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August 2015

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This edition of The Informer may be cited as 8 INFORMER 15.
2

The Informer – August 2015

Article 

Reasonableness and Post-Riley Smartphone Searches

By Robert Duncan, Attorney / Advisor / Senior Instructor 

FLETC Legal Division, Artesia, New Mexico.........................................................................................4

Case Summaries

 ♦

Circuit Courts of Appeals

First Circuit

United States v. Gamache: Whether officers made a lawful plain view seizure 

of a sawed-off shotgun from the defendant’s apartment............................................................8

Second Circuit

Unites States v. Singletary: Whether officers had reasonable suspicion to stop

the defendant for carrying an open container of alcohol in public..............................................8

Third Circuit

United States v. Lowe: Whether officers had reasonable suspicion to stop

the defendant based solely on an anonymous tip.........................................................................9

Sixth Circuit

United States v. Lee: Whether the defendant could give voluntary consent to search

his apartment while he was handcuffed.....................................................................................10

Gradisher v. City of Akron: Whether officers violated the Fourth Amendment by 

entering the plaintiff’s house without a warrant and then tasing him........................................11

United States v. Bah: Whether a passenger had standing to object to a search of a

rental vehicle; whether the passenger’s detention after the driver’s arrest was justified,

and whether the warrantless examination of the magnetic strips on the back of credit, 

debit and gift cards was a Fourth Amendment search...............................................................11

Seventh Circuit

United States v. Harris: Whether officers lawfully seized evidence from the defendant’s

truck under the automobile exception to the Fourth Amendment’s warrant requirement.........13

United States v. Leo: Whether officers conducted a lawful Terry frisk of the 

defendant’s backpack.................................................................................................................14

United States v. Smith: Whether officers seized the defendant for Fourth Amendment

purposes when they confronted him in an alley........................................................................14

United States v. Bentley: Whether a drug-dog’s alert provided probable cause to 

search the defendant’s car..........................................................................................................15
3

Eighth Circuit

Robinson v. Payton: Whether an officer was entitled to qualified immunity 

after the plaintiff claimed the officer failed to intervene while another officer 

used excessive force against him...............................................................................................16

Tenth Circuit

United States v. Snyder: Whether the odor of marijuana emanating from the 

defendant’s car provided the officer probable cause to conduct a warrantless search..............17

United States v. Moore: Whether the officer unlawfully detained the defendant at

the end of a traffic stop and whether a drug-dog’s entry through an open window

into the defendant’s car constituted an unlawful search...........................................................17

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4

REASONABLENESS AND POST-RILEY SMARTPHONE SEARCHES

Robert Duncan, Esq.

Attorney Advisor and Senior Instructor

Office of Chief Counsel

Federal Law Enforcement Training Centers

Artesia, New Mexico

Reasonableness as Touchstone

The Fourth Amendment protects “[t]he right of the people to be secure in their 

persons, houses, papers, and effects, against unreasonable searches and seizures”1 and in so 

doing, “put the courts of the United States and Federal officials, in the exercise of their power 

and authority, under limitations and restraints [and] forever secure[d] the people, their 

persons, houses, papers, and effects, against all unreasonable searches and seizures under the 

guise of law.”2 With the remainder of the Fourth Amendment prohibiting the issuance of 

warrants without “probable cause, supported by oath or affirmation, and particularly 

describing the place to be searched, and the persons or things to be seized,”3 officers may 

view the law governing search and seizure as largely evidentiary or procedural but the 

“underlying command of the Fourth Amendment is always that searches and seizures be 

reasonable.”4

The Supreme Court has clearly defined searches and seizures. A search “occurs when 

an expectation of privacy that society is prepared to consider reasonable is infringed [while] 

‘seizure’ of property occurs when there is some meaningful interference with an individual's 

possessory interests in that property.”5 The Supreme Court has held that the “touchstone” of 

the Fourth Amendment is reasonableness6 but there is "no talisman that determines in all 

cases those privacy expectations that society is prepared to accept as reasonable."7

Determining Reasonableness

Determining whether a search is reasonable under the Fourth Amendment usually 

involves looking to “the traditional protections against unreasonable searches and seizures 

afforded by the common law at the time of the [Fourth Amendment’s] framing”8 or “by 

assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, 

on the other, the degree to which it is needed for the promotion of legitimate governmental 

interests.”9

 1 U.S. CONST. AMEND. IV. 2 Mapp v. Ohio, 367 U.S. 643, 647, 81 S. Ct. 1684, 1687, 6 L. Ed. 2d 1081 (1961) citing Weeks v. United States, 

232 U.S. 383, 391, 34 S. Ct. 341, 344, 58 L. Ed. 652 (1914). 3 U.S. CONST. AMEND. IV. 4 New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 740, 83 L.Ed.2d 720 (1985). 5 United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85 (1984). 6 See United States v. Knights, 534 U.S. 112, 112-13, 122 S. Ct. 587, 588, 151 L. Ed. 2d 497 (2001). 7 O'Connor v. Ortega, 480 U.S. 709, 715, 107 S. Ct. 1492, 1496, 94 L. Ed. 2d 714 (1987). 8 California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 1549-50, 113 L.Ed.2d 690 (1991); See e.g. United 

States v. Watson, 423 U.S. 411, 418-420, 96 S.Ct. 820, 825-26, 46 L.Ed.2d 598 (1976); Carroll v. United States, 

267 U.S. 132, 149, 45 S.Ct. 280, 283-84, 69 L.Ed. 543 (1925). 9 Wyoming v. Houghton, 526 U.S. 295, 300, 119 S. Ct. 1297, 1300, 143 L. Ed. 2d 408 (1999).
5

As neither a warrant nor probable cause is an “indispensable component of 

reasonableness,”10 the Supreme Court has determined that “[w]here a search is undertaken by 

law enforcement officials to discover evidence of criminal wrongdoing[...]reasonableness 

generally requires the obtaining of a judicial warrant.”11 In the absence of a warrant, “drawn 

by a neutral and detached magistrate instead of being judged by the officer engaged in the 

often competitive enterprise of ferreting out crime,”12 a search is reasonable only if it falls 

within a specific exception to the warrant requirement,13 even if the warrantless search 

violates a person's reasonable expectation of privacy.14

The Supreme Court recognizes “few specifically established and well-delineated 

exceptions”15 to the warrant requirement. Those exceptions include the plain view doctrine,16

which allows an officer to seize evidence and contraband found in plain view during a lawful 

observation without a warrant;17 the Terry stop and Terry frisk, which grants authority to 

permit a reasonable search for weapons for the protection of the police officer, where he has 

reason to believe that he is dealing with an armed and dangerous individual;18 certain limited 

searches incident to lawful arrest;19 and searches involving exigent circumstances.20

A party alleging an unconstitutional search must establish “both a subjective and an 

objective expectation of privacy.”21 The Supreme Court has held “the subjective component 

requires that a person exhibit an actual expectation of privacy, while the objective component 

requires that the privacy expectation be one that society is prepared to recognize as 

reasonable.”22

A smartphone user’s expectation of privacy is viewed objectively and “must be 

justifiable under the circumstances”.23 With the advent of social media and smartphones, 

people “can post a photo or video from their phones, allowing them to share their lives 

instantly.”24 Until 2014, one could make a colorable argument that it is unreasonable to have 

an expectation of privacy when one records and instantly shares life events on a smartphone; 

if there is no violation of a person's “reasonable expectation of privacy” by police or 

government agents, then there is no Fourth Amendment search.25 Despite the prevalence of 

 10 Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S. Ct. 1384, 1390, 103 L. Ed. 2d 685 

(1989)

11 Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). 12 Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948). 13 See Kentucky v. King, 563 U.S. ––––, ––––, 131 S.Ct. 1849, 1856–1857, 179 L.Ed.2d 865 (2011). 14 See Illinois v. Rodriguez, 497 U.S. 177, 185, 110 S. Ct. 2793, 2799, 111 L. Ed. 2d 148 (1990). 15 Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). 16 Smartphones usually have an automatic lock or passcode which prevents casual observation by law 

enforcement officers, making this exception of limited use in the field.

17 See Horton v. California, 496 U.S. 128, 128, 110 S. Ct. 2301, 2303, 110 L. Ed. 2d 112 (1990). 18 See Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889 (1968).

19 See Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); see also Chimel v. California, 

395 U.S. 752, 755, 89 S. Ct. 2034, 2036, 23 L. Ed. 2d 685 (1969).

20 See Payton v. New York, 445 U.S. 573, 619, 100 S. Ct. 1371, 1397, 63 L. Ed. 2d 639 (1980). 21 United States v. Robinson, 62 F.3d 1325, 1328 (11th Cir.1995) citing United States v. Segura-Baltazar, 448 

F.3d 1281, 1286 (11th Cir. 2006).

22 Id. 23 Smith v. Maryland, 442 U.S. 735, 740–41, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). 24 Marc Ransford, Study: College students not embracing tablets as originally predicted, 

http://cms.bsu.edu/news/articles/2014/4/students-can-live-without-tablets-but-not-smartphones (last accessed 

June 26, 2015.)

25 See Illinois v. Andreas, 463 U.S. 765, 771, 103 S. Ct. 3319, 3324, 77 L. Ed. 2d 1003 (1983).
6

sharing, users also routinely use passwords, thumbprint scans, or other mechanisms to prevent 

unwanted viewing of the device’s contents. Using these features demonstrates an intention to 

keep a device’s contents private; the remaining question is whether the privacy expectation 

created by using a password is one that society is prepared to recognize as reasonable. 

In early 2014, the Pew Research Center conducted a study that “found more than 90 

percent of Americans now own or regularly use a cellphone, and 58 percent have a more 

sophisticated smartphone.”26 Even though society may share some data to others, society 

accepts that privacy expectations are reasonable on data stored on a smartphone itself and 

protected by passwords. In a digital age “all of our papers and effects [are no longer] stored 

solely in satchels, briefcases, cabinets, and folders [but] rather...stored digitally on hard 

drives, flash drives, memory cards, and discs.”27 Even the Supreme Court—an institution that 

does not enjoy a tech-savvy reputation—has agreed that papers and effects have given way to 

smartphones and selfies.28

Riley v. California

The Supreme Court extended reasonable expectations of privacy to smartphone data in 

Riley v. California, 134 S. Ct. 2473, 2485, 189 L. Ed. 2d 430 (2014). Riley involved two 

separate arrests and searches of smartphones by police officers, demonstrates the inverse 

relationship between smartphone technology and reasonableness of smartphone searches. 

Officers attempted to search a phone as part of a Terry frisk.

As to the Terry frisk exception, the Court held that “digital data stored on a cell phone 

cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee's 

escape,” thus significantly limiting the use of this exception for reasonable searches of 

smartphones.29 The Court also noted that smartphones “place vast quantities of personal 

information literally in the hands of individuals [and a] search of the information on a cell 

phone bears little resemblance to the type of brief physical search considered” in previous 

cases involving searches incident to lawful arrest.30

As to one of the remaining exceptions, exigent circumstances encompass a broad array 

of factors considered by the courts: 

“the gravity or violent nature of the offense with which the suspect is to be charged; 

a reasonable belief that the suspect is armed; probable cause to believe the suspect 

committed the crime; strong reason to believe the suspect is in the premises being 

entered; the likelihood that a delay could cause the escape of the suspect or the 

destruction of essential Fourth Amendment evidence; and the safety of the officers or 

the public jeopardized by delay.”31

 26 Bill Mears, Supreme Court: Police need warrant to search cell phones, 

http://www.cnn.com/2014/06/25/justice/supreme-court-cell-phones/ (last accessed June 26, 2015.) 27 Bryan Andrew Stillwagon, Bringing an End to Warrantless Cell Phone Searches, 42 Ga. L. Rev. 1165, 1194 

(2008).

28 See Farhad Manjoo The Tech-Savvy Supreme Court, http://bits.blogs.nytimes.com/2014/06/26/the-tech-savvysupreme-court/?_php=true&_type=blogs&_r=0 (last accessed June 26, 2015).

29 Riley, at 2485. 30 Id. 31 See LEGAL DIVISION HANDBOOK 367 (Fed. Law Enforcement Training Ctr. Ed. 2015).
7

The destruction of evidence factor was often cited in court cases through the mid1990s through the late 2000s:

“On a cell phone, the telephone numbers stored in the memory can be erased as a 

result of incoming phone calls and the deletion of text messages could be as soon as 

midnight the next day...[O]nce the cell phone powers down evidence can be lost. [A 

popular cell phone, the Motorola Razer] has an option called message clean up that 

wipes away text messages between 1 and 99 days. There is no way to determine by 

looking at the Razer cell phone's screen, if the message clean-up option has been 

activated. If the one-day message clean up is chosen, any messages stored on the 

Razer cell phone will be deleted at midnight on the following day it is received. 

Accordingly, this Court finds that exigent circumstances existed and the text 

messages retrieved from the Razer cell phones are admissible.”32

As smartphone technology has developed, however, the Supreme Court views exigent 

circumstances with increasing skepticism. In 2014, the technology used in the most basic of 

phones was unheard of ten years ago33 and “the current top-selling smart phone has a standard 

capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes 

translates to millions of pages of text, thousands of pictures, or hundreds of videos.”34

Advances in technology also mean that officers can prevent destruction of data by 

“disconnecting a phone from the network...First, law enforcement officers can turn the phone 

off or remove its battery. Second, if they are concerned about encryption or other potential 

problems, they can leave a phone powered on and place it in an [Faraday] enclosure that 

isolates the phone from radio waves.”35 With these precautions in place, “there is no longer 

any risk that the arrestee himself will be able to delete incriminating data from the phone.”36

Seek Warrant, Avoid Suppression of Evidence

With the Supreme Court’s holding in Riley, trial courts will likely suppress 

smartphone evidence without a search warrant or factual information that an exception to the 

warrant requirement existed at the time of the search. Fortunately, officers can find model 

search warrant templates at the nearest Regional Computer Forensics Laboratories (RCFL) 

site and seek assistance from the Federal Bureau of Investigation (FBI). While other avenues 

exist for cell phone investigations, the RCFL and FBI are especially good resources because 

almost every FBI Field Office or Resident Agency has a Cell Phone Investigative Kiosk 

(CPIK) available for use. 

According to the FBI, the CPIK “allow users to extract data from a cell phone, put it 

into a report, and burn the report to a CD or DVD in as little as 30 minutes.”37 Full-size kiosks 

are physically located in nearly all FBI Field Offices and RCFLs; portable kiosks are 

available at many FBI Resident Agencies. Drafting a search warrant and using the CPIK may 

help ensure that valuable information obtained from a smartphone may be admissible and help 

win convictions in a criminal case post-Riley.

 32 See United States v. Young, No. CRIM.A. 505CR6301, 2006 WL 1302667, at *13 (N.D.W. Va. May 9, 2006). 33 See Riley at 2484. 34 Id., at 2489. 35 Id., at 2487. 36 Id., at 2486. 37 See Regional Computer Forensics Laboratory, Cell Phone Kiosk Brochure, 

https://www.rcfl.gov/downloads/documents/cpik-brochure (last accessed June 26, 2015).
8

CASE SUMMARIES

Circuit Courts of Appeal

First Circuit

United States v. Gamache, 2015 U.S. App. LEXIS 11586 (1st Cir. Me. July 6, 2015)

A temporary order of protection was issued against Gamache after his former wife alleged he 

abused her. Among other things, the order required Gamache to surrender any firearms in his 

possession. When the officers arrived at Gamache’s apartment, Gamache answered the door 

and motioned for the officers to enter. Once inside, one of the officers asked Gamache if he 

had any firearms in the apartment. Gamache pointed to the living room wall, where two

shotguns were clearly visible and prominently displayed. The officers seized the shotguns, 

one of which had a barrel length of less than 18 inches. The government indicted Gamache 

for possession of an unregistered sawed-off shotgun. 

The court held the officers made a lawful plain view seizure of the sawed-off shotgun from 

Gamache’s apartment. First, the officers were lawfully present, as Gamache voluntarily 

consented to the officers’ entry into his apartment. Second, the sawed-off shotgun was clearly 

visible from the officers’ lawful vantage point. Although the officers did not immediately 

realize the length of the shotgun’s barrel was less than 18 inches, the officers had probable 

cause to seize it based upon the court order, which prohibited Gamache from possessing any 

firearms. Finally, once the officers were lawfully inside the apartment, the court order gave 

the officers lawful access to the clearly visible firearms. 

Click HERE for the court’s opinion.

*****

Second Circuit

United States v. Singletary, 2015 U.S. App. LEXIS 12083 (2d Cir. N.Y. July 14, 2015)

Officers saw Singletary walking on the sidewalk holding an object wrapped in a brown paper 

bag. Although she could not tell what the object was, one of the officers saw it was the size 

of a beer can. Based on her experience, the officer knew that individuals often concealed 

open containers of alcohol in brown paper bags because such possession in public was illegal. 

In addition, the officer saw Singletary was holding the object as if to avoid spilling its 

contents. When the officers approached Singletary to investigate, he tried to walk away. 

After one of the officers put his hand on Singletary’s shoulder, Singletary pulled away, threw 

the brown paper bag down, and ran away. Some of the can’s contents spilled on one of the 

officers, who could smell that it was beer. After a brief chase, the officers arrested Singletary 

and seized a handgun and marijuana from him incident to arrest. The government charged 

Singletary with drug and weapons charges. 

Singletary argued the handgun and drugs seized from him should have been suppressed 

because the officers did not have reasonable suspicion to stop him.
9

The court disagreed. First, the officer saw Singletary carrying an object that appeared to be 

the size of a beer can. Second, the officer saw Singletary was carrying the suspected beer can 

inside a brown paper bag. The officer knew from her experience that persons carrying open 

containers of alcohol in public frequently conceal the containers in brown paper bags. 

Finally, the officer saw that Singletary was carrying the brown paper bag in a steady manner, 

so as to avoid spilling its contents. Based on these facts, the court held the officers had 

reasonable suspicion to conduct a Terry stop to determine if Singletary was violating the 

open-container law. Consequently, the court concluded Singletary’s arrest and the evidence 

seized incident to arrest was lawful.

Click HERE for the court’s opinion.

*****

Third Circuit

United States v. Lowe, 2015 U.S. App. LEXIS 11440 (3d Cir. Pa. July 2, 2015)

At approximately 4:00 a.m., officers received an anonymous tip reporting a black male, 

wearing a gray hoodie with a gun in his waistband was talking to a female in front of a house. 

The officers knew the house was located in a violent, high-crime area, known for drug 

activity. In addition, earlier that night, the officers knew that a shot had been fired at a house 

around the corner from the house to which they were responding. Four officers in three 

marked police cars responded, and as they approached, they saw a man who fit the description 

from the anonymous tip talking to a woman. The officers saw the man’s hands were in the 

hoodie’s pockets, not visible to the officers. However, the officers did not see a gun or 

anything indicating Lowe had a gun, nor did the officers see or hear any argument or 

disturbance when they pulled up to the house. The officers, one of whom had his firearm 

drawn, approached the pair and ordered them to show their hands. After Lowe did not 

remove his hands from his pockets, the officers frisked Lowe and seized a handgun from his 

waistband. 

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

Lowe argued the handgun should have been suppressed because the officers did not have 

reasonable suspicion to conduct a Terry stop when they seized him. 

The court agreed. First, the court had to determine when the officers seized Lowe. A Fourth 

Amendment seizure occurs when an officer applies physical force to stop a suspect, or when a 

suspect submits to an officer’s show of authority. The court noted that a person who remains 

stationary can still submit to an officer’s show of authority. In such a case, a court must 

determine whether a reasonable person would have felt free “to decline the interaction” with 

the law enforcement officer. In this case, three marked police cars nearly simultaneously 

arrived in front of the house where Lowe was standing. Four uniformed officers, one with his 

firearm drawn then immediately exited their patrol cars, approached Lowe and the woman, 

ordering them to show their hands. The court determined it was at this point Lowe was seized 

for Fourth Amendment purposes. Although Lowe remained stationary, the court held a 

reasonable person in his position would not have felt free to disregard the officers and walk 

away. 
10

Second, after the court determined when the officers seized Lowe, it had to determine if that 

seizure was supported by reasonable suspicion. Here, the facts known to the officers when 

they seized Lowe included an anonymous tip that a man matching Lowe’s description was in 

possession of a gun, and the house to which they were responding was located in a high crime 

area where a shooting had occurred an hour earlier. 

The court concluded these facts did not support reasonable suspicion to believe Lowe was 

involved in criminal activity. While the court realized it is in the interest of public safety to 

determine whether individuals are armed, in this case, the anonymous tip by itself did not 

support the Terry stop of Lowe. The court noted the officers could have conducted 

surveillance to observe Lowe’s behavior or approached him and asked him questions to 

corroborate information provided in the anonymous tip. As a result, the court held the 

evidence seized from Lowe was properly suppressed.

Click HERE for the court’s opinion.

*****

Sixth Circuit

United States v. Lee, 2015 U.S. App. LEXIS 12151 (6th Cir. Ohio July 15, 2015)

Lee was on parole, living in an apartment he shared with his girlfriend. One of the conditions 

of Lee’s parole prohibited him from possessing any firearms. After receiving a tip that Lee 

had weapons in the apartment, his parole officer went to the apartment to investigate. Lee’s 

girlfriend let the officer into the apartment where he found Lee asleep in the bedroom. The 

officer woke Lee up and walked him back to the living room where he handcuffed and frisked 

Lee. After obtaining Lee’s consent to search, the officer found a firearm and arrested Lee. 

The government indicted Lee for being a felon in possession of a firearm. 

Lee argued the officer’s failure to tell his girlfriend the reason for his visit to the apartment 

was a misrepresentation that rendered the girlfriend’s consent to enter the apartment

involuntary. 

The court disagreed. The parole officer did not misrepresent any facts to Lee’s girlfriend 

concerning his visit to the apartment. In addition, Lee’s girlfriend, as a co-resident, was 

authorized to consent to the officer’s entry into the apartment. 

Lee further argued his consent to search the apartment was involuntary because he consented 

while he was handcuffed.

Again, the court disagreed. The court noted a suspect’s consent to search is not automatically 

considered “involuntary” because the suspect is handcuffed when he gives consent. Here, 

there was no evidence the officer coerced Lee to obtain his consent, and the duration of Lee’s 

detention and questioning was reasonable.

Click HERE for the court’s opinion.

*****
11

Gradisher v. City of Akron, 2015 U.S. App. LEXIS 12814 (6th Cir. Ohio July 24, 2015)

Gradisher, a white male, called 911 from his house and reported that a black male at a bar 

where he had been drinking had a handgun. Gradisher refused to give the 911 operator his 

name and hung up abruptly. When the 911 operator called back, Gradisher, who was 

obviously intoxicated, was verbally abusive to the operator. As a result, officers were 

dispatched to the bar to investigate the man with the gun as well as to the house traced to 

Gradisher by the 911 call. 

At the bar, officers were told a white male and a black male had an argument and the white 

male claimed to have a gun in his van. As a result, the officers responding to Gradisher’s 

house believed he might be armed with a handgun. Once at Gradisher’s house, officers 

knocked on the front door and announced themselves. After the officers heard someone 

inside lock the deadbolt, they went to the back door. The officers saw a man exit the back 

door, but when they identified themselves, the man retreated into the house and slammed the 

door. The officers entered the house and eventually located Gradisher in the basement. 

Officer Craft deployed his taser against Gradisher after Craft claimed Gradisher refused to 

comply with his commands to show his hands. Gradisher claimed Officer Craft deployed his 

taser against him after he raised his hands in compliance with Craft’s commands. 

Gradisher sued the officers for violating his Fourth Amendment rights for entering his house 

without a warrant as well as Officer Craft for using excessive force for tasing him. 

Without deciding whether the officers unlawfully entered Gradisher’s house, the court held 

the officers did not violate any of Gradisher’s clearly established rights by entering his house 

without a warrant. First, the officers knew someone inside the house had placed several 

drunken and abusive calls to the 911 operator concerning a person at a bar who was in 

possession of a gun. Second, their investigation uncovered conflicting information as to who 

might have possessed a gun at the bar. Finally, Gradisher’s erratic conduct at his house gave 

the officers reason to believe someone inside the house could be in danger. Because the court 

could not find any law that would have put the officers on notice their decision to enter 

Gradisher’s house was unlawful, the court held they were entitled to qualified immunity. 

However, the court held Officer Craft was not entitled to qualified immunity for deploying his 

taser against Gradisher. Gradisher and Officer Craft disputed whether Gradisher was resisting 

or refusing to be handcuffed when Craft tased him. Consequently, when there is a dispute 

concerning the facts in a case, the court stated the jury, not the judge must determine which 

party to believe. 

Click HERE for the court’s opinion.

*****

United States v. Bah, 2015 U.S. App. LEXIS 12817 (6th Cir. Tenn. July 24, 2015)

A police officer stopped a car for speeding. The officer discovered Bah driving and Harvey in 

the front passenger seat. Bah gave the officer his license and documentation on the car, which 

was a rental vehicle. While performing records checks, the officer saw Harvey “fumbling 

around” the passenger’s side compartment as if he was trying to either conceal something or 

retrieve something. After the officer discovered Bah’s license was suspended, he arrested 

Bah. Because Bah was the only driver listed on the rental agreement, the officer decided to 
12

tow the vehicle. The officer directed Harvey to exit the vehicle and frisked him for weapons. 

The officer then conducted an inventory search of the vehicle and found a damaged 

Blackberry cell phone, three other cell phones, and sixty-eight prepaid gift, credit and debit

cards in the trunk in a plastic bag. In addition, the officer found four similar cards in the 

glove box, which was the same area where the officer saw Harvey “fumbling around.” After 

finding the cards, the officer detained Harvey to investigate further and transported him to the 

police station in the back seat of his patrol car. At the station, the officer found more cards in 

both Bah’s and Harvey’s wallets as well as several cards in the back seat of the patrol car in 

which Harvey had been transported. 

At the police station, an investigator searched the Blackberry cell phone without a warrant and 

found photographs that depicted a large amount of cash, marijuana, and a magnetic card 

reader or skimmer. In addition, without obtaining a warrant, the officer used a skimmer to 

read the information encoded on the magnetic strips of all of the seized cards. As a result, the 

officer discovered the magnetic strips on the vast majority of the cards had been re-encoded 

so the financial information they contained did not match the information printed on the front 

and backs of the cards. The officer also discovered the re-encoded account numbers had been 

either stolen or compromised, and a number of the associated accounts had already incurred 

fraudulent charges. The officer then arrested Harvey. 

Based on this information, an investigator obtained a warrant to search the three cell phones 

that had not been searched and discovered evidence on them. However, in drafting the 

affidavit to support the warrant, the officer did not refer to any of the evidence discovered in 

the warrantless search of the Blackberry cell phone. 

The government indicted Bah and Harvey for producing, using and trafficking in counterfeit 

access devices. 

First, Harvey claimed the evidence seized from the vehicle should have been suppressed, 

arguing the officer did not conduct a valid inventory search.

The court noted that passengers with no possessory interest in a rental vehicle do not have 

standing to object to searches of the vehicle. As a result, because Bah was the only authorized 

driver of the rental car, the court held Harvey did not have standing to object to the inventory 

search.

Second, Harvey argued his detention, after Bah’s arrest, was unreasonable. Although Harvey 

did not have standing to object to the inventory search of the vehicle, he did have standing to 

object to his seizure after Bah’s arrest. As a result, Harvey argued the cards found in his 

wallet and in the back seat of the patrol car should have been suppressed. 

The court disagreed. First, after arresting Bah, the officer lawfully ordered Harvey out of the 

car so he could conduct the inventory search. Second, the officer lawfully frisked Harvey 

after he exited the car because his “fumbling around” at the beginning of the stop provided the 

officer reasonable suspicion Harvey could be armed or trying to hide a weapon in the vehicle. 

Finally, once the officer discovered the cards in the glove box and trunk, he had probable 

cause to arrest Harvey on suspicion of identity theft. 

Third, Bah and Harvey argued the warrantless examination of the magnetic strips on the cards 

constituted an unlawful Fourth Amendment search. 
13

The court disagreed, holding the warrantless scans of the magnetic strips on the credit, debit, 

and gift cards did not constitute a search under the Fourth Amendment. First, when law 

enforcement officers lawfully possess credit, debit or gift cards, scanning the cards to read the 

virtual data contained on the magnetic strips does not involve a physical intrusion or trespass 

of a constitutionally space, as outlined in U.S. v. Jones. 

Second, the court held neither Bah nor Harvey had a reasonable expectation of privacy in the 

magnetic strips, as the information on the strips, for the most part, is the same as the 

information provided on the front and back of a physical credit, debit or gift card. In addition, 

the magnetic strips are routinely read by third parties at gas stations, restaurants and grocery 

stores to facilitate financial transactions. While Bah and Harvey might subjectively expect 

privacy in the information contained in the magnetic strips, the court found that such an 

expectation of privacy is not one that society is prepared to consider reasonable. 

Finally, Bah and Harvey argued the evidence discovered on the three cell phones should have 

been suppressed because the search warrant was tainted by the warrantless search of the 

Blackberry cell phone. 

Again, the court disagreed. Although the government agreed the warrantless search of the 

Blackberry cell phone was unconstitutional, the investigator did not include any evidence 

discovered on the Blackberry when he drafted the affidavit in support of the warrant to search 

the other three cell phones. Consequently, the unlawful search of the Blackberry did not taint 

the subsequent search of the other cell phones. 

Click HERE for the court’s opinion.

*****

Seventh Circuit

United States v. Harris, 2015 U.S. App. LEXIS 11315 (7th Cir. Ind. July 1, 2015)

Watkins went inside a bank to obtain a cash advance while Harris waited outside in his truck. 

The credit card Watkins used had been issued on the account of another person. A bank 

employee called officers after becoming suspicious of the transaction. Officers responded and 

arrested Watkins. When the officers searched Watkins, they found another credit card issued 

in someone else’s name as well as a slip of paper containing personally identifiable 

information (PII) belonging to a different person. After the officers placed Watkins in a 

patrol car, she asked them to retrieve her personal belongings from Harris’ truck. The officers 

seized a backpack, a notebook and a wallet from Harris’ truck. The notebook contained PII 

belonging to fourteen people. 

The government indicted Harris for conspiracy to commit identity theft and credit card fraud. 

Harris filed a motion to suppress the notebook seized from his truck, arguing its removal from 

his truck violated the Fourth Amendment. 

The court disagreed, holding the officers lawfully searched Harris’ truck under the automobile 

exception to the Fourth Amendment’s warrant requirement. Under the automobile exception, 

where there is probable cause to believe a vehicle contains contraband or evidence of a crime, 

officers may conduct a warrantless search of the vehicle. In this case, the court held the 

officers established probable cause Harris’ truck contained evidence of identity theft. First, 
14

officers had just arrested Watkins and seized from her two credit cards not issued in her name 

as well as a slip of paper that contained the PII of another person. Second, Watkins arrived at 

the bank, to commit fraud with those credit cards, in Harris’ truck. Consequently, the court 

concluded it was reasonable for the officers to believe there would be further evidence of the 

identity fraud located in Harris’ truck. 

Click HERE for the court’s opinion.

*****

United States v. Leo, 2015 U.S. App. LEXIS 11457 (7th Cir. Wis. July 2, 2015)

Two police officers stopped and handcuffed Leo and Aranda after they developed reasonable 

suspicion the men had just attempted a burglary, and that one of the men had a gun. One of 

the officers frisked Aranda, but found nothing. The other officer frisked Leo, but did not find 

a gun. The officer then opened and emptied Leo’s backpack, which the officer had taken 

from Leo and placed on the ground. Inside Leo’s backpack the officer found, among other 

things, a loaded revolver. The officers later discovered Leo had a felony conviction and 

arrested him for being a felon in possession of a firearm. 

The sole issue on appeal was whether the officers lawfully searched Leo’s backpack for 

weapons. 

Leo conceded that under Terry, the officers lawfully could have patted down the backpack to 

search for weapons. However, Leo argued the officers’ safety concerns did not justify 

opening and emptying the backpack because Leo was handcuffed and the backpack was out 

of his reach when the officers searched it. 

The court agreed with Leo, holding the warrantless search of his backpack exceeded the scope 

of a Terry frisk. The court recognized a lawful Terry frisk of a person may include a patdown of the suspect’s effects, including a bag. The court further noted the reasonableness of 

such a search is evaluated on the basis of the facts as they existed at the time of the search. 

Here, the court found at the time of the search, Leo’s hands were cuffed behind his back, the 

officers already had frisked Leo and Aranda and found no weapons, and the officer was in 

control of the backpack. Consequently, the court held that when the officer unzipped and 

emptied the backpack, it was inconceivable that either Leo or Aranda would have been able to 

lunge for the bag, unzip it, and obtain the gun inside. 

Click HERE for the court’s opinion.

*****

United States v. Smith, 2015 U.S. App. LEXIS 12485 (7th Cir. Wis. July 20, 2015)

Two uniformed officers were on bicycle patrol at 10:00 p.m. when they heard gunshots fired 

north of their location. The officers rode toward the area where they thought the shots 

originated, and saw Smith crossing the street. Smith had just left an alley on the east side of 

the street, and was preparing to enter an alley on the west side of the street. Smith was not 

running or engaging in any other suspicious behavior, nor was he coming from the direction 

where the shots were reportedly fired. The officers rode ahead of Smith into the alley, then 

made a U-turn to face Smith. The officers stopped approximately five feet in front of Smith, 

positioning their bicycles at 45-degree angles to face him. Neither officer identified himself 
15

as an officer or asked Smith for identification. Instead, one of the officers got off his bicycle, 

approached Smith with his hand on his gun and asked Smith if he had any guns, knives, 

weapons or anything illegal on him. Smith told the officer he had a gun, but that he did not 

have a concealed weapon permit. The officers handcuffed Smith, seized a handgun from his 

pocket and arrested him. The government indicted Smith for being a felon in possession of a 

firearm. 

Smith filed a motion to suppress the handgun, arguing the officers violated the Fourth 

Amendment because they did not have reasonable suspicion to stop him in the alley. 

The district court held the officers did not seize Smith for Fourth Amendment purposes when 

they confronted him in the alley; therefore, the handgun discovered on Smith was not subject 

to the exclusionary rule. Smith appealed.

The Seventh Circuit Court of Appeals reversed the district court. The court recognized that a 

Fourth Amendment seizure does not occur when an officer approaches an individual and asks 

him questions. Instead, the test to determine if an individual has been seized is whether 

taking into account all of the circumstances surrounding the encounter, the police conduct 

would have communicated to a reasonable person that he was not free to ignore the police 

presence and go about his business. 

In this case, two police officers waited for Smith to enter the alley, rode past him and then 

made a U-turn to face him. When they were five-feet from Smith, the officers stopped and 

positioned their bicycles at an angle obstructing his intended path. One of the officers 

approached Smith with his hand on his gun and neither officer identified himself. Instead of 

asking Smith whether he had heard any gunshots, the officer asked Smith in an accusatory 

manner if he had any weapons on his person. Given these facts, the court concluded a 

reasonable person in Smith’s situation would not have felt free to ignore the police presence 

and go about his business. As a result, the court held that Smith was seized for Fourth 

Amendment purposes when the officers encountered him in the alley. 

Because the government conceded at oral argument that the officers did not have reasonable 

suspicion to detain Smith, the court held the handgun recovered from Smith should have been 

suppressed.

Click HERE for the court’s opinion.

*****

United States v. Bentley, 2015 U.S. App. LEXIS 13066 (7th Cir. Ill. July 28, 2015)

An officer conducted a traffic stop after he saw the car Bentley was driving crossed the fog 

line in violation of Illinois law. During the stop, another officer brought his drug-detection 

dog, Lex, to the scene. After Lex alerted to the presence of drugs in the car, the officers 

searched it and found nearly fifteen kilograms of cocaine in a hidden compartment. The 

government charged Bentley with possession with intent to distribute cocaine. 

Bentley argued the drugs discovered in the car should have been suppressed because the 

officer did not have reasonable suspicion to support the initial stop. Alternatively, Bentley 

argued that Lex’s alert was not sufficiently reliable to support probable cause to justify the 

warrantless search of the car. 
16

The court disagreed. First, the officer’s testimony was supported by video from his patrol car 

that clearly showed Bentley’s car cross the fog line, a violation of Illinois law. As a result, the 

court held this evidence provided the officer with probable cause for the traffic stop. Second, 

the court held the district court properly held the totality of the circumstances established 

Lex’s alert was reliable enough to support probable cause to search Bentley’s car. Although 

Lex only had a 59.5% field accuracy rate, the government introduced other evidence, to 

include, Lex’s success rate in controlled settings, testimony from Lex’s handler, as well as 

testimony from the founder of the training institute Lex attended, all of which Bentley’s 

attorney was allowed to challenge on cross-examination. In addition, Bentley’s attorney was 

allowed to introduce evidence from his own expert witness. The district judge then weighed 

all the evidence and credited the government’s experts over Bentley’s, concluding Lex’s alert 

was reliable enough to support probable cause. 

Click HERE for the court’s opinion.

*****

Eighth Circuit

Robinson v. Payton, 2015 U.S. App. LEXIS 11049 (8th Cir. Ark. June 29, 2015)

Officer Payton detained Robinson and his mother, Eva, in the back of his patrol car during a 

Terry stop. When Officer Payton directed them to get out of the car, Eva complied, but 

Robinson refused. After Robinson’s refusal, Officer Payton tased Robinson in drive-stun 

mode and a struggle between the two men ensued. In the meantime, Trooper Condley was 

attempting to control Eva, who was standing on the other side of the patrol car. Eva, who 

thought Officer Payton was shooting Robinson with a handgun, broke away from Trooper 

Condley and ran toward Robinson and Officer Payton. Trooper Condley grabbed Eva and 

maintained control over her while Officer Payton eventually subdued Robinson by tasing him 

several more times. During this time, Eva was screaming for her husband and she told 

Trooper Condley that she would give her life for her son. 

Robinson filed a lawsuit in which he alleged Trooper Condley violated his Fourth Amendment

rights by failing to intervene while the other officer used excessive force against him. 

The court held Trooper Condley was entitled to qualified immunity. A police officer may be 

liable if he does not intervene to prevent the excessive use of force by another officer against 

a suspect. However, the officer must observe excessive force being used and have the 

opportunity and the means to prevent harm to the suspect. Here, the court concluded Trooper 

Condley’s duty to intervene was not clearly established. Specifically, the court found a 

reasonable police officer in Trooper Condley’s position would not know that restraining a 

hysterical individual and then deciding to leave her unattended to intervene violated clearly 

established law. First, Eva became hysterical after she thought the officer had shot Robinson 

with his gun. Second, Eva broke away from Trooper Condley and attempted to join the 

altercation between Officer Payton and Robinson. Finally, Eva continued to scream for her 

husband and she told Trooper Condley that she was willing to give her life to protect 

Robinson. If Trooper Condley had left Eva, she would have likely joined the altercation, 

possibly causing harm to herself and others. 

Click HERE for the court’s opinion.
17

*****

Tenth Circuit

United States v. Snyder, 2015 U.S. App. LEXIS 12510 (10th Cir. Okla. July 20, 2015)

An officer stopped Snyder for a traffic violation. While standing outside Snyder’s car, the 

officer smelled burnt marijuana emanating from inside the car. The officer searched the car 

and while he did not find any marijuana, he found a firearm under the driver’s seat. The 

officer arrested Snyder for being a felon in possession of a firearm. 

Snyder filed a motion to suppress the firearm, arguing the officer’s warrantless search of his 

car violated the Fourth Amendment.

The court disagreed. When an officer establishes probable cause a car contains contraband, 

the Fourth Amendment does not require him to obtain a warrant before searching the car and 

seizing the contraband. In addition, Tenth Circuit case law provides, “the smell of burnt 

marijuana alone establishes probable cause to search a vehicle for the illegal substance.” 

Consequently, once the officer smelled the odor of burnt marijuana emanating from Snyder’s 

car, he was entitled to conduct a warrantless search of the car in an attempt to locate 

marijuana. 

Click HERE for the court’s opinion.

*****

United States v. Moore, 2015 U.S. App. LEXIS 13320 (10th Cir. Okla. July 30, 2015)

An Oklahoma Highway Patrol Trooper stopped Moore for speeding. While talking with 

Moore, the trooper noticed Moore seemed extremely nervous, as his hands were shaking 

when he gave the trooper his driver’s license, he rarely made eye contact, he kept fidgeting,

and he immediately asked the trooper if he could smoke a cigarette. When the trooper asked 

Moore why the car he was driving was registered to both Moore and a female with a different 

last name, Moore told the trooper he had known the female for several years and that his 

name had been added to the registration a week earlier. Throughout this conversation, the 

trooper noticed Moore still seemed to be nervous, even after the trooper told Moore he was 

only going to issue him a warning ticket. The trooper completed the warning ticket, returned 

all of Moore’s documents, and told Moore to have a good day. 

The trooper then asked Moore if he could speak to him for a little while longer. After Moore 

agreed, the trooper asked Moore if he had ever been in any trouble before. Moore told the 

trooper he had, but that he did not wish to talk about it. When the trooper asked Moore if he 

had anything illegal in his car, such as weapons or drugs, Moore said no. Finally, when the 

officer asked Moore for consent to search his car, Moore refused. The trooper then told 

Moore he was going to detain him to conduct a dog sniff of his car. 

A few minutes later, another trooper arrived with his certified narcotics-detection dog, Jester. 

While the trooper and Jester were walking around the rear of Moore’s car, Jester alerted by 

snapping his head around and returning to the front of Moore’s car where he jumped through 

the driver’s side window, which Moore had left open. The trooper saw Jester had his nose on 

the center console and that he was wagging his tail. The troopers searched Moore’s car but 
18

they did not find any drugs; however, they discovered a sawed-off shotgun and ammunition in 

the trunk. 

The government indicted Moore for three firearms related offenses based on the evidence 

seized from the trunk of Moore’s car. 

Moore argued the evidence seized during the traffic stop should have been suppressed 

because the trooper unlawfully detained him without reasonable suspicion after the traffic 

stop had ended. Moore also argued Jester’s entry into his car constituted an unlawful search. 

The court disagreed. Both sides agreed the purpose of the traffic stop, to issue Moore a 

warning for speeding, was completed as soon as the trooper returned Moore’s license, gave 

him a copy of the warning ticket, and told him to have a good day. However, by this time, the 

court held the trooper established reasonable suspicion to believe Moore was involved in 

criminal activity. The court found Moore’s extreme nervousness, his prior criminal history 

and the fact that Moore’s name had recently been added to the car’s registration, when 

considered together, justified Moore’s further detention and dog sniff of his car. 

The court further held Jester’s entry into Moore’s car did not constitute an illegal search. 

First, Jester properly alerted outside Moore’s car before he jumped into it through a window 

Moore left rolled down when he exited his car. Therefore, as soon as Jester alerted outside 

Moore’s car, the court held the officers had probable cause to search it. Second, the fact that 

Jester gave an “alert” and not his trained “indication” was of no consequence. The Tenth 

Circuit has held that an alert, or change in a dog’s behavior in reaction to the odor of drugs is 

sufficient to establish probable cause to search a vehicle, and that a final indication is not 

necessary. Consequently, even though Jester did not provide his final indication by sitting 

and staring at the source of the odor, Jester’s positive alert was, by itself, enough to provide 

the troopers probable cause to search Moore’s car.

Click HERE for the court’s opinion.

*****