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January 2021

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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 written by 

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

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2

The Informer – January 2021

Case Summaries

United States Supreme Court

Tanzin v. Tanvir: Whether three Muslim men who claimed they were put on the “No

Fly” list after they refused to become FBI informants could sue the FBI agents who put 

them there for money damages under The Religious Freedom Restoration Act of 1993 (RFRA).....5

Circuit Courts of Appeals

First Circuit

Project Veritas Action Fund v. Rollins: Whether Mass. Gen. Laws ch. 272, § 99 violated

the First Amendment by prohibiting the secret, nonconsensual audio recording of police 

officers discharging their duties in public spaces..............................................................................6

Fourth Circuit

United States v. Ka: Whether the Self-Incrimination Clause of the Fifth Amendment 

prohibits the use of compelled, self-incriminating statements in supervised release revocation

hearings held under 18 U.S.C. § 3583(e)..........................................................................................7

United States v. Brinkley: Whether police officers established a reason to believe the

defendant lived in a particular apartment and that he would be present when the officers 

entered the apartment with a warrant for his arrest............................................................................8

Sixth Circuit

United States v. Clancy: Whether the warrantless seizure of the defendant’s clothing

from the trauma room at a hospital was lawful under the plain-view exception..............................11

Ninth Circuit

United States v. Ngumezi: Whether a police officer conducted an unlawful search by

opening the defendant’s car door and leaning inside the car, and if so, whether suppression

of the evidence seized from the car was the appropriate remedy.....................................................12

♦

FLETC Informer Webinar Schedule – February 2021

1. Lawyers as Leaders – Easier Said than Done (1 – 1.25 hours)

Presented by John Besselman, Senior Advisor for Training, Office of Chief Counsel, and 

Ken Anderson, Attorney-Advisor/Senior Instructor, Federal Law Enforcement Training 

Centers, Glynco, GA. 

In this webinar, we will examine the challenges confronting aspiring lawyers seeking to 

develop leadership skills. The first half of the webinar will cover core concepts of 

leadership; the second half will compare the “legal personality traits” to leadership 

expectations and models.
3

Thursday, February 11, 2021: 1:30 p.m. Eastern/12:30 p.m. Central/11:30 a.m.

Mountain/10:30 a.m. Pacific

To participate in this webinar: https://share.dhs.gov/lawyersasleaders/

♦

2. Understanding the Administrative Search (1-hour)

Presented by John Besselman, Senior Advisor for Training, Office of Chief Counsel, and 

Ken Anderson, Attorney-Advisor/Senior Instructor, Federal Law Enforcement Training 

Centers, Glynco, GA. 

The unique government authority to conduct administrative searches/inspections and its 

limitations is, at times, misunderstood. This webinar will explain how, why, and when an 

agency has the ability to conduct an administrative search. All are welcome to attend; it 

is highly recommended for those agencies that possess an inspection authority.

Thursday, February 18, 2021: 1:30 p.m. Eastern/12:30 p.m. Central/11:30 a.m.

Mountain/10:30 a.m. Pacific

To participate in this webinar: https://share.dhs.gov/inspections/

♦

3. Facial Recognition Technology and Legal Considerations (1-hour)

Presented by Arie Schaap, Attorney-Advisor/Senior Instructor, Federal Law Enforcement 

Training Centers, Artesia, NM.

This webinar will explore facial recognition technology used by law enforcement to 

enhance surveillance capabilities and the associated constitutional legal issues it raises.

Thursday, February 25, 2021: 3 p.m. Eastern/2 p.m. Central/1 p.m. Mountain/

12 p.m. Pacific

To participate in this webinar: http://share.dhs.gov/informer

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

♦
4

FLETC Office of Chief Counsel Podcast Series

1. Fundamentals of the Fourth Amendment – A 15-part podcast 

series that covers the following Fourth Amendment topics: 

2. Fifth and Sixth Amendment Series – A 10-Part podcast series that 

covers the following Fifth and Sixth Amendment topics:

Click Here: https://leolaw.podbean.com/

♦

• A Flash History of the Fourth Amendment

• What is a Fourth Amendment Search?

• What is a Fourth Amendment Seizure?

• Fourth Amendment Levels of Suspicion

• Stops and Arrests

• Plain View Seizures

• Mobile Conveyance (Part 1 and Part 2)

• Exigent Circumstances

• Frisks

• Searches Incident to Arrest (SIA)

• Consent (Part 1 and Part 2)

• Inventories

• Inspection Authorities

• What’s In the Fifth Amendment?

• Right Against Self-Incrimination 

• Kalkines/Garrity

• Miranda – The case

• Miranda – Custody 

• Miranda – Interrogation

• Miranda – Waiver

• Miranda – Invocation of Rights

• Miranda – Grab Bag of Issues

• Sixth Amendment – Right to Counsel
5

 CASE SUMMARIES 

United States Supreme Court

Tanzin v. Tanvir, 2020 U.S. LEXIS 5987; 2020 WL 7250100 (Dec. 10, 2020) 

Three practicing Muslim men (plaintiffs) sued various federal agents (defendants) in their official 

capacities claiming that Federal Bureau of Investigation (FBI) agents placed them on the “No Fly 

List” in retaliation for their refusal to act as informants against their religious communities. The 

plaintiffs also sued the agents in their individual capacities seeking monetary damages under the 

First Amendment and The Religious Freedom Restoration Act of 1993 (RFRA). According to 

the plaintiffs, being placed on the “No Fly List” cost them substantial sums of money in the form 

of airline tickets wasted and job opportunities lost. 

More than a year after the plaintiffs sued, they received letters from the Department of Homeland 

Security informing them that “the government knows of no reason why they would be unable to 

fly,” thereby rendering their cause of action against the agents in their official capacities moot. 

Afterward, the district court dismissed the plaintiffs’ claims against the agents in their individual

capacities for money damages. The district court dismissed the plaintiffs’ First Amendment 

retaliation claims, stating that the Supreme Court and the Second Circuit Court of Appeals have 

“declined to extend [lawsuits against federal agents under] Bivens to a claim[s] arising [under] 

the First Amendment.” The district court then dismissed the plaintiffs’ claims under RFRA, ruling 

that RFRA did not permit the recovery of money damages from federal officers in their individual

capacities. 

On appeal, the plaintiffs’ sole challenge was the district court’s ruling that RFRA did not permit 

the recovery of damages from federal officers sued in their individual capacities. The Second 

Circuit Court of Appeals agreed with the plaintiffs and reversed the district court. The court 

determined that RFRA’s express remedies provision, combined with the statutory definition of 

“Government,” authorized claims against federal officials in their individual capacities. 

For the Second Circuit’s opinion: https://cases.justia.com/federal/appellate-courts/ca2/16-

1176/16-1176-2019-02-14.pdf?ts=1550160007

After the ruling by the Second Circuit Court of Appeals, the defendants filed a writ of certiorari, 

which was granted by the Supreme Court. The issue before the court was whether RFRA permits 

lawsuits seeking money damages against individual federal employees.

In an 8-0 opinion authored by Justice Thomas, the Supreme Court affirmed the ruling by the 

Second Circuit Court of Appeals. Under RFRA, specifically 42 U.S.C. §2000bb-1(c), a person 

whose exercise of religion has been unlawfully burdened may “obtain appropriate relief against a 

government.” The Court found that in 42 U.S.C. §2000bb-2(1) “government” is broadly defined 

to include “a branch, department, agency, instrumentality, and official (or other person acting 

under color of law) of the United States. The Court recognized that Congress replaced the ordinary 

meaning of “government” to include officials acting under the color of law. The Court added that 

the phrase “persons acting under the color of law” has historically permitted lawsuits against 

government officials in their individual capacities. As a result, the Court held that a lawsuit 

against an official in his personal capacity is a suit against a person acting under color of law. 
6

Therefore, the Court reasoned that a lawsuit against a person acting under color of law is a suit 

against a “government” as defined under RFRA. §2000bb-1(c). 

Next, the Court held that money damages are an “appropriate relief” when a plaintiff sues a 

government official in his individual capacity under RFRA. The Court found that in lawsuits 

against government officials, monetary damages “have long been awarded as appropriate relief.” 

The Court added that had Congress wished to limit the remedy available to plaintiffs under RFRA 

it could have done so. 

Justice Barrett took no part in the consideration or the decision of the case, which was argued 

before she was confirmed to the Court.

For the Court’s opinion: https://www.supremecourt.gov/opinions/20pdf/19-71_qol1.pdf

*****

Circuit Courts of Appeals

First Circuit

Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020)

This case consolidated two lawsuits, one filed by two Boston civil rights activists, K. Eric Martin 

and René Pérez (the plaintiffs), and the other filed by Project Veritas Action Fund, a national 

media organization dedicated to “undercover investigative journalism.” This case summary is 

limited to the court’s holding concerning the Martin plaintiffs’ lawsuit, as it directly relates to and 

affects law enforcement officers. 

Massachusetts General Law, Chapter 272, Section 99, enacted in 1968, makes it a crime for a 

person to, among other things, intercept any wire or oral communication made by another person. 

The term “interception” is defined in relevant part as follows: 

“to secretly hear, secretly record, or aid another to secretly hear or secretly record 

the contents of any wire or oral communication through the use of any intercepting 

device by any person other than a person given prior authority by all parties to such 

communication.”

In Commonwealth v. Jackson, decided in 1976, the Supreme Judicial Court of Massachusetts 

(SJC) held that a non-consensual audio recording is made “secretly,” and therefore in violation of 

Section 99, if the person recorded does not have “actual knowledge of the recording.” In 2001, 

in Commonwealth v. Hyde, the defendant was charged with violating Section 99 for having 

recorded the audio of his encounter with police, without the officer’s knowledge, during a traffic 

stop. The defendant filed a motion to dismiss the criminal complaint against him on the ground 

that Section 99 did not apply to the recordings of “police officers . . . performing their official 

police duties.” The SJC affirmed the denial of the defendant’s motion by explaining that Section 

99 “is carefully worded and unambiguous and lists no exception for a private individual who 

secretly records the oral communications of public officials.” 

In 2016, the plaintiffs filed a lawsuit against the Commissioner of the Boston Police Department 

and the District Attorney for Suffolk County (the defendants) in their official capacities. In their
7

lawsuit, the plaintiffs claimed to be civil rights activists who have regularly and openly recorded 

the audio of police officers without their consent as the officers discharge their official duties in 

public. The plaintiffs added that they would like to undertake the same type of recordings secretly 

but feared that doing would expose them to criminal prosecution under Section 99. Based on 

these allegations, the plaintiffs claimed that Section 99, “as applied to secretly recording police 

officers engaged in their official duties in public places, violates the First Amendment by causing 

Plaintiffs to refrain from constitutionally protected information gathering” and from 

“encouraging, or aiding other individuals to secretly record police conduct in public.” The district 

court held that Section 99 violated the First Amendment insofar as it barred the secret recording 

“of government officials, including law enforcement officers, performing their duties in public 

spaces.” 

On appeal, the First Circuit Court of Appeals affirmed the district court’s holding in favor of the 

plaintiffs. The court concluded that Section 99’s outright ban on secretly recording police officers 

discharging their official duties in public spaces violated the First Amendment because “it is not 

narrowly tailored to further the government’s important interest in preventing interference with 

police doing their jobs and thereby protecting the public.” The court found that that the defendants 

presented little evidence to show how secret, nonconsensual audio recording of police officers 

doing their jobs in public interfered with their mission. Instead, the court stated that “Section 99 

broadly prohibits such recording, notwithstanding the myriad circumstances in which it may play 

a critical role in informing the public about how the police are conducting themselves, whether 

by documenting their heroism, dispelling claims of their misconduct, or facilitating the public's 

ability to hold them to account for their wrongdoing.”

For the court’s opinion: https://law.justia.com/cases/federal/appellate-courts/ca1/19-1586/19-

1586-2020-12-15.html

*****

Fourth Circuit

United States v. Ka, 982 F.3d 219 (4th Cir. 2020) 

In 2011, Daniel Ka was convicted of possessing a firearm during, and in relation to, a drug 

trafficking crime. The district court sentenced Ka to five years of imprisonment followed by five 

years of supervised release which he began serving in June of 2016. The conditions of Ka’s 

supervised release required him, among other things, to refrain from committing any new crime 

or using controlled substances and to “answer truthfully all inquiries by [his] probation officer 

and [to] follow the instructions of [his] probation officer.”

In May 2017, after Ka tested positive for drug use on two occasions, his probation officer, Chelsey 

Padilla, and her partner went to Ka’s house to discuss his drug use. During their conversation, Ka 

told the officers that he was short on cash and that he had been helping friends sell drugs to make 

money. Officer Padilla reviewed text messages on Ka's phone, finding photos of marijuana and 

text messages related to drug sales. Afterward, Ka signed a statement prepared by Officer Padilla, 

in which Ka admitted to selling marijuana and cocaine. 

Officer Padilla subsequently petitioned the district court to revoke’s Ka’s term of supervised 

release pursuant to 18 U.S.C. § 3583(e) claiming that Ka had violated the condition of his 

supervision prohibiting him from breaking the law. In response, Ka filed a motion to suppress all 

statements he had made to Officer Padilla concerning his possession and sale of drugs on the 
8

grounds that the use of these statements violated his Fifth Amendment privilege against selfincrimination.

The district court denied Ka’s motion. Relying in part on Ka’s statements to Officer Padilla, the 

district court sentenced Ka to thirty months of imprisonment and an additional term of twentyfour months of supervised release for violating the conditions of his supervision. On appeal, Ka 

argued that the district court violated his Fifth Amendment right against self-incrimination by 

considering his statements to Officer Padilla.

The Fourth Circuit Court of Appeals disagreed. The Self-Incrimination Clause of the Fifth 

Amendment provides that “no person shall be compelled in a criminal case to be a witness against 

himself.” In United States v. Riley, decided in April 2019, the Fourth Circuit explained that the 

Self-Incrimination Clause is violated “only if [the self-incriminating] statements are used in a 

criminal trial.” In Riley, the court concluded that supervised release revocation proceedings 

pursuant to 18 U.S.C. § 3583(e) “are not part of the underlying criminal prosecution.” As a result, 

the court held that the introduction of compelled self-incriminating statements in supervised 

release proceedings pursuant to § 3583(e) does not violate a defendant’s rights under the SelfIncrimination Clause. Because of its previous holding in Riley, which remains valid law, the court 

affirmed the district court’s denial of Ka’s motion to suppress. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca4/18-4913/18-4913-

2020-12-02.pdf?ts=1606937426

*****

United States v. Brinkley, 980 F.3d 377 (4th Cir. 2020) 

In February 2017, a federal-state task force in Charlotte, North Carolina sought to execute 

outstanding arrest warrants. Among the targets was Kendrick Brinkley, who had an outstanding 

arrest warrant for unlawfully possessing a firearm as a convicted felon. Bureau of Alcohol, 

Tobacco, and Firearms (ATF) Special Agent Jason Murphy oversaw the operation. An ATF 

analyst provided Agent Murphy with at least two possible addresses. Because a water bill for one 

of these addresses was in Brinkley’s name, Agent Murphy initially believed that address was 

Brinkley's most likely residence. One of the other addresses that the analyst provided was an 

apartment on Stoney Trace Drive.

In the meantime, Charlotte-Mecklenburg Police Department Detective Robert Stark, a member of 

Agent Murphy’s task force, also tried to locate Brinkley. Detective Stark searched for Brinkley 

on CJLEADS, a North Carolina statewide law enforcement database. Detective Stark found 

multiple addresses in the database linked to Brinkley. Two CJLEADS entries entered in January 

2017 were associated with the Stoney Trace apartment. However, other CJLEADS entries placed 

Brinkley at numerous other addresses. 

Afterward, Detective Stark found Brinkley’s public Facebook page. Posts and photos there led 

him to believe that Brinkley was dating Brittany Chisholm. Detective Stark searched for Chisholm 

on CJLEADS and found that she was also associated with the Stoney Trace apartment. Based on 

this information, Detective Stark concluded that Brinkley lived there with Chisholm. 

Detective Stark reported his conclusion to Agent Murphy, who came to agree that Brinkley 

probably resided in the Stoney Trace apartment. However, neither officer was certain that they 
9

had located Brinkley’s address. Instead, in Agent Murphy's experience, it was “common for 

someone like Mr. Brinkley . . . to have more than one place where they will stay the night.”

The next day, Agent Murphy, Detective Stark, and three other police officers went to the Stoney 

Trace apartment at 8:30 a.m. to conduct what both Agent Murphy and Detective Stark 

characterized as a “knock-and-talk” to “start [their] search for Mr. Brinkley.” Agent Murphy 

acknowledged that he “had no idea if [Brinkley] was going to be there that morning,” but thought 

the Stoney Trace apartment was the “most likely address” to “find Mr. Brinkley or evidence of 

his whereabouts.”

Detective Stark knocked on the front door, and Brittany Chisholm opened it. Detective Stark told 

Chisholm the officers were looking for Brinkley and asked to enter the apartment. Chisholm 

denied that Brinkley was there. According to Detective Stark, Chisholm grew “very nervous”; 

her “body tensed” and her “breathing quickened,” and she looked back over her shoulder into the 

apartment. The officers saw another woman, later identified as Jermica Prigon, in the living room. 

The officers heard movement coming from a room in the back of the apartment, and both 

Chisholm and Prigon repeatedly looked back toward that area. Detective Stark again asked if 

Brinkley was present and if the officers could enter to look for him. He explained that the officers 

“had information that [Brinkley] was staying at this residence” and “asked for [Chisholm’s] 

permission . . . to come through and just do a walk through to make sure that he was indeed not 

at the residence.” Chisholm, still seeming nervous, answered that she did not want the police 

officers to enter her apartment and asked if they had a search warrant authorizing them to do so.

Based on Chisholm’s demeanor, Prigon’s presence, the movement they heard in the back of the 

apartment, and the morning hour (8:30 a.m.), the officers believed that Brinkley was inside. At 

this point, the officers decided not to follow the original plan to secure the area and wait to see if 

Brinkley left the home. Instead, Agent Murphy told Chisholm that he believed she was hiding 

Brinkley and that the officers were going to enter the apartment to serve an arrest warrant on him. 

The five officers entered the apartment, found Brinkley in a bedroom, and arrested him. 

Afterward, while conducting a protective sweep, the officers found digital scales, a plastic baggie 

containing cocaine base, and a bullet. The officers subsequently obtained a warrant to search the 

apartment and seized three firearms and magazines. The government charged Brinkley with 

several drug and firearm offenses based on the discovery of this evidence. 

Brinkley filed a motion to suppress the evidence the officers obtained after entering the Stoney 

Trace apartment, arguing that when the officers entered the apartment, they lacked reason to 

believe that he: (1) resided in the apartment or, (2) would be present there at that time. The district 

court disagreed and denied Brinkley’s motion. Brinkley appealed.

Generally, police officers must have a search warrant, consent, or an exception to the warrant 

requirement to enter a home. However, in Payton v. New York, the Supreme Court held that, in 

some circumstances, an arrest warrant can also allow officers to enter a home in order to 

apprehend a suspect. Specifically, the Court held that “an arrest warrant founded on probable 

cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives 

when there is reason to believe the suspect is within.” The circuit courts of appeals have 

unanimously interpreted Payton’s standard, “reason to believe the suspect is within,” to require a 

two prong test. First, officers must have reason to believe both: (1) that the location is the 

suspect’s residence, and (2) that the suspect will home when the officers enter. 
10

As an initial matter, the Fourth Circuit Court of Appeals recognized that the circuit courts of 

appeals were divided as to level of proof needed to satisfy the “reason to believe” standard set 

forth in Payton. The court found that some circuits construe “reason to believe” as less than 

probable cause while other circuits equate it to probable cause. In this case, the court agreed with 

the circuits that have found “reason to believe” equates to probable cause. Applying this 

requirement, the court concluded that before entering the Stoney Trace Apartment without a 

search warrant, the officers needed to have probable cause that Brinkley resided there and would 

be present when they entered. 

As to Payton’s first prong, the court found that the information known to the officers suggested 

that Brinkley may have stayed temporarily in several places. However, the court noted that the 

officers investigated only the Stoney Trace apartment. Under Payton, the officers needed to 

establish reason to believe not just that Brinkley was staying in the Stoney Trace apartment but 

that he resided there. Detective Stark’s discovery that Brinkley was involved with Chisholm, and 

that Chisholm was associated with the Stoney Trace apartment provided evidence that Brinkley 

might well have stayed in Chisholm’s home, but it did not speak to whether he did so as a resident 

or only as Chisholm’s overnight guest. 

After focusing on the Stoney Trace apartment, the officers did not investigate the address on the 

utility bill associated to Brinkley nor any of the numerous addresses found on CJLEADS, even 

those that were listed multiple times. The court stated that had the officers ruled out any of these 

alternatives, it could have bolstered their theory that Brinkley resided in the Stoney Trace 

apartment. Although the officers developed a well-founded suspicion that Brinkley might have 

stayed in the Stoney Trace apartment at times, the court held that that the officers failed to establish 

probable cause that Brinkley resided there. As a result, the court found that the officers’ entry 

into the apartment was unlawful. 

Next, the court added that even if the available information were enough to give the officers reason 

to believe that Brinkley resided in the Stoney Trace apartment, the officers did not satisfy Payton’s

second prong, as they failed to establish probable cause that Brinkley would be present in the 

home when they entered. First, the court noted that “a substantiated belief as to the suspect’s 

residence is especially important,” because if a person is known to live at a particular location, it 

is reasonable to expect him to be there. However, in this case, the officers had documented, 

multiple other possible primary residences for Brinkley and initially only went to the Stoney Trace 

apartment to gather more information. 

Second, the court found that the noises the officers heard in the apartment, and Chisholm and 

Prigon’s reactions to them, could have been made by anyone. The officers had no reason to 

believe that the noises came from Brinkley.

Finally, the court held that Chisholm’s nervousness was understandable under the circumstances, 

as she was confronted by five armed police officers who consistently pressed her to allow them 

to enter the apartment. The court concluded by stating that “when police have limited reason to 

believe a suspect resides in a home, generic signs of life inside and understandably nervous 

reactions of residents, without more, do not amount to probable cause that the suspect is present 

within.”

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca4/18-4455/18-4455-

2020-11-13.pdf?ts=1605297623

*****
11

Sixth Circuit

United States v. Clancy, 979 F.3d 1135 (6th Cir. 2020) 

Lamar Clancy and another man entered a Boost Mobile store in Memphis, Tennessee, and 

attempted to rob the store at gunpoint. However, the store manager and another employee grabbed 

their own guns and fired at Clancy and the other robber. When police responded, the store 

employees told officers that one of the robbers was wearing a white sweatshirt, red jogging pants 

with a white stripe, a black mask, black gloves, and had a silver handgun. 

Approximately fifteen minutes later, Clancy went to a nearby hospital suffering from a gunshot 

wound to the arm. After hospital workers rolled Clancy into a trauma room, they stripped off his 

clothes and piled them on the floor. In the meantime, officers at the Boost Mobile store learned 

that the hospital had just admitted a shooting victim. Two officers went to the hospital and walked 

into the emergency department where they found Clancy and saw his clothes on the floor, “out in 

the open” and visible from the hallway outside his room. The pile of clothes consisted of a white 

sweatshirt, red pants with a white stripe, red Nike sneakers, and a black ski mask. 

After an initial assessment, hospital staff airlifted Clancy to another hospital for treatment. After 

Clancy was gone, crime scene investigators arrived at the emergency department, went to the 

trauma room, and found Clancy’s bloodied clothing in a plastic bag. One of the investigators 

removed the clothes from the bag, then photographed each piece, and then put them in a paper 

bag. 

The government charged Clancy with two criminal offenses related to the attempted robbery of 

the Boost Mobile store. The district court denied Clancy’s motion to suppress the clothing 

evidence. Upon conviction, Clancy appealed the denial of his motion to suppress to the Sixth 

Circuit Court of Appeals.

Generally, under the Fourth Amendment, police officers must obtain a warrant before seizing a 

person’s private property. However, the plain-view seizure exception allows officers to seize 

evidence that an officer sees from a lawful vantage point if: 1) the “incriminating character” of 

the evidence is “immediately apparent” to the officer; and 2) the officer has “a lawful right to 

access to the object itself.”

In this case, the court held that seizure of Clancy’s bloodied clothing fell within the plain-view 

seizure exception. First, Clancy’s clothing was visible to those passing by his room and the 

officers who initially responded to the hospital saw the clothing from a common area outside his 

room. The court found that the officers who viewed Clancy’s clothes from this vantage point did 

not violate Clancy’s Fourth Amendment rights by walking the hospital’s hallways as any other 

person might.

Next, the court held that the incriminating nature of Clancy’s clothes was immediately apparent 

to the officers. One of the robbers was described by witnesses as wearing a white sweatshirt, red 

jogging pants with a white stripe, and a black ski mask. The officer saw clothing matching this 

description, to include a black ski mask, a giveaway that Clancy was not merely a gunshot victim 

in the wrong place at the wrong time. 

Finally, the court held that the officers had lawful access to Clancy’s clothes. The “lawful access” 

requirement ensures that police officers do not conduct warrantless entries and trespass onto 
12

private property just because they see incriminating evidence located there. In this case, the court 

found that no trespass occurred in the hospital room, as Clancy had been airlifted to another 

hospital by the time the crime scene investigators seized his clothing from the trauma room. The 

court added that even if Clancy had a reasonable expectation of privacy in his hospital room while 

the being treated, this expectation of privacy would not continue after he left the hospital and 

hospital staff began preparing the room for new patients. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca6/19-6367/19-6367-

2020-11-12.pdf?ts=1605216615

*****

Ninth Circuit

United States v. Ngumezi, 980 F.3d 1285 (9th Cir. 2020) 

A San Francisco police officer, Kolby Willmes, saw Malik Nkomazi’s car parked at a gas station 

with Ngumezi in the driver’s seat. The car had no license plates, in apparent violation of section 

5200(a) of the California Vehicle Code. Officer Willmes approached the car to investigate. 

However, because a gas pump blocked access to the driver side, he went to the passenger side of 

the vehicle. Officer Willmes opened the passenger door, leaned into the car, and asked Ngumezi 

for his driver’s license and vehicle registration. Ngumezi produced a California identification 

card but not a driver’s license. When Officer Willmes asked Ngumezi if his license was 

suspended, Ngumezi admitted that it was. Another officer then ran a license check and confirmed 

that Ngumezi’s license was suspended and that Ngumezi had three prior citations for driving with 

a suspended license.

San Francisco Police Department policy requires officers to inventory and tow a vehicle when a 

driver lacks a valid license and has at least one prior citation for driving without a license. 

Consistent with that policy, the officers conducted an inventory of Ngumezi’s car and found a 

loaded .45 caliber handgun under the driver’s seat. The officers then ran a background check and 

learned that Ngumezi was prohibited from possessing firearms because of a previous felony 

conviction.

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

a motion to suppress the firearm as fruit of an unlawful search. The district court denied the 

motion and upon conviction, Ngumezi appealed. Ngumezi argued that even if Officer Willmes 

had reasonable suspicion to investigate a suspected license plate violation, opening the door and 

leaning into Ngumezi’s car was un unlawful search under the Fourth Amendment because it was 

not supported by an exception to the warrant requirement. Ngumezi claimed that the gun was the 

fruit of this unlawful search because if Officer Willmes had not leaned into his car, Ngumezi 

“might have been less intimidated” and could have directed Officer Willmes to the bill of sale 

affixed to the front, right-side windshield; thereby, dispelling any suspicion of a license plate 

violation and ending the encounter before Officer Willmes learned of his suspended license. 

First, the Ninth Circuit Court of Appeals noted that in New York v. Class, the Supreme Court held 

that a physical intrusion into the interior of a car constitutes a search under the Fourth Amendment. 

Although the search conducted by the officers in Class was found to be reasonable because of the 

officers’ need to find the car’s vehicle identification number (VIN) and its minimal intrusiveness, 

neither of those considerations was present in this case. The court added that the government 

pointed to no justification as to why opening Ngumezi’s car door and leaning inside the vehicle 
13

was reasonable. The government did not argue that Officer Willmes had probable cause, nor did 

it suggest that Officer Willmes had any reason to fear that Ngumezi might be dangerous. The 

court found that cases in which courts have upheld an entry into a car have involved some 

particularized justification, such as the need to ensure officer safety or to ensure that a passenger 

who would ultimately be operating a vehicle was not impaired. Finally, the court stated there 

were no prior cases upholding an entry into a vehicle in circumstances similar to this case. As a 

result, the court held that opening the car door and leaning into Ngumezi’s car constituted an 

unlawful search. 

Next, the court held that exclusion of the evidence seized from Ngumezi’s car was the appropriate 

remedy in this case. The court was skeptical of Ngumezi’s argument as to why the evidence 

should be suppressed because it involved a great deal of speculation. However, the government, 

which had the burden to establish that exclusion of the evidence was not an appropriate remedy, 

failed to make any effort do so. For example, the government did not argue that the attenuation 

doctrine applied, which would allow the evidence to avoid suppression by the showing the 

connection between the unlawful search by Officer Willmes and discovery of the handgun under 

the driver’s seat was remote. In addition, the court stated, “despite what would seem to be a 

plausible argument that the gun would have been discovered even without the constitutional 

violation, the government has not argued that the inevitable-discovery doctrine applies.” 

Consequently, the court reversed the district court’s denial of Ngumezi’s motion to suppress and 

vacated Ngumezi’s conviction.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca9/19-10243/19-

10243-2020-11-20.pdf?ts=1605895427

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