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October 2015

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

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2

The Informer – October 2015

Case Summaries

 ♦

Circuit Courts of Appeals

First Circuit

United States v. Hinkley: Whether the defendant was in custody for Miranda

purposes, whether the defendant’s consent to search was voluntary, and whether 

the officer was required to repeat Miranda warnings after a break in questioning.....................4

Second Circuit

Unites States v Diaz. : Whether an officer had reasonable suspicion to conduct a

traffic stop after the defendant crossed the fog line.....................................................................5

United States v. Levy: Whether a CBP officer’s inspection and copying of the 

defendant’s notebook was supported by reasonable suspicion, whether a CBP 

officer could rely on information provided by another federal agency to support 

reasonable suspicion, and whether the CBP officer was authorized to investigate

an offense that fell outside the scope of his official duties..........................................................6

Sixth Circuit

United States v. Brown: Whether an officer established probable cause in his 

search warrant affidavit, and whether the information provided was stale.................................7

Ninth Circuit

United States v. Fowlkes: Whether exigent circumstances justified the warrantless

entry into the defendant’s apartment, and whether the warrantless seizure of a plastic

bag protruding from the defendant’s body was reasonable.........................................................8

District of Columbia Circuit

United States v. Weaver: Whether a violation of the knock-and-announce rule during

the execution of an arrest warrant required suppression of evidence discovered inside

the defendant’s apartment............................................................................................................9

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4

CASE SUMMARIES

Circuit Courts of Appeal

First Circuit

United States v. Hinkley, 2015 U.S. App. LEXIS 17215 (1st Cir. Me. Sept. 30, 2015)

On July 19, 2012, police officers received a report that Hinkley had inappropriate contact with 

two boys at his apartment. An officer spoke with Hinkley and asked him to come to the police 

station for an interview. Hinkley agreed and transported himself to the police station. At the 

beginning of the interview the officer told Hinkley that he was not in custody, asked him if he 

would mind if the door was closed and reminded Hinkley how to exit the police station in the 

event of an emergency. Twenty-nine minutes into the interview, the officer told Hinkley that 

he was still free to leave. Approximately thirty-nine minutes into the interview, the officer told 

Hinkley that he was no longer free to leave, and advised Hinkley of his Miranda warnings. 

Hinkley told the officer he understood his rights and continued to answer questions. In addition, 

Hinkley signed a consent-to-search form for his apartment. During the search, officers 

discovered images of child pornography on Hinkley’s computer. The officers arrested Hinkley 

and transported him to jail.

On July 20, 2012, the officer interviewed Hinkley again. Before asking Hinkley any questions, 

the officer asked Hinkley if he remembered the Miranda warnings he had received the previous 

day. Hinkley told the officer he remembered the Miranda warnings, and when the officer asked 

Hinkley whether he wanted the warnings repeated, Hinkley said no. No new Miranda warnings 

were provided and Hinkley made incriminating statements. 

First, Hinkley argued his statements from the July 19 interview should have been suppressed. 

Hinkley claimed he was in custody from the beginning of the interview, but did not receive

Miranda warnings until thirty-eight minutes later.

The court disagreed. Hinkley arrived voluntarily at the police station and was told at the 

beginning of the interview, and again twenty-nine minutes into the interview, that he was free 

to leave. In addition, Hinkley was never restrained, and one officer only interviewed him. The

court found the mere fact an interview occurs at a police station does not automatically create 

a custodial situation. Consequently, the court held Hinkley was not in custody for Miranda 

purposes at the beginning of the interview and Miranda warnings were not required until thirtyeight minutes into the interview when the officer told Hinkley that he was no longer free to 

leave. The court further held Hinkley made a valid waiver of his Miranda rights by making 

uncoerced statements to the officer after acknowledging that he understood his rights. 

Second, Hinkley argued the physical evidence seized from his apartment should have been 

suppressed because Hinkley only consented to the search after the officer told him that his 

apartment would be searched eventually, with or without his consent. 

Again, the court disagreed. The court held Hinkley’s consent was not rendered involuntary by 

the officer’s statement to Hinkley, as it was reasonable for the officer to believe that he would 

be able to obtain a warrant to search the apartment even if Hinkley refused consent to search. 
5

Finally, Hinkley argued his statements from July 20 should have been suppressed because the 

officer was required to re-administer the full Miranda warnings rather than ask Hinkley if he 

recalled the warnings from the previous day. 

The court stated that once effective Miranda warnings are administered, those warnings remain 

in effect until the passage of time or an intervening event makes the defendant unable to fully 

consider the consequences of waiving them. In this case, Hinkley acknowledged that he 

remembered the Miranda warnings, remained familiar with them, and did not need them 

repeated less than twenty-four hours after he received them the first time. As a result, the court 

found there was no indication the passage of time was long enough to make Hinkley’s second 

waiver involuntary; therefore, his statements to the officer on July 20 were admissible.

Click HERE for the court’s opinion.

*****

Second Circuit

United States v. Diaz, 2015 U.S. App. LEXIS 15920 (2d Cir. N.Y. Sept. 8, 2015) 

A police officer in Meridian, Mississippi stopped an 18-wheel tractor-trailer after he saw the 

right rear wheels of the trailer twice cross the solid white fog line on the right side of road. The 

officer believed crossing the fog line constituted careless driving in violation of Mississippi 

state law. A subsequent search of the truck revealed large quantities of heroin and cocaine. As 

a result, the government indicted the occupants of the truck, Diaz and Wellington, with 

conspiracy to possess with intent to distribute heroin and cocaine. 

The district court granted the defendants’ motion to suppress the drugs. The court held the 

government failed to establish that the momentary touching of the fog line by the trailer’s rear 

wheels, without other evidence of careless driving, constituted a violation under Mississippi 

law.

The government appealed, arguing that the officer had reasonable suspicion to stop the 

defendants for careless driving after he saw the trailer’s wheels cross the fog line. 

The court agreed. First, the court recognized the trailer’s touching or crossing the white fog 

line might be explained by circumstances other than carelessness. For example, the court noted 

a driver might swerve to avoid an object in the road. However, the court emphasized the 

question is not whether driver actually violated the careless driving statute, but whether an 

objectively reasonable officer could have formed a reasonable suspicion of carelessness under 

the circumstances. The court supported its position by citing several Mississippi Court of 

Appeals decisions, which held that an officer’s observation of one or more lane-line incursions 

justified a traffic stop pursuant to the Mississippi careless driving statute. As a result, the court 

held when the officer saw the trailer’s rear wheels cross the fog line, he had reasonable suspicion 

to justify the traffic stop.

Click HERE for the court’s opinion.

*****
6

United States v. Levy, 2015 U.S. App. LEXIS 17154 (2d Cir. Sept. 29, 2015)

Following a business trip to Panama, Levy returned to the Miami International Airport to face 

criminal charges he expected to be filed against him. At the time, Levy was aware he was the 

target of a criminal investigation into a series of stock manipulation schemes. At the airport, 

United States Customs and Border Protection (CBP) officers detained Levy and escorted him 

to a holding area after receiving information about the investigation into Levy from a Drug 

Enforcement Administration (DEA) task force. Outside of Levy’s presence, the CBP officers 

inspected Levy’s luggage, focusing on a spiral-bound notebook that contained eighteen pages 

of Levy’s handwritten notes on a variety of subjects related to Levy’s business dealings. After 

CBP officers examined and photocopied the notebook, they returned it to Levy, who was 

allowed to leave the airport. 

At trial, the government entered the photocopy of Levy’s notebook into evidence. After Levy 

was convicted, he argued the district court should have suppressed the photocopy of the 

notebook. Levy claimed the search of the notebook was a “non-routine’ border search because 

it went beyond what a traveler expects at a point of entry into the United States. 

The court disagreed. First, the court recognized the government has border search authority to 

conduct “routine” searches of people and items entering the United States without any degree 

of suspicion. Had the CBP officers merely reviewed Levy’s notebook and returned it to him 

without copying it, the court had no doubt the search would have been “routine.” However, the 

court added, whether searching and copying Levy’s notebook constituted a “routine” border 

search that could be conducted without reasonable suspicion was debatable. Nevertheless, the

court declined to decide the issue, instead holding the CBP officers’ inspection and copying of 

the notebook was supported by reasonable suspicion that Levy was engaged in a financial 

crime. The court concluded that based on the information provided by the DEA task force, the 

CBP officers were aware of Levy’s ongoing criminal participation in securities fraud schemes, 

which justified searching and copying Levy’s notebook. 

Second, the court concluded the CBP officers were entitled to rely on the information provided 

by the DEA task force to justify their search. Whether a Custom’s official’s reasonable 

suspicion arises entirely from his or her own investigation, or is prompted by another federal 

agency is irrelevant to the validity of a border search. The court stated the Fourth Amendment

does not prohibit Customs officials from conducting a border search just because the search 

supports another federal agency’s criminal investigation. 

Finally, Levy argued that border searches conducted by the CBP, even at the prompting of 

another federal agency, should be confined to crimes the CBP is specifically authorized to 

investigate. 

The court disagreed. While the primary purpose of a border search is to seize contraband 

property unlawfully brought into the United States, CBP officers are not required to ignore 

tangible or documentary evidence of other federal crimes. CBP officers have the authority to 

search and review a traveler’s documents and other items at the border when they have 

reasonable suspicion the traveler is engaged in criminal activity, even if the crime falls outside 

the primary scope of their official duties. 

Click HERE for the court’s opinion.

*****
7

Sixth Circuit

United States v. Brown, 2015 U.S. App. LEXIS 16148 (6th Cir. Mich. September 11, 2015)

On March 8, 2011, federal and state police officers arrested Middleton, Brown and Woods for 

attempted delivery of heroin after conducting a traffic stop on Woods’ vehicle. In response to 

standard booking questions, Brown provided a home address and possessed a driver’s license 

that listed the same address as his residence. 

The next day, officers obtained a warrant to search Middleton’s house. When officers executed 

the warrant, they discovered a vehicle registered to Brown on the street in front of Middleton’s 

house. The vehicle registration listed the same address Brown had given the officers as his 

home address the day before. In addition, a drug-detection dog alerted to the odor of narcotics 

inside Brown’s vehicle. A few days later, an agent with the Drug Enforcement Administration 

(DEA) discovered Brown had a prior conviction for drug distribution, and had served time in 

federal prison.

On March 30, 2011, the DEA agent applied for a warrant to search Brown’s house for evidence 

related to drug trafficking. A magistrate judge issued the warrant, which officers executed on 

March 31, 2011, twenty-two days after Brown’s arrest. Pursuant to the warrant, the agents 

found drugs, firearms, and ammunition inside Brown’s house. 

The government charged Brown with a variety of drug and firearms offenses.

Brown moved to suppress the evidence seized from his house. First, Brown argued the 

information in the agent’s search warrant affidavit failed to establish probable cause because it 

did not establish a connection between illegal drug activity and Brown’s house. Second, Brown 

argued the information contained in the agent’s affidavit was stale.

The court held the agent’s affidavit established a sufficient connection or nexus between drug 

trafficking and Brown’s house to support the issuance of the search warrant. While the affidavit 

contained no evidence indicating Brown distributed drugs from his house, that he stored drugs 

at his house, or that any suspicious activity had taken place there, the affidavit presented the 

magistrate judge with more than an uncorroborated suspicion Brown was a key drug dealer. 

First, the affidavit identified Brown as a previously convicted drug dealer and detailed the 

DEA’s investigation of Brown’s involvement in an ongoing drug trafficking ring. Second, the 

affidavit contained information concerning a drug-dog’s detection of drug odor in a vehicle 

registered in Brown’s name at the address where he lived. As a result, the court concluded the 

magistrate judge could reasonably infer from these facts that Brown had recently used the 

vehicle registered to his home address to transport drugs, and there would be a fair probability 

a search of his house would result in the seizure of contraband or evidence of a crime. 

The court further held the information contained in the agent’s search warrant affidavit was not 

stale. The court noted staleness is measured by the circumstances of the case, not by the passage 

of time alone. In this case, the court found the nature of the crime suggested a continuous and 

ongoing drug trafficking conspiracy of which Brown was a member. As a result, the court 

concluded the information known to the agent did not become stale in the 22 days between 

Brown’s arrest on March 8 and the agent’s application to search Brown’s house on March 30. 

Click HERE for the court’s opinion.

*****
8

Ninth Circuit

United States v. Fowlkes, 2015 U.S. App. LEXIS 17097 (9th Cir. Cal. Sept. 28, 2015)

On September 4, 2006, officers intercepted several phone calls that caused them to believe 

Fowlkes was planning to destroy or remove drugs and other evidence from his apartment. 

Within an hour of the last phone call, officers arrived at the apartment, entered without a 

warrant, handcuffed Fowlkes and conducted a protective sweep. During this time, the officers 

saw a handgun. The officers then obtained a warrant to search the apartment and seized crack 

cocaine, a digital scale and the handgun. At the conclusion of the search, the officers released 

Fowlkes. 

On September 13, 2006, officers arrested Fowlkes for felony drug possession after witnessing 

what appeared to be a drug transaction, and transported him to the jail for processing. During 

intake, officers strip searched Fowlkes. After Fowlkes removed his clothing, officers saw him 

make a quick movement to his buttocks area with his hand in what appeared to be an attempt 

to push something into his rectum. One of the officers deployed his taser against Fowlkes while 

other officers handcuffed him. Once Fowlkes was secured, the officers saw a plastic bag 

partially protruding from Fowlkes’ rectum. One of the officers forcibly removed the plastic 

bag in what was described as a “difficult, abrasive procedure.” The officers discovered cocaine 

inside the plastic bag. 

At trial, Fowlkes argued, among other things, the warrantless entry into his apartment on 

September 6 was unreasonable, and the subsequent search warrant was not supported by 

probable cause.

The court disagreed, holding exigent circumstances justified the warrantless entry into 

Fowlkes’ apartment. Officers intercepted phone calls that suggested the presence of drugs and 

other evidence in Fowlkes’ apartment, and that Fowlkes ordered its removal so the police could 

not seize it. As a result, the court concluded a reasonable police officer could have believed it 

was necessary to enter and secure Fowlkes’ apartment to prevent Fowlkes from destroying 

evidence. In addition, the court found the one-hour lapse between the last intercepted call and 

the officers’ entry into the apartment did not undermine the exigency of the situation, and that 

the warrant issued by the magistrate judge was supported by probable cause. 

Fowlkes also argued the warrantless seizure of the plastic bag from within his body was 

unreasonable; therefore, the evidence the officers discovered inside the bag should have been 

suppressed. 

The court agreed. First, the court held the warrantless visual strip search of Fowlkes during the 

jail intake process was reasonable. The court recognized the government’s interest in preventing 

contraband from entering its prisons and jails, and that it would be impractical to require officers 

to obtain a warrant before conducting each individual visual search. 

Second, the court did not determine whether the officers were required to obtain a warrant 

before retrieving the object from Fowlkes’ rectum. However, assuming it would have been 

reasonable for the officers to seize the object without first obtaining a warrant, the court 

recognized the manner in which the officers removed the object still had to be reasonable. 
9

Reviewing the totality of the circumstances, the court concluded the manner in which the 

officers removed the object from Fowlkes’ rectum was unreasonable. First, the officers violated 

the jail’s written policy for body cavity searches by failing to remove the evidence “under 

sanitary conditions,” and by not using a “Physician, Nurse Practitioner, Registered Nurse, 

Licensed Vocational Nurse, or Emergency Medical Technician.” Second, there was no 

evidence any of the officers had medical or any other relevant training on how to safely remove 

suspicious objects from an arrestee’s rectum, or how to evaluate whether such removal could 

cause serious physical harm or death. Third, the officers did not offer Fowlkes options for 

removing the contraband or attempt to secure his compliance beforehand. The court noted the 

undisputed testimony by the officers established Fowlkes posed no threat to the officers, that 

was he was not flight risk, and there was no concern about the destruction of the evidence, as 

Fowlkes was handcuffed, tased and surrounded by five officers. In addition, there was no 

evidence a medical emergency existed that would have justified the immediate removal of the 

plastic bag from Fowlkes’ rectum. Consequently, the court concluded the manner in which the 

officers seized the plastic bag from Fowlkes’ rectum was unreasonable; therefore, the cocaine 

discovered inside it should have been suppressed.

Click HERE for the court’s opinion.

*****

District of Columbia Circuit

United States v. Weaver, 2015 U.S. App. LEXIS 15763 (D.C. Cir. Sept. 4, 2015)

Federal agents went to Weaver’s apartment with a warrant for his arrest. After arriving at 

Weaver’s building, the agents knocked on the apartment door twice. No one answered the door;

however, the agents heard movement from inside the apartment. The agents were not concerned 

that Weaver would flee out a window, as the apartment was on a high floor. Less than a minute 

later, the agents announced “police” and immediately used a key they had obtained from the 

building manager to unlock the door and enter the apartment. The agents did not announce they 

had a warrant to arrest Weaver. Once inside the apartment, the agents subdued Weaver after a 

brief struggle and removed him from the apartment. While arresting Weaver, the agents 

smelled marijuana and saw what appeared to be bags of marijuana on the kitchen counter. 

Based on these observations, the agents obtained a warrant to search Weaver’s apartment and 

found among other things, several kilograms of marijuana. As a result, the government indicted 

Weaver for three additional criminal offenses. 

Weaver argued the agents were not legally in his apartment when they made the observations 

that supported their search warrant application because they had violated the knock-andannounce rule; therefore, the evidence seized from his apartment should have been suppressed.

While the government conceded the agents violated the knock-and-announce rule by failing to 

state their purpose before entering Weaver’s apartment, the government claimed suppression 

of the evidence seized from the apartment was not the appropriate remedy. The government 

relied on Hudson v. Michigan, where the United States Supreme Court held when officers 

violate the knock-and-announce rule in executing a search warrant, the exclusionary rule does 

not apply to any evidence they discover. The government argued the decision in Hudson held 

the exclusionary rule did not apply to a violation of the knock-and-announce rule, whether the 

violation occurred during the execution of a search warrant or an arrest warrant. 
10

The court disagreed, holding that suppression of evidence was the appropriate remedy where 

agents executing an arrest for Weaver violated the knock-and-announce rule, which then led to 

the discovery of evidence in Weaver’s apartment. 

The court noted search warrants and arrest warrants authorize law enforcement officers to take 

different actions. For example, officers with a search warrant may enter a home and search for 

the items described in the warrant anywhere in the home those items might be located. The 

court reasoned that a violation of the knock-and-and announce rule in the execution of a search 

warrant would not expand or otherwise increase the search authority conferred on the officers 

by the warrant. As a result, suppression for a knock-and-announce rule violation was not an

appropriate remedy.

In contrast, the officers’ authority under an arrest warrant to enter and search a home is limited. 

First, officers with an arrest warrant may enter a person’s home only when they have reason to

believe the arrestee is there. Second, once inside the home, the officers may only look in places 

where a person might reasonably be found, and the officers must stop searching once they locate 

the arrestee. Third, the court concluded an arrestee’s location inside the home at the time of 

arrest is likely to depend on whether officers comply with the knock-and-announce rule. 

Because the requirements for search warrants and arrest warrants protect distinct privacy 

interests, and the two types of warrants authorize officers to take different actions, the court 

concluded the protections afforded by the knock-and-announce rule are different as well. As a 

result, the court found in the context of an arrest warrant, the knock-and-announce rule protects 

an arrestee’s privacy in his home in a way it does not with a search warrant. Therefore, the 

court held the exclusionary rule was the appropriate remedy for a violation of the knock-andannounce rule committed during the execution of an arrest warrant. 

Click HERE for the court’s opinion.

*****