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2

The Informer – September 2017 

Case Summaries

Circuit Courts of Appeals

First Circuit

United States v. Dent: Whether the independent-source exception to the exclusionary

rule applied to evidence seized pursuant to a search warrant after the officers initially

entered the defendant’s apartment without a warrant and conducted a protective sweep..................4

United States v. Delgado-Perez: Whether officers conducted a lawful protective

sweep of the defendant’s house after arresting him on the front porch..............................................4

United States v. Belin: Whether the defendant was seized under the Fourth Amendment by

an officer’s show of authority when he approached the defendant and asked him a question............5

Morse v. Cloutier: Whether officers were entitled to qualified immunity for entering

the plaintiff’s house without a warrant and arresting him.................................................................6

Sixth Circuit

United States v. Lewis: Whether officers violated the Fourth Amendment by opening 

the defendant’s truck door to see if he could give his intoxicated girlfriend a ride home...................7

Seventh Circuit

United States v. Castetter: Whether police officers in Indiana could use GPS

location information provided by Michigan police officers to establish probable 

cause to search the defendant’s house...............................................................................................8

United States v. Schreiber: Whether DNA evidence could be admitted against the 

defendant in a federal prosecution after state charges against the defendant were dismissed............9

Green v. Newport: Whether an officer was entitled to qualified immunity after he

stopped the defendant and frisked him..............................................................................................9

Eighth Circuit

United States v. Jackson: Whether the defendant had a reasonable expectation of 

privacy in a cell phone, which he brought into the facility where he was serving a term 

of supervised release, in violation of the rules................................................................................10

United States v. LeBeau: Whether the defendant’s consent to search was voluntary and

whether the agent’s illegal entry into the defendant’s hotel room required the suppression

of the evidence discovered in the defendant’s room and car...........................................................11

Hosea v. City of St. Paul: Whether officers were entitled to qualified immunity on 

the plaintiff’s claim that the officers arrested him without probable cause and that 

the officers used excessive force when they arrested him...............................................................12

United States v. Dortch: Whether the defendant was seized under the Fourth Amendment 

by an officer’s show of authority when he approached the defendant and asked him a 

question, whether the officer had reasonable suspicion to detain and then frisk the defendant.......13
3

United States v. Long: Whether an unauthorized driver of a rental car, with only 

indirect permission to use the car from the authorized driver, had standing to object

to a search of the car........................................................................................................................14

Tenth Circuit

United States v. Thompson: Whether the government can obtain historical cell site

location information (CSLI) with a court order obtained pursuant to § 2703(d) of the 

Stored Communications Act (SCA) or whether the government must to obtain a 

warrant based on probable cause...................................................................................................15

United States v. Cone: Whether an officer unreasonably prolonged the duration of a

traffic stop when he asked the defendant questions concerning his criminal history.......................15

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4

CASE SUMMARIES

Circuit Courts of Appeal

First Circuit

United States v. Dent, 2017 U.S. App. LEXIS 14583 (1st Cir. Me. Aug. 8, 2017)

Federal agents engaged in a drug trafficking investigation suspected that crack cocaine was 

located in Dent’s apartment. While agents applied for a warrant to search the apartment, three 

police officers went to Dent’s apartment to secure the location and preserve evidence in 

anticipation of the search warrant. When the officers knocked on the door, Dent’s girlfriend, 

Jackson, opened it. Jackson immediately tried to slam the door shut but the officers pushed their 

way into the apartment and handcuffed her. During this time, the officers heard music that had 

been playing elsewhere in the apartment decrease in volume, which led them to believe that 

another individual was present. The officers began to “clear” every room in the apartment and 

when they reached the final room to be cleared, they saw a man, later identified as Banyan, 

attempting to stuff something under an air mattress. The officers placed Banyan in handcuffs, 

looked underneath the air mattress, and saw a baggie of what they believed to be drugs. The

officers left the baggie in place, finished their sweep of the apartment, and waited for the arrival 

of the agents with the search warrant. After agents arrived with the warrant, they searched Dent’s 

apartment and seized cocaine, heroin, a firearm, and drug paraphernalia. 

The government charged Dent with several drug offenses. Dent filed a motion to suppress the 

evidence seized from his apartment pursuant to the warrant.

The court denied Dent’s motion. The court held that there was no evidence that either the warrant 

or the decision to seek the warrant was based on anything the officers discovered during their 

warrantless entry and protective sweep of the apartment. The court found that the process of 

applying for the search warrant had already been initiated based on other independent sources of 

information and that the drugs observed under the air mattress were not included in the search 

warrant affidavit. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca1/16-2005/16-2005-

2017-08-08.pdf?ts=1502218808 

*****

United States v. Delgado-Pérez, 2017 U.S. App. LEXIS 15402 (1st Cir. P.R. Aug. 16, 2017)

Police officers went to Delgado’s house to arrest him on an outstanding New York state warrant 

for trafficking cocaine through the United States mail. When the officers arrived outside 

Delgado’s house and announced their presence, there was initially no answer. When the officers 

began to open a rebar gate outside, Delgado opened a window and told the officers that he would 

come outside. Once Delgado was outside on the front porch, the officers conducted a protective 

sweep of Delgado’s house and saw a firearm magazine on top of a dresser in a room off an interior 

hallway. The officers then asked Delgado if there were any firearms in the house. After Delgado 
5

told the officers that he kept a firearm in a dresser drawer, the officers went back into Delgado’s 

house and seized it. 

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

Delgado claimed that the firearm seized from his house should have been suppressed because the 

officers discovered it after conducting an unlawful protective sweep of his house. 

The court recognized that when officers arrest a suspect outside his home, they may perform a 

protective sweep of the home if they have a reasonable belief that “the area to be swept harbors 

an individual posing a danger to those on the arrest scene.”

However, in this case, the court held that when the officers arrested Delgado, there was no 

evidence to support a belief that another person might be inside the home. First, the pre-arrest 

intelligence gathered by the officers did not provide any reason to believe multiple persons were 

present in Delgado’s home. Second, the officers had no specific reason to believe that Delgado 

was armed and dangerous, beside the general fact that his alleged offense involved drug 

trafficking. The court added that when a person is arrested for drug trafficking, that fact alone 

does not automatically provide a reason to believe that there might be another person in the home 

who poses a danger to officer safety. Finally, Delgado’s immediate, voluntary surrender on the 

porch could not provide a basis to believe there were other individuals inside Delgado’s house. 

As a result, the court concluded that the officers conducted an unlawful protective sweep and the 

evidence seized from Delgado’s home should have been suppressed. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca1/15-2247/15-2247-

2017-08-16.pdf?ts=1502917204

*****

United States v. Belin, 2017 U.S. App. LEXIS 15992 (1st Cir. Mass. Aug. 22, 2017)

Police officers responded to a call that individuals were involved in a fight near a public park, 

which had been the site of multiple recent firearms incidents and arrests. When officers arrived, 

they saw a group of five men walking on a sidewalk near the park. As the officers exited their 

patrol car, one of the men, later identified as Belin, peeled away from the others and hurried away 

from the officers. One of the officers recognized Belin, as he had previously arrested Belin for a 

firearm offense and knew that Belin was listed as a gang member in a police database. The officer 

caught up to Belin and called his name. Belin stopped walking and turned to face the officer. The 

officer asked Belin if he “had anything on him.” Belin became nervous and according to the 

officer, “he looked around as if searching for a means of escape.” At this point, the officer 

grabbed one of Belin’s arms with one hand and reached toward Belin’s waist with the other to 

frisk his waistband. Belin moved both of his hands toward his waistband and a struggle ensued. 

Other officers quickly arrived, took Belin to the ground, and handcuffed him. An officer searched 

Belin and discovered a handgun, marijuana, and ammunition on his person.

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

Belin filed a motion to suppress the evidence seized during the search. Belin argued that he was 

unlawfully seized under the Fourth Amendment by the officer’s show of authority when the 

officer approached him. Specifically, Belin claimed that the officer’s actions caused him to stop 

and answer the officer’s questions. 
6

The court disagreed. In addition to being formally arrested, a person can be seized by a police 

officer if he submits to the officer’s show of authority. Even though Belin stopped when the 

officer called his name, the court determined that approaching Belin, calling his name, and asking 

him a question did not amount to a Fourth Amendment seizure. The court concluded that the 

officer did not seize Belin until he grabbed Belin’s arm. 

The court further held that when the officer grabbed Belin’s arm, he had reasonable suspicion to 

believe that Belin was involved in criminal activity, specifically, unlawful possession of a firearm. 

First, the officer knew Belin had previously possessed an unlawful firearm, and that Belin was 

listed as a gang member in a police database. Second, the location in which the officer 

encountered Belin was known for firearm-related offenses. Third, when the officers approached 

the men walking on the sidewalk, Belin separated himself from them and quickly walked away 

from the officers. Fourth, during the encounter, but before the stop and frisk, Belin became 

extremely nervous. 

Finally, the court held that the officer’s reasonable suspicion that Belin unlawfully possessed a 

firearm provided reasonable suspicion to believe that Belin was presently armed and dangerous, 

which justified frisking him for weapons.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca1/15-2192/15-2192-

2017-08-22.pdf?ts=1503432005

*****

Morse v. Cloutier, 2017 U.S. App. LEXIS 16287 (1st Cir. Mass. Aug. 25, 2017)

Police officers responded to a residence after receiving a call that a man was hiding in the woods

throwing rocks and bottles at individuals in their back yard. When officers arrived, the victims 

told the officers that their neighbor, Charles Morse, was the perpetrator and that he might be 

armed. The officers knew Morse from a previous encounter where he threatened a man with a 

firearm.

Officers went to Morse’s house and knocked on the door. Morse opened the interior door; 

however, he locked the screen door that separated him from the officers. When the officers asked 

Morse to step outside to answer some questions, he refused. The officers then told Morse that he 

was under arrest. Morse told the officers to return with a warrant and shut the interior door. The 

officers ordered Morse to open the door and when he refused, the officers kicked through the 

screen door and the wooden interior door. The officers entered Morse’s house and arrested him. 

The officers charged Morse with a variety of offenses, which were later dismissed.

Morse sued the officers under 42 U.S.C. § 1983 claiming that the officers’ warrantless entry and 

subsequent arrest violated the Fourth Amendment. 

The officers filed a motion for summary judgment based on qualified immunity arguing that the 

warrantless entry into Morse’s house was justified by exigent circumstances. 

The court agreed with the district court, which held that while the officers had probable cause to 

arrest Morse, there was a factual dispute between Morse’s version and the officers’ version of the 

encounter. As the district court was bound to accept Morse’s version of the encounter as true, it 

concluded that a reasonable juror could find that the circumstances were not sufficiently exigent 

to allow the warrantless entry in Morse’s house and his warrantless arrest. 
7

Alternatively, the officers argued that they were entitled to qualified immunity because they 

arrested Morse in his doorway; therefore, they did not need a warrant. In United States v. Santana, 

the Supreme Court held that officers could arrest a suspect insider her home without a warrant 

when the defendant voluntarily stood in her doorway. The court reasoned that by standing in her 

doorway, the defendant had voluntarily placed herself in public view, and was, for all intents and 

purposes, in a public space. The officers argued that when Morse opened his door, he exposed 

himself to public view and was therefore in a public space where he could be arrested without a 

warrant.

The court disagreed. First, the court noted that Morse came to his doorway only after the officers 

knocked; therefore, he was in public view only because the officers summoned him to his door. 

Second, unlike the suspect in Santana, Morse was not standing directly in his doorway. Instead, 

even after Morse opened the interior door, he stood behind the locked screen door. Because of 

these significant distinctions, the court held that Morse’s arrest was not a valid “doorway” arrest 

under Santana.

The court further held that when Morse closed the interior door to his home the law was clearly 

established such that a reasonable police officer should have realized that forcibly breaking into 

the house without a warrant or an exigency would violate the Fourth Amendment. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca1/15-2043/15-2043-

2017-08-25.pdf?ts=1503689404

*****

Sixth Circuit

United States v. Lewis, 2017 U.S. App. LEXIS 16289 (6th Cir. Ky. Aug. 25, 2017)

Police officers responded to reports that a woman was intoxicated in a Wal-Mart store. Officers 

found the woman, Carol Lakes, who told the officers she had been taking pain pills due to back 

trouble. Lakes told the officers that her boyfriend, Lewis, was outside in his truck and that he 

would drive her home. 

The officers accompanied Lakes to the parking lot and located Lewis’ truck. An officer looked 

through the window and saw Lewis asleep inside the truck. The officers decided to open the truck 

door to see if Lewis would be able to drive Lakes home. When one of the officers opened the 

door, the interior dome light went on, allowing the officers to see a clear plastic baggie on Lewis’ 

lap that appeared to contain pills. Lewis woke up and tossed the baggie over the console onto the 

back floorboard. The officers opened the back door, inspected the baggie more closely, and 

determined that it contained pills. The officers seized the bag of pills, which was later tested and 

found to contain oxycodone and alprazolam tablets. 

The government charged Lewis with various drug-related charges.

Lewis argued that the officers violated the Fourth Amendment by opening the door to his truck.

The court disagreed, holding that opening the door to Lewis’ truck fell under the communitycaretaker exception. The community-caretaker exception applies when the actions of the police 

are unrelated to the detection, investigation, or collection of evidence relating to a criminal 

offense. Here it was undisputed that the officers’ sole purpose in opening the truck door was to 
8

determine if Lewis could provide Lakes a safe ride home. The court further held that any limited 

intrusion on Lewis’ privacy from opening the truck door was minimal and that the officers were 

not required to knock on the window or attempt to speak with Lewis before opening the door. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca6/16-5181/16-5181-

2017-08-25.pdf?ts=1503691261

*****

Seventh Circuit

United States v. Castetter, 865 F.3d 977 (7th Cir. Ill. Aug. 4, 2017)

Police officers in Michigan were investigating Mark Holst for his participation in a 

methamphetamine distribution ring. Officers in Michigan obtained a warrant and installed a GPS 

tracking device on a car owned by Holst. The officers tracked Holst’s car to Cory Castetter’s

home, which was located across the Michigan state border in Indiana. A confidential informant 

told the officers that Holst had traveled to Indiana to purchase methamphetamine. Officers 

stopped Holst’s car as he was driving home and seized methamphetamine from him. The 

Michigan officers relayed this information to officers in Indiana who obtained a warrant to search 

Castetter’s house. When officers executed the search warrant, they discovered methamphetamine, 

other drugs, and a large amount of cash. 

The government charged Castetter with several drug offenses.

Castetter filed a motion to suppress the evidence seized from his house. Castetter argued that the 

Michigan officers lacked the authority to monitor the location of Holst’s car while it traveled 

outside the state of Michigan. As a result, Castetter claimed that the Michigan officers were 

prohibited from giving the Indiana officers information concerning Holst’s travels in Indiana, 

which established probable cause to obtain the warrant to search his house. 

The court disagreed. The Fourth Amendment requires that a search warrant be supported by 

probable cause, an oath, and particularity. While states may decide as a matter of state law not 

to authorize their police departments to acquire information from out-of-state sources, federal 

courts do not use the exclusionary rule to enforce state-law doctrine. In this case, the Indiana 

judge determined that there was no problem, as a matter of Indiana law, in using information 

provided by the Michigan officers. 

In addition, the court found that all the officers learned by monitoring the GPS device was the 

location of Holst’s car, and that Castetter had no reasonable expectation of privacy in that location. 

The court added that no constitutional violation occurs if, by executing a warrant to search one 

person, such as Holst, officers learn incriminating information about another person, such as

Castetter.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca7/17-1327/17-1327-

2017-08-04.pdf?ts=1501866276

*****
9

United States v. Schreiber, 866 F.3d 776 (7th Cir. Ill. Aug. 7, 2017)

Police officers arrested Schreiber for armed robbery and a state grand jury indicted him one month 

later. While Schreiber was awaiting trial for armed robbery, state officials collected a sample of 

Schreiber’s DNA, which was entered into the Illinois DNA indexing system. The DNA sample 

ultimately connected Schreiber to a 2010 bank robbery and a federal grand jury indicted Schreiber 

for that crime. Several months later, the armed robbery charge against Schreiber was dismissed 

after a judge ruled that the officers had not established probable cause to arrest Schreiber.

Schreiber filed a motion to suppress the DNA evidence recovered by the state officials. Schreiber 

argued that the DNA evidence was obtained as the result of his unlawful arrest for armed robbery; 

therefore, the federal government should have been precluded from admitting it against him in his 

prosecution for bank robbery. 

The court disagreed. In Kaley v. United States, the United States Supreme Court held that “an 

indictment returned by a properly constituted grand jury . . . conclusively determines the existence 

of probable cause to believe the defendant perpetrated the offense alleged.” In this case, the court 

held that the state grand jury indictment, which occurred before the state officials collected 

Schreiber’s DNA sample, conclusively established that there was probable cause to believe 

Schreiber robbed the liquor store. As a result, the state official who obtained Schreiber’s DNA 

sample was entitled to rely upon this finding of probable cause and the federal government was 

entitled to rely on the fact of the state grand jury indictment in choosing to use the DNA evidence 

in prosecuting Schreiber. While not relevant to the court’s holding, the court commented that it 

was uncertain as to how the state court reached its conclusion that the officers did not establish 

probable cause to arrest Schreiber for armed robbery.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca7/16-3847/16-3847-

2017-08-07.pdf?ts=1502137895

*****

Green v. Newport, 2017 U.S. App. LEXIS 16011 (7th Cir. Wis. Aug. 22, 2017)

Officer Newport responded to a suspicious person complaint made by an employee of an auto 

parts store. The employee reported that a person in a Mercury Marquis drove around the store’s 

parking lot approximately five times before parking in front of the store. Officer Newport 

believed that this behavior was consistent with casing a business in preparation for a robbery. In 

addition, Officer Newport knew that the auto part store had been robbed at gunpoint within the 

last two months and that the store closed in thirty minutes and would soon be empty. 

When Officer Newport arrived, he saw a Mercury Marquis parked next to a Chevrolet Malibu in 

front of the store. The Malibu was driven by Davin Green. Officer Newport saw Joe Lindsey, 

the driver of the Marquis, standing next to the Malibu. The officer observed Lindsey lean into the 

front passenger window of the Malibu and then stand back up. Suspecting that Lindsey had 

concealed a weapon inside the Malibu, Officer Newport stopped behind the parked vehicles and 

ordered the two men to raise their hands. Officer Newport then ordered Green to exit the Malibu,

frisked him, and seized a handgun from his waistband.

Green sued Officer Newport under 42 U.S.C. § 1983, claiming that Officer Newport violated the 

Fourth Amendment by stopping and frisking him without reasonable suspicion. The district court 

agreed and denied Officer Newport qualified immunity. Officer Newport appealed.
10

The court of appeals held that the facts known to Officer Newport when he stopped Green 

established reasonable suspicion to believe that Green was involved in criminal activity. 

Specifically, when Officer Newport confronted Green he knew that the store had recently been 

robbed as well as the “casing” behavior reportedly carried out by Lindsey, which occurred near 

the time the store was closing. As a result, the court reversed the district court, holding that Officer 

Newport was entitled to qualified immunity.

The court further held that Officer Newport was entitled to qualified immunity for frisking Green. 

The court concluded that once Officer Newport established reasonable suspicion to stop Green 

for armed robbery, the nature of that crime established reasonable suspicion to believe that Green 

was armed and dangerous. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca7/16-1536/16-1536-

2017-08-22.pdf?ts=1503433847

*****

Eighth Circuit

United States v. Jackson, 866 F.3d 982 (8th Cir. Iowa Aug. 10, 2017)

Jackson was convicted of failure to register as a sex offender and sentenced to 21 months’ 

imprisonment followed by five years of supervised release. When Jackson began his term of 

supervised release at the Fort Des Moines Community Correctional Facility, a residential reentry 

program, Jackson was told several times that possession of cell phones in the Facility was 

prohibited. In addition, Jackson was notified that all property brought into the Facility was subject 

to search. 

A few weeks later, a Facility staff member confiscated a cell phone that belonged to Jackson. 

Officials searched the phone and found pornographic images on it and “inappropriate sites” on 

Jackson’s Internet history. In an interview, Jackson admitted that another person had sent him 

images of child pornography, which he claimed to have deleted. The government obtained a 

warrant to search Jackson’s cell phone and a forensic examination discovered thirty-seven images 

of child pornography. 

The government charged Jackson with possession of child pornography.

Jackson filed a motion to suppress the images discovered on his cell phone, arguing that the 

warrantless search of his phone violated the Fourth Amendment. 

The court disagreed. First, the court found that Jackson had a reduced expectation of privacy 

while he served his term of supervised release. Second, the court held that Jackson was on notice

that his cell phone was subject to search. Two unambiguous rules of the Facility, expressed to 

Jackson on multiple occasions were that residents could not possess cell phones inside the facility 

and that any property possessed inside the facility was subject to search. Consequently, the court 

concluded that Jackson did not have a reasonable expectation of privacy in his cell phone. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/16-3807/16-3807-

2017-08-10.pdf?ts=1502379048

*****
11

United States v. LeBeau, 867 F.3d 960 (8th Cir. S.D. Aug. 14, 2017)

While executing a search warrant at a hotel room, federal agents learned that a woman connected 

to the occupant of that room had been seen entering a different room occupied by LeBeau. The 

agents went to LeBeau’s room in an attempt to locate the woman. The agents asked hotel staff to 

telephone LeBeau and ask him to step outside to speak to the manager. When LeBeau opened the 

door, agents asked him to step outside, handcuffed him, and frisked him. The agents told LeBeau 

they needed to speak to the woman in his room and LeBeau indicated that the agents could enter 

the room. The agents pushed the door open, which was slightly ajar, and went inside. One of the 

agents encountered the woman and requested her identification. In the meantime, the other agents 

conducted a brief sweep to see if anyone else was present. While conducting the sweep, agents 

saw a baggie of white powder in plain view on a counter by the sink. 

After completing the sweep, the agents brought LeBeau into the room and moved the handcuffs 

to the front of his body. The agents also told LeBeau that he was not under arrest, that he did not 

have to speak to them, and that they were there to identify the woman in the room. During their 

conversation, LeBeau gave the agents consent to search the hotel room and his car. The agents 

discovered syringes and a small amount of cocaine in LeBeau’s hotel room and four ounces of 

cocaine in his car. The agents arrested LeBeau and the government charged him with several 

drug-related offenses. 

LeBeau filed a motion to suppress the evidence discovered in his hotel room and car. LeBeau 

argued that his consent to search was not voluntary because he was handcuffed and in custody 

when he consented and he had not been given Miranda warnings. 

A court determines if a person has voluntarily consented to a search based on the totality of the 

circumstances. Even though the fact that LeBeau was handcuffed and was not given Miranda

warnings weighted in his favor, the court concluded that other factors supported a finding of 

voluntariness. First, the agents did not threaten or intimidate LeBeau. Second, the agents told 

LeBeau that he was not under arrest and that they wanted to ask him questions about the woman 

in his room. Third, the agents told LeBeau that he did not have to speak with them. Fourth, 

LeBeau was cooperative with the agents and engaged them in conversation. Finally, LeBeau had 

prior experience with the legal system. 

LeBeau further argued that the evidence discovered in his hotel room and car should have been 

suppressed because he did not voluntarily consent to the agents’ initial entry into his hotel room. 

First, the court noted that at trial, the government only introduced evidence discovered in 

LeBeau’s car and did not introduce evidence obtained from the hotel room. As a result, the court 

concluded that even if the agents’ initial entry was unlawful, the evidence discovered in the hotel 

room did not adversely affect LeBeau. 

Next, without deciding the issue, the court assumed that LeBeau did not voluntarily consent to the 

agents’ initial entry into his hotel room. However, the court determined that LeBeau’s subsequent 

voluntary consent to search his car purged the taint of the agents’ unlawful entry into his hotel 

room. First, forty minutes elapsed between the agents’ entry and LeBeau’s consent to search. 

Second, several events occurred between the agents’ initial entry and LeBeau’s consent to search 

the car which gave LeBeau time to reflect on his options. Specifically, the agents moved LeBeau’s 

handcuffs from the back to the front, told him that he was not under arrest and did not have to talk 

to them, told him that they wanted to ask him questions about the woman in his hotel room, asked 
12

him for consent to search his hotel room, and finally searched the hotel room after he gave written 

consent. Finally, the agents did not use force, threats, or intimidation to enter LeBeau’s room. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/15-3653/15-3653-

2017-08-14.pdf?ts=1502724676

*****

Hosea v. City of St. Paul, 867 F.3d 949 (8th Cir. Minn. Aug. 14, 2017)

David Hosea was arguing with his girlfriend Jennifer Steines in their home. The argument 

escalated and Hosea dialed 911 but hung up before speaking to an operator. Police dispatch sent 

two uniformed officers to investigate and as they exited their vehicle, they heard yelling from 

inside the residence. When the officers entered, they saw Hosea standing over Steines from 

approximately three feet away as Steines sat on the couch crying. The officers noticed that Hosea 

seem agitated, addressed the officers in a loud voice, appeared to be ready to fight, and displayed 

indicators of aggression , including a “bladed” stance, clenched fists, and flared nostrils. 

According to Hosea, he saw the officers but claimed that he did not initially recognize them as 

police officers, so he did not comply with their two requests to get down on the ground. At this 

point, Hosea’s son entered the room and told Hosea that the men were police officers. Hosea 

claimed that as he began to lower himself to the ground, one of the officers jumped on his back 

and forced him to the ground. The officers handcuffed Hosea and brought him outside to their 

patrol car. 

Afterward, the officers discovered that the argument between Hosea and Steines had gone from 

verbal to physical when Steines hit Hosea in the face with a slipper. The officers also learned that 

Steines had actually never been afraid of Hosea. The officers arrested Hosea, who had suffered a 

fractured hand during the encounter. The charges against Hosea were eventually dismissed.

Hosea sued the City of St. Paul and the officers claiming that the officers violated the Fourth 

Amendment by arresting him without probable cause and by using excessive force against him.

The court held that the officers were entitled to qualified immunity on Hosea’s unlawful arrest 

claim because the officers had arguable probable cause to arrest Hosea for, among other things, 

domestic assault. Even without knowing why Steines was crying, the court held that a reasonable 

officer could have concluded that she placed the 911 call and was crying because Hosea made her 

fearful of imminent physical harm. In addition, the court explained that arguable probable cause 

is determined at the time of arrest, and any after acquired facts, such as that Steines was not in 

fear of immediate harm, are not relevant. 

The court further held that the officers were entitled to qualified immunity on Hosea’s excessive 

force claim because their use of force against Hosea was objectively reasonable. The court held 

that a reasonable officer on the scene could have concluded that Hosea had committed or was 

committing domestic assault, a crime that threatens the safety of another individual. In addition, 

the court found that even if the officers mistakenly believed that Hosea was resisting arrest after 

he began to lower himself to the ground, their use of force was objectively reasonable because a 

reasonable officer on the scene could have concluded that Hosea still posed a threat to Steines 

safety. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/16-3613/16-3613-

2017-08-14.pdf?ts=1502724679
13

*****

United States v. Dortch, 868 F.3d 674 (8th Cir. Neb. Aug. 18, 2017)

In June 2015, police officers were on patrol near an apartment building where there had been 

recent reports of gun-related gang activity. The officers were aware that within the previous three 

weeks there had been reports of shots fired in the area and that three people had been arrested for 

illegally possessing firearms. 

When officers turned a street to drive past the apartment building, they saw a car and a minivan 

stopped side by side in the street facing them. The car was on the officers’ left, in its proper lane, 

while the minivan was illegally parked on their right. As the officers approached, the car pulled 

in front of the minivan and stopped. At this point, the car and the minivan were illegally parked 

in the street. The officers saw Dortch, who was wearing a bulky coat, standing in the middle of 

the street, leaning into the minivan’s passenger-side window. The officers stopped and got out of 

their cars. One officer walked toward Dortch while the other offers went to talk to the occupants 

of the car. As the officer approached, Dortch looked at him over his shoulder, made eye contact, 

looked back into the minivan, and put a cell phone on the passenger seat while keeping his body 

pressed against the minivan. When the officer asked Dortch why he was standing in the road, 

Dortch turned his head toward the officer, told the officer that he was talking to his girlfriend, and 

then turned back and continued his conversation. The officer asked Dortch if he had a gun, and 

Dortch told him no. The officer told Dortch that was going to frisk him anyway, and felt a heavy 

object in Dortch’s coat pocket. Dortch told the officer, “it’s in my pocket.” The officer 

handcuffed Dortch, looked in his coat, and found a pistol.

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

Dortch filed a motion to suppress the pistol. First, Dortch claimed that the officer seized him 

without reasonable suspicion when the officer walked up to him and asked him what he was doing. 

The court recognized that not all encounters between police officers and citizens constitute Fourth 

Amendment seizures. A person is seized under the Fourth Amendment when an officer, by means 

of physical force or show of authority has in some way has restrained a person’s liberty. In this 

case, Dortch did not claim that prior to the frisk the officer used or threatened to use physical force 

when he approached. In addition, Dortch did not identify any show of authority made by the 

officer. The court concluded that the officer did not seize Dortch by simply walking up to him 

and asking him questions while Dortch stood in the street.

Second, Dortch claimed that the officer lacked reasonable suspicion to detain him.

The court disagreed. Although the scene the officers came upon in front of the apartment building 

gave them no reason to suspect Dortch of committing a traffic violation himself, the circumstances 

indicated that Dortch might be involved with the ongoing illegal parking they observed. 

Specifically, when the officers noticed Dortch, he was leaning into the minivan talking to the 

driver and he continued to do so during his initial interaction with the officer. Based on these 

facts, the court concluded that the officer was justified in briefly stopping Dortch to investigate 

what was happening with the vehicles and his involvement with them. 

Finally, Dortch claimed that the officer lacked reasonable suspicion that he was armed and 

dangerous; therefore, the frisk was unlawful.
14

Again, the court disagreed. First, the location where the officer encountered Dortch was a specific 

area where gun-related gang activity had recently occurred. Second, Dortch was wearing a bulky

coat, which was not appropriate for that time of year. The court found that this fact supported the 

officer’s belief that Dortch might be wearing the coat to conceal a weapon. Third, as the officer 

approached, Dortch put down his phone, thereby freeing his hands to reach for any weapon he 

might be carrying. Finally, as the officer approached, Dortch pressed the front of his body against

the minivan, which supported a reasonable belief that Dortch might be attempting to conceal an 

object in his coat from the officer’s view. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/16-3178/16-3178-

2017-08-18.pdf?ts=1503070243

*****

United States v. Long, 2017 U.S. App. LEXIS 16740 (8th Cir. Mo. Aug. 31, 2017)

Officers were called to remove a car that had been parked in a woman’s yard without her 

permission. The officers discovered the car was a rental and after they were unable to contact the 

rental company, they called a tow truck to remove it. While waiting for the tow truck, Long 

approached the officers and told them that he had parked the car in the yard. Long told the officers 

that Latasha Philips had rented the car and that he had parked the car in the yard. 

During the encounter, officers discovered that Long had outstanding warrants for his arrest and 

detained him in handcuffs. In the meantime, the tow truck driver arrived and opened the car door 

so that officers could conduct an inventory search. During the inventory search, officers 

discovered a bag containing a white powdery substance. The officers stopped the inventory 

search, arrested Long, and applied for a warrant to search the car.

After the obtaining the warrant, officers searched the car and discovered unlawful drugs as well 

as evidence that Long, a convicted felon, had been in possession of a firearm.

Long filed a motion to suppress the evidence discovered in the rental car, arguing that the 

inventory search conducted prior to towing the vehicle violated the Fourth Amendment. The

government argued that Long did not have standing to object to the search of the rental car.

At the suppression hearing, Philips claimed that she rented the car for her friend Roger, but that 

she had failed to put Roger’s name on the rental contract as an authorized driver. However, Philips 

testified she did not restrict what Roger could do with the car or to whom Roger could lend the 

car. Long claimed that Philips’ testimony established that he had consensual possession of the 

car from Roger; therefore, he had standing to object to the inventory search. 

The court disagreed. The court found the relationship between Philips, the authorized driver, and 

Long, an unauthorized driver was too attenuated to provide Long with a reasonable expectation 

of privacy in car. As a result, the court held that Long, an unauthorized-driver-once-removed with 

only indirect permission to drive the car from Philips, the authorized driver, did not have standing 

to object to the search.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/16-1419/16-1419-

2017-08-31.pdf?ts=1504191698

*****
15

Tenth Circuit

United States v. Thompson, 866 F.3d 1149 (10th Cir. Kan. Aug. 8, 2017)

Thompson and several co-defendants were convicted of a variety of federal drug offenses. Before 

trial, the district court admitted cell-service location information (CSLI) the government obtained 

with a court order pursuant to § 2703(d) of the Stored Communications Act (SCA). 

Thompson filed a motion to suppress the CSLI, arguing that a cell phone user’s location is 

protected by the Fourth Amendment; therefore, to obtain his CSLI, the government was required 

to obtain a warrant supported by probable cause.

The court disagreed. The court held that cell-phone users lack a reasonable expectation of privacy 

in their historical CSLI because they voluntarily convey CSLI to third parties who create records 

of that information for their own business purposes. In so ruling, the court followed the Fourth, 

Fifth, Sixth and Eleventh Circuits, which have already held that CSLI is a business record created 

by a third party, the cell phone service providers, from information that cell-phone users turn over 

voluntarily. The court noted that until the Supreme Court instructs the lower courts otherwise, it 

was bound to follow the Fourth Amendment’s “third-party” doctrine. The court added that the 

Supreme Court recently granted certiorari in United States v. Carpenter, a Sixth Circuit case, to 

address whether the Fourth Amendment permits the warrantless seizure and search of CSLI.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca10/15-3313/15-3313-

2017-08-08.pdf?ts=1502208063

*****

United States v. Cone, 2017 U.S. App. LEXIS 16170 (10th Cir. Okla. Aug. 24, 2017)

A police officer stopped Cone for driving a vehicle without a functioning license plate light, a 

violation of Oklahoma law. The stop occurred in the parking lot of a hotel where the officer had 

made numerous arrests for drug trafficking and firearms offenses. The officer asked Cone for his 

driver’s license and told him that his car’s tag light was not working. The officer also asked Cone, 

if he had “ever been in trouble before.” When Cone replied, “yes,” the officer asked him if he 

had ever “been to prison before.” Again, Cone replied, “yes.” Cone then falsely told the officer 

that he had been to prison for money laundering. The officer stated that the vast majority of time 

he would question those he pulled over to determine if they had any violent history in their past 

that might pose a safety risk to him. The officer also asked Cone what he was doing at the hotel, 

about which the officer and Cone spoke very briefly. 

The officer directed Cone to exit his vehicle while he ran a warrant check and status check of 

Cone’s license. As Cone got out of his vehicle, the officer saw the butt of a pistol protruding from 

under the vehicle’s center console. When the officer told Cone to get on the ground, Cone tried 

to flee, but was quickly apprehended by the officer. A back up officer arrived and seized the pistol 

from Cone’s vehicle. While she was securing the pistol, the officer smelled the odor of marijuana 

emanating from the passenger side of Cone’s vehicle. The officer found a backpack in the vehicle 

that contained marijuana, methamphetamine, and drug paraphernalia.

The government charged Cone with drug and firearm offenses. 

Cone filed a motion to suppress the evidence seized from his vehicle. Cone argued that the 

officer’s questions about his criminal history and travel plans violated the Fourth Amendment 
16

because they were unrelated to the reason for the stop and they unreasonably prolonged the 

duration of the stop. 

The court disagreed. The court recognized that an officer’s mission during a stop in not limited 

to determining whether to issue a ticket. Because traffic stops are potentially dangerous, the 

Supreme Court has held that officers may run computer checks for warrants and a motorist’s 

criminal history. The court reasoned that if running a computer check of a driver’s criminal 

history is justified, then simply asking the driver about that history is not unreasonable under the 

Fourth Amendment. Here, the court concluded that the information requested by the officer did 

not exceed the scope of what a computer check would have revealed. The court added that a 

drivers’ answer may not be as reliable as a computer check but the time involved is much shorter. 

The court further held that the officer’s questions concerning Cone’s reason for being at the hotel 

did not violate the Fourth Amendment. The court found that Cone failed to show a connection 

between the questions and the discovery of contraband inside his vehicle. The officer saw the 

pistol in plain view as Cone exited his vehicle. The court concluded that lawful seizure of the 

pistol then led to the discovery of the other evidence in Cone’s vehicle. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca10/16-5125/16-5125-

2017-08-24.pdf?ts=1503590465

*****