Department of Homeland Security

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Legal Training Division 

May 2017

THE

FEDERAL LAW ENFORCEMENT

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

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

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This edition of The Informer may be cited as 5 INFORMER 17.
2

The Informer – May 2017 

Case Summaries

Circuit Courts of Appeals

Second Circuit

United States v. Babilonia: Whether the warrantless search of the defendant’s car was

valid under the automobile exception, and whether the warrantless seizure of evidence

from the defendant’s apartment was valid under the plain view doctrine..........................................5

United States v. Diaz: Whether it was objectively reasonable for an officer to believe 

that a stairwell in an apartment building constituted a “public place” within the meaning

of an open-container law, and whether the officer’s search of the defendant was lawful..................7

Fifth Circuit

Hanks v. Rogers: Whether an officer was entitled to qualified immunity after he delivered

a blow to the back of a suspect’s head during a traffic stop for a minor infraction.............................8

United States v. Henry: Whether it was objectively reasonable for officers to believe that 

the defendant violated Louisiana law after they noticed the license-plate frame on the 

defendant’s car obstructed the view of the expiration date on the plate’s registration sticker...........9

Texas v. Kleinert: Whether a federal district court properly applied the federal-officerremoval statute when a federal officer was charged with manslaughter in state court, and

whether the federal officer was entitled to Supremacy Clause immunity.......................................10

United States v. Broca-Martinez: Whether a state computer database check that indicated

a vehicle’s insurance status was “unconfirmed” established reasonable suspicion for an officer 

to conduct a traffic stop...................................................................................................................12

Sixth Circuit

Estate of Hill v. Miracle: Whether an officer was entitled to qualified immunity after he

deployed his taser against a disoriented, combative person, so paramedics could insert 

an intravenous catheter in order to raise the person’s blood-sugar level.........................................13

Eighth Circuit

United States v. Murillo-Salgado: Whether a trooper unlawfully prolonged the duration 

of a traffic stop, and whether the warrantless search of an air compressor in the back of a

vehicle was lawful under the automobile exception to the warrant requirement.............................15

United States v. Peoples: Whether the officers’ warrantless entry into a motel room

to evict the defendant under Missouri law was valid.......................................................................17

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3

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5

CASE SUMMARIES

Circuit Courts of Appeal

Second Circuit

United States v. Babilonia, 2017 U.S. App. LEXIS 6515 (2d Cir. N.Y. Apr. 17, 2017)

The government was investigating several individuals for being part of a drug trafficking 

operation and for their involvement in a murder-for-hire plot that targeted a rival drug dealer. 

Based on information provided by a confidential informant, officers conducted surveillance on 

Roger Key. The officers saw Key park a minivan, which had no front license plate, across the 

street from an apartment building. The officers saw Key get out of the minivan and look up and 

down the street repeatedly, even though there was no traffic on the street. Based on his experience, 

one of the officers believed that Key was checking for police or other observers in the area. Key 

then entered the apartment building, and reappeared a few minutes later holding a green plastic 

bag with a weighted, brick-shaped object inside. Key got into his minivan and drove away. Based 

on their observations and experience, the officers suspected that the bag contained either drugs or 

drug proceeds. 

The officers followed Key for a short distance in their vehicles and then conducted a traffic stop. 

After the officers activated their lights and sirens, Key refused to pull over. Instead, Key led the 

officers on a high-speed pursuit that lasted five to eight minutes. During this time, the officers 

saw Key using a cell phone while he was driving. Key eventually stopped and the officers arrested 

him. Inside Key’s minivan, the officers saw the green plastic bag, which contained a rectangular 

shaped object, wedged between the two front seats. The officers searched the bag and discovered 

$10,000 in cash bundled with rubber bands. The officers searched the rest of the minivan and 

found several cell phones, receipts for other cell phones, and a New York license plate in the rear 

storage area. In an effort not to raise Key’s suspicions about the larger ongoing investigation, the 

officers decided not to prosecute Key for the driving offense. In addition, the officers decided not 

to seize any evidence from Key’s minivan other than the green plastic bag and the $10,000 cash. 

Approximately one month later, officers went to Key’s apartment to arrest him for hisinvolvement 

in the drug trafficking operation and the murder-for-hire plot. When Key answered the door, he 

was wearing boxer shorts and an undershirt, holding a cell phone. The officers pulled Key into 

the hallway, and handcuffed him. After the officers cleared the apartment, they brought Key back 

inside to get dressed. When the officers brought Key into the living room, one of the officers saw 

several cell phones on a table. At the time, the officer knew that Key was being investigated for 

narcotics trafficking and a murder-for-hire conspiracy that involved cell phones. In addition, the 

officer was aware of a wiretap investigation into Key’s drug trafficking activities in which cell 

phones were involved. The officer asked Key if there were any firearms or drugs in the apartment. 

Key said there were not, and then gave the officer verbal consent to search the apartment for 

firearms and drugs. The officers searched the apartment and seized several cell phones, an iPad, 

and an address book. The officers later obtained a warrant to search the cell phones and iPad. 

First, Key argued that the warrantless search of his vehicle violated the Fourth Amendment. 
6

The court disagreed, holding that the search of Key’s minivan was justified under the automobile 

exception to the Fourth Amendment’s warrant requirement. The automobile exception allows law 

enforcement officers to conduct warrantless searches of “readily mobile vehicles” when the 

officers have probable cause to believe that the vehicle contains contraband. Here, the court 

concluded there was ample evidence for the officers to believe that Key was transporting drugs in 

his vehicle. First, the officers were conducting surveillance as part of a larger drug trafficking

investigation when they saw Key emerge from a minivan without a front license plate and look 

up and down the block a number of times over a period of minutes, even though there was no 

street traffic at the time. Second, the officers saw Key enter an apartment building and return 

minutes later with a green plastic bag weighted down by a brick-shaped object, hurrying back to 

the minivan. Third, after the officers attempted to conduct a traffic stop, Key failed to pull over 

and continued driving at high speeds with the officers in pursuit for five to eight minutes. The 

court noted that Key’s efforts to escape caused the officers to believe that Key had something to 

hide, and in the Second Circuit, flight is an appropriate factor supporting a finding of probable 

cause to search a vehicle after it is stopped. 

Key also argued that the officers’ testimony concerning the items they saw in the rear storage area 

of his minivan during the traffic stop should have been suppressed because the officers only saw 

those items after the unlawful search of the front part of the vehicle.

Again, the court disagreed. Even though the officers did not seize the items observed in the rear 

of Key’s vehicle, the court concluded that evidence would have been inevitably discovered in an 

inventory search of the vehicle, which would have been conducted if Key’s vehicle had been 

impounded. 

Finally, Key argued that the officers’ warrantless seizure of the cell phones, iPad and address book 

from his apartment violated the Fourth Amendment. However, the district court held that the 

officers lawfully seized these items under the plain view doctrine. Under the plain view doctrine, 

and officer may seize evidence without a warrant if: (1) the officer is lawfully in a position from 

which the officer views an object, (2) the incriminating nature of the object is immediately 

apparent and, (3) the officer has a lawful right of access to the object. 

Key’s sole challenge on appeal was that the plain view doctrine did not apply because the 

incriminating nature of the phones, iPad and address book were not immediately apparent to the 

officers. 

The court disagreed. When the officers arrested him, Key had been the target of an investigation 

for several months. The investigation had revealed the murder-for-hire conspiracy involved the 

use of multiple cell phones, and a separate wiretap investigation established that Key and his 

coconspirators used cell phones to conduct drug-related activity. The investigation also revealed 

that officers had analyzed Key's use of numerous cell phones in connection with his suspected 

criminal activity. Finally, in their experience, officers testified that address books usually 

contained contact information for associates. Based on these facts, the court concluded that the 

incriminating nature of the items was immediately apparent to the officers when they seized them, 

particularly as the officers did not search the electronic devices until after they had obtained a 

warrant.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca2/14-3739/14-3739-

2017-04-17.pdf?ts=1492439406

*****
7

United States v. Diaz, 854 F.3d 197 (2d Cir. Apr. 18, 2017)

New York City Police Department Officers Aybar and Espinal entered a private apartment 

building to conduct a floor-by-floor patrol. The officers had received consent from the owners of 

the building to patrol the common areas to deter drug dealing and trespassing offenses. When the 

officers entered the building they immediately smelled marijuana. The officers went up the stairs 

where they encountered Diaz and two other men on the third-floor landing. Diaz was sitting next 

to a bottle of vodka and holding a red plastic cup. As Officer Aybar approached Diaz, she saw 

clear liquid in the cup and smelled what seemed to be alcohol. Officer Aybar initially planned to 

issue Diaz a summons for violating New York’s open-container law, which prohibited among 

other things, possession with the intent to consume an alcoholic beverage from an open container 

in a public place. Officer Aybar had received training on the open-container law and had issued 

approximately fifty summonses for open-container violations, often in apartment buildings. 

Because Officer Aybar did not feel safe confronting Diaz while he was seated, she ordered him 

to stand against the wall and produce his identification. Diaz stood, fumbled with his hands in his 

jacket pocket, and rearranged his waistband. Believing that Diaz might be armed, Officer Aybar 

frisked Diaz and felt a bulge in his jacket. Officer Aybar removed a loaded handgun from Diaz’s 

jacket pocket and handcuffed him. Diaz was transported to the police station where Officer Aybar

issued him a summons for the open-container violation. 

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

Diaz filed a motion to suppress the firearm, arguing that the apartment-building stairwell where 

he was found with an open container of alcohol did not constitute a “public place” under the opencontainer law. 

The court disagreed. The court noted the issue was not whether the common-area stairwell in an 

apartment building constituted a public place under the open-container law, but whether Officer 

Aybar reasonably believed that it did. The court held that Officer Aybar’s belief that the apartment 

building stairwell qualified as a public place within the meaning of the open-container law was

reasonable. The court found that the New York Court of Appeals has not yet addressed whether 

a common area inside an apartment building is “public place” under the open-container law, and 

the other New York courts that have done so have reached conflicting conclusions. As a result, 

the court concluded that at the time of the search, Officer Aybar had probable cause to arrest Diaz 

for a violation of New York’s open-container law based on a reasonable belief that an apartmentbuilding stairwell is a public place under that law. 

Diaz also argued that Officer Aybar’s search was not a lawful search incident to arrest because 

when Officer Aybar searched Diaz, she did not intend to arrest him. Diaz claimed that Officer 

Aybar decided to arrest him only after she discovered the handgun. 

Again, the court disagreed. The court concluded that when an officer has probable cause to 

believe that a person has committed a crime, the officer may search that person pursuant to the 

search-incident-to-arrest doctrine, provided that a “formal arrest follows quickly on the heels of 

the frisk.” The court found that it was irrelevant whether, at the time of the search, Officer Aybar 

intended to arrest Diaz or just issue him a citation for the open container violation.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca2/15-3776/15-3776-

2017-04-18.pdf?ts=1492527606
8

*****

Fifth Circuit

Hanks v. Rogers, 853 F.3d 738 (5th Cir. Tex. Apr. 5, 2017)

Officer Rogers saw Hanks driving a vehicle with its hazard lights engaged, approximately 20 

miles-per-hour under the speed limit on an interstate highway. Officer Rogers stopped Hanks. 

Hanks told Officer Rogers that he was trying to locate his cell phone, which he had inadvertently 

left on top of his car at the outset of his trip. Officer Rogers asked Hanks to produce his driver’s 

license and proof of insurance. Hanks gave Officer Rogers his driver’s license, but he could not 

locate an insurance card for the vehicle, which he had borrowed with permission from a relative. 

Officer Rogers ordered Hanks to exit his vehicle, but instead of getting out of his vehicle, Hanks 

questioned the basis for Officer Rogers’ order. Officer Rogers repeated his command six times 

before Hanks exited his vehicle.

Once outside the vehicle, Officer Rogers ordered Hanks to place his hands on the rear of Hanks’ 

vehicle. Hanks initially leaned back against the rear of his vehicle, but eventually complied after 

Officer Rogers repeated his command and drew his taser. Officer Rogers then ordered Hanks to 

“go to [Hanks’] knees.” Hanks replied by asking Officer Rogers if he was under arrest. A few 

seconds later, Officer Rogers repeated his command, and Hanks asked again if he was under 

arrest. Officer Rogers ordered Hanks to his knees again. When Hanks made a small lateral step 

with his left foot, Officer Rogers rushed up behind Hanks and administered a blow, referred to as 

a “half spear,” to Hanks’ upper back. The blow forced Hanks’ upper body onto the trunk of his 

vehicle. Officer Rogers eventually got Hanks onto the ground and handcuffed him. When Hanks 

took the small step to his left, his empty hands remained “surrendered” behind his back, and Hanks 

offered no resistance while Officer Rogers handcuffed him. After Officer Rogers issued Hanks a 

traffic citation, medics transported Hanks to the hospital. 

Hanks sued Officers Rogers under 42 U.S.C. § 1983, claiming that Officer Rogers used excessive 

force against him in violation of the Fourth Amendment. The district court granted Officer Rogers 

qualified immunity and dismissed the case. The district court concluded that Hanks did not 

establish that Officer Rogers’ use of force was objectively unreasonable. Hanks appealed to the 

Fifth Circuit Court of Appeals.

The Fifth Circuit Court of Appeals reversed the district court. The court concluded that under the 

circumstances documented in the recording1 in this case, a reasonable officer on the scene would 

have known that suddenly resorting to physical force as Officer Rogers did would be clearly 

excessive and unreasonable. 

In Graham v. Connor, the Supreme Court outlined several factors that a court should consider to 

determine if an officer’s use of force was reasonable. Factors to consider include: 1) the severity 

of the crime at issue, 2) whether the suspect poses an immediate threat to the safety of the officer 

or others, and 3) whether the suspect is actively resisting arrest or attempting to evade arrest by 

flight. 

 1 The record on appeal contained an audiovisual recording of the encounter captured by a camera in Officer Rogers’ 

police vehicle and may be accessed via the following link: http://www.ca5.uscourts.gov/opinions/pub/15/15-

11295.mp4.
9

First, the court found the fact that Hanks was driving 20 miles-per-hour below the speed limit and 

he was unable to produce proof of insurance constituted minor traffic violations. 

Second, the court perceived “little basis in the recording from which Officer Rogers could have 

reasonably viewed Hanks as an immediate threat” to his safety or others when Officer Rogers 

applied the “half spear.” The recording showed that for approximately the last thirty seconds 

before the blow, more than half of the total time between when Hanks exited his vehicle and when 

Officer Rogers took him to the ground, Hanks stood facing away from Officer Rogers. Throughout 

that time, Hanks displayed his empty hands on the trunk of his car, on the back of his head, and 

then behind his back. During those last thirty seconds, Officer Rogers kept his taser at the ready, 

trained on Hanks' back. Hanks' resistance "was, at most, passive," and consisted primarily of 

remaining on his feet for about twenty seconds after Officer Rogers first order to kneel, during 

which time Hanks twice asked whether he was under arrest. Consequently, the court concluded 

that a reasonable officer under these circumstances would not have believed that Hanks posed an 

"immediate threat" warranting a physical takedown.

Finally, as previously mentioned, the court found that Hanks displayed, at most, passive resistance 

and made no attempt to flee. Although Hanks took a small lateral step with his left foot, it was 

clear that Hanks’ step was not accompanied by any obvious signs of violence or flight. Under the 

circumstances captured in the recording, the court concluded that a reasonable officer would not 

have perceived this movement as active resistance or an attempt to flee.

The court further held that at the time of the incident it was clearly established that an officer 

violates the Fourth Amendment if he abruptly resorts to overwhelming physical force rather than 

continuing verbal negotiations with an individual who poses no immediate threat or flight risk, 

who engages in, at most, passive resistance, and whom the officer stopped for a minor traffic

violation.

It should be noted that after the incident, the Grand Prairie Police Department conducted an 

investigation that led to Officer Rogers’ indefinite suspension. The department’s investigation 

concluded that Officer Rogers’ “half spear . . . was not objectively reasonable to bring the incident 

under control . . . based on Mr. Hanks’ lack of resistance.” While the court mentioned the 

department’s disciplinary action in its opinion, the court did not take this disciplinary action into 

consideration when determining reasonableness of Officer Rogers’ actions. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/15-11295/15-11295-

2017-04-05.pdf?ts=1491435032

*****

United States v. Henry, 853 F.3d 754 (5th Cir. La. Apr. 10, 2017)

While on patrol, two Baton Rouge police officers noticed that Henry’s license-plate frame 

obstructed the view of the expiration date on the plate’s registration sticker. Believing that 

Henry’s obstructed registration sticker violated Louisiana Statutes Annotated § 32:53(A)(3), 

which provides that "[e]very permanent registration license plate . . . shall be maintained free from 

foreign materials and in a condition to be clearly legible," they conducted a traffic stop. During 

the stop, Henry consented to a search of his car. The officers searched Henry’s car and found 

marijuana, a digital scale, and a loaded handgun. 

The government charged Henry with being a felon in possession of a firearm. 
10

Henry filed a motion to suppress the evidence seized from his car, claiming that the officers did 

not have reasonable suspicion to conduct the stop. Henry argued that Section 32:53 does not 

apply to obstructed registration stickers, and the officers’ interpretation of the statue was 

unreasonable. Instead, Henry claimed that Section 32:53 only requires the letters and numbers on 

the plate itself be clearly legible. 

The court declined to render an opinion on the proper interpretation of Section 32:53 because it 

determined that Louisiana case law establishes that the officers’ interpretation, even if mistaken, 

was objectively reasonable. In State v. Pena, the court held that a license-plate frame that obscured 

part of the plate violated the statute, even though the lettering and numbering on the plate was 

“clearly visible.” Although Pena did not specifically address obscured registration stickers, the 

court concluded that its broad construction of the statute can reasonably be construed to apply to 

them. As a result, the court concluded that given Pena, the officers’ belief that Henry’s obstructed 

registration sticker violated Section 32:53, even if mistaken, was objectively reasonable; 

therefore, they had reasonable suspicion to stop Henry.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/16-30731/16-30731-

2017-04-10.pdf?ts=1491845446

*****

Texas v. Kleinert, 855 F.3d 305 (5th Cir. Tex. Apr. 20, 2017)

Officer Kleinert, an Austin, Texas police officer, was specially deputized by the Federal Bureau 

of Investigation (FBI) under Titles 21 and 28 of the United States Code. After his deputations, 

Kleinert worked as a full-time FBI bank robbery task force officer. As such, Kleinert reported to 

work each day at an FBI office, received a security clearance from the federal government, was 

supervised by an FBI agent, and used FBI issued equipment. 

In July 2013, Officer Kleinert went to a bank that had been robbed earlier in the day to obtain 

surveillance footage and interview bank employees. Although it was normal business hours, a 

sign on the front door indicated the bank was temporarily closed. While Kleinert was discussing 

the robbery with two employees, a man, later identified as Larry Jackson, pulled on the bank’s 

locked front door. When one of the bank employees went out tell Jackson the bank was closed, 

Jackson identified himself as “William Majors,” and told the bank employee that he needed to 

withdraw funds from his account. The bank employee knew that Jackson was not William Majors 

because she personally knew Majors. Uncomfortable with Jackson’s representations, the bank 

employee asked Officer Kleinert to talk to Jackson.

Jackson told Officer Kleinert that he was not William Majors, but rather Mr. Majors’ brother. 

Jackson told Kleinert that he needed to get money out of the bank to cover the costs of a tow truck 

and rental car because he had been involved in a traffic accident. Jackson held up his phone to 

his face and pretended to be engaged in a conversation with someone about the accident. After 

this exchange Jackson fled, and Officer Kleinert chased him.

Officer Kleinert caught up to Jackson on a rocky incline that led to a traffic bridge. Kleinert drew 

his firearm and ordered Jackson to the ground. Jackson stopped briefly, ignored Kleinert’s 

command, and continued to run. Kleinert caught up to Jackson and grabbed Jackson with his left 

hand while holding his firearm in his right hand. Jackson continued to run with Kleinert holding 

on to the back of his shirt. As Jackson tried to go up the rock incline, Kleinert struck Jackson 

twice in the lower back with the “meaty part” of his right hand, while still holding his firearm. 
11

When Kleinert tried to strike Jackson a third time, Jackson fell back towards Kleinert and knocked 

him down. As they fell, Kleinert accidentally pulled the trigger of his firearm, firing one bullet 

into Jackson’s neck, killing him. 

In 2014, a Travis County, Texas state grand jury indicted Kleinert for manslaughter. The 

indictment charged that Kleinert “recklessly caused” Jackson’s death by striking and attempting 

to strike Jackson while holding a loaded firearm and for attempting to seize Jackson without 

maintaining a distance between himself and Jackson that was sufficient to holster his firearm. 

Officer Kleinert filed a motion in federal district court to remove the state prosecution to federal 

court under 28 U.S.C. § 1442, the “federal-officer-removal” statute. After the federal district court 

determined that removal was proper, Kleinert asked the district court to dismiss the indictment. 

Kleinert argued that under the Supremacy Clause of the United States Constitution he was immune 

from prosecution by the local district attorney for conduct that he undertook as a federal officer. 

The district court agreed and dismissed the indictment. The State appealed to the Fifth Circuit 

Court of Appeals arguing that the district court improperly removed the case to federal court. 

The court disagreed. To remove a case to federal court under the federal-officer-removal statute1, 

the defendant / officer must: 

1) Be “an officer . . . of the United States” or of a federal agency; 

2) Show that the state prosecution arose out of an act done by the officer under the color 

of federal authority and in enforcement of federal law;

3) Raise a “colorable” or plausible federal defense” to the prosecution by the state. 

The court noted that the State did not dispute that Officer Kleinert was a “federal officer” for the 

purposes of the removal statute; therefore, the first element was satisfied.

Next, Officer Kleinert was a specially deputized federal agent who investigated bank robberies 

for the FBI’s local task force. When Officer Kleinert encountered Jackson, he was investigating 

a bank robbery, and during their interaction Kleinert developed probable cause to believe that 

Jackson was trying to rob or defraud the same bank, also federal offenses. According to Kleinert, 

federal law authorized him to arrest Jackson based on probable cause and the State’s prosecution 

was based on Kleinert’s striking Jackson during the arrest. As a result, the court found that Officer 

Kleinert satisfied the second element of the federal-officer-removal statute.

Finally, the court held that Officer Kleinert satisfied the third element because he plausibly 

claimed that he was acting as a federal officer at the time of the shooting. As a result, the court 

concluded that Kleinert, asserted a “colorable” defense of Supremacy Clause immunity from state 

prosecution. 

Even if the district court properly removed the case to federal court, the State argued that the 

district court improperly granted Officer Kleinert immunity under the Supremacy Clause. 

 1 Title 28 U.S.C. § 1442(a)(1), the federal-officer-removal statute, provides that: "any officer . . . of the United States 

or of any agency thereof" prosecuted "for or relating to any act under color of such office or on account of any right, 

title or authority claimed under any Act of Congress for the apprehension or punishment of criminals" may remove 

the action to federal court. Although not explicit in the text of the statute, the officer must also allege "a colorable 

federal defense" to satisfy Article III's "arising under" requirement for subject matter jurisdiction.
12

Again, the court disagreed. The Supremacy Clause of the United States Constitution protects 

federal officers, acting within their federal authority from liability under state law. The 

Supremacy Clause prohibits a state from punishing, whether by local prosecution or private 

lawsuit under state law,

1) A federal officer; 

2) Authorized by federal law to perform an act; 

3) Who, in performing the authorized act, did no more than what the officer subjectively 

believed was necessary and proper (this subjective element depends on an officer’s 

“honest belief that his actions are reasonable and necessary to the exercise of his 

authority”);

4) And that belief was objectively reasonable under the circumstances.

As before, the State conceded that Officer Kleinert was a federal officer in this case. Second, the 

court ruled that when Officer Kleinert attempted to arrest Jackson, he had probable cause to arrest 

Jackson for bank robbery and bank fraud. 

Third, the court found Officer Kleinert’s testimony credible that once he drew his firearm he could 

not safely re-holster it before going “hands-on” with Jackson because, to do so, he would have to 

take his eyes off Jackson. According to Officer Kleinert, taking eyes off a suspect before 

apprehending him is dangerous and re-holstering his firearm would have been difficult because 

of his plain clothes, including a baggy, untucked shirt. In addition, Officer Kleinert explained that 

he used “hammer fist” strikes, a technique he learned from police training, to gain compliance. 

The court noted that Jackson had run away from Officer Kleinert twice already and continued to 

resist even after Kleinert physically held on to Jackson’s shirt. After the shooting, Kleinert 

immediately called dispatch to report the incident and seemed concerned that EMS and other 

officers were not arriving quickly enough. 

Fourth, a Lieutenant with the Austin Police Department testified that he and other officers “have 

gone hands on” with suspects while holding their firearms. In addition, a training instructor 

testified that the department teaches its officers to perform hammer-fist strikes while holding a 

weapon, although not necessarily a firearm. The State presented little evidence to the contrary. 

Consequently, the court concluded that Officer Kleinert’s actions were objectively reasonable 

under the circumstances because he reacted on a “split-second basis” and accidentally discharged 

his firearm, in what the State’s own expert called a “sympathetic” or involuntary discharge.

In conclusion, the court reminded officers that “even if a federal officer satisfies every element of 

the immunity standard, the Supremacy Clause cannot shield the officer from federal

consequences, such as prosecution by federal authorities or civil liability under federal law.”

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/15-51077/15-51077-

2017-04-20.pdf?ts=1492731034

*****

United States v. Broca-Martinez, 2017 U.S. App. LEXIS 7612 (5th Cir. Tex. Apr. 28, 2017)

While conducting surveillance, Homeland Security Investigations (HSI) agents saw a vehicle 

leave a residence suspected of harboring undocumented immigrants. The agents notified local 
13

police officers to be-on-the-lookout (BOLO) for the vehicle. While on patrol, an officer began to 

follow the defendant’s vehicle because it matched the vehicle from the HSI agents’ BOLO. While 

following the vehicle, the officer entered its license plate number into a computer database 

designed to return vehicle information such as insurance status. The computer indicated the 

insurance status was “unconfirmed.” Based on his experience using this system, the officer 

concluded that the vehicle was likely uninsured, a violation of Texas law. The officer conducted 

a traffic stop and learned that the defendant was in the United States illegally. The officer issued 

the defendant citations for violating the insurance requirement and driving without a license while 

he waited for the HSI agents to arrive.

The government charged the defendant with conspiracy to harbor illegal aliens. The defendant 

argued that the “unconfirmed” insurance status obtained from the state computer database did not 

provide the officer reasonable suspicion to stop the defendant. 

The court recognized that the Fifth Circuit had not yet addressed whether a state computer 

database indication of insurance status establishes reasonable suspicion. However, the court 

commented that the Sixth, Seventh, Eighth, and Tenth Circuits have found that such information 

may give rise to reasonable suspicion as long as there is either some evidence suggesting the 

database is reliable or at least an absence of evidence that it is unreliable. In this case, the court 

followed the other circuits that have decided this issue and held that a state computer database 

indication of insurance status may establish reasonable suspicion when the officer is familiar with 

the database and the system itself is reliable.

Here, the court found that the officer’s testimony established the reliability of the database. First, 

the officer explained the process for inputting license plate information. Second, the officer 

described how records in the database are kept and stated that he was familiar with these records. 

Finally, the officer testified that based on his knowledge and experience as a police officer, he 

knows a suspect vehicle is uninsured when an “unconfirmed” status appears because the computer 

system will either return an “insurance confirmed,” or “unconfirmed” response. As a result, the 

court held that the officer had reasonable suspicion to stop the defendant. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/16-40817/16-40817-

2017-04-28.pdf?ts=1493400712

*****

Sixth Circuit

Estate of Hill v. Miracle, 853 F.3d 306 (6th Cir. Mich. Apr. 4, 2017)

In June 2013, Corey Hill suffered a diabetic emergency in his home due to his low blood-sugar 

level. When paramedics arrived, Hill was agitated and combative; however, the paramedics 

managed to measure Hill’s blood-sugar level, and discovered that it was dangerously low. Deputy 

Miracle arrived at Hill’s home at some point after the paramedics had measured Hill’s bloodsugar level. Deputy Miracle’s duties included responding to calls for emergency medical services, 

and he had encountered over a dozen diabetic emergencies. In addition, Deputy Miracle was 

aware that persons suffering from low blood-sugar levels are often disoriented and unaware of 

their surroundings. 

Because the paramedics considered Hill’s low blood-sugar level a “medical emergency,” they 

inserted a catheter into his arm to intravenously administer dextrose in order to raise his blood-
14

sugar level. In response, Hill became increasingly combative, swinging his fists, kicking, and 

swearing at the paramedics. At some point, a completely disoriented Hill ripped the catheter from 

his arm. Hill continued to kick, swing, and swear at the paramedics as they tried to hold him 

down and re-insert the catheter into his arm. Deputy Miracle, who at that point had not joined in 

the attempt to physically restrain Hill, ordered Hill to “relax.” After Hill continued to kick and 

swing, Deputy Miracle told Hill that he was going to use his taser. Deputy Miracle then deployed 

his taser in drive-stun mode directly to Hill’s right thigh. After Deputy Miracle held the taser 

against Hill’s thigh for a few seconds, Hill calmed down long enough for a paramedic to reestablish the intravenous catheter. Eventually Hill’s blood-sugar level reached a normal level and 

Hill was transported to the hospital without incident. Medical records from the hospital noted a 

taser puncture wound on Hill’s right thigh and that the wound did not require treatment. 

Hill sued Deputy Miracle under 42 U.S.C. § 1983, claiming that Miracle used excessive force in 

violation of the Fourth Amendment when he deployed his taser against Hill. Hill alleged that he 

suffered burns on his right thigh and that his diabetes worsened because of the incident. The 

district court found that Deputy Miracle violated Hill’s clearly established rights in deploying his 

taser and denied Miracle qualified immunity. Deputy Miracle appealed to the Sixth Circuit Court 

of Appeals. 

To determine whether an officer used excessive force in violation of the Fourth Amendment the 

court considers whether the officer’s actions were objectively reasonable in light of the facts and 

circumstances confronting him. In Graham v. Connor, the Supreme Court established a threefactor test to assist lower courts in assessing objective reasonableness in the typical situation of a 

law enforcement officer accused in a civil suit of using excessive force. The factors set out in 

Graham are: 1) the severity of the crime at issue; 2) whether the suspect poses an immediate 

threat to the safety of the officer or others, and 3) whether the suspect is actively resisting arrest 

or attempting to evade arrest by flight. 

The court of appeals appreciated the fact that the district court had to apply the Graham factors to 

a medical emergency where there was no crime, no resisting of an arrest, and no direct threat to 

the officer. In addition, the court recognized that because Hill had not committed a crime and was 

not resisting arrest, two of the three Graham factors automatically weighted against Deputy

Miracle from the beginning. Finally, the court noted that no appellate courts have provided any 

guidance on how to assess objective reasonableness when a law enforcement officer is presented 

with a medical emergency. The court found that most of the cases dealing with excessive force 

and taser use have ruled that an officer does not use excessive force by tasing a person who is 

actively resisting arrest, but does use excessive force if that person is not resisting. Rather than 

continuing to struggle with this dilemma, the court suggested that a “more tailored” set of factors 

be considered in the medical-emergency context to determine if an officer’s actions were 

objectively reasonable. Where a situation does not fit within the Graham test because the person 

in question has not committed a crime, is not resisting arrest, and is not directly threatening the 

officer, the court should ask: 

1) Was the person experiencing a medical emergency that rendered him 

incapable of making a rational decision under circumstances that posed an 

immediate threat of serious harm to himself or others?

2) Was some degree of force reasonably necessary to ameliorate the immediate 

threat?
15

3) Was the force used more than reasonably necessary under the circumstances 

(i.e., was it excessive)?

The court added, “if the answers to the first two questions are “yes,” and the answer to the third 

question is “no,” then the officer is entitled to qualified immunity.” 

Applying the factors outlined above to this case, the court concluded that Deputy Miracle did not 

use excessive force against Hill when Deputy Miracle deployed his taser in drive-stun mode. First, 

Hill was experiencing a medical emergency because of his hypoglycemic episode when Deputy

Miracle encountered him, and Hill’s combative actions placed the paramedics in immediate 

physical danger. 

Second, the court found that some degree of force was necessary to ameliorate the immediate 

threat to the paramedics and to Hill. Hill was violently resisting the paramedics’ attempts to 

render him lifesaving assistance, and the paramedics were unable to gain control over Hill. 

Third, the court held that Deputy Miracle’s use of his taser in drive stun mode was objectively 

reasonable to gain control over Hill. Four paramedics were not able to physically restrain Hill, 

whose health was rapidly deteriorating and who was unresponsive to Deputy Miracle’s command 

to “relax.” As a result, the court concluded that a reasonable officer on the scene without the 

benefit of 20/20 hindsight would be justified in taking the same actions as Deputy Miracle. 

The court further held that at the time of the incident Hill’s Fourth Amendment right was not 

clearly established. Specifically, “at the time of the alleged violation, no reasonable officer would 

have known that using a taser on an individual who was undergoing a medical emergency, posed 

a risk to the responders' safety, and needed to be subdued in order for medical personnel to render 

life-saving assistance violated that person's constitutional rights.”

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca6/16-1818/16-1818-

2017-04-04.pdf?ts=1491832850

*****

Eighth Circuit

United States v. Murillo-Salgado, 854 F.3d 407 (8th Cir. Mo. Apr. 13, 2017)

A state trooper saw a pickup truck traveling on an interstate highway in the left lane, but not 

passing other vehicles, and driving three miles-per-hour over the speed limit. The trooper

conducted a traffic stop. As the trooper approached the stopped truck, which bore California 

license plates, he saw a driver and passenger in the front seats, as well as three packages of 

electrical wiring, a small ladder, a hard hat, and a toolbox in the open truck bed. The driver 

identified himself as Ramon Arredondo and gave the trooper a California driver’s license. 

Arredondo told the trooper that he and his passenger, Salgado, were driving from California to 

North Carolina to complete a wiring job for a 15,000-square-foot residence. When asked why 

they were driving such a long distance instead of flying, Arredondo told the trooper they were 

transporting tools and all of the electrical wiring for the job. The trooper was suspicious of 

Arredondo’s response because he did not believe that the quantity of wiring that he had seen in 

the truck bed was sufficient to complete the wiring job described by Arredondo. During the stop, 

the trooper discovered the name on the vehicle rental agreement did not match the name on 

Arredondo’s license. In addition, the trooper noticed that the truck had only been rented for five 
16

days. At some point the trooper spoke with Salgado who confirmed Arredondo’s claim that the 

men were traveling to North Carolina to wire a 15,000-square-foot house; however, the men gave 

the trooper conflicting answers about who was paying for the truck rental. 

Approximately twenty-three minutes into the stop the trooper asked Arredondo for consent to 

search the truck. The trooper had not yet competed the tasks related with the traffic stop or issued 

Arredondo a ticket. After Arredondo gave the trooper consent to search, the trooper asked 

Arredondo if he owned everything in the truck. Arredondo told the trooper that he owned two 

bags in the back seat that contained his clothes, but he denied owning any of the tools or toolboxes. 

When the trooper opened the rear passenger door to the truck, he saw an air compressor on the 

back seat. The trooper immediately identified the smell of fresh paint and saw some rough, jagged 

non-factory welding on the air tank. The trooper looked at the compressor more closely and 

noticed a square cut underneath the motor that looked like it had been recently painted. The 

trooper eventually opened the air tank and discovered several packages of cocaine. Arredondo 

and Salgado were charged with possession with intent to distribute cocaine.

Salgado filed a motion to suppress the evidence seized from the truck. Salgado argued that the 

trooper prolonged the traffic stop beyond the time reasonably required to investigate the traffic 

violations; therefore, the evidence seized from the truck should have been suppressed. 

The court disagreed. The trooper, who had received specific training in the trafficking of illegal 

drugs and had participated in "hundreds" of drug investigations, developed reasonable suspicion 

of drug-related activity while he was completing the routine tasks associated with the traffic stop. 

First, the trooper noticed a discrepancy between the name on Arredondo's driver's license and the 

name on the rental agreement. Second, the trooper noticed that the rental agreement was for a 

period of time that appeared insufficient to accomplish the stated purposes of the trip. Third, 

based on his admittedly limited electrical-wiring experience, the trooper believed that the quantity 

of electrical wiring in the bed of the truck was insufficient to complete work on a 15,000-squarefoot house. 

Next, Salgado argued that even if Arredondo had given valid consent to search the truck, 

Arredondo’s consent to search did not extend to a search of the air compressor because Arredondo 

had specifically denied ownership of it. 

Again, the court disagreed. Observations made by an officer during a consensual search of a 

vehicle may provide the officer with probable cause to expand the scope of the search under the 

automobile exception to the Fourth Amendment’s warrant requirement. In this case, the trooper 

began his search after he obtained Arredondo’s voluntary consent. Arredondo’s consent allowed 

the trooper to search all areas of the truck, including the passenger compartment where the air 

compressor was located. When the trooper smelled the odor of fresh paint, then saw fresh paint 

on the compressor’s tank along with the rough, jagged, non-factory welds, he had probable cause 

to believe that the tank contained contraband or evidence of a crime. As a result, the court 

concluded that the warrantless search of the air compressor was valid under the automobile 

exception.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/16-1959/16-1959-

2017-04-13.pdf?ts=1492097446

*****
17

United States v. Peoples, 2017 U.S. App. LEXIS 7098 (8th Cir. Mo. Apr. 24, 2017)

A police officer located a stolen car in the parking lot of a motel. While conducting surveillance 

on the car, the officer saw a man and a woman exit Room 114 and approach the stolen car. The 

couple had a brief conversation and then the woman got into the car and drove away. The officer 

followed the woman and eventually arrested her for possession of a stolen automobile. The 

woman told the officer that she had spent the night in Room 114 with a man named “Dusty.”

In the meantime, another officer was dispatched to the motel to advise management of the criminal 

activity on the premises and to determine the identity of the man from Room 114. After arriving 

at the motel, the officer told the clerk on duty that a stolen car had been observed leaving the 

parking lot and that, while one person had been arrested, there was still a man associated with the 

vehicle inside Room 114. In response, the clerk handed the officer a key to Room 114 so the 

officer could evict the occupants.

The officer went to Room 114 accompanied by back-up officers and knocked on the door several 

times, announcing that he was with the police. After receiving no response, the officer used the 

key to enter the room and found Peoples lying on the bed. The officer also saw a loaded handgun 

magazine on the floor and narcotics on the nightstand. After the officers arrested Peoples, they 

obtained a warrant to search the room based on the evidence they had observed when they first 

entered the room. The officers subsequently found a loaded handgun and stolen electronics.

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

Peoples filed a motion to suppress all evidence obtained as a result of the initial police entry into 

the motel room. Peoples claimed that the officer’s unlawful warrantless entry into Room 114 

tainted the subsequent search with the warrant, which led to the seizure of the firearm. 

The Fourth Amendment’s protection against unreasonable searches and seizures extends to a 

person’s privacy in temporary dwelling places such as hotel or motel rooms. However, once a 

guest has been “justifiably” expelled, the guest does not have standing to contest an officer’s entry 

into his hotel room under the Fourth Amendment. In addition, Missouri law (Mo. Rev. Stat. § 

315.075(3)) allows a hotel to eject a person when the hotel operator reasonably believes that the 

person is using the premises for an unlawful purpose. 

In this case, the court held that the motel clerk gave the officer the key to Room 114 to evict the 

occupants under § 315.075(3). The court further held the eviction was lawful under Missouri law 

because the clerk had a reasonable belief that the occupants of Room 114 were using motel 

premises for an unlawful purpose. Specifically, the officer told the clerk that the occupants of 

Room 114 had kept a stolen car in the motel parking lot, and that the woman who had exited 

Room 114 had been arrested for this offense. Consequently, the court concluded that the officers’ 

entry into Room 114 was for the lawful purpose of effecting People’s eviction; therefore, the 

evidence observed during this initial entry provided a valid basis for the subsequent search 

warrant. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/16-2044/16-2044-

2017-04-24.pdf?ts=1493047848

*****