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January 2013

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This edition of The Informer may be cited as “1 INFORMER 13”.

(The first number is the month and the last number is the year.)
In This Issue 

 Article:

E-Discovery in Federal Criminal 

Investigations and Prosecutions

Robert Cauthen

Assistant Chief

Legal Division

Federal Law Enforcement Training Center

Glynco, Georgia

Click Here

******************************

Case Summaries

Circuit Courts of Appeals

 Click Here

 1st Circuit 2nd Circuit 4th Circuit 5th Circuit 6th Circuit 

 7th Circuit 8th Circuit 9th Circuit 10th Circuit 11th Circuit ******************************

Chief Justice Roberts’

2012 Year-End-Report on the Federal Judiciary

Click Here

******************************
1

E-Discovery

in Federal Criminal Investigations and Prosecutions

Robert Cauthen

Assistant Chief

Legal Division

Federal Law Enforcement Training Center

Glynco, Georgia

We now live in a digital world with a proliferation of electronic devices, electronically 

stored information (ESI), electronic communications, (e-communications), and social media. It 

is estimated that over 90% of all new information is created and stored electronically. In 

addition, people are certainly more likely to communicate by e-mail, text message, social media, 

instant messaging, short message service, and pin-to-pin than ever before. 

This digital world has had an enormous impact on criminal investigations and 

prosecutions. Criminals have gone digital, and so have officers and investigators. First, as 

criminal evidence, ESI – phone calls, text messages, e-mails, internet use, and electronic data –

has become a significant part of every kind of crime. Second, law enforcement investigative 

reports and memoranda are increasingly digital in form. Agencies are issuing laptops, tablets, 

smart phones, and other electronic devices to their officers and investigators for use in 

conducting investigations, taking statements, and communicating with each other, informants, 

witnesses, and prosecutors. Officers and investigators are also increasingly using their personal 

electronic devices for official work purposes. “Bring Your Own Device” programs and policies 

are now being developed and implemented in many agencies. In addition, the clear trend in our 

courts is electronic filings instead of hard copy documents for search and arrest warrants, 

affidavits, and court orders. 

The Benefits and Risks

There are real benefits to the use of ESI and e-communications. For instance: 

Speed – e-mail is faster than standard mail.

Efficiency – ESI and e-communications create an instant record of the information that is 

mobile, requires very little physical storage space, and is easily converted into different forms. 

An enormous amount of data can be stored on a very small flash drive. 

Ease of sharing – huge amounts of information can be encrypted and securely shared with an 

unlimited number of people through the use of large contacts lists, or by using email functions 

such as “Reply All,” or “Forward.”

However, those benefits come with risks. 

Speed is a benefit, but it is also a potential risk. Formal communications and documents take 

time to compose and can be reviewed and edited. E-communications are often hastily prepared, 
2

quickly sent, and may not be as complete as formal documents. In addition, for ecommunications, “sent” is almost the equivalent of “received” with no time for intervening 

clarification. 

Misinterpretation is a substantial problem. The language and style of e-communication is 

typically much more abbreviated and is markedly different from formal and face-to-face 

communication. It has been argued that approximately 80% of what is communicated during 

face-to-face conversations is through the human interaction – the tone, the inflection, the facial 

expressions, and the body language – not the actual words that are spoken. With ecommunications, this is absent and context can be lost. What may actually be understood and 

proposed as humorous by the sender and receiver may not read the same to others. Words can 

take on completely different meanings when stripped of those human factors. 

Below is an illustration of this danger.

Consider an e-mail or text message with this sentence in it: I didn’t say he did that. 

What does it mean? Can that same sentence, those same words, mean completely different 

things?

What if it were spoken this way – I didn’t say he did that. 

Or spoken this way – I DIDN’T say he did that. Or perhaps this way – I didn’t SAY he did that. 

Or maybe this way – I didn’t say HE did that. Or even this way – I didn’t say he did THAT.

Arguably, those same words could reasonably carry five, and possibly more, different 

meanings when stripped of the speaker’s tone, inflection, and facial expressions. If that one 

sentence is isolated from one e-mail in a long string of e-mails, all context is lost. 

 

The sheer volume of ESI and e-communications and the potential problematic nature of 

e-communications present distinct challenges for law enforcement officers.

Taking Advantage of the Technology While Minimizing the Risks

When conducting criminal investigations and prosecutions, recognize, understand, and 

appreciate defense counsel is entitled to a great amount of the information and substance 

gathered and communicated. Federal Rule of Criminal Procedure 16 lists specific items and 

categories of information discoverable by the defense upon request. These include defendant 

statements, documents and items, reports of examinations and tests, and summaries of expected 

expert testimony along with the bases and reasons for the expert’s opinion. The Jencks Act, 

found at 18 U.S.C. Section 3500, and Federal Rule of Criminal Procedure 26.2 require disclosure 

of the prior statements of government witnesses. The 1963 Supreme Court case of Brady v. 

Maryland mandates that the government disclose exculpatory, material evidence in its 

possession. The 1972 Supreme Court case of Giglio v. United States requires the government to 

disclose evidence in its possession that could affect the credibility of its witnesses.
3

For investigations, creating, obtaining, seizing, and maintaining ESI is primarily a

function of case organization and management. There are numerous software systems that 

perform well, and agencies typically pick one that fits their kind of cases best. For prosecutions, 

there are a number of presentation software systems that perform well, and prosecution offices 

typically pick one that fits best.

The creation, capture, storage, and disclosure of e-communications during the course of 

an investigation and prosecution of a federal criminal case is another matter. It can be a huge, 

costly undertaking to find and assemble all of the case related e-communications. However, it is

critical that all e-communications deemed discoverable be turned over to the defense in full 

compliance with the government’s obligations. The guiding principle is this: Any potentially 

discoverable information and communication should be preserved and delivered to the 

prosecutor. 

Best Practices

There are some best practices for how e-communications should and should not be used 

during the investigation and prosecution of a federal criminal case and how to capture and store 

these communications to ensure the government meets its discovery obligations. These best 

practices recognize the scope of the issue, define terms, and set out the responsibilities of all 

those involved in the investigation and prosecution of federal criminal cases. 

Who Needs To Employ Them?

When federal criminal cases originate from federal investigations, the federal officers, 

agents, and Assistant U.S. Attorneys participating in the investigation and prosecution need to 

have a system in place that captures, stores, and discloses all potentially discoverable ecommunications. 

A large number of cases prosecuted in federal criminal court come out of investigations, 

initial contacts, or incidents between state and local, territorial, and tribal officers and the 

defendants. It is essential those officers also take appropriate steps to ensure the capture, storage,

and disclosure of all potentially discoverable e-communications. It is crucial to identify all those 

involved in the case in a carefully considered effort to locate discoverable information. In this 

effort, it is clearly better to err on the side of inclusion.

“E-Communications”

As mentioned above, e-communications include e-mail, text messages, instant messages, 

short message service – for example, tweeting – pin-to-pin, social networking sites, bulletin 

boards, and blogs. E-communications can be broken down into three categories – Substantive, 

Logistical, and Privileged. 
4

Substantive Communications

These include e-communications that contain:

• Factual information about investigative activity,

• Factual information from interviews or interactions with victims, witnesses, 

potential witnesses, informants, cooperators, and experts,

• Factual discussions about the merits of evidence, and/or

• Factual information regarding the credibility or bias of witnesses.

Logistical Communications

These include e-communications that contain:

• Travel information, 

• Dates, times, locations of hearings or meetings, and those that

• Transmit reports.

Generally, purely logistical communications are not discoverable.

Privileged Communications

These include e-communications that contain:

• Attorney-client privileged communications,

• Attorney work product communications, 

• Deliberative process communications, and 

• Protected communications, which are those covered by Federal Rule of Criminal 

Procedure 16(a)(2).

Generally, as long as any discoverable facts contained in privileged e-communications are 

disclosed in other materials, the privileged and protected e-communications are not discoverable.

Drafting and Using E-Communications

During and as Part of an Investigation and Prosecution

First, think about whether e-communication is appropriate to the circumstances or 

whether an alternative form of communication, such as a formal report or telephone call, is a 

better choice. Do not send substantive, case-related e-communications unless absolutely 

necessary and only to those with a need to know. For example, an e-mail may be appropriate 

when the recipient is in a time zone that makes coordinating a telephone call almost impossible. 

Texting may be the better choice when one is worried about being overheard. When using ecommunications, notify recipients of any restrictions on forwarding and sharing. Do not use 

personally-owned electronic devices, personal e-mail accounts, or personal social networking 

sites to transmit case related information unless absolutely necessary. Do not post case-related 

or sensitive agency information on a non-agency website or social networking site. Typically, 

logistical information is better suited for e-communications. 
5

Second, think about the content of any e-communication before using it. All control over 

e-communications is lost once they are sent or posted. There is no way to guarantee they will 

remain private. Those to whom it is sent and “friends” on social media sites can share it with 

anyone they want. There are many examples of embarrassing and damaging e-mails and social 

media postings displayed in court and in the media. One should consider how such an e-mail or 

social media posting would look in the newspaper, sound on television, or be perceived during 

cross-examination on the witness stand. 

The principle is simple. Be professional, especially with non-law enforcement personnel. 

When sending substantive e-communications, write them like a formal report with accurate and 

complete facts. Avoid witticism, careless commentary, opinion, and over familiarity. They 

should reflect an arms-length relationship with non-law enforcement witnesses. Limit ecommunications to a single case. Also, tell non-prosecution team members that ecommunications are a record and they may be disclosed to the defense.

Finally, figure out in advance how and where to preserve potentially discoverable ecommunications. Talk to the prosecutors about their policies to determine how to handle ecommunications. Figure out the plan; put the plan in place; and use the system from start to 

finish.

The goal is to reduce the amount of case related e-communications to just those that are 

appropriate, which should reduce the time and costs of managing discovery and ensure full 

compliance. Remember and appreciate the guiding point is any potentially discoverable 

information and communication should be preserved and delivered to the prosecutor. 

Preserving E-Communications

Each person who is the creator, sender, forwarder, or the primary addressee in the “To” 

line of an e-communication needs to preserve it. If none of the above applies, for example, with

an e-mail from a witness to a third party, each person who is a secondary recipient in the “cc” or 

“bcc” lines needs to preserve it. Admittedly, this will preserve multiple copies of the same 

email, but it will also ensure that every e-communication is preserved.

What to Preserve

Preserve all potentially discoverable e-communications, including attachments and 

threads of related e-communications. For e-mails, this includes communications, which are 

located in the “Inbox,” “Sent Items,” and “Deleted Items” folders.

“All Potentially Discoverable E-Communications”

Potentially discoverable e-communications include all substantive e-communications 

created or received during the investigation and prosecution. It includes all e-communications 

sent to or received from non-law enforcement potential witnesses regardless of content. It also 

includes e-communications that contain both potentially privileged and unprivileged substantive 

information. If not sure, one should err on the side of preservation. Purely logistical ecommunications need not be preserved.
6

When to Preserve

Preserve as soon as possible, but no later than 10 days after the e-communication is sent 

or received. Make sure preservation occurs before agency or department systems automatically 

delete the e-communications because of storage limitations or retention policies.

Where to Preserve

E-communications should be placed in secure permanent or semi-permanent storage

location associated with the particular investigation and prosecution. For e-mails create a 

specific folder to which they can be moved. E-communications can also be printed and the hardcopy placed in the criminal case file.

How to Preserve

Preserve e-communications in their native e-format. Otherwise, they should be printed 

and preserved.

Special Circumstances

It is the responsibility of each person involved in the case to make available to the 

prosecutor all potentially discoverable e-communications so that the prosecutor can review them 

to determine what should be produced in discovery. Let the prosecutor know if there are ecommunications that deserve especially careful scrutiny because disclosure could 

• Affect the safety of any person, 

• Reveal sensitive investigative techniques, 

• Compromise the integrity of another investigation, or 

• Reveal national security information.

The Goal

The goal of these best practices is to reduce the volume of potentially discoverable ecommunications and establish a system to manage them. Establishing a system to organize and 

preserve e-communications reduces the time and costs of managing discovery and ensures full 

compliance with the government’s ethical and legal discovery obligations. 
7

CASE SUMMARIES

 Circuit Courts of Appeals

1st Circuit

United States v. Jones, 700 F.3d 615 (1st Cir. Me. 2012)

Police officers received an anonymous call from a person who claimed to have recently used and 

purchased cocaine from five individuals at a nearby house. The caller gave the officers the street 

address and claimed the occupants of the house were armed with handguns. The caller also 

described a silver car parked outside the house that supposedly had cocaine inside it. Officers 

conducted surveillance on the house and a silver Toyota parked a short distance down the street. 

During this time, officers established the house and the silver Toyota were owned by individuals 

who were connected to past drug activity. 

Four men eventually came out of the house, got into the silver Toyota and drove away. The 

officers conducted a traffic stop and approached the car with their guns drawn. The officers 

forcibly removed Jones from the front passenger seat after he refused their commands to exit the 

vehicle. Once Jones was secured, an officer conducting a visual search for weapons noticed that 

Jones’ pants had slid down around his buttocks and a corner of a plastic bag was sticking out of 

the waistband of his underwear. From experience, the officer knew suspects often hid drugs in 

this manner. The officer removed the bag, which contained cocaine. 

First, the court held the officers sufficiently corroborated the anonymous tip and established 

reasonable suspicion to stop the silver Toyota. When the officers stopped the silver Toyota, they 

had verified a connection between the house and the car and that the house and the car were 

occupied and owned by individuals previously implicated in illegal drug activity. This 

information allowed the officers to suspect the individuals were involved in criminal activity and 

warranted further investigation.

Second, the court held the manner in which the officers conducted the stop was reasonable, in 

light of their legitimate safety concerns; therefore, the stop did not escalate into a de facto arrest 

requiring probable cause. Police officers conducting Terry stops are entitled to take reasonable 

measures to protect their safety and taking such measures does not transform a Terry stop into an 

arrest. Here, based on the information known to them, it was reasonable for the officers to 

believe the stop involved armed drug traffickers. Consequently, the use of multiple officers, 

drawn weapons and handcuffs did not turn the Terry stop in to a de facto arrest. 

Finally, the court held the district court correctly ruled the drugs seized from Jones were in plain 

view when the officer saw the corner of a plastic bag protruding from his underwear and 

removed it.

Click HERE for the court’s opinion.

*****
8

United States v. Infante, 2012 U.S. App. LEXIS 25308 (1st Cir. Me. Dec. 11, 2012)

Infante called 911 and requested an ambulance, telling the dispatcher he had severed the tip of 

his finger and seriously cut his hand when a hand-held propane tank exploded inside his house. 

Ten minutes later Infante called 911 to report he was driving to the hospital because the 

ambulance was taking too long to arrive. Infante saw the responding paramedics on his way to 

the hospital and pulled over to allow them to render aid. When the paramedics asked him what 

had happened, Infante told them he was inside his house, filling a butane lighter, when it 

exploded. The paramedics bandaged Infante’s finger and hand and treated shrapnel-type wounds 

on his chest, but Infante refused to allow them to transport him to the hospital, insisting to drive 

himself. 

In the meantime, firefighters were dispatched to Infante’s house based on his initial report of a 

propane explosion. A firefighter looked through a window, saw a trail of blood on the floor, and 

then crawled through the unlocked window into the house. The firefighter unlocked the front 

door to allow the other firefighters to enter so they could search for the source of the explosion. 

The firefighters followed the blood trail to the cellar where they discovered marijuana plants, 

growing equipment and three pipe bombs.

After the discovery at Infante’s house, investigators went to the hospital to interview him. 

Before the interview, the investigators did not inform Infante of his Miranda rights, but did tell 

him the interview was voluntary, he was not under arrest and he did not have to talk to them. 

Infante spoke to the investigators, and in two separate interviews, he made incriminating 

statements.

The court held the firefighters’ warrantless entry into Infante’s house and search of the cellar fell 

within the emergency exception to the Fourth Amendment’s warrant requirement. After Infante 

reported a propane gas explosion inside his house and the paramedics saw that he suffered from 

injuries consistent with an explosion, the firefighters had probable cause to believe a secondary 

explosion from escaping gas could occur. After entering Infante’s house, the firefighters limited 

the scope of their search for the explosion’s origin to cellar because they saw the blood trail 

leading there. The evidence recovered from the cellar was observed by the firefighters in plain 

view. 

The court also held Infante was not in custody when the investigators interviewed him at the 

hospital; therefore, he was not entitled to Miranda warnings. Based on the circumstances, the 

court found a reasonable person in Infante’s position would have felt free to terminate the 

interviews and ask the investigators to leave. The investigators told Infante each interview was 

voluntary, he did not have to talk to them and he was not under arrest or in custody. In addition, 

the investigators did not impede hospital personnel from coming and going freely into Infante’s 

room, the investigators were in plainclothes, their weapons remained in their holsters, the 

atmosphere was non-confrontational and the interviews were relatively short.

Click HERE for the court’s opinion.

*****
9

2nd Circuit

United States v. Murphy, 2012 U.S. App. LEXIS 24904 (2d Cir. N.Y. Dec. 4, 2012)

A police officer put ruse drug-checkpoint signs on the side of an interstate highway just before 

an exit. The officer stopped a car driven by Michael Webster, claiming Webster failed to use his 

turn signal when he got off the highway at that exit. After returning Webster’s documents and 

issuing a warning, the officer obtained Webster’s consent to search the car. The officer found 

cocaine in a hidden compartment in the trunk and arrested Webster and his passenger Michael 

Murphy. The officer advised Webster and Murphy of their Miranda rights, and then told them, 

“You can decide at any time to give up these rights, and not talk to us, okay.” Murphy told the 

officer he understood, but Webster never indicated if he understood or had even heard the 

officer’s Miranda warnings. Both men subsequently denied knowing about the hidden 

compartment or the cocaine. 

First, the district court found the officer’s testimony that he saw Webster commit a traffic 

violation was not credible; therefore, it held the officer had unlawfully seized the defendants. 

The court concluded this was a proper finding by the district court.

Next, the court held Webster’s subsequent consent to search the car was tainted by the unlawful 

seizure; therefore, the district court properly suppressed the drugs found in the trunk. Less than 

one minute elapsed between the end of the unlawful seizure, when the officer returned Webster’s 

documents, and when Webster gave the officer consent to search the car. In addition, the officer 

did not tell Webster the stop was over, he was free to go or he did not have to consent to a 

search. The court stated a reasonable person would not have felt free to go at that time. The 

court also noted the district court questioned the officer’s motivation for the traffic stop, when it 

commented that the officer appeared to tailor his testimony in an attempt to justify the stop and 

search. 

Finally, the court agreed with the district court, which held Murphy had not knowingly waived 

his Miranda rights because the officer’s Miranda warning confused the waiver of rights with the 

exercise of rights. The officer’s statement strongly suggested Webster and Murphy would waive 

their rights to silence and counsel by not talking to him. While slight deviations from the 

standard Miranda warnings will not automatically invalidate a defendant’s waiver of his rights, 

in this case, the substance of the warnings was confusing enough to cast serious doubt on 

whether Murphy understood his rights. 

As to Webster, the officer testified he did not know whether Webster heard the Miranda

warnings he read. The government argued Webster’s wavier of his Miranda rights should be 

inferred based solely on the fact the officer read the warnings in a clear voice while standing near 

him. Although a defendant’s waiver may be implied through his silence, along with an 

understanding of his rights and some conduct indicating a waiver, the court held the government 

must do more that show that a Miranda warning was given and the individual later made a 

statement. Here, the government could not establish that Webster understood the Miranda rights

given by the officer, incorrect as they were; therefore, Webster could not validly waive them.

Click HERE for the court’s opinion.

*****
10

United States v. Ferguson, 2012 U.S. App. LEXIS 25046 (2d Cir. N.Y. Dec. 6, 2012)

Police officers arrested Ferguson in front of his apartment less than an hour after he had fired a 

pistol into the air during an argument with two women. Ferguson was not armed when the 

officers arrested him. At the police station, without providing Miranda warnings, another officer 

questioned Ferguson about the location of the firearm. Ferguson told the officer the firearm was 

at his sister’s apartment and then accompanied officers there to recover it. 

Ferguson argued the officer should have provided him with Miranda warnings before 

questioning him about the firearm.

The court disagreed. Even though the officer did not provide Ferguson with Miranda warnings, 

his questions fell within the scope of the public safety exception to the Miranda requirement. 

Under this exception, the concern for public safety may justify an officer’s failure to provide 

Miranda warnings before he asks questions designed to locate an abandoned weapon. Here, 

Ferguson had reportedly discharged a firearm; however, the officers did not recover a firearm 

when they arrested him less than an hour later. Not knowing where Ferguson had gone during 

that time, the officers had an objectively reasonable need to protect the public from the 

possibility that he had hidden the firearm in a public place. In addition, the officer’s questions 

were not investigatory in nature or asked in such a way as to obtain testimonial evidence, but 

rather they were supported by a genuine concern for public safety.

Click HERE for the court’s opinion.

*****

4th Circuit

United States v. Brown, 701 F.3d 120 (4th Cir. Va. 2012)

Police officers established files containing child pornography had been downloaded to an IP 

address registered to a private ambulance company. The officers focused their investigation on 

Brown and another employee after they discovered the pair were always on duty when the child 

pornography was downloaded. The officers obtained a warrant to search the company’s 

computers but did not locate any child pornography on them. During the execution of the search 

warrant, Brown and the other employee returned from a call. An officer seized a laptop 

computer that Brown had in the ambulance with him. The officer obtained a warrant to search 

Brown’s laptop, which contained videos and images of child pornography.

The court held the officer’s warrantless seizure of Brown’s laptop did not violate the Fourth

Amendment. Based on their investigation, the officers had probable cause to believe any 

computer used by either Brown or his co-worker during their shifts at the ambulance company 

contained child pornography, to include Brown’s laptop, which he possessed during his work 

shift. Under the exigent circumstances exception to the Fourth Amendment’s warrant 

requirement, it was reasonable for the officers to seize Brown’s laptop computer to prevent either 

it or its contents from being destroyed until a search warrant could be obtained. 

Click HERE for the court’s opinion.

*****
11

United States v. Ayesh, 2012 U.S. App. LEXIS 25813 (4th Cir. Va. Dec. 18, 2012)

The U.S. State Department hired Ayesh, a resident of Amman, Jordan, to work as the shipping 

and customs supervisor at the U.S. Embassy in Baghdad, Iraq. During this time, Ayesh diverted 

Unites States funds intended for shipping and customs clearance vendors to his wife’s bank 

account. Once U.S. officials figured out Ayesh’s scheme, they arranged for him to come to the 

United States under the pretext of attending a training seminar. Federal agents arrested Ayesh 

after he retrieved his checked luggage from the baggage claim area at the airport. During an 

interview that lasted approximately five hours, Ayesh confessed to the agents. 

Ayesh claimed his confession was involuntary and coerced because he made it during a lengthy 

interview after traveling from Jordan for nineteen hours without sleep or food.

The court disagreed. Ayesh was fluent in written and spoken English and he declined the agents’ 

offer of a translator. Ayesh then initialed each of his Miranda rights on the Advice-of-Rights 

Form and signed the form indicating he understood his rights and that he was waiving them. In 

addition, Ayesh never told that agents he was fatigued or needed sleep and he did not appear to 

be either physically or mentally tired. When Ayesh requested a break, one was provided, and the 

agents offered him food and drink on several occasions. Ayers freely and voluntarily confessed 

to the agents. 

Click HERE for the court’s opinion.

*****

United States v. Lawing, 2012 U.S. App. LEXIS 26642 (4th Cir. N.C. Dec. 31, 2012)

A confidential informant (CI), in the presence of police officers, made a recorded phone call to a 

person identified as “Drew” in which Drew agreed to drive to the CI’s house and deliver crack 

cocaine within twenty minutes. The CI gave the officers a physical description of Drew, the car 

he would be driving and the route he would take to the CI’s house. About twenty minutes later 

an officer in a marked patrol car conducted a traffic stop on a car that fit the description provided 

by the CI, driven by a man fitting Drew’s description, one half mile from the CI’s house. The 

officer obtained a driver’s license from the driver which bore the name Lawing, not Drew. Other 

officers arrived, seized Lawing’s cell phone and called the number the CI had previously used to 

call Drew. Lawing’s cell phone rang. Officers then searched the car but did not find any crack 

cocaine. However, the officers found two shotgun shells in the glove box lying on top of an 

identification card with Lawing’s picture on it. Lawing was charged with possession of 

ammunition by a convicted felon.

The court held the officer had reasonable suspicion to stop Lawing’s car because he corroborated 

the CI’s description of Drew and his car as well as the time and circumstances surrounding the 

intended cocaine delivery. 

The court also held the officers were justified in seizing Lawing’s cell phone to see if it rang 

when they called the number the CI had used to place the crack cocaine order with Drew. Even 

though Lawing provided a driver’s license that did not bear the name Drew, the totality of the 

circumstances provided the officers with reasonable suspicion to take minimal steps to determine 

whether Lawing was Drew.

Click HERE for the court’s opinion.
12

*****

5th Circuit

United States v. Rodriguez, 2012 U.S. App. LEXIS 25081 (5th Cir. Tex. Dec. 7, 2012)

Rodriguez and Izquierdo were arrested at a checkpoint after Border Patrol agents found over 

forty-five kilograms of marijuana in a concealed compartment in the cab of their tractor-trailer 

after a drug-dog alerted on the vehicle. Neither man claimed ownership of the marijuana, 

however, both were convicted of possession with intent to distribute marijuana and conspiracy.

Rodriguez argued his mere presence in the truck did not establish probable cause to arrest him 

and that the warrantless search of the contents of his cell phone constituted an unlawful search 

incident to his arrest. 

The court disagreed with both arguments. First, the court noted the Supreme Court, in 

Maryland v. Pringle, allowed the warrantless arrest of all the passengers in a car in which drugs 

were found when none of the passengers claimed ownership of the drugs. Here, it was 

reasonable for the Border Patrol agents to believe either or both men had knowledge of, and 

exercised dominion and control over, the marijuana that was found. 

Next, the court cited U.S. v. Finley, where the Fifth Circuit held the search of the contents of a 

cell phone found on a person incident to his arrest, for evidence of his crime, was permitted. As 

a result, the court held the warrantless search of the contents of Rodriguez’s cell phone, incident 

to his arrest, was lawful.

Click HERE for the court’s opinion.

*****

6th Circuit

United States v. Cochrane, 2012 U.S. App. LEXIS 25980 (6th Cir. Ohio 2012)

In February 2011, police officers stopped Cochrane for a stop-sign violation. A drug-dog alerted 

on Cochrane’s vehicle, the officers searched it, however they did not find any drugs. Five weeks 

later, the same officers stopped Cochrane because his vehicle did not have a front license plate, 

as required by Ohio law. One of the officers told Cochrane why he had been stopped, then asked 

Cochrane if he had any drugs or guns in his vehicle. Cochrane said, “No” to which the officer 

replied, “You know we’re going to want to take a look.” Cochrane said to the officer, “Go 

ahead.” The officers searched the vehicle, found a handgun and arrested Cochrane.

Cochrane argued the officers unreasonably prolonged the traffic stop because they focused on 

searching his vehicle and not on the license plate violation.

The court disagreed. Although the officer asked for Cochrane’s driver’s license and registration 

after asking him about the presence of contraband, there is no rule that an officer must ask 

questions in a certain order. The officer’s extraneous questions were brief and reasonable under 

the circumstances.
13

The court also held Cochrane voluntarily consented to the search of his vehicle. There was 

nothing to indicate the atmosphere was coercive. In addition, the officers did not physically 

threaten or intimidate Cochrane and they had not yet arrested him or threatened to arrest him 

when he gave consent. 

Click HERE for the court’s opinion.

*****

7th Circuit

Harney v. City of Chicago, 2012 U.S. App. LEXIS 25170 (7th Cir. Ill. Dec. 10, 2012)

Timothy Harney and Patricia Muldoon sued the City of Chicago and one of its police officers 

claiming the officer entered their residence and arrested them without a warrant or probable 

cause in violation of the Fourth Amendment.

The court held the officer was entitled to qualified immunity.

First, the officer had probable cause to arrest Harney and Muldoon. The victim told the officer 

her car had been vandalized and she suspected Harney and Muldoon. The officer saw damage to 

the victim’s car and he reviewed a security camera videotape that showed Harney bending down 

to examine the tire on the victim’s car and Muldoon walking past the victim’s car with keys in 

her hand. 

Second, the officer arrested Harney, without a warrant, in a common area in his condominium 

complex. As long as an officer has probable cause, he may arrest an individual in a public place 

without a warrant. No reasonable jury could believe the common area constituted the curtilage 

of the condominium; therefore, the officer was not required to obtain a warrant to arrest Harney.

Finally, after the officer arrested Harney, he told Harney he planned to arrest Muldoon. Harney 

agreed to get Muldoon and he entered their condominium, with the officer following him. Once 

inside, the officer arrested Muldoon. The court held Muldoon could not establish the officer’s 

following Harney into their condominium was unreasonable as neither objected to the officer’s 

presence or otherwise indicated they did not consent to him being there. 

Click HERE for the court’s opinion.

*****

8th Circuit

United States v. Farnell, 701 F.3d 256 (8th Cir. Mo. 2012)

A police officer received a report a bank robbery had occurred earlier that morning. The suspect’s 

vehicle was a white van and the suspect was a heavy-set white male. The officer had previously 

received two bulletins concerning several other armed bank robberies in the area committed by a 

heavy-set white male driving a white van. While securing the perimeter of a potential get-away 

route, the officer saw a white van driven by a heavy-set white male, later identified as Farnell. 

When the van drove past the officer, the driver held up his hand to conceal his face. The officer 

conducted a traffic stop and obtained consent to search the van. After finding a handgun, the 
14

officer handcuffed Farnell and placed him in another officer’s patrol car. The officer resumed his 

search of Farnell’s van and located evidence connected to the bank robbery.

The court held the officer had reasonable suspicion to stop Farnell. First, the officer was aware of 

several previous armed bank robberies committed by a heavy-set white male driving a white van. 

Second, the officer knew a heavy-set white male driving a white van had committed a bank 

robbery that morning and he saw a person and vehicle fitting these descriptions driving on a road 

leading away from the bank. Finally, the driver of the van tried to shield his face as he drove past 

the officer. 

The court also held Farnell voluntarily consented to the search of his van. The officer did not 

threaten Farnell or promise him anything and Farnell was not under the influence of drugs or 

alcohol. 

Finally, after the officer found the handgun in the van, the court held the officer was entitled to go 

back and continue to search the van. Without deciding whether the officer’s subsequent search 

was a new and separate search or a continuation of the consent search, the court held the

automobile exception applied. The officer’s discovery of the handgun, along with his previous 

knowledge concerning the bank robbery suspect and van, gave him probable cause to believe 

additional evidence of the bank robbery would be found inside the van. 

Click HERE for the court’s opinion.

*****

United States v. Cotter, 701 F.3d 544 (8th Cir. Mo. 2012)

Officers responded to a call to check on the welfare of two women at a house where they had 

received previous complaints of illegal drug activity and stolen vehicles. Once at the house, the 

officers saw Cotter working on a Cadillac parked in the driveway. One of the officers spoke with 

one of the women at the house who told the officer she did not know Cotter or anything about the 

Cadillac. The other officer called-in the license plate number from the Cadillac and was told it 

was registered to a Chevrolet. Cotter hesitated when the officers asked him for his date of birth 

and seemed nervous and shaky. One of the officers performed a Terry frisk and felt the butt of a 

handgun tucked into Cotter’s front waistband. The officer removed the handgun and arrested 

Cotter. 

Cotter claimed the officers did not have reasonable suspicion to believe criminal activity was afoot 

or that he was armed and dangerous.

The court disagreed. Although there could be an innocent explanation for each of Cotter’s actions, 

when considered together it was reasonable for the officers to suspect the Cadillac was stolen and 

Cotter might be armed. As the officers approached him, Cotter was reaching inside the vehicle, 

which had a license plate registered to a different vehicle, at a house known for illegal drugs and 

stolen vehicles. In addition, Cotter appeared nervous and shaky and hesitated when the officer 

asked him for his date of birth. 

Click HERE for the court’s opinion.

*****
15

9th Circuit

Sims v. Stanton, 2012 U.S. App. LEXIS 24803 (9th Cir. Cal. Aug. 8, 2012)

Officer Stanton and his partner responded to a radio call regarding an “unknown disturbance” 

involving a baseball bat. When the officers arrived, they did not see any disturbance, but only

three men walking in the street. Two men turned into an apartment complex and the third man, 

Nicholas Patrick, walked quickly toward Drendolyn Sims home. Patrick was not carrying a 

baseball bat and there was no indication he had been involved in the disturbance the officers 

were investigating. Stanton got out of the patrol car and ordered Patrick to stop. Patrick ignored 

Stanton, opened the gate to Sims’ front yard and entered the front yard with the gate shutting 

behind him. Believing Patrick was disobeying his lawful order, Stanton kicked opened the gate 

to Sims’ front yard to go after him. Stanton did not realize Sims was standing behind the gate, 

and when it flew open it hit her in the head. Sims was knocked unconscious and suffered 

injuries to her head and shoulder. 

Sims sued Stanton claiming her Fourth Amendment rights had been violated by Stanton’s 

warrantless entry into her front yard.

First, the court determined Sims’ front yard constituted curtilage because the gate Stanton kicked 

open was part of a fence made of solid wood, more than six feet tall, that completely enclosed 

the front yard to Sims’ home. As curtilage, Sims’ front yard was entitled to the same Fourth 

Amendment protections as her home. 

Second, the court ruled exigent circumstances did not exist, which would have allowed Stanton

to enter Sims’ front yard without a warrant. At best, Stanton had probable cause to believe 

Patrick had committed a misdemeanor by disobeying his order to stop. The possible escape of a 

person fleeing from a misdemeanor arrest did not justify Stanton’s warrantless entry into Sims’ 

front yard. In addition, Stanton’s warrantless intrusion was particularly egregious because it 

violated the Fourth Amendment rights of a person not involved in the initial encounter.

Third, the court ruled the emergency exception did not apply. Even though Stanton was called to 

investigate a disturbance involving a baseball bat, he did not see Patrick carrying a baseball bat 

or any other weapon. Once Patrick fled into Sims’ front yard without indicating he would return 

with a weapon or otherwise threaten Stanton with violence, it was unreasonable for Stanton to 

believe Patrick posed an imminent threat to himself or anyone else. 

The court held the law at the time would have placed a reasonable officer on notice that a 

warrantless entry into the curtilage of a home constituted an unlawful search, which could not be 

excused under the exigency or emergency exceptions to the warrant requirements under these 

circumstances. Consequently, Stanton was not entitled to qualified immunity.

Click HERE for the court’s opinion.

*****
16

Coles v. Eagle, 2012 U.S. App. LEXIS 24923 (9th Cir. Haw. Dec. 5, 2012)

Officer Eagle conducted a traffic stop on a car driven by Coles after he learned it had been 

reported stolen. Coles eventually pulled over and was approached by Eagle and Officer 

Robertson, who had arrived on scene. The officers simultaneously ordered Coles to exit the

vehicle and keep his hands on the wheel. The officers claimed Coles was making furtive hand 

movements that did not allow them to see his hands. Coles claimed he moved his hands in an 

effort to open the car door, but then placed his hands on the steering wheel. Both officers denied 

Coles ever placed his hands on the steering wheel. Without warning, Eagle then smashed the 

driver’s side window with his baton and both officers pulled Coles out of the car through the 

window. Coles claimed after the officers removed him from the car they threw him on the 

ground and repeatedly kicked him and that Eagle struck him with his baton. The officers denied 

they beat Coles after removing him from the car. 

The district court held the force used to break the car window and pull Coles from the car was 

reasonable and granted the officers qualified immunity, but that the officers were not entitled to 

qualified immunity for the use of force used once Coles was pulled from the car. 

The court of appeals reversed the district court and held the officers were not entitled to qualified 

immunity for breaking the car window and removing Coles from the car. The court concluded 

there was a material factual dispute as to whether Coles’ hands were on the steering wheel, Coles 

saying yes, the officers saying no, when they broke the window and pulled him from the car. 

The district court improperly granted the officers qualified immunity because a reasonable jury 

could believe Coles’ version of the event and find the officers’ use of force was not justified.

Click HERE for the court’s opinion.

*****

10th Circuit

United States v. Santistevan, 2012 U.S. App. LEXIS 25715 (10th Cir. Colo. Dec. 17, 2012)

While driving to the jail to interview Santistevan, an FBI agent received a call from an attorney 

who advised him she represented Santistevan. The attorney said Santistevan did not wish to 

speak to the agent, and if he went to the jail Santistevan had a letter for the agent she had drafted. 

When the agent arrived at the jail, he told Santistevan he had spoken to an attorney who claimed 

to represent him and then asked Santistevan whether he had a letter. Santistevan gave the agent a 

letter, which stated in part, “Mr Santistevan does not wish to speak with you without counsel.” 

The agent told Santistevan even though he had been advised by an attorney not to talk to him, it 

was up to Santistevan whether he wished to talk to the agent or not. Santistevan agreed to talk to 

the agent without a lawyer present. The agent advised Santistevan of his Miranda rights, which 

he waived, and then Santistevan made several incriminating statements. 

The court of appeals agreed with the district court, which held Santistevan had unambiguously 

invoked his right to counsel when he handed the letter drafted by his attorney to the agent. When 

Santistevan gave the letter to the agent, the court concluded he ratified the contents of the letter 

as his own personal communication to the agent. Once Santistevan did this, he effectively 

invoked his right to counsel and all questioning should have stopped. Because the agent 
17

continued to question Santistevan, the district court properly suppressed the incriminating 

statements he made to the agent. 

Click HERE for the court’s opinion.

*****

United States v. Jones, 2012 U.S. App. LEXIS 25844 (10th Cir. Kan. Dec. 18, 2012)

Police officers with the Missouri Highway Patrol were conducting surveillance on a hydroponics 

store in Kansas City, Missouri because they knew it sold equipment that could be used to grow 

marijuana. After Jones arrived at the store, one of the officers requested a computer check on his 

pick-up truck. The officer learned Jones had a Missouri address, his driver’s license was

suspended in Missouri and he was on parole in Missouri for a drug offense. After Jones left the 

store, the officers followed him to a house in Kansas City, Kansas. The officers stated they did 

not realize they had entered the State of Kansas. The officers approached Jones, briefly spoke 

with him, and then one of the officers asked Jones for his identification. After Jones gave the 

officer his identification, the officer told Jones he would like to search his house. Without 

responding, Jones walked with the officers to the back door and they all entered the house. Once 

inside, Jones stepped into a side room, grabbed a “long gun” and pointed it at one of the officers. 

Another officer fired his duty weapon at Jones, wounding him. Kansas City, Kansas police 

officers eventually obtained a search warrant for Jones’ house and truck and seized over three 

hundred marijuana plants. 

Jones argued the Missouri officers violated the Fourth Amendment when they seized him outside 

of their jurisdiction and that he had not voluntarily consented to the search of the house.

The court disagreed. Even though the Missouri officers were acting outside their jurisdiction and 

without authority under Kansas law, their actions did not constitute a Fourth Amendment

violation. The Missouri officers’ encounter with Jones triggered federal legal standards related 

to the reasonableness of their seizure of Jones. Whether the Missouri officers were acting 

without authority under Kansas law was irrelevant. 

Next, the court determined the officers’ interaction with Jones when they first walked up to him 

until they took his identification was a consensual encounter. Once the officers took Jones’ 

identification, he was seized for Fourth Amendment purposes. However, by this time, the 

officers had established reasonable suspicion to believe he was involved in criminal activity. 

First, Jones had visited a store the officers knew sold equipment to grow marijuana. Second, the 

officers knew Jones had a prior drug conviction. Finally, when one of the officers first 

encountered Jones, he identified himself as a police officer and told Jones he was conducting a 

drug investigation. He then said to Jones, “I’m here for your marijuana plants,” to which Jones 

responded by saying, “Oh shit.” Upon hearing Jones’ comment, the officer could have 

reasonably inferred Jones was concerned about his investigation of marijuana plants because 

Jones possessed some marijuana plants.

The court then found Jones voluntarily gave the officers consent to enter his house. Jones’ nonverbal actions could have been reasonably interpreted by the Missouri officers as communicating 

Jones’ consent to accompany him into his house. 
18

Finally, the court held the information that the Missouri officers obtained during their 

investigation could lawfully form the basis of the search warrants obtained by the Kansas 

officers. 

Click HERE for the court’s opinion.

*****

11th Circuit

United States v. Laist, 2012 U.S. App. LEXIS 25317 (11th Cir. Ga. Dec. 11, 2012)

An FBI agent suspected Laist was involved in the possession and distribution of child 

pornography so he went to Laist’s apartment to conduct a knock and talk interview. During the

interview, Laist admitted there was child pornography on his computer and on five external hard 

drives he owned. Laist accessed the computer and showed the agent an image that appeared to 

be child pornography. Laist then signed a consent form, which allowed the agent to seize his 

computer and five external hard drives and search them. 

Eight days later, the agent received a letter from an attorney that revoked Laist’s consent to 

search. The agent immediately began to draft a search warrant application and affidavit for 

Laist’s computer and external hard drives. The warrant application and affidavit were submitted 

to a magistrate judge twenty-five days later. The judge issued the warrant and the subsequent 

search uncovered thousands of images and videos of child pornography. 

Laist argued the evidence discovered on his computer and external hard drives should have been 

suppressed because the twenty-five delay in obtaining the search warrant, after he revoked his 

consent, was unreasonable and therefore violated the Fourth Amendment.

The court disagreed. A temporary warrantless seizure supported by probable cause is reasonable 

as long as the police diligently obtain a warrant in a reasonable amount of time. First, the 

government clearly had probable cause to believe Laist’s computer and external hard drives 

contained child pornography. Second, the agent acted diligently to obtain a search warrant once 

Laist revoked his consent as he began drafting the search warrant application and affidavit the 

same day he received notice of Laist’s revocation. In addition, the investigation was complex, 

taking over a year to conduct and it involved numerous FBI agents. The agent worked closely 

with the U.S. Attorney’s Office and included extensive amounts of non-boilerplate information

drafted specifically for this warrant application. Finally, it was clear the agent put a 

considerable amount of work into the preparation of the search warrant documents. Based on 

these facts, the court found the twenty-five day delay in obtaining the search warrant to be 

reasonable. 

Click HERE for the court’s opinion.

*****