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May 2014

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 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 

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In This Issue 

Free FLETC Informer Webinar Schedule

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Case Summaries

United States Supreme Court

 Click Here

Circuit Courts of Appeals

 Click Here

1st Circuit 7th Circuit 8th Circuit

9th Circuit 10th Circuit 11th Circuit

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2
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Affairs

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

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

criminal activity. 

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

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3
4. Law of Video Surveillance

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6. Understanding the Administrative / Inspection Search

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how, why and when an agency has the ability to conduct an administrative inspection. All are 

welcome to attend. Recommended for those agencies that possess an inspection power.

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FLETC Informer Webinar Schedule - May2014 

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FLETC Informer Webinar Schedule - June2014 

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ov/hipaa/

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nspections/

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Law of Video 

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1-hour

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ov/lawofvideosurv

eillance/ 

21

22 23 24 25 26 27 28

29 30

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5
CASE SUMMARIES

United States Supreme Court

Navarette v. California, 2014 U.S. LEXIS 2930 (U.S. Apr. 22, 2014)

A police dispatcher received an anonymous call from a woman stating a silver Ford pickup truck had 

just run the woman’s vehicle off the roadway. The woman provided the pickup truck’s license plate 

number, approximate location and direction of travel. The dispatcher broadcast the woman’s 

information and a few minutes later police officers saw a silver Ford pickup truck with the same 

license plate number, near the location and traveling in the same direction reported by the woman. 

The officer conducted a traffic stop, and as he and a back-up officer approached the pickup truck, the

officers smelled the odor of marijuana. The officers searched the pickup truck, found four large bags 

of marijuana and arrested the driver, Navarette, and his brother, who was a passenger. 

Navarette moved to suppress the marijuana, arguing the anonymous 911 call did not provide the 

officers reasonable suspicion to conduct the traffic stop.

The California Court of Appeal disagreed and affirmed the lower court’s decision denying 

Navarette’s motion to suppress the marijuana. Navarette appealed. The United States Supreme Court 

held the traffic stop did not violate the Fourth Amendment because, under the totality of the 

circumstances, the officers had reasonable suspicion Navarette was driving while intoxicated.

The court held the 911 call was sufficiently reliable to credit the woman’s claim that Navarette’s 

truck had run her vehicle off the road. First, the woman described the truck, provided its license plate 

information and gave the truck’s location to the 911 dispatcher. Second, the police officer located the 

truck approximately 19 miles away from the scene of the incident, approximately 18 minutes after the 

911 call. Third, the woman’s use of the 911 system was a factor to take into account when 

determining the reliability of the information she provided. The 911 system had features that allowed

for identifying and tracing callers, which would allow a reasonable officer to believe that a person 

might think twice before calling in a false report. Consequently, the woman’s detailed, firsthand 

description of Navarette’s truck and dangerous driving along with the timeline of events suggested 

the woman called 911 shortly after she was run off the road, which entitled her tip to be considered 

reliable by the police officer.

Next, the court recognized a reliable tip will justify an investigative stop only if the tip creates a 

reasonable suspicion that “criminal activity may be afoot.” In this case, the court held the woman’s 

report of being run off the roadway created reasonable suspicion of an ongoing crime such as drunk 

driving. The court stated that running another vehicle off the road suggests lane-positioning 

problems, decreased vigilance, impaired judgment, or some combination of recognized drunk-driving 

cues. Because the 911 call established reasonable suspicion to stop Navarette, the officer did not 

need to follow Navarette to personally observe suspicious driving before conducting the traffic stop. 

Click HERE for the court’s opinion.

*****

6
Circuit Courts of Appeals

1st Circuit

United States v. Almeida, 2014 U.S. App. LEXIS 6280 (1st Cir. Me. Apr. 4, 2014)

A police officer conducted a traffic stop on a pick-up truck registered to Maynard Martin. During the 

stop, the officer obtained identification information from the driver, Almeida, and his passenger. 

Almeida identified himself as John Martin and presented a temporary driver’s license, without a

photograph, with the name John Martin on it. After issuing a warning, the officer let Almeida and his 

passenger leave. A few minutes later, the officer ran a computer check on John Martin and saw 

Martin’s photograph did not match the driver of the vehicle he had just pulled over. In addition, the 

officer discovered the passenger had also given a false name and identification. The officer pursued 

the pick-up truck again, planning to arrest the driver and passenger for presenting false 

identifications. When the officer pulled the truck over, he discovered Almeida was now in the 

passenger seat, and the previous passenger was driving. The officer arrested both men. 

A short time later, a drug dog alerted to the presence of drugs in the truck. Officers searched the 

truck and found a bag of marijuana and counterfeit United States currency. In a subsequent inventory 

search of the truck, officers found evidence related to the counterfeit currency. The officers also 

searched Almeida’s wallet and found genuine United States currency containing serial numbers that 

matched the serial numbers on some of the counterfeit currency recovered from the truck. The 

government indicted Almeida for possession of counterfeit currency. 

Almeida argued the evidence obtained from both searches of the truck and the search of his wallet

violated the Fourth Amendment, 

The court disagreed holding Almeida did not have a reasonable expectation of privacy in the truck. 

Even though Almeida was driving the truck when first stopped, the court found Almeida had shown 

no pattern of repeated use or control over the truck that would allow the court to conclude his 

possession of the truck was anything more than “informal and temporary.” As a result, Almeida 

could not challenge any of the evidence recovered from the truck in either of the searches conducted 

by the police officers. 

Without deciding whether the officers lawfully searched Almeida’s wallet when the officers arrested 

him, the court held the seizure of the currency from Almeida’s wallet was valid under the inevitable 

discovery doctrine. First, the officer arrested Almeida for possession of false identification. Even if 

the officers had not searched Almeida’s wallet, Almeida’s wallet would have been searched at the jail 

during the booking process. The search at the jail would have inevitably resulted in the seizure of the 

cash, because it was the jail’s policy to remove an arrestee’s property during the booking process.

Click HERE for the court’s opinion.

*****

7
United States v. Oquendo-Rivas, 2014 U.S. App. LEXIS 7352 (1st Cir. P.R. Apr. 18, 2014)

Local police officers arrested Oquendo for his involvement in a shooting at a bar and recovered a 

firearm with an obliterated serial number they believed might be connected to the shooting. At the 

police station, an officer gave Oquendo a Miranda waiver form. After reviewing the form, Oquendo

indicated he did not wish to make a statement. The officer did not ask Oquendo any questions and 

left the room. Approximately twenty minutes later, an agent from the Bureau of Alcohol, Tobacco, 

Firearm and Explosives (ATF) entered the interview room and handed Oquendo a blank Miranda

waiver form. After reviewing the form, Oquendo wrote, “I do not understand this, my lawyer 

speaks,” on the form. The agent then verbally read Oquendo his Miranda rights, and upon seeing the 

note on the form, asked Oquendo what he did not understand. Oquendo told the agent he was willing 

to speak without a lawyer present, but he did not want to answer any questions about the shooting at 

the bar. After the agent agreed to limit the scope of his questions, Oquendo signed the form and 

agreed to speak to the agent. During the interview, Oquendo made incriminating statements 

concerning the recovery of the gun with the obliterated serial number. The government indicted 

Oquendo for aiding and abetting in the possession of a firearm with an obliterated serial number. 

Oquendo argued his incriminating statements to the ATF agent should have been suppressed because 

only twenty minutes elapsed between the time Oquendo invoked his right to remain silent and the 

agent approached him.

The court noted there are four factors to consider when determining whether the resumption of 

questioning is allowed after a person invokes the right to remain silent: (1) whether a reasonable 

period of time passed prior to the resumption, (2) whether the same officer resumed questioning, (3) 

whether the suspect received refreshed Miranda warnings, and (4) whether questioning concerned the 

same alleged crime. 

In this case, although twenty minutes was a short period of time, a different law enforcement officer, 

an ATF agent, conducted the second interview, and before he questioned Oquendo, the agent readvised Oquendo of his Miranda rights and limited the scope of his questioning as requested by 

Oquendo. While the first factor, by itself, favored Oquendo, the court held an analysis of all four 

factors established the agent did not violate Oquendo’s Miranda rights. 

Oquendo also argued his written statement, “I do not understand this, my lawyer speaks,” was an 

invocation of his right to counsel. 

The court disagreed. A suspect’s request for counsel must be clear and unambiguous. The court held 

the phrase, “my lawyer speaks,” was not a clear indication to the agent that Oquendo was requesting 

the assistance of an attorney. When confronted with this ambiguous statement, the agent sought 

clarification and continued questioning only after Oquendo made it clear he was willing to proceed 

without an attorney. As a result, Oquendo’s right to counsel was not violated.

Click HERE for the court’s opinion.

*****

8
7th Circuit

United States v. Henderson, 2014 U.S. App. LEXIS 7018 (7th Cir. Ind. Apr. 15, 2014)

Police officers responded to Henderson’s house after receiving a report that Henderson was holding a 

woman against her will at gunpoint inside the house. After a one-hour standoff, the woman emerged 

from the house. A short time later, Henderson voluntarily came out of the house and locked the door 

behind him. The officers handcuffed Henderson and searched him, but did not find any weapons. 

The officers forcibly entered Henderson’s house and conducted a protective sweep. During the 

sweep, the officers saw remnants of a marijuana grow operation and firearms in plain view. After the 

sweep, the officers obtained a warrant, searched Henderson’s house and seized cocaine, marijuana 

and several firearms. The government charged Henderson with being a drug user in possession of 

firearms. 

Henderson argued the protective sweep violated the Fourth Amendment because there were no facts 

to support a belief that Henderson’s house harbored anyone who posed a threat to the officers after 

Henderson exited.

The court disagreed. A protective sweep is a quick and limited search of a premises, incident to 

arrest, conducted to protect the safety of the officers and others. Police officers are allowed to 

conduct a protective sweep if they have a reasonable belief the area to be swept contains an individual 

who poses a danger to the officers or others. In this case, the officers responded to a hostage situation 

involving an armed suspect. The officers did not know how many occupants were inside the house or 

what the occupants were doing during the hour-long standoff. When the officers arrested Henderson, 

he was unarmed. At that point, it was reasonable for the officers to believe that an armed and 

dangerous person might still be in the house. 

In addition, the court held the duration and scope of the protective sweep was reasonable. Once 

inside the house, the sweep lasted no longer than five minutes, the officers limited their search for 

additional victims or assailants, and the officers did not touch or move any evidence they saw. 

Click HERE for the court’s opinion.

*****

United States v. Carroll, 2014 U.S. App. LEXIS 8109 (7th Cir. Ind. Apr. 29, 2014)

A thirteen-year old girl reported Carroll had sexually molested her, five years earlier, when she was 

eight years old. Specifically, the victim told a detective that Carroll took photographs of her bare 

genitals and showed her digital images on his camera of other children in partial states of undress. 

The victim stated the children in the photographs were posed in front of professional backdrops, and 

she described Carroll’s camera. The victim’s father told the detective he worked with Carroll and 

that Carroll was a professional photographer. 

Later that day, the detective applied for a warrant to search Carroll’s residence for evidence of child 

pornography and sexual exploitation of a child. In his affidavit, the detective outlined his law 

enforcement experience including the last seven years during which he primarily conducted child 

pornography and child exploitation investigations. The detective stated through his training and 

experience he developed a working knowledge and understanding that collectors of child 

pornography go to great lengths to secure and maintain their collections. The detective indicated that 

child pornography collectors value and retain their collections because the images supply sexual 

9
gratification, are difficult to obtain, present a threat of prosecution, carry a highly negative stigma, 

and are used to trade for new images. The detective explained it was common to find discarded or 

outdated computers stored in closets, basements and attics for long periods of time and that deleted 

images may be retrieved years later through a forensic process. Finally, the detective stated in the 

past he found digitally stored images that were being used for sexual gratification up to five years 

after the images were created. The state court judge found there was probable cause to search 

Carroll’s residence and issued the warrant. An analysis of Carroll’s computer and other digital media 

located in his residence revealed numerous images of the victim in various states of undress engaged 

in sexually explicit conduct. 

Carroll filed a motion to suppress the evidence discovered by the police. Carroll argued the 

information in the detective’s search warrant affidavit was stale because it was five-years old; 

therefore, it did not establish probable cause to search his home. 

The court disagreed. When receiving an application for a search warrant, a judge must make a 

practical, common-sense decision about whether the information in the affidavit establishes a fair 

probability that contraband or evidence of a crime will be found in the place to be searched. In child 

pornography cases, the issue of staleness must take into account the behavior of child pornography 

collectors and the capability of modern technology. Here, the court held the detective’s affidavit 

adequately addressed these considerations. First, the detective stated he had learned through training 

and experience that collectors of child pornography hoard their images for long periods of time for a 

number of different reasons, which he outlined. Second, the detective sought the search warrant 

within days interviewing the victim and her father. Third, the detective articulated how deleted 

images might still be recoverable from a computer or other digital media through a forensic process. 

Finally, the detective explained how he had previously recovered five-year old digitally stored 

pornographic images of children. 

Click HERE for the court’s opinion.

*****

8th Circuit

United States v. Woods, 2014 U.S. App. LEXIS 5978 (8th Cir. Mo. Apr. 1, 2014)

An individual called 911 and reported he saw a man carrying a concealed gun while riding the bus. 

The caller described the suspect as a black male wearing a black hat, tan pants and a white t-shirt. 

Police officers responded to the bus stop where the suspect was located and saw three men who

matched the description given by the caller. The officers detained one of the men as he walking away 

from the bus stop, but determined he was not the man with the gun. After the officers released the 

man, one of the officers contacted the 911 caller by phone for further information. The caller told the 

officer he had stopped the wrong person. The caller told the officer the man with the gun was one of 

the two men sitting at the end of the bus stop, but did not specify which man had the weapon. The 

officers approached the two men sitting next to each other, one wearing a black hat and one wearing a 

camouflage hat. An officer frisked the man with the black hat and discovered a handgun in the 

waistband of his pants. Another officer then frisked the man in the camouflage hat, Woods, and 

discovered a handgun in the waistband of his pants as well. The officers arrested both men and the 

government indicted Woods for being a felon in possession of a firearm.

Woods claimed the firearm should have been suppressed because the officers lacked reasonable 

suspicion that criminal activity was afoot and that Woods was armed and dangerous.

10
The court disagreed. First, the court found the information provided by the 911 caller was reliable. 

The caller indicated he had firsthand knowledge of a man carrying a gun. When the officer contacted 

the caller after stopping the wrong man, the caller directed the officers to Woods and the other man 

seated at the bus stop. This additional firsthand information indicated the caller was watching the 

officers and provided the degree of reliability necessary to support the officers’ reasonable suspicion 

to believe that at least one of the men identified by the caller was armed with a concealed handgun.

After discovering the man wearing the black hat had a handgun, the court further held it was 

reasonable for the officer to frisk Woods. Even though the Eighth Circuit has rejected the “automatic 

companion” rule, which allows officers to automatically search all companions of an arrestee, 

companionship can be one relevant factor to consider when establishing reasonable suspicion. The 

court found the information provided by the caller along with the handgun recovered from the man 

with the black hat supported the officer’s minimally invasive frisk of Woods. 

Click HERE for the court’s opinion.

*****

United States v. Harris, 2014 U.S. App. LEXIS 6231 (8th Cir. Mo. Apr. 4, 2014)

A Greyhound bus employee called the police and reported that a man at the bus station had fallen 

asleep on a bench with a handgun falling out of his pocket. Greyhound did not allow individuals to 

carry concealed firearms at the bus station. Police officers arrived at the bus station, which was 

located in a high crime area, and removed a handgun that was hanging from the sleeping man’s 

pocket. The officers woke the man up and placed him in handcuffs. The officers learned the man, 

later identified as Harris, had an outstanding warrant for his arrest. The officers arrested Harris on the 

outstanding warrant and the government later indicted him for possession of firearm by a convicted 

felon. 

Harris argued the police officers violated his Fourth Amendment rights because they did not have 

probable cause to believe he was committing a crime nor reasonable suspicion of criminal activity. 

As a result, Harris claimed the officers had no right to remove the handgun from his pocket and place 

him in handcuffs. 

The court disagreed. While the court stated the government struggled to show the police officers had 

a reasonable suspicion of criminal activity, the officers were allowed to remove the handgun from 

Harris’ pocket under the community caretaking doctrine. The community caretaking doctrine 

encompasses activities conducted by police officers that are not associated with the investigation of 

criminal activity or the seizure of criminal evidence. A police officer may act under the community 

caretaking doctrine when the officer has a reasonable belief that an emergency exists requiring his 

attention. In this case, the officers received a request from Greyhound to assist in dealing with a 

dangerous, potentially volatile situation. When the officers arrived, they saw Harris asleep with a 

handgun hanging out of his pocket. The court noted it was reasonable for the officers to remove the 

handgun because the officers knew Harris was carelessly handling a firearm in a dangerous public 

location where it was forbidden to carry firearms. In addition, the court held it was reasonable for the 

officers to handcuff Harris and determine his identity during the brief encounter.

Click HERE for the court’s opinion.

*****

11
United States v. $45,000.00 in United States Currency, 2014 U.S. App. LEXIS 7057 (8th Cir. 

Neb. Apr. 16, 2014)

A police officer got behind a car on Interstate 80 and claimed he could not read the issuing state’s 

name on the car’s license plate. When the driver of the car, Martins, exited the highway, the officer 

conducted a traffic stop for a violation of Nebraska Revised Statute § 60-399(2), which requires, in 

part, that all letters, numbers and other writing on a vehicle’s license plate be “plainly visible” at all 

times. 

At some point during the stop, the officer walked his drug dog around Martins’ car. After the dog 

alerted to the presence of drugs, the officer searched Martins’ car and found two empty coolers, 

whose interiors smelled like raw marijuana. The officer also discovered $45,000 in cash inside 

vacuum-sealed bags, which he seized. The officer did not find any marijuana or other drugs. The 

officer did not issue Martins a ticket for the alleged license plate violation or charge him with any

crime. The government, suspecting the seized money was connected to drug trafficking, instituted a 

civil forfeiture lawsuit against the currency. 

Martins, who claimed an interest in the currency, filed a motion to suppress the evidence obtained 

from the traffic stop. Martins argued the officer violated the Fourth Amendment because the officer 

did not have probable cause to believe Martins had violated Nebraska Revised Statute § 60-399(2).

The court commented that Nebraska state courts have interpreted the term “plainly visible,” in § 60-

399(2), to mean that letters, numbers and other writing on license plates must be “generally readable” 

for law enforcement and identification purposes from within a reasonable distance. In this case, the 

officer testified he was able to read the issuing state’s name, Utah, on Martins’ license plate from 

within 100 feet while traveling behind Martins on Interstate 80, before he pulled Martins over. Under 

these circumstances, the court held it was not objectively reasonable for the officer to believe Martins 

had violated Neb. Rev. Stat. § 60-399(2); therefore, the officer lacked probable cause to stop Martins. 

As a result, the court held the evidence obtained from Martins’ car should have been suppressed.

The court further held any reasonable suspicion the officer established to believe Martins was 

involved in criminal activity occurred after the unlawful traffic stop; therefore, that information could 

not be considered.

Click HERE for the court’s opinion.

*****

9th Circuit

United States v. Harrington, 2014 U.S. App. LEXIS 7296 (9th Cir. Cal. Apr. 18, 2014)

A federal park ranger in Yosemite National Park arrested Harrington for driving under the influence 

(DUI). At the police station, Harrington refused to submit to testing to determine his blood alcohol 

level. Another park ranger read Harrington an admonition, which informed Harrington that under 

California law, a refusal to submit to testing would result in Harrington’s driver’s license being 

suspended if Harrington was convicted of the underlying DUI charge. The ranger read the California 

admonition to Harrington three times. Harrington was never informed of the federal admonition, nor 

was Harrington informed of the consequences under federal law of his refusal to be tested. 

The government charged Harrington with several federal misdemeanors in federal district court to 

include DUI and failure to submit to a blood alcohol test. The government dismissed the DUI charge; 

12
however, Harrington was convicted of refusing to submit to the blood alcohol test, which carried a 

maximum penalty of 6 month in jail and/or a $5,000 fine.

On appeal, Harrington claimed his right to due process was violated when the park ranger specifically 

told Harrington his refusal to submit to a blood alcohol test was not, by itself, a separate criminal 

offense.

The court agreed, holding it was fundamentally unfair to convict Harrington on the refusal charge

when Harrington was told three times that his refusal would only result in a license suspension if 

convicted of DUI. The court stated, “[h]ad Harrington not been misled as to the consequences of his 

refusal, he might have preferred to submit to testing rather than to fight an additional criminal 

charge.” The court added, when police officers give DUI suspects an admonition, due process is 

violated when the admonition incorrectly informs the suspect that his refusal is not a separate crime, 

when in fact it is. 

Click HERE for the court’s opinion.

*****

10th Circuit

United States v. Romero, 2014 U.S. App. LEXIS 6955 (10th Cir. N.M. Apr. 15, 2014)

Police officers suspected Romero was involved in a murder, in which the victim was killed with a 

shotgun, based on statements obtained from several witnesses. Officers obtained a warrant to search 

a car driven by Romero the night of the murder. The officers learned the car was registered to 

Romero’s aunt at the same address where Romero lived. When the officers went to that address, they 

saw the car. The officers knocked on the door of the residence, planning to conduct a protective 

sweep so no one from the house would interfere with their search of the car. Romero’s stepfather,

Martinez, opened the door, told the officers he owned the house, and gave the officers consent to 

walk through the house. During their sweep, the officers opened the door to Romero’s bedroom. 

Although there was a lock on the door, the lock was not clearly visible, the officers did not see it and 

the door was not locked when the officers opened it. Inside the bedroom, the officers found Romero 

asleep and saw a shotgun and red baseball cap, which they believed were connected to the murder. 

The officers seized both items. 

Romero was convicted of a variety of offenses, including first-degree murder. Romero argued the 

district court should have suppressed the evidence police officers recovered from the car and from his 

bedroom.

The court disagreed, holding the warrant the officers obtained to search the car Romero had been 

driving was supported by probable cause. First, the search warrant affidavit included information that 

established that the victim was a passenger in a car driven by Romero shortly before his death. 

Second, the affidavit established the car was registered to Romeros’ aunt, at the same address where 

Romero lived. Third, the officers established Romero had driven the car the night of the murder and 

that officers had previously seized a shotgun from the car. Finally, the officers included information 

indicating either the victim was shot in the car or his body was transported in the car. Consequently, 

the search warrant affidavit offered sufficient reason to believe that a search of the car would uncover 

evidence related to the murder. 

13
The court further held Martinez had apparent authority to allow the officers to enter the house and 

open the unlocked door to Romero’s bedroom. 

An owner of a house is presumed to have control of the entire house, including the bedroom of a 

stepchild who is living there. In this case, however, there was evidence that Martinez did not have 

actual authority over Romero’s bedroom because Martinez claimed he did not usually enter Romero’s 

bedroom and that there was a lock on the door to the room. Nevertheless, the court held the officers 

were entitled to rely on Martinez’s apparent authority because at the time of the search, the officers 

did not know either of these facts. As a result, the officers reasonably relied on the presumption of 

actual authority established by Martinez’s statement that he was Romero’s stepfather. 

Click HERE for the court’s opinion.

*****

11th Circuit

Gennusa v. Canova, 2014 U.S. App. LEXIS 6410 (11th Cir. Fla. Apr. 8, 2014)

In June 2009, Studivant agreed to a police interview with his attorney, Gennusa, present. The 

interview was non-custodial and took place in an interview room at the police station. After 

Studivant agreed to provide a written statement, the officer left the interview room and closed the 

door. While alone in the room, Studivant and Gennusa discussed matters related to the investigation 

while Studivant wrote his statement. Studivant and Gennusa did not realize their privileged attorneyclient conversations were being recorded and actively monitored by police officers through a 

concealed camera in the interview room. 

At some point, Gennusa left the interview room and spoke with the officer, who told Gennusa he 

planned to arrest Studivant. When Gennusa returned to the interview room and told Studivant he was 

going to be arrested, Studivant decided he no longer wanted to provide a written statement. The 

officer came back into the interview room and demanded Studivant’s written statement. After 

Gennusa refused to turn over Studivant’s written statement, the officer forcibly grabbed the statement 

off the table from underneath Gennusa’s hand and then arrested Studivant. 

Gennusa and Studivant sued the police officers claiming the warrantless recording of their privileged 

conversations and the seizure of the Studivant’s written statement violated the Fourth Amendment

and the warrantless recording of their conversations violated the Federal Wiretap Act under 18 U.S.C. 

§ 2520(a).

The district court held the officers were not entitled to qualified immunity. The officers appealed the 

denial of qualified immunity to Gennusa and Studivant’s Fourth Amendment claims only.

The court held Studivant and Gennusa had a reasonable expectation of privacy in their privileged 

conversations in the interview room at the police station. The court noted the attorney-client 

privilege is the “oldest of the privileges for confidential communications known to the common law.” 

Consequently, the surreptitious recording and monitoring of those attorney-client conversations, 

without notice to Studivant or Gennusa, and without a warrant, violated the Fourth Amendment. 

The court further held it was clearly established in June 2009 that the Fourth Amendment required a 

warrant be obtained before non-custodial privileged communications between attorneys and their 

clients could be electronically monitored, intercepted or recorded. 

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Finally, the court held the warrantless seizure of Studivant’s written statement was unreasonable

because the officers presented no evidence suggesting they reasonably believed Gennusa, an officer 

of the court, was going to destroy the statement or tamper with it before they could obtain a warrant. 

At the time, it was clearly established that the warrantless seizure of personal property was 

unreasonable under the Fourth Amendment unless one of the exceptions to the warrant requirement 

applied. 

Click HERE for the court’s opinion.

*****

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