Department of Homeland Security

Federal Law Enforcement Training Center

Office of Chief Counsel

Legal Training Division 

February 2013

THE

FEDERAL LAW ENFORCEMENT

-INFORMER- A MONTHLY LEGAL RESOURCE AND COMMENTARY FOR LAW 

ENFORCEMENT OFFICERS AND AGENTS

Join THE INFORMER E-mail Subscription List

It’s easy! Click HERE to subscribe,

change your e-mail address, or unsubscribe.

THIS IS A SECURE SERVICE. No one but the FLETC Legal Division will have 

access to your address, and you will receive mailings from no one except the 

FLETC Legal Division.

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

Federal Law Enforcement Training Center’s Office of Chief Counsel is dedicated to providing law enforcement officers with 

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

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

author and do not necessarily reflect the views of the Federal Law Enforcement Training Center. The Informer is researched and 

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

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

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

Informer by visiting the Legal Division web page http://www.fletc.gov/training/programs/legal-division/the-informer .

This edition of The Informer may be cited as “2 INFORMER 13”.
In This Issue 

Case Summaries

United States Supreme Court

Click Here

******************************

Circuit Courts of Appeals

 Click Here

 1st Circuit 2nd Circuit 4th Circuit 5th Circuit 

 6th Circuit 7th Circuit 8th Circuit 10th Circuit 

******************************

Free FLETC Informer Webinar

Back by Popular Demand: U.S. v. Jones

The landmark decision of U.S. v. Jones fundamentally changed the definition of a “search” 

under the Fourth Amendment. While the implications of this decision on the installation of 

tracking devices was straightforward, the decision in this case has far reaching implications 

regarding searches under the Fourth Amendment that may not be so readily apparent.

Join us Thursday March 14, 2013 at 2:30 p.m. Eastern Time or Friday March 22, 2013 at 

9:30 a.m. Eastern time for a webinar where we will explain the current status of the law of 

searches under the Fourth Amendment in light of U.S. v. Jones. In this two-hour webinar, DHS 

Attorney and FLETC Senior Instructor Bruce-Alan Barnard will explain how U.S. v. Jones has 

altered the Fourth Amendment landscape. Now, through the Homeland Security Information 

Network, you can participate in one of Mr. Barnard’s seminars from anywhere you have a 

computer and an internet connection. 

As a subscriber to the FLETC Informer, there is NO COST to you for this seminar, but space

is limited! To register for this webinar, please email bruce.barnard@fletc.dhs.gov indicating 

you would like to attend. All registrants will be sent detailed webinar login information. 
2

CASE SUMMARIES

 United States Supreme Court

Smith v. United States, 2013 U.S. Lexis 601 (U.S. 2013)

The court unanimously held a defendant charged with criminal conspiracy has the burden to 

prove he withdrew from the conspiracy. The Due Process Clause does not require the 

government to prove the absence of withdrawal beyond a reasonable doubt. The court noted the 

defendant has this burden whether his withdrawal terminates his criminal liability for the postwithdrawal acts of his co-conspirators, or whether it occurred outside the statute-of-limitations 

period, which would create a complete defense to the conspiracy charge. 

Click HERE for the court’s opinion.

*****

Bailey v. United States, 2013 U.S. LEXIS 1075 (U.S. 2013)

Police officers obtained a search warrant for Bailey’s apartment. While conducting surveillance 

prior to the execution of the warrant, the officers saw Bailey come out of the apartment, get into 

a car and drive away. The officers followed Bailey’s car for approximately one mile and then 

conducted a traffic stop. The officers handcuffed Bailey, told him he was being detained 

incident to the execution of the search warrant, and drove him back to the apartment. Bailey 

denied living in the apartment. After the officers found guns and drugs in the apartment, they 

arrested Bailey. The officers found a key to the apartment in Bailey’s pocket during the search 

incident to arrest. Bailey argued the key should have been suppressed because the officers 

detained him in violation of the Fourth Amendment. 

In Michigan v. Summers, the United States Supreme Court held it was reasonable under the 

Fourth Amendment for police officers to detain occupants found on the premises during the 

execution of a search warrant. No additional suspicion is required as the court held the detention 

allows the officers the opportunity to conduct a safe and efficient search. 

The Second Circuit followed the Fifth, Sixth and Seventh Circuit Courts of Appeal and held the 

officers’ authority under Summers to detain Bailey incident to the execution of the search

warrant was not strictly confined to the physical premises of the apartment as long as the 

detention occurred as soon as practicable after Bailey left the apartment. The officers’ decision 

to wait until Bailey had driven out of view of the apartment before detaining him was reasonable 

given their concern for officer safety and the potential of alerting other possible occupants of the 

apartment. 

The Eighth and Tenth Circuits had declined to extend Summers to allow officers to detain an 

occupant at a location away from that residence even if the occupant was seen leaving the 

residence subject to a search warrant. 

The Court held Michigan v. Summers does not permit the detention of occupants beyond the 

immediate vicinity of the premises covered by a search warrant. Here, the officers detained 
3

Bailey approximately one mile from his apartment, a point beyond any reasonable understanding 

of the immediate vicinity of the premises being searched. If police officers elect to detain an 

individual after he leaves the immediate vicinity of the premises being searched, that detention 

must be justified by some other rationale. For example, a brief stop for questioning based on 

reasonable suspicion under Terry or an arrest based on probable cause would be permitted.

Click HERE for the court’s opinion.

*****

Florida v. Harris, 2013 U.S. LEXIS 1121 (U.S. 2013)

During a traffic stop, a police officer noticed Harris had an open beer can and appeared to be 

very nervous. After Harris refused to a consent search, the officer walked his drug-detection 

dog, Aldo, around Harris’ truck. Aldo alerted at the driver’s side door handle, leading the officer 

to believe he had probable cause to search Harris’ truck. The officer did not find any drugs in 

Harris’ truck but he did find two hundred loose pseudoephedrine pills and other ingredients

commonly used in the manufacture of methamphetamine. Harris was arrested and charged with 

illegal possession of those ingredients. 

The trial court held the officer had probable cause to search Harris’ truck. The Florida Supreme 

Court reversed, holding the officer did not have probable cause to search Harris’ truck, stating in 

part, “the fact that the dog has been trained and certified, by itself, is not enough to establish 

probable cause to search the interior of the vehicle.” The court stressed the need for “evidence of 

the dog’s performance history,” including records showing “how often the dog has alerted in the 

field without contraband having been found.”

The United States Supreme Court agreed with the trial court and reversed the Florida Supreme

Court in holding the officer had probable cause to search Harris’ truck. 

In determining whether probable cause to search exists, the court has consistently looked to the 

totality of the circumstances and rejected rigid bright-line tests. The Florida Supreme Court 

ignored this established approach by creating a strict evidentiary checklist to assess a drugdetection dog’s reliability. The question, similar to every inquiry into probable cause, is whether 

all the facts surrounding a dog’s alert would make a reasonably prudent person think that a 

search would reveal contraband or evidence of a crime. 

In this case, the state introduced substantial evidence describing Aldo’s initial and refresher 

training and his continued proficiency in finding drugs. Because training records established 

Aldo’s reliability in detecting drugs and Harris failed to undermine that showing, the officer had 

probable cause to search Harris’ truck. 

Click HERE for the court’s opinion.

*****
4

Circuit Courts of Appeals

1st Circuit

Robinson v. Cook, 2013 U.S. App. LEXIS 1532 (1st Cir. Mass. Jan. 23, 2013)

Police officers arrested Robinson and his son for their involvement in a hit-and-run, and seized 

Robinson’s car. After the charges were dismissed, Robinson and his son sued the officers for 

their warrantless arrests and for the warrantless seizure of Robinson’s car. 

The court held the officers were entitled to qualified immunity.

First, the officers had probable cause to seize Robinson’s car under the automobile exception to 

the Fourth Amendment’s warrant requirement. The victim’s description of the car that struck 

him closely matched Robinson’s car, which was found within a mile of the hit-and-run site, with 

its engine still warm. These circumstances created a fair probability Robinson’s car was 

involved in the hit-and-run.

Next, the court held the officers had probable cause to arrest Robinson. The court found it was 

reasonable for the officers to rely on the victim’s identification of Robinson’s car as the one that 

struck him. It was also reasonable for the officers to believe Robinson when he told them he had 

been driving the car that day but not to believe him when he said he had only driven to work and 

then back home. An officer is not required to rely upon a suspect’s self-serving statements when 

other evidence contradicts it.

Finally, the court held the officers had probable cause to arrest Robinson’s son, on an aidingand-abetting theory, based on the victim’s identification of him as the passenger in the car that 

struck him. Even though it was a show-up identification, it occurred a few hours after the 

incident, the victim got a good look at the passenger in the car and the victim recognized the 

son’s distinct hairstyle. 

Click HERE for the court’s opinion.

*****

2nd Circuit

Swartz v. Insogna, 2013 U.S. App. LEXIS 186 (2d Cir. N.Y. Jan. 3, 2013)

Swartz was a passenger in a car driven by his wife, Judy, when he saw a police officer using a 

radar device at an intersection. Swartz expressed his displeasure at what the officer was doing 

by reaching his right arm outside the passenger side window and extending his middle finger 

over the car’s roof. When the Swartzs arrived at their destination a few minutes later, they saw a 

police car, with its lights flashing, behind them. Officer Insogna approached and requested 

Judy’s driver’s license and registration. After reviewing the documents, Insogna returned them 

and told the Swartzs they could go. Swartz told Insogna he would like to speak to him man-toman, but another officer stepped in front of him. Swartz said to the officer, “I feel like an ass.” 

When a third officer asked him what he said, Swartz repeated himself. The officer then arrested 

Swartz. At the police station, the officer told Swartz he had been arrested for disorderly conduct. 

The charge was eventually dismissed. Swartz sued Insogna and the other officers. 
5

The court held Insogna did not have reasonable suspicion that criminal activity or a traffic 

violation was afoot; therefore, the stop was unlawful. The only act Insogna saw that caused him 

to initiate the stop was Swartz’s giving-the-finger gesture. Insogna testified he thought Swartz, 

“was trying to get my attention for some reason,” and he “was concerned for the safety of the 

female driver.” The court did not find this explanation reasonable. Instead, the court 

commented, “this ancient gesture of insult is not the basis for a reasonable suspicion of a traffic 

violation or impending criminal activity.” In addition, no passenger planning some criminal 

conduct toward the driver of a vehicle would call attention to himself by giving the finger to a 

police officer. Consequently, the court held Insogna was not entitled to qualified immunity.

The court held the other officers did not have probable cause to arrest Swartz for disorderly 

conduct. Even under New York’s expansive definition of disorderly conduct, Swartz’s comment 

could not create a reasonable suspicion a disorderly conduct violation had occurred. None of the 

officers’ reports claimed Swartz was disruptive, threatening or creating a public disturbance. 

Because an objectively reasonable officer would not have believed probable cause existed to 

arrest Swartz, the officers were not entitled to qualified immunity. 

Click HERE for the court’s opinion.

*****

4th Circuit

United States v. Watson, 2013 U.S. App. LEXIS 30 (4th Cir. Md. Jan. 2, 2013)

Watson worked at a convenience store and lived in a room located on the second floor of the 

same building. After police officers arrested several individuals for dealing drugs near the 

convenience store, they discovered one of the individuals lived in one of the rooms on the second 

floor of the building. After the officers decided to obtain a search warrant for the building, they 

entered the convenience store and detained Watson and the owner of the store. Neither Watson 

nor the store owner were among the individuals the officers suspected of selling drugs and the 

officers did not have information linking Watson or the store owner to any kind of criminal 

activity. The officers kept Watson and the owner in the back area of the store for three hours 

while they waited for the search warrant. Other officers eventually returned with the warrant and 

during the search, officers went into Watson’s room and found a handgun and ammunition. 

When asked about the items, Watson made an incriminating statement. Watson was charged 

with possession of a firearm and ammunition by a felon. 

The court found while the seizure of the building may have been supported by probable cause, 

Watson’s seizure was not. The officers did not suspect Watson of any criminal activity, and they 

had no reason to believe he might attempt to destroy or hide the evidence sought in the search 

warrant application. As a result, Watson’s three hour detention was unreasonable and 

constituted an unlawful custodial arrest in violation of the Fourth Amendment. 

The court further held Watson’s incriminating statement should have been suppressed because it 

was the product of his unlawful custodial arrest. Watson’s statement occurred as part of an 

uninterrupted course of events, during which, there were no significant intervening events. 

Therefore, Watson’s statement was the product of his unlawful arrest and not an act of free will.

Click HERE for the court’s opinion.
6

*****

United States v. Saraeun Min, 2013 U.S. App. LEXIS 94 (4th Cir. Va. Jan. 3, 2013)

Several individuals conspired to steal cocaine from the stash house of a drug cartel. However, 

before they could commit the robbery, law enforcement officers arrested them. Unknown to the 

conspirators, the drug stash house and the cocaine did not exist, but were a fiction created by 

undercover law enforcement officers. 

In a case of first impression, the court followed the First, Seventh, Ninth and Eleventh circuits 

and held that factual impossibility is not a defense to the crime of conspiracy. It is irrelevant the

stash house and drugs did not exist and it would have been impossible to commit such a robbery. 

The crime of conspiracy is the agreement to commit an unlawful act, in this case a robbery, not 

the completion of the act itself. 

Click HERE for the court’s opinion.

*****

United States v. Bumpers, 2013 U.S. App. LEXIS 1075 (4th Cir. Va. Jan. 16, 2013)

A police officer saw Bumpers and another man standing next to a pair of garbage dumpsters near 

the back of a convenience store’s parking lot. When the men saw the officer, they began 

walking away from him at a fast pace. Suspecting the men were trespassing, the officer told 

them they were not free to go and demanded their identification. One man ran, but Bumpers 

stopped. The officer arrested Bumpers after a computer check indicated he had an active arrest 

warrant. During the search incident to arrest, the officer found a loaded handgun in Bumpers’

pocket.

The court held the officer had reasonable suspicion to conduct a Terry stop on Bumpers. First, 

the convenience store was in a high-crime area and was part of a shopping plaza where multiple 

shootings and drug arrests had taken place. Second, Bumpers had been standing in an area 

posted with “No Trespassing” signs and he was not carrying shopping bags or items that would 

have indicated he was patron of the store. Third, Bumpers’ attempt to leave the area upon seeing 

the officer was behavior more consistent with that of a trespasser than a lawful customer. 

Finally, when Bumpers left the premises he walked past the store’s front doors, but did not enter. 

Based on these facts, the officer had reasonable suspicion to believe Bumpers was trespassing. 

Click HERE for the court’s opinion.

*****

United States v. Abramski, 2013 U.S. App. LEXIS 1881 (4th Cir. Va. Jan. 23, 2013)

Federal agents executed a search warrant at Abramski’s house after he became a suspect in a 

bank robbery. During the search, agents found a green bank bag, which contained a written 

receipt from a person to whom Abramski had transferred a Glock handgun. The government 

never charged Abramski with bank robbery, however, Abramski, a former police officer, was 

convicted of two federal firearms violations after admitting he was an illegal “straw purchaser”

of the Glock handgun.
7

Abramski argued the search warrant for his house was not supported by probable cause. 

The court disagreed, finding there was a substantial basis for the magistrate judge to conclude 

probable cause existed for the search of Abramski’s house. First, Abramski was flagged as a 

suspicious customer at the bank a few days before the robbery, was having financial difficulties 

and had been fired by the police department for stealing money. Second, Abramski fit the 

description of the robber, had test-driven a car the day of the robbery that matched the 

description of the get-away vehicle and had purchased firearms with large amounts of cash after 

the bank robbery. 

The court also held the agents were entitled to seize the receipt to Abramski from the purchaser 

of the Glock. The receipt was found inside a green zippered bag with the bank’s logo on it, and 

at the time, the agents knew the robbery had been committed with a firearm similar to a Glock 

handgun. 

Click HERE for the court’s opinion.

*****

Tobey v. Jones, 2013 U.S. App. LEXIS 2133 (4th Cir. Va. Jan. 25, 2013)

Tobey was scheduled to fly from Richmond to Wisconsin to attend a funeral. After going 

through the initial security checkpoint, Transportation Security Administration (TSA) agents 

randomly selected Tobey for a secondary inspection. In anticipation that he might be subjected 

to enhanced screening, Tobey had written the text of the Fourth Amendment on his chest, as he 

believed the full-body scanner used as part of the secondary inspection was unconstitutional. 

Before proceeding through the full-body scanner, Tobey removed his sweatpants and t-shirt, 

leaving him in running shorts and socks, revealing the text of the Fourth Amendment written on 

his chest. The TSA agent told Tobey he did not have to remove his clothes and Tobey replied he 

wished to express his view that the enhanced screening procedure was unconstitutional. The 

TSA agent radioed for assistance. Richmond airport police officers responded and immediately 

handcuffed and arrested Tobey for creating a public disturbance. The TSA officials did not tell

the police officers what occurred at the screening station, nor did the police officers ask. The 

disorderly conduct charge against Tobey was later dismissed. 

Tobey sued the TSA agents, claiming in part, they violated his First Amendment rights by having 

him arrested in retaliation for displaying the text of the Fourth Amendment on his chest.

The court held Tobey had adequately alleged a violation of his First Amendment rights and the 

TSA agents were not entitled to qualified immunity. 

The court noted even if Tobey’s behavior was bizarre, bizarre behavior, by itself, cannot be 

enough to arrest someone. In addition, bizarre behavior does not automatically equal disruptive 

or disorderly conduct. Here, the TSA agents seemed to think that removing clothing was per se

disruptive. However, passengers routinely remove clothing at an airport screening station, many 

times per TSA regulations. Tobey calmly took off his t-shirt and sweatpants without causing a 

disruption as was evidenced by the fact the TSA agents never asked him to put his clothes back 

on. While it is possible further facts will establish the TSA agents acted reasonably in having 

Tobey arrested, based on the record before it, the court could not make that conclusion. 

Click HERE for the court’s opinion.
8

*****

Meyers v. Baltimore County, 2013 U.S. App. LEXIS 2282 (4th Cir. Md. Feb. 1, 2013)

Mrs. Meyers called 911 to report her adult sons, Ryan and Billy, were fighting. When police 

officers arrived, Mrs. Meyers, Mr. Meyers and Billy were outside. Mr. Meyers had a laceration 

on his nose the officers believed was caused by Ryan. The officers could see Ryan pacing back 

and forth inside the house carrying a baseball bat. The officers knew Ryan suffered from a 

mental illness and felt he posed a threat to their safety because he was holding a baseball bat. 

After the officers failed to get Ryan to surrender, they entered the house and Officer Mee ordered 

Ryan to drop the baseball bat. After Ryan refused, Officer Mee deployed his taser in probe 

mode against Ryan. Ryan, who was approximately six feet tall, weighing two hundred sixty 

pounds, did not drop the bat or fall to the floor in response to the first taser shock. Officer Mee 

deployed his taser against Ryan a second time. This shock caused Ryan to drop the bat but he 

continued to advance toward the officers. Officer Mee deployed his taser a third time, which 

caused Ryan to fall to the ground. Once on the ground, the officers sat on Ryan’s back. While 

the other officers remained on Ryan’s back, Officer Mee deployed his taser a fourth time in 

probe mode, then changed the taser to stun mode and delivered six additional shocks to Ryan 

until he was unconscious. Ryan eventually died. 

Ryan’s parents sued the officers, claiming a variety of Fourth Amendment violations.

First, the court held the officers’ entry into the house to arrest Ryan was reasonable. The officers 

had probable cause to believe Ryan had assaulted his father and that he could cause further injury 

or property damage because he was armed with a baseball bat. 

Second, the court held Officer Mee’s first three deployments of his taser did not amount to an 

unreasonable or excessive use of force. During the period Officer Mee administered the first 

three taser shocks, Ryan was acting erratically, holding a baseball bat he did not drop until after 

he received the second shock, and was advancing toward the officers until the third shock caused 

him to fall to the ground. Under these circumstances, Ryan posed an immediate threat to the 

officers’ safety and he was actively resisting arrest. Officer Mee’s first three uses of the taser 

were objectively reasonable and did not violate the Fourth Amendment. 

Third, the court held it was not reasonable for Officer Mee to deploy his taser the last seven 

times against Ryan. Witness testimony established that after Ryan fell to the floor he was no 

longer actively resisting arrest and did not pose a continuing threat to the officers’ safety, yet 

Officer Mee continued to use his taser until Ryan was unconscious. The court concluded,

“It is an excessive and unreasonable use of force for a police officer repeatedly to 

administer electrical shocks with a taser on an individual who no longer is armed, 

has been brought to the ground, has been restrained physically by several other 

officers, and no longer is actively resisting arrest.”

Finally, the court held, at the time of the incident, it was clearly established that officers who use 

unnecessary, gratuitous and disproportionate force to seize an unarmed citizen, are not acting in 

an objectively reasonable manner and therefore, are not entitled to qualified immunity. 

Click HERE for the court’s opinion.

*****
9

5th Circuit

United States v. Andres, 2013 U.S. App. LEXIS 143 (5th Cir. Tex. Jan. 3, 2013)

In December 2009, federal agents conducting an investigation into a large drug trafficking 

operation installed a GPS device underneath a pick-up truck, with a trailer attached to it, while it 

was parked on a public street after it had been loaded with twenty kilograms of cocaine. Agents 

monitored the truck’s movements as it drove toward Chicago. The agents contacted the Illinois 

State Police, gave them information about the truck, and told them they would like to have the 

drugs discovered during a traffic stop so they would not have to disclose the existence of a 

federal investigation. 

After being provided GPS information on the truck, a police officer saw it on an interstate 

highway and began to follow it. The officer conducted a traffic stop on the truck for improper 

lane usage and improper lighting after he saw the trailer was swaying back and forth within its 

lane and its taillights were flickering. After the officer wrote a warning ticket, he asked Andres 

to get out of the truck so he could talk to him about the taillight problem. After inspecting the 

electrical connection between the truck and trailer, the officer handed Andres his clipboard so he 

could sign the ticket. While Andres was signing the ticket, the officer asked him where he was

coming from. Andres told the officer he was coming from Joliet, but the officer knew this could 

not be possible based on the surveillance the officers had been conducting. The officer also 

noticed that Andres had begun to fidget and move his feet and arms around very nervously. 

When the officer asked Andres if he had any drugs in the truck, he said, “No” and then consented 

to a search with a drug dog. The drug dog alerted and the officers found twenty kilograms of 

cocaine hidden in the truck. 

Andres argued the drug evidence should have been suppressed because the initial traffic stop was 

a pretext and not based on any actual traffic offense. Even if the traffic stop was valid, Andres 

claimed the officer’s continued questioning and dog search were not reasonably related to the 

original reasons for the stop. 

First, the court held the officer was justified in stopping Andres based on the traffic violations he 

saw. Second, the court held the officer’s continued seizure of Andres after the reason for the 

initial traffic stop ended was supported by reasonable suspicion. It was reasonable for the 

officer, who had stopped Andres for a safety violation concerning his trailer, to ask him to get 

out of his truck to look at the trailer and discuss the problem. In addition, the officer’s question, 

asking Andres where he was coming from, occurred before the officer had finished dealing with 

the traffic offenses and did not extend the scope or duration of the stop. Andres’ untruthful 

answer created reasonable suspicion that justified his continued detention, which ultimately led 

to the officer receiving consent to search the truck. 

Andres also argued the warrantless placement and use of the GPS device to monitor the 

movements of his truck violated the Fourth Amendment in light of the United States Supreme 

Court decision in U.S. v. Jones, decided in 2012. 

The court declined to rule on whether warrantless GPS searches are per se unreasonable. Even 

assuming a Fourth Amendment violation had occurred, the court held the evidence should not be 

suppressed in this case because in December 2009, it was objectively reasonable for agents in the 

Fifth Circuit to believe that warrantless GPS tracking was allowed under circuit precedent.
10

Click HERE for the court’s opinion.

*****

6th Circuit

Alman v. Reed, 2013 U.S. App. LEXIS 364 (6th Cir. Mich. Jan. 7, 2013)

Alman was arrested at the conclusion of an undercover operation in a public park conducted by 

the police after they received complaints of lewd conduct and sexual activity taking place in the 

park. The undercover officer claimed he was standing next to Alman when Alman reached out 

and grabbed his crotch with a completely cupped hand. Alman stated he only brushed his hand 

up against the front of the officer’s pants. After the arrest, Sgt. Swope, the undercover officer’s 

supervisor, directed a third officer to charge Alman with accosting and soliciting and fourth 

degree criminal sexual conduct. In addition, the police seized the car Alman had driven to the 

park, which was owned by Barnes. Barnes paid a nine hundred dollar redemption fee to recover 

his car. The county prosecutor eventually dismissed the state charges against Alman. The police 

then charged Alman with disorderly conduct and battery, which were municipal ordinance 

violations. A state court judge first dismissed the disorderly conduct charge and later the battery 

charge, after none of the officers appeared in court. 

Alman and Barnes sued the police officers, alleging various violations of their constitutional 

rights. The sole issue on appeal was whether Sgt. Swope was entitled to qualified immunity on 

the claims against him. 

First, the court held there was no probable cause to support any of the charges brought against 

Alman. As to the initial charges, no reasonable officer could have believed the brief touch in 

question was achieved by force or coercion, an element of fourth degree criminal sexual conduct. 

In addition, the two men were engaged in a sexually flirtatious conversation when Alman 

reached out and touched the undercover officer’s crotch. No reasonable officer could have 

interpreted Alman’s actions as an invitation to commit a lewd or immoral act in public, an 

element necessary to support the charge of solicitation or accosting. 

As to the second set of charges, the officers did not have probable cause to arrest Alman for 

disorderly conduct because they could not have reasonably believed he was about to expose 

himself to the undercover officer. Finally, the officers did not have probable cause to arrest

Alman for battery because some degree of force or violence is a required element, which was not 

present here. 

Second, the court held Swope was not entitled to qualified immunity because it was not 

reasonable for him to believe probable cause existed to arrest Alman. Swope testified he could 

not hear the conversation between the undercover officer and Alman. Swope also stated he did 

not ask any follow-up questions about how Alman had touched the officer before completing 

Alman’s arrest. Without having more facts, Swope had no reasonable basis to believe any of the 

offenses Alman was charged with had occurred. 

Finally, the court held Swope was not entitled to qualified immunity for the seizure of Barnes’ 

car as it was seized as the result of Alman’s arrest without probable cause. 

Click HERE for the court’s opinion.
11

*****

United States v. Perry, 2013 U.S. App. LEXIS 503 (6th Cir. Tenn. Jan. 9, 2013)

Two police officers responded to a boarding house where Perry lived after one of the residents 

reported she had pointed a handgun at him. The officers found Perry in the hallway outside her 

room. The officers handcuffed and frisked Perry but found no gun. The officers asked for 

Perry’s consent to search her room, which she granted. Inside Perry’s room, the officers found a 

handgun sticking out from a pillow on her bed. Perry was charged with being a felon in 

possession of a firearm. 

Perry claimed she did not consent to the search of her room, but if she did, her consent had been 

obtained involuntarily because when she gave consent she was handcuffed, the officers were 

armed, the officers never told her she could decline and she was drunk. 

First, the two officers and a third witness testified Perry consented to the search of her room. 

After reviewing the record, the court found the district court did not commit any error by 

crediting their testimony.

Second, notwithstanding Perry’s claims, the facts clearly supported the district court’s finding 

Perry voluntarily consented to the search of her room. Perry was no stranger to the criminal 

justice system, having been arrested fifty seven times and presumably handcuffed each time. 

Perry’s encounter with the officers in the hallway was brief, without any repeated questioning or 

physical abuse. In addition, none of the other facts she cited supported a finding that her 

consent was involuntarily obtained. 

Click HERE for the court’s opinion.

*****

Stricker v. Twp. of Cambridge, 2013 U.S. App. LEXIS 846 (6th Cir. Mich. Jan. 14, 2013)

Susan Stricker called 911 and requested help for her son, Andrew, who was suffering from an 

apparent drug overdose. Following policy, police officers responded to the call to secure the 

premises for the paramedics. One of the officers had previously arrested Andrew on a drug 

charge and knew he was addicted to heroin. When the officers arrived, Stricker and her husband 

refused to allow them to enter their house without a warrant. However, the Strickers allowed the 

officers to talk to Andrew through a closed window. Andrew appeared pale, his eyelids were 

heavy and he had trouble focusing on the officers. After unsuccessfully trying to convince the 

Strickers to let the officers enter the house or to have their son come out, the officers forced their 

way in, conducted a search of the house, and arrested the Strickers while the paramedics treated 

their son. The Strickers sued various police officers for violating their Fourth Amendment rights 

in connection with their response to the 911 call.

The court affirmed the holding of the district court in which the officers were granted qualified 

immunity. 

The court held the officers’ warrantless entry into the Strickers’ house was objectively 

reasonable under the exigent circumstances exception to the Fourth Amendment’s warrant 

requirement. The combination of the 911 call requesting help for a drug overdose, the officers’ 

independent knowledge and observations confirming the reported overdose and the Strickers’ 
12

attempts to deny the officers access to their house, despite their initial call for help, made it 

objectively reasonable for the officers to believe Andrew needed immediate aid. 

In addition, the court held the officers were justified in conducting a protective sweep of the 

entire house after Andrew was located so the paramedics could safely treat him. Based on the 

Strickers’ refusal to allow entry into the house, it was reasonable for the officers to think they or 

someone else inside the house might take further action against them. 

The court further held the officers were entitled to search dresser drawers and cabinets in the 

house. It was reasonable for the officers to search these areas to look for clues as to what 

Andrew ingested in order to aid the paramedics in treating him.

Next, the court held the officers reasonably believed the Strickers’ failure to comply with their 

lawful commands to allow entry into the house could provide probable cause to arrest them. 

Finally, the court held the officers used a reasonable amount of force against the Strickers during 

this encounter. Although the Strickers alleged the officers used excessive force in applying 

handcuffs, neither complained the handcuffs were too tight, the officers ignored any such 

complaint or they suffered any injuries because of the handcuffs being too tight. In addition, the 

court held it was reasonable for the officers to point their firearms and tasers at the Strickers 

during the arrest process as both had attempted to evade arrest by flight once the officers entered 

the house. 

Click HERE for the court’s opinion.

*****

7th Circuit

United States v. Bueno, 2013 U.S. App. LEXIS 372 (7th Cir. Ill. Jan. 7, 2013)

A police officer stopped a van for speeding. Bueno was driving and Flores, the owner of the 

van, was a passenger. Both men told the officer they lived in Dallas and provided valid Texas 

driver’s licenses. When the officer commented on the number of boxes in the back of the van, 

Flores told the officer he owned a transportation company and he and Bueno were transporting 

packages to Mexico. Flores then gave the officer a business card with a Chicago address. 

The officer had Bueno join him in his patrol car where he wrote him a warning ticket for 

speeding. While he was writing the ticket, the officer asked Bueno about the transportation 

company, but Bueno was unable to give him any specific information about the business or 

contents of the packages in the van. After he issued the ticket, the officer made Bueno wait in 

the patrol car while he went back and spoke to Flores further about the packages in the van. 

After receiving consent to search, the officer walked his drug-detection dog around the van and it 

alerted to the presence of narcotics. A search of the van revealed brick-shaped objects wrapped 

in plastic that Bueno admitted were the proceeds from the sale of narcotics that he and Flores 

were transporting to Mexico.

The court held the officer’s initial traffic stop, which lasted through the issuance of the warning 

ticket to Bueno, was supported by the officer’s observation of Bueno’s van exceeding the speed 

limit.
13

Next, the court held Bueno’s continued detention, after the issuance of the warning ticket, was 

supported by reasonable suspicion the officer developed during the traffic stop. Before he 

finished writing the warning ticket, the officer saw the van was loaded with boxes that Flores 

told him were being transported to Mexico. Although Flores told the officer the packages were 

being delivered through his business, the van was registered to Flores, not the transportation 

company, and it bore no company markings, as would be expected on a company’s van. In 

addition, while Flores said he owned the company and he and Bueno lived in Dallas, the business 

card he gave the officer contained a Chicago business address. Finally, when the officer 

questioned Bueno about the transportation company, as he wrote the warning ticket, Bueno was 

unable to give the officer specific answers about the company or the packages in the van. By the 

time the officer issued Bueno the warning ticket for speeding, he had developed reasonable 

suspicion to prolong the stop to ask Flores about his business and the packages he was 

transporting. It was during this time that Flores gave the officer consent to search the van.

Finally, once the drug-detection dog alerted to the presence of narcotics, the officers were 

entitled to search the van and detain Bueno further. 

Click HERE for the court’s opinion.

*****

Abbott v. Sangamon County, 2013 U.S. App. LEXIS 1963 (7th Cir. Ill. Jan. 29, 2013)

An animal control officer went to Cindy Abbott’s house to investigate a complaint that her dog 

had been running loose in the neighborhood. After Travis Abbott, Cindy’s adult son, threatened 

the animal control officer, police officers were dispatched to the house. An officer arrested 

Travis, handcuffed him with his arms behind his back and placed him in the back of his police 

car. As the officer was driving away, Travis began to struggle in the backseat, causing the 

officer to collide with Cindy’s parked car. Cindy began screaming at the officer and approached 

his police car. The officer got out of his car and ordered Cindy to stop, but she did not. The 

officer shot Cindy in the abdomen with his taser in dart mode, which caused her to fall to the 

ground. After Cindy refused the officer’s commands to roll over onto her stomach, he deployed 

his taser against her a second time. The officer then rolled Cindy onto her stomach and

handcuffed her. The officer went back to his car and discovered Travis had gotten his arms in 

front of his body while still handcuffed and removed his seatbelt. Travis fought with the officer 

who deployed his taser in drive-stun mode several times against Travis until he was subdued. 

The Abbotts sued the officer for false arrest, false imprisonment and excessive use of force.

The court held the officer was entitled to qualified immunity for the Abbotts’ false arrest and 

false imprisonment claims. As to Travis, the officer had probable cause to arrest him for assault 

and disorderly conduct based on the threats and gestures he made to the animal control officer. 

The officer had probable cause to arrest Cindy because her failure to obey the officer’s command 

to stop could be construed as obstructing the officer’s efforts to arrest Travis. 

The court held the officer was entitled to qualified immunity regarding Travis’ excessive force 

claim. It was undisputed the officer only deployed his taser against Travis until he stopped 

fighting. Because Travis continued to resist after the first tasing, the officer did not violate 

clearly established law by using the taser in drive-stun mode several more times until Travis was 

subdued. 
14

Regarding Cindy, the court held the officer’s second use of his taser against her could be 

determined by a jury to have been unreasonable. Even though an officer’s initial use of force 

may be justified, it does not automatically mean all subsequent uses of force will be justified. 

There was no evidence Cindy posed a threat to the officer after the first tasing. Even though 

Cindy did not comply with the officer’s request to turn onto her stomach, she was not moving or 

otherwise actively resisting arrest. 

The court further held on the date of this incident, it was clearly established that it was unlawful 

to deploy a taser in dart mode against a non-violent misdemeanant who had just been tased in 

dart mode who did not move when ordered to turn over after the first tasing. In addition, the 

court noted it was also clearly established police officers could not use significant force against 

non-resisting or passively resisting suspects. 

Click HERE for the court’s opinion.

*****

United States v. Patton, 2013 U.S. App. LEXIS 1964 (7th Cir. Ill. Jan. 29, 2013)

Around 1:30 a.m., officers were dispatched to investigate a group of seven or eight men who 

were drinking beer on a public sidewalk in violation of a city ordinance. When the officers 

arrived, they directed the men to step over to a car parked nearby on the street. Instead of 

stepping over to the car, Patton backed away from the other men and nervously looked from side 

to side. When Patton realized there were officers behind him, he walked over to the car as 

originally ordered. An officer frisked Patton and felt the handle of a gun in the front waistband 

of his pants. The officer handcuffed Patton, removed the gun, and arrested him for being a felon 

in possession of a firearm. 

While conceding the officer had reasonable suspicion to support a Terry stop, Patton argued the 

officer did not have reasonable suspicion to support a Terry frisk. 

The court disagreed and held the officer had reasonable suspicion to believe Patton might be 

armed with a weapon. The officer encountered Patton at 1:30 a.m. in an area known for gang 

activity, one block away from the location of a drive-by shooting which occurred two days 

earlier. The officer’s suspicions were aroused when Patton took several steps in the opposite 

direction after being ordered to step over to the parked car. Finally, Patton appeared to be more 

nervous than would be expected for a person who might be receiving a ticket for an opencontainer violation.

Click HERE for the court’s opinion.

***** 

8th Circuit

United States v. Cannon, 2013 U.S. App. LEXIS 436 (8th Cir. Ark. Jan. 8, 2013)

During a routine fire safety inspection at a car dealership, the fire marshal came upon a locked 

door in the building. An employee told the fire marshal the door led to three rooms used by 

Cannon, an employee at the dealership. The fire marshal directed Cannon to open the door so he 

could complete his inspection. The fire marshal entered the rooms and saw a poster of a nude 
15

boy on the wall, a collection of bound, blindfolded and mutilated naked dolls hanging from the 

ceiling, a child’s bed, a tri pod for a camera, a big-screen television and several children’s toys. 

The fire marshal called the police. Investigators responded and entered the rooms to confirm the 

fire marshal’s observations. Deciding they would need a warrant to search further, the 

investigators secured the premises and applied for a search warrant. During this time, the 

investigators spoke to Cannon who told them he had no home and he stayed at the car dealership 

three nights a week while serving as a night security guard for the business. Once the 

investigators obtained the search warrant, they seized Cannon’s computers, which were later 

found to contain thousands of images and videos of child pornography. 

Cannon argued the investigators violated his Fourth Amendment rights when they initially 

entered his living quarters without a warrant, consent or an exigency. 

Without deciding the issue, the court held even if the search warrant was based on evidence 

collected in violation of the Fourth Amendment, the good-faith exception applied. First, the 

investigators learned Cannon lived in the rooms only after they first entered them and made their 

initial observations. The court found the investigators reasonably could have believed they were 

entering another part of the car dealership, not a private residence, when they entered the rooms. 

Second, the investigators fully disclosed the nature of the rooms to the state court judge in the 

warrant application. The investigators stated that in the course of their initial inspection of the 

rooms, they discovered someone appeared to be living there. Once the state court judge 

considered these facts and issued the warrant, it was reasonable for the investigators to believe 

the warrant was valid. 

Click HERE for the court’s opinion.

*****

United States v. Lindsey, 702 F.3d 1092 (8th Cir. Minn. 2013)

Two officers went to a house where they thought a suspect was located. The officers knocked on 

the door and a woman answered. After the woman denied the suspect was inside, she allowed 

the officers to come in and search the house. The officers did not locate the suspect; however,

they found Lindsey and arrested him on an outstanding warrant. The officers recovered a cell 

phone on Lindsey during their search incident to arrest. Information from the cell phone was 

later used against Lindsey at trial. 

Lindsey argued the cell phone information should have been suppressed, claiming the woman 

could not lawfully consent to the search of the house where the officers arrested him. 

The court held the officers reasonably relied on the woman’s apparent authority to consent to the 

search. The woman answered the door and showed familiarity with the house when she denied 

the suspect the officers were seeking was present and then she consented to the officers’ request 

to walk through the house. The court found answering the door and showing knowledge of the 

occupants inside sufficiently demonstrated the woman’s authority over the premises. 

Click HERE for the court’s opinion.

*****
16

United States v. Baldenegro-Valdez, 2013 U.S. App. LEXIS 1033 (8th Cir. Mo. Jan. 16, 

2013)

During a controlled buy, a confidential informant purchased methamphetamine from Camarena 

and Baldenegro-Valdez. Later that day, the informant made a second controlled buy. During the 

second buy, Camarena got out of Baldenegro-Valdez’s car and into the informant’s car. 

Baldenegro-Valdez followed in his car. After the informant signaled he had seen 

methamphetamine on Camarena, the officers conducted traffic stops on both vehicles. An 

officer wrote Baldenegro-Valdez a ticket for having a cracked windshield and arrested him for

not having a valid driver’s license. The officer did not mention the drug investigation so as not 

to compromise its integrity. Officers impounded Baldenegro-Valdez’s car and during their 

inventory search found methamphetamine inside. 

Even though Baldenegro-Valdez’s arrest for not having a valid driver’s license was improper, as 

the license he provided the officers was valid in his native country, the court found the officers 

had probable cause to arrest him based on his participation in one completed and one ongoing 

controlled methamphetamine buy. 

Once the officers arrested Baldenegro-Valdez, the court noted the officers were allowed to 

perform an inventory search of his car. The court concluded the inventory search was conducted 

pursuant to the arresting agency’s policy, and the methamphetamine the officers discovered was 

admissible. 

Even if the inventory search was not valid, the court commented the officers could have searched 

the car under the automobile exception, given the vehicle’s involvement in the controlled 

methamphetamine buys earlier in the day. 

Click HERE for the court’s opinion.

*****

United States v. Chantharath, 2013 U.S. App. LEXIS 1852 (8th Cir. S.D. Jan. 28, 2013)

Officers, aware of Chantharath’s two prior felony drug convictions, received reports he was 

selling methamphetamine from motel rooms in Sioux Falls. Officers set up surveillance on a 

motel after they learned someone had rented a room in Chantharath’s name there. The officers 

saw a gray Lexus registered to Chantharath’s sister parked at the motel throughout the day. At 

one point, two women left the motel in the Lexus and returned with a man who rented a room 

there. The officers saw the women make frequent trips between Chantharath’s room and the 

other man’s room. Later, officers stopped the women as they left the motel, arrested them and 

seized cash, marijuana and drug paraphernalia from them. After the women’s arrest, the officers 

saw a white van arrive at the motel and the driver enter Chantharath’s room. A short time later, 

two men left the room and drove away in the white van. The officers conducted a traffic stop to 

question the van’s occupants. The driver and passenger, later identified as Chantharath, admitted 

to using and possessing methamphetamine and marijuana. The officers arrested both men, and 

during the search incident to arrest found methamphetamine on Chantharath. 

Chantharath argued the officers did not have reasonable suspicion to stop the van.

The court disagreed, holding the officers had reasonable suspicion to justify a Terry stop. The 

officers had information Chantharath had recently been selling drugs from motel rooms in Sioux 
17

Falls. The officers knew Chantharath had rented a room at the motel, and a Lexus linked to him 

was on the property. The officers knew the two women who had been in the motel room and 

using the Lexus had been arrested with cash, drugs and drug paraphernalia. Consequently, there 

was reasonable suspicion for the officers to suspect the occupants of the white van were involved 

in drug activity. 

Click HERE for the court’s opinion.

*****

10th Circuit

United States v. De La Cruz, 2013 U.S. App. LEXIS 561 (10th Cir. Okla. Jan. 9, 2013)

De La Cruz drove his brother to a car wash to drop him off for work. Immigration and Customs 

Enforcement (ICE) agents were at the car wash looking for a suspect they believed was in the 

country unlawfully. Believing Del La Cruz to be their suspect, the agents surrounded his car 

and ordered him to get out. De La Cruz complied with the agents’ request but his brother ran. 

The agents apprehended the brother and arrested him after they discovered he was in the United 

States unlawfully. When the agents returned to De La Cruz, they realized he was not their 

suspect. However, the agents continued to detain De La Cruz and requested identification from 

him. After the agents discovered the identification was fake and De La Cruz was in the United 

States unlawfully, they arrested him. 

The court held when the agents initially seized De La Cruz by ordering him out of his vehicle, 

they had reasonable suspicion to believe he was their suspect. However, any suspicion that De 

La Cruz was their suspect was dispelled when the agents realized De La Cruz did not match 

their photograph of the suspect. The agents’ justification to detain De La Cruz after this time, 

“just to be safe” was not reasonable. Once the agents realized De La Cruz was not their suspect, 

they had no justification to detain him any longer. 

In addition, once the agents realized De La Cruz was not their suspect, the agents could not 

justify detaining him because of his brother’s flight from them. Flight can create suspicion that 

the person fleeing is involved in criminal activity, but the court noted De La Cruz did not flee, 

only his brother did. As a result, the court held the district court improperly denied De La Cruz’s 

motion to suppress the evidence the agents obtained from him at the car wash.

Click HERE for the court’s opinion.

*****