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November 2015

THE

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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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The Informer – November 2015

Case Summaries

 ♦

United States Supreme Court

Mullenix v. Luna: Whether an officer was entitled to qualified immunity after he 

shot and killed a suspect during a high-speed pursuit.................................................................4

Circuit Courts of Appeals

First Circuit

United States v. Peake: Whether agents exceeded the scope of a search warrant

when they searched the defendant’s electronic devices...............................................................5

United States v. White: Whether officers established probable cause to stop and 

search the defendant’s vehicle under the automobile exception to the warrant requirement......5

Fourth Circuit

Unites States v. Slocumb: Whether an officer established reasonable suspicion to

support a Terry stop of the defendant..........................................................................................6

United States v. Patiutka: Whether evidence seized from the defendant’s vehicle

was obtained during a valid search incident to arrest or alternatively, under the 

automobile exception to the warrant requirement.......................................................................7

Eighth Circuit

United States v. Ball: Whether evidence seized from inside the air filter box on

the defendant’s vehicle was within the scope of an inventory search.........................................8

Eleventh Circuit

Moore v. Pederson: Whether an officer was entitled to qualified immunity after he

conducted the equivalent of a Terry stop inside the plaintiff’s apartment without

a warrant or the plaintiff’s consent, and whether the plaintiff consented to the officer’s 

entry after he followed the officer’s instructions to turn around and be handcuffed...................9

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4

CASE SUMMARIES

United States Supreme Court

Mullenix v. Luna, 2015 U.S. LEXIS 7160 (U.S. Nov. 9, 2015)

At approximately 10:21 p.m., a police officer followed Leija to a fast food restaurant and 

attempted to arrest him on an outstanding misdemeanor arrest warrant. After some discussion 

with the officer, Leija fled in his vehicle with the officer in pursuit. A state trooper took the 

lead in the pursuit as Leija continued onto an interstate highway. Twice during the pursuit, 

Leija called the police dispatcher, claiming to have a gun and threatening to shoot at police 

officers if they did not abandon their pursuit. The dispatcher relayed Leija’s threats, along with 

a report that Leija might be intoxicated, to the officers. 

Approximately eighteen minutes into the pursuit, Leija approached an overpass where an 

officer had deployed a spike strip in the roadway. In addition, Trooper Mullenix positioned 

himself on top of the overpass with an M-4 rifle. Mullenix fired six rounds at Leija’s car, which 

then engaged the spike strip, hit the median and rolled over. Leija was pronounced dead at the 

scene. Leija’s cause of death was later determined to be one of the shots fired by Mullenix. 

Leija’s estate sued Mullenix, claiming Mullenix violated the Fourth Amendment by using 

excessive force to stop Leija. Mullenix argued his use of force was objectively reasonable 

because he acted to protect the officers involved in the pursuit, the officer below the overpass, 

and other motorists who might have been in the path of the pursuit. 

The Court of Appeals for the Fifth Circuit held Mullenix was not entitled to qualified immunity

because he violated the clearly established rule that a police officer may not “use deadly force 

against a fleeing felon who does not pose a sufficient threat of harm to the officer or others.” 

Mullenix appealed to the United States Supreme Court, 

Qualified immunity protects officers from civil liability as long as long as their conduct does 

not violate a clearly established right. In the context of excessive force cases involving vehicle

pursuits, the Supreme Court noted existing case law was not sufficiently clear to put Mullenix 

on notice that his actions violated Leija’s Fourth Amendment right to be free from an unlawful 

seizure. Instead, the Court stated it has never found the use of deadly force in connection with 

a dangerous car chase to be a violation of the Fourth Amendment, let alone the basis for denying 

an officer qualified immunity. In Scott v. Harris, the Court held an officer did not violate the 

Fourth Amendment by ramming a fleeing suspect whose reckless driving “posed an actual and 

imminent threat to the lives” of other motorists and the officers involved in the chase. In

Plumhoff v. Rickard, the Court reaffirmed Scott by holding that an officer acted reasonably 

when he fatally shot a fugitive who was “intent on resuming” a chase that “posed a deadly threat 

for others on the road.” In this case, while Leija did not pass as many cars as the drivers in 

Scott or Plumhoff during the pursuit, Leija verbally threatened to kill any officers in his path,

and he was about to come upon an officer as he approached the overpass. As a result, the Court 

reversed the Fifth Circuit’s determination that Mullenix was not entitled to qualified immunity. 

Click HERE for the court’s opinion.
5

*****

Circuit Courts of Appeal

First Circuit

United States v. Peake, 2015 U.S. App. LEXIS 17868 (1st Cir. P.R. Oct. 14, 2015)

Federal agents presented a magistrate judge with a draft search warrant for his consideration. 

After reviewing the warrant, the judge crossed out a paragraph under Attachment A, which 

described the “premises” to be searched. The stricken paragraph would have allowed the 

government to search “briefcases, laptop computers, hand-held computers, cell phones, 

Blackberries and other moveable document containers” found on the premises described in the 

warrant. However, the judge left standing in the warrant other references to electronically

stored documents and records. In addition, the judge added two handwritten provisions, which

stated that any seized computer equipment or electronic storage devices would be returned to 

the defendant within 30 days. 

The agents executed the warrant and seized Peake’s laptop computer and Blackberry. The 

agents imaged both items and returned the laptop and Blackberry to Peake on-site the same day. 

A subsequent search of the images copies of Peake’s laptop computer and Blackberry revealed 

information that was introduced at trial against Peake.

Peake argued the information collected from his laptop computer and Blackberry should have 

been suppressed because both items were outside the scope of the search warrant. Peake 

claimed when the judge struck the paragraph in Attachment A, the agents were specifically 

prohibited from searching and seizing any laptop computer or Blackberry devices they 

discovered.

The court disagreed. While the judge struck a paragraph from Attachment A, the court noted 

other intact passages in the warrant expressly demonstrated the judge approved searching for 

all documents and records stored in “an electronic or digital format.” Given that Peake’s 

personal electronic devices were on the premises to be searched, and the warrant specifically 

mentioned electronically-stored documents, the court concluded the agents acted within the 

scope of the warrant when they searched Peake’s devices. 

Click HERE for the court’s opinion.

*****

United States v. White, 2015 U.S. App. LEXIS 18149 (1st Cir. Me. Oct. 20, 2015)

A confidential informant (CI) made two controlled purchases of cocaine from White. On both 

occasions, White drove to a pre-arranged location where he met the CI, who made the controlled 

purchases inside White’s car. A few months later, the CI reported White was planning to restock 

his cocaine supply. Officers had the CI call White and order a “full” ounce of cocaine. White 

told the CI he would be leaving “pretty soon” and that he would bring the full amount of cocaine 

requested. Approximately ten minutes later, surveillance officers saw White exit his house, get 

into his car and drive away. After White drove a short distance, a police officer conducted a 

traffic stop. Another officer arrived a few minutes later and walked his drug-sniffing dog 
6

around White’s car. After the dog alerted, officers searched White’s car and found one pound 

of cocaine in the trunk and a gun in the driver’ side door pocket. Using information obtained 

from the traffic stop, officers obtained a warrant to search White’s house where they found 

additional drugs and a handgun. The government indicted White on drug and firearm offenses.

White argued the officers did not have probable cause to stop and search his vehicle; therefore, 

the evidence obtained from his car, and later his house, should have been suppressed. 

The court disagreed, holding the traffic stop and warrantless search of White’s car was lawful 

under the automobile exception to the Fourth Amendment’s warrant requirement. First, the 

officers corroborated information the CI had provided them concerning White, such as White’s 

home address and vehicle information. Second, on two occasions the officers worked with the 

CI to execute two controlled purchases of drugs from White, with both purchases taking place

in White’s car. Finally, on the day of the traffic stop, White agreed to sell the CI drugs and told 

the CI he was going to be leaving his house “pretty soon.” Within minutes, officers saw White 

come out of his house, get into his car and drive away. As a result, based on the totality of the 

circumstances, the court concluded, at the time of the traffic stop, officers had ample reason to 

believe White was en route to conduct a sale of cocaine, and that a search of his vehicle would 

yield evidence of drug dealing activity. 

Click HERE for the court’s opinion.

*****

Fourth Circuit

United States v. Slocumb, 2015 U.S. App. LEXIS 18343 (4th Cir. Va. Oct. 22, 2015)

Around midnight, an officer saw Slocumb, his girlfriend, Lewis, and an infant standing near 

two cars in the parking lot of a salvage business that had closed hours earlier. Slocumb told the 

officer Lewis’ car had broken down, and they were in the process of transferring a child car 

seat from one car to another car Slocumb had borrowed. The officer noticed Slocumb appeared 

to by hurrying Lewis, and he believed Slocumb was acting evasively, as Slocumb did not make 

eye contact and gave mumbled responses to the officer’ s questions. The officer told Slocumb 

and Lewis they were not allowed to leave, and eventually asked Slocumb for identification. 

Slocumb told the officer he did not have any identification; however, he told the officer his 

name was “Anthony Francis.” When Lewis told another officer that Slocumb’s name was 

“Hakeem,” the officer arrested Slocumb for providing a false name. Officers searched the car 

Slocumb had been driving and found methamphetamine and cocaine under the seat. The 

government indicted Slocumb for several drug offenses. 

Slocumb argued the officer did not have reasonable suspicion of criminal activity when he 

detained him; therefore, the evidence discovered in the car should have been suppressed. 

The court agreed. The court found the factors considered by the district court did not support 

a finding of reasonable suspicion to believe Slocum was involved in criminal activity. The 

court recognized the lateness of the hour and the fact the business had been closed for many 

hours were relevant; however; when considered along with Slocumb’s behavior, concluded 

these facts did not establish reasonable suspicion. Here, Slocumb’s actions, such as hurrying 

Lewis to finish the transfer of the car seat, keeping his head turned and avoiding eye contact, 

and giving low, mumbled responses, did not establish reasonable suspicion. In addition, 
7

Slocumb did not attempt to evade the officers; instead, Slocumb acknowledged them and was 

not noticeably nervous. Any suspicion the officer might have had when he first approached 

Slocumb was dispelled when Slocumb gave answers consistent with his actions. The court 

noted, at that point, there was no more reason to suspect that Slocumb was engaged in criminal 

activity than there was to believe his story as to what he and Lewis were doing.

In conclusion, the court cautioned the government “must do more than simply label behavior 

as ‘suspicious’ to make it so.” Instead, the government must be able to “articulate why a 

particular behavior is suspicious” or logically demonstrate why the behavior is likely to be 

indicative of criminal activity that it might initially appear. 

Click HERE for the court’s opinion.

*****

United States v. Patiutka, 2015 U.S. App. LEXIS 18464 (4th Cir. Va. Oct. 23, 2015)

A state trooper stopped Patiutka for failing to maintain his lane and suspected tint violations. 

The trooper approached the car and asked the driver, Patiutka, for his license. After Patiutka 

gave the trooper his license, the trooper asked Patiutka for his name and date of birth. Patiutka 

gave the trooper a date that differed by eight years from the date on driver’s license. Although 

the trooper believed Patiutka was lying to him about his identity, which the trooper understood 

to be an arrestable offense, he did not ask any follow-up questions concerning Patiutka’s 

suspected lie. Instead, the trooper ran the information provided by Patiutka through police 

databases and, after receiving no results, returned Patiutka’s license, gave him a verbal warning, 

and told Patiutka that he was “free to go.” As Patiutka began to walk back to his car, the trooper 

asked him if he would answer some questions. The trooper then asked for and received consent 

to search Patiutka’s car. Several other officers who had arrived on scene began to search 

Patiutka’s car. During their search, the officers found a credit card reader, and four new, 

unopened iPads inside a suitcase. At this point, Patiutka revoked his consent, and the officers 

stopped searching for a moment. The trooper then handcuffed Patiutka and took him back to 

his patrol car. The other officers resumed their search of Patiutka’s car and found a credit card 

embosser, a credit card re-encoder and numerous blank credit cards. At the conclusion of the 

search, Patiutka was transported to the police station. Several months later, the government 

charged Patiutka with access device fraud and aggravated identity theft. 

After the district court suppressed the evidence seized from Patiutka’s car, the government 

appealed. 

First, the government argued the evidence was seized incident to a lawful arrest. Specifically, 

the government claimed the trooper had probable cause to arrest Patiutka for the state offense 

of providing false identity. 

The court disagreed. A search incident to arrest may occur prior to an arrest, and still be incident 

to that arrest. However, officers must have probable cause to arrest before beginning their 

search. Here, the court agreed with the district court, which concluded the trooper did not have 

probable cause to arrest Patiutka for providing a false identity when Patiutka revoked his 

consent to search. First, the video of the traffic stop showed the trooper did not ask Patiutka 

any follow-up questions regarding Patiutka’s suspected lie as to his birthdate. Instead, the 

trooper handed the license back to Patiutka and told him he was “free to go.” Second, the video 

showed that after the trooper obtained Patiutka’s consent to search, he immediately stopped the 
8

search after Patiutka revoked his consent. The court found this suggested the only basis for the 

search of Patiutka’s car was consent, and that it was not incident to arrest. 

Second, the government argued the warrantless search of Patiutka’s car was valid under the 

automobile exception to the warrant requirement. 

Again, the court disagreed. Officers do not need a warrant to search an automobile if they have 

probable cause to believe it contains evidence of criminal activity. When the officers continued 

to search Patiutka’s car after Patiutka revoked consent, the officers had already found a credit 

card reader and four new iPads. While the officers found the combination of these items and 

their locations in the car suspicious, they were items that Patiutka could legally possess. The 

court acknowledged the facts known to the officers would likely have established reasonable 

suspicion to detain Patiutka and investigate further. If the officers had questioned Patiutka 

further about these items, they might have been able to establish probable cause to support a 

further search of Patiutka’s car. However, the trooper did not speak with Patiutka before placing 

him in handcuffs, nor did any of the other officers before resuming their search. Because the 

automobile exception requires probable cause, not just reasonable suspicion, the court held the 

exception did not apply here. 

Click HERE for the court’s opinion.

*****

Eighth Circuit

United States v. Ball, 2015 U.S. App. LEXIS 18817 (8th Cir. Iowa Oct. 29, 2015)

A state police officer impounded the car in which Ball had been a passenger, and conducted an 

inventory search.1

 Department policy restricted inventory searches to those areas where an 

owner or operator would ordinarily place or store property or equipment, including the trunk

and engine compartments. When the officer opened the hood of the car, he saw fresh 

fingerprints on the air filter box. The officer opened the cover of the box and found two 

packages of cocaine. The government indicted Ball, who was already the target of an unrelated 

investigation, on a variety of drug charges. 

Ball filed a motion to suppress the drugs, arguing that opening the air filter box went beyond 

the scope of an inventory search, as the air filter box was not an area where an owner or operator 

would ordinarily place or store property or equipment.” 

The court disagreed. First, the state police inventory policy explicitly states that one area in the 

vehicle that should be searched is the engine compartment. Second, the court noted it has 

previously held that as part of an inventory search, it is reasonable to search the engine 

compartment. Third, the officer testified that he had conducted over one-thousand inventory 

searches of vehicles, that he always searches the engine compartment and that at least 90% of 

the time he also checks the air filter box for property where he has previously found narcotics 

and currency. Finally, opening the cover of the air filter box in Ball’s car only required him to 

unsnap two small tabs, not to remove any screws or panels. 

 1 The court assumed with deciding that Ball had a sufficient expectation of privacy in the car to assert a Fourth 

Amendment claim regarding the inventory search.
9

Click HERE for the court’s opinion.

*****

Eleventh Circuit

Moore v. Pederson, 2015 U.S. App. LEXIS 17894 (11th Cir. Fla. Oct. 15, 2015)

Deputy Pederson was dispatched to an apartment complex after a resident reported that a man 

and two women had been arguing in the parking lot. When Pederson arrived, the resident told 

him the man and one of the women had gone into Moore’s apartment. As Pederson approached 

the apartment he heard what sounded like an argument and loud music coming from inside. 

Pederson knocked on the door, and when Moore opened the door, he was wearing a towel 

wrapped at the waist. Pederson saw two women inside the apartment, and while neither asked 

for assistance, one of the women appeared visibly upset. Not knowing if a domestic violence 

situation existed, Pederson began to interview Moore to determine Moore’s involvement in the 

parking lot dispute. Moore stated he knew nothing about the earlier dispute and when Pederson 

requested Moore’s name and identification, Moore refused to provide them. After Moore’s 

multiple refusals to provide identification, Pederson took out his handcuffs and directed Moore, 

who was standing inside the doorway of the apartment, to turn around and put his hands behind 

his back. Moore complied. Pederson then reached into the apartment, handcuffed Moore and 

arrested him for resisting a police officer without violence. The charges against Moore were 

eventually dismissed.

Moore sued, claiming Pederson violated the Fourth Amendment by entering his apartment 

without a warrant and arresting him without probable cause based solely on his refusal to 

provide Pederson his name and identification. 

Pederson argued he established probable cause to arrest Moore for resisting an officer after 

Moore refused to identify himself during a lawful Terry stop. Pederson further argued exigent 

circumstances allowed him to enter Moore’s apartment without a warrant to effect the arrest. 

Alternatively, Pederson argued Moore impliedly consented to his entry into the apartment when 

Moore turned around and put his hands behind his back so Pederson could arrest him.

The court held that unless exigent circumstances exist, the government may not conduct the 

equivalent of a Terry stop inside a person’s home. Here, the court concluded that exigent 

circumstances did not exist. The court found even if Pederson had reasonable suspicion to 

investigate the parking lot dispute when he approached Moore’s door, that reasonable suspicion 

never developed into probable cause during his encounter with Moore. First, before knocking 

on Moore’s door, all Pederson knew was that a neighbor had complained of a non-violent 

argument in the parking lot and Pederson heard what he believed was arguing and music coming 

from inside the apartment. Second, when Moore opened the door, nothing Pederson saw 

established that anyone’s life or health was at risk, as no one appeared to be injured. Third, 

Pederson did not see any furniture or other items strewn around. Finally, Pederson did not 

identify any behavior or conduct that suggested any of the apartment’s occupants contemplated 

violence in any way. Because Pederson was not conducting a lawful Terry stop while Moore 

remained inside his apartment, Moore was free to refuse Pederson’s requests to identify himself. 

As a result, Pederson could not have probable cause to arrest Moore for resisting or obstructing 

an officer.
10

The court further held that a person does not consent to entry into his home by an officer 

standing outside by following an officer’s instructions to turn around and be handcuffed, while 

the person remains inside his home. Consequently, the court concluded Pederson violated 

Moore’s Fourth Amendment right to be from unreasonable seizures.

Although Pederson violated Moore’s Fourth Amendment rights, the court determined Pederson 

was entitled to qualified immunity because at the time of the incident the law was not clearly 

established that a Terry-like stop could not be conducted in a home without exigent 

circumstances. 

The court further held at the time of the incident the law was not clearly established that an 

officer could not conduct a warrantless arrest without both probable cause and either exigent 

circumstances or consent. Consequently, Pederson the court concluded Pederson was entitled 

to qualified immunity regarding Moore’s arrest. 

Click HERE for the court’s opinion.

*****