Department of Homeland Security

Federal Law Enforcement Training Centers

Office of Chief Counsel

Legal Training Division 

January 2016

THE

FEDERAL LAW ENFORCEMENT

-INFORMER- A MONTHLY LEGAL RESOURCE AND COMMENTARY FOR LAW 

ENFORCEMENT OFFICERS AND AGENTS

Join THE INFORMER E-mail Subscription List

It’s easy! Click HERE to subscribe,

change your e-mail address, or unsubscribe.

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

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

FLETC Legal Division.

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

Law Enforcement Training Centers’ Office of Chief Counsel is dedicated to providing law enforcement officers with quality, useful 

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

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

do not necessarily reflect the views of the Federal Law Enforcement Training Centers. The Informer is researched and written by 

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

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

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

visiting https://www.fletc.gov/legal-resources. 

This edition of The Informer may be cited as 1 INFORMER 16.
2

The Informer – January 2016

Article: When Police Interface with Citizens Exercising Their Rights

By Tim Miller, Attorney – Advisor and Senior Instructor, FLETC Legal Division................................4

Case Summaries

 ♦

Circuit Courts of Appeals

Fourth Circuit

United States v. Williams: Whether officers established reasonable suspicion to

extend the duration of the traffic stop after issuing Williams a written warning........................7

United States v. Stover: Whether Stover was seized for Fourth Amendment

purposes by the officers before he threw a loaded handgun on the ground.................................8

Unites States v. Rush: Whether the good-faith exception to the exclusionary rule

applied after an officer knowingly lied to Rush about the existence of a search warrant...........9

Sixth Circuit

Bachynski v. Stewart: Whether officers engaged in “interrogation” or the “functional

equivalent of interrogation” when they approached Bachynski and offered her the use

of a telephone and a phone book to obtain an attorney.............................................................10

Eighth Circuit

United States v. Davison: Whether an officer established reasonable suspicion to 

conduct a Terry stop and then a Terry frisk of Davison............................................................11

Tenth Circuit

Mocek v. City of Albuquerque: Whether TSA agents and local officers were entitled to 

qualified immunity after Mocek was arrested for his conduct at a security checkpoint...........12

Eleventh Circuit

United States v. Johnson: Whether an officer’s warrantless search of a “lost” 

cell phone exceeded the scope of a private search, and whether Johnson retained 

his ability to challenge a subsequent search of the phone pursuant to a warrant, 

after he abandoned his efforts to recover the phone..................................................................14

♦
3

FLETC Informer Webinar Series

1. Exigent Circumstances: Part I (Introduction / Emergency Exigency)

Bruce-Alan Barnard will begin a three-part series on the exigent circumstances 

exception to the Fourth Amendment’s warrant requirement. In this two-hour webinar, Bruce 

will provide a general overview of exigent circumstances and specifically discuss 

“emergency” exigent circumstances. In the following months, Bruce will conduct Exigent 

Circumstances Part II: Destruction Exigency, and Exigent Circumstances Part III: Hot 

Pursuit and various other exigencies, both two-hours in duration.

Dates and Times: Wednesday February 3, 2016 2:30 p.m. EST

 Friday February 19, 2016 2:30 p.m. EST

To join this webinar on either date: https://share.dhs.gov/informer

♦

2. Search and Seizure Update

1-hour webinar presented by Bruce-Alan Barnard, FLETC Legal Division. This course will 

review and analyze current federal cases involving Fourth Amendment searches and 

seizures. 

Date and Time: Thursday February 18, 2016 2:30 p.m. EST

To join this webinar: https://share.dhs.gov/informer

♦

3. Exigent Circumstances: Part II (Destruction Exigency)

In this two-hour webinar, Bruce-Alan Barnard continues his discussion of the exigent 

circumstances exception to the Fourth Amendment’s warrant requirement, focusing on the 

destruction exigency.

Date and Time: Wednesday March 2, 2016 2:30 p.m. EST

To join this webinar: https://share.dhs.gov/informer

 ♦

To participate in a FLETC Informer Webinar:

1. Click on the link to access the Homeland Security Information Network (HSIN).

2. If you have a HSIN account, enter with your login and password information.

3. If you do not have a HSIN account click on the button next to “Enter as a Guest.”

4. Enter your name and click the “Enter” button.

5. You will now be in the meeting room and will be able to participate in the webinar.

6. Even though meeting rooms may be accessed before a webinar, there may be times 

when a meeting room is closed while an instructor is setting up the room.

7. Meeting rooms will be open at least one-hour before a scheduled webinar.

8. Training certificates will be provided at the conclusion of each webinar.

***************************************************************************
4

When Police Interface With Citizens Exercising Their Rights 

By

Tim Miller

Attorney Advisor and Senior Instructor

Office of Chief Counsel/Legal Division

Federal Law Enforcement Training Centers

Glynco, Georgia

Simon Glik was taken into custody after he exercised his right to make an audio-visual 

recording of police officers making an arrest in a city park. Shawn Northrup was seized and 

cited after he holstered a pistol to his side in a state that allowed him to openly carry a firearm. 

Then came the big surprise for the officers – lawsuits. The officers could not articulate a 

reasonable restriction on the rights.

1

 

The law is not new. The founding fathers promised the people certain rights, later guaranteed 

in the U.S. Constitution. First, whether by coincidence or not, is the First Amendment’s right 

to not only speak out about government abuses, but also gather information about how 

government officials perform their duties. Second, is the right to bear arms, or self-defense. 

Skip the Third Amendment (no quartering of soldiers in private homes) and the discussion can 

turn to reasonable restrictions. 

What could restrict the right in this case?

• Driving down Main Street, Jones saw Officer Smith conducting a traffic stop and 

decided to record the event. Jones parked beside the road, but before he could start 

recording, Smith ordered him to move his car. Jones shouted back, “No! I’m exercising 

my First Amendment right to record public officials performing their duties!”

The Fourth Amendment protects people from unreasonable searches and seizures, not 

reasonable ones. Depending on a law against parking by the road – Jones could be cited or 

even arrested.

The determinative issue under the Fourth Amendment is whether the search or seizure was 

objectively reasonable – and objective reasonableness always depends on the facts. Facts 

supporting the elements of a criminal statute puts an arrest within the range of reasonable 

options. What if Officer Smith stopped the car based on reasonable suspicion that the occupants 

were armed robbers? An order for bystanders to disperse would seem reasonable.2

 Or what if 

Smith lawfully stopped a car and one of the occupants got out and started recording? Officers 

can control the driver and passengers in the car.3 

The Fourth Amendment’s objective reasonableness standard gives police officers power and 

protection from civil liability. It should not take a lot of explaining why seizing Glik and 

 1 See Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) and Northrup v. City of Toledo, 785 F.3d 1128 (6th Cir. 

2015).

2 See Gericke v. Begin, 753 F.3d 1, 8 (2014)(The circumstances of some traffic stops, particularly when the 

detained individual is armed, might justify a safety measure - - for example, a command that bystanders 

disperse).

3 Maryland v. Wilson, 519 U.S. 408, 414 (1997)(passenger could be ordered out of a car during a traffic stop); 

see also Pennsylvania v. Mimms, 434 U.S. 106 (1977)(driver could be ordered out of a car during a traffic stop). 
5

Northrup was unreasonable. While their conduct was annoying or even unsettling, they did 

nothing wrong. The better question is what keeps officers from using their very discretionary

Fourth Amendment powers as a retaliatory measure against someone for ... say, exercising a 

right? 

Consider this ... 

• Officer Smith was making an arrest in a federal park. Jones walked up to within fivefeet of Smith and voiced his opinion that the arrest was an abuse of government power: 

“That’s f---ed up!” Smith ordered Jones to move back. “F--- you!” Jones responded in 

predictable prose, “I’m exercising my First Amendment right!” Officer Smith arrested 

Jones not only for disobeying an order, but also dropping the f-bombs on Smith.4

 

 

An arrest for refusing to leave the immediate scene of an arrest was reasonable; but an arrest 

for shouting expletives was not. Where matters of public interest are concerned, the First 

Amendment protects free expression.5 After all, why should police officers be more immune 

from hateful language than presidents? Still, probable cause to arrest only depends on whether 

the facts known to the officer at the time supports an arrestable offense, not whether the officer 

arrested the suspect for the right one.6 The facts supported an arrest. End-of-story ... or is it? 

What if Officer Smith’s underlying motive for arresting Jones was for his colorful description 

of the arrest? Obviously, police officers should not use their Fourth Amendment arrest powers 

because they fear, dislike, or disagree with the views of others. Still, the Supreme Court has 

never held that there is a right to be free from a retaliatory arrest that is otherwise supported by 

probable cause. The lower federal courts of appeals are split on the issue.7 Smith, therefore, 

could request qualified immunity - - the officer’s defense to standing trial for a constitutional 

tort. Unless the law clearly establishes where liability begins, the case should be dismissed. 

While the extent of protections under the First and Second Amendments have yet to be 

determined, they at least remove free expression and self-defense from the list of reasons for 

searching or seizing someone. Absent some other objectively reasonable reason, a Fourth 

Amendment violation will prevail. Moreover, there is not an automatic firearm exception. An 

investigative detention (Terry Stop) requires at least reasonable suspicion that a crime is afoot; 

a limited search for weapons (Terry Frisk) requires reasonable suspicion that the suspect is 

presently armed and dangerous. 

What is missing ...? 

• An anonymous informant reported that a juvenile at a bus stop had a gun. The informant 

identified the bus stop and said that the kid was wearing a plaid shirt. Officer Smith 

responded and saw someone matching the tipster’s description. Other than the 

anonymous tip, however, Smith had no reason to believe the kid was violating the law, 

 4 U.S. v. Poocha, 259 F.3d 1077 (9th Cir. 2001). 5 See Snyder v. Phelps, 562 U.S. 443 (2011). 6

Devenpeck v. Alford, 543 U.S. 146 (2004). 7 The U.S. Supreme Court has never held that there is a right to be free from a retaliatory arrest that is otherwise 

supported by probable cause. Reichle v. Howards, 132 S.Ct. 2088 (2012). The federal courts of appeals are split 

on the issue. Dukore v. D.C., 799 F.3d 1137 (D.C. Cir. 2015). 
6

but performed a stop and frisk anyway. The frisk revealed a gun. State law prohibited 

juveniles from carrying a concealed firearm and Smith arrested the young man.8

 

Missing is reasonable suspicion. Reasonable means reliable, and the tip was only reliable in 

its assertion that there was a kid, matching the informant’s description, at the bus stop. Smith 

could establish the tipster’s reliability by waiting and watching, or he could approach the 

suspect like anyone else (i.e., a consensual encounter), and look for facts corroborating the 

caller’s assertion of illegality. Nervousness and a bulge at the suspect’s waistband, along with 

everything else, should be enough to establish reasonable suspicion that the kid is committing 

a crime and that he is presently armed and dangerous. 

What is missing here ...?

• Officer Smith stopped Jones for speeding. Dispatch reported that he had a license to 

carry a concealed firearm. A National Rifle Association (NRA) sticker was also on 

Jones’ windshield. Smith frisked Jones for weapons.

While a lawful traffic violation is enough to temporarily seize everyone in the car, carrying a 

firearm in accordance with state law and a NRA membership falls short of reasonable suspicion 

that Jones is presently armed and dangerous. The frisk is not reasonable. 

Try one more...

• Tennessee law allowed anyone with a permit to carry a handgun in a state park. A 

handgun was defined as a firearm with a barrel length less than 12-inches that was 

designed to be fired with one hand. Jones went to a park one day. He had an AK-47 

pistol with a 30-round clip slung across his chest. The barrel met the legal limit for a 

pistol by 1⁄2 inch. Jones also painted the tip of the barrel orange (the law didn’t say he 

couldn’t) and to catch any suspicious officer who might try to stop him, he carried a 

recording device. Officer Smith promptly stopped and frisked Jones. After confirming 

that the gun narrowly met the definition of a handgun, Jones was released.9

The Constitution requires reasonable suspicion of a crime, not that a crime occurred. Jones did 

his best to look suspicious and cannot cry foul after Officer Smith took the bait long enough to 

confirm or deny the suspicion. The barrel length, its orange tip, and the large banana clip could 

lead an officer to reasonably suspect that the weapon did not meet the legal definition of a 

handgun, or that it was an illegal weapon disguised as a toy. The same facts supported a frisk.

One might claim that police officers have to make tough choices when interfacing with citizens 

exercising their rights, especially in a situation where one citizen is carrying a firearm and 

another is chastising the officer for not doing more to protect the public. But the truth is that 

officers have no choice, unless there is a reasonable restriction on the right. 

 8 Florida v. J.L., 529 U.S. 266 (2000) 9 Embody v. Ward, 695 F.3d 577 (6th Cir. 2012).
7

CASE SUMMARIES

Circuit Courts of Appeal

Fourth Circuit

United States v. Williams, 2015 U.S. App. LEXIS 21560 (4th Cir. N.C. Dec. 14, 2015)

At 12:37 a.m., two officers patrolling separately saw two vehicles traveling close together and 

speeding on I-85 near Charlotte, North Carolina. One officer stopped the lead vehicle, driven 

by Williams’ brother. The other officer stopped the second vehicle, a rental car, driven by 

Williams. The officer issued Williams a written warning and returned Williams’ driver’s 

license and rental agreement at 12:54 a.m. As Williams was about to leave, the officer asked 

Williams for consent to search his car. Williams refused. The officer then told Williams he 

was not free to leave and that a dog-sniff would be conducted on his car. After the drug-dog 

alerted to the presence of narcotics, the officers searched Williams’ car and discovered crack 

cocaine in the trunk.

The government indicted Williams for possession with intent to distribute crack cocaine.

Williams claimed the officers violated the Fourth Amendment because they did not establish 

reasonable suspicion to extend the duration of the traffic stop after the officer issued him the 

written warning for speeding. As a result, Williams argued, the evidence discovered in the trunk 

of the rental car should have been suppressed.

The court agreed. The officers testified they established reasonable suspicion to extend the 

duration of the stop because Williams was traveling in a rental car, at 12:37 a.m., on a “known 

drug corridor.” First, the court noted Williams’ use of a rental car, by itself, was of minimal 

value to the reasonable suspicion analysis because neither officer explained why Williams’ use 

of a rental car led them to believe he might be involved in criminal activity. For example, the 

officers did not testify that based on their training and experience drug traffickers often use 

rental cars to avoid asset forfeiture laws or for other reasons. 

Second, while drug traffickers travel on interstate highways, so do many more innocent 

motorists. Because there is nothing inherently suspicious about driving at night on an interstate 

highway, officers must rely on their training and experience to link interstate-highway travel to 

more specific characteristics of drug trafficking. However, in this case, neither officer provided 

any testimony linking travel on an interstate highway with drug trafficking, nor did they claim 

that drug traffickers have some disproportionate tendency to travel late at night. As a result, 

the court concluded the officers failed to articulate why Williams’ driving at 12:37 a.m., on an 

interstate highway created reasonable suspicion of criminal activity. 

The officers also testified they thought it was suspicious that the rental agreement for Williams’ 

car was set to expire later that day, requiring the car to be returned in New Jersey, but that 

Williams was traveling in the opposite direction. The court held the fact that Williams’ travel 

plans were likely to exceed the initial duration of the rental agreement did not support 

reasonable suspicion that he was involved in criminal activity. When the officer mentioned the 

expiration of the rental agreement, Williams told the officer he planned to renew the agreement 
8

once he got to Charlotte, later that day. In addition, the officer knew the Williams’ car was 

rented through Hertz, a well-known car rental business with locations nationwide. 

Finally, the officers testified that when asked for his address, Williams told the officers he lived 

in both New York and New Jersey, and then gave the officers a post office box address that was 

different from the address on his New York driver’s license, 

The court concluded this factor did not support reasonable suspicion that Williams was involved 

in criminal activity because neither officer explained how using a post office box address or 

living in New York and New Jersey raised some suspicion of criminal activity. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca4/14-4049/14-4049-

2015-12-14.pdf?ts=1450123231

*****

United States v. Stover, 2015 U.S. App. LEXIS 22071 (4th Cir. Md. Dec. 18, 2015)

Two uniformed Prince Georges’ County officers were on patrol in a marked police car in an 

area where several violent robberies had recently occurred. Around 1:00 a.m., the officers saw 

a vehicle double-parked in a parking lot of an apartment building. The officers saw a man in 

the driver’s seat and a woman in the front passenger seat. The officers continued their patrol, 

but returned a few minutes later to check on the car. The officers saw the occupants were still 

in the car and noticed the car had Virginia license plates. The officers decided to investigate 

the occupants to see what was going on because of the car’s out-of-state license plates, the 

area’s high-crime reputation, the late hour and because the car was double parked. The officer 

parked the police car at a 45-degree angle, three feet behind Stover’s car, blocking it in. The 

officer then activated the car’s emergency lights and illuminated the side of Stover’s car with a 

spotlight. At this point, Stover opened the driver’s side door, got out of his car and opened the 

driver’s side back seat door of his car. The officers ordered Stover to get back inside his car 

because they could not see what Stover was doing while he was standing between both open 

doors of his car. Instead of complying with the officers’ commands, Stover walked toward the 

front of his car away from the officers. As one of the officers approached Stover from behind, 

he saw Stover throw a gun to the ground. The officer pointed his own gun at Stover and again 

ordered Stover to get back inside his car. Stover complied with the officer’s command and got 

back into his car. The officers recovered a loaded handgun on the ground in front of Stover’s 

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

Stover filed a motion to suppress the handgun recovered by the officers. 

Stover argued the officers seized him under the Fourth Amendment when they pulled their 

marked police car behind his car, blocking him in. Because the officers lacked reasonable 

suspicion to seize him at this point, Stover claimed the handgun the officers recovered from the 

ground in front of his car should have been suppressed as the fruit of an illegal seizure.

The government countered by arguing the officers did not seize Stover for Fourth Amendment

purposes until after Stover threw the handgun on the ground; therefore, the handgun was 

lawfully recovered abandoned property. 

One of the ways a Fourth Amendment seizure occurs is when a person submits to an officer’s 

show of authority. 
9

To determine whether an officer’s show of authority is sufficient to trigger the Fourth 

Amendment, the court will examine the totality of the circumstances to see if a reasonable 

person would have felt free to terminate the encounter with the officer and leave. If the court 

concludes that a reasonable person would not feel free to terminate the encounter, the court 

must then determine when the person submitted to the officer’s show of authority. It is only at 

this point that the person is seized under the Fourth Amendment. 

In this case, the court found when the officers pulled their marked police car behind Stover’s 

car, blocking it in, a reasonable person in Stover’s position would not have felt he was free to 

terminate the encounter with the officers and leave. 

However, when Stover exited his car, he ignored the officers’ commands to get back inside his 

car and walked away from the officers. Only after Stover dropped his gun, did he comply with 

the officers’ commands and submit to their show of authority by getting back inside his car. 

The court concluded it was at this point that Stover was seized for Fourth Amendment purposes. 

As a result, because the officers did not seize Stover until after he discarded the handgun, the 

court held the handgun was admissible at trial.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca4/14-4283/14-4283-

2015-12-18.pdf?ts=1450467075 

*****

United States v. Rush, 808 F.3d 1007 (4th Cir. W. Va. Dec. 21, 2015)

Marquita Wills contacted local police officers and requested that they remove Kenneth Rush 

from her apartment. Wills told the officers that Rush, who had been staying with her for the 

previous two nights, was dealing drugs from her apartment. Wills told the officers she was 

afraid of Rush, but she did not indicate that Rush had committed any crime against her or 

threatened her in any way. Wills gave the officers the key to the apartment and signed a 

consent-to-search form. 

The officers went to Wills’ apartment, entered with the key and found Rush asleep in the master 

bedroom. When Rush asked the officers why they were in the apartment, one of the officers 

told Rush that they had a warrant to search the apartment, even though the officer knew this 

was not true. After telling Rush they had a warrant, the officers searched the apartment and 

found crack cocaine and digital scales. When questioned by the officers, Rush admitted the 

drugs belonged to him and that he had sold crack cocaine from the apartment. At the completion 

of the search, the officers left without arresting Rush, who agreed to meet with the officers later 

and provide them information about his supplier.

The government eventually charged Rush with possession with intent to distribute cocaine. 

Rush filed a motion to suppress the evidence seized from Wills’ apartment, arguing the officers 

warrantless search violated the Fourth Amendment. 

Although the government agreed that Rush’s Fourth Amendment rights were violated1, the 

government argued the officer acted in good faith to protect Wills; therefore, the good faith 

exception the exclusionary rule should apply. 

 1 Even though Wills consented to the search of her apartment, Rush had the right to object to the search because 

he was a present co-occupant of the apartment. See Georgia v. Randolph, 547 U.S. 103, 106 (2006). The officers 
10

The court noted the United States Supreme Court had applied the good-faith exception to the 

exclusionary rule to certain cases involving isolated negligence by officers and in cases “when 

the police act with an objectively reasonable good-faith belief that their conduct is lawful.” 

However, the court held this case “bears no resemblance to the previous applications of the 

good-faith exception.” First, the court found the search of the apartment was due to the 

intentional decision of one of the officers to lie to Rush about the existence of a search warrant. 

Second, the court held there could be no doubt that a reasonable officer would know that 

deliberately lying about the existence of a warrant would violate the Fourth Amendment, as 

courts since 1968 have taken a negative view of law enforcement officers misleading 

individuals about having valid warrants. Because the officer’s lie to Rush about the existence 

of a search warrant was deliberate, contrary to long-standing case law and objectively 

unreasonable, the court concluded the good-faith exception to the exclusionary rule did not 

apply and that suppression of the evidence recovered from the apartment was warranted. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca4/14-4695/14-4695-

2015-12-21.pdf?ts=1450728115

*****

Sixth Circuit

Bachynski v. Stewart, 2015 U.S. App. LEXIS 22492 (6th Cir. Ohio December 23, 2015)

Officers arrested Bachynski for murder. After an officer read Bachynski her Miranda rights, 

she requested an attorney and the officers did not ask her any questions. Approximately two 

hours later, two different officers approached Bachynski in her cell and asked her if “she had 

been given an opportunity to use a phone to contact her attorney.” Bachynski told the officers 

she did not have a phone, so one of the officers offered her a phone to call her family and a 

phone book to find and attorney. During this time, Bachynski told the officer, “I want to talk 

to you.” The officer contacted the state prosecutor, obtained approval to speak to Bachynski 

and took her to an interview room. The officers read Bachynski her Miranda rights and asked 

her if she wanted to speak with them without an attorney present. Bachynski reiterated that she 

wanted to talk to the officers, acknowledging that she had initially requested an attorney, but 

that she had changed her mind and that she would rather talk to the officers than get an attorney. 

Bachynski signed a waiver of her Miranda rights and confessed her involvement in three 

murders. 

At trial in state court, Bachynski’s confession was admitted against her and she was convicted. 

On appeal, Bachynski argued, among other things, that her confession should have been 

suppressed because the officers interrogated her after she invoked her right to counsel.

The Michigan Court of Appeals disagreed. The court held that the officer’s communication 

with Bachynski in her holding cell was not an “interrogation” or the “functional equivalent of 

interrogation” because it solely involved helping her acquire an attorney. After that, it was 

Bachynski, not the officers, who insisted on speaking about the case. At that point, the court 

held Bachynski voluntarily, knowingly and intelligently waived her Miranda rights. 

 unconstitutionally denied Rush the opportunity to object to the search by falsely stating that they had a warrant. 

See Bumper v. North Carolina, 391 U.S. 543, 548-50, (1968).
11

Bachynski filed a petition for a writ of habeas corpus in federal district court, claiming that the 

Michigan state courts unreasonably admitted her confession in violation of her Fifth 

Amendment. The district court agreed, and the State appealed. 

The Sixth Circuit Court of Appeals reversed the district court, holding that the officers did not 

engage in “interrogation” or the “functional equivalent of interrogation” when they went to 

Bachynski’s cell to provide her the tools to obtain an attorney. The court found that when a 

suspect invokes her right to counsel, there is nothing wrong with offering to get her an attorney 

or the tools to hire one, as such an offer facilitates the exercise of the right to counsel. Here, 

the officers had no reason to think Bachynski would say something incriminating or reconsider 

her invocation of counsel when they made this offer. Finally, the court noted it has previously 

held that an officer’s questions “principally aimed at finding the suspect an attorney,” did not 

constitute an “interrogation.”

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca6/15-1442/15-1442-

2015-12-23.pdf?ts=1450892932

*****

Eighth Circuit

United States v. Davison, 808 F.3d 325 (8th Cir. Mo. December 8, 2015)

The owners of a store reported to police that two occupants of a pick-up truck had been doing 

“donuts” in their parking lot, then parked the truck and in their lot and walked north on Tracy 

Street. Police dispatch discovered the truck had been reported stolen and relayed this 

information to officers in the area. An officer drove to the store and obtained a description of 

the two suspects from the owners. After conducting a brief surveillance of the truck to see if 

the two occupants would return, the officer decided to drive around the neighborhood to see if 

he could locate anyone matching their descriptions. While driving north on Tracy Street, the 

officer saw two individuals, later identified as Eric Davison and Kelly Hall, who matched the 

store owners’ description. When Davison and Hall saw the officer, they avoided eye contact 

and changed their route, walking west on Eighth Street. Although somewhat suspicious of the 

pair, the officer decided to canvass the area, looking for others who matched the description of 

the individuals provided by the storeowner. After the officer drove around the neighborhood 

without seeing anyone who matched the storeowners’ description, the officer turned south onto 

a street one block east of Tracy Street where he again saw Davison and Hall walking north. 

Curious as to why the pair seemed to be walking in a circle, the officer drove around the block 

twice more to observe their behavior. After the officer saw Davison and Hall walk through the 

yard of a residence that he knew was a “drug house,” he decided to stop and question them 

about the stolen vehicle. 

The officer stopped Davison and Hall and immediately frisked Davison for weapons. When 

the officer felt an object consistent with a firearm in the right breast pocket of Davison’s coat, 

Davison said, “I’m so stupid.” The officer asked Davison if he was a convicted felon, and 

Davison admitted that he had been released from prison four months earlier. The officer 

arrested Davison and found a loaded handgun, ammunition, methamphetamine and a syringe 

on Davison during the search incident to arrest. 

The government charged Davison with being a felon in possession of a firearm.
12

Davison claimed the firearm should have been suppressed because the officer did not have 

reasonable suspicion to first conduct a Terry stop and then to conduct a Terry frisk for weapons. 

The court disagreed. First, the court found that the officer conducted substantial surveillance 

before he decided to stop and question Davison and Hall, the only individuals in the area who 

matched the storeowners’ description of the occupants of the stolen truck. Second, Davison 

and Hall appeared to be walking a circle, near the stolen truck, in an area known to the officer 

for high amount of crime. Third, Davison and Hall avoided eye contact with the officer and 

attempted to evade the officer by walking through the yard of a known drug-house. Based on 

these facts, the court concluded the officer established reasonable suspicion to conduct a Terry

stop to question Davison and Hall about the stolen truck. 

Next, the court held the officer conducted a valid Terry frisk because he established reasonable 

suspicion to believe Davison might be armed and dangerous. First, the officer reasonably 

suspected that Davison had stolen the truck. In the Eighth Circuit, when officers encounter 

suspected car thieves, they also may reasonably suspect that those individuals might possess 

weapons. Second, the officer stopped Davison and Hall after observing them walk through the 

yard of a known drug-house in a high-crime area where recent shootings had occurred, 

including one that targeted police officers. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/15-1292/15-1292-

2015-12-08.pdf?ts=1449592254

*****

Tenth Circuit

Mocek v. City of Albuquerque, 2015 U.S. App. LEXIS 22435 (10th Cir. N.M. Dec. 22, 

2015)

In November 2009, Mocek, who had a practice of refusing to show his photo identification at 

airport security checkpoints, arrived at the Albuquerque airport for a flight to Seattle. Mocek 

gave his driver’s license to a travel companion, who then went through security. At the security 

checkpoint, Mocek gave the Transportation Security Administration (TSA) agent his boarding 

pass, but told the agent he did not have identification. The TSA agent directed Mocek to a 

different line where another TSA agent began an alternative identification procedure. After 

Mocek refused to offer other proof of identity, such as a credit card, the TSA agent told Mocek

that if his identity could not be verified, he would not be allowed through the checkpoint. At 

this point, Mocek began to film the encounter with a camera. The TSA agent ordered Mocek

to stop filming, and when Mocek refused, the agent requested assistance from the Albuquerque 

Aviation Police Department (AAPD). While waiting for AAPD officers, other TSA agents 

arrived and ordered Mocek to stop filming, with one agent attempting to grab the camera out 

of Mocek’s hand. Mocek remained calm, continued to record and would not identify himself. 

When AAPD officers arrived, the TSA agent told them Mocek was “causing a disturbance,” 

would not put down the camera, and was “taking pictures” of all the agents. As one of the 

officers began to escort Mocek out of the airport, the officer asked Mocek for his identification. 

Mocek told the officer he did not have any identification on him. The officer then told Mocek

he was under investigation for disturbing the peace and was required to present identification. 

Mocek told the officer he wished to remain silent and wanted to speak to an attorney. The 
13

officer arrested Mocek. At some point, Mocek’s camera was seized by officers who deleted 

the video recordings.

Mocek was ultimately charged with disorderly conduct, concealing name or identity, resisting 

an officer’s lawful commands and criminal trespass. At trial, Mocek introduced the video 

recordings of the incident, which he recovered using forensic software, and was acquitted on

all counts. 

Mocek sued several TSA agents and AAPD officers, claiming among other things, that the 

agents and officers violated the Fourth Amendment by arresting him without probable cause to 

believe he had committed a crime.

The court disagreed, holding the TSA agents and AAPD officers were entitled to qualified 

immunity. 

The court recognized the “uniquely sensitive setting” involved in this case while stating that 

“order and security are of obvious importance at an airport security checkpoint.” Against this 

backdrop, the court found that under New Mexico law, the officer initially had reasonable 

suspicion to detain Mocek for disorderly conduct. Although Mocek claimed he was calm the 

entire time, the AAPD officer was entitled to rely on the TSA agents’ statements to him that 

Mocek was “causing a disturbance” and that he refused to stop filming the agents. In addition, 

the officer saw that at least three TSA agents had left behind other duties to deal with Mocek, 

which the court noted was especially problematic in this setting. Finally, the court found that 

a reasonable officer could have believed that Mocek’s filming invaded the privacy of other 

travelers, or posed a security threat. 

Next, once the officer established reasonable suspicion to investigate Mocek for disorderly 

conduct, the court concluded the officer was justified in asking Mocek to identify himself. 

However, when Mocek refused, the court had to determine if the officer then had probable 

cause to arrest Mocek for concealing his name or identity under N.M. Stat. Ann. § 30.22.3. 

The court found that New Mexico courts have not precisely defined what it means to furnish 

“identity” under § 30.22.3 and that the courts have not specified what identifying information 

might be appropriate in all situations. 

While the Tenth Circuit doubted that Mocek’s failure to produce identification during a stop 

for suspicion of disorderly conduct violated § 30.22.3, the court noted that it was unclear as to 

what type of identification a person would need to show an officer during such a stop. As a 

result, the court concluded that any mistake the officer might have made in believing that 

Mocek’s failure to produce identification established probable cause to arrest was a reasonable 

one, which entitled the officer to qualified immunity. 

Mocek’s suit also claimed the officer arrested him in retaliation for exercising his alleged First 

Amendment right to film at a security checkpoint. Without deciding whether Mocek actually 

had a First Amendment right to film at the airport security checkpoint, the court held the officer 

was entitled to qualified immunity. Regardless of any subjective motivation the officer might 

have had for arresting Mocek, the court concluded the officer could have reasonably believed 

that he was entitled to arrest Mocek as long as he established probable cause of a criminal 

violation. As previously discussed, the court found the officer could have reasonably believed 

he had probable cause to arrest Mocek for violating N.M. Stat. Ann. § 30.22.3.
14

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca10/14-2063/14-

2063-2015-12-22.pdf?ts=1450807559

*****

Eleventh Circuit

United States v. Johnson, 806 F.3d 1323 (11th Cir. Fla. December 1, 2015)

Robert Johnson and Jennifer Sparks mistakenly left their cell phone in a Wal-Mart store. Linda 

Vo, a store employee found the phone. Sparks sent a text message to phone, requesting its 

return. Vo called the number indicated on the text message and made arrangements with Sparks 

to return the phone. After speaking with Sparks, Vo looked at the digital photographs stored in 

a photo album on the phone, in an attempt to identify the woman to whom she was planning to 

return the phone. In the photo album, Vo saw pictures of a young female who was nude in 

some of the photographs, as well as one video of a young girl eating ice cream. 

Instead of meeting Sparks to return the phone, Vo showed the images on the cell phone to her 

fiancé, David Widner. Afterward, Widner took the phone to the police department, where he 

told two civilian employees at the front booth that he wanted to file a report about cell-phone 

images that he believed to be child pornography. Widner scrolled through the entire photo 

album he had previously viewed with Vo to show the employees the photographs and one video 

he believed were child pornography. The employees gave the phone to Detective O’Reilly who 

looked at only those images contained within the same photo album that Widner had viewed. 

However, O’Reilly viewed the video of the young girl eating ice cream as well as a second 

video that neither Vo nor Widner had previously viewed. After concluding the phone contained 

child pornography, O’Reilly turned the phone off and submitted it to evidence. 

Twenty-three days later, the officer who was assigned to the child pornography task force, 

applied for a warrant to search the cell phone. In her supporting affidavit, the officer did not 

attach any images from the phone, but instead included Detective O’Reilly’s descriptions of the 

images that he had viewed on the cell phone. The judge found probable cause and issued the 

warrant. Later that day, a forensic examination of the phone revealed over 1,000 images and 

45 sexually explicit videos that constituted child pornography. 

Based on the evidence recovered from the cell phone, officers obtained a warrant to search 

Johnson’s home. During the execution of the warrant, Johnson confirmed that he had lost the 

cell phone at Wal-Mart. Johnson also told the officers that within three days of having lost the 

phone, he filed an insurance claim with the phone company and received a replacement phone, 

which he gave to Sparks. In addition, Johnson told the officers he had already purchased 

another phone for himself. 

The government charged Johnson and Sparks with possession of child pornography and 

production of child pornography.

First, Johnson and Sparks argued Detective O’Reilly’s warrantless search of the cell phone 

violated the Fourth Amendment. Specifically, they argued that the government failed to 

establish that the images and videos observed by O’Reilly, which formed the basis for and led 

to the issuance of the search warrants, were within the scope of the prior search conducted by 

Vo and Widner. 
15

O’Reilly testified that he looked only at those photographs contained in a single photo album, 

and his descriptions of the photographs contained in that album matched the contents of the 

album that Widner had viewed. Because O’Reilly’s search of the photographs on the phone 

did not exceed the scope of the search conducted by Vo and Widner, the court found there was 

no Fourth Amendment violation. However, the court held the second video that O’Reilly 

viewed, which had not been viewed by Vo or Widner, exceeded the scope of their private 

search. Nevertheless, the court concluded because the search warrant affidavit only described 

the photographs and the first video, which Vo and Widner had viewed, suppression of the 

evidence from the phone and Johnson’s house was not warranted. 

Second, Johnson and Sparks argued that the officer’s 23-day delay in obtaining the warrant to 

search the cell phone unreasonably interfered with their possessory interest in the cell phone.

The court refused to decide this issue. Instead, the court held that Johnson and Sparks lost 

standing to contest the length of the 23-day delay because they abandoned their possessory 

interest in the phone three days after they lost it. In addition, the court found that the delay in 

obtaining the warrant to search the phone during this three-day period was reasonable. 

While the court recognized that the loss of one’s property, by itself, it not the same as 

abandonment, the court found that three days after losing their cell phone, Johnson and Sparks 

completely abandoned their efforts to recover it. First, when Vo failed to appear at the WalMart to meet Sparks, the couple did nothing. For example, Johnson and Sparks did not ask 

anyone at Wal-Mart for assistance in locating it, nor did they complain to Wal-Mart 

management that one of its employees had found their phone and refused to return it. Finally, 

the couple did not file a report with the police complaining about Vo’s failure to return the 

phone. In addition, Johnson and Sparks demonstrated their intent to abandon their phone by 

purchasing a replacement phone within a few days and filing an insurance claim for the phone 

they abandoned. Because Johnson and Sparks abandoned their possessory interest in the cell 

phone, the court held they lacked standing to claim that the officer’s delay in obtaining the 

warrant to search the contents of the phone was unreasonable. 

Finally, Johnson and Sparks argued that the evidence obtained from the cell phone and 

Johnson’s house should have been suppressed because the officer did not attach actual images 

to the search warrant affidavit, but instead relied upon O’Reilly’s descriptions of the 

photographs. 

The court disagreed. A judge issuing a search warrant does not need to personally view 

photographs or images, which are alleged to be contraband, such as child pornography, if a 

reasonably specific affidavit describing the contents can provide an adequate basis to establish 

probable cause. In this case, the court held the descriptions provided in the officer’s affidavit 

were not vague conclusions that the cell phone contained images of child pornography. Instead, 

the court found the affidavit objectively and specifically stated the contents of the photographs, 

and the officer swore to these descriptions under oath.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca11/14-12143/14-

12143-2015-12-01.pdf?ts=1448998302

*****