Department of Homeland Security

Federal Law Enforcement Training Centers

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Legal Training Division 

January 2014

THE

FEDERAL LAW ENFORCEMENT

-INFORMER- A MONTHLY LEGAL RESOURCE AND COMMENTARY FOR LAW 

ENFORCEMENT OFFICERS AND AGENTS

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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 

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This edition of The Informer may be cited as 1 INFORMER 14.
In This Issue 

Free FLETC Informer Webinar Schedule

Click Here

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

Case Summaries

Circuit Courts of Appeals

Click Here

1st Circuit 2nd Circuit 3rd Circuit 4th Circuit 6th Circuit 

 7th Circuit 8th Circuit 9th Circuit 10th Circuit 11th Circuit

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

Law Enforcement Cases Granted Certiorari by 

the United States Supreme Court for the 

October 2013 Term

Click HERE

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

Chief Justice Roberts’ 2013 Year-End-Report on 

the Federal Judiciary

Click HERE 

******************************
3

Free FLETC Informer Webinar Series Schedule

February 2014

(See the bottom of page 4 for instructions on how to participate in a webinar)

1. Government Workplace Searches

John Besselman provides an explanation of the law that regulates the government's 

ability to search in the workplace. Who has a reasonable expectation of privacy in the 

workplace, how is it established, and how can it be overcome, are some of the questions 

that will be answered. If this area of the law is new to you or you are interested in a 

refresher, this course is right for you. 

1-hour webinar presented by John Besselman, FLETC Legal Division.

Date and Time:

 

Thursday February 6, 2014: 2:30 pm EST 

To join this meeting: https://share.dhs.gov/govtworksearch/

2. Kalkines and Garrity Overview

John Besselman will look at these two important cases and how they affect the 

government's ability to obtain statements from its employees that may be suspected of 

criminal activity. 

1-hour webinar presented by John Besselman, FLETC Legal Division

Date and Time: 

Friday February 7, 2014: 1:00 pm EST 

To join this meeting: https://share.dhs.gov/garrity/

3. Warrantless Searches and Seizures under Exigent Circumstances Part II

1-hour webinar presented by Bruce-Alan Barnard, FLETC Legal Division

Dates and Times: 

Monday February 10, 2014: 1:00 pm EST 

To join this meeting: https://share.dhs.gov/bab0210

Wednesday February 26, 2014: 1:00 pm EST 

To join this meeting: https://share.dhs.gov/bab0226
4

4. Search Incident to Arrest – Digital Devices in a Post-Gant World

1-hour webinar presented by Mikell Henderson, FLETC Legal Division

Dates and Times

Monday February 10, 2014: 3:00 pm EST

To join this meeting: https://share.dhs.gov/cellphonessia021014/ 

Friday February 28, 2014: 1:00 pm EST

To join this meeting: https://share.dhs.gov/cellphonessia022814/

5. Understanding the Inspection Search

1-hour webinar presented by John Besselman, FLETC Legal Division

John Besselman examines the administrative-inspection search. This common and 

varied search enables enforcement agencies of all types to protect the public from harms, 

though its scope and purpose is sometimes misunderstood and misapplied. 

Date and Time: 

Thursday February 13, 2014, 2014: 9:30 am EST 

To join this meeting: https://share.dhs.gov/inspections/

6. Use of Force Refresher: 

This course will cover the Fourth Amendment's objective reasonableness test for seizing free citizens. 

It will cover the United States Supreme Court's analysis in Graham v. Connor, when deadly force and 

intermediate weapons are reasonable, and the defense of qualified immunity. 

Date and Time:

Monday February 24, 2014: 1:30pm EST

To join this meeting: https://share.dhs.gov/uof-refresher

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5

Law Enforcement Cases Granted Certiorari by the United States Supreme Court 

for the October 2013 Term

Search Incident to Arrest – Cell Phones

United States v. Wurie

Decision Below: 728 F.3d 1 (1st Cir. 2013)

Police officers arrested Wurie and seized two cell phones from him. Officers searched the call log on 

one of the phones and determined the phone number labeled “my house” was associated with a 

nearby apartment. Officers connected Wurie to the apartment, obtained a warrant, and searched the 

apartment finding drugs and firearms. 

Wurie filed a motion to suppress the evidence from his apartment, arguing the officers violated the 

Fourth Amendment by opening his cell phone and accessing the call log to determine the phone 

number associated with the “my house” caller identification reference. 

The court held the search incident to arrest exception does not authorize the warrantless search of data 

on cell phones seized from individuals arrested by the police. The court recognized a modern cell 

phone is not like a purse, wallet or other type of container an officer might typically find on an 

arrestee. A cell phone has the ability to store a large amount of highly personal information such as 

photographs, videos, text messages and emails. Allowing the police to search the data on a cell 

phone without a warrant any time they conducted a lawful arrest would create a serious and recurring 

threat to the privacy of countless individuals.

The issue before the Supreme Court is whether the Fourth Amendment permits the police, without 

obtaining a warrant, to review the call log of a cell phone found on a person who has been lawfully 

arrested. 

The Court is expected to hear oral arguments on a yet to be determined date in April 2014.

*****

Riley v. California

Decision Below: No. DO59840, (Cal. App. 4th Dist. Feb. 8, 2013), 2013 WL 475242.

Police officers arrested Riley and searched the cell phone he was carrying incident to arrest. The 

officers discovered photographs and videos on Riley’s phone that were admitted against him at trial. 

Riley was convicted. In an unpublished opinion, the California Court of Appeal held the warrantless 

search of Riley’s cell phone incident to his arrest was lawful. 

The issue before the Supreme Court is whether evidence admitted at Riley’s trial was obtained in a 

search of Riley’s cell phone that violated his Fourth Amendment rights.

The court is expected to hear oral arguments on a yet to be determined date in April 2014.

*****
6

CASE SUMMARIES

Circuit Courts of Appeals

1st Circuit

United States v. Campbell, 2013 U.S. App. LEXIS 25585 (1st Cir. Me. Dec. 23, 2013)

A man entered an electronics store and purchased two video gaming systems, paying with a credit 

card. After the man left, a second man entered the store and attempted a similar purchase, but both 

credit cards he presented were declined. The name on both declined credit cards was the same name

as the one on the credit card presented by the first man. After the second man left, a third man 

entered the store and expressed an interest in purchasing a video gaming system. The clerk refused to 

sell him anything and suggested the man try another nearby store. After the third man left, the clerk 

saw him get into a vehicle with the first two men and drive away. The clerk called the police and 

provided descriptions of the three men and a description of their car and license plate number. The 

clerk told the police the men were likely going to the other store she had recommended.

A police officer drove through the parking lot of the second store and saw an unoccupied vehicle 

matching the description provided by the clerk. While watching the vehicle, the officer saw three 

men matching the descriptions provided by the clerk from the electronics store, carrying bags of 

merchandise. The men got into the vehicle and left. The officer followed the vehicle and conducted 

a traffic stop in a hotel parking lot. The driver, Barnes, told the officer the vehicle was rented. 

Another officer arrived, and spoke to Campbell, who was sitting in the back seat. Campbell initially 

told the officer he had been to the electronics store, but later denied being there. When the officer 

asked Campbell about using credit cards at the electronics store Campbell replied, “what cards, what 

credit cards.” After receiving consent to search the vehicle, officers found fifty identification and

credit cards and three wallets in the vehicle. The three men, Barnes, Campbell and Porteous, were 

charged with a variety of offenses related to their fraudulent use of the credit cards and 

identifications. All three were convicted.

On appeal, Campbell and Porteous argued the evidence obtained from the vehicle and their 

statements to the officers should have been suppressed because the officers unlawfully stopped their 

vehicle and did not provide Miranda warnings before speaking to the men.

The court disagreed. The stop occurred after the police received a report from a store employee who 

suspected the three men had engaged in credit card fraud. The clerk gave the officer specific 

information concerning her encounter with the men to include that two of the men had attempted to 

use credit cards bearing the same name. The clerk also described the men, their vehicle and the 

probable location of their next stop. The police corroborated some of this information by locating the 

three men who fit the clerks’ description coming out of the same store mentioned by the clerk and 

driving the same vehicle the clerk described. As a result, the officer established reasonable suspicion 

to conduct a Terry stop and detain the three men to investigate the possibility of credit card fraud. 

Following the stop, the court further stated Campbell never claimed to be the renter of the vehicle and 

Porteous later denied he was the one who had rented it. Because neither Campbell nor Porteous 

established a reasonable expectation of privacy in the vehicle, the court held they did not have 

standing to object to the search of the vehicle by the officers. 
7

Finally, the court held the officers were not required to provide Miranda warnings to Campbell and 

Porteous before questioning them, prior to their arrest. Generally, police officers are not required to 

give Miranda warnings during Terry stops. However, Miranda warnings are required “as soon as the 

suspect’s freedom of action is curtailed to a degree associated with a formal arrest.” Here, the court 

ruled the circumstances surrounding the stop would not be viewed by a reasonable person as the 

functional equivalent of a formal arrest. First, the men were questioned in a neutral location, a 

parking lot. Second, there was no indication the police to suspect ratio was overwhelming to the 

men, as there were four or five police officers on the scene questioning the three men, and no more 

than two officers questioned each man at any time. Third, neither Campbell nor Porteous was 

physically restrained during the questioning. Finally, the duration of the questioning was brief and 

related to the reason for the stop. 

Click HERE for the court’s opinion.

*****

2nd Circuit

United States v. Taylor, 736 F.3d 661 (2d Cir. N.Y. 2013)

Police arrested Taylor and interviewed him three hours later. After waiving his Miranda rights, 

Taylor confessed to the officers. The next day, Taylor was interviewed again, and after waiving his 

Miranda rights, confessed a second time. During the first interview, Taylor was dozing off and 

according to the officers had to be “re-focused” during the two to three hour interview. During the 

second interview, Taylor fell asleep several times and had to be awakened to be interviewed.

Taylor argued his two confessions should have been suppressed because his statements to the officers 

were not made voluntarily. Taylor claimed he was mentally incapacitated during the interviews 

because of the quantity of Xanax he had ingested immediately before his arrest. 

Regarding Taylor’s first confession, the court agreed, holding Taylor did not voluntarily confess to 

the officers. An officer testified that during the first interview, “Taylor’s body was somewhat 

shutting down,” and that “his body was giving up on him.” While Taylor may have been coherent at 

times, as the interview progressed, it became clear to the officers that Taylor was in and out of 

consciousness while giving his statement, and in a trance or a stupor most of the time when not 

actually asleep. Consequently, Taylor’s statement was not voluntary and should have been 

suppressed.

The court further held Taylor’s second confession should have been suppressed because it was tainted 

by Taylor’s involuntary first confession. Taylor’s second confession came less than one day after the 

first confession and during that interval, Taylor was hospitalized or unconscious most of the time. In 

addition, the officers testified Taylor fell asleep several times during the second interview and had to 

be awakened to complete the interview. This evidence of Taylor’s continued incapacity along with 

the taint of his prior confession rendered Taylor’s second Miranda waiver and confession 

involuntary. 

Click HERE for the court’s opinion.

*****
8

United States v. Aguiar, 2013 U.S. App. LEXIS 24803 (2d Cir. Vt. Dec. 13, 2013)

In January 2009, federal agents installed a GPS tracking device on Aguiar’s car without a search 

warrant. Data obtained from the tracking device was admitted against Aguiar at trial. Aguiar argued 

the warrantless installation and subsequent monitoring of the tracking device violated the Fourth 

Amendment. The trial court disagreed, the GPS evidence was admitted and Aguiar was convicted.

Following Aguiar’s conviction, in January 2012, the United States Supreme Court decided U.S. v. 

Jones. In Jones, the court held “the Government’s installation of a GPS device on a target’s vehicle, 

and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’” for Fourth

Amendment purposes. Jones left unanswered the question of whether the warrantless use of GPS 

devices would be “reasonable, and thus lawful, under the Fourth Amendment where officers have 

reasonable suspicion, and indeed probable cause” to conduct such a search. 

Following Jones, the First, Fifth and Ninth Circuit Courts of Appeals and district courts for the 

District of Massachusetts and the District of Rhode Island have applied the good-faith exception to 

allow evidence obtained from pre-Jones warrantless searches to stand. However, the Third Circuit 

Court of Appeals, district courts for the Eastern District of Missouri, Eastern District of Kentucky and 

the Northern District of Mississippi have not applied the good-faith exception. 

Here, the court held that when the agents installed and monitored the GPS device, they relied in good 

faith on U.S. v. Knotts. In Knotts, decided in 1983, the United States Supreme Court held the 

warrantless use of a tracking device to monitor the movements of a vehicle on public roads did not 

violate the Fourth Amendment. Because the beeper technology used in Knotts was sufficiently 

similar to the GPS technology used by the government in this case, the court held the agents relied in 

good faith on Knotts in placing the GPS device on Aguiar’s vehicle. 

Click HERE for the court’s opinion.

*****

3rd Circuit

George v. Rehiel, 2013 U.S. App. LEXIS 25604 (3d Cir. Pa. Dec. 24, 2013)

George arrived at the Philadelphia International Airport for a scheduled flight to California to begin 

his senior year in college. At the security checkpoint, George emptied his pockets and handed over a 

set of approximately 80 handwritten Arabic-English flashcards to a Transportation Security 

Administration (TSA) screener. The flashcards contained words and phrases such as “day before 

yesterday,” “fat,” “thin,” “really,” “nice,” “sad,” “summer,” “pink,” and “friendly.” However, the 

flashcards also contained the words “bomb,” “terrorist,” “explosion,” “attack,” “battle,” “kill,” “to 

target,” “to kidnap,” and “to wound.” After seeing the flashcards, the TSA screener took George to 

another screening area where a second TSA employee swabbed George’s cell phone for explosives 

and searched his carry-on items. A TSA supervisor arrived within 30 minutes and questioned George 

for another 15 minutes. George claimed he was using the flashcards to learn Arabic vocabulary. In 

addition to discussing the flashcards, the TSA supervisor commented about a book that had been 

found in George’s carry-on luggage that was critical of United States’ foreign policy. During the 

interview, a Philadelphia police officer arrived, handcuffed George and took him to the Airport Police 

Station where he was detained in a cell for more than four hours. The Philadelphia police officer 

contacted the FBI Joint Terrorist Task Force (JTTF) who sent two federal agents to interview George. 
9

The JTTF agents interviewed George for 30 minutes before concluding he was not a threat, and 

allowed George to leave. 

George sued the two Philadelphia police officers, three TSA employees, two JTTF agents and the 

United States government. In part, George claimed the three TSA officials and the two JTTF agents 

violated the Fourth Amendment by subjecting him to an unreasonable search and seizure. George 

also claimed the federal officials detained him in retaliation for possessing the Arabic language flash 

cards and because of the content of the book he was carrying, in violation of the First Amendment. 

The court held the three TSA employees and two JTTF agents were entitled to qualified immunity 

because George could not establish any individual federal official violated his Fourth Amendment

rights. First, the court ruled that once the TSA screeners found the Arabic-English flashcards, it was 

reasonable to conduct a brief investigation. The court stated, “it is simply not reasonable to require 

TSA Officials to turn a blind eye to someone trying to board an airplane carrying Arabic-English 

flashcards with words such as ‘bomb,’ ‘to kill,’ etc.” In addition, George failed to establish an agency 

relationship between the TSA officials and the Philadelphia police officer that handcuffed George and 

took him away. Specifically, George could not show the TSA officials had any control over the 

decision by the Philadelphia police officer to detain George at the Airport Police Station for over four

hours. Second, the court found the JTTF agents went to the Airport Police Station at the request of 

the Philadelphia Police. After questioning George for 30 minutes, the agents concluded George was 

not a threat and allowed him to leave. The court held it was reasonable for the JTTF agents to 

question George for this brief period to determine if he was a threat and that the JTTF agents were not 

involved in George’s allegedly unconstitutional seizure and detention by the Philadelphia Police. 

The court further held the federal officials were entitled to qualified immunity on George’s First 

Amendment retaliation claim. Even though George had a right to possess the flashcards and book he 

was carrying, that did not mean the TSA screeners had to ignore their content or refrain from 

investigating him further because of the words they contained. A reasonable person could believe 

these items raised the possibility that George might pose a threat to airline security. In addition, 

because the TSA officials’ search and questioning of George during the screening did not violate the 

Fourth Amendment, the court felt it would be “hard-pressed” to find that it could result in a First 

Amendment retaliation claim. 

Click HERE for the court’s opinion.

*****

4th Circuit

United States v. Robertson, 736 F.3d 677 (4th Cir. N.C. 2013)

A person called the police department and reported three African-American males in white t-shirts 

were chasing an individual who was holding a firearm. When police officers arrived, they saw a 

group of six or seven individuals in a nearby sheltered bus stop. Three of the individuals were 

African-American males wearing white shirts. Robertson was also in the bus shelter, but he was 

wearing a dark colored shirt. While three or four officers dealt with the males in the white shirts, 

another officer focused on Robertson. The officer stood in front of Robertson, who was seated and 

blocked on three sides by the walls of the bus shelter. The officer asked Robertson if he had anything 

illegal on him, but Robertson remained silent. The officer then waved Robertson forward while at the 

same time asking Robertson if he would consent to being searched. Robertson stood up, turned 
10

around and raised his hands. The officer searched Robertson and recovered a firearm from him. 

Robertson was arrested for illegal possession of a firearm.

Robertson argued the firearm should have been suppressed because he did not consent to being 

searched by the officer. Instead, Robertson claimed, when he stood up, turned around and raised his 

hands, he was complying with an order issued by the officer.

Even after exclusively relying on the facts taken from the officer’s testimony, the court agreed with 

Robertson. The officer’s questioning was immediately accusatory, with the officer’s first question 

being whether Robertson had anything illegal on him. After Robertson responded with silence, the 

officer waved Robertson forward and asked to conduct a search. The officer blocked Robertson’s 

exit and never told Robertson he had the right to refuse the search. The officer’s initial, accusatory 

question, combined with the police dominated atmosphere in the bus shelter, clearly communicated to 

Robertson that he was not free to leave or to refuse the officer’s request to conduct a search. 

Robertson’s behavior was not a clear voluntary invitation to be searched, but rather a begrudging 

surrender to the officer’s order. 

Click HERE for the court’s opinion. 

*****

United States v. Dargan, 2013 U.S. App. LEXIS 25613 (4th Cir. Md. Dec. 24, 2013)

Police officers suspected Reginald Dargan was involved in the armed robbery of a jewelry store and 

obtained a warrant to search his residence. Attachment A to the warrant listed items subject to 

seizure, including among other things, “indicia of occupancy.” During the search, officers seized a 

purchase receipt for a Louis Vuitton belt. The receipt was found in a bag located on top of a dresser 

in Dargan’s bedroom. The receipt indicated the belt cost $461.10 and the buyer, who identified 

himself as “Regg Raxx,” purchased the belt with cash the day after the jewelry store robbery. Dargan 

was later convicted of the robbery.

On appeal, Dargan argued the seizure of the belt receipt violated the particularity requirement Fourth 

Amendment because the receipt did not fall under any of the items specifically listed Attachment A, 

which outlined the scope of the search warrant. 

The court disagreed. First, the officers were lawfully in Dargan’s residence, pursuant to the search 

warrant. Second, the officers were justified in opening the bag on top of the dresser in Dargan’s 

bedroom to determine whether it contained any of the items they were authorized by the warrant to 

seize. Third, Attachment A to the search warrant, which listed the items subject to seizure, included 

“indicia of occupancy, residency of the premises . . . including but not limited to, utility and 

telephone bills and cancelled envelopes.” Police officers may seize an item pursuant to a warrant 

even if the warrant does not expressly mention or specifically describe the item. Here, the officers 

conducting the search could have plausibly believed the occupant of the premises was also the 

purchaser identified on the belt receipt discovered in the bedroom. The receipt, which listed the 

buyer as “Regg Raxx,” therefore constituted at least some indication of occupancy and fell within the 

terms of Attachment A. 

Click HERE for the court’s opinion.

*****
11

6th Circuit

Hocker v. Pikeville City Police Dep't, 2013 U.S. App. LEXIS 24930 (6th Cir. Ky. 2013)

Hocker’s girlfriend called 911 at 10:30 p.m. and told the operator Hocker had appeared at her house 

in violation of a protection order. The girlfriend said Hocker was intoxicated, suicidal and had just 

left her home in a red car. Police officers spotted Hocker’s car driving with its lights off and 

attempted to conduct a traffic stop. However, Hocker led police officers on a high-speed chase for 

seven miles before pulling onto a darkened gravel road. Two officers exited their patrol cars with 

guns drawn and ordered Hocker to show his hands and turn off his car. Instead, Hocker put his 

vehicle in reverse and rammed one of the police cars, pushing it thirty feet towards a ditch. During 

this time, one of the officers briefly had his arm trapped in the door of the police car as it swung shut 

after the collision. The second officer opened fire on Hocker’s car and when the first officer freed his 

arm, he opened fire. The officers fired twenty shots, hitting Hocker nine times. After Hocker was 

convicted and received a ten-year sentence in state court, he sued the officers for excessive use of 

force.

The court held the officers were entitled to qualified immunity because their use of force was 

reasonable under the circumstances. First, Hocker, who was possibly drunk and suicidal, posed a 

threat to anyone on the road after he refused to stop for the officers and continued to drive on a 

winding road, with his lights off, at speeds between 70 and 80 miles per hour. Second, after Hocker

stopped, he rammed a police car while an officer was standing behind the car’s open door, 

temporarily trapping the officer and pushing the police car thirty feet. In addition, a second officer 

had to move out of the way to avoid being struck by the police car as it was pushed towards him. 

Only after these direct risks to their own safety did both officers fire at Hocker’s car. The court noted 

the officers’ responses to the risks created by Hocker’s actions were the kinds of split-second 

judgments that officers must make in tense, uncertain and rapidly evolving circumstances that 

sometimes occur in the line of duty. 

Click HERE for the court’s opinion.

*****

7th Circuit

United States v. Starnes, 2013 U.S. App. LEXIS 25588 (7th Cir. Ill. Dec. 23, 2013)

Police officers arranged an undercover controlled purchase of crack cocaine from a lower level 

apartment of a two-story house. Three days later, officers obtained a search warrant that described 

the premises to be searched as a “two story, two-family dwelling, white with black trim, located on 

the west side of the street with the numbers ‘922’ appearing on the front of the residence with the 

lower apartment being located on the ground floor.” In addition, the officers knew a few hours before 

the planned raid a shooting had occurred at the house and that two aggressive pit bulls lived on the 

premises. 

After knocking on the front door and receiving no response, the officers forced their way into the 

house. Once inside, the officers saw two open doors, one leading to the first-floor apartment and one 

leading to an upstairs apartment. The officers also encountered a pit bull that initially ran up the 

stairs toward the upper apartment, but then changed direction and charged at the officers. After 

shooting and killing the dog, an officer conducted a protective sweep on the upstairs apartment. As 

the officer ran through the kitchen of the upstairs apartment, he saw mixing bowls, several large 
12

chunks of an off-white substance, some scales and rubber gloves. In the bedroom, the officer found 

Starnes and a woman. The officer escorted Starnes and the woman downstairs. While one of the 

officers left to seek a second warrant to search the upstairs apartment, the other officers searched the 

lower apartment. The officers seized various firearms, ammunition and drug paraphernalia from the 

lower apartment. After executing the second search warrant on the upstairs apartment, the officers 

seized Starnes’ identification cards, cocaine, cash and additional drug trafficking paraphernalia. The 

government indicted Starnes on several drug and firearm offenses. 

Starnes moved to suppress the evidence seized from the upstairs apartment. Starnes argued the first 

search warrant did not cover the officer’s entry into the upstairs apartment and there had been no 

lawful reason for the officers to enter that area.

The court disagreed, holding the officers were entitled to conduct a protective sweep of the upstairs 

apartment. A protective sweep is a quick and limited search of premises conducted to protect the 

safety of police officers and others and is an exception to the Fourth Amendment’s warrant 

requirement. For a valid protective sweep, the officers must have a reasonable belief the area to be 

swept contains someone who could pose a threat to them. Here, it was reasonable for the officers to 

believe there might be someone in the upstairs apartment who posed a threat to them. First, the 

officers knew a shooting had occurred on the premises earlier that day. Second, the officers knew 

two aggressive pit bulls were on the premises, but they had only encountered one of the dogs. Third, 

once inside the premises, the officers discovered two open doors that allowed internal access between 

the two apartments. Fourth, the officers did not know whether there were other access points 

between the two apartments. Finally, the officer conducting the sweep only looked in places where a 

person could hide. Once the officer discovered Starnes and the woman, he moved them to the first 

floor and secured the upstairs apartment until the second search warrant was obtained. 

Click HERE for the court’s opinion.

*****

8th Circuit

United States v. Diaz, 736 F.3d 1143 (8th Cir. Mo. 2013)

Federal agents believed Diaz was hired to transport cocaine in his truck. While conducting 

surveillance, the agents saw Diaz take a suitcase they believed contained cocaine from his truck into a 

hotel room. After Diaz came out of the hotel room without the suitcase, three agents followed him to 

restaurant where they asked Diaz if he would cooperate with their investigation. Diaz admitted to 

delivering the suitcase to the hotel room, but he denied being involved in any criminal activity. Diaz 

agreed to go back to the hotel with the officers and was left unhancuffed in the back of an unmarked 

police car for twenty minutes while the agents conducted a knock and talk interview at the hotel 

room. During the knock and talk, the agents obtained consent to search the suitcase from one of the 

men in the hotel room. After the agents discovered cocaine in the suitcase, they released Diaz. 

Several months later, a grand jury indicted Diaz for conspiracy to distribute and possession with 

intent to distribute cocaine. 

Diaz argued his statements to the officers and the seizure of the cocaine should have been suppressed 

because he was in custody when the agents questioned him and he had not been given Miranda

warnings. 
13

The court disagreed, finding Diaz was not in custody when the agents interviewed him. First, there 

was undisputed testimony the agents were armed but their weapons were not visible to Diaz when 

they talked to him. Second, when the agents approached him, Diaz voluntarily agreed to talk to the 

agents, and the interview occurred in a public location. Third, there was no evidence the officers 

surrounded Diaz, used coercive tactics or restrained Diaz’s freedom of movement in any way. 

Finally, at the end of the encounter, the agents did not arrest Diaz. The court found a reasonable 

person in Diaz’s position would have felt free to terminate the encounter with the agents and leave. 

As a result, Diaz was not in custody for Miranda purposes when he made the statements to the 

agents.

Click HERE for the court’s opinion.

*****

United States v. Goodale, 2013 U.S. App. LEXIS 25756 (8th Cir. Iowa Dec. 30, 2013)

Goodale was living with a woman and her thirteen-year-old son. After the boy showed his mother a 

history of gay teen pornography sites on Goodale’s laptop computer, the mother took the computer to 

the police. While being interviewed, the boy opened the laptop, and demonstrated that the phrase 

“gay teen porn” auto-populated when he typed “ga” in the search box. A police officer moved the 

laptop and touched the keypad for approximately 17 seconds during this process. The boy also 

described to the officer how Goodale sexually abused him and Goodale’s thirteen-year-old nephew. 

The officer seized Goodale’s laptop and obtained a warrant to search it two days later. Goodale was 

convicted and sentenced to life in prison.

On appeal, Goodale argued the police seized and searched his computer in violation of the Fourth 

Amendment. 

The court disagreed, holding the private search exception applied. A search or seizure, even an 

unreasonable one, conducted by a private individual does not violate the Fourth Amendment, as long 

as the person conducting the search or seizure is not acting as an agent of the government or with the 

participation or knowledge of any government official. Here, after discovering a history of teen 

pornography sites, the mother took Goodale’s computer to the police where the boy showed the 

officer the laptop’s web history. This search was neither instigated nor performed on behalf of the 

police. In addition, while the officer touched the laptop during this time, there was no evidence to 

show the officer’s viewing of the contents on the computer went further than the boy’s search. 

The court further held the continuing seizure of Goodale’s computer until the search warrant was 

obtained was lawful to prevent the destruction of evidence. The officer had probable cause to believe 

Goodale’s laptop contained evidence of child pornography based on the boy’s statements about the 

computer’s internet history and allegations of sexual abuse. In addition, Goodale knew about the 

investigation and could have destroyed the evidence if he had been allowed to retain the computer. 

Click HERE for the court’s opinion.

*****
14

9th Circuit

United States v. Valdes-Vega, 2013 U.S. App. LEXIS 25607 (9th Cir. Cal. Dec. 24, 2013)

Border Patrol Agents stopped Vega 70 miles north of the U.S.–Mexico border. Vega’s pickup truck 

had Mexican license plates, he was driving 90 miles-per-hour on the highway while the other vehicles 

were driving between 70 and 80 miles-per-hour, he was weaving in and out of traffic and he did not 

make eye contact with an agent after the agent pulled his police car alongside the passenger side of 

Vega’s truck. Vega consented to a search of his truck and the agents found approximately eight

kilograms of cocaine.

The agents testified the justification for the stop was their belief that Vega’s behavior was consistent 

with the behavior of alien and drug smugglers who encounter law enforcement officers in that area. 

The district court denied Vega’s motion to suppress the cocaine, finding the Border Patrol Agents had 

reasonable suspicion to stop Vega’s truck.

The three-judge panel of the Ninth Circuit Court of Appeals disagreed, holding the totality of the 

circumstances did not provide the agents with reasonable suspicion to believe Vega was smuggling 

drugs or aliens. According to the court, the totality of the circumstances revealed a driver with 

Mexican license plates committing traffic infractions on an interstate 70 miles north of the border. 

The court concluded these facts described too broad a category of people to justify reasonable 

suspicion to believe that Vega was smuggling either drugs or aliens. 

The Ninth Circuit Court of Appeals then agreed to re-hear the appeal in an en banc panel of eleven 

judges. The en banc court affirmed the district court's denial of Vega’s motion to suppress the 

cocaine seized from his truck.

The en banc court held that in light of the totality of the circumstances, the two experienced Border 

Patrol Agents, who observed a truck with foreign license plates driving in a suspicious manner in an 

area frequented by smugglers, had a reasonable suspicion to believe the driver was smuggling 

contraband; therefore, justifying the stop.

Click HERE for the court’s opinion.

*****

10th Circuit

United States v. Rodriguez, 2013 U.S. App. LEXIS 25853 (10th Cir. N.M. Dec. 31, 2013)

Police in Albuquerque, New Mexico, received a report that two employees in a convenience store 

were showing each other handguns. When a police officer went into the store, he saw a silver 

handgun tucked in the back waistband of Rodriguez’s pants as Rodriguez was bending over stocking 

shelves. When Rodriguez stood up, the gun was concealed by Rodriguez’s shirt. The officer ordered 

Rodriguez to show his hands and to step outside the store. As Rodriguez walked by, the officer 

pulled the gun out of Rodriguez’s waistband. Rodriguez told the officer he carried the gun for 

protection but that did not have a concealed weapons permit. Another officer examined the gun and 

discovered it was loaded. The officer also learned the gun had been reported stolen and that 

Rodriguez was a convicted felon. The officers arrested Rodriguez. The government charged 

Rodriguez with being a felon in possession of a firearm and ammunition. 
15

Rodriguez claimed that possession of a concealed firearm in the State of New Mexico, by itself, 

cannot be the basis for a Terry stop or a Terry frisk. As a result, Rodriguez argued the officer 

unreasonably seized him and removed the handgun from his waistband. 

The court disagreed. The seizure was justified because the officer had reasonable suspicion to believe 

Rodriguez was unlawfully carrying a handgun. First, the officer saw the gun in the waistband of 

Rodriguez’s pants. Second, Section 30-7-2 of the New Mexico Criminal Code makes it illegal to 

carry a concealed loaded firearm anywhere except on a person’s property, in a private automobile, or 

unless a person has a valid concealed handgun license. In addition, the officer did not have to be 

certain the handgun was loaded to justify seizing Rodriguez. The officer only had to reasonably 

suspect the gun was loaded. Here, the court noted, believing “the defendant’s handgun was probably 

loaded is simply a ‘common sense conclusion about human behavior’ that Officer Munoz could 

reasonably draw from the fact defendant sought to conceal the gun on his person.” 

The court further held the officer was justified in removing the gun from Rodriguez’s waistband. The 

court stated, whether loaded or not, a handgun is a dangerous weapon. Consequently the officer was 

allowed to remove it so he could conduct his investigation without fear of violence.

Click HERE for the court’s opinion.

*****

11th Circuit

United States v. Timmann, 2013 U.S. App. LEXIS 25108 (11th Cir. Fla. Dec. 18, 2013)

A woman returned home from a ten-day trip and called the police after she found what appeared to be 

three bullet holes in an interior wall of her apartment. A police officer inspected the holes as well as 

a bullet fragment lodged in the carpet. Suspecting the bullets had been fired from the apartment next 

door, where Timmann lived, the officer knocked on his door. After receiving no response, the officer 

discovered Timmann’s car was not in the parking lot and that he was likely at work. 

The next day, police officers returned to the apartment complex and spoke to the manager. The 

manager believed Timmann was at work because she had seen his car in the parking lot earlier, but it 

was not there now. The manager gave the officers a key to Timmann’s apartment. The officers 

knocked on the door to Timmann’s apartment, but no one answered. The officers then entered 

Timmann’s apartment, using the key provided by the manager. The officers found no one in the 

kitchen and living areas of the apartment and they saw no signs of a struggle, bullet holes, blood or 

other evidence of injury. The officers yelled to announce their presence, but received no answer. 

When the officers got to the bedroom door, they discovered it was locked. The officers knew from 

the layout of the two apartments the bullet holes they had seen must have passed through the wall of 

Timmann’s bedroom. The officers knocked on the bedroom door but received no response. The 

officers did not hear any noise or sounds of movement from the bedroom. One of the officers kicked 

open the bedroom door. The officers found no one present and no signs of injury. However, the 

officers saw numerous firearms and ammunition lying in plain view. The officers also saw bullet 

holes in the wall. The officers took photographs of the bedroom, then left Timmann’s apartment. 

Back at the police station, one of the officers discovered Timmann had two prior felony convictions. 

Later that day, a police officer spoke to Timmann by telephone. Timmann told the officer he knew 

the police were at his apartment investigating the bullet holes in the wall. Timmann told the officer 

he had received a rifle from a friend and accidentally discharged it inside the apartment. The officer 
16

did not tell Timmann that he and other officers had entered Timmann’s apartment and discovered the 

firearms and ammunition. 

The police spoke to Timmann a second and third time by telephone later that day. On both occasions, 

the officers told Timmann the police knew he was a convicted felon and that officers had entered his 

apartment and discovered the firearms and ammunition in his bedroom. During both phone calls, 

Timmann admitted to owning the firearms.

The police subsequently obtained a warrant to search Timmann’s apartment and seized the firearms 

and ammunition from Timmann’s bedroom. The government indicted Timmann for possession of a 

firearm by a convicted felon. 

Timmann moved to suppress the firearms and ammunition. Timmann argued there was no probable 

cause or exigent circumstances to justify the officers’ initial warrantless entry into his apartment. 

Timmann also moved to suppress his telephone statements to the police. 

The district court held that the officers’ initial warrantless entry into Timmann’s apartment was 

justified under the emergency aid exception to the Fourth Amendment’s warrant requirement. 

The court of appeals disagreed. The court found it was not reasonable for the officers to believe that 

someone inside Timmann’s apartment was in danger and in need of immediate aid. The officers did 

not receive a report regarding an ongoing disturbance, but rather a service call regarding what 

appeared to be bullet holes. The officers did not know when the holes had been made and both times 

the officers went to Timmann’s apartment there was no indication a fight had taken place or anyone 

had been injured. In addition, the officers did not have any information that would cause them to 

suspect Timmann might be suicidal. On the contrary, the absence of Timmann’s vehicle suggested he 

was likely not at home. 

Next, even though the officers’ warrantless entry into Timmann’s apartment violated the Fourth

Amendment, Timmann’s statements to the police during the first phone call were admissible. When 

the officer spoke to Timmann, he did not tell Timmann the officers had already entered his apartment 

and found firearms and ammunition. Instead, the officer only spoke to Timmann about the bullet 

hole in the wall of his neighbor’s apartment. Because the officer did not use the evidence obtained in 

the unlawful search to induce Timmann’s statement that he had obtained a rifle from a friend, this 

statement did not need to be suppressed. However, the court held Timmann’s statements to the police 

obtained in the second and third phone calls should have been suppressed. During those calls, the 

officers confronted Timmann with evidence they obtained through the unlawful search of Timmann’s 

apartment, which elicited incriminating statements from Timmann. 

Click HERE for the court’s opinion.

*****

United States v. Smith, 2013 U.S. App. LEXIS 25555 (11th Cir. Fla. Dec. 23, 2013)

In January 2011, police officers installed GPS trackers on two of Smith’s vehicles without a search 

warrant. The police used information obtained from the GPS trackers in their search warrant 

application for Smith’s house and seized evidence that was used against him at trial.

On appeal, citing U.S. v. Jones, Smith argued the officers violated the Fourth Amendment when they 

searched his home pursuant to a warrant that relied in part on information collected from the 

warrantless GPS surveillance. 
17

The court disagreed. When the officers attached the GPS trackers in January 2011, binding Eleventh 

Circuit case law specifically authorized police officers to install electronic tracking devices in a 

suspect’s vehicle upon a showing of reasonable suspicion, which the officers had in this case. Even if 

Jones would have made the warrantless searches in this case unreasonable, the court held the officers’ 

good-faith reliance upon that binding case law did not warrant suppression of the evidence. 

Click HERE for the court’s opinion.

*****