Department of Homeland Security

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Legal Training Division 

December 2013

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 

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This edition of The Informer may be cited as 12 INFORMER 13.
In This Issue 

Free FLETC Informer Webinar Schedule

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Law Enforcement Case Granted 

Certiorari by the U.S. Supreme Court

Click Here

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Case Summaries

Circuit Courts of Appeals

Click Here

2nd Circuit 4th Circuit 7th Circuit

8th Circuit 9th Circuit 10th Circuit

 District of Columbia Circuit

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Free FLETC Informer Webinar Series Schedule

January 2014

1. Government Workplace Searches

John Besselman provides an explanation of the law that regulates the government's 

ability to search in the workplace. Who has a reasonable expectation of privacy in the 

workplace, how is it established, and how can it be overcome, are some of the questions 

that will be answered. Mr. Besselman has provided this course via webinar in the past, 

though not since August of 2013. If this area of the law is new to you or you are 

interested in a refresher, this course is right for you. 

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

Dates and Times: 

Wednesday January 8, 2014: 2:30 pm EST 

To join this meeting: https://share.dhs.gov/fletclgd0108/

Wednesday January 15, 2014: 8:30 am EST 

To join this meeting: https://share.dhs.gov/fletclgd0115/

2. Warrantless Searches and Seizures under Exigent Circumstances 

Part I: The Overview

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

Dates and Times: 

Tuesday January 14, 2014: 1:30 pm EST 

To join this meeting: https://share.dhs.gov/lgd0114/

Tuesday January 21, 2014: 1:30 pm EST 

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3. Kalkines and Garrity Overview

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

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

criminal activity. 

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

Dates and Times: 

Friday January 17, 2014: 8:30 am EST 

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4

4. Federal Emergency Vehicle Operations 

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

This webinar is for federal law enforcement officers and covers some of the legal aspects of 

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sue whom, and for what? When is the party who is being sued liable for damages?

Dates and Times: 

Monday January 27, 2014: 1:30 pm EST 

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Friday January 31, 2014: 1:30 pm EST 

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5. Understanding the Inspection Search

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

John Besselman examines the administrative-inspection search. This common and 

varied search enables enforcement agencies of all types to protect the public from harms, 

though its scope and purpose is sometimes misunderstood and misapplied.

Dates and Times: 

Wednesday January 29, 2014: 2:30 pm EST 

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Friday January 31, 2014: 8:30 am EST

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5

Law Enforcement Case Granted Certiorari by the United States Supreme Court 

for the October 2013 Term

Qualified Immunity

Wood v. Moss

Decision Below: 711 F.3d 941 (9th Cir. 2013) 

During the 2004 presidential campaign, Moss and others who opposed President Bush organized a 

demonstration at a campaign stop in Oregon. United States Secret Service agents, while protecting 

President Bush, allegedly required a group of 200 to 300 anti-Bush demonstrators be moved away 

from an alley next to an outdoor patio where the President was dining. After they were moved, the 

anti-Bush demonstrators were slightly farther away from the alley than a group of pro-Bush 

demonstrators. In addition, the Secret Service agents allowed only the pro-Bush demonstrators to 

remain along the President’s after-dinner motorcade route. 

The anti-Bush demonstrators claimed Secret Service agents engaged in viewpoint discrimination in 

violation of the First Amendment by moving them to a location where they had less opportunity than 

the pro-Bush demonstrators to communicate their message to the President and those around him. 

The Ninth Circuit Court of Appeals held the Secret Service agents were not entitled to qualified 

immunity. The court ruled, if true, the allegations by the Bush protestors would be sufficient to 

support a claim of viewpoint discrimination in violation of the First Amendment. Additionally, the 

court held this right was clearly established in 2004. 

The first issue before the court is whether the Ninth Circuit Court of Appeals improperly denied 

qualified immunity to the Secret Service agents when it concluded that pro and anti-Bush 

demonstrators needed to be positioned an equal distance from the President while he was dining on 

the outdoor patio and then while he was traveling by motorcade. 

The second issue before the court is whether the anti-Bush demonstrators have adequately pleaded 

viewpoint discrimination when no factual allegations support their claim of discriminatory motive by 

the Secret Service agents and there was an obvious security-based rationale for moving the nearby 

anti-Bush group and not the farther away pro-Bush group. 

The court has not yet scheduled oral arguments in this case.

*****
6

CASE SUMMARIES

Circuit Courts of Appeals

2nd Circuit

United States v. Freeman, 2013 U.S. App. LEXIS 22594 (2d Cir. N.Y. Nov. 7, 2013)

A 911 operator received two anonymous calls, from the same person, reporting a Hispanic male, 

wearing a black hat and white t-shirt had a gun. The caller refused to identify herself and the 911 

operator could not re-contact the caller after making multiple attempts. The 911 operator was never 

able to verify whether the anonymous caller actually saw a gun. When police officers arrived, they 

saw a person fitting the description, later identified as Freeman, walking down the street. One of the 

officers approached Freeman and attempted to talk to him; however, Freeman continued to walk 

down the street. The officer then placed his hand on Freeman’s elbow, but Freeman kept walking. 

Finally, the officer grabbed Freeman around the waist in a “bear hug” and the pair fell to the ground. 

After a short struggle, the officers handcuffed Freeman and removed a gun from his waistband. 

Freeman was charged with being a felon in possession of a firearm. 

Freeman argued the police lacked reasonable suspicion to stop him: therefore, the gun recovered 

from his waistband should have been suppressed. 

The court agreed, holding the officer never established reasonable suspicion to stop Freeman. 

The officer stopped Freeman based on information provided by two anonymous 911 phone calls. 

Anonymous tips, without further corroboration by the police to demonstrate that the tip has sufficient 

indicia of reliability, are insufficient to provide the reasonable suspicion needed to conduct a valid 

Terry stop. Here, there was no way for the police to assess the caller’s credibility and there was no 

risk of consequence if the caller was making false reports. When the officer first encountered him, 

Freeman had the right to ignore the officer and go about his business. In addition, Freeman’s refusal 

to cooperate with the officer, without more, could not provide the officer reasonable suspicion to stop 

him. When the officer grabbed Freeman around the waist, Freeman was seized for Fourth 

Amendment purposes; however, the officer had still not established reasonable suspicion to stop him.

Click HERE for the court’s opinion.

*****

Lynch v. City of New York, 2013 U.S. App. LEXIS 23074 (2d Cir. Nov. 15, 2013)

The New York City Police Department (NYPD) enacted a policy, which required the administration 

of a breathalyzer test to any officer whose discharge of his firearm within New York City resulted in 

death or injury to any person. The union representing New York City’s police officers sought to 

block the NYPD from enforcing this policy. The union argued the policy violated the Fourth 

Amendment because it was unreasonable to compel officers to submit to warrantless searches without 

any suspicion of wrongdoing. 

The district court disagreed, and refused to block enforcement of the policy. The union appealed.
7

The Second Circuit Court of Appeals held the NYPD policy was lawful under the special needs 

exception to the Fourth Amendment’s warrant requirement. First, the court concluded the primary 

purpose of the policy was not to obtain criminal evidence to prosecute police officers, but rather 

personnel management by determining an officer’s fitness for duty and the maintenance of public 

confidence in the NYPD. Second, the court ruled the policy was narrowly and specifically defined as 

officers were put on notice they would have to submit to a breathalyzer test; therefore, requiring a 

search warrant would not add any further notice and was unnecessary. 

After determining the policy qualified as a special need, the court further held the policy was 

reasonable. First, the court noted because NYPD officers are authorized to carry firearms and use 

deadly force, they have a diminished expectation of privacy in employer testing that ensures their 

fitness for duty. Second, the court found the breathalyzer was minimally intrusive and the NYPD’s 

special needs outweighed the privacy interests of the officers. 

Click HERE for the court’s opinion.

*****

4th Circuit

Cooper v. Sheehan, 2013 U.S. App. LEXIS 22616 (4th Cir. N.C. Nov. 7, 2013)

Just after 11:00 p.m., a neighbor called 911 to report a disturbance at Cooper’s mobile home after 

hearing two men screaming at each other. The caller did not indicate whether the men were armed or 

otherwise dangerous. Two police officers arrived in separate cars, without activating their blue lights 

or sirens, parked on the edge of Cooper’s property and approached the mobile home on foot. To alert 

the occupants of the officers’ presence, one of the officers tapped on a window with his flashlight, but 

neither officer announced his presence or identified himself as a police officer. Cooper called out for 

anyone in the yard to identify himself, but neither officer responded. Cooper retrieved a shotgun, and 

pointing the muzzle toward the ground opened the back door and walked onto the porch. After the 

officers saw Cooper holding the shotgun, they drew their service weapons, fired at Cooper without 

warning, and wounded him. 

Cooper sued the officers for excessive use of force in violation of the Fourth Amendment and several 

state law torts.

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

Citing Tennessee v. Garner, the court noted a reasonable police officer is entitled to use deadly force 

“where the police officer has probable cause to believe that a suspect poses a threat of serious 

physical harm, either to the officer or to others.” 

Here, when the officers fired on Cooper, he was standing at the threshold of his home, holding the 

shotgun in one hand, with its muzzle pointed at the ground. Cooper made no sudden moves or threats 

and the officers had no other information suggesting that Cooper might harm them. The court held 

these facts failed to establish that a reasonable officer would have had probable cause to feel 

threatened by Cooper’s actions. 

In addition, the court found it reasonable for Cooper to bear a firearm while investigating a 

disturbance on his property. The court found it significant that the officers never identified 

themselves, even after being asked by Cooper, and that no reasonable officer could have believed 

Cooper was aware of the officers’ presence when he stepped onto his porch. If Cooper had been 
8

aware of the officers’ presence and still come onto the porch with a firearm, it would have been more 

likely for the court to find that Cooper posed a threat to the officers. 

Finally, the court held, at the time of the shooting, it was clearly established that individuals who 

posed no threat to police officers had the right to be free from the use of deadly force against them.

Click HERE for the court’s opinion.

*****

7th Circuit

United States v. Huart, 2013 U.S. App. LEXIS 23581 (7th Cir. Wis. Nov. 22, 2013)

As Huart was nearing the completion of his sentence for possession of child pornography, the Bureau 

of Prisons (BOP) transferred him to a privately operated halfway house that contracted with the BOP. 

Huart was not permitted to possess a cell phone while at the halfway house. During a random search 

of Huart’s room, a staff member found a cell phone on Huart’s bed. A search of the phone revealed 

numerous images of child pornography. Huart admitted to possessing the phone and the images. The 

director of the halfway house gave Huart’s phone to the FBI who obtained a warrant to search it. 

Because Huart’s phone was password protected, it had to be sent to FBI headquarters for analysis. It 

was unclear why the staff at the halfway house was able to search Huart’s phone initially, but the FBI 

could not. Agents did not unlock the phone and locate the images of child pornography until 

February 13, 2012. The warrant to search Huart’s phone specified that the search was to be 

conducted before December 15, 2011. 

Huart claimed he had a reasonable expectation of privacy in his cell phone and that its confiscation 

and subsequent search of its contents violated that privacy. Huart argued because the FBI failed to 

break the passcode and examine the contents of the phone before the warrant’s expiration date, the 

search was unlawful. Huart also argued the government’s seizure of his cell phone violated his 

privacy because it was a trespass under U.S. v. Jones.

The court disagreed, holding Huart had no reasonable expectation of privacy in the cell phone or its 

contents. Huart was not permitted to possess a cell phone while at the halfway house; therefore, any 

phone he brought into the facility was contraband, subject to confiscation and search. Because Huart 

lacked a reasonable expectation of privacy in his cell phone and its contents, the confiscation and 

search of the phone did not implicate the Fourth Amendment. 

The court further held because the Huart’s phone was contraband, it was not a trespass for the 

halfway house staff to confiscate the phone from his room and search it. The court stated even if 

Jones applied to this case, it would establish only that a Fourth Amendment search occurred, not that 

the search was unreasonable. 

Click HERE for the court’s opinion.

*****
9

8th Circuit

Coker v. Arkansas State Police, 2013 U.S. App. LEXIS 22420 (8th Cir. Ark. Nov. 5, 2013)

A police officer clocked Coker’s motorcycle travelling 102 mph and pursued Coker in his patrol car. 

After a brief chase, the officer bumped the motorcycle with his patrol car, causing the motorcycle to 

tip over and Coker to fall to the ground. Coker then jumped up and ran to the side of the road, 

outside the view of the patrol car’s dash camera. The officer claimed when he got out of his patrol 

car to pursue Coker on foot, Coker turned to face him in a crouched fighting stance. According to the 

officer, he told Coker to get on the ground, but Coker refused. The officer stated he kicked Coker in 

the face, knocking him to the ground, and may have struck Coker in the face with his metal Maglite 

flashlight during the ensuing struggle to handcuff Coker. Coker claimed he complied with all of the 

officer’s commands and immediately fell to the ground, waiting to be handcuffed. At that point, 

Coker claimed the officer kicked him in the face and then struck him in the face with his flashlight, 

breaking his cheek bones. Coker also claimed the officer struck him in the face with his elbow after 

he was handcuffed. 

Coker claimed the officer used excessive force in violation of the Fourth Amendment during the 

arrest.

Without the aid of video or an understandable audio recording, the court concluded it was impossible 

to determine what happened after Coker ran out of view of the patrol car’s dash camera without 

weighing the officer’s version of events against Coker’s version. However, the court stated it is the 

job of the jury and not the court to determine issues of witness credibility when there are two 

conflicting versions of an event and to decide whose story is more plausible. Consequently, the 

officer was not entitled to qualified immunity, as a reasonable jury could find the severity of Coker’s 

injuries resulted from an excessive use of force, especially if the jury believed the office struck Coker 

with his metal flashlight after Coker was on the ground and allegedly complying with the officer’s 

commands. 

Click HERE for the court’s opinion.

*****

9th Circuit

United States v. Arreguin, 2013 U.S. App. LEXIS 23506 (9th Cir. Cal. Nov. 22, 2013)

Federal agents went to a house to conduct a knock and talk investigation because they suspected the 

occupants were involved in drug trafficking. An agent testified he and his fellow agents did not know 

who lived in the house, but they planned to obtain this information during the knock and talk. The 

agent also acknowledged that when the agents approached the house, they did not know who was 

inside. After the agent knocked on the door, Valencia opened it. The agent told Valencia he knew 

drug-related activity occurred at the house in the past and then said to Valencia, “We would like to 

come in and look around. Can we come in?” Valencia said “Yes,” and stepped back to allow the 

agents to enter the house. 

The agents went into the master bedroom and attached master bathroom where under the sink they 

found a shoebox containing a white powdery substance. The agents also went through a door in the 

master bedroom that led to the garage. In the garage, the agents seized cash from a car parked there. 
10

While agents searched the house, Arreguin told one of the agents he and his wife lived in the house 

and that Valencia was a guest visiting from out-of-town. 

After the government indicted Arreguin, he moved to suppress the evidence seized by the agents, 

claiming the agents lacked valid consent for the warrantless search of his house. 

The court held it was not objectively reasonable for the agents to believe Valencia had authority to 

consent to a search of the master bedroom and bathroom or the garage just because he answered the 

door. When the agents obtained Valencia’s consent to “look around” the house, the court concluded 

they knew virtually nothing about Valencia, the various rooms and areas inside the house or the 

nature and extent of Valencia’s connection to those areas. Instead of asking Valencia additional

questions, the agents quickly rushed past him in a state of near ignorance when they searched the 

master bedroom and garage. The agents knew far too little to hold an objectively reasonable belief 

that Valencia could consent to a search of those areas. 

Click HERE for the court’s opinion.

*****

Armstrong v. Asselin, 2013 U.S. App. LEXIS 23319 (9th Cir. Alaska Nov. 1, 2013)

Armstrong gave a fourteen-year old boy a book that the boy’s parents considered pornographic. The 

boy’s parents gave the book to the police who obtained an arrest warrant charging Armstrong with 

dissemination of indecent material to a minor as well as a warrant to search Armstrong’s home for 

evidence of the dissemination offense. In the warrant applications, the police included a four-page

excerpt from the alleged pornographic book. The state district judge who approved both warrants 

reviewed the applications at the same time did not request the full copy of the book and consulted the 

dissemination ordinance before signing the warrants. The dissemination charge against Armstrong 

was later dismissed.

Armstrong sued several police officers claiming that a reasonable officer would have known the 

warrant applications failed to establish probable cause.

The court held the officers were entitled to qualified immunity. First, in their warrant applications, 

the officers only needed to establish probable cause, not absolute proof that giving the alleged 

pornographic book to the minor violated the ordinance. The book’s cover portraying a bare buttocks 

squatting over a dinner plate and the four-page excerpt included in the warrant applications supported 

a reasonable belief the book as a whole contained material that violated the ordinance. Second, the 

officers consulted prosecutors and submitted their warrant applications to a neutral and detached 

judge for review before they arrested Armstrong and searched his home. 

Click HERE for the court’s opinion.

*****
11

10th Circuit

United States v. Cash, 2013 U.S. App. LEXIS 22345 (10th Cir. Okla. Nov. 4, 2013)

A police officer pulled Cash over for a traffic violation. During the stop, the officer saw an artificial 

bladder device in plain view in Cash’s car and discovered Cash was on his way to take a drug test for 

his federal probation officer. Suspecting that Cash planned to use the bladder device to defeat a urine

test, a violation of Oklahoma State Law, the officer detained Cash until his federal probation officer 

arrived at the scene approximately nineteen minutes later.

When Cash’s probation officer arrived, he saw a firearm in plain view in the back seat of Cash’s car, 

a violation of Cash’s supervised release. Cash fought with the officers as they tried to arrest him; 

however, Cash was eventually subdued, handcuffed and placed in the back of a police car. Cash was 

not given Miranda warnings. The officers conducted an inventory search of Cash’s car and found a 

variety of illegal drugs. Cash then called his probation over to the police car, initiated a conversation 

with him and made several incriminating statements. 

Cash was charged with drug and firearms offenses.

Cash moved to suppress the physical evidence found in his car as well as the incriminating statements 

he made to his probation officer. 

The court held when officer saw the bladder device and then Cash admitted he was on his way to take 

a drug test, the officer had reasonable suspicion to detain Cash beyond the time needed to write the 

citation for the initial traffic violation. Consequently, Cash’s prolonged detention was reasonable and 

the evidence seized from Cash’s car was admissible.

The court further held the conversation between Cash and his probation officer did not constitute 

interrogation for Miranda purposes. First, Cash initiated the conversation when he called the 

probation officer over to the police car. In response to Cash’s request to see him, the probation 

officer asked Cash, “What was going on?” Although phrased as a question, this was not interrogation 

as the probation officer was not trying to elicit an incriminating response from Cash, but rather trying 

to understand why Cash wanted to speak to him. Second, the probation officer’s follow-up question, 

“What’s the deal?” in response to Cash’s statement that people were “trying to kill him” did not 

constitute interrogation. The court found this question was an attempt to clarify Cash’s statement and 

not designed to elicit an incriminating response from Cash. Because neither of Cash’s statements 

occurred during interrogation, there was no Miranda violation and the statements were admissible 

against Cash. 

Finally, the court concluded that Cash’s statements were made voluntarily to his probation officer. 

Even though Cash was injured while resisting arrest, there was no evidence the probation officer 

coerced him into making any of his statements. 

Click HERE for the court’s opinion.

*****
12

District of Columbia Circuit

United States v. Glover, 2013 U.S. App. LEXIS 22667 (D.C. Cir. Nov. 8, 2013)

The FBI obtained a warrant from a district court judge in the District of Columbia to install an audio 

recording device in Glover’s truck. At the time, Glover’s truck was parked in Baltimore, Maryland. 

The warrant stated the FBI agents could forcibly enter Glover’s truck, regardless of whether the 

vehicle was located in the District of Columbia, District of Maryland or the Eastern District of 

Virginia. Information obtained from the recording device was admitted against Glover at trial.

Glover argued the evidence obtained from the recording device should have been suppressed because 

the warrant authorizing its installation was invalid. Specifically, Glover claimed under 18 U.S.C. § 

2518(3) the judge in the District of Columbia could not authorize the installation of the recording

device in his truck while the truck was located in in Maryland. 

The government argued the district court judge in the District of Columbia could authorize the 

installation of the recording device on a vehicle located anywhere in the United States. 

The court agreed with Glover. The court held under 18 U.S.C. § 2518(3) a judge could not authorize 

the installation of an electronic recording device, if at the time the warrant was issued, the property on 

which the recording device was to be installed was not located in the authorizing judge’s jurisdiction. 

Consequently, the judge from the District of Columbia did not have the authority to issue the warrant 

authorizing the installation of the recording device in Glover’s truck while the truck was located in 

the District of Maryland. 

Click HERE for the court’s opinion.

*****