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February 2017

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This edition of The Informer may be cited as 2 INFORMER 17.
2

The Informer – February 2017

Law Enforcement Case Granted Certiorari by the United States 

Supreme Court:

District of Columbia v. Wesby: Probable Cause to Arrest / Qualified Immunity..........................4

 

Case Summaries

Circuit Courts of Appeals

Fourth Circuit

United States v. Robinson: Whether an officer has to establish that the suspect is 

both armed and dangerous before the officer can conduct a lawful Terry frisk.................................5

Fifth Circuit

Hamilton v. Kindred: Whether the plaintiffs adequately alleged an excessive use 

of force regarding a body cavity search, and whether an officer at the scene could be 

found liable under a theory of bystander liability..............................................................................6

Eighth Circuit

United States v. Yorgensen: Whether a Fourth Amendment violation required suppression

of the defendant’s incriminating statements, or whether the attenuation doctrine applied................7

United States v. McCoy: Whether the warrantless search of a probationer’s computers

violated the Fourth Amendment.......................................................................................................8

Tenth Circuit

United States v. Juszczyk: Whether the defendant retained a reasonable expectation of

privacy in a backpack he threw onto the roof of a house when confronted by officers......................9

Vogt v. City of Hays: Whether the self-incrimination clause of the Fifth Amendment 

prohibits the use of compelled statements in a probable cause hearing, whether four 

officers were entitled to qualified immunity, and whether the district court properly 

dismissed the plaintiff’s claims against two municipalities..............................................................9

Eleventh Circuit 

Dukes v. Deaton: Whether an officer was entitled to qualified immunity after he threw 

a flashbang into a room without first performing a visual inspection, and whether the 

officer’s supervisor was entitled to qualified immunity for negligently training him.....................11

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4

Law Enforcement Case Granted Certiorari by the United States 

Supreme Court:

Fourth Amemdment: Probable Cause to Arrest / Civil Liablity: Qualifed Immunity

District of Columbia v. Wesby

Decision Below: 765 F.3d 13 (D.C. Cir. 2014)

Police officers responded to a noise disturbance call at a vacant house. When the officers arrived, 

they discovered twenty-one men and women having a party. One of the women told the officers 

a woman, named Peaches, who was renting the house had given her permission to be in the house, 

while others said they had been invited to the party by another guest. Peaches was not present, 

but when one of the officers spoke to her on the phone, Peaches told the officer she had permission 

to be at the house. The officer eventually contacted the homeowner who denied Peaches was 

renting the house and denied the partygoers had his permission to be inside his house. A sergeant 

who had arrived on the scene during the investigation directed the officers to arrest everyone in 

the house for unlawful entry, a violation of District of Columbia law. Subsequently, the charges 

against the arrestees were dismissed.

Sixteen of the arrestees sued five police officers for false arrest. The arrestees argued that the 

officers lacked probable cause to arrest them because they had told the officers they had been 

invited to the house; therefore, they did not have the intent to trespass.

The district court and the District of Columbia Circuit Court of Appeals denied the officers 

qualified immunity. The officers appealed and the United States Supreme Court agreed to hear 

the case.

The issues before the Supreme Court are:

1. Whether the officers had probable cause to arrest under the Fourth Amendment. 

Specifically, when the owner of a vacant home tells the police that he has not 

authorized entry, can an officer who is trying to determine if he has probable cause 

to arrest those inside for trespassing discredit the suspects’ questionable claims that 

they did not intend to trespass because they were invited inside. 

2. Even if the officers did not have probable cause to arrest the trespassers, were the 

officers entitled to qualified immunity because the law was not clearly established 

in this regard.

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

*****
5

CASE SUMMARIES

Circuit Courts of Appeal

Fourth Circuit

United States v. Robinson, 2017 U.S. App. LEXIS 1134 (4th Cir. W. Va. Jan. 23, 2017)

Police officers received a tip that a man located in a parking lot known for drug activity had just 

loaded a firearm, concealed it in his pocket, and got into a car driven by a woman. An officer 

located the car and conducted a traffic stop after he saw that its occupants were not wearing 

seatbelts. The officer ordered Robinson, the passenger, to exit the car, and when he did, another 

officer frisked Robinson for weapons. The officer seized a loaded gun from the front pocket of 

Robinson’s pants. Robinson was arrested for being a felon in possession of a firearm.

Robinson filed a motion to suppress the firearm, claiming the officer’s frisk violated the Fourth 

Amendment. Robinson argued that to support a Terry frisk for weapons, an officer must 

reasonably suspect the person being frisked is both armed and dangerous. Here, while the officer 

might have suspected that he was carrying a loaded firearm, Robinson claimed the officer had no 

facts to support a belief that he was dangerous. At the time of the frisk, West Virginia residents 

could lawfully carry a concealed firearm if they had received a concealed carry license from the 

state. According to Robinson, as far as the officer knew, the state could have issued him a permit 

to lawfully carry a concealed firearm. 

The court disagreed, noting the Supreme Court has repeatedly recognized that whenever police 

officers conduct a traditional Terry stop or a traffic stop, they subject themselves to a risk of harm. 

Consequently, established Supreme Court case law imposes two requirements before an officer 

may conduct a frisk. First, the stop must be lawful. Second, that during the valid but forced 

encounter, or stop, the officer must reasonably suspect that the person is armed. As the Supreme 

Court found in Terry v. Ohio, the officer reasonably suspected Terry was armed “and thus 

presented a threat to the officer’s safety” while the officer was conducting his investigation. The 

Supreme Court deliberately linked “armed” and “dangerous,” recognizing that frisks in 

subsequent cases were lawful where the stops were valid and the officer reasonably believed that 

the person stopped “was armed and thus” dangerous. The use of “and thus” recognizes that the 

risk of danger is created simply because the person, who was forcibly stopped, is armed. 

In this case, the court held that an officer who makes a lawful traffic stop, and who has a reasonable 

suspicion that one of the vehicle’s occupants is armed, may frisk that person for the officer’s 

protection and the safety of everyone on the scene. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca4/14-4902/14-4902-

2017-01-23.pdf?ts=1485201616

*****
6

Fifth Circuit

Hamilton v. Kindred, 2017 U.S. App. LEXIS 623 (5th Cir. Tex. Jan. 12, 2017)

Brandy Hamilton and Alexandria Randle were pulled over by Officer Turner for speeding. After 

Officer Turner smelled marijuana, he ordered the women to exit their vehicle. Hamilton was 

wearing a bikini bathing suit, and Randle was similarly dressed. Officer Turner handcuffed the

women and searched their vehicle. During this time, Officers Ron Kinard and Amanda Bui 

arrived. After Officer Turner searched the vehicle, he asked Officer Bui to search Hamilton and 

Randle. Officer Bui conducted a body cavity search on both women while on the side of the road. 

Hamilton and Randle subsequently filed a lawsuit against the three officers under 42 U.S.C. § 

1983 claiming the invasive cavity searches violated their Fourth Amendment rights to be free 

from unreasonable searches and seizures. Officers Turner and Bui reached settlement agreements 

with Hamilton and Randle. Officer Kindred argued that Hamilton and Randle failed to adequately 

allege that an excessive use of force occurred. In addition, Officer Kindred argued that he could 

not be liable under 42 U.S.C. § 1983 as a bystander for not intervening to prevent the body cavity 

searches; therefore, he was entitled to qualified immunity. 

The district court denied Officer Kindred qualified immunity. The court found that Hamilton and 

Randle had adequately alleged a claim of excessive force. The court also held it was clearly 

established at the time of the incident that bystander liability applied. In addition, the court 

concluded that there was a serious dispute as to material facts in the case regarding the objective 

reasonableness of Officer Kindred’s actions. Officer Kindred appealed to the Fifth Circuit Court 

of Appeals.

First, to bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must show 

that she was seized. Here, the court of appeals found that Hamilton and Randle clearly alleged in 

their complaint that they were seized during the traffic stop when they were handcuffed and placed 

in the officers’ patrol cars. In addition, the women alleged that they were detained for over thirtyminutes and subjected to invasive body cavity searches in violation of the Fourth Amendment. 

Second, the court held that Officer Bui’s insertion of her fingers into the plaintiffs’ body cavities 

constituted a use of force, which the plaintiffs allege occurred during their seizure. Third, at the 

time of the incident, it was clearly established that it was not reasonable to conduct a roadside 

body cavity search, unless there were exigent circumstances that required the search to be 

conducted on the roadside rather than at a medical facility. Consequently, the court found that 

Hamilton and Randle alleged facts showing that they were subjected to an unreasonable use of 

force “excessive to its need.”

The court further held, at the time of the incident, it was clearly established in the Fifth Circuit 

that an officer could be liable as a bystander in a case involving excessive force if he knew a 

constitutional violation was taking place and he had a reasonable opportunity to prevent the harm. 

However, because there were serious disputes as to material facts regarding Officer Kindred’s 

potential liability as a bystander, the court of appeals lacked jurisdiction to hear this portion of the 

case and dismissed Officer Kindred’s appeal.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/16-40611/16-40611-

2017-01-12.pdf?ts=1484267434

*****
7

Eighth Circuit

United States v. Yorgensen, 845 F.3d 908 (8th Cir. Iowa 2017) 

A police officer obtained a warrant to search Yorgensen’s apartment for drugs and drug 

paraphernalia. In his affidavit, the officer stated that in an encounter with Yorgensen earlier that 

evening, he smelled a strong odor of marijuana coming from “inside the residence and off Mr. 

Yorgensen.” Officers searched Yorgensen’s apartment, discovered drugs, and arrested 

Yorgensen. 

Two days later, a state narcotics agent, who was working on a federal drug investigation in which 

Yorgensen was a suspect, interviewed Yorgensen at the jail, at Yorgensen’s request. After the 

agent advised Yorgensen of his Miranda rights, Yorgensen waived his rights and made 

incriminating statements concerning the federal investigation against him.

A federal grand jury indicted Yorgensen on several drug related charges. 

Yorgensen filed a motion to suppress the physical evidence seized from his home as well as his 

statements to the agent two days later.

The district court found that the officer’s statement concerning the odor of marijuana coming from 

inside Yorgensen’s apartment was untrue and made with reckless disregard for the truth, in 

violation of the Fourth Amendment. As a result, the court suppressed the physical evidence seized 

from Yorgensen’s apartment as well as the statements he made to the narcotics agent two days 

later. On appeal, the government challenged the district court’s suppression of Yorgensen’s 

statements to the narcotics agent.

The Supreme Court created an exception to the exclusionary rule called the attenuation doctrine. 

The attenuation doctrine provides that evidence is admissible when the connection between the 

unconstitutional police conduct and the evidence is remote or had been interrupted by some 

intervening circumstance. To determine whether the connection between incriminating 

statements and a Fourth Amendment violation has been broken a court must consider four factors: 

(1) whether Miranda warnings were provided; (2) the amount of time that passed between the 

Fourth Amendment violation and the incriminating statements; (3) any intervening circumstances; 

and (4) the purpose and flagrancy of the officer’s misconduct.

In this case, the Eighth Circuit Court of Appeals held that all four factors weighted in favor of not 

suppressing Yorgensen’s statements made to the narcotics agent.

First, at the beginning of the interview, the agent advised Yorgensen of his Miranda rights and 

Yorgensen provided a written waiver of those rights. Second, more than two days passed between 

Yorgensen’s arrest and the interview by the narcotics agent. The fact that Yorgensen was in 

custody was not especially relevant, as Yorgensen knew that he was a suspect in a pre-existing 

federal investigation and Yorgensen requested the interview with the agent. Third, the narcotics 

agent was from a different agency than the officer that drafted the search warrant affidavit, and 

neither the agent nor his agency were involved in the initial Fourth Amendment violation. In 

addition, the video of the interview clearly showed that Yorgensen understood the difference 

between the federal investigation and the warrant search of his home. Finally, the only untrue 

statement in the affidavit was when the officer stated that he had smelled the odor of marijuana 

coming directly from Yorgensen’s apartment. Instead, the officer should have stated that he 

smelled the dissipating odor of marijuana on or around Yorgensen, which the officer believed 
8

came from Yorgensen’s apartment. The court concluded that the officer’s error was unintentional, 

and did not rise to the level of purposeful or flagrant misconduct. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/16-1109/16-1109-

2017-01-12.pdf?ts=1484238652

*****

United States v. McCoy, 2017 U.S. App. LEXIS 1695 (8th Cir. Minn. Jan. 31, 2017)

McCoy was convicted of transporting obscene matters, in violation of 18 U.S.C. § 1462, and 

sentenced to 18 months’ imprisonment and two years’ supervised release. By conditions of 

release, U.S. Probation Officers inspected McCoy’s house. One of the officers, who was a 

specialist in computer-related cases, observed a suspicious amount of computer equipment, 

including multiple hard drives and at least two custom-built computers. In addition, one of the 

computers had five hard drives, three configured in a Redundant Array of Independent Disks 

(RAID). According to the officer, it was unusual for a personal computer user to have a computer 

with multiple hard drives and especially to use a RAID system. Due to the large amount of 

equipment, the officers did not examine the computers. However, based on her suspicions, the 

officer received permission from the district court to seize and review any computer equipment in 

plain sight or voluntarily provided by McCoy. 

The officers seized McCoy’s computers and USB drives. A preliminary examination of McCoy’s 

computers revealed child pornography. Officers then obtained a warrant for a complete forensic 

examination of the hard drives and discovered child pornography videos that had been 

downloaded after McCoy’s date of conviction. 

The government charged McCoy with possession of child pornography. At trial, the government 

introduced recorded calls McCoy made in prison in which he claimed to have removed 

“everything” from his computer. The jury convicted McCoy, and he appealed, arguing that the 

warrantless search and seizure of his computers and USB drives was unreasonable under the 

Fourth Amendment. 

The court disagreed. First, the court held that McCoy’s conditions of release expressly authorized 

random inspections of his computer’s internet and email usage history by the Pre-Trial Services 

officers. Second, the search of McCoy’s computers did not exceed the scope of the search 

authorized by the conditions of his release. The officer testified that it was not possible to evaluate 

McCoy’s Internet activity based solely on web-browser activity; therefore, a more thorough 

examination was necessary. Finally, the court concluded the officers had reasonable suspicion to 

believe McCoy was engaged in criminal activity. When an officer has reasonable suspicion that 

a probationer subject to a search condition is involved in criminal activity, an intrusion on the 

probationer’s already diminished privacy interest is reasonable. Here, the court concluded that 

the officers had reasonable suspicion to seize and search McCoy’s computer equipment based on 

his: (1) prior criminal history; (2) computer sophistication; (3) unusually large number of 

electronic storage devices; (4) sophisticated RAID array; and (5) statements about erasing 

pornography from his computers. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/16-1853/16-1853-

2017-01-31.pdf?ts=1485880251

*****
9

Tenth Circuit

United States v. Juszczyk, 844 F.3d 1213 (10th Cir. Kan. 2017)

Tina Giger gave Juszczyk permission to repair his motorcycle in her backyard. A concerned 

neighbor contacted the police who went to investigate. When officers responded, Juszczyk threw 

his backpack onto the roof of Giger’s house. Officers retrieved the backpack and searched it. The 

backpack contained methamphetamine, a firearm, and documents bearing Juszczyk’s name. 

Officers arrested Juszczyk. 

Juszczyk argued that the warrantless search of his backpack violated the Fourth Amendment.

The court disagreed, holding that Juszczyk lost any reasonable expectation of property he had in 

the backpack when he threw it on the roof of Giger’s house. As a result, the court found that the 

backpack was abandoned property; therefore, the officers did not violate the Fourth Amendment 

when they searched it. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca10/15-3323/15-3323-

2017-01-03.pdf?ts=1483466500

*****

Vogt v. City of Hays, 844 F.3d 1235 (10th Cir. Kan. 2017)

Vogt was employed as a police officer with the City of Hays. Vogt applied for a position with the 

City of Haysville’s police department. During Haysville’s hiring process, Vogt disclosed that he 

had kept a knife obtained in the course of his work as a Hays police officer. 

Haysville offered Vogt a job on the condition that Vogt report his acquisition of the knife to the 

Hays police Department. Vogt complied with this request and submitted a brief report concerning 

his possession of the knife. Vogt then provided the City of Hays with a two-week notice of 

resignation, planning to accept the new job with Haysville. 

In the meantime, the Hays police chief began an internal investigation into Vogt’s possession of 

the knife. In addition, Vogt was required by the Hays Police Department to give a more detailed 

statement concerning the knife in order to keep his job. Vogt complied, and the Hays police 

department used Vogt’s statement to obtain additional evidence. 

Based on Vogt’s statements and the additional evidence, the Hays police chief asked the Kansas 

Bureau of Investigation to start a criminal investigation. The criminal investigation caused the 

Haysville Police Department to withdraw its job offer to Vogt. 

Vogt was later charged in Kansas state court with two felony counts related to his possession of 

the knife. Following a probable cause hearing, the state district court determined that probable 

cause was lacking and dismissed the charges. 

Vogt filed a lawsuit under 42 U.S.C. § 1983 against the City of Hays, the City of Haysville and 

four police officers. Vogt claimed that the use of his compelled statements: (1) to start an 

investigation leading to the discovery of additional evidence concerning the knife, (2) to initiate a 

criminal investigation, (3) to bring criminal charges, and (4) to support the prosecution during the

probable cause hearing violated his Fifth Amendment right against self-incrimination. 
10

The Fifth Amendment, which applies to the states through incorporation of the Fourteenth 

Amendment, protects individuals from being compelled to incriminate themselves in any criminal 

case. This amendment prohibits the government from compelling law enforcement officers to 

make incriminating statements in the course of their employment. As a law enforcement officer, 

Vogt was protected under the Fifth Amendment against the use of his compelled statements in a 

criminal case. 

First, the district court held that Vogt had not stated a valid claim under the Fifth Amendment 

because the incriminating statements were never used against him at trial. While the United States

Supreme Court has not conclusively defined the scope of a “criminal case” under the Fifth 

Amendment, the Tenth Circuit Court of Appeals disagreed and held that the phrase “criminal 

case” includes probable cause hearings as well as trials.1

 As a result, the court concluded that 

Vogt had adequately alleged a Fifth Amendment violation consisting of the use of his compelled 

statements in a criminal case.

Second, the court held that the four police officers were entitled to qualified immunity. Until its 

holding in this case, the court noted that it was not clearly established in the Tenth Circuit if the 

term “criminal case” included pre-trial proceedings such as probable cause hearings. 

Consequently, when the police officers acted, they could not have known that the Fifth 

Amendment would be violated by the eventual use of Vogt’s compelled statements to develop 

investigatory leads, initiate a criminal investigation, bring charges, or support the prosecution in 

a probable cause hearing.

Third, the court affirmed the district court’s dismissal of Vogt’s claim against Haysville. Vogt 

claimed that Haysville offered him a job, but only if he told the Hays police department about the 

acquisition of the knife. Vogt argued that this condition compelled him to make incriminating 

statements to the City of Hays. 

The court disagreed, holding that the condition on the job offer to Vogt was not coercive and did 

not compel Vogt to make incriminating statement to the City of Hays. Vogt was never an 

employee of Haysville, and his conditional job offer did not threaten the loss of livelihood or an 

existing job. If Vogt had not wanted to incriminate himself, the court reasoned that Vogt could 

have declined the job offer and continued working for the Hays police department. 

Fourth, the court disagreed with the district court and held that Vogt had adequately alleged in his 

complaint the City of Hays used his compelled statements to cause a criminal investigation to be 

launched against him. 

Finally, the court held that Vogt adequately alleged in his complaint that the Hays chief of police 

was the final policy making authority for the city concerning employee discipline within the police 

department. As a result, the court concluded that the City of Hays could be found liable for the 

actions of the police chief in this case.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca10/15-3266/15-3266-

2017-01-04.pdf?ts=1483556466

*****

 1 With this decision, the Tenth Circuit joins the Second, Seventh, and Ninth Circuits, concluding that the right against 

self-incrimination is more than a trial right. 
11

Eleventh Circuit

Dukes v. Deaton, 2017 U.S. App. LEXIS 1367 (11th Cir. Ga. Jan. 26, 2017)

During the execution of a search warrant for drugs, Officer Deaton threw a noise/flash

diversionary device, or flashbang, through a window into the bedroom where Jason Ward and 

Treneshia Dukes were sleeping. The flashbang landed on Dukes’ right leg and exploded. As a 

result, Dukes suffered severe burns across both of her legs and her right arm. 

Dukes filed suit against Officer Deaton under 42 U.S.C. § 1983 for using excessive force in 

violation of the Fourth Amendment and for the state law tort of assault and battery. Dukes also

brought a claim against Commander Branham in his capacity as Officer Deaton’s supervisor for 

failing to train Officer Deaton in the proper use of flashbangs. 

Officer Deaton and Commander Branham filed a motion for summary judgment based on 

qualified immunity. 

The court held that Officer Deaton’s deployment of the flashbang constituted excessive force in 

violation of the Fourth Amendment. First, Officer Deaton’s conduct posed a significant risk of 

harm, as flashbangs can generate heat in excess of 2,000 degrees Celsius, and Officer Deaton 

threw a flashbang into a dark room in which the occupants were asleep. Second, Officer Deaton 

failed to inspect the room, as he was trained to do, to determine whether bystanders, such as 

Dukes, occupied the room or if other hazards existed. Third, there was a minimal need for Officer 

Deaton to deploy a flashbang under the circumstances. Among other things, the court found that 

the earlier deployment of two flashbangs by other officers pursuant to the operational plan, 

sufficiently diverted the attention of Ward and Dukes before Officer Deaton deployed his 

flashbang. The court commented that the use of the first two flashbangs made Officer Deaton’s 

use of his flashbang appear gratuitous. Finally, the court recognized that the Sixth, Seventh, and 

Ninth Circuits have held that an officer’s failure to perform a visual inspection before throwing a 

flashbang into an area “weighs against reasonableness.” 

However, the court concluded that it was not clearly established that Officer Deaton’s conduct 

was unconstitutional in the Eleventh Circuit when he threw the flashbang through the window. 

First, the operational plan contemplated the use of flashbangs to disorient the residents and there 

was no evidence that Officer Deaton intended to use his flashbang for any other purpose. Second, 

the application in support of the search warrant stated, “drug dealers,” such as Ward, “commonly 

utilize weapons, dogs, and barricades to hinder law enforcement in the execution of their duties.” 

The application also stated that an informant had told law enforcement that Ward carried a 

handgun “on his person.” While Officer Deaton should have followed his training and checked 

the bedroom before he threw the flashbang, the court held that his conduct was not so lacking in 

justification that a reasonable officer would know that what he did constituted excessive force. 

As a result, the court found that Officer Deaton was entitled to qualified immunity.

The court further held that Officer Deaton was entitled to official immunity for the state law tort 

of assault and battery because Dukes offered no proof that Officer Deaton intended to injure her.

Finally, the court held that Commander Branham was entitled to qualified immunity because 

Officer Deaton’s conduct was not a clearly established violation of the Fourth Amendment. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca11/15-14373/15-

14373-2017-01-26.pdf?ts=1485442862

*****