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May 2013

THE

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This edition of The Informer may be cited as “5 INFORMER 13”.
In This Issue 

Article

Missouri v. McNeely:

Pushing the Limits Until the Limits Push Back

Jeff Fluck

Senior Legal Instructor

Legal Division

Federal Law Enforcement Training Center

Glynco, Georgia

Click Here

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Case Summaries

United States Supreme Court

Click Here

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

Circuit Courts of Appeals

 Click Here

 1st Circuit 5th Circuit 6th Circuit 7th Circuit

 8th Circuit 9th Circuit 10th Circuit 11th Circuit

 District of Columbia Circuit

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1

Missouri v. McNeely1

: Pushing the Limits Until the Limits Push Back

Jeff Fluck

Senior Legal Instructor

Legal Division

Federal Law Enforcement Training Center

Glynco, Georgia

Exigent circumstances have had a good run in the Supreme Court over the last seven years. In 

2006, a unanimous Court approved a warrantless law enforcement entry into a home to prevent a 

thrown punch from devolving into a more serious affray.

2

 In 2009, the Court united in a short 

opinion to approve the warrantless entry into a home to prevent a bloodied and berserk suspect

from further injuring himself.

3

 In 2011, a large majority [8-1] of the Court agreed that an 

exigent entry of a home to prevent the final destruction of already-burning marijuana was 

justified.

4

 Just last year, the Court came together to grant qualified immunity in a lawsuit 

generated by four officers’ exigent entry of a home because of a sensible concern that an 

occupant might be arming herself with a gun.

5

This run ended with a run-of-the-mill drunk driving case on April 17 of this year. The facts are 

simple. On October 3, 2010, at 2:08 AM, Corporal Mark Winder pulled over Tyler McNeely’s 

pickup because the truck was speeding and had crossed the highway’s centerline three times. 

McNeely’s bloodshot eyes, slurred speech, odor of alcohol, and poor performance on four field 

sobriety tests concluded with Corporal Winder’s arrest of McNeely for drunk driving. McNeely 

refused breath and blood tests. Corporal Winder testified that during his 17 years of duty, he had 

always gotten a search warrant in similar situations to authorize a nonconsensual blood draw. 

However, he had recently read an article written by a prosecutor that stated a warrant was no 

longer required in Missouri. Corporal Winder directed a phlebotomist to take a nonconsensual 

blood draw at a hospital at approximately 2:35 AM. McNeely’s blood alcohol concentration 

(BAC) tested at .154 percent6.

The trial court suppressed the BAC evidence. By the time the state’s appeal reached the United 

States Supreme Court, the issue had simplified in the Court’s eyes: 

The question presented here is whether the natural metabolization of alcohol in the 

bloodstream presents a per se exigency that justifies an exception to the Fourth 

Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving 

cases [emphasis added]. 

Faced with a categorical question, which admitted no exception, the Court made short work of it:

We conclude that it does not, and we hold, consistent with general Fourth Amendment

principles, that exigency in this context must be determined case by case based on the 

totality of the circumstances.

Even with routine drunk driving cases, courts must examine the facts of each particular case to 

decide whether an officers’ decision to draw blood without a warrant was a good one. This is 

not a surprising result.

 1 2013 U.S. LEXIS 3160 (April 17, 2013).

2 Brigham City v. Stuart, 126 S. Ct. 1943 (2006). 3 Michigan v. Fisher, 130 S. Ct. 546 (2009). 4 Kentucky v. King, 131 S. Ct. 1849 (2011). 5 Ryburn v. Huff, 132 S. Ct. 987 (2012). 6 State v. McNeely, 2011 Mo. App. LEXIS 858 (Mo. Ct. App. 2011); State v. McNeely, 358 S.W.3d 65 (Mo. 2012).
2

Nevertheless, there are some useful lessons to derive from McNeely.

First, the nature of the exigency matters. Excusing a warrant because of exigent circumstances is 

at its most compelling when the situation officers confront is both dangerous and impossible to 

anticipate. By contrast, McNeely had already been arrested. His drunken driving could no 

longer imperil the public. The problem his metabolism presented− loss of evidence− is 

commonplace, and expedited warrant procedures can be put in place to deal with it.

Second, this case should prod law enforcement departments and agencies to craft policy 

guidance and procedures capitalizing on electronic communication and the Internet to speed the 

search warrant application process for blood draws. While the guilty human body’s slow saunter 

to innocent sobriety may seldom create an actual exigency, it certainly presents an impending 

exigency. If, despite good-faith law enforcement efforts, telephonic and electronic warrants 

cannot be rapidly obtained, then a solid basis for a warrantless blood draw exists. 

How much time must elapse before a warrantless draw is justified? Each department and agency 

will want to answer that question for its own officers in light of its mission and the logistical 

constraints—availability of magistrates in late-night hours, average time it takes to reach a 

phlebotomist, etc.—the agency’s officers confront. However, the first order of business is to use 

21st-century tools to put procedures in place to deal with the impending exigency that drunk 

drivers and their refusals routinely pose.

In fact, the Chief Justice has pointed the way in his concurrence:

In a case such as this, applying the exigent circumstances exception to the general 

warrant requirement of the Fourth Amendment seems straightforward: If there is time to 

secure a warrant before blood can be drawn, the police must seek one. If an officer could 

reasonably conclude that there is not sufficient time to seek and receive a warrant, or he 

applies for one but does not receive a response before blood can be drawn, a warrantless 

blood draw may ensue.

As the Chief Justice notes earlier in his concurrence, officers in one Kansas county are e-mailing 

applications to judges’ iPads and getting warrants back in 15 minutes.

Third, McNeely continues the Court’s renewed infatuation with the bedrock principle that 

judicially-issued warrants are the preferred path to constitutional searches and seizures. Last year 

the Court held that, at least for the time being, the lack of a judicially-issued tracking warrant 

invalidated installing a GPS device on a car and using the device to track the car’s whereabouts.7

 

Two months ago, the Court narrowly held that the lack of a search warrant invalidated taking a 

drug dog onto the front porch of a grow house and using the dog’s alert to provide probable 

cause.8

 Both of those cases are driven by the Court’s perception that the Fourth Amendment

applies when the government installs a GPS on personal property or takes a drug dog onto a 

home’s front porch. McNeely is analytically different: It says that when it comes to DWI blooddraws, the exigent-circumstances escape-hatch is not always open just because getting a search 

warrant is inconvenient or may take a while. Regardless of how the Court has been reaching the 

result, the teaching point is that there continues to be wisdom in seeking warrants. 

 7 United States v. Jones, 132 S. Ct. 945 (2012). 8 Florida v. Jardines, 133 S. Ct. 1409 (2013).
3

CASE SUMMARIES

 United States Supreme Court

Missouri v. McNeely, 133 S. Ct. 1552 (April 17, 2013)

A police officer stopped McNeely for speeding and crossing the centerline. After McNeely 

refused to take a breath test, the officer took him to a hospital for blood testing. McNeely 

refused to consent to the blood test. Without obtaining a search warrant, the officer directed a 

lab technician to take a sample of McNeely’s blood. A subsequent test measured McNeely’s 

blood alcohol concentration at 0.154 percent, which was above the legal limit of 0.08 percent. 

McNeely was charged with driving while intoxicated. 

McNeely argued taking his blood for chemical testing without first obtaining a search warrant 

violated his rights under the Fourth Amendment. The state trial court and the Missouri Supreme 

Court agreed. The State of Missouri appealed to the United States Supreme Court.

The Supreme Court held in drunk-driving investigations the natural dissipation of alcohol in the 

bloodstream does not automatically create an exigency sufficient to justify conducting a blood 

test without a warrant. The court recognized in some cases the circumstances will make 

obtaining a search warrant impractical and the dissipation of alcohol from the bloodstream will 

create an exigency justifying a properly conducted warrantless blood test. However, the court 

concluded whether such an exigency exists must be determined case by case based on the totality 

of the circumstances.

Click HERE for the court’s opinion.

*****

Circuit Courts of Appeals

1st Circuit

United States v. Palmquist, 712 F.3d 640 (1st Cir. Me. Apr. 11, 2013)

Palmquist, a military veteran, worked as a civilian employee with the U.S. Department of 

Veterans Affairs. A criminal investigator with the Office of Inspector General suspected 

Palmquist had been receiving benefits to which he was not entitled. Palmquist agreed to an 

interview with the investigator. Before asking him any questions, the investigator presented 

Palmquist with a form entitled, “Advisement of Rights (Federal Employees – Garrity).” 

Palmquist briefly reviewed the form, signed it and spoke to the investigator. Palmquist was later 

convicted of fraud in connection with his receipt of veterans benefits. 

Palmquist argued the statements he made to the investigator should have been suppressed 

because they were coerced, claiming the investigator forced him to choose between losing his 

job or giving up his right to remain silent under the Fifth Amendment. 
4

The court disagreed, holding that nothing the investigator said or presented to Palmquist could 

have led him believe, if he remained silent, he would automatically lose his job or suffer 

similarly severe employment consequences solely for having remained silent. In addition, the 

Advisement-of-Rights form specifically informed Palmquist he could not be fired solely for 

refusing to participate in the interview, although his silence could be used as evidence in an 

administrative proceeding. 

Click HERE for the court’s opinion.

*****

United States v. Dapolito, 2013 U.S. App. LEXIS 7309 (1st Cir. Me. Apr. 11, 2013)

At 2:39 a.m., two police officers saw Dapolito standing alone in an alcove of a building that 

contained a door to a bar on the first floor, which was closed, and a door to condominiums on the 

second floor. An ATM machine was next door to the condominiums. The officers approached 

Dapolito who appeared to be intoxicated. The officers told Dapolito they were patrolling the 

area because of some recent burglaries, but they saw no evidence Dapolito was involved in a 

burglary and he did not appear to be in possession of burglary tools. One of the officers asked 

Dapolito for identification. Dapolito told the officer he did not have any identification, but 

provided his name and date of birth. After some initial confusion on the spelling of Dapolito’s 

name, the dispatcher told the officer there was no record for Dapolito in the computer system. 

Convinced Dapolito was lying about his identity, the officer asked Dapolito if he could pat him 

down for identification. Dapolito refused. The officer asked Dapolito for consent to search a 

second time, but again he refused. The officer saw what appeared to be the outline of an 

identification card in Dapolito’s front pants pocket and asked Dapolito what it was. Dapolito 

took an Electronic Benefit Transfer (EBT) card from his pants pocket and gave it to the officer. 

The card had Dapolito’s name spelled the same way as he had previously told the officer. The 

officer told Dapolito he was going to be taken to the county jail so his identity could be 

confirmed. The officer ordered Dapolito to place his hands on his head so he could be frisked, 

but Dapolito refused. After the officer drew his Taser, Dapolito complied. When Dapolito 

raised his hands, his shirt and jacket lifted, revealing a handgun in his waistband. At the jail, the 

officers confirmed Dapolito’s identity and discovered he was a convicted felon. Dapolito was 

later charged with being a felon in possession of a firearm.

Dapolito moved to suppress the handgun, claiming the officers found the handgun as the result of 

an unlawful Terry stop.

The government claimed by the time the officer found the handgun, there was reasonable 

suspicion to believe Dapolito was involved in criminal activity, and the frisk was justified by an 

objective concern for officer safety.

The court held that the district court properly ruled the officers did not have reasonable suspicion 

to believe Dapolito was involved in criminal activity by the time they told him he was going to 

jail and frisked him. 

Under the circumstances, it was reasonable for the officers to approach Dapolito to determine if 

he needed assistance or was involved in criminal activity. However, what began as a consensual 

encounter turned into a Terry stop when the officers told Dapolito they were taking him to jail. 

At that point, the officers could not justify detaining Dapolito as a burglary suspect because there 

was no evidence of any recent burglaries in the area and Dapolito’s behavior did not tie him to a 
5

burglary. Additionally, Dapolito was not tampering with any of the doors in the alcove or the 

ATM machine, and he did not possess any tools that are commonly used in burglaries. 

Similarly, the officers could not justify detaining Dapolito on the theory that there may have 

been an outstanding warrant for his arrest. While there may have initially been some confusion 

over the spelling of Dapolito’s name, Dapolito voluntarily gave the officers the EBT card, which 

had his name spelled the same way he told the officers it was spelled. Even though the officers 

became suspicious after dispatch could not find Dapolito’s name on record, the failure to get an 

affirmative match from a government records system does not, by itself, create reasonable 

suspicion of a crime.

Click HERE for the court’s opinion.

*****

5th Circuit

Davila v. United States, 2013 U.S. App. LEXIS 6749 (5th Cir. Tex. Apr. 3, 2013)

Davila, his adult son Tocho and Tocho’s girlfriend Mata were driving into the United States from 

Mexico in Davila’s truck when they were stopped at a border checkpoint. After an initial 

inspection, a Border Patrol agent referred Davila’s truck to secondary inspection and told 

Davila, Tocho and Mata to remain there until a K-9 unit could be brought in from a different 

checkpoint. After two hours elapsed without the K-9 unit arriving, Tocho left without 

permission in Davila’s truck while Davila and Mata remained at the inspection site. A local 

police officer at the checkpoint pursued Tocho in a high-speed chase and eventually apprehended 

him. While the pursuit was ongoing, Davila and Mata were handcuffed and taken to a county 

jail, where they were processed, issued jail clothing and placed into cells. Davila and Mata were 

released several hours later without explanation and no charges were ever filed against them. 

Tocho was charged with several offenses, including assaulting a federal law enforcement officer. 

Tocho failed to appear to answer the charges and a warrant was issued for his arrest. 

Three months later, Davila was driving his car in a National Park when National Park Service 

(NPS) law enforcement rangers pulled him over and surrounded his car with law enforcement 

vehicles. The rangers pointed their guns at Davila and the other occupants of the car, ordered 

everyone out, handcuffed them and then searched the car. Unbeknownst to Davila, the 

government had issued a be-on-the-lookout (BOLO) notice for Davila’s car because it had once 

been associated with Tocho. The rangers pulled Davila over in response to the BOLO, claiming 

Tocho, a fugitive, could have been concealed in the car and might have weapons. After the 

rangers searched Davila’s car without finding Tocho, weapons or contraband, everyone was 

released.

Davila sued the federal government for false imprisonment under the Federal Tort Claims Act 

(FTCA) after he was taken to the county jail after Tocho fled the checkpoint in his truck. In 

addition, Davila sued the NPS Rangers claiming the traffic stop violated his Fourth Amendment

rights and that the rangers used excessive force during the stop.

The court of appeals reversed the district court, which had dismissed Davila’s FTCA claim

against the government under the detention-of-goods exception. The FTCA, which waives the 

government’s immunity from lawsuit, is subject to several exceptions. The detention-of-goods 

exception provides the government cannot be sued for any claims arising out of the detention of 
6

any goods, merchandise or other property by any customs or law enforcement officer. The court 

of appeals held this exception did not apply because Davila’s claim of false imprisonment did 

not occur while his truck was being searched by the Border Patrol agents. Davila’s claim arose 

two hours after the initial search of his truck while the agents waited for a K-9 from a different 

checkpoint to arrive. 

The court of appeals agreed with the district court, which held the NPS Rangers were entitled to 

qualified immunity concerning the traffic stop and search of Davila’s car. The BOLO provided 

the rangers with reasonable suspicion that Tocho might be hidden in the vehicle and justified the 

stop and search of Davila’s car. 

The court of appeals further held the rangers were entitled to qualified immunity on Davila’s 

excessive use of force claim as the rangers’ use of force was reasonable under the circumstances. 

Given the information at their disposal, the rangers’ decision to draw their weapons, handcuff 

Davila and the other occupants and make them kneel on the ground outside the vehicle did not 

constitute excessive force. 

Click HERE for the court’s opinion.

*****

Tolan v. Cotton, 2013 U.S. App. LEXIS 8548 (5th Cir. Tex. Apr. 25, 2013)

Just before 2:00 a.m., Officer Edwards saw a black Nissan turn abruptly onto a residential street 

that ended in a cul-de sac. Edwards became suspicious because he knew twelve cars had been 

burglarized in the town the night before. Edwards saw Robbie Tolan and another man get out of 

the car and walk towards a house. Edwards ran a computer check on the Nissan’s license plate; 

however, he mistakenly entered an incorrect character, which resulted in a match with a stolen 

car of the same make and approximate year of manufacture. Edwards approached the Nissan and 

saw Tolan and his friend taking items from the car to the house. Edwards drew his firearm and 

ordered the men to the ground, telling them he believed the Nissan was stolen. Robbie Tolan 

and his friend cursed Edwards and refused to get on the ground until Robbie’s parents came out 

of the house and convinced them to comply with Edwards. Mrs. Tolan told Edwards the car 

belonged to her while repeatedly walking in front of Edwards’ drawn pistol, insisting no crime 

had been committed. 

Sergeant Cotton responded to the scene to back-up Edwards. When Cotton arrived, he saw Mrs. 

Tolan moving around Edwards in an agitated state, Mr. Tolan and Robbie’s friend laying prone 

on the ground. He did not see Robbie, who was lying in a dark area. Cotton moved in to assist 

Edwards, who told him, “The two on the ground had gotten out of a stolen vehicle.” To control 

the situation, Cotton asked Mrs. Tolan to move out of the officers’ way so they could investigate 

the situation. Mrs. Tolan refused and when Cotton tried to physically move her, she screamed, 

“Get your hands off me.” Robbie yelled at Cotton “Get your hand off my mom”, pulled his 

outstretched arms to his torso, and began to get up from the ground, turning towards Cotton. 

Fearing Robbie was reaching into his waistband for a weapon, Cotton drew his firearm and fired 

three shots at Robbie, hitting him once in the chest. Robbie was wearing a dark jacket that 

concealed his waistband and a subsequent search revealed Robbie was unarmed. Between 

Cotton’s arriving on scene and his discharging his firearm, thirty-two seconds had elapsed. 
7

Sergeant Cotton was charged in a state-court indictment with one count of aggravated assault by 

a public servant and was acquitted after a jury trial. 

Robbie Tolan and his mother sued Sergeant Cotton and Officer Edwards claiming the officers 

violated their right to be free from excessive force under the Fourth Amendment. 

The district court held both officers were entitled to qualified immunity. The Tolans appealed 

only the grant of qualified immunity to Sergeant Cotton.

The court of appeals held Sergeant Cotton was entitled to qualified immunity. An objectively 

reasonable officer in Sergeant Cotton’s position would not have known nor had reason to believe 

Officer Edwards had mistakenly identified the Nissan as a stolen vehicle; therefore, an 

objectively reasonable officer would have been justified in believing Robbie and his friend had 

stolen it. 

In addition, an objectively reasonable officer in Sergeant Cotton’s position could have believed 

Robbie’s verbal threats and getting up from a prone position presented an immediate threat to the 

safety of the officers. The late hour, recent criminal activity in the area, Mrs. Tolan’s refusal to 

comply with the officers’ requests and the officers being outnumbered on the scene compounded 

the threat presented by Robbie. Although tragic, Sergeant Cotton’s actions were not objectively 

unreasonable. 

Click HERE for the court’s opinion.

*****

6th Circuit

United States v. Daws, 711 F.3d 725 (6th Cir. Tenn. April 2, 2013)

Police officers responded to the scene of an armed home invasion. The victim told officers 

Daws had entered his house, threatened him with a shotgun, stole his cash and then warned the 

victim he would return and kill him if the victim called the police. While interviewing the 

victim, the officers received a call from a man who claimed Daws had just come over to his 

house, and asked the man to hide a shotgun for him. In addition, several officers knew that 

Daws had felony convictions for weapons violations and had served prison time for robbing a 

gas station at gunpoint. 

The officers immediately went to Daws’ house where they saw a man sitting outside. The 

officers overheard the man telling someone on his cell phone that he and Daws had “done 

something bad” and they were probably going to jail. The man told the officers Daws was inside 

the house. The officers entered Daws’ house through an open door and found Daws asleep. 

After arresting him, the officers performed a protective sweep and seized Daws’ shotgun. Daws 

was charged with possession of a firearm and ammunition by a convicted felon. 

Daws moved to suppress the shotgun and ammunition, arguing the officers’ warrantless entry 

into his house violated the Fourth Amendment. 

The court disagreed, holding exigent circumstances justified the officers’ warrantless entry into 

Daws’ house. Daws had just committed a serious crime and the officers knew about his 

extensive criminal history involving firearms. It was reasonable for the officers to immediately 

go to Daws’ house and quickly apprehend him based on the threat he posed to the community.
8

Click HERE for the court’s opinion.

*****

United States v. Woods, 711 F.3d 737 (6th Cir. Mich. April 3, 2013)

A police officer arrested Woods for driving without a valid license. While conducting a pat 

down the officer felt a hard lump in Woods’ pocket. The officer asked Woods, “What is in your 

pocket?” Woods responded that he was “bogue,” a street term meaning “in possession of 

something illegal,” such as weapons or narcotics. After Woods repeated, “I’m bogue,” the 

officer, who was concerned Woods might be carrying a gun, asked Woods whether the 

contraband item was drugs or a gun. Woods told the officer it was a gun. The officer asked 

Woods where the gun was located and Woods told him it was in the car. The officer searched 

the car and found a handgun and a bag of crack cocaine on the floorboard. The hard object in 

Woods’ pocket was his keys. Woods was indicted for drug and firearms offenses.

Woods claimed his initial incriminating “bogue” statement as well as the drugs and handgun 

recovered from his car should have been suppressed because the officer failed to advise him of 

his Miranda rights.

The court held the officer’s question, “What is in your pocket?” did not constitute a custodial 

interrogation. The Supreme Court has held the term “interrogation” does not refer to routine 

questions asked by the officer during the course of an arrest. Here, after the officer felt the hard 

lump in Woods’ pocket, the question, “What is in your pocket?” was an automatic, reflexive 

question directed at determining the identity of the object that was legitimately within the 

officer’s power to examine as part of a search incident to arrest. As a result, the officer was not 

required to advise Woods of his Miranda rights. 

In addition, the court recognized this case was unusual, as Woods’ response to the officer that he 

was “bogue” had nothing to do with the question, “What is in your pocket?” This unexpected 

and unresponsive reply could not retroactively turn a non-interrogation inquiry into an 

interrogation for Miranda purposes.

The court further held it did not have to decide whether the officer’s subsequent questions as to 

whether the “bogue” items were drugs or a gun and whether they were on Woods’ person or in 

the car constituted custodial interrogation. After Woods’ initial statement that he was in 

possession of a contraband item, the officer would have searched the car and found the drugs and 

gun regardless of whether he asked Woods any further questions.

Click HERE for the court’s opinion.

*****

Martin v. City of Broadview Heights, 712 F.3d 951 (6th Cir. Ohio April 9, 2013)

While responding to a call, a police officer saw a naked male, later identified as Martin, running 

towards his patrol car, speaking quickly and nonsensically. As the officer approached, Martin

asked the officer for help, placed his hands behind his back and insisted the officer to take him to 

jail. When the officer grabbed Martin’s hands and reached for his handcuffs, Martin ran away. 

The officer chased Martin and tackled him to the ground. A second officer arrived and jumped 

on top of the first officer, who was lying on Martin’s back, and delivered one or two 

“compliance body shots” to Martin’s side with his knee. During the struggle, Martin bit the first 
9

officer’s knuckle. In response, the first officer struck Martin in the face with two “hammer 

punches.” The second officer then used all of his force to strike Martin’s face, back and ribs at 

least five times. In the meantime, the first officer folded his legs around Martin’s hips and upper 

thighs and gripped Martin’s chin with his right arm. Eventually, a third officer arrived and 

helped handcuff Martin. After Martin was handcuffed, the first two officers continued to hold 

Martin in a facedown position on the ground. The two officers soon heard Martin make a 

“gurgling” sound. The officers rolled Martin onto his side, but he was unresponsive. Attempts 

at resuscitation failed, and Martin died.

Martin’s mother sued, claiming the officers used excessive force to seize her son in violation of 

the Fourth Amendment.

The court of appeals affirmed the district court in holding the officers were not entitled to 

qualified immunity. Applying the factors from Graham v. Connor, the court concluded a 

reasonable officer should have known that subduing an unarmed, minimally dangerous, mentally 

unstable individual with compressive body weight, head and body strikes, neck or chin restraints 

and torso locks would violate that person’s right to be free from excessive force. 

The court specifically commented the first officer acted unreasonably when he tackled Martin 

and fell on top of him. Afterward, the officers’ used a degree of force that did not match the 

threat presented by Martin. Finally, after Martin was handcuffed and subdued, the officers 

unreasonably used their arms to keep Martin in a facedown position. 

In addition, Sixth Circuit case law and the police department’s policies on use of force and 

positional asphyxia clearly established on the date of the incident, that the force the officers used 

to restrain Martin was excessive. 

Click HERE for the court’s opinion.

*****

United States v. Rose, 2013 U.S. App. LEXIS 7764 (6th Cir. Ohio April 18, 2013)

Police officers suspected Rose had sexually abused three minors in his home. As a result, the 

officers obtained a search warrant for 709 Elberon Avenue. The warrant identified Kenneth 

Rose as the subject of the search and immediately below Rose’s name identified the location to 

be searched as 709 Elberon Avenue. In addition, the warrant described the physical attributes of 

the address and included a photograph of the property from the county auditor’s website. 

However, the search warrant affidavit did not include Rose’s address. It merely stated the 

victims’ allegations that Rose sexually abused them in his bedroom. Nevertheless, the 

magistrate judge issued the warrant. Officers executed the warrant and seized computers 

containing numerous images of child pornography. 

Rose argued the child pornography evidence should have been suppressed because the search 

warrant affidavit did not establish probable cause as it failed to establish the required nexus 

between the place to be searched and the evidence sought.

The court agreed the search warrant affidavit failed to connect Rose to 709 Elberon Avenue. To 

find probable cause, the judge issuing the search warrant must have a substantial basis for 

believing there is a fair probability that evidence of a crime will be found on the premises to be 

searched. This requires a nexus between the premises and the evidence sought. To establish a 
10

sufficient nexus, there must be reasonable cause to believe the items sought are located on the 

premises to be searched. Here, while the search warrant provided a description of Rose’s 

premises, the affidavit did not provide a link between the premises and Rose. The affidavit only 

explained that the victims testified criminal activity took place in Rose’s bedroom, without 

linking Rose to 709 Elberon Avenue. If the affidavit stated that the victims alleged the sexual 

misconduct took place at 709 Elberon Avenue or that the investigation revealed that Rose lived 

at 709 Elberon Avenue, there would have been probable cause to believe evidence of the crimes 

described in the affidavit would be found at 709 Elberon Avenue.

Even though the search warrant affidavit failed to link Rose to 709 Elberon Avenue, the court 

held the good-faith exception applied, therefore, the child pornography evidence was admissible. 

Considering everything, the officers conducting the search of Rose’s home exercised good faith 

and acted in objectively reasonable reliance on the warrant’s legality. First, the affidavit 

established the victims had spent time in Rose’s home and provided detailed testimony regarding 

the sexual assault that occurred there. Second, it was reasonable to conclude that either the 

testimony of the three victims or the independent investigation by the officers revealed that Rose 

lived at 709 Elberon Avenue. Finally, the exclusionary rule was designed to deter police 

misconduct rather than to punish the errors of judges and magistrates. There was no police 

misconduct to deter in this case. The affidavit’s failure to provide Rose’s address was similar to 

a clerical error and a result of poor drafting.

Click HERE for the court’s opinion.

*****

United States v. Hodge, 2013 U.S. App. LEXIS 7848 (6th Cir. Mich. April 19, 2013)

An individual told the police he witnessed the manufacture of methamphetamine, several 

firearms and a bomb at Hodge’s home. In addition, he told the police Hodge claimed the bomb 

had enough power to blow up the entire house if detonated.

Police officers corroborated the witness’ story by confirming Hodge’s identity and residence and 

learning he had recently purchased ephedrine or pseudoephedrine from local stores on three 

occasions. Officers also discovered two “silent observer” tips from the prior week stating there 

was a large amount of traffic around Hodge’s house and that the callers believed there was 

“methamphetamine activity and guns” located there. 

Based on the witness’ statements and their investigative findings, officers obtained a warrant to 

search Hodge’s house for methamphetamine and weapons. Once the officers breached the front 

door, they subdued and handcuffed Hodge. Without first giving Hodge Miranda warnings, an 

officer asked him if there was an active methamphetamine lab or bombs in the house. Hodge 

said no. A few minutes later, Hodge admitted there was a bomb in the house. The officer asked 

Hodge questions regarding the bomb’s location, appearance, construction and method of 

detonation, out of concern for the safety of the officers in the house. Hodge told the officer 

where the bomb was located and officers found and neutralized it. The officers arrested Hodge 

and he was indicted for two offenses regarding his possession of the bomb.

Hodge argued the warrant to search his house was not supported by probable cause and the pipe 

bomb should have been suppressed because the officers failed to provide him Miranda warnings 

before he made incriminating statements to them about its location. 
11

The court held the evidence presented in the search warrant affidavit supported a finding Hodge 

was engaged in methamphetamine production. First, statements from a witness, such as the one 

in this case, are generally sufficient to establish probable cause because the legal consequences 

of lying to police officers tend to ensure their reliability. Second, the officers corroborated the 

witness’ story by examining ephedrine and pseudoephedrine purchase logs, police records and 

“silent observer” tips and including that information in the search warrant affidavit. 

The court further held under the public safety exception to Miranda, the officers’ questions, 

Hodge’s answers and the evidence obtained from his house was admissible.

The information provided by the witness led the officers to believe there was a bomb in Hodge’s 

house. Consequently, the officers were allowed to ask Hodge about the presence of a bomb in 

the house, without having to first provide him with Miranda warnings, because such a question 

was narrowly confined to the information they possessed and addressed valid public safety 

concerns. 

Once Hodge admitted there was a bomb in his house, the officers’ questions were all directed to 

obtaining information about the bomb’s construction and stability, even though there was no 

evidence a third party could access the bomb. These questions were all driven by valid public 

safety concerns; therefore, the officers were not required to first advise Hodge of his Miranda

rights. 

The court concluded even if the officers never asked Hodge about the bomb, they would have 

inevitably discovered it while executing the search warrant. The bomb was wrapped in a towel 

and sitting on top of a kitchen cabinet. The officers would have been authorized under the search 

warrant to examine this unusual object to determine if it contained contraband and most certainly 

would have if Hodge had not told them about the bomb.

Click HERE for the court’s opinion.

*****

7th Circuit

United States v. Collins, 2013 U.S. App. LEXIS 7774 (7th Cir. Ind. Apr. 18, 2013)

A police officer pulled Collins over for speeding. As the officer approached his car, Collins sped 

away and the officer chased him. Collins crashed his car and fled on foot. The officer pursued 

Collins who refused commands to stop. The officer caught Collins who resisted the officer’s 

efforts to arrest him. Collins was subdued after a back-up officer deployed his Taser twice 

against him. After arresting Collins, officers found a bag containing cocaine Collins had thrown 

into the bushes during the foot chase and a quantity of cash in his pocket. Collins was indicted 

for two drug offenses.

Collins moved to suppress the drugs and money, claiming the officers only discovered this 

evidence after using excessive force to arrest him.

The court of appeals agreed with the district court, which concluded the use of excessive force in 

effecting an arrest cannot warrant the suppression of evidence. Further, even if the suppression 

of evidence were warranted, Collins discarded the drugs before the officers applied any force and 

the money would have been seized during a search incident to arrest. As a result, there would be 
12

no connection between the discovery of the evidence and the alleged excessive use of force. The 

court noted that a civil lawsuit for damages was the better remedy for Collins to address any 

allegations of excessive force against the officers.

Click HERE for the court’s opinion.

*****

8th Circuit

United States v. Rodriguez, 711 F.3d 928 (8th Cir. Mo. April 4, 2013)

A police officer pulled Rodriguez over because his car did not have license plates and the 

registration had expired. Rodriguez told the officer his driver’s license was suspended, but 

provided his date of birth. The officer ran a records check and learned Rodriquez had a possible 

felony warrant pending in California. During this time, the officer saw Rodriguez and the frontseat passenger reaching for the floorboard and looking back towards him. After a back-up 

officer arrived, Rodriguez was ordered out of his car. The officer asked Rodriguez what he had 

been searching for in the car and Rodriguez told him there was a handgun in the center console. 

The officer handcuffed Rodriguez and placed him in his patrol car and then handcuffed the 

passenger and put him in a separate patrol car. The officer then asked Rodriguez if there was 

any other contraband in the car, and Rodriguez told him there was a methamphetamine pipe 

under the seat. The officer searched the car and found a loaded handgun and the 

methamphetamine pipe. Rodriguez was arrested and charged with drug and firearms offenses.

Two months later, officers executed a search warrant at Rodriguez’s home and found 

methamphetamine, firearms and other drug related paraphernalia. Rodriguez was indicted on a 

variety of charges stemming from both incidents. 

Regarding the traffic stop, Rodriguez argued he was in-custody when the officer ordered him out 

of his car; therefore, the statements he made to the officer should have been suppressed because 

he had not been advised of his Miranda rights. 

The court disagreed. Roadside questioning during a traffic stop is considered the same as 

questioning during a Terry stop, where an officer with reasonable suspicion may detain an 

individual in order to ask a moderate number of questions to determine his identity and to obtain 

information confirming or dispelling the officer’s suspicions. 

Here, the officer ordered Rodriguez out of the car because he believed Rodriguez could be 

dangerous. Rodriguez had a possible outstanding felony arrest warrant and the officer saw 

Rodriguez reaching around inside the car and looking back at him. After Rodriguez told the 

officer he had a handgun in the car, the officer handcuffed Rodriguez, but told him he was not 

under arrest. Numerous cases have held that a police officer’s use of handcuffs can be a 

reasonable precaution during a Terry stop. The court concluded ordering Rodriguez to exit his 

car was not the functional equivalent of a formal arrest because the officer was temporarily 

detaining Rodriguez to investigate his identity and the existence of a possible arrest warrant in 

California. As a result, Rodriguez’s motion to suppress was properly denied.

Rodriguez also claimed the search of his car was an improper search incident to arrest, citing 

Arizona v. Gant. Without deciding the Gant issue, the court held the search was lawful under the 
13

automobile exception. After Rodriguez told the officer a handgun and methamphetamine pipe 

were located in the vehicle, the officer had probable cause to search the car. 

Rodriguez argued the search of his home violated the Fourth Amendment, claiming the search 

warrant affidavit did not establish probable cause and because the firearms, which the officers 

seized, were not listed in the warrant. 

Again, the court disagreed. First, the affidavit included information from two separate reliable 

sources, one being a former law enforcement officer, who was lawfully in Rodriguez’s home 

when he smelled chemicals associated with methamphetamine production. Second, the officers 

corroborated much of the information provided by the confidential sources, to include verifying 

Rodriguez’s address and the type of car he drove. Finally, even though the firearms were not 

listed on the search warrant, the officers lawfully seized them under the plain view doctrine. The 

officers found the firearms under a mattress, a place they were entitled to search under the 

warrant. In addition, the incriminating nature of the firearms was immediately apparent, as they 

were found near a large quantity of drugs and drug paraphernalia, and because the officers knew 

Rodriguez was a convicted felon, who could not lawfully possess them. 

Click HERE for the court’s opinion.

*****

United States v. Suing, 712 F.3d 1209 (8th Cir. Neb. Apr. 10, 2013)

An Arizona police officer stopped Suing, a resident of Nebraska, for a traffic violation and 

obtained consent to search his vehicle. During the search, the officer found what he believed 

might be a hidden compartment used to transport drugs. After a drug-dog alerted on Suing’s 

vehicle, the officer brought it to the police station for a more thorough search. The officer found 

an external computer hard drive in a bag on the front seat. Based on his experience of hard 

drives containing evidence of narcotics activities, such as ledgers, photographs and other 

incriminating information, the officer plugged the hard drive into a computer to search its 

contents. Almost immediately, the officer found a number of thumbnail images of child 

pornography. The officer shut the computer down, contacted a local prosecutor for advice, and 

then obtained a warrant to search Suing’s hard drive for evidence of child pornography. Suing 

was arrested after the officer found thousands of images and videos of child pornography on the 

hard drive. 

After police in Nebraska learned of Suing’s arrest in Arizona, they obtained a warrant to search 

his apartment. During that search, officers found images and videos of child pornography on 

computer hard drives in the apartment. 

Suing claimed the search of his computer hard drive for child pornography by the police in 

Arizona exceeded the scope of his consent to search his vehicle for drugs. Suing also claimed 

the search of his apartment in Nebraska was unlawful because the search warrant was based on 

evidence unlawfully obtained by the police in Arizona. Finally, Suing claimed subpoenas issued 

by the prosecutor in Nebraska to his internet service provider, which allowed the prosecutor to 

obtain his subscriber information, violated his Fourth Amendment rights.

The court held even if Suing’s consent was limited to a search of the vehicle for evidence of drug 

activity, the officer did not exceed the scope of that consent. When the officer found images of 

child pornography on the computer hard drive, he immediately stopped searching for evidence of 
14

illegal drug activity, called a prosecutor for advice and obtained a warrant authorizing the search 

for child pornography. 

Consequently, because the Arizona officer lawfully obtained evidence of child pornography from 

the computer hard drive, that information could be included in the search warrant affidavit 

drafted in support of the warrant to search Suing’s Nebraska apartment. 

In conclusion, the court held Suing had no expectation of privacy in the government’s 

acquisition of his subscriber information, to include his IP address and name from the third-party 

internet service provider; therefore, there was no Fourth Amendment violation.

Click HERE for the court’s opinion.

*****

Joseph v. Allen, 712 F.3d 1222 (8th Cir. Mo. Apr. 15, 2013)

Joseph called 911 and reported, “A lady is going crazy in my house.” When officers arrived at 

Joseph’s apartment, they encountered Latavia Jones. Jones was wearing a ripped shirt, she had 

lacerations on her hands and a two-inch cut on her arm. Jones told the officers Joseph cut her 

with a knife after she told him she was ending their relationship. An officer seized a knife on the 

floor in the apartment after Jones identified it as the one that cut her. The officers arrested 

Joseph, who was eventually acquitted of the domestic assault charge. 

Joseph sued the officers, claiming they violated his Fourth Amendment rights because they did 

not have probable cause to arrest him. 

The court held the officers were entitled to qualified immunity. Jones’ physical injuries, as well 

as other evidence at the scene, corroborated her statements and provided indicia of reliability. 

Under the circumstances, it was reasonable for the officers to believe Joseph was the aggressor 

and he had at least attempted to cause serious physical injuries to Jones. 

Click HERE for the court’s opinion.

*****

United States v. Allen, 2013 U.S. App. LEXIS 7920 (8th Cir. Ark. Apr. 22, 2013)

After police officers arrested three individuals for attempting to pass counterfeit checks, they 

found a receipt for a hotel room. Officers went to the hotel, conducted surveillance on the room 

and saw Allen throw away a white plastic bag behind the hotel. Officers recovered the bag, 

which contained torn-up checks that matched checks found during the arrests of the three 

individuals. The officers returned to the hotel where they saw Allen loading items from a 

luggage cart into his car. Two black duffel bags and a combination printer, scanner, and copier 

machine were visible on the luggage cart. The officers arrested Allen. The officers searched 

Allen’s car and found thousands of dollars in cash. The officers also searched the black duffel 

bags on the luggage cart and found a laptop computer, check stock and blank checks. 

Allen argued the officers did not have probable cause to arrest him and the search of his car and 

the duffel bags on the luggage cart violated the Fourth Amendment.

The court held the officers had probable cause to arrest Allen for possession of counterfeit 

checks. First, the hotel receipt linked Allen to three individuals recently arrested attempting to 
15

pass counterfeit checks. Second, officers saw Allen discard a plastic bag that contained torn-up 

checks that matched the ones used by the other individuals. Finally, officers saw a combination 

printer, scanner and copier on Allen’s luggage cart and they knew such a machine is typically 

associated with counterfeit check cases. 

In addition, the court held the officers lawfully searched Allen’s car incident to his arrest. Police 

officers can lawfully search a vehicle incident to an arrest if the arrestee is within reaching 

distance of the vehicle during the search or if the police have reason to believe the vehicle 

contains evidence relevant to the crime of arrest. Based on information discovered during the 

investigation, the search of Allen’s car incident to his arrest was lawful because the officers had 

reason to believe the vehicle contained evidence relevant to the crime of conspiracy to possess 

counterfeit securities. 

Finally, the court concluded even if the officers could not search the items on the luggage cart 

incident to Allen’s arrest, the evidence inside the duffel bags would have been discovered during 

an inventory search. An officer testified, after arresting Allen, his property on the luggage cart 

would have been taken to the police station for safekeeping and inventoried to guard against loss 

or theft, according to departmental policy. 

Click HERE for the court’s opinion.

*****

United States v. Wallace, 2013 U.S. App. LEXIS 8377 (8th Cir. Ark. Apr. 25, 2013)

A woman brought police officers a videotape she claimed to have removed from Wallace’s home 

that depicted Wallace sexually assaulting minor females. The officers matched the face in the 

video to a copy of Wallace’s driver’s license photograph. The woman told the officers a maroon 

colored suitcase in Wallace’s spare bedroom contained additional sexually explicit material 

involving minors. 

Based on this information, officers obtained a warrant to search Wallace’s home and located the 

maroon-colored suitcase. The suitcase contained numerous sexually explicit images and 

videotape recordings of minors. Officers arrested Wallace, who waived his Miranda rights and 

drafted a handwritten confession.

Wallace argued the search warrant was not supported by probable cause and the officers 

pressured him into signing the written confession.

The court held the search warrant for Wallace’s home was supported by probable cause. Even 

though the woman had a criminal history and had never provided the government with reliable 

information that led to a conviction, the officers corroborated most of her information. Because 

there was independent corroboration of the videotape contents, it was permissible to infer that 

the other information, including the location of the other material in the maroon-colored suitcase, 

was reliable. 

The court further held Wallace’s confession was made knowingly, intelligently and voluntarily. 

The officers advised Wallace of his Miranda rights and he signed a written waiver of those 

rights, which explicitly stated he had not been threatened, coerced or promised anything in 

exchange for giving up those rights.

Click HERE for the court’s opinion.

*****
16

9th Circuit

Cameron v. Craig, 2013 U.S. App. LEXIS 7563 (9th Cir. Cal. Apr. 16, 2013)

Deputy Buether filed a criminal complaint stating someone had used his credit card without 

authorization to purchase household furnishings. Buether told Detective Craig he believed 

Cameron, the mother of his two children had used the credit card after she was removed from 

their home pursuant to a court order. Buether and Craig had attended the police academy 

together, worked the same shift and responded to hundreds of calls together. After corroborating 

much of Buether’s information, Craig obtained a warrant to search Cameron’s apartment for the 

items purchased with Buether’s credit card. After Buether gave Craig his child custody 

schedule, Craig executed the search warrant at a time she knew Cameron would have custody of 

the couple’s two young children. Six to ten police officers executed the search warrant. Upon 

entering the apartment, officers pointed guns at Cameron and handcuffed her arms behind her 

back tightly enough to leave bruising that lasted a few days. Officers arrested Cameron for a 

variety of property offenses; however, the prosecutor later dismissed all of the charges.

Cameron sued the officers, claiming her Fourth Amendment rights were violated when police 

officers conspired with the father of her children, a police officer with the same department, to 

obtain a warrant to search her home without probable cause, used excessive force while 

executing that warrant and then arrested her. 

The court held the officers were entitled to qualified immunity to Cameron’s unlawful search and 

arrest claims. Detective Craig’s affidavit established probable cause that Buether did not 

authorize Cameron to use his credit card after she was removed from their home and the items 

purchased were inside Cameron’s apartment. For similar reasons, the court held Craig had 

probable cause to arrest Cameron. Even though Cameron told Craig she had permission to use 

Buether’s credit card, an objectively reasonable officer could have chosen to believe Buether 

instead. 

The court, however, declined to grant Detective Craig qualified immunity on Cameron’s 

excessive use of force allegation. The court concluded a jury could find the level of force used 

was excessive. Cameron’s suspected crimes were relatively minor and non-violent. The officers 

had no reason to suspect Cameron would pose a threat to their safety and Cameron was not 

resisting arrest. A reasonable jury could easily determine the deployment of six to ten heavily 

armed officers was unnecessary to execute a search warrant for stolen property. 

The court further held Detective Craig was not entitled to qualified immunity on Cameron’s 

claim the search warrant was executed in such a way to intimidate her and to secure an unfair 

advantage for Buether in the couple’s child custody proceedings. A reasonable jury could 

conclude Detective Craig and Buether conspired to abuse their power as law enforcement 

officers because they were friends and close colleagues, because Craig knew Buether and 

Cameron were engaged in mediation over custody of their children, and because Craig 

intentionally executed the search warrant when she knew the children would be present. In 

addition, a reasonable jury could also find Buether sought to exploit the raid by immediately 

calling the mediator after Cameron was arrested. 

Click HERE for the court’s opinion.

*****
17

United States v. Barnes, 2013 U.S. App. LEXIS 7785 (9th Cir. Alaska Apr. 18, 2013)

At the request of federal agents, Barnes’ parole officer scheduled a meeting with him. Barnes, 

who was required by the terms of his parole to attend the meeting, did not tell Barnes the agents

would be present. When Barnes arrived, instead of meeting with him at the window in the lobby 

of the building as usual, he was searched and escorted through a locked door to his parole 

officer’s office. Once in her office, the two federal agents began to question Barnes about an 

undercover drug buy that occurred a few months earlier. The agents did not advise Barnes of his 

Miranda rights. After Barnes denied involvement in the transaction, the agents played a portion 

of a recorded phone call between Barnes and a confidential informant. Barnes then told the 

agents he remembered the transaction. The agents read Barnes his Miranda rights. Barnes 

waived his rights and confessed his involvement in the drug transaction. Barnes was indicted on 

several drug charges.

Barnes argued his statements to the agents were obtained in violation of Miranda.

The court agreed. First, the court held Barnes was in custody for Miranda purposes. Barnes was 

told to appear for a meeting with his parole officer under threat of revocation of his parole. 

When he arrived, instead of meeting with his parole officer, federal agents confronted Barnes 

directly with evidence implicating him in a drug transaction. The agents interviewed Barnes in a 

small office behind a closed door instead of in the lobby of the building as usual. Even though 

the agents eventually advised Barnes of his Miranda rights, this was anything but a typical 

meeting with his parole officer. A reasonable person in Barnes’ position would not have felt free 

to leave.

Second, the court held the agents engaged in a deliberate two-step interrogation process. Such 

an interrogation occurs when a police officer deliberately questions a suspect without Miranda

warnings and obtains a confession or the suspect makes incriminating statements. The officer 

then advises the suspect of his Miranda rights, obtains a waiver and has the suspect repeat his 

confession or incriminating statements. Here, the agent feared if Barnes heard the Miranda 

warnings he would be less likely to talk about the drug transaction and provide information about 

another suspect the agents were targeting. Even if the agents’ primary reason to question Barnes 

was to gather information on another suspect, the agents were required to provide Barnes 

Miranda warnings when they began to question him. 

Finally, the court found Barnes’ pre and post Miranda warning confessions were only slightly 

different. The agents treated the second interrogation as continuation of the first interrogation 

with no break in between and they did not tell Barnes what he had said before the warnings could 

not be used against him. As a result, the Miranda warnings Barnes received were not effective 

and Barnes’ post Miranda confession should have been suppressed. 

Click HERE for the court’s opinion.

*****

United States v. McClendon, 2013 U.S. App. LEXIS 8094 (9th Cir. Wash. Apr. 19, 2013)

At 2:20 a.m. a man called 911 stating an unknown vehicle was parked in his driveway with its 

engine and lights off and that someone had knocked on his door. When officers arrived, a 

woman got out of the car. She claimed the car had run out of gas and McClendon had gone to 

get more. The woman consented to a search and the officers found a backpack in the car the 
18

woman said belonged to Eddie McClendon. An officer searched the backpack and found a 

sawed-off shotgun, a wig, walkie-talkies and binoculars. Officers ran a records check and 

learned McClendon had a previous felony weapons conviction. Officers began to search the 

neighborhood for McClendon. 

The officers saw a man fitting McClendon’s description walking down the street. After the man 

confirmed his name was Eddie, he turned and began to walk away from the officers. The 

officers drew their guns, told McClendon he was under arrest and ordered him to show his hands. 

McClendon ignored the officers and continued to walk away. The officers saw McClendon 

reach toward his waistband and then “fling” something away. The officers tackled McClendon, 

handcuffed him and placed him under arrest. The officers found a loaded handgun, still warm to 

the touch, a few feet away. McClendon denied discarding the handgun. 

The government indicted McClendon for two counts of felon in possession of a firearm for the 

shotgun and handgun. 

The district court held the search of the backpack violated the Fourth Amendment because the 

woman did not have authority to consent to its search and there was no exigency that allowed the 

officers to search it without a warrant. The government did not appeal this ruling.

However, the district court denied McClendon’s motion to suppress the handgun.

McClendon argued on appeal the handgun should have been suppressed. He claimed the officers 

only discovered the handgun as the result of a seizure that was prompted by the illegal search of 

his backpack. 

The court of appeals disagreed, holding McClendon was not seized under the Fourth Amendment

until the officers tackled him. However, by then, he had already discarded the firearm. 

Consequently, McClendon lost his ability to challenge the admissibility of the handgun as the 

fruit of an illegal seizure. 

In addition, the court held the discovery of the handgun should not be suppressed as a fruit of the 

unlawful search of McClendon’s backpack. An officer testified he would have searched for 

McClendon even if the backpack had not been searched. Even if the officers were motivated to 

search for McClendon because of what they found in the backpack, McClendon’s act of walking 

away from them was an intervening event that purged any taint from the backpack search.

Click HERE for the court’s opinion.

*****

10th Circuit

United States v. Benoit, 713 F.3d 1 (10th Cir. Okla. April 2, 2013)

Benoit’s girlfriend Rose called the police after she found what appeared to be child pornography 

on Benoit’s computer while she was using it to pay bills online. When the police officer arrived 

at Rose’s home, she had a friend who was more familiar with computers open the file she 

suspected contained child pornography and show it to the officer. The friend offered to open 

additional files but the officer told her it was not necessary. The officer contacted an investigator 

with the cybercrimes unit and then seized Benoit’s computer until a search warrant could be 
19

obtained. After the police obtained the warrant, investigators found hundreds of images and 

videos of child pornography. Benoit was indicted for two child pornography related offenses. 

Benoit claimed Rose did not have actual or apparent authority to consent to the officer’s initial 

search of his computer because she had told the officer the computer did not belong to her. 

The court held the officer’s viewing of the child pornography video prior to seizing Benoit’s 

computer was not a search under the Fourth Amendment; therefore, the issue of consent was 

irrelevant. The Fourth Amendment only applies to governmental action. It does not apply to 

searches conducted by private individuals unless they are acting as an agent for the government 

or a government official actively participates in the search. When the officer responded to 

Rose’s home, she had already found what she believed to be child pornography on Benoit’s 

computer. Once at the home, the officer did not touch the computer, actively assist, or encourage 

the friend as she opened the file for him to view. The court concluded the officer did not conduct 

a search or direct a private search of Benoit’s computer; rather he only acted as a witness. 

In addition, the court held the officer’s warrantless seizure of Benoit’s computer was lawful 

under the plain view doctrine. The officer was lawfully present in Rose’s home and the 

incriminating nature of child pornography was immediately apparent to the officer when the 

friend opened the video file. 

Click HERE for the court’s opinion.

*****

United States v. McDowell, 2013 U.S. App. LEXIS 7430 (10th Cir. Kan. Apr. 12, 2013)

A police officer was dispatched to a house to attempt to locate a woman under investigation for 

an assault. To reach the front door, the officer had to cross the driveway. As the officer walked 

diagonally across the driveway, he smelled a strong odor of fresh marijuana that appeared to be 

coming from the garage. At the front door, the officer the officer still smelled the odor of fresh 

marijuana. The officer used this information to obtain a search warrant which led to the seizure 

of over six hundred pounds of marijuana from the garage. 

McDowell argued the marijuana evidence should have been suppressed because the officer 

intruded upon the house’s curtilage while gathering information used to support the search 

warrant.

The court disagreed, noting even if the officer did enter the curtilage, the warrant to search the 

house was still valid. The United States Supreme Court in Jardines recently stated a police 

officer without a warrant is allowed to approach a home and knock on the door to the same 

extent any private citizen might do. Whether or not the driveway and front sidewalk were 

curtilage, the officer did not violate the Fourth Amendment by walking across them on his way to 

the front door. As a result, the smell of marijuana that reached him while he was in the driveway 

was not fruit of an unlawful search.

Click HERE for the court’s opinion.

*****
20

United States v. Shuck, 2013 U.S. App. LEXIS 7427 (10th Cir. Okla. Apr. 12, 2013)

A person called the police after he smelled the odor of marijuana coming from the trailer house 

next door. Police officers walked to the front of the trailer and saw a gated chain link fence that 

enclosed the front yard and part of the driveway. The gate appeared to be locked and that it had 

not been used recently because of the amount of dirt accumulated at the bottom of the gate. 

Officers walked around the fence to the back door, which appeared to be the way a person would 

enter the trailer. The officers knocked on the door, but received no response. During this time, 

the officers saw a PVC pipe to the right of the back door. One of the officers bent down and 

smelled the end of the pipe and detected the odor of marijuana. The officers returned to their 

office and learned from the utility company the trailer was being billed for an extremely high 

amount of water per month. The officers obtained a warrant, searched the trailer, discovered a 

marijuana growing operation and arrested Shuck.

Shuck argued the officers violated the Fourth Amendment when they entered his backyard and 

conducted a search under the pretext of doing a knock and talk interview. He claimed the 

officers unlawfully entered the trailer home property when they decided not to approach the front 

door, but went directly into the backyard. Shuck also claimed the officer conducted an illegal 

search when he smelled the PVC pipe.

The court disagreed. Even if the area the officers entered was within the curtilage, they did not 

violate the Fourth Amendment by walking up to the back door and knocking on it. Police 

officers may enter the portion of the curtilage that is the normal route of access for anyone 

visiting a home. Here, the back door appeared to be the door commonly used by anyone entering 

the trailer. Therefore, the officers did not violate the Fourth Amendment when they approached 

the trailer’s back door to speak with its occupants about the reported odor of marijuana. 

The court also concluded the officer did not violate the Fourth Amendment by smelling the PVC 

pipe. Shuck’s exposure of the marijuana odor to the public defeated his subsequent claim to 

Fourth Amendment protection. In addition, the PVC pipe was clearly noticeable by anyone 

standing at the back door of the trailer. The Fourth Amendment does not protect any 

observations the officers made from the back door, including the officer’s smell of the PVC pipe.

Click HERE for the court’s opinion.

*****

United States v. Madrid, 2013 U.S. App. LEXIS 7755 (10th Cir. N.M. Apr. 17, 2013)

A 911 operator received an anonymous call two men were arguing and about to get into a fight in 

an apartment complex parking lot. The operator dispatched police officers, telling them the 

caller had reported a fight in progress. The caller remained on the line and told the operator one 

of the men had driven away in a white Pontiac as the police cars arrived. Officers saw the white 

Pontiac and conducted a traffic stop. When the officers approached the Pontiac, they recognized 

the driver, Madrid, and knew he was a convicted felon. While one officer obtained Madrid’s 

license and registration, another officer looked through the passenger side window into the car. 

The officer saw a rifle case on the back seat. The officer removed the case from the car, opened 

it and discovered a rifle inside. Madrid was charged with being a felon in possession of a 

firearm.
21

Madrid moved to suppress the rifle, arguing the officers did not have reasonable suspicion to 

conduct the traffic stop because a fight never occurred in the parking lot. 

Based on the information provided by the 911 operator, the court held there was sufficient 

evidence to establish the officer did not realize a fight had not actually occurred in the parking 

lot. In addition, it was proper to consider Madrid’s attempted exit from the parking lot in the 

Pontiac when determining if the officer had reasonable suspicion to stop him. As a result, the 

officer had an objectively reasonable belief a fight had just occurred and the participants were 

leaving the scene.

Finally, the court held the anonymous call to 911 was sufficient to establish reasonable suspicion 

to stop Madrid. First, the caller was reporting contemporaneous, firsthand knowledge of the 

possible fight in the parking lot. Second, the caller provided detailed information about the 

events he was observing, to include descriptions of the clothing and vehicles of the individuals 

involved in the incident. Third, the responding officers verified much of the information 

provided by the caller. 

Click HERE for the court’s opinion.

*****

11th Circuit

Myers v. Bowman, 2013 U.S. App. LEXIS 7216 (11th Cir. Ga. Apr. 10, 2013)

Myers and Bowman ended their engagement to be married. Myers and his father retrieved some 

personal property from Bowman’s house, to include the couple’s dog, which Myers had 

purchased. Bowman called her father, who was a county magistrate judge, who in turn called 

Myers and demanded the return of the dog. Myers refused. The magistrate followed Myers’ 

vehicle and reported to local police officers someone had stolen his dog, a felony offense based 

on the value of the dog. Police officers conducted a traffic stop, pulled Myers out of his vehicle, 

wrestled him to the ground and arrested him. Myers suffered injuries to his head, neck, wrist and 

knees because of the officer’s use of force. Another officer arrested Myers’ father. After the 

magistrate recovered the dog from Myers’ vehicle, he berated and threatened Myers for 

approximately seven minutes before he ordered the officers to release Myers and his father. 

Myers sued the police officer for arresting him without probable cause and for excessive use of 

force in violation of the Fourth Amendment. Myers sued the magistrate for manufacturing 

probable cause that caused the officer to arrest him and use excessive force against him. 

The court held the officer was entitled to qualified immunity. First, the officer had probable 

cause to arrest Myers. When the officer arrested Myers, it was reasonable for the officer to 

believe Myers had committed felony theft and fled the scene of the crime. The officer’s 

knowledge was based on the magistrate’s claim Myers had stolen the dog. The officer was 

entitled to rely on the magistrate’s claim his dog was stolen, as an officer is entitled to rely on a 

victim’s complaint as support for probable cause. In addition, the officer was entitled to presume 

the magistrate was a reliable and trustworthy source because he was a government official. 

Second, the court concluded the officer did not use excessive force by grabbing Myers by the 

arm, forcing him to the ground, placing him in handcuffs and searching him. When the officer 
22

used this force, he had probable cause to arrest Myers and he did not know whether Myers was 

armed or whether he would resist arrest. 

The court further held the magistrate was entitled to qualified immunity because the officers did 

not use excessive force against Myers. In addition, the magistrate did not act under color of law 

as a state employee when he reported the theft of the dog, but rather as a private citizen

Click HERE for the court’s opinion.

*****

District of Columbia Circuit

United States v. Cardoza, 2013 U.S. App. LEXIS 7376 (D.C. Cir. Apr. 12, 2013)

Police officers arrested Cardoza and Ungar after they recovered over four grams of cocaine from 

the car in which the two men had been sitting. In a search incident to arrest, officers recovered 

three disposable cell phones, almost three thousand dollars in cash and a plastic bag containing 

marijuana. Cardoza gave the officers a false address and a records check revealed he had 

previously been arrested for possession with intent to distribute marijuana. 

Officers obtained a warrant to search Cardoza’s apartment for evidence relating to illegal 

narcotics distribution and found cocaine, marijuana, handguns, a large quantity of cash and 

paraphernalia associated with drug distribution.

The district court granted Cardoza’s motion to suppress the evidence seized from his apartment 

after ruling the search warrant affidavit included four false statements and concluding that 

without those statements; the officers did not have probable cause to search Cardoza’s apartment. 

The court of appeals reversed the district court, holding the officer’s search warrant affidavit 

established probable cause to search Cardoza’s apartment even without the four false statements.

First the court found the evidence seized during the search incident to arrest along with 

Cardoza’s prior arrest record and false address established probable cause to believe Cardoza 

was engaged in drug trafficking. Next, the officer stated in the affidavit that based on his 

training and experience drug traffickers often kept additional supplies of drugs within their 

homes along with weapons and large sums of cash. Prior case law has established drug dealers 

must have a secure location from which to work and that location is most often in their home. 

Consequently, when there is probable cause a suspect is dealing drugs, there often tends to be 

probable cause evidence of drug dealing will be found in the suspect’s home. 

Click HERE for the court’s opinion.

*****