Department of Homeland Security

Federal Law Enforcement Training Centers

Office of Chief Counsel

Legal Training Division 

February 2016

THE

FEDERAL LAW ENFORCEMENT

-INFORMER- A MONTHLY LEGAL RESOURCE AND COMMENTARY FOR LAW 

ENFORCEMENT OFFICERS AND AGENTS

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Welcome to this installment of The Federal Law Enforcement Informer (The Informer). The Legal Training Division of the Federal 

Law Enforcement Training Centers’ Office of Chief Counsel is dedicated to providing law enforcement officers with quality, useful 

and timely United States Supreme Court and federal Circuit Courts of Appeals reviews, interesting developments in the law, and 

legal articles written to clarify or highlight various issues. The views expressed in these articles are the opinions of the author and 

do not necessarily reflect the views of the Federal Law Enforcement Training Centers. The Informer is researched and written by 

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This edition of The Informer may be cited as 2 INFORMER 16.
2

The Informer – February 2016

Case Summaries

 ♦

Circuit Courts of Appeals

Second Circuit

United States v. Allen: Whether officers violated the Fourth Amendment 

when they arrested the defendant inside his home without an arrest warrant.............................6

Fourth Circuit

Estate of Armstrong v. Village of Pinehurst: Whether officers used 

excessive force by deploying a taser against Armstrong while attempting 

to execute an involuntary commitment order..............................................................................7

Fifth Circuit

United States v. Garcia-Lopez: Whether it was reasonable for officers to lift

a mattress from a bed while conducting a protective sweep.......................................................9

United States v. Weast: Whether an officer violated the Fourth Amendment by

using peer-to-peer software, without a warrant, to identify the defendant’s IP address,

and to download files the defendant made available for sharing.................................................9

Sixth Circuit

Kent v. Oakland County: Whether an officer used excessive force by deploying his

taser against Kent, and whether a second officer had the opportunity and means to

prevent the first officer from deploying his taser against Kent.................................................10

Seventh Circuit

United States v. Hamad: Whether county Department of Revenue agents conducted a

lawful warrantless administrative inspection of the defendant’s business................................11

Eighth Circuit

United States v. Daniel: Whether officers conducted a lawful warrantless search of

the defendant’s vehicle under the automobile exception to the warrant requirement...............12

United States v. Janis: Whether a Native American tribe's public safety officers were 

federal officers for purposes of the federal officer assault statute, 18 U.S.C.S. § 111..............13

United States v. Welch: Whether the failure of agents to provide a copy of a search

warrant to the defendant within the time provided in Federal Rule of Criminal Procedure 

41 required the suppression of evidence obtained under the warrant........................................14

United States v. Jackson: Whether a drug-dog’s alert, by itself, established probable

cause to search the defendant’s aircraft.....................................................................................15

Tenth Circuit

United States v. Fager: Whether an officer established reasonable suspicion the 

defendant was armed and dangerous to support a Terry frisk...................................................16
3

FLETC Informer Webinar Series (Calendar View)

1. Exigent Circumstances: Part II (Destruction Exigency)

In this two-hour webinar, Bruce-Alan Barnard continues his discussion of the exigent 

circumstances exception to the Fourth Amendment’s warrant requirement, focusing on the 

destruction exigency.

Dates and Times: Wednesday March 2, 2016 2:30 p.m. EST

 Thursday March 10, 2016 2:30 p.m. EST

To join this webinar on either date: https://share.dhs.gov/informer

♦

2. Search and Seizure Update

1-hour webinar presented by Bruce-Alan Barnard, FLETC Legal Division. This course will 

review and analyze current federal cases involving Fourth Amendment searches and 

seizures. 

Date and Time: Tuesday March 29, 2016 2:30 p.m. EST

To join this webinar: https://share.dhs.gov/informer

♦

3. Exigent Circumstances: Part III (Hot Pursuit and Other Exigencies)

In this two-hour webinar, Bruce-Alan Barnard continues his discussion of the exigent 

circumstances exception to the Fourth Amendment’s warrant requirement, focusing on Hot 

Pursuit and other exigencies.

Date and Time: Tuesday March 22, 2016 2:30 p.m. EDT

To join this webinar: https://share.dhs.gov/informer

 ♦

4. Indian Law Basics – Part I: Indian Civil Rights Act (TLOA/VAWA)

50 minute webinar with a question and answer session to follow, presented 

by Robert Duncan, Attorney-Advisor- Senior Instructor, Federal Law Enforcement

Training Centers, Artesia, New Mexico.

Date and Time: Wednesday March 2, 2016 1:00 p.m. EST

To join this webinar: https://share.dhs.gov/indianlaw/

 ♦
4

5. Indian Law Basics – Part II: Indian Law History Pre-M’Intosh 

50 minute webinar with a question and answer session to follow, presented 

by Robert Duncan, Attorney-Advisor- Senior Instructor, Federal Law Enforcement

Training Centers, Artesia, New Mexico.

Date and Time: Wednesday March 9, 2016 1:00 p.m. EST

To join this webinar: https://share.dhs.gov/indianlaw/

 ♦

6. Indian Law Basics – Part III: The “Cherokee Cases” and Plenary Power 

50 minute webinar with a question and answer session to follow, presented 

by Robert Duncan, Attorney-Advisor- Senior Instructor, Federal Law Enforcement

Training Centers, Artesia, New Mexico.

Date and Time: Wednesday March 16, 2016 1:00 p.m. EDT

To join this webinar: https://share.dhs.gov/indianlaw/

 ♦

7. Indian Law Basics – Part IV: Jurisdictional Challenges 

50 minute webinar with a question and answer session to follow, presented 

by Robert Duncan, Attorney-Advisor- Senior Instructor, Federal Law Enforcement

Training Centers, Artesia, New Mexico.

Date and Time: Wednesday March 23, 2016 1:00 p.m. EDT

To join this webinar: https://share.dhs.gov/indianlaw/

 ♦

8. Indian Law Basics – Part V: Major Crimes 

50 minute webinar with a question and answer session to follow, presented 

by Robert Duncan, Attorney-Advisor- Senior Instructor, Federal Law Enforcement

Training Centers, Artesia, New Mexico.

Date and Time: Wednesday March 30, 2016 1:00 p.m. EDT

To join this webinar: https://share.dhs.gov/indianlaw/

 ♦
5

FLETC Informer Webinar Schedule – March 2016

Sun Monday Tuesday Wednesday Thursday Friday Sat

1 2

1:00 pm EST

Indian Law: Part I

https://share.dhs.gov

/indianlaw

2:30 pm EST Exigent 

Circumstances II

https://share.dhs.gov

/informer

3 4 5

6 7 8 9

1:00 pm EST

Indian Law: Part II

https://share.dhs.gov

/indianlaw

10

2:30 pm EST Exigent 

Circumstances II

https://share.dhs.gov/i

nformer

11 12

13

Daylight

Savings

Time

Begins

14 15 16

1:00 pm EDT

Indian Law: Part III

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/indianlaw

17 18 19

20 21 22

2:30 pm EDT Exigent 

Circumstances III

https://share.dhs.gov/

informer

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1:00 pm EDT

Indian Law: Part IV

https://share.dhs.gov

/indianlaw

24 25 26

27 28 29

2:30 pm EDT

Search and Seizure 

Update

https://share.dhs.gov/

informer

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1:00 pm EDT

Indian Law: Part V

https://share.dhs.gov

/indianlaw

31

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***************************************************************************
6

CASE SUMMARIES

Circuit Courts of Appeal

Second Circuit

United States v. Allen, 2016 U.S. App. LEXIS 1467 (2d Cir. Vt. Jan. 29, 2016)

Police officers established probable cause that Allen had assaulted an individual two days 

earlier, and without first obtaining an arrest warrant, went to Allen’s apartment to arrest him. 

The officers knocked on the apartment door and Allen answered it, speaking to the officers for 

five or six minutes. During this time, Allen remained inside the threshold of his apartment 

while the officers stood outside on the sidewalk. The officers eventually told Allen that he was 

under arrest and that he had to accompany them to the police station to be processed for the 

assault. Allen asked the officers if he could put on a pair of shoes first, and tell his daughter 

that he would be leaving with the officers. The officers told Allen he could do so, but only if

the officers accompanied him, which they did. Once inside Allen’s apartment, the officers saw 

drug paraphernalia in plain view and Allen gave the officers several bags of marijuana that he 

had in his pocket. Based on these facts, the officers obtained a warrant to search Allen’s 

apartment. While executing the warrant, officers found a handgun. The government later 

charged Allen with being a felon in possession of a firearm. 

Allen filed a motion to suppress the handgun and statements he made to the officers inside his 

apartment. Allen argued the officers violated the Fourth Amendment when they arrested him 

inside his home without an arrest warrant.

In Payton v. New York, the United States Supreme Court held that police officers violated the 

Fourth Amendment by physically entering a home without a warrant to effect an arrest. Since 

Payton, it has been well-settled that police officers may only physically enter a home to effect 

a warrantless arrest with either valid consent or exigent circumstances. 

However, the 5th, 7th and 11th Circuits have interpreted Payton narrowly, concluding there is 

no Payton violation unless police officers physically cross the threshold and enter the home. In 

contrast, the 6th, 9th and 10th Circuits have held that police officers may violate Payton without 

physically entering the home. In those cases, the courts held that it is the location of the arrested 

person, not the arresting officers that determines whether an arrest occurs within a home. The 

courts recognized that police officers could remain outside the home while engaging in conduct 

that would amount to “constructive” or “coercive” entry. Those courts reasoned that when 

officers engage in actions to coerce the occupant outside of the home, they accomplish the same 

effect as an actual entry into the home, which would trigger the requirements of Payton.

It was against this backdrop that the 2nd Circuit had to decide whether Payton permitted 

warrantless “across the threshold” arrests where the police officers summoned the suspect to 

the front door of his home. 

The court concluded that where police officers have summoned a suspect to the door of his 

home, and the suspect remains inside the home, the officers may not effect a warrantless “across 

the threshold” arrest unless exigent circumstances are present. 
7

Here, it was undisputed that the officers told Allen he was under arrest while he was inside his 

home. The officers then took control of Allen’s subsequent movements, further asserting their 

power over him inside his home. Although Allen had no obligation to open the door to speak 

to the officers, the court held that it was reasonable for him to do so, and it did not mean that

Allen had forfeited the Fourth Amendment protections of the home.

In addition, the court noted the officers established probable cause to arrest Allen two days 

before they went to his home, which was ample time to obtain an arrest warrant. The court 

concluded any problems in effecting the arrest were caused by the officers failing to obtain a 

warrant and instead going to Allen’s home planning to arrest him without a warrant.

For the Court’s opinion: http://cases.justia.com/federal/appellate-courts/ca2/13-3333/13-3333-

2016-01-29.pdf?ts=1454079606

*****

Fourth Circuit

Estate of Armstrong v. Village of Pinehurst, 2016 U.S. App. LEXIS 380 (4th Cir. N.C. Jan. 

11, 2016)

Police officers were dispatched to execute an involuntary commitment order that was in the 

process of being completed, and return Armstrong to the hospital after Armstrong walked out 

during a mental health evaluation. Three officers located Armstrong near an intersection 

outside the entrance to the hospital, approached him and engaged in a conversation with him. 

As soon as the officers learned the commitment order was complete, they surrounded 

Armstrong and approached him. Armstrong immediately sat down on the ground and wrapped 

himself around a four-by-four post that was supporting a stop sign. The officers tried to pry 

Armstrong’s arms and legs off the post, but he was wrapped too tightly and the officers could 

not move him. The officers told Armstrong they had a commitment order and that if he did not 

let go of the post, he would be tased. After Armstrong refused to let go of the post, one of the 

officers deployed his taser in drive-stun mode five separate times over a period of 

approximately two minutes against Armstrong. Instead of having the desired effect; however, 

the tasing increased Armstrong’s resistance. At this point, two hospital security officers arrived 

and assisted the three police officers in pulling Armstrong off the post and laying him face down 

on the ground. The officers cuffed Armstrong’s hands behind his back and then placed him in 

leg shackles after he continued to kick at the officers. Once Armstrong was restrained, the 

officers left him face down in the grass while they collected themselves. Armstrong’s sister, 

who witnessed the incident asked the officers to check on Armstrong after she noticed he was 

not moving. The officers immediately checked Armstrong, who did not appear to be breathing. 

The officers performed CPR and had Armstrong transported to the hospital where he later died. 

Representatives of Armstrong’s estate sued the officers pursuant to 42 U.S.C. § 1983, claiming 

the officers used excessive force when they seized Armstrong while attempting to execute the 

involuntary commitment order. 

First, the court concluded the officers used unreasonably excessive force, in violation of the 

Fourth Amendment, when they removed Armstrong from the post. 

While the court recognized that non-compliance with a police officer’s lawful order justifies 

some use of force, the level of force that is justified depends on the risk posed by the non-
8

compliant individual. In addition, the court noted that deploying a taser is a serious use of force, 

and that Fourth Circuit case law makes it clear that tasers are proportional force only when 

deployed in response to a situation in which a reasonable officer would perceive some 

immediate danger that could be mitigated by using the taser. Finally, the court stated that “even 

non-compliance with police directives and non-violent physical resistance do not necessarily 

create a continuing threat to the officers’ safety.” 

Applying these principles as well as the factors outlined in Graham v. Connor to the facts of 

the case, the court concluded the officers’ use of force was not objectively reasonable. 

Specifically, the court found that Armstrong was not suspected of any criminal activity, he was 

stationary, non-violent and surrounded by police officers. Even though Armstrong would not 

allow the officers to pull his arms from around the post and refused to comply with orders to 

let go, a reasonable officer would have perceived a “static stalemate,” and not immediate danger 

justifying the deployment of a taser. Consequently, the court held that immediately tasing a 

non-criminal, mentally ill individual, who seconds before had been conversational, was not a 

proportional response to Armstrong’s degree of resistance. 

Second, while “the officers were treading close to the constitutional line,” the court held they 

were entitled to qualified immunity because Armstrong’s right not to be tased while offering 

stationary and non-violent resistance to a lawful seizure was not clearly established at the time 

of the incident. At the time, case law held that it was unreasonable to tase suspects after they 

had been secured, but in this case the officers did not tase Armstrong after he was secured.

Nevertheless, the court took the opportunity to clarify when the deployment of a taser 

constitutes excessive use of force, stating,

A taser, like “a gun, a baton, . . . or other weapon,” is expected to inflict pain or 

injury when deployed. It, therefore, may only be deployed when a police officer is 

confronted with an exigency that creates an immediate safety risk and that is 

reasonably likely to be cured by using the taser. The subject of a seizure does not 

create such a risk simply because he is doing something that can be characterized 

as resistance -- even when that resistance includes physically preventing an officer's 

manipulations of his body. Erratic behavior and mental illness do not necessarily 

create a safety risk either. To the contrary, when a seizure is intended solely to 

prevent a mentally ill individual from harming himself, the officer effecting the 

seizure has a lessened interest in deploying potentially harmful force.

Where, during the course of seizing an out-numbered mentally ill individual who 

is a danger only to himself, police officers choose to deploy a taser in the face of 

stationary and non-violent resistance to being handcuffed, those officers use 

unreasonably excessive force. While qualified immunity shields the officers in this 

case from liability, law enforcement officers should now be on notice that such 

taser use violates the Fourth Amendment.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca4/15-1191/15-

1191-2016-01-11.pdf?ts=1452542430

*****
9

Fifth Circuit

United States v. Garcia-Lopez, 809 F.3d 834 (5th Cir. Tex. January 11, 2016)

Two police officers went to Garcia-Lopez’s home to serve an arrest warrant on his son, Yonari. 

Garcia-Lopez told the officers that Yonari was not at home and then consented to the officers’ 

request to search the residence for him. As the officers entered the home, they saw a light in a 

distant room and then the door shut. When the officers asked if anyone else was in the home, 

Garcia-Lopez told the officers that his other son, Ivan, was home. The officers went to Ivan’s 

bedroom, and found the door locked. The officers ordered Ivan to open the door, which he did, 

and the officers entered. Ivan asked the officers if he could sit back down on his bed and finish 

his dinner, which had been interrupted. The officers allowed Ivan to do so and began to walk 

around the room. The officers saw two bullet-proof vests on Ivan’s bed, which was comprised 

of a mattress and box spring sitting flush to the floor. Knowing that Ivan was a convicted felon, 

the officers arrested him for being a felon in possession of body armor in violation of 18 U.S.C. 

§ (g)(1). The officers then resumed their search for Yonari and lifted the mattress from Ivan’s 

bed, finding a short barrel shotgun and two rifles. The government indicted Ivan for several 

counts of being a felon in possession of a firearm.

Ivan argued the sawed off shot gun and rifles should have been suppressed because it was 

unreasonable for the officers to lift the mattress from his bed without consent or probable cause.

The court disagreed, holding the protective sweep exception supported the warrantless mattress 

search. A protective sweep is limited to a visual inspection of those places in which a person 

might be hiding and can last no longer than necessary to dispel the reasonable suspicion of 

danger, or no longer than it takes to complete the arrest and depart the premises. 

Here, it was undisputed the officers were lawfully in Ivan’s bedroom with a valid warrant for 

his brother’s arrest. Once inside the bedroom, the officers testified they became suspicious 

after Ivan immediately requested to sit back down on his bed. As a result, the court concluded 

it was reasonable for the officers to believe that Yonari might have concealed himself beneath 

the mattress in a hollowed out box spring. Once the officers lifted the mattress, and dispelled 

their suspicion that Yonari was concealed underneath it, they made a lawful plain view seizure 

of the firearms. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/14-41392/14-

41392-2016-01-11.pdf?ts=1452558630

*****

United States v. Weast, 2016 U.S. App. LEXIS 1232 (5th Cir. Tex. Jan. 26, 2016)

A police officer used peer-to-peer file sharing software to search for computer users sharing 

child pornography. After the officer located an IP address whose user appeared to be sharing 

child pornography, the officer used the peer-to-peer software to download six files shared by 

the user. The files had been stored on a computer that the user had nicknamed “Chris.” The 

officer issued a subpoena to the internet service provider (ISP) and discovered the IP address 

was registered to Larry Weast. Officers executed a search warrant at Weast’s residence where 

they found his son, Chris. The officers seized a computer hard drive belonging to Chris Weast 

that contained child pornography. The government charged Weast with possession and receipt 

of child pornography. 
10

Weast filed a motion to suppress the evidence found on his hard drive, arguing the officer 

violated the Fourth Amendment by using peer-to-peer software, without a warrant, to identify 

Weast’s IP address, and to download files that Weast made available for sharing. 

The court disagreed, holding that Weast did not have a reasonable expectation of privacy in his 

IP address. In a case of first impression, the court followed the 3rd, 4th, 8th and 10th circuits, 

which have held that subscriber information provided to an internet provider, including IP 

addresses, is not protected by the Fourth Amendment’s privacy expectation because it is 

voluntarily conveyed to third parties. 

The court further held that by making child pornography files publicly available by 

downloading them into a shared folder accessible through a peer-to-peer file-sharing network, 

Weast eliminated any reasonable expectation of privacy he might have had in those files. This 

holding is consistent with holdings in similar cases from the 6th, 8th and 9th circuits. For these 

reasons, the court concluded the officer did not violate the Fourth Amendment when he 

accessed Weast’s IP address and shared files. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/14-11253/14-

11253-2016-01-26.pdf?ts=1453833055

*****

Sixth Circuit

Kent v. Oakland County, 810 F.3d 384 (6th Cir. Mich. Jan. 6, 2016)

Michael Kent, a physician, was caring for his father who suffered from a number of serious 

health problems. On September 1, 2013, Kent checked on his father and discovered that his 

father was no longer breathing, he had no pulse and that his pupils were fixed and dilated. 

Kent’s wife called the non-emergency dispatch and reported the natural death of Kent’s father. 

Approximately twenty-minutes later, Deputy Lopez and Firefighter-EMT Oryszczak arrived at 

Kent’s house and were directed to an upstairs bedroom. EMT Oryszczak told Kent that in the 

absence of proper do-not-resuscitate paperwork, his emergency responder’s protocol required 

him to attach an Automated External Defibrillator (AED) “to determine if there were signs of 

life” and “do everything they could for the patient.” At this point, Kent began to yell at EMT 

Oryszczak and Deputy Lopez, telling them that they were not going to assault his dead father. 

Kent also told them that his mother, as the medical proxy for his father, could tell them what 

his father’s wishes were. Deputy Maher arrived around this time and saw that Kent was 

gesturing with his hands and flailing his arms in the air. As the situation deteriorated, the 

deputies asked Kent to go downstairs and talk with them, but Kent refused, and demanded that 

the deputies leave his house. Deputy Lopez then pulled out his taser and told Kent that if he 

did not calm down, Lopez would tase him. Kent, who was standing with his hands raised in

the air and his back to the wall told Deputy Lopez, “Go ahead and tase me, then.” Deputy Lopez 

deployed his taser in dart-mode, striking Kent in the stomach and chest. Kent fell to the floor, 

and after the five-second tase cycle, Deputy Maher ordered Kent to present his hands for 

handcuffing. Kent complied. Although the deputies told Kent that he was not under arrest, 

Kent remained handcuffed, with the taser probes still attached, during fifteen to twenty minutes 

of questioning by another deputy who had arrived. EMTs then removed the probes, dressed 
11

Kent’s wounds and Deputy Maher removed the handcuffs. During this time, an EMT conducted 

an AED assessment on Kent’s father and pronounced him dead. 

Kent sued Deputies Lopez and Maher under 42 U.S.C. § 1983, claiming the deputies violated 

his Fourth Amendment rights and under state law for assault and battery. Specifically, Kent 

claimed that Deputy Lopez’s use of the taser constituted excessive force, and that Deputy Maher 

failed to intervene and prevent Deputy Lopez’s use of excessive force. 

The court held Deputy Lopez was not entitled to qualified immunity. The court found that 

Kent’s actions did not constitute an immediate threat to the officer’s safety that justified Deputy 

Lopez’s deployment of the taser against him. While Kent might have prevented the EMT from 

fulfilling his perceived duties and refused the deputies’ orders to calm down, it was undisputed 

that Kent was unarmed, and he made no evasive movements to suggest that he had a weapon. 

In addition, Deputy Lopez tased Kent while Kent had his hands raised in the air and his back 

against the bedroom wall. As a result, the court concluded Deputy Lopez’s deployment of his 

taser against Kent was objectively unreasonable under the circumstances.

The court further held in September 2013 it was clearly established that to tase an individual 

who refused to comply with officers’ commands to calm down and yelled at emergency 

responders, but was never told he was under arrest, never demonstrated physical violence , and 

had his arms in the air and his back to the wall when tased, constituted excessive use of force.

Concerning Deputy Maher, the court concluded she was not entitled to qualified immunity. The 

court found that Deputy Maher was in the bedroom for the majority of the incident, she 

communicated with Deputy Lopez at the situation developed, and she was facing Kent when 

she heard Deputy Lopez warn Kent that he would use the taser. Consequently, the court 

concluded Deputy Maher had the “opportunity and the means to prevent” Deputy Lopez from 

deploying his taser against Kent. 

Finally, the court denied Deputies Lopez and Maher qualified immunity on Kent’s state law 

assault and battery claims.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca6/14-2519/14-

2519-2016-01-06.pdf?ts=1452101438

*****

Seventh Circuit

United States v. Hamad, 809 F.3d 898 (7th Cir. Ill. January 4, 2016)

Cook County Department of Revenue agents used an intern to make an undercover purchase of 

cigarettes from Hamad’s convenience store. At the time, a properly-taxed pack of cigarettes in 

Chicago cost $8 or $9; however, the intern purchased a pack of cigarettes for $6. When the 

agents examined the pack of cigarettes they determined it did not bear the required Cook County 

tax stamp. Pursuant to a county ordinance that taxes and regulates the sale of cigarettes, the

agents and the intern then entered Hamad’s store, identified themselves and went behind the 

counter to examine the cigarette inventory to determine if there were additional unstamped 

packs. Behind the counter, the agents found approximately 1,500 loose hydrocodone pills in a 

candy jar and a handgun concealed in a velvet bag. After Hamad was arrested, he made several 
12

incriminating statements. The government charged Hamad with being a felon in possession of 

a firearm. 

Hamad argued that the sale of an unstamped pack of cigarettes was insufficient justification for 

the warrantless search of his convenience store by the agents. 

The court disagreed. Business owners have a reasonable expectation of privacy in commercial 

property with respect to traditional police searches as well as administrative inspections 

designed to enforce regulatory statutes. However, in this case, the county cigarette ordinance 

authorized the warrantless administrative search of Hamad’s store. In addition, Hamad’s store 

was subject to the administrative search exception to the Fourth Amendment’s warrant 

requirement because his store sold cigarettes, whose sale has been closely regulated in Chicago 

for over 100 years. Finally, the county cigarette ordinance provided a constitutionally adequate 

substitute for a warrant because it limited the time of an inspection to regular business hours, 

and it limited the inspections to cigarettes, their packaging, and the tax stamps. The court noted 

the inspection of Hamad’s store occurred during regular business hours and immediately after 

the purchase of a pack of unstamped cigarettes. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca7/14-3813/14-

3813-2016-01-04.pdf?ts=1451941239

*****

Eighth Circuit

United States v. Daniel, 809 F.3d 447 (8th Cir. Mo. January 5, 2016)

Two patrol officers saw a man standing outside a vehicle engage in what appeared to be a handto-hand drug transaction with a man sitting in the back of the vehicle in a location the officers 

considered a “high narcotics” area. The officers drove around the corner and ran a computer 

check on the vehicle’s license plate. The check revealed that the vehicle was registered to Brian 

Daniel, a man for whom there were two outstanding arrest warrants. In addition, the physical 

description of Daniel matched the man sitting inside the vehicle. The officers returned and 

approached Daniel as he was walking away from the vehicle. After Daniel gave the officers 

his name and date of birth, the officers confirmed this information matched the two outstanding 

arrest warrants. As the officers prepared to arrest Daniel, he threw a plastic baggie to the 

ground. The officers recovered the baggie, which contained illegal drugs. After handcuffing 

Daniel, the officers smelled the odor of fresh marijuana emanating from Daniel’s vehicle. The 

officers searched the vehicle and recovered a loaded handgun, marijuana and drug 

paraphernalia. The government charged Daniel with being a felon in possession of a firearm. 

Daniel argued the evidence seized from his vehicle should have been suppressed because the 

officers did not establish probable cause to support a warrantless search under the automobile 

exception to the Fourth Amendment’s warrant requirement. 

The court disagreed. First, the officers saw Daniel engage in what appeared to be a hand-tohand drug transaction from inside his vehicle. Second, the officers then recovered a baggie of 

drugs that Daniel discarded outside the vehicle. Finally, the officers smelled the odor of 

marijuana emanating from Daniel’s vehicle. The court concluded these facts gave the officers 

probable cause to believe the vehicle contained marijuana or other evidence of drug-related 

activity. 
13

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/15-1135/15-

1135-2016-01-05.pdf?ts=1452014714

*****

United States v. Janis, 810 F.3d 595 (8th Cir. S.D. January 15, 2016)

Officer Mousseau, an officer of the Oglala Sioux Tribe (OST) Department of Public Safety

(DPS), responded to a report that individuals, including Janis, were consuming alcohol at a 

home on the Pine Ridge Indian Reservation. At the time, tribal law prohibited alcohol 

consumption on the Pine Ridge Reservation. An altercation ensued, and Janis was eventually 

arrested after he repeatedly pushed, hit and attempted to kick Officer Mousseau. The 

government charged Janis with assault of a federal officer, in violation of 18 U.S.C. § 111.

Janis appealed his conviction, arguing that the trial court improperly ruled that OST public 

safety officers, such as Mousseau, are “federal officers” under 18 U.S.C. § 111 when these 

officers are enforcing tribal laws. 

The court disagreed. The Indian Law Enforcement Reform Act provides the Secretary of the 

Interior, acting through the Bureau of Indian Affairs (BIA), “shall be responsible for providing, 

or for assisting in the provision of, law enforcement services in Indian country.” The statute 

permits the BIA to enter into agreements with tribal agencies that allow those agencies to “aid 

in the enforcement or carrying out in Indian country of a law of either the United States or an 

Indian tribe that has authorized the secretary to enforce tribal laws.” When acting under the 

authority of such an agreement, “a person who is not otherwise a Federal employee shall be 

considered to be . . . an employee of the Department of the Interior only for purposes of . . . 

section 111 . . . of Title 18.” In addition, the Eighth Circuit Court of Appeals has held the plain 

meaning of these provisions is that tribal officers are afforded the same protections under 18 

U.S.C. § 111 that Congress has afforded BIA employees, regardless of whether the officer is 

enforcing tribal, state or federal law. 

Here, the court held the agreement between the OST DPS and BIA required the OST DPS “to 

provide for the protection of lives, and property for persons visiting or residing within the . . . 

Pine Ridge Indian Reservation. The agreement also required the OST DPS “to assist the BIA 

and other federal, tribal and state law enforcement official in the investigation of tribal, state or 

federal offenses.” In return, the BIA agreed to reimburse the OST DPS for the expenses it 

incurred. Consequently, because OST public safety officers operated pursuant to this 

agreement, the district court correctly concluded those officers are afforded the same protection 

under 18 U.S.C. § 111 that Congress has afforded BIA employees.

Janis also claimed the district court improperly determined as a matter of law that Officer 

Mousseau was a federal officer at the time of the incident with Janis. 

The court agreed, holding the jury should have determined whether Officer Mousseau was 

employed as a public safety officer and whether she was acting in that capacity at the time of 

the incident. However, overwhelming evidence admitted at trial, including a stipulation by 

Janis, demonstrated that Mousseau was in fact an OST public safety officer, and therefore a 

federal officer. The court concluded in light of this overwhelming evidence that a rational jury 

still would have found Janis guilty. 
14

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/14-3888/14-

3888-2016-01-15.pdf?ts=1452875464

*****

United States v. Welch, 2016 U.S. App. LEXIS 976 (8th Cir. Neb. January 21, 2016)

The FBI began an investigation into a computer server in Nebraska that was hosting childpornography websites. One of the websites, PedoBook, operated on a clandestine network, 

accessible only with special software and designed to obscure a user’s identity. This prevented 

FBI agents from discovering the Internet Protocol (IP) addresses of PedoBook users. Instead 

of shutting the server down, the FBI sought to install software on the server that would 

circumvent this network, providing agents with information about any user who accessed 

certain content on PedoBook. This information included the user’s IP address, the date and 

time the user accessed the content, and his or her computer’s operating system. The FBI 

obtained a Network Investigative Technique (NIT) warrant to install its software on the server 

in November 2012, and kept the website in operation for approximately three weeks, collecting 

information on several PedoBook users. Based on this information, the FBI obtained Welch’s 

IP address. In December 2012, the FBI received subscriber information for that IP address 

from an ISP, revealing Welch’s name and address in Florida. The FBI obtained a warrant to 

search that address which they executed on April 9, 2013. At that time, the agents arrested 

Welch and provided him notice of the NIT warrant shortly thereafter. 

Welch filed a motion to suppress evidence obtained as a result of the NIT warrant. Welch 

argued that the failure of the agents to provide a copy of the NIT warrant to him within the time 

allowed under Federal Rule of Criminal Procedure 41(f)(1)(C) violated his rights under the 

Fourth Amendment. 

Federal Rule of Criminal Procedure 41(f) requires that a copy of an executed search warrant 

be provided to the owner of the property seized. However, Rule 41 (f)(3) allows a delay in 

providing the warrant if authorized by statute. Title 18 U.S.C. § 3103a(b) allows a delay in 

providing the warrant under certain circumstances for thirty days or to a later date, and officers 

may seek extensions. The NIT warrant provided that because immediate notification might 

have an adverse impact on the investigation, notice to Welch could be delayed by thirty days. 

Welch argued that the thirty-day period began to run from the date the government received the 

subscriber information for Welch’s IP address from his ISP in December 2012. Because Welch 

did not receive notice of the NIT warrant until April 2013, he argues the delay of approximately 

122 days was well past the 30 days provided for in the warrant. 

The government argued that Rule 41(f)(1)(C) did not apply to the NIT warrant because it merely 

collected information and did not seize property in which Welch had a possessory interest. The 

government also argued that Welch had no reasonable expectation of privacy in his subscriber 

information. 

First, the court assumed with deciding, that Rule 41 applied to the NIT warrant. Second, the 

court held that 18 U.S.C. § 3103a(b) clearly states that the delay in notification of the warrant 

runs from the date of the execution of the warrant. Third, the FBI executed the NIT in 

November 2012, but did not notify Welch until April 2013, more than thirty-days later. Fourth, 

the FBI did not request permission from the magistrate judge to delay notice to Welch beyond 
15

thirty-days. As a result, the court concluded the government failed to provide Welch proper 

notice of the NIT warrant under Rule 41. 

However, the court explained that a procedural rule violation does not automatically render a 

search and seizure unreasonable under the Fourth Amendment. For Welch to prevail, in 

addition to the Rule 41 violation, Welch was required to show he was prejudiced by the violation 

or that the investigators recklessly disregarded proper procedure. 

The court found the NIT warrant indicated that a thirty-day delay in notice had been granted, 

but the warrant did not specify whether that period ran from the execution of the warrant or 

from identification of an individual. Because the warrant application specifically requested 

delayed notification until an individual was identified, it appeared to the court that the 

government’s delay was a good-faith application of the warrant, rather than a deliberate 

violation of Rule 41. The court further held there was no evidence that the Rule 41 violation 

prejudiced Welch because the government could have easily obtained extensions to delay notice 

if it had requested them. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/15-1993/15-

1993-2016-01-21.pdf?ts=1453393843

*****

United States v. Jackson, 2016 U.S. App. LEXIS 1350 (8th Cir. Mo. Jan. 28, 2016)

Jackson’s small aircraft diverted from its original flight plan and landed at the downtown airport 

in Kansas City. Homeland Security agents, finding this suspicious, contacted the Airport Police 

who brought a drug-detection dog to conduct a sniff around Jackson’s plane. After the dog 

alerted to the presence of narcotics near both wings of Jackson’s aircraft, agents began to draft 

an affidavit for a search warrant.

In the meantime, Drug Enforcement Administration (DEA) agents located Jackson at a nearby 

hotel. The agents knocked on Jackson’s door, but received no answer. The agents then called 

Jackson’s room. Jackson answered, saying he would come to the door, but he never did. 

Several hours later, the agents arrested Jackson as the attempted to leave his room and 

transported him back to the airport.

A few hours later, agents at the airport obtained the search warrant and found marijuana 

concealed in Jackson’s plane.

First, Jackson filed a motion to suppress the marijuana, arguing the drug dog’s alert did not 

establish probable cause to search his aircraft.

The court disagreed. In Florida v. Harris, the United States Supreme Court held that evidence 

of a drug-dog’s satisfactory performance in a certification or training program can by itself, 

“provide sufficient reason to trust” the dog’s alert.” Here, the court found the search warrant 

affidavit provided sufficient facts to establish the dog’s reliability. First, the affidavit stated an 

established company trained the dog alongside her handler. Second, the dog’s training lasted 

four-weeks, including operations in buildings, lockers, luggage, automobiles, and open areas. 

Finally, the affidavit noted that the dog was certified with a 97 percent accuracy rate in detecting 

illegal drugs. As a result, the court held the drug-detection dog was reliable, and that her alert, 

by itself, established probable cause to believe Jackson’s plane contained illegal drugs. 
16

In addition, the found that other facts supported a finding of probable cause. For example, 

Jackson was a licensed pilot for less than one month, and he had purchased his aircraft only 

months before. Jackson had flown a non-commercial aircraft a long distance at night and he 

deviated from his flight plan, which the court found suspicious for a new pilot. Finally, 

Jackson’s evasive behavior when the agents encountered him at the hotel supported a finding 

of probable cause. 

Jackson also claimed that his arrest in the hotel room and his subsequent detention awaiting the 

search warrant were illegal; therefore, the marijuana seized from his aircraft should have been 

suppressed as the “poisonous fruit” of his arrest.

The court disagreed. The court held the marijuana discovered in Jackson’s aircraft was seized 

because of the search warrant, which was based on information obtained before Jackson’s arrest 

and detention. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/14-3756/14-

3756-2016-01-28.pdf?ts=1453998656

*****

Tenth Circuit

United States v. Fager, 2016 U.S. App. LEXIS 995 (10th Cir. Kan. January 21, 2016)

An officer stopped Fager’s car around 8:00 p.m. for a turn signal violation near an apartment 

complex in a high-crime area. The officer approached the passenger-side of the car and 

encountered Fager, the driver, and Walls, who was in the front passenger’s seat. The officer 

noticed Fager’s eyes were watery, his speech was soft, and an unopened can of beer sat in the 

center console of the vehicle. In addition, Walls continually leaned forward in a way that he 

made the officer believe that he was trying to obstruct the officer’s view of Fager. After the 

officer received identification from both men, he discovered that Walls had several outstanding 

arrest warrants, but he was not told the nature of the warrants. After a back-up officer arrived, 

the original officer directed Fager to exit his vehicle. After the officer determined Fager was 

not impaired, he asked Fager for consent to search his vehicle. Fager consented. Because it 

was cold, the officer gave Fager the option to sit inside the officer’s patrol car instead of 

standing outside. Fager agreed. The officer then told Fager he wanted to pat him down to make 

sure Fager did not possess any weapons. Fager did not say anything, but he positioned himself 

for a pat-down. The officer conducted a pat-down search and found a firearm in the waistband 

of Fager’s pants. The officer arrested Fager, who was charged with being a felon in possession 

of a firearm. 

Fager filed a motion to suppress the firearm, arguing the officer’s pat-down was not supported 

by reasonable suspicion that Fager was armed and dangerous.

The court disagreed, holding the totality of the circumstances supported reasonable suspicion 

for the officer to believe Fager might be armed and dangerous. First, while conducting their 

search of Fager’s car, the officers would have had to turn their backs on Fager. The court noted 

that Eight Circuit case law had held that when an officer must “turn his or her back to a 

defendant,” little is required beyond this concern to support the officer’s reasonable suspicion. 

Second, Walls, a man with several outstanding arrest warrants was still at the scene, and it was 

reasonable for the officer to believe that Fager and Wall could have mounted a joint attack 
17

against the officers. Third, Walls had been acting suspiciously when the officer initially 

approached eth vehicle by blocking his view of Fager. Finally, the stop occurred in a highcrime area at nighttime. Under these circumstances, the court concluded the officer was 

justified in frisking Fager. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca10/15-3104/15-

3104-2016-01-21.pdf?ts=1453395655

*****