEXIS 499 (4th Cir. W. Va. Jan. 13, 2015)

Barker was serving a term of supervised release in connection with a federal drug conviction. 

One of the terms of his supervised release required Barker to allow probation officers to visit 

him at home at any time and seize contraband in plain view. Officers obtained a warrant to 

arrest Barker for violating a term of his supervised release and went to his apartment to arrest 

him. When the officers arrived at Barker’s apartment, they arrested Barker and conducted a 

protective sweep. During the sweep, the officers encountered Hill and Dunigan, and 

discovered they were on supervised release. During the sweep, the officers saw needles, pills, 

packaging for synthetic marijuana and drug paraphernalia. After Barker, Hill and Dunigan 

were arrested for violating the terms of their supervised releases, and the protective sweep had 

ended, the officers conducted a walk-through of the apartment looking for other evidence of 

supervised release violations. After the walk-through, the officers brought in a drug dog that

alerted to the presence of drugs in the ceiling. The officers removed a ceiling tile and found a 

plastic bag tucked inside the ceiling. The officers stopped the search, obtained a warrant, 

searched the bag and discovered controlled substances.

Barker, Hill and Dunigan were charged with a variety of federal drug offenses.

10
The defendants filed a motion to suppress the evidence, arguing that once the protective 

sweep ended, the officers needed a warrant to search the apartment further.

The court agreed. The supervision condition to which the defendants agreed required them to 

submit to a probation officer’s visit and allowed the officer to confiscate contraband in plain 

view. None of the conditions of the defendants’ supervised releases authorized warrantless 

searches. Consequently, the court concluded law enforcement officers generally may not 

search the home of an individual on supervised release who is not subject to a warrantless 

search condition unless the officers have a warrant supported by probable cause. 

The government argued the officers would have sought a warrant to search the apartment 

based on their observations during the protective sweep, even if they had not conducted the 

walk-through and dog sniff. As a result, the government claimed the evidence should have 

been admitted against the defendants.

The court declined to determine the issue and remanded the case to the district court to 

determine whether the information obtained from the illegal walk-through and dog sniff 

affected the officer’s decision to seek the search warrant.

Click HERE for the court’s opinion.

*****

Covey v. Assessor of Ohio County, 2015 U.S. App. LEXIS 1113 (4th Cir. W. Va. Jan. 26, 

2015)

Crews, a field deputy for the county assessor’s office entered Covey’s property to collect data 

to assess the value of the property for tax purposes. Despite seeing “No Trespassing” signs, 

Crews continued up the driveway to Covey’s house. In doing so, Crews was in violation of a 

state regulation that prohibits tax data collectors from entering property that is posted with 

“No Trespassing” signs. After finding no one home, Crews opened the front door and left a 

pamphlet inside the house. Crews then walked around the side of the house onto a basement 

patio where he saw marijuana plants. Crews left Covey’s property and contacted local law 

enforcement officers.

After receiving Crews’ report, a local officer and a federal agent went to Covey’s house to 

investigate. The officers walked directly to patio area where they encountered Covey. The 

officers seized Covey and escorted him to their car. The officers went back to the patio area, 

opened the basement doors, leaned inside, took photographs, and seized marijuana from the 

patio area. 

Although Covey later pled guilty in state court to manufacturing marijuana, he sued Crews as 

well as the state and federal law enforcement officers under 42 U.S.C. § 1983 and Bivens for 

conducting an unreasonable search and seizure at his home. 

First, Crews argued he did not violate the Fourth Amendment because he entered Covey’s 

property for a legitimate governmental interest. The court noted Crews’ violation of the state 

regulation prohibiting data collectors from entering property where “No Trespassing” signs

are posted did not amount to a per se violation of the Fourth Amendment. However, the court 

concluded that what began as a regulatory violation by Crews, turned into a potential Fourth 

Amendment violation when Crews dropped the pamphlet inside Covey’s home and then 

11
walked around the curtilage to the patio area. As a result, the court held Covey alleged a

plausible claim that Crews conducted an unreasonable search of his home and curtilage. 

Second, the court found the officers were not conducting a valid knock and talk when they 

went onto the patio area of Covey’s home. Under the knock and talk exception to the Fourth 

Amendment’s warrant requirement, officers may approach the front door of a home without a 

warrant and attempt to make contact with someone inside the home. However, an officer may 

bypass the front door when circumstances reasonably indicate the officer might find the 

homeowner somewhere else on the property. In this case, however, the court held nothing in 

Covey’s complaint suggested the officers had reason to believe Covey was in the patio area 

before proceeding there. Consequently, the court concluded Covey plausibly alleged the 

officers violated the Fourth Amendment by entering and searching the curtilage of his home 

without a warrant.

Third, the court held the officers were not entitled to qualified immunity because at the time 

of the incident it was clearly established that curtilage is entitled to the same level of Fourth 

Amendment protection as the rest of the home. In addition, Covey sufficiently alleged the 

officers violated clearly established law by proceeding directly to the patio area where they 

suspected marijuana would be found, without any reason to believe they would find Covey 

there. 

Finally, the court directed the district court to determine if Covey’s guilty plea to 

manufacturing marijuana barred his § 1983 and Bivens claims against the officers.

Click HERE for the court’s opinion.

*****

Fifth Circuit

Trent v. Wade, 2015 U.S. App. LEXIS 391 (5th Cir. Tex. Jan. 9, 2015)

At approximately 2 a.m. while on patrol, Officer Wade saw two all-terrain vehicles (ATVs)

racing on a closed portion of a highway. Wade attempted to conduct a traffic stop, but the 

drivers of the ATVs fled. Wade pursued one of the ATVs to Trent’s house. At Trent’s house, 

the driver parked the ATV in the carport and fled into the house. Wade parked his patrol car 

next to the ATV, opened the unlocked door to Trent’s house and entered the home without 

first knocking or announcing his presence. Inside the home, Wade eventually encountered 

Trent and discovered that Trent’s son was the driver of the ATV. Wade arrested the son, and 

had the ATV towed from Trent’s property and impounded. 

Trent sued Wade under 42 U.S.C. § 1983 claiming Wade violated the Fourth Amendment by

failing to knock and announce his presence before entering Trent’s home. Wade argued that 

he lawfully entered Trent’s house while in hot pursuit of Trent’s son. 

The court explained the hot pursuit exception gives an officer the authority to carry out a 

warrantless search or seizure in a home. However, the knock and announce rule, on the other 

hand, does not focus on the lawfulness of the search or seizure, but rather on the method of an 

officer’s entry into a home. To justify a no-knock entry, an officer must have a reasonable 

suspicion that knocking and announcing would be dangerous or futile. Futility justifies a noknock entry only when the officer has a reasonable suspicion that the occupants of the home 

12
are already aware of the officer’s presence. In this case, while it was clear that Trent’s son 

was aware of Wade’s presence in the house, a question of fact remained as to whether Wade 

had reasonable suspicion to believe the other potential occupants of the home were aware of

Wade’s entry. Specifically, the court found a genuine issue of material fact existed as to 

whether “a reasonable officer would have taken into account that other residents could have 

been asleep at 2:00 a.m.,” a circumstance that would necessitate “some manner of 

forewarning prior to entry.” Consequently, the court denied Wade qualified immunity.

Trent also claimed Wade’s warrantless seizure of the ATV from his carport violated the 

Fourth Amendment. 

Under Texas law, Wade was authorized to seize the ATV as contraband property “used in the 

commission of a felony.” In addition, Wade was lawfully on Trent’s property when he seized 

the ATV. However, the court noted it remains an unresolved issue in the Fifth Circuit 

whether the Fourth Amendment allows the warrantless seizure of a vehicle from private 

property when state law designates that vehicle as forfeitable contraband. Because the law is 

not clearly established in this area, the court held Wade was entitled to qualified immunity for 

seizing Trent’s ATV. 

Click HERE for the court’s opinion.

*****

United States v. Montgomery, 2015 U.S. App. LEXIS 1291 (5th Cir. Tex. Jan. 27, 2015)

An officer stopped Montgomery in front of his house for a traffic violation. During the stop, 

the officer attempted to frisk Montgomery, but Montgomery resisted by pushing the officer’s 

hands away from his pockets. The officer eventually frisked Montgomery and felt a bulge in 

his pocket. The officer asked Montgomery what the bulge was, and Montgomery told the 

officer it was cocaine. The officer removed the cocaine, Mirandized Montgomery and 

arrested him.

Approximately thirty minutes after the stop, Montgomery consented to a search of his house. 

The search took approximately twenty-five minutes to complete, and during this time, officers 

allowed Montgomery to enter the house to obtain medicine. In addition, Montgomery 

repeatedly asked the officers for his cell phone so he could erase “naked pictures” that he did 

not want his father to see. An officer brought Montgomery his cell phone and agreed to help 

Montgomery erase the images from the phone. With Montgomery’s consent, the officer 

pushed a button on the phone that caused an image to appear, which the officer believed was 

child pornography. The government indicted Montgomery for possession of child 

pornography.

Montgomery argued the evidence discovered on his cell phone should have been suppressed. 

Specifically, Montgomery claimed the seizure of the cocaine that led to his arrest was 

discovered after an unlawful Terry frisk, which tainted his consent to search his cell phone. 

The court held the evidence discovered on Montgomery’s cell phone was obtained with

Montgomery’s consent, which the officers obtained after several independent acts of freewill 

on Montgomery’s part that purged the taint of any alleged Fourth Amendment violation. 

Without deciding the issue, the court held that even if the Terry frisk was unlawful, 

Montgomery repeatedly requested that the officers access his cell phone to remove images he 

13
wanted to conceal from his father. There was no evidence suggesting the officers requested to 

search the cell phone or that they were otherwise interested in its contents. In addition, 

Montgomery was Mirandized before his phone was searched, the officers knew Montgomery 

had a criminal history, and the officers allowed Montgomery to retrieve medicine from his 

house. The court concluded these facts supported the belief that Montgomery’s consent to 

search his cell phone was sufficiently detached from his arrest to purge any taint. Finally, the 

court found the Fourth Amendment violation alleged by Montgomery was not flagrant. 

Click HERE for the court’s opinion.

*****

Sixth Circuit

United States v. Gatson, 2015 U.S. App. LEXIS 653 (6th Cir. Ohio Jan. 15, 2015)

Byrd, a school bus driver, reported that she saw a man soliciting young girls near the bus 

depot. Byrd described the man as a black male with medium-toned skin and short hair. Byrd 

also stated the man was driving a black GMC SUV. A few minutes later, officers saw a dark 

grey GMC SUV with a black male with short hair and medium-brown skin sitting in the 

driver’s seat, parked one block from the bus depot. The officers approached the SUV and 

spoke to the driver, Gatson, who admitted he had been talking to young girls. When one of 

the officers asked Gatson for identification, Gatson tried to push something between the 

driver’s seat and the center console. The officers ordered Gatson out of the vehicle and 

recovered a pistol from the space between the driver’s seat and center console. The 

government charged Gatson with two federal firearms offenses.

Gatson moved to suppress the pistol, arguing the stop, which led to the discovery of the pistol, 

violated the Fourth Amendment. 

The court disagreed, finding the officers had reasonable suspicion to conduct a Terry stop. 

Even though the officers never spoke to Byrd, the officers knew her name and that she drove 

a school bus. These facts enhanced the credibility of Byrd’s claim she had seen a man 

soliciting young girls. In addition, the officers saw a dark-colored GMC SUV less than a 

block from where Byrd had seen such a vehicle driven by a man matching the description 

given by Byrd. The court concluded these facts were enough to provide the officers 

reasonable suspicion Gatson had been engaged in criminal activity.

The court further held the officers did not exceed the scope of the Terry stop when they 

ordered Gatson out of his vehicle and searched it. The court ruled the district court did not 

improperly conclude that the officers’ testimony was more credible than Gatson’s testimony. 

Click HERE for the court’s opinion.

*****

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Seventh Circuit

United States v. Webster, 2015 U.S. App. LEXIS 74 (7th Cir. Ind. Jan. 5, 2015)

Officers detained Webster and Jones in the caged back seat of a squad car while they sought a 

warrant to search a residence from which the men had just fled. An officer activated an 

internal video camera in the car to record all conversations in the squad car. While the officer 

was out of the car for approximately eight-minutes, Webster engaged in conversation with 

Jones and placed several phone calls, which were audible in the recording. At trial, the 

district court allowed the government to enter the eight-minute excerpt of the recording into 

evidence against Webster.

On appeal, Webster argued recording his conversation with Jones, and his phone calls while

in the back of the squad car violated the Fourth Amendment.

The court disagreed. For Webster to prevail, the court noted Webster had to establish he had 

a reasonable expectation of privacy in the conversations that took place in the squad car. The 

court added, a reasonable expectation of privacy exists when the defendant manifests a 

subjective expectation of privacy and society recognizes that expectation to be reasonable. 

Here, the court assumed Webster exhibited a subjective expectation of privacy because he did 

not engage in any conversation while the officer was seated in the front of the squad car, but 

only spoke when the officer was not present. However, the court found Webster’s 

expectation of privacy was not one that society was prepared to find reasonable. In a case of 

first impression, the court followed the 1st, 4th, 5th, 8th, 10th and 11th circuits and held there 

is no reasonable expectation of privacy in a conversation that occurs in a squad car. Given the 

nature of the vehicle, and the visible presence of electronics capable of transmitting any 

internal conversations, the expectation that a conversation within the vehicle is private is not 

an expectation society would recognize to be reasonable. As a result, the court held the 

officer did not violate the Fourth Amendment when he recorded Webster’s conversations. 

The court noted its ruling reflected the layout and equipment of a squad car, and expressed no 

opinion as to conversations that occur in other vehicles such as patrol wagons or squadrols, 

which contain separate compartments for prisoners that are physically separated from the 

front portion of the vehicle where the officers ride. 

Click HERE for the court’s opinion.

*****

United States v. Barta, 2015 U.S. App. LEXIS 1382 (7th Cir. Ill. Jan. 28, 2015)

Barta was convicted of conspiracy to commit bribery based on an undercover government 

sting operation that turned into an agreement between Barta and his co-defendants to bribe a 

fictional county official in California to obtain a government contract at a hospital.

The court reversed Barta’s conviction, holding the government entrapped Barta. 

Entrapment is a defense to criminal liability when the defendant is not predisposed to commit 

the charged crime, and the government’s conduct induced the defendant to commit the crime. 

In this case, the government conceded Barta was not predisposed to commit the charged 

crime. Therefore, to overcome Barta’s entrapment defense, the government had to establish 

there was no government inducement. Inducement means government solicitation of the 

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crime plus some “other governmental conduct” that creates a risk that a person who would not 

commit the crime, if left alone, would do so only because of the government’s efforts. Other 

governmental conduct includes, repeated attempts at persuasion, fraudulent representations, 

promises of reward beyond that inherent in the commission of the crime and pleas based on 

sympathy or friendship. 

Here, the court found the cumulative effect of the government’s tactics directed at Barta 

amounted to inducement. First, the government repeatedly attempted to persuade Barta by 

frequently emailing and calling him, even though Barta did not respond to these 

communications. Second, the government invented false deadlines for Barta to commit to the 

deal, and invented false problems with the hospital. Third, as the sting operation progressed, 

the government significantly “sweetened” what would have already been an attractive 

financial deal to Barta and his co-defendants. Finally, the government pressed Barta to make 

a deal that it had reason to believe Barta would be making primarily to benefit one of his less 

fortunate friends. The court concluded the presence of these factors established the 

government induced Barta to commit a crime the government conceded Barta was not 

predisposed to commit. 

Click HERE for the court’s opinion.

*****

Eighth Circuit

United States v. Gunnell, 2015 U.S. App. LEXIS 426 (8th Cir. Mo. Jan. 12, 2015)

Federal agents suspected Gunnell was a methamphetamine dealer. After the agents saw 

Gunnell riding a motorcycle, they contacted a local officer and asked him to “develop 

probable cause” to stop Gunnell so officers could search Gunnell and his motorcycle.

Later that day, the officer saw Gunnell leave an apartment building with a blue bag that he 

placed in the right saddlebag on his motorcycle. Gunnell got on the motorcycle and drove 

down the street, followed by the officer. The officer stopped Gunnell for speeding after he 

observed Gunnell driving ten miles per hour over the speed limit. Gunnell did not have his 

driver’s license with him, so the officer took Gunnell’s information verbally to conduct a 

record check. Approximately five minutes later, a K-9 officer arrived with his drug dog, 

Raider, who alerted to the right rear area of the motorcycle where Gunnell had placed the blue 

bag. Officers searched Gunnell’s motorcycle and found the blue bag, which contained one 

pound of methamphetamine and drug paraphernalia. The government charged Gunnell with 

possession with intent to distribute methamphetamine.

Gunnell argued the traffic stop initiated by the officer violated the Fourth Amendment.

The court disagreed. Even if the officer’s primary intent was to stop Gunnell in order to 

further a drug investigation, the traffic violation provided probable cause to support the stop. 

The court added, “any ulterior motivation” on the officer’s part “is irrelevant.”

The court further held the officer did not unlawfully extend the duration of the stop while 

waiting for the K-9 officer to arrive. There was undisputed testimony that it took the K-9 

officer approximately five minutes to arrive once his presence was requested. In addition, 

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when the K-9 officer arrived, the officer was still running Gunnell’s information through the 

computer and had yet to complete tasks related to the purpose of the original stop. 

Finally, the court held Raider’s alert on Gunnell’s motorcycle was reliable even though the K9 officer and Raider had not undergone drug detection training as a pair, but rather, received 

certification individually before being paired to work in the field. In this case, the K-9 officer 

and Raider had each undergone a 13-week training program before receiving their 

certifications to work as a drug-detection team. Once paired together, they had additional 

training every week, and they had been working as a team for approximately six-weeks before 

Gunnell’s traffic stop. 

Click HERE for the court’s opinion.

*****

United States v. Patrick, 2015 U.S. App. LEXIS 1003 (8th Cir. Ark. Jan. 23, 2015)

Federal agents had an outstanding warrant to arrest Barefield, but could not locate him. A 

confidential informant (CI) contacted the agents and agreed to arrange a meeting with a 

person the CI believed was Barefield. The CI told the agents Barefield would be driving a 

gold colored car with a dented passenger-side door, and would have a plastic water bottle 

containing drugs. At the appointed time, a gold colored car with a dented passenger-side door 

arrived at the meeting location and parked near the CI. A few minutes later, the car drove 

away; however, the agents were not able to positively identify the driver as Barefield. The 

agents contacted a local officer who conducted a traffic stop on the car. When the officer 

removed the driver from the car, he saw a clear water bottle in the center console, which

appeared to have a leafy substance floating in it. After the driver was secured in the officer’s 

patrol car, the agents arrived and searched the car for drugs. The agents saw the water bottle 

in the center console and discovered the top of the bottle could be removed to access packages 

of marijuana and fake cocaine inside. The agents also seized a digital scale from the glove 

box. The agents eventually discovered the driver of the car was Broderick Patrick, not 

Barefield. The government indicted Patrick for possession with intent to distribute marijuana. 

Patrick moved to suppress the evidence seized during the stop, arguing the traffic stop and 

search of his car violated the Fourth Amendment. 

The court disagreed. Even though the CI mistakenly identified the driver as Barefield, the 

court found the CI’s willingness to arrange the meeting, and his accurate description of the car 

and water bottle, supported a reasonable belief that his information was credible. Even 

disregarding the misidentification of the driver, the court concluded the other information 

provided by the CI established probable cause to believe the driver of the car, whoever it 

might be, had committed a crime. Therefore, the court held the officer was justified in 

conducting a traffic stop on the gold colored car. 

The court further held the search of Patrick’s car was lawful because when the officer 

removed Patrick from the car, he saw what appeared to be drugs in the water bottle located in 

the center console. In addition, the officers were entitled to search Patrick’s car incident to 

his arrest, as it was reasonable for the officers to believe the car contained evidence related to 

Patrick’s arrest for possession of marijuana. 

Click HERE for the court’s opinion.

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*****

Tenth Circuit

United States v. Gilmore, 2015 U.S. App. LEXIS 696 (10th Cir. Colo. Jan. 16, 2015)

On a January day, in Denver, Colorado, a parking lot attendant reported that a man staggered 

into the lot who appeared to be extremely intoxicated. Officers arrived and encountered the 

man, later identified as Gilmore. Gilmore was unsteady on his feet, staring blankly into the 

air, and having difficulty focusing on the officers. When the officers asked Gilmore what he 

was doing in the parking lot, Gilmore mumbled an incoherent answer. The officers believed 

Gilmore was a candidate for protective custody under Colorado’s Emergency Commitment 

statute due to his apparent level of intoxication. Before placing Gilmore in a police car for 

transport, one of the officers frisked Gilmore and felt the butt of a handgun under Gilmore’s 

coat. The officer lifted the coat, saw a pistol, and seized it from Gilmore’s waistband. The 

officers arrested Gilmore who was indicted for being a felon in possession of a firearm.

Gilmore argued the frisk was unlawful because the officers did not have reasonable suspicion 

to believe he was armed and dangerous.

Under the community caretaking exception to the Fourth Amendment’s warrant requirement,

officers may seize a person without a warrant to ensure the safety of the public and /or the 

individual, regardless of any suspected criminal activity. The Tenth Circuit has recognized 

the community caretaking exception allows officers to perform investigatory seizures of 

intoxicated persons. To justify a seizure of a person for intoxication by alcohol, an officer 

must have probable cause to believe an intoxicated person is a danger to himself or others. 

In this case, the court concluded the totality of the circumstances could have led a reasonable 

officer to conclude Gilmore was a danger to himself because he appeared to be severely 

intoxicated to the point of impairment. In addition, the court found the neighborhoods 

surrounding the parking lot had a high concentration of gang members and that officers had 

made numerous contacts with individuals possessing illegal weapons in those neighborhoods. 

As a result, the court concluded a reasonable officer could have believed Gilmore might be

harmed if he wandered disoriented into one of these neighborhoods. Finally, while the court 

determined Gilmore was dressed appropriately, the court found the officers could have 

reasonably believed that if Gilmore were to become unconscious in a remote area or fail to

find shelter when the temperature dropped that evening, he might suffer serious injury or 

death. 

Once the officers established probable cause to believe Gilmore was a danger to himself, the 

court held the officers were allowed to conduct a frisk before taking Gilmore into protective 

custody.

Click HERE for the court’s opinion.

*****

18
Eleventh Circuit

United States v. Holt, 2015 U.S. App. LEXIS 1473 (11th Cir. Fla. Jan. 30, 2015)

Holt and several co-defendants were convicted of several drug-related crimes. At trial, the 

government introduced into evidence large amounts of cash that had been seized from Holt’s 

vehicle during two different traffic stops, as well as evidence obtained from a GPS tracker.

The first stop occurred when an officer pulled Holt over for speeding. During the stop, the 

officer recognized Holt from when the officer worked in the narcotics unit. In addition, when 

the officer requested Holt’s driver’s license, the officer noticed Holt was nervous, breathing 

heavily, sweating profusely and failed to maintain eye contact. Based on Holt’s behavior, the 

officer requested a canine unit to respond to the scene. While the officer was completing the 

paperwork associated with the stop, the canine unit arrived. After the canine alerted on the 

front passenger door of Holt’s car, the officer search the glove box and found over $45,000 in 

cash, which he seized.

The second stop occurred when an officer pulled Holt over because his tag lights were not 

working properly. During the stop, the officer spoke with Holt and his passenger separately 

concerning their travel plans. After both men gave the officer different accounts of their 

plans, the officer requested a canine unit. While the officer was completing his paperwork 

associated with the stop, the canine unit arrived. The canine alerted to the car’s driver’s side 

door, where the officer found over $31,000 in cash, which he seized.

Holt argued the district court should have suppressed the currency seized during the traffic 

stops because the officers unreasonably prolonged those stops to allow time for the canine 

units to arrive.

The court disagreed. In both stops, the canine units arrived while the officers were still 

conducting routine records checks and preparing the traffic citations. Therefore, the court 

concluded the use of the canines to sniff the exterior of the vehicles during the stops did not 

violate the Fourth Amendment. 

The court further held that in both stops, the officers had developed reasonable suspicion to 

believe Holt might be transporting illegal drugs or currency by the time the canine units 

arrived. 

Finally, the court held the evidence obtained from the warrantless installation and monitoring 

of a GPS tracker was admissible. In this case, the warrantless use of a GPS tracker occurred 

in September 2011, several months before the United States Supreme Court ruled in U.S. v 

Jones that the warrantless use of a GPS tracker constituted a Fourth Amendment search. As a 

result, even if Jones applied, the court held the officers acted in good faith reliance on preJones case law that allowed the warrantless installation and monitoring of a tracking device.

Click HERE for the court’s opinion.

*****

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