Department of Homeland Security

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Legal Training Division 

July 2013

THE

FEDERAL LAW ENFORCEMENT

-INFORMER- A MONTHLY LEGAL RESOURCE AND COMMENTARY FOR LAW 

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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 Center’s 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 

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This edition of The Informer may be cited as 7 INFORMER 13.
In This Issue 

Case Summaries

Circuit Courts of Appeals

 Click Here

2nd Circuit 5th Circuit 6th Circuit

7th Circuit 8th Circuit 9th Circuit

11th Circuit District of Columbia Circuit

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Free FLETC Informer Webinar Series Schedule

July / August 2013

1. The Law on the Use of Drones in the United States

1-hour webinar presented by Bob Cauthen and David Gratz, FLETC Legal Division

Date and Time: Wednesday July 31, 2013: 2:30 pm EDST Click HERE to participate.

2. Canines, Cops, and Curtilage – Using Police Dogs After Florida v. Jardines

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 Wednesday August 21, 2013: 10:30 am EDST Click HERE to participate.

3. Government Workplace Searches: A review of the law that controls the government's 

ability to intrude into its employees' workspaces.

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

Date and Time: Wednesday August 7, 2013: 1:30 pm EDST Click HERE to participate.

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of the important case holdings of Kalkines and Garrity.

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

Date and Time: Wednesday August 14, 2013: 8:30 am EDST Click HERE to participate.

5. United States Supreme Court Wrap-Up: A review of seven cases decided by the USSC 

in the October 2012 Term that affect law enforcement officers.

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

Dates and Times: Friday August 16, 2013: 1:30 pm EDST Click HERE to participate.
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6. The Circuit Split in Using Deadly Force to Control Suicidal People: 

1-hour webinar presented by Tim Miller, FLETC Legal Division

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7. Freedom of Speech in the Government Workplace

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5

CASE SUMMARIES

Circuit Courts of Appeals

2nd Circuit

United States v. Lee, 2013 U.S. App. LEXIS 11496 (2nd Cir. N.Y. June 7, 2013)

Law enforcement officers in Jamaica investigated a marijuana trafficking organization that 

included Lee. After Jamaican police intercepted wire communications on several telephones in 

Jamaica, they notified the DEA, pursuant to a Memorandum of Understanding (MOU) that 

existed between the two countries concerning the investigation of drug trafficking organizations. 

Although Lee was not the target of the Jamaican investigation, he was heard speaking about drug 

shipments on some of the wiretaps. These conversations were presented to a federal grand jury 

in the United States that indicted Lee. 

At trial, Lee sought to suppress the Jamaican government’s recordings of the intercepted 

conversations.

Generally, suppression of evidence is not required when foreign law enforcement officials obtain 

the evidence at issue. However, evidence obtained by a foreign law enforcement agency may be 

suppressed where the conduct of foreign law enforcement officials rendered them “virtual 

agents” of United States law enforcement officials. Lee claimed the close, ongoing and 

formalized collaboration between the Jamaican police and the DEA rendered the Jamaican police 

“virtual agents” of the DEA. 

The court disagreed. Even though the United States and Jamaica agreed on several measures 

designed to facilitate collaboration and cooperation in drug trafficking investigations, the 

Jamaican investigation of Lee was an independent undertaking by a foreign sovereign. First, the 

Jamaican police initiated their investigation into the marijuana trafficking organization before the 

DEA began its investigation. Second, the Jamaican police did not ask the DEA for its assistance

or seek the DEA’s approval before conducting their electronic surveillance. Third, DEA agents 

were not involved in the interception or translation of the conversations at issue. Finally, the 

DEA did not make a formal request that Jamaican police conduct surveillance on Lee or any 

other members of the marijuana trafficking organization. 

Click HERE for the court’s opinion.

*****

5th Circuit

United States v. Hernandez-Mandujano, 2013 U.S. App. LEXIS 13258 (5th Cir. La. June 

27, 2013)

Border Patrol agents stopped Hernandez as he was driving on Interstate 10, approximately 450 

miles from the nearest United States-Mexico border crossing. The agents believed Hernandez 

was transporting illegal aliens because he was driving an SUV; had both hands on the steering 

wheel, and he was not exhibiting the relaxed nature of most drivers. In addition, Hernandez’s 
6

speed dropped from 70 miles per hour to 60 miles per hours as the agents followed him, and 

when the agents pulled alongside Hernandez, he stopped talking to the person in the passenger’s 

seat. The agents learned the car was registered to a woman; however, it had not been reported 

stolen, had no outstanding warrants or criminal activity associated with it, and had not recently 

crossed the border. 

During the stop, Hernandez told the agents he was a Mexican national in the United States 

illegally. The government indicted Hernandez for reentry without permission by an alien 

deported after conviction for an aggravated felony, in violation of 18 U.S.C. § 1326(a) and 

(b)(2).

Hernandez moved to suppress his statements to the agents, arguing the stop could not be 

considered an extended border search and the agents lacked reasonable suspicion to conduct a 

Terry stop. 

The district court agreed the stop was not an extended border search, but held the agents had 

reasonable suspicion of illegal activity to support a Terry stop. 

The court of appeals held the agents did not have reasonable suspicion to stop Hernandez. First, 

the stop occurred 450 miles from the nearest border crossing and there was no reason to believe 

Hernandez had come from the border. Second, Hernandez’s driving posture speed change and 

the fact the SUV was registered to a woman was not indicative of criminal activity. Third, the 

SUV had not been reported stolen, had no outstanding warrants or criminal activity associated 

with it, and had not recently been documented as crossing the border. Finally, the agents could 

not identify anything about the SUV that rendered it more likely than other SUVs to be 

transporting illegal aliens. 

Even though the agents violated the Fourth Amendment in stopping Hernandez, the court still 

denied Hernandez’s motion to suppress. The court noted previous Fifth Circuit case law held an 

alien’s INS file and identity are not subject to suppression when law enforcement officers learn 

of a deported alien’s unlawful reentry after an allegedly unconstitutional stop. 

Click HERE for the court’s opinion.

*****

6th Circuit

United States v. Figuerdo-Diaz, 2013 U.S. App. LEXIS 11231 (6th Cir. Tenn. June 5, 2013)

Federal agents suspecting Rivas was trafficking drugs followed him to a restaurant parking lot. 

The agents saw Rivas climb into the driver’s seat of a tractor-trailer. The agents saw Diaz in the 

passenger seat of the tractor-trailer. The agents confirmed the tractor-trailer was registered to 

Rivas. After a few minutes, Rivas got out of the tractor-trailer and got into a car driven by Loya. 

Diaz followed Loya and Rivas in the tractor-trailer. 

The agents followed Loya, Rivas and Diaz to a warehouse and approached the men to conduct a 

Terry stop. Rivas ran from the officers, but was apprehended after a brief foot chase, while Loya 

and Diaz were detained without incident. 
7

The agents walked a drug dog around the tractor-trailer and the dog gave a positive alert. The 

agents searched and found over two-thousand pounds of marijuana hidden in the trailer’s 

undercarriage. The agents arrested Rivas, Diaz and Loya. 

All three men moved to suppress the marijuana recovered from the trailer, claiming it was seized 

as a result of their unlawful detention.

The district court suppressed the evidence as to Loya and Diaz, but declined to suppress the 

evidence as to Rivas. The district court found the agents had reasonable suspicion to detain 

Rivas, but did not have reasonable suspicion to detain Diaz and Loya. The government appealed 

the suppression order regarding Diaz and Loya.

The court of appeals reversed the district court and held the marijuana should not have been 

suppressed as to Diaz and Loya. The exclusionary rule prohibits the government from using 

evidence caused by an illegal seizure, not evidence found around the same time as an illegal 

seizure. Here, the agents’ detention of Diaz and Loya did not cause the agents to find the 

marijuana in the trailer. Instead, it was the agents’ reasonable suspicion regarding Rivas that 

caused the agents to detain the tractor-trailer, conduct the dog sniff and discover the marijuana. 

Click HERE for the court’s opinion.

*****

United States v. Tavera, 2013 U.S. App. LEXIS 12547 (6th Cir. Tenn. June 20, 2013)

Police officers arrested Mendoza and Tavera after they discovered methamphetamine hidden 

under a bucket of nails in the truck the men were driving. At trial, Tavera testified he did not 

know about the drugs in the truck. The jury convicted Tavera.

After his conviction, Tavera learned a few days before the trial Mendoza had participated in plea 

negotiations in which Mendoza told the Assistant United States Attorney (AUSA) Tavera did not 

know about the drugs in the truck. The AUSA did not disclose Mendoza’s statements to Tavera. 

Tavera appealed his conviction, arguing Brady v. Maryland required the AUSA to disclose 

Mendoza’s statements to him.

The court agreed. In Brady v. Maryland, the United States Supreme Court held the government 

must disclose material, exculpatory evidence in its possession and failure to do so results in a 

trail that is fundamentally unfair. Here, Mendoza’s statements to the AUSA were material to 

Tavera’s case. The government’s proof of Tavera’s intent to join the drug conspiracy and 

distribute drugs was not overwhelming. If Tavera had been able to bolster his own testimony 

with Mendoza’s statements, it would have significantly strengthened his case. 

In addition, the court rejected the government’s argument that Tavera’s attorney should have 

exercised due diligence and discovered the statements on his own by interviewing Mendoza and 

asking him if he had talked to the AUSA. The “due diligence” defense is not valid because it 

releases the prosecutor from his duty of disclosure clearly outlined in Brady and places the 

burden of discovering exculpatory information on the defendant. 

Click HERE for the court’s opinion.

*****
8

7th Circuit

United States v. Richards, 2013 U.S. App. LEXIS 12026 (7th Cir. Ill. June 14, 2013)

An undercover police officer agreed to purchase ten kilograms of cocaine from a high-level drug 

dealer at his house. As directed, the officer followed a pick-up truck from a mall parking lot to 

the drug dealer’s house and then backed his car into the garage once the truck left. After men 

loaded bags into the trunk, the undercover officer drove away. Police officers maintained 

surveillance on the house after the buy because the undercover officer suspected additional drugs 

remained on the property, while other police officers followed the pick-up truck. 

About twenty minutes later, the officers saw the same pick-up truck meet a gray Lexus in the 

same mall parking lot. The Lexus followed the pick-up truck to the house and backed into the 

garage as the undercover officer had done. Ten minutes later, the Lexus emerged from the 

garage and drove away. While following the Lexus, officers confirmed the substance previously 

loaded into the undercover officer’s car had tested positive for cocaine. After an hour of 

surveillance during which the Lexus violated no traffic laws, the officers conducted a traffic stop. 

Without consent, the officers searched the car and found a backpack in the trunk. Inside the 

backpack, the officers found approximately ten kilograms of cocaine. Richards, the driver, and 

Rodgers, the passenger, denied ownership of the bag; however, both were arrested. None of the 

officers involved in the operation had any information connecting either Richards or Rodgers to 

the target drug dealer before they drove up to his house in the gray Lexus. In addition, the 

officers had no information that another drug deal would occur at the house that day. 

Richards moved to suppress the cocaine found in the backpack, arguing the officers lacked 

probable cause to stop and search the gray Lexus. 

The court disagreed, holding the facts and circumstances known to the officers at the time of the 

stop provided probable cause to believe the Lexus had picked up drugs during its brief stop at the 

house. Consequently, the officers were allowed to search the Lexus under the automobile 

exception to the Fourth Amendment’s warrant requirement. 

First, the officers knew an undercover police officer had purchased ten kilograms of cocaine 

from the house less than an hour before the Lexus arrived, and the undercover officer believed 

more cocaine remained at the house.

Second, the officers knew the Lexus met another vehicle and then followed that vehicle to the 

house, as the undercover officer had done. After arrival, the other vehicle left and the Lexus 

backed into the garage where it remained for approximately ten minutes before leaving, as the 

undercover officer had done. These facts and circumstances generated a fair probability that 

Richards had picked up drugs just as the undercover officer had.

Click HERE for the court’s opinion.

*****
9

8th Circuit

United States v. Smith, 2013 U.S. App. LEXIS 11365 (8th Cir. Mo. June 6, 2013)

Federal agents in St. Louis suspected Smith was involved in a scheme to obtain cash by false 

pretenses from U.S. Bank. The agents knew Smith had been involved in a similar scheme in Los 

Angeles and had since relocated to St. Louis. In addition, the agents traced emails sent to U.S. 

Bank to a house across the street from Smith’s residence that had an unsecured wireless router, 

which would allow anyone within range to access the internet. Finally, U.S. Bank gave the 

agents a recording of a phone conversation between a bank employee and the individual trying to 

fraudulently obtain the cash. An agent familiar with Smith’s voice confirmed the voice on the 

recording belonged to Smith. 

While conducting surveillance, the agents saw Smith and another person, later identified as 

Lewis, go into a restaurant. The agents entered and arrested Smith as he came out of the 

restroom. The agents seized a messenger bag, which was approximately fifteen to twenty feet 

away at a table with Lewis. 

An inventory search of the bag revealed a laptop computer, a cell phone and bank records. The 

agents secured the items and obtained a warrant to search the bag, laptop and cell phone. 

Smith argued the agents did not have probable cause to arrest him; therefore, the items recovered 

from the messenger bag after his arrest should have been suppressed. Even if his arrest was 

supported by probable cause, Smith argued the messenger bag and its contents were illegally 

seized and searched by the agents before they obtained a warrant. 

The court disagreed. First, the agents had probable cause to arrest Smith. The agents knew 

Smith was a suspect in a similar scheme conducted in Los Angeles and an agent identified the 

voice of the person calling U.S. Bank to set up the scheme as belonging to Smith. 

Second, the agents lawfully seized Smith’s bag because they had probable cause to believe the 

bag contained evidence of a crime. The bag resembled the type of bag used to transport a laptop 

computer and the agents knew e-mails were sent to U.S. Bank from various access points, 

making it likely a laptop had been used in the scheme. Immediate seizure of the bag was 

necessary to prevent the destruction of evidence. 

Finally, even though the agents slightly deviated from their agency’s inventory search policy, the 

search was still reasonable because it was not pretext for a general search for evidence. 

Click HERE for the court’s opinion.

*****

United States v. Capps, 716 F.3d 494 (8th Cir. Mo. June 11, 2013)

A police officer conducted a traffic stop because the officer knew Capps did not have a valid 

driver’s license and there was an active felony warrant for Capps’ arrest. During the stop, the 

officer discovered the license plates on Capps’ vehicle were registered to a different vehicle. 

After the officer asked Capps for consent to search the vehicle, Capps told the officer to check 

the trunk for a second set of license plates. The officer clarified he wanted to search the entire 

vehicle and told Capps he could refuse this request if he wished. Capps eventually responded, 
10

“just go ahead and look.” During the search, the officer found a bag containing 

methamphetamine under the hood of Capps’ vehicle. 

Capps moved to suppress the methamphetamine, arguing the officer violated the Fourth

Amendment because any consent he provided was involuntary, in part because the officer failed 

to advise Capps of Miranda rights before asking for consent to search. 

The court disagreed. Capps was in his thirties at the time of the incident and did not claim to 

possess below average intelligence or any other barriers to effective communication. In addition, 

Capps appeared to be sober and his prior interactions with law enforcement make it more likely 

he was aware of his rights. Finally, while lack of Miranda warnings is a relevant factor to 

consider, the Eighth Circuit has never required a police officer to provide Miranda warnings 

before requesting consent to search. Here, the weight of the other factors indicated the absence 

of Miranda warnings prior to the search did not affect Capps’ otherwise voluntary consent. 

Capps further argued even if his consent was voluntary, his consent to search the vehicle was 

limited to the trunk. 

Again, the court disagreed. The court determines the scope of a person’s consent by considering 

what an objectively reasonable person would have understood the consent to include. Here, the 

court held that Capps’ statement, “just go ahead and look” would have led an objectively 

reasonable person to believe Capps consented to a search of the entire vehicle. 

Click HERE for the court’s opinion.

*****

United States v. Hightower, 2013 U.S. App. LEXIS 12141 (8th Cir. Ark. June 17, 2013)

A police department received an anonymous call suggesting officers were needed at the local 

Boys and Girls Club. When the officers arrived, they found no problem at the Boys and Girls 

Club, but saw a group of ten to fifteen people across the street on the verge of fighting. As the 

officers crossed the street to investigate, Hightower and his girlfriend walked away from the 

group, got into his nearby car, and began to drive away. The officers ordered Hightower to stop

but he did not comply until an officer walked alongside his slow-moving vehicle and drew his 

firearm. After Hightower stopped, the officers smelled the odor of alcoholic beverages coming 

from Hightower’s car. The officers eventually arrested Hightower for public intoxication and 

discovered an illegal firearm in his car during their inventory search. 

Hightower argued the officers did not have reasonable suspicion to support a Terry stop.

The court disagreed. Police officers responded to a vague, anonymous emergency call 

suggesting officers were needed at the Boys and Girls Club. When the officers arrived, they saw 

a group of individuals across the street talking in raised voices and acting as if they were about to 

fight. An officer testified the area near the Boys and Girls Club, including the apartment complex 

across the street, had been the scene of fights, drugs arrests and other criminal activity. These 

facts, combined with Hightower’s initial refusal to comply with the officer’s repeated orders to 

stop, gave the officers reasonable suspicion to conduct a Terry stop. 

Click HERE for the court’s opinion.

*****
11

9th Circuit

United States v. Morgan, 2013 U.S. App. LEXIS 11114 (9th Cir. Ariz. June 3, 2013)

A Border Patrol agent arrested Morgan after discovering several bundles of marijuana concealed 

in her vehicle as she drove into the United States from Mexico. The agent advised Morgan of 

her Miranda rights and Morgan agreed to speak to the agent. However, soon after the 

conversation began, Morgan invoked her right to counsel and the agent terminated the interview. 

The agent transported Morgan and the marijuana to the Casa Grande Border Patrol station for 

processing. While processing Morgan, the agent read her a portion of an I-214 Form that 

contained the Miranda warnings. Morgan signed the I-214 Form, acknowledging she was 

provided Miranda rights and that she understood those rights. Although the I-214 Form 

contained a section on waiving Miranda rights, the agent did not read this section to Morgan or 

attempt to obtain from her a waiver of her Miranda rights because she had previously invoked 

her right to counsel. The agent testified all Border Patrol agents at the Casa Grande Border 

Patrol station are required, as part of the routine processing of every arrestee, to read the 

Miranda warnings from the I-214 Form. The officer then must obtain an acknowledgement from 

the arrestee the form was read. This applied even if the arrestee has previously invoked his or 

her Miranda rights at the scene of the arrest. 

After Morgan acknowledged her rights, she told the agent she wished to speak with him. The 

agent told Morgan he could not talk to her without the presence of her attorney because she had 

already invoked her right to counsel. Morgan told the agent she did not need an attorney and 

wanted to waive her right to counsel. The agent gave Morgan the opportunity to read and sign 

the waiver section of the I-214 Form. During her interview, Morgan admitted to smuggling 

marijuana. 

Morgan argued the agent’s reading of the I-214 Form constituted a re-initiation of interrogation 

after she had already invoked her right to counsel. 

The term “interrogation” refers to express questioning or the functional equivalent of questioning 

which includes words or actions on the part of the police, other than those normally related to the 

arrest and custody process, that the police should know are reasonably likely to elicit an 

incriminating response. In this case, part of the station’s standard processing procedure was to 

advise arrestees of their Miranda rights from the I-214 Form, even if the arrestees had previously 

invoked their rights. Because the reading of the I-214 Form was a normal a part of the arrest and 

custody process and the agent made no effort to question Morgan or obtain a waiver of her 

previously invoked right to counsel, the court held the agent’s actions were not the functional 

equivalent of questioning. Consequently, reading the I-214 Form to Morgan was not 

“interrogation” in violation of Miranda.

Click HERE for the court’s opinion.

*****

United States v. Needham, 2013 U.S. App. LEXIS 12033 (9th Cir. Cal. June 14, 2013)

In June 2010, police suspected Needham, a registered sex offender, had molested a five-year old 

boy in the restroom at a local mall. A detective obtained a warrant to search Needham’s home. 

The warrant authorized a search for clothing matching the description of what Needham was 
12

wearing at the mall the day he was suspected of molesting the boy and for a credit card Needham 

had used. The warrant also authorized the search of Needham’s electronic and digital storage 

devices for child pornography. Other than the detective’s opinion that individuals who molest 

children are likely to possess child pornography, the warrant did not provide any other reason to 

suspect Needham possessed child pornography in his home. 

Officers seized Needham’s iPod and discovered images and videos of child pornography. 

Needham moved to suppress the evidence obtained from his iPod, arguing the search warrant 

was not supported by probable cause he possessed child pornography. Needham further argued 

the lack of probable cause was so obvious that the good-faith exception should not apply. 

The officers relied on a warrant based on the inference that those who molest children are likely 

to possess child pornography. In 2011, the Ninth Circuit decided a case, which held such an 

inference, by itself, does not establish probable cause to search a suspected child molester’s 

home for child pornography. However, because the search in this case occurred before 2011, the 

court held it was objectively reasonable for the officers to rely in good faith on the search 

warrant. 

Click HERE for the court’s opinion.

*****

United States v. Stoltz, 2013 U.S. App. LEXIS 13220 (9th Cir. Alaska June 27, 2013)

Stoltz was an active duty enlisted member of the United States Coast Guard assigned to a Coast 

Guard cutter. While moored for a routine port call, a shipmate saw Stoltz aboard the cutter 

viewing child pornography on his laptop computer. Stoltz later told investigators he possessed

child pornography aboard the cutter.

The cutter’s commanding officer decided not to court-martial Stoltz, so the government would 

not be precluded from charging Stoltz in civilian criminal court. However, after seven months 

passed and no civilian criminal charges had been filed, the commanding officer imposed nonjudicial punishment (NJP) on Stoltz. 

Generally, service members facing NJP can choose to reject the NJP and demand trial by court 

martial. If that occurs, the decision of whether to proceed with a court-martial rests with the 

proper convening authority. However, the right to reject NJP in favor of a court-martial is 

subject to the “vessel exception.” If the service member is attached to or embarked on a vessel, 

he does not have the right to reject NJP. If the vessel exception does not apply, the service 

member faced with NJP must be informed of his right to reject NJP in favor of a court-martial 

and NJP cannot be imposed unless the service member voluntarily, knowingly, and intelligently 

waives that right in writing. Here, Stoltz was never informed that he could reject NJP and 

demand a court martial, nor did he waive that right.

Approximately two years later, after Stoltz’s discharge from the Coast Guard, a federal grand 

jury indicted him for possession of child pornography. 

Stoltz moved to dismiss the indictment, claiming it violated the Double Jeopardy Clause of the 

Fifth Amendment and constituted a due process violation.
13

The district court dismissed the indictment, concluding the vessel exception did not apply; 

therefore, Stoltz should have been given the opportunity to reject NJP and demand a courtmartial. The district court further held because Stoltz had not been made aware of his right to 

demand a court-martial, the government violated the Double Jeopardy Clause by charging him 

with the same crime in civilian court.

The Ninth Circuit disagreed. Even if the vessel exception did not apply, and the Coast Guard 

had improperly imposed NJP on Stoltz, the Double Jeopardy Clause was not violated. Double 

jeopardy bars Stoltz’s prosecution only if he was previously placed in jeopardy for the same 

child pornography offense. The Supreme Court has consistently held that jeopardy does not 

attach until a defendant is “put to trial before the trier of facts, whether the trier be a jury or a 

judge.” Here, both sides acknowledged that NJP is non-criminal and until he was indicted, Stoltz 

was never charged with possession of child pornography, in either a court-martial or civilian 

criminal court. Consequently, the district court improperly dismissed the indictment on double 

jeopardy grounds. 

The court further held even if a due process violation occurred, it occurred as part of the NJP 

proceeding and not the current prosecution.

Click HERE for the court’s opinion.

*****

11th Circuit

United States v. Valerio, 2013 U.S. App. LEXIS 12604 (11th Cir. Fla. June 20, 2013)

A federal agent was conducting surveillance on a store that sold hydroponic gardening 

equipment. The agent believed individuals who purchased this type equipment were often 

involved in growing marijuana. The agent saw Valerio drive up to the back of the store in a 

pick-up truck with no license plate and back into a parking space, in what the agent thought was 

an attempt to conceal the truck’s missing license plate. Valerio entered the store and returned 

several minutes later carrying a plastic shopping bag. Valerio drove out of the parking lot 

followed by the agent who noticed Valerio kept looking in his rearview mirror, which the 

agented interpreted as nervousness. A few minutes later, Valerio pulled over to the side of the 

road and walked toward the rear of his truck, holding what appeared to be a license plate. 

Two weeks later, the same agent was again conducting surveillance on the hydroponic gardening 

store. The agent saw Valerio drive up to the store in a pick-up truck with no license plate, and 

back into a parking spot. Valerio entered the store and came out several minutes later. Another 

federal agent saw Valerio’s truck a short time later with a license plate affixed to it. The agents 

followed Valerio to a multi-unit warehouse the agents thought was suitable for a marijuana grow 

operation. The agents saw Valerio park his truck and walk toward the warehouse building but 

the agents did not see which specific unit Valerio entered.

The next day the agents conducted surveillance on the warehouse and saw light emanating from 

under one of the unit’s doors. A week later, the agents brought a drug-dog to the warehouse and 

the dog alerted to the presence of drugs in one of the units. The agents obtained a warrant and 

searched the unit. Instead of corroborating their suspicions regarding Valerio, the agents 

discovered the unit was rented to an individual unrelated to Valerio. The agents learned the unit 

was used as a recording studio and the bands who recorded there often smoked marijuana. 
14

After failing to find any evidence that Valerio was involved in a marijuana grow operation from 

the search of the warehouse, the agents went to Valerio’s house to conduct a knock and talk 

interview. However, instead of knocking on Valerio’s door to speak with him as instructed, the 

agents waited across the street until Valerio came out of his house and entered his pick-up truck, 

which was parked in the driveway. The agents blocked Valerio’s exit from his driveway with 

their vehicle and approached Valerio with their guns pointed at him. The agents ordered Valerio 

out of his truck, conducted a Terry frisk, and escorted Valerio to the front of his truck. Valerio 

eventually admitted to growing marijuana in two of the units at the warehouse. 

Valerio argued the agents’ Terry stop at his house, one week after the agents had last observed 

him engage in any suspicious activity, violated the Fourth Amendment. 

The court agreed. In Terry v. Ohio, the Supreme Court held for the first time that not all seizures 

must be supported by probable cause to comply with the Fourth Amendment. However, the 

Court held Terry stops are limited to situations where police officers are required to take “swift 

action” based upon on-the-spot observations. Consequently, police officers may not use Terry as 

an end-run around the warrant requirement in the context of a standard ongoing police 

investigation. 

Here, the court held the timing and circumstances surrounding the agents’ seizure of Valerio 

placed it well outside the scope of a valid Terry stop. The agents did not stop Valerio in 

response to suspicion that required “swift” law enforcement action. Instead, the agents went to 

Valerio’s house nearly a week after they last observed him engage in suspicious behavior. The 

court stated: 

“The opportunity to Terry stop a suspect, a law enforcement power justified by and 

limited to the exigent circumstances of the moment, cannot be put in the bank and saved 

for use on a rainy day, long after the exigency has expired.” 

The court noted the agents were free to continue their surveillance of the warehouse or Valerio’s 

house, attempt to verify through business or utility records that Valerio was a tenant at the 

warehouse or even initiate a voluntary contact with Valerio. 

Click HERE for the court’s opinion.

*****

District of Columbia Circuit

United States v. Watson, 2013 U.S. App. LEXIS 11132 (D.C. Cir. June 4, 2013)

A police officer arrested Watson after conducting a traffic stop on Watson’s van. Inside the van, 

police officers found cocaine. The next day, officers executed a search warrant on Watson’s 

home and found firearms and drug paraphernalia. Watson was convicted of several drug 

offenses.

Watson argued the traffic stop violated the Fourth Amendment; therefore, the cocaine seized 

from the van should have been suppressed. In addition, Watson argued the subsequent search 

and seizure of evidence from his house was tainted by the unlawful traffic stop. 
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The court disagreed. The officer testified he stopped Watson’s van because it was travelling too 

close to the vehicle ahead of it and the van had a tinted tag cover that obscured its license plate 

number. Regardless of any subjective motivation the officer may have had, it was objectively 

reasonable for him to believe Watson had violated two Maryland traffic laws; therefore, the 

officer’s stop of Watson’s van was lawful. 

Click HERE for the court’s opinion.

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