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June 2013

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

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This edition of The Informer may be cited as 6 INFORMER 13.
In This Issue 

Article

The Circuit Split in Using Deadly Force to Control Suicidal People

Tim Miller

Senior Legal Instructor

Office of Chief Counsel / Legal Training Division

Federal Law Enforcement Training Center

Glynco, Georgia

Click Here

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Case Summaries

United States Supreme Court

Click Here

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Circuit Courts of Appeals

 Click Here

 1st Circuit 4th Circuit 5th Circuit 6th Circuit 

 7th Circuit 8th Circuit 9th Circuit 10th Circuit 

 

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1

The Circuit Split in Using Deadly Force to Control Suicidal People

Tim Miller

Senior Legal Instructor

Office of Chief Counsel / Legal Training Division

Federal Law Enforcement Training Center

Glynco, Georgia

Ruddy Elizondo was 17 years old and lived with his sister and mother in Garland, Texas. Ruddy 

had gone out drinking and upon returning home around midnight, began playing loud music. 

Ms. Elizondo got up and told her son to go to bed. Ruddy went to his room, but started crying. 

When Ms. Elizondo went to check on Ruddy, she found her son holding a knife to his stomach. 

Ruddy had attempted suicide before, so Ms. Elizondo, who was understandably concerned, 

began crying and pleading with Ruddy to put down the knife. Upon hearing this commotion, 

Ruddy’s sister called 911. Officer Green was dispatched to the home. He entered the house, 

went to Ruddy’s room, and found Ruddy still holding the knife. Officer Green drew his pistol, 

backed out of the room, and repeatedly told Ruddy to drop the knife. Instead, Ruddy tried to 

close the bedroom door. Officer Green would not let him. Ruddy cursed, “F---ing shoot me.” 

Officer Green told Ruddy he did not want to shoot, but he would if Ruddy came closer. After 

Ruddy moved closer, still holding the knife in a threatening manner, Officer Green fired three 

times, hitting Ruddy in the chest, shoulder and abdomen. Ruddy was dead approximately five 

minutes after his sister called for help.1

The Elizondos belong to a group of families that called for emergency assistance and watched 

the responding officers shoot the person the family intended to help. Incredibly, Elizondo was 

the Fifth Circuit Court of Appeals’ second case in two months that involved police officers 

shooting a mentally unstable person in the City of Garland, Texas.2 The facts in many of these 

cases are as consistent as how they end. They begin with someone who is suicidal or exhibiting 

signs of mental illness. A concerned family member calls 911. Police arrive, but escalate the 

encounter by aggressively confronting the person, which prompts the person confronted to be 

aggressive. The person threatens the officers with a knife, or some other weapon at hand, and 

the officers are forced to shoot.

While the facts may be consistent, the court decisions about whether the officers committed a 

Fourth Amendment violation are not. The Second, Fourth, Fifth, Sixth, and Eighth Circuit 

Courts of Appeal confine the excessive force inquiry to whether the police officer, or another, 

was in danger at the moment the officer used deadly force.3

 These circuits have concluded the 

events preceding the officer’s use of force are generally irrelevant. Even though an expert 

witness testified Officer Green’s behavior before he shot Ruddy was an abomination, and that 

Ruddy’s death was completely avoidable, his opinion had no effect on the Fourth Amendment 

 1 Elizondo v. Green, 671 F.3d 506 (5th Cir. 2012) cert. denied, 2012 U.S. LEXIS 7560 (2012); see also Elizondo v. City of 

Garland, 2012 U.S. Briefs 1375 (2012). 2 See Rockwell v. Brown, 664 F.3d 985 (5th Cir. 2011). 3 See Nimely v. City of New York, 414 F.3d 381, 390 (2nd Cir. 2005)(an officer’s decision to use deadly force depends on the 

officer’s knowledge of the circumstances immediately prior to and at the moment); Cowen v. Breen, 352 F.3d 756, 762 (2nd Cir. 

2003); Waller v. City of Danville, 212 Fed. Appx. 162, 171 (4th Cir. 2006)(although circuits differ, the Fourth Circuit has 

repeatedly held that pre-shooting conduct is generally not relevant); Waterman v. Batton, 393 F.3d 471, 476 (4th Cir. 2005); 

Elliott v. Leavitt, 99 F.3d 640, 643-44 (4th Cir. 1996); Rockwell, 664 F.3d at 991 (the excessive force inquiry is confined to 

whether [the officer or other person] was in danger at the moment of the threat); Bazan v. Hidalgo City, 246 F.3d 481, 493 (5th 

Cir. 2001); and Fraire v. City of Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992); Schultz v. Long, 44 F.3d 643, 648-49 (8th Cir. 

1995). 
2

question before the court.4 Consequently, the Fifth Circuit held shooting Ruddy was not 

unconstitutional because the teenager posed an immediate threat of serious bodily harm when 

Officer Green shot him.

5

 

The First, Ninth, and Tenth Circuit Courts of Appeal conduct a more extensive “totality of the 

circumstances” inquiry rather than focusing on the moment the officer fired.6

 For example, the 

Tenth Circuit would likely find the expert’s opinion relevant as to whether the officer escalated 

the need to use deadly force.7 

The circuit split is illustrated in the Tenth Circuit’s decision, Sevier v. City of Lawrence.8 The 

facts are eerily similar to Elizondo. The Seviers’ called 911 to report their son, Gregory, was in 

his bedroom with a butcher knife. Gregory had previously attempted suicide. Gregory had been 

out drinking that night, returned home, and began playing loud music. The police arrived. 

According to the court, there was a dispute about whether the officers talked to Gregory’s 

parents, or ignored the Seviers’ attempts to discuss the situation. The officers drew their 

weapons, opened Gregory’s door, and ordered him to show his hands. Gregory’s response was 

to approach the door with the knife. The officers predictably shouted, “Drop it.” Gregory cried, 

“I love you, Mom” and either lunged at the officers, according to the police, or continued to 

stand with the knife at his side, according to his parents. The officers shot and killed Gregory. 

The Tenth Circuit refused to dismiss the case in part because there was a question for the jury “as 

to whether the officers precipitated the use of deadly force by their own actions during the course 

of the encounter immediately prior to the shooting.”9

 Unlike the Fifth Circuit in Elizondo, here, 

the jury would be able to hear the expert witness’ opinion and decide if it was relevant in 

determining whether the officers escalated the need to use deadly force. Reasonableness, 

according to the Tenth Circuit, depends not only on whether the officer was in danger at the

moment he used force, but also on whether the officer’s own conduct unreasonably created the 

need to use force.

10

So what does the Fourth Amendment demand of an officer confronting a mentally unstable 

person? Is it just to be reasonable at the moment they shoot, or should the court conduct a more 

extensive inquiry into whether the officers unreasonably created the need to use force? The 

answer may lie in the Supreme Court’s 2011 decision, Kentucky v. King.

11

King concerned the so-called police-created exigency doctrine; a rule that prevented police from 

benefiting from a warrantless entry into a home based on exigent circumstances, if the police 

created the exigency. The facts were that after smelling burning marijuana coming from King’s 

 4 Elizondo v. City of Garland, 2012 U.S. Briefs 1375 (2012)(“Rather than call for back-up, consult with a critical incident team, 

contact suicide prevention personnel, consult with family, move away from the doorway, formulate a plan to calmly and safely 

remove the knife, or deploy non-lethal force, Green did exactly what no reasonable officer should do with a mentally unstable, 

suicidal person. He pulled out his gun, pointed it at Ruddy and began yelling at the distraught kid to drop the knife. How he 

could possibly assume that it was reasonable . . . to yell and make threats with a semi-automatic handgun against a teenager in his 

own bedroom, who posed only a minimal to moderate threat to himself with a kitchen knife, is beyond reasonable 

comprehension.”) 

5 Elizondo v. Green, 671 F.3d 506 (5th Cir. 2012) 6 Young v. City of Providence, 404 F.3d 4, 22 (1st Cir. 2005)(“Once a seizure has occurred the court should examine the actions 

of the [officer] leading up to the seizure. This rule is most consistent with the Supreme Court’s mandate that we consider these 

cases in the ‘totality of the circumstances’”); Deorle v. Rutherford, 272 F.3d 1282 (9th Cir. 2002) cert. denied, 536 U.S. 958 

(2002); Sevier v. City of Lawrence, 60 F.3d 695, 696 (10th Cir. 1995). 7 See Sevier, 60 F.3d at 696 citing Tennessee v. Garner, 471 U.S. 1, 9 (1985). 8 Sevier, 60 F.3d at 699. 9 Id. at 701. 10 See Sevier, 60 F.3d at 696 (citing Garner, 471 U.S. at 9). 11 Kentucky v. King, 131 S.Ct. 1849 (2011).
3

door, the police knocked “as loud as [they] could” and announced “This is the police” or “Police, 

police, police.” Next the officers heard the predictable sounds of people moving inside, and 

other sounds suggesting that drug related evidence was about to be destroyed. The officers 

yelled “we’re going to make entry inside the apartment,” kicked the door open, and seized 

controlled narcotics in plain view.12 The Kentucky Supreme Court held the conduct of the police 

created the need to enter the home without a warrant. The warrantless entry was unconstitutional 

because the pounding and shouting by the police made it “reasonably foreseeable” that the 

occupants would attempt to destroy the evidence.13

The United States Supreme Court disagreed. Whether the officers’ conduct made it foreseeable 

the occupants would destroy the evidence, or pick some other course of action was not relevant. 

The Supreme Court restricted the inquiry to whether the police engaged in, or threatened to 

engage in conduct that violated the Fourth Amendment before they entered the apartment.14 The 

Court found the knocking and shouting in this case was not constitutionally objectionable. The 

court refused to approve a test that would second-guess police officers about how loud they 

should announce their presence. Quoting Graham v. Connor, the Court stated the “reasonable 

foreseeability” test would create unacceptable and unwarranted difficulties for law enforcement 

officers who must make quick decisions in the field.15

Applying the Supreme Court’s rationale from King to the Fifth Circuit’s decision in Elizondo, 

was Officer Green’s conduct toward Ruddy Elizondo reasonable? If the inquiry is restricted to 

whether Green violated, or threatened to violate the Fourth Amendment, it was reasonable, at 

least in a constitutional sense. Green lawfully entered the Elizondo’s home based on facts that 

one of the occupants needed emergency assistance16 and he did not use deadly force until that 

person put him in fear of serious bodily harm.17 

The circuit split appears to be over a disagreement about what is a Fourth Amendment violation 

and unprofessional law enforcement conduct. In a concurring opinion from Elizondo, Judge 

DeMoss made the distinction between the law and the profession of law enforcement in the two 

cases that arose out of Garland City.18 “While [the officers’] conduct is not legally 

objectionable” he stated, “neither is it admirable.”19 He urged law enforcement agencies to better 

prepare officers for foreseeable, volatile situations involving mentally ill citizens.20 

Police Chief Magazine echoed Judge DeMoss’ comments in a recent article that recommended 

realistic, scenario based training that teaches police officers how to maintain emotional control, 

and not meet hostility with hostility when dealing with mentally ill and/or suicidal suspects.21 

The article states law enforcement alone will not work and partnerships with mental health 

professionals in responding to persons with serious mental illness are crucial. Following the 

advice of mental health professionals will allow officers to not only support and defend the 

constitution, but also better serve the public, regardless of the circuit in which they serve. 

 12 Id. at 1854. 13 Id. at 1855. 14 Id. at 1863 (There was no evidence of a “demand” of any sort to open the door until after the exigency arose). 15 Id. at 1860, quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989). 16 Id. at 1856 (officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an 

occupant from imminent injury); see also, Rockwell, 664 F.3d at 995. 17 Rockwell, 664 F.3d at 991; see also Garner, 471 U.S. at 11. 18 Elizondo, 671 F.3d at 511- 12 (DeMoss, H.R., concurring); Rockwell, 664 F.3d 985, 996 – 97 (DeMoss, H.R., concurring). 

19 Rockwell, 664 F.3d at 997 (DeMoss, H.R. concurring). 20 Rockwell at 997. 21Jeni McCutcheon, et al., Responding to Calls with Suicidal Suspects: Practical Command and Psychological Considerations,

The Police Chief 32-35 (May 2013).
4

CASE SUMMARIES

 United States Supreme Court

Maryland v. King, 2013 U.S. LEXIS 4165 (U.S. June 3, 2013)

In 2009, police arrested King and charged him with first and second-degree assault. Under the 

Maryland DNA Collection Act, because King had been charged with a “serious offense” a 

sample of King’s DNA was taken by applying a cotton swab to the inside of his cheeks. King’s 

DNA profile generated a match to a DNA profile developed from a sample collected from a 

victim in an unsolved sexual assault case from 2003. A grand jury indicted King for the 2003 

sexual assault, and he was convicted and sentenced to life in prison. 

The Maryland Court of Appeals reversed King’s conviction, holding the portions of the DNA 

Act authorizing the collection of a DNA sample from a mere arrestee were unconstitutional as 

applied to King. 

The United States Supreme Court in a 5-4 decision reversed the Maryland Court of Appeals and

held that DNA identification of arrestees is a reasonable search that can be considered part of a 

routine booking procedure. The court stated, 

“When officers make an arrest supported by probable cause to hold for a serious 

offense and they bring the suspect to the station to be detained in custody, taking 

and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and 

photographing, a legitimate police booking procedure that is reasonable under the 

Fourth Amendment.”

Click HERE for the court’s opinion.

*****

Salinas v. Texas, 2013 U.S. LEXIS 4697 (U.S. June 17, 2013)

During the course of a murder investigation, Salinas gave his shotgun to the police for ballistics 

testing and then voluntarily went to the police station for questioning. The police did not advise 

Salinas of his Miranda rights and all parties agreed Salinas was not in-custody for Miranda 

purposes. For most of the one-hour interview, Salinas answered the police officer’s questions. 

However, when the officer asked Salinas whether his shotgun “would match the shells recovered 

at the scene of the murder,” Salinas declined to answer. After a few moments of silence, the 

officer asked other questions, which Salinas answered. 

Salinas was charged with murder. At trial, the prosecution argued to the jury Salinas’ failure to 

answer the officer’s question concerning the shotgun was evidence of his guilt. The jury 

convicted Salinas.

Salinas argued the prosecution violated the Fifth Amendment by commenting on Salinas’ silence

when the officer asked him about the shotgun.

Without deciding the issue raised by Salinas, the court reiterated the privilege against selfincrimination generally was not self-executing and a witness who wanted its protection needed to 
5

invoke it explicitly. The court stated, “a suspect who stands mute had not done enough to put 

police on notice that he is relying on his Fifth Amendment privilege.” Consequently, before 

Salinas could rely on the privilege against self-incrimination, he was required to invoke it. 

Because he failed to do so, the Texas Court of Criminal Appeals properly rejected his claim that 

the prosecution’s use of his silence in its case-in-chief violated the Fifth Amendment. 

Click HERE for the court’s opinion.

*****

Circuit Courts of Appeals

1st Circuit

United States v. Wurie, 2013 U.S. App. LEXIS 9937 (1st Cir. Mass. May 17, 2013)

Police officers arrested Wurie for distributing crack cocaine and took him to the police station. 

When Wurie arrived at the station, two cell phones were taken from him. A few minutes later, 

one of the officers noticed one of Wurie’s cell phones was repeatedly receiving calls from a 

number identified as “my house” on the external caller ID screen on the front of the phone. The 

officers were able to see the caller ID screen and the “my house” label in plain view. A few 

minutes later, an officer opened the phone and pressed a button to look at Wurie’s call log to 

determine the phone number associated with the “my house” caller ID reference. An officer 

typed the phone number into an online phone directory and discovered the address associated 

with the phone number was a nearby apartment. Officers connected Wurie to the apartment, 

obtained a warrant, and searched the apartment finding drugs and firearms. 

Wurie filed a motion to suppress the evidence from his apartment, arguing the officers violated 

the Fourth Amendment by opening his cell phone and accessing his call log to determine the 

phone number associated with the “my house” caller ID reference. 

The court held the search incident to arrest exception does not authorize the warrantless search of 

data on cell phones seized from individuals arrested by the police. The court recognized a

modern cell phone is not like a purse, wallet or other type of container an officer might typically 

find on an arrestee. A cell phone has the ability to store a large amount of highly personal 

information such as photographs, videos, text messages and emails. Allowing the police to 

search the data on a cell phone without a warrant any time they conducted a lawful arrest would 

create a serious and recurring threat to the privacy of countless individuals.

Even though the evidence should have been suppressed in this case, the court recognized other 

exceptions to the warrant requirement might justify a warrantless search of cell phone data in 

certain situations. For example, the exigent circumstances exception would allow the police to 

conduct an immediate, warrantless search of a cell phone’s data where the phone is believed to 

contain evidence necessary to locate a kidnapped child or to investigate a bombing plot or 

incident. 

Click HERE for the court’s opinion.

*****
6

4th Circuit

United States v. Castellanos, 2013 U.S. App. LEXIS 10797 (4th Cir. N.C. May 29, 2013)

A police officer patrolling a truck stop saw a commercial car carrier and became suspicious 

when he saw one of the vehicles on the car carrier, a Ford Explorer, bore a dealership placard 

instead of a regular license plate. The driver of the car carrier gave the officer shipping 

information indicating the owner of the vehicle was Wilmer Castenada. The officer was 

unsuccessful in reaching Castenada by telephone. When the officer attempted to verify the 

origin and destination addresses provided by the car carrier, he could not find anyone who knew 

Castenada or was expecting delivery of a vehicle. The officer obtained consent to search the 

Explorer from the driver of the car carrier and found bricks of cocaine hidden in the gas tank. 

Afterward, an individual claiming to be Castenada called the car carrier and asked about the 

status of the Explorer. The individual was told the vehicle had been impounded and provided 

information on how to recover it. Castellanos then arrived to claim the Explorer. Castellanos 

had the title to the Explorer, tracking information for the vehicle from the car carrier and a piece 

of paper with the officer’s phone number from earlier calls. Castellanos claimed he was in the 

process of purchasing the Explorer from Castenada. The government indicted Castellanos for 

conspiracy to distribute cocaine. 

Castellanos argued the cocaine found in the Explorer’s gas tank should have been suppressed.

The court disagreed. Castellanos did not enter the title to the Explorer into evidence or otherwise 

establish he was the owner of the vehicle before the police searched it. As a result, Castellanos 

failed to establish he had a reasonable expectation of privacy in the Explorer; therefore, he could 

not challenge the search. 

Click HERE for the court’s opinion.

*****

5th Circuit

Ramirez v. Martinez, 2013 U.S. App. LEXIS 9757 (5th Cir. Tex. May 15, 2013)

Deputy Martinez and other police officers went to Ramirez’s landscaping business to execute a 

warrant for the arrest of Ramirez’s sister-in-law. Ramirez confronted Deputy Martinez and the 

two exchanged profanities. Deputy Martinez ordered Ramirez to turn around and place his 

hands behind his back. After Ramirez failed to comply, Deputy Martinez grabbed Ramirez’s 

hand and told him to turn around, but Ramirez pulled his arm away. Deputy Martinez then

deployed his Taser, striking Ramirez in the chest. Deputy Martinez and several other officers 

forced Ramirez to the ground and restrained him with handcuffs. Deputy Martinez deployed his 

Taser a second time, while Ramirez was lying face down on the ground in handcuffs. Deputy 

Martinez arrested Ramirez for disorderly conduct; however, the charge was later dismissed.

Ramirez sued Deputy Martinez and several other officers for false arrest and excessive use of 

force.

The court held Deputy Martinez was entitled to qualified immunity on Ramirez’s false arrest 

claim. Under Ramirez’s version of the incident, a reasonable officer on the scene would have 
7

thought he had probable cause to arrest Ramirez for resisting arrest after Ramirez pulled his arm 

out of Deputy Martinez’s grasp. 

However, the court held Deputy Martinez was not entitled to qualified immunity on Ramirez’s 

excessive force claim. The court concluded Ramirez’s version of the facts was sufficient to 

establish under the Graham factors that Deputy Martinez used excessive force. First, analyzing 

the severity of the crime, the court noted while Ramirez pulled his arm out of Deputy Martinez’s 

grasp, there was a dispute regarding any subsequent resistance up until Deputy Martinez 

deployed his Taser. 

Second, the court held a reasonable officer could not have concluded Ramirez posed an 

immediate threat to the safety of the officers by questioning their presence at his place of 

business or while lying on the ground in handcuffs. Pulling his arm out of Deputy Martinez’s 

grasp, without more, was insufficient to find Ramirez posed an immediate threat to the safety of 

the officers. 

Finally, the court held is was objectively unreasonable for Deputy Martinez to deploy his Taser 

twice against Ramirez when the only resistance Ramirez offered was pulling his arm out of 

Deputy Martinez’s grasp.

Click HERE for the court’s opinion.

*****

6th Circuit

Smith v. Stoneburner, 2013 U.S. App. LEXIS 9472 (6th Cir. Mich. May 10, 2013)

Officers Stoneburner and Knapp went to Charles Smith’s house after an employee at a local store 

reported that Charles had stolen a cell phone charger. Once at the house, the officers found 

Charles’ brother, Logan, outside. After the officers confirmed Charles was in the house, they 

asked Logan if they could enter the house. According to Logan, he told the officers to wait 

outside on the back deck while he went inside to check with his mother. As Logan went into the 

house, Officer Stoneburner followed him inside and Officer Knapp remained outside. Logan 

found Charles and his mother and they went with Officer Stoneburner back outside. Once 

outside, the officers asked Charles about the shoplifting incident, which Charles denied. Charles 

began to walk back inside the house, but Officer Stoneburner grabbed him by the wrist, pulled 

him back outside and arrested him for stealing the cell phone charger. During the arrest, Charles 

and his mother both struggled with the officers. 

The Smiths sued Officer Stoneburner claiming he violated the Fourth Amendment by unlawfully 

entering their house twice and then using excessive force against Charles and his mother. 

The court held Officer Stoneburner was not entitled to qualified immunity.

First, whether Officer Stoneburner violated the Smiths’ Fourth Amendment rights when he 

followed Logan into the house to look for Charles was a question for the jury to decide, as each 

party gave a different version as to what happened. If a jury chose to believe Logan, that would 

mean Officer Stoneburner ignored Logan’s request to stay outside the house. If Officer 

Stonebruner ignored this request, he would have violated the Fourth Amendment because he 

would have entered the house without a warrant, and no exception to the warrant requirement 

applied. 
8

Second, Officer Stoneburner admitted that by reaching across the doorway to grab Charles by the 

wrist to arrest him, he entered the house a second time. The court held Officer Stoneburner’s 

warrantless entry could not be justified under the hot pursuit or destruction of evidence 

exceptions to the Fourth Amendment’s warrant requirement. 

The court concluded Officer Stoneburner’s entry into the house was neither a “pursuit” nor 

“hot.” Charles voluntarily agreed to talk with Officer Stoneburner and Stoneburner did not

attempt to arrest Charles when they spoke. In a consensual encounter, a person has the right to 

walk away from the police officer and go about his business. The result may have been different 

if Officer Stoneburner had told Charles he was under arrest and then Charles decided to walk 

away. In addition, no emergency required immediate police action and the risk of the destruction 

of evidence was remote. If Officer Stoneburner wished to pursue the investigation, he could have 

contacted a magistrate and obtained a warrant instead of choosing to act as his own magistrate 

and enter the house.

Finally, the Smiths and the officers gave differing accounts as to the amount of force that was 

used to arrest Charles. These differing accounts create a question of fact for a jury to decide. If 

a jury decides Charles resisted, the officers’ use of force may have been reasonable; if not, their 

use of force may have been excessive. 

Click HERE for the court’s opinion.

*****

United States v. Washington, 714 F.3d 962 (6th Cir. Mich. May 10, 2013)

Washington and another man confronted John Nesbitt in a parking lot, pointed a gun at Nesbitt’s 

head and demanded that Nesbitt hand over his car keys. Nesbitt saw Washington clearly, as 

Washington did not use anything to cover his face. Nesbitt described his attacker as a black 

male, nineteen years-old, with a medium brown complexion, 5’9”, 150 pounds, with a small 

beard. 

Five months later, police officers asked Nesbitt to view a photo array to determine if he could 

recognize the men who carjacked him. The officers told Nesbitt the photographs in the array 

could be affected by the lighting of the cameras, and that some features in the photographs, such 

as hair and facial hair, could be easily changed. After receiving these instructions, Nesbitt 

viewed the photo array and immediately picked out Washington as the man who carjacked him. 

Washington filed a motion to suppress Nesbitt’s identification, arguing it was unduly suggestive. 

Specifically, Washington claimed after Nesbitt described his attacker as having light brown skin, 

the police officers chose darker skinned individuals than Washington to appear in the photo array 

alongside him. 

The court disagreed, holding the identification procedure was not impermissibly suggestive to 

the extent there was a likelihood of misidentification. First, the photo array contained five 

African-American men in addition to Washington. Second, at least four of the men appeared to 

have some sort of facial hair and all five men appeared to be around the same age as 

Washington. Third, even though Washington has lighter skin tone than some of the other men in 

the photo array, the difference was not drastic. Finally, although Washington’s photo had a glare 

on his face from the camera flash, the officer told Nesbitt the lighting and appearance of the 

individuals in the photos could be easily altered. 
9

Click HERE for the court’s opinion.

*****

7th Circuit

Ramos v. City of Chicago, 2013 U.S. App. LEXIS 10487 (7th Cir. Ill. May 24, 2013)

Police officers learned a burglary suspect, known only as “Jose” lived at 7249 South Lawndale 

Avenue. The police also knew Jose was male, Hispanic, in his twenties, approximately 5’2” tall, 

bald, and might be wearing a red shirt. As officers approached the South Lawndale address, they 

saw an Hispanic male, who appeared to be in his mid-twenties, wearing a red shirt, pull away 

from the curb in a vehicle. An officer performed a traffic stop and asked the man for his driver’s 

license. The man told the officer he did not possess a valid driver’s license; however, he gave 

the officer a state identification card, which identified the man as Pedro Ramos. In addition,

Ramos was 6’1” tall. The officer had Ramos get out of the vehicle, handcuffed him and placed 

him in the back of a police car. The officer told Ramos he was being detained in connection with 

a burglary investigation. Shortly afterward, another officer brought a witness from the burglary 

to the scene, and the witness positively identified Ramos as one of the perpetrators. The officers 

then arrested Ramos for burglary. Ramos remained incarcerated for 253 days until he was 

acquitted of the burglary offense. 

Ramos filed a lawsuit, claiming the police officers violated the Fourth Amendment by stopping 

his vehicle, handcuffing him and then placing him in the back of a police car until the burglary 

victim arrived and identified him. 

The court held the initial stop of the vehicle as it was pulling away from curb at 7249 South 

Lawndale Avenue was supported by reasonable suspicion; therefore, the officers were entitled to 

qualified immunity. At the time of the stop, the officers had information that a burglary suspect 

lived at the South Lawndale address, that he was an Hispanic male and that he may be wearing a 

red shirt. The similarity between Ramos’ appearance and the description of the suspect, 

particularly given that the suspect was pulling away from the curb at the address identified as 

that of the suspect, gave the officers reasonable suspicion to conduct a Terry stop. 

Even though the officers were granted qualified immunity, the court voiced concern over the 

officers’ decision to handcuff and detain Ramos after the initial stop. The court noted that once 

the officers pulled Ramos over, their basis for reasonable suspicion diminished. Ramos provided 

the officers with identification, which indicated his name was Pedro not Jose and he was 

significantly taller than the height reported for the burglary suspect. Further, while the court has 

upheld the use of handcuffs to ensure officer safety in a Terry stop without automatically 

escalating the encounter into an arrest, that does not mean law enforcement can routinely 

handcuff suspects in every situation. The court stated:

“The proliferation of cases in this court in which ‘Terry’ stops involve handcuffs 

and ever-increasing wait times in police vehicles is disturbing, and we would 

caution law enforcement officers that the acceptability of handcuffs in some cases 

does not signal that the restraint is not a significant consideration in determining 

the nature of the stop.” 
10

The court further noted it did not need to decide if the officers’ use of handcuffs turned 

the initial Terry stop into an arrest because the officers had probable cause to arrest 

Ramos after he failed to produce a valid driver’s license after the initial lawful stop. 

Click HERE for the court’s opinion.

*****

8th Circuit

United States v. Quintero-Felix, 714 F.3d 563 (8th Cir. Iowa May 1, 2013)

A police officer stopped Felix’s vehicle for a license plate violation. During the stop, Felix 

appeared nervous, his hands were shaking, his legs were bouncing and he was picking imaginary 

balls of lint from his shirt. In addition, Felix and his passenger gave the officer conflicting 

stories concerning their travel plans. After the officer issued Felix a warning ticket, and returned 

his documentation, the officer asked Felix if he could ask him a few more questions. Felix 

agreed and answered some of the officer’s questions. The passenger consented to a drug dog 

sniff of the vehicle. After the drug dog alerted to the presence of drugs, the officer searched the 

vehicle and found a hidden compartment containing $16,000 in cash and a handgun. Police later 

identified $6,000 of the seized cash as pre-marked currency from a controlled drug buy. 

Felix argued his statements and evidence from the traffic stop should have been suppressed 

because the officer unreasonably extended the traffic stop once he issued the warning ticket and 

returned Felix’s documentation.

The court did not agree. By the time the officer issued Felix the warning ticket and returned his 

documentation, the officer had developed reasonable suspicion to extend the traffic stop. Felix 

exhibited nervous behavior throughout the stop and he and the passenger gave the officer 

conflicting accounts of their travel history. Consequently, extending the traffic stop 

approximately seven minutes until the drug dog arrived was not unreasonable. 

The court added, even if the officer lacked reasonable suspicion, Felix consented to the extension 

of the stop. Felix remained in the officer’s car and answered additional questions after the 

officer issued a warning ticket, returned Felix’s documentation and told him he was free to leave. 

Click HERE for the court’s opinion.

*****

LaCross v. City of Duluth, 713 F.3d 1155 (8th Cir. Minn. May 8, 2013)

LaCross claimed a police officer deployed his Taser against him while he was handcuffed and 

seated in the back of a police car on September 17, 2006. The next day, LaCross sought medical 

care for bruising on his wrists from the handcuffs, but he did not complain of any injuries related 

to the Taser application. LaCross filed suit in 2010 claiming the officer’s use of the Taser 

constituted excessive use of force. 

The court held the officer was entitled to qualified immunity because he did not violate LaCross’

then clearly established constitutional rights. In September 2006, a reasonable officer could have 

believed that as long as he did not cause more than de minimis injury to an arrestee, his actions 

would not violate the Fourth Amendment. It was not until 2011 that the Eighth Circuit 
11

determined the appropriate inquiry in excessive force cases was whether the force used to effect 

a particular seizure was “reasonable,” not the degree of injury suffered by an arrestee. 

Click HERE for the court’s opinion.

*****

United States v. Arrocha, 713 F.3d 1159 (8th Cir. Mo. May 8, 2013)

Police officers arrested Arrocha on an outstanding arrest warrant after they encountered him at a 

convenience store. The officers decided to tow and impound Arrocha’s vehicle, which was 

properly parked in the store’s parking lot. During their inventory search, the officers found a 

handgun inside the car. Arrocha was indicted for unlawful possession of the handgun by a 

convicted felon. 

Arrocha claimed the officers’ decision to tow his vehicle violated the Fourth Amendment. 

First, although the officers exercised some discretion in deciding whether to tow Arrocha’s 

vehicle, the court held the officers followed their department’s operations manual, which

outlined the procedures for the towing of vehicles. Second, there was no evidence the officers’ 

use of this discretion was a ruse for a general search of Arrocha’s vehicle to discover 

incriminating evidence. 

Finally, even though Arrocha’s vehicle was parked on private property, the court noted police 

may take protective custody of a vehicle when they have arrested its occupants, even if it is 

lawfully parked and poses no public safety hazard. Here, while the officers did not consult with 

the convenience store employees before towing Arrocha’s vehicle, the officers testified the

police had an informal agreement with the convenience store that vehicles abandoned in its busy 

parking lot because of an arrest would be towed. 

Click HERE for the court’s opinion.

*****

United States v. Winarske, 2013 U.S. App. LEXIS 10156 (8th Cir. N.D. May 21, 2013)

A confidential informant (CI), who had provided police with accurate information about local 

criminal activity in the past, told officers Winarske had a stolen handgun he wished to sell. The 

CI told officers that Winarske was a registered sex offender who was currently on probation. 

Officers confirmed a handgun had recently been stolen from a vehicle two blocks from 

Winarske’s house and that Winarske was a convicted felon and registered sex offender currently 

on probation. 

Winarske agreed to meet the CI in the parking lot of a shopping mall and sell him a stolen 

handgun. Prior to the meeting, the CI told the officers the time and place of the meeting in 

addition to the color, make and model of Winarske’s vehicle and the fact that Winarske’s 

girlfriend would be present. Police officers conducted surveillance at the mall and just before the 

arranged meeting time, they saw Winarske and a female, later identified as Winarske’s girlfriend, 

enter a vehicle that matched the description of the vehicle provided by the CI. The officers 

approached the vehicle, removed Winarske and his girlfriend, patted them down and then 

handcuffed them. Winarske admitted there was a handgun in the vehicle. Officers searched the 
12

car and seized a handgun and ammunition. The government charged Winarske with being a 

felon in possession of a firearm. 

Winarske argued the information provided by the informant did not establish probable cause to 

arrest him; therefore, the warrantless search of the vehicle violated the Fourth Amendment. 

The court disagreed. First, the officers had reason to believe the CI was reliable based on his 

established track record of providing accurate information on local criminal activity. Second, the 

CI provided identifying information about Winarske that was independently corroborated by 

police, to include, Winarske’s first and last names, criminal history and supervision status. 

Third, the CI provided accurate information about the time and place of a planned meeting with 

Winarske to purchase a stolen handgun. Consequently, the court held the officers had probable 

cause to support a warrantless arrest of Winarske when they encountered him in the mall parking 

lot. 

The court further held the officers lawfully searched the vehicle incident to Winarske’s arrest. 

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within 

reaching distance of the passenger compartment at the time of the search or if it is reasonable to 

believe the vehicle contains evidence of the offense for which the suspect is being arrested. 

Here, it was reasonable for the officers to believe the vehicle contained evidence of the offense 

of arrest in the form of the handgun. Even if Winarske was not under arrest at the time of the 

search, the court concluded the officers could have lawfully searched the vehicle without a 

warrant under the automobile exception, as the court already concluded the police had probable 

cause to believe Winarske arrived at the mall to conduct an illegal firearms sale. 

Click HERE for the court’s opinion.

*****

United States v. Brooks, 2013 U.S. App. LEXIS 10633 (8th Cir. Iowa May 28, 2013)

Brooks robbed a bank and then stole a van before the police arrested him. The police found a 

cell phone in the van, searched it without a warrant, and discovered photographs and a video of a 

man who resembled Brooks posing with a firearm that matched the one used in the bank robbery. 

Eight months later, police officers obtained a warrant to conduct a more thorough search of the 

cell phone.

Brooks moved to suppress the photographs and video discovered during the warrantless search 

of the cell phone. Brooks argued the eight-month delay in obtaining the warrant was to cure the 

illegality of the initial search.

Without deciding the issue, the court held even if the warrantless search of the cell phone was 

illegal, the independent source rule applied. The police suspected Brooks had an accomplice in 

the bank robbery. Prior to seeking the search warrant, officers obtained additional information 

concerning the accomplice. An officer testified the investigators sought the warrant to obtain 

cell phone call and text records to help identify the accomplice. The officer also testified that 

investigators sought warrants for other phones in an effort to identify Brooks’ accomplice and 

the initial search of the cell phone did not recover any call logs or text messages. The court 

noted the police did not include any details from the photographs or video in their search warrant 

application and concluded the investigators would have applied for the warrant even without the 

information obtained from the initial warrantless search. 
13

Click HERE for the court’s opinion.

*****

9th Circuit

Gonzalez v. City of Anaheim, 2013 U.S. App. LEXIS 9607 (9th Cir. Cal. May 13, 2013)

Officers Wyatt and Ellis conducted a traffic stop on a van driven by Gonzalez. Gonzalez pulled 

over and the officers approached the van on foot from each side. After Officer Wyatt saw 

Gonzalez reach back between the seats, he drew his gun and told Gonzalez not to reach back 

there. Officer Ellis twice told Gonzalez to turn off the van but he did not respond. Gonzalez 

also refused to open his right hand, which appeared to be concealing a plastic baggie. The 

officers opened the driver and passenger side doors, and Officer Wyatt reached in and struck 

Gonzalez on the arm with his flashlight three times. Gonzalez responded by moving his right 

hand toward his mouth, attempting to swallow whatever was in his hand. Officer Ellis then 

attempted to apply a carotid restraint or sleeper-hold on Gonzalez, who struggled with him, while 

Officer Wyatt entered the van on the passenger side and began punching Gonzalez in the head 

and face. After Gonzalez tried to shift the van into gear, Officer Ellis struck him on the back of 

the head three times with his flashlight. Nonetheless, Gonzalez shifted the van into gear and it 

began to pull away with Officer Wyatt still in the passenger seat. After Gonzalez accelerated, 

Officer Wyatt yelled at him to stop and tried to knock the van out of gear, but Gonzalez slapped 

his hand away. Officer Wyatt pulled out his gun and shot Gonzalez in the head. The van hit a 

parked vehicle and stopped. Gonzalez died.

Gonzalez’s family sued the officers, claiming the officers used excessive force several times 

against Gonzalez in violation of his Fourth Amendment rights. 

Applying the factors from Graham v. Connor, the court held the officers were entitled to 

qualified immunity.

First, the court held Office Wyatt’s striking Gonzalez in the arm with the flashlight three times

was not excessive force given Gonzalez’s refusal to follow the officers’ commands. 

Second, the court held Officer Ellis’ attempted use of a carotid restraint, Officer Wyatt’s punches 

to Gonzalez’s face and Officer Ellis’ flashlight strikes to Gonzalez’s head were objectively 

reasonable because the officers had reason to believe Gonzalez possessed illegal drugs and was 

trying to destroy evidence. In addition, Gonzalez posed an immediate threat to the officers as he 

repeatedly refused to obey the officers’ commands and Gonzalez shifted the van into gear with 

an officer inside the van. It was reasonable for the officers to believe Gonzalez had a hidden 

weapon and that remaining inside the van posed a threat to Officer Wyatt. Finally, Gonzalez was 

actively resisting arrest and attempted to evade arrest by fleeing in the van. 

Click HERE for the court’s opinion.

*****
14

10th Circuit

Roosevelt-Hennix v. Prickett, 2013 U.S. App. LEXIS 9808 (10th Cir. Colo. May 16, 2013)

A police officer arrested Hennix for driving under the influence (DUI), handcuffed her arms 

behind her back, placed her in the back seat of his patrol car and closed the door. Hennix banged 

her head against the window of the patrol car to get the officer’s attention. Officer Pricket, who 

had arrived on the scene, opened the door and told Hennix to calm down and stop banging her 

head against the window. At some point, Officer Prickett decided Hennix should have her legs 

restrained for the ride to the police station. Officer Prickett opened the door to the patrol car and 

ordered Hennix to place her feet outside the vehicle. Hennix claimed she told Officer Prickett 

that she could not lift herself and turn her body to place her feet outside the police car because of 

a pre-existing back injury. Officer Prickett deployed his Taser against Hennix in drive-stun 

mode one time. After Officer Prickett deployed his Taser, another officer removed Hennix’s 

legs from the patrol car and placed them in restraints. Hennix immediately told the officers she 

could not feel her legs and the next day underwent back surgery for paralysis in her lower 

extremities. 

The court held Officer Prickett was not entitled to qualified immunity. The court found there 

was sufficient evidence for a jury to conclude Hennix told the officers she was physically unable 

to comply with their requests to move her feet outside the patrol car. The court further found 

there was sufficient evidence for a jury to conclude the officers never attempted to help Hennix 

in moving her feet outside the patrol car before Officer Prickett deployed his Taser.

Click HERE for the court’s opinion.

*****