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

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and timely United States Supreme Court and federal Circuit Courts of Appeals reviews, interesting developments in the law, and 

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2

The Informer – July 2019

Case Summaries

United States Supreme Court

Mitchell v. Wisconsin: Whether a police officer violated the Fourth Amendment by 

directing a medical professional to take a blood sample from an unconscious drunkdriving suspect without first obtaining a search warrant...................................................................4

Circuit Courts of Appeals

Third Circuit

United States v. Greene: Whether an officer’s answer to the defendant’s question 

constituted the functional equivalent of interrogation and whether the officer lawfully

seized a bag of marijuana from the defendant’s pocket during a Terry frisk.....................................5

Fifth Circuit

United States v. Arellano-Banuelos: Whether a prison inmate was in-custody for

Miranda purposes during an interview with a federal agent..............................................................6

Sixth Circuit

United States v. Potter: Whether the defendant validly invoked his right to

counsel after he mentioned an attorney and then asked the officers if he needed one........................7

Seventh Circuit

United States v. Adair: Whether an officer established reasonable suspicion to 

conduct a Terry stop and a Terry frisk based on information provided by a 911

caller and his own observations........................................................................................................8

United States v. Yancey: Whether officers had reasonable justification to extend a 

traffic stop after arresting the driver and placing her in the back of a patrol car.................................9

Eighth Circuit

Thurairajah v. City of Fort Smith: Whether a police officer was entitled to qualified

immunity in a lawsuit alleging an unlawful arrest in violation of the Fourth Amendment 

and retaliatory arrest in violation of the First Amendment after the officer arrested the 

plaintiff for shouting a two-word expletive at him from a moving vehicle......................................10

Fischer v. Hoven: Whether a police officer’s use of an arm-bar take down constituted

an excessive use of force in violation of the Fourth Amendment....................................................12

Smith v. Kilgore: Whether it was objectively reasonable for officers to shoot a suspect 

who fired a gun at one officer and then began to raise the gun towards two other officers..............13

United States v. Dunn: Whether officers were entitled to impound and inventory the 

defendant’s vehicle after the defendant had already made private towing arrangements................14

United States v. White: Whether officers’ entry onto the defendant’s curtilage was lawful

under the knock and talk exception to the Fourth Amendment’s warrant requirement...................15
3

Ninth Circuit

United States v. Brown: Whether an anonymous tip that the defendant had a gun 

provided reasonable suspicion to justify a Terry stop.....................................................................16

Cruz v. Barr: Whether evidence of an illegal immigrant’s alienage was subject to 

suppression at a removal hearing and whether the authority to detain occupants 

of a premises during the execution of a search under Michigan v. Summers applied......................17

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4

CASE SUMMARIES

United States Supreme Court

Mitchell v. Wisconsin, 2019 U.S. LEXIS 4400 (June 27, 2019) 

A police officer received a report that Gerald Mitchell was driving a vehicle while under the 

influence of alcohol. The officer eventually found Mitchell wandering near a lake. Stumbling 

and slurring his words, Mitchell had difficulty standing without the support of two officers. One 

of the officers gave Mitchell a preliminary breath test, which registered a blood alcohol 

concentration (BAC) of 0.24%, triple the legal limit for driving in Wisconsin. The officer arrested 

Mitchell for operating a vehicle while intoxicated and transported him to the police station for a 

more reliable breath test using better equipment.

When the officer reached the police station, Mitchell was too lethargic to be offered a breath test, 

so he was transported to the hospital for a blood test. On the way to the hospital, Mitchell lost 

consciousness and had to be wheeled inside. The officer then read aloud to a slumped Mitchell 

the standard statement giving drivers a chance to refuse BAC testing. After receiving no response 

from Mitchell, the officer asked hospital staff to draw a blood sample. Mitchell remained 

unconscious while the blood sample was taken. Analysis of Mitchell’s blood sample showed that 

his BAC, approximately ninety minutes after his arrest, was 0.222%. Mitchell was charged with 

two related drunk-driving offenses.

Mitchell filed a motion to suppress the results of the blood test. Mitchell argued that the officer 

violated his Fourth Amendment right to be free from unreasonable searches when he directed 

hospital personnel to obtain a sample of his blood without a search warrant. 

The Court held that when a driver is unconscious and cannot be given a breath test, the exigentcircumstances doctrine “almost always permits a blood test without a warrant.” Under the exigent 

circumstances exception to the Fourth Amendment’s warrant requirement, warrantless searches 

are permitted “to prevent the imminent destruction of evidence.” While the natural dissipation of 

alcohol in a person’s bloodstream will not automatically allow officers to obtain blood samples 

under this exception, the Court found that “unconscious driver cases” create a “compelling need”

for officers to conduct warrantless blood tests. The Court noted that a driver’s unconsciousness 

constitutes a medical emergency that, by itself, requires officers to conduct a number of important 

tasks that would reasonably require them to delay applying for a search warrant. Consequently, 

the Court held that “when a driver is unconscious, the general rule is that a warrant is not needed.”

However, the Court added, “we do not rule out the possibility that in an unusual case a defendant 

would be able to show that his blood would not have been drawn if police had not been seeking 

BAC information, and that police could not have reasonably judged that a warrant application 

would interfere with other pressing needs or duties.” Because Mitchell did not have an 

opportunity to attempt to make this argument, the Court remanded the case to the Wisconsin state 

court to decide this issue. 

For the Court’s opinion: https://www.supremecourt.gov/opinions/18pdf/18-6210_2co3.pdf

*****
5

Circuit Courts of Appeal

Third Circuit

United States v. Greene, 2019 U.S. App. LEXIS 18921 (3d Cir. PA June 25, 2019) 

Tyrone Greene and his girlfriend, Jennifer Manley, were travelling in a vehicle without its lights 

on when a police officer stopped them. During the stop, the officer smelled the odor of marijuana 

emanating from the vehicle. In addition, Greene began acting suspiciously by repeatedly asking 

to leave the scene of the stop, by standing up and then sitting back down in the passenger seat 

when ordered out of the vehicle, and by reaching for his waistband as if he were trying to conceal 

something. Concerned that Greene might be armed, the officer conducted a Terry frisk. During 

the frisk, the officer felt a bulge in one of Greene’s pockets. Based on his experience, the officer 

immediately recognized the bulge was plastic bag that contained marijuana. The officer removed 

the bag and arrested Greene. 

The officer then searched the couple’s vehicle incident to arrest and found ammunition in the 

glove box and in Manley’s purse. While escorting Greene to his police car, the officer noticed 

Greene bending over and walking in an unusual way as if to conceal something. Another officer 

who had arrived on the scene searched Greene and discovered a loaded, stolen handgun in his 

pants. 

During the booking process at the police station and before being advised of his Miranda rights, 

Greene asked the officer whether Manley would get in trouble. The officer replied that she would, 

for “headlight violations, no license, [and] marijuana.” Greene then volunteered that he would 

“take the hit” for the gun and bullets. 

The government charged Greene with being a felon in possession of a firearm and ammunition.

Greene filed a motion to suppress his statement concerning the gun and bullets, arguing that the 

officers comment regarding the trouble Manley was facing “coerced” him into confessing.

In Rhode Island v. Innis, the Supreme Court held that a suspect must be Mirandized before he is 

subjected to the functional equivalent of interrogation. The Court defined the functional 

equivalent of interrogation as “any words or actions on the part of the police (other than those 

normally attendant to arrest and custody) that the police should know are reasonably likely to 

elicit an incriminating response.” 

The court found that the officer’s response to Greene’s question was a brief and accurate 

description of the charges Manley was facing. In addition, the court noted the charges Manley 

was facing were unrelated to the possession of the firearm and ammunition, to which Greene 

confessed. Consequently, the court held that the officer’s answer to Greene’s question did not 

constitute the functional equivalent of questioning because Greene’s incriminating statement was 

not foreseeable but instead a “gratuitous” comment. 

Greene further argued that the firearm and ammunition should have been suppressed as the fruit 

of an unlawful Terry frisk. 

The court disagreed. In Minnesota v. Dickerson, the Supreme Court held that under the “plainfeel doctrine,” a police officer may seize contraband during a lawful Terry frisk if the contraband’s 
6

“contour or mass makes its identity immediately apparent.” However, if the identity of the object 

is not immediately apparent, the officer cannot squeeze or manipulate the object to determine its 

identity.

In this case, based on his extensive experience in drug investigations, the officer immediately 

recognized the bulge in Greene’s pocket as a bag of marijuana. The officer did not manipulate 

the bag to determine its contents but instead realized the bulge was a bag of marijuana based on 

its feel and texture. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca3/18-2923/18-2923-

2019-06-25.pdf?ts=1561482005

*****

Fifth Circuit

United States v. Arellano-Banuelos, 2019 U.S. App. LEXIS 18110 (5th Cir. TX June 17, 

2019)

Ignacio Arellano-Banuelos was serving a sentence of 15 months’ imprisonment on state offenses

in Texas. Special Agent Cruz, a law enforcement officer with U.S. Immigration and Customs 

Enforcement (ICE) and two other agents traveled to the state prison to interview 23 inmates 

including Arellano. The inmates were escorted into an office in groups of five. A prison guard 

stood at the door of the office, which remained open. SA Cruz and another ICE agent conducted 

simultaneous interviews at separate table and a third agent photographed and fingerprinted the 

inmates at the conclusion of their interviews. Arellano’s interview took about 10 to 15 minutes. 

SA Cruz interviewed Arellano about his immigration status and past deportation without 

providing complete Miranda warnings. During the interview, Arellano made incriminating 

statements concerning his prior removal and his lack of permission to reenter the United States. 

Arellano-Banuelos was subsequently charged with illegal reentry into the United States.

Arellano filed a motion to suppress his incriminating statements to SA Cruz. Arellano argued that 

he was subjected to custodial interrogation without being advised of his Miranda rights. The 

district court denied Arellano’s motion and he appealed.

Under Miranda, an individual subjected to “in-custody interrogation” must first “be warned that 

he has a right to remain silent, that any statement he does make may be used as evidence against 

him, and that he has the right to the presence of an attorney, either retained or appointed.” A 

person is in-custody for Miranda purposes when there is a “formal arrest or restraint on freedom 

of movement of the degree associated with a formal arrest.” Although Arellano was incarcerated 

at the time of the interview, the Supreme Court has held that “imprisonment alone” does not 

automatically constitute custody for Miranda purposes. While the prison setting may increase the 

likelihood that an inmate is in custody for Miranda purposes, the custody determination must 

“focus on all of the features of the interrogation,” including “the language that is used in 

summoning the prisoner to the interview and the manner in which the interrogation is conducted.” 

The court added that the most important factor in the custody determination is whether the prisoner 

is told that he is free to end the questioning and return to his cell.

The Fifth Circuit Court of Appeals held that Arellano was not in-custody for Miranda purposes. 
7

First, the interview lasted only 10 to 15 minutes. Second, multiple people were present in the 

interview, including other prisoners, and Arellano was not isolated with SA Cruz. Third, the ICE 

agents were not armed and the prison guard did not have a firearm. Fourth, SA Cruz did not raise 

his voice during the interview, use a sharp tone of voice, or use profanity. Fifth, Arellano was not 

restrained during the interview. Finally, even though SA Cruz never explicitly told Arellano that 

he was free to leave the interview room, SA Cruz told Arellano that his statement had to be 

voluntary and that the interview would terminate if Arellano chose not to speak with him. The 

court concluded it was clearly implied that if Arellano had chosen to terminate the interview he 

would have been allowed to leave the office and return to his ordinary prison life. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca5/17-11490/17-

11490-2019-06-17.pdf?ts=1560814212

*****

Sixth Circuit

United States v. Potter, 2019 U.S. App. LEXIS 17384 (6th Cir. TN June 11, 2019) 

Police officers arrested Michael Potter. After Potter told the officers he did not wish to speak with 

them, the officers honored his request and did not attempt to interview Potter. The next day, Potter 

changed his mind and initiated a conversation with the officers. Before questioning him, the 

officers advised Potter of his Miranda rights. Potter then signed a waiver stating that he 

understood his rights and was “willing to make a statement and answer questions without a lawyer 

present.” During this questioning, Potter admitted he had purchased 10 pounds of 

methamphetamine from a drug supplier in Georgia that he later sold in Tennessee. 

After the government charged Potter with drug-related offenses, he filed a motion to suppress his 

statements to the officers concerning the purchase and sale of methamphetamine. Potter claimed 

that during the interview, he had asked for a lawyer several times but the officers ignored his 

requests and continued to question him. The officers disputed Potter’s account. The officers 

testified that Potter mentioned a lawyer and “may have” asked whether he needed one, but the 

officers claimed that Potter never requested any attorney or attempted to stop the interrogation. 

The magistrate judge found Potter’s testimony not credible, held that Potter’s statements about an 

attorney did not require the officers to end their questioning, and recommended that the district 

court deny Potter’s motion. The district court agreed, adopted the magistrate’s recommendation, 

and denied Potter’s motion to suppress his statements. Potter appealed.

In Edwards v. Arizona, the Supreme Court held that police officers must immediately cease 

questioning if an individual invokes his right to an attorney after being provided Miranda

warnings. Subsequently, in Davis v. United States, the Supreme Court held that a “suspect must 

unambiguously request counsel” to put “reasonable officers on notice that the interrogation must 

stop.” In Davis, the Court held that a suspect who said, “maybe I should talk to a lawyer” did not 

unambiguously invoke his right to counsel; therefore, the officers did not have to stop questioning 

him. 

The Sixth Circuit stated that following Davis, it decided three cases in which the following 

comments by suspects concerning attorneys were not valid invocations of the right to counsel: (1) 

“I think I should talk to a lawyer, what do you think?”, (2) “it would be nice to have an attorney,” 

and (3) “I really should have a lawyer, huh?” The court added that the 1st, 2nd, 4th, 8th, and 10th 
8

circuits have also ruled that similar suspect statements have not constituted a valid invocation of 

the right to counsel. In contrast, the court found that it had found requests for an attorney valid 

when a suspect told the police that he wanted to be left alone “until I can see my attorney” and in 

another case where the suspect directed the police to “call his attorney’s phone number.” 

In this case, the court found that while Potter may have mentioned an attorney and may have asked 

if he needed one, he never requested to actually have an attorney present and he never told the 

officers that he wanted to stop the interview to wait for an attorney to arrive. As neither of Potter’s 

comments established that he unambiguously requested a lawyer, the court held that Potter did 

not validly invoke his right to counsel and the officers were not required to stop questioning him. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca6/18-5830/18-5830-

2019-06-11.pdf?ts=1560279651

*****

Seventh Circuit

United States v. Adair, 2019 U.S. App. LEXIS 16594 (7th Cir. IL June 3, 2019) 

While on patrol at approximately 10:45 p.m., a police officer received an emergency notification 

from a 911 operator. The message, transmitted to the computer in the officer’s patrol car indicated 

that a woman called 911, provided her first name and phone number, and stated that she had just 

been outside her apartment where she saw several individuals smoking, drinking, and engaged in 

“very suspicious activity.” The caller added that she did not know any of the individuals but she 

had walked past a short black male wearing a hoodie and saw that he had a black gun in his front 

pocket. While driving to the apartment complex, the officer spoke to the 911 operator and 

confirmed this information. The officer, a seven-year veteran of the department, had responded 

to the area many times to address reports of thefts, burglaries, fights, and gunfire. In addition, the 

officer knew that local gangs had a presence at the complex. 

The officer arrived at the complex within two-minutes of receiving the message from 911. Upon 

exiting his car, the officer saw approximately 10 people standing outside as reported by the 911 

caller. The officer focused his attention on Herman Adair because he was relatively short and he 

was the only person wearing clothing resembling the 911 caller’s description. Although he was 

not wearing a hoodie, Adair was the only person wearing long sleeves on an unusually warm night 

while everyone else was wearing t-shirts and tank tops. In addition, the officer recognized Adair 

from previous encounters with him, knew that Adair did not live at the complex, and knew that 

Adair was a convicted felon. 

As the officer approached, Adair was standing near the middle of the larger group. As the officer 

got closer, Adair began to move away, weaving through the group, putting other people between 

himself and the officer. The officer believed Adair was trying to avoid him. When the officer got 

close to Adair, he saw a conspicuous, large bulge in the front pocket of Adair’s pants, which was 

consistent with the information reported by the 911 caller. The officer stopped Adair, frisked him 

for weapons, and felt a hard object that he immediately recognized as a gun in Adair’s front 

pocket. The officer removed a loaded handgun from Adair’s pocket and arrested him.

The government charged Adair with unlawful possession of a firearm by a convicted felon.
9

Adair filed a motion to suppress the firearm, arguing that the officer lacked reasonable suspicion 

to stop and frisk him.

In Terry v. Ohio, the Supreme Court held that a law enforcement officer may conduct a brief 

investigative stop or detention when the officer establishes reasonable suspicion that person is 

engaged in criminal activity. 

Here, the court held that the officer had reasonable suspicion to stop Adair because: (1) the officer 

arrived within two-minutes of receiving the message from the 911 operator at a location known 

for criminal activity, (2) the officer saw a relatively short man wearing long sleeves, clothing that 

stood out from what others were wearing and which most closely matched the 911 caller’s 

description, (3) the officer knew that Adair was a convicted felon who did not live at the apartment 

complex, and (4) Adair reacted by attempting to evade the officer. While the 911 caller’s 

information did not match exactly with what the officer saw upon arriving, the court noted that 

reasonable suspicion to justify a Terry stop does not require “perfection.”

The court further held that after stopping Adair, it was reasonable for the officer to frisk Adair for 

weapons. In Terry, the Supreme Court held that during a valid investigative detention, an officer 

may conduct a pat-down or frisk for weapons if the officer establishes reasonable suspicion that 

the person is presently armed and dangerous. While the court stated that not every Terry stop will 

automatically permit the officer to conduct a frisk for weapons, in this case the court held that 

upon arrival at the apartment complex it was reasonable for the officer to believe that Adair might 

be the armed man described by the 911 caller. In addition to the information provided by the 911 

caller, the officer saw the bulge in Adair’s front pocket. At that point, the court held that it was 

reasonable for the officer to believe that Adair was armed and dangerous and justified a Terry

frisk for weapons.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca7/18-2796/18-2796-

2019-06-03.pdf?ts=1559595613

*****

United States v. Yancey, 2019 U.S. App. LEXIS 19229 (7th Cir. IL June 27, 2019) 

Officer Costas conducted a traffic stop after he confirmed the driver of a vehicle had outstanding 

warrants for her arrest. During the stop, Officer Costas recognized the passenger in the vehicle, 

Parris Yancey. Officer Costas recalled two incidents in recent months in which Yancey was very 

confrontational with police officers. Officer Costas also believed that Yancey was on parole for 

a weapons offense. Finally, Officer Costas had seen a police contact sheet concerning Yancey 

that advised officers to use caution when dealing with Yancey, as he was known to be armed. The 

contact sheet had been issued a month earlier and read to officers at roll call every day. 

A few minutes later, Officer Zier arrived to assist with the stop. Officer Zier began speaking to 

Yancey to keep him occupied while Officer Costas arrested the driver. Officer Zier recognized 

Yancey from a prior burglary investigation and was familiar with the contact sheet concerning 

Yancey. 

After Officer Costas placed the driver in the backseat of his patrol car, she told him that she wanted 

Yancey to take possession of her car. Officer Costas told her that was acceptable as long as 

Yancey had a valid driver’s license. By this time, Yancey had twice asked Officer Zier if he could 

leave, but Officer Zier told him no. While waiting for dispatch to tell the officers whether Yancey 
10

had a valid driver’s license, Officer Costas began to inventory the contents of the driver’s purse 

pursuant to departmental policy and Officer Zier asked Yancey to step out of the vehicle so he 

could conduct a Terry frisk. Although Yancey verbally objected to Officer Zier about being 

frisked, he stepped out of the vehicle. Before Officer Zier could frisk him, Yancey attempted to 

run away. Both officers chased Yancey tackled him to the ground and handcuffed him. As they 

rolled Yancey onto his side, Officer Costas saw a handgun in Yancey’s waistband. 

The government charged Yancey with possession of a firearm by a convicted felon.

Yancey filed a motion to suppress the handgun. Yancey argued that the officers violated the 

Fourth Amendment when they prevented him from leaving the scene of the traffic stop after 

Officer Costas arrested the driver. Specifically, Yancey claimed that the officers’ justification 

for detaining him during the traffic stop ended once the driver was handcuffed and placed in 

Officer Costas’ patrol car. 

The court disagreed. The court recognized that an officer may detain the passengers as well as 

the driver while a traffic stop is ongoing. In this case, the court held that the arrest of the driver 

did not constitute the end of the traffic stop. First, after arresting the driver and placing her in 

patrol car, Officer Costas was required by departmental policy to conduct an inventory search of 

the driver’s purse. When Yancey fled, Officer Costas had not yet completed the inventory. 

Second, having decided not to impound the driver’s vehicle, the officers had not yet determined 

whether Yancey possessed a valid driver’s license and could therefore take possession of the car

as requested by the driver. The court noted that two minutes elapsed from the time the driver was 

arrested until Yancey fled and that this was a reasonable amount of time for the officers to be 

handling these unresolved issues. Consequently, the court concluded that the traffic stop was 

ongoing when Yancey attempted to flee the scene and that the officers had legal justification to 

continue to detain him, which included stopping Yancey when he tried to run away. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca7/18-2935/18-2935-

2019-06-27.pdf?ts=1561663835

*****

Eighth Circuit

Thurairajah v. City of Fort Smith, 2019 U.S. App. LEXIS 16573 (8th Cir. AR June 3, 

2019)

While an Arkansas state trooper was performing a traffic stop on a van occupied by a mother and 

her two small children, he heard another motorist who was driving by yell “f**ck you!” out of his 

car window. The motorist, later identified as Eric Thurairajah, was driving approximately 35 

miles-per-hour on the far lane of the road moving in the opposite direction. The trooper observed 

the two children in the van react to the comment. The trooper ended the traffic stop and pursued 

Thurairajah. The officer stopped Thurairajah and arrested him for disorderly conduct. The 

trooper believed the shout constituted “unreasonable or excessive noise” under Ark. Code Ann. § 

5-71-207(a)(2). 

Thurairajah spent several hours in jail and all charges against him were eventually dismissed.

Thurairajah filed suit under 42 U.S.C. § 1983 against the trooper claiming the trooper violated his 

Fourth Amendment right to be free from unreasonable seizure and his First Amendment right to 

be free from retaliatory arrest. 
11

The trooper claimed that he was entitled to qualified immunity because he had either: 1) probable 

cause to arrest Thurairajah for disorderly conduct or 2) arguable probable cause to arrest 

Thurairajah for disorderly conduct. Alternatively, the trooper claimed that it was not clearly 

established that arresting Thurairajah for disorderly conduct under the circumstances of this 

violated the Fourth Amendment. 

The district court denied the trooper qualified immunity and he appealed to the Eighth Circuit 

Court of Appeals. 

The court noted that probable cause for a warrantless arrest exists “when the totality of the 

circumstances at the time of the arrest are sufficient to lead a reasonable person to believe that the 

defendant has committed or is committing an offense.” The court added that arguable probable 

cause exists if the arrest “was based on an objectively reasonable, even if mistaken belief, that the 

arrest was based on probable cause.” In this case, the court affirmed the district court’s denial of 

qualified immunity and held that the trooper did not have probable cause or arguable probable 

cause to arrest Thurairajah. 

The disorderly conduct statute, Ark. Code Ann. § 5-71-207(a)(2), provides:

"A person commits the offense of disorderly conduct if, with the purpose to cause 

public inconvenience, annoyance, or alarm or recklessly creating a risk of public 

inconvenience, annoyance, or alarm, he or she makes unreasonable or excessive 

noise."

The court stated that Ark. Code Ann. § 5-71-207(a)(2) does not penalize offensive speech but only 

unreasonable noise. The court determined that while shouting can form the basis of a disorderly 

conduct charge, those cases in which shouting supported a finding of disorderly conduct involved 

extended loud shouting and disruptive behavior or amplified sound. The court found that in no 

case had a two-word unamplified outburst constituted disorderly conduct. The court added that 

in a 2011 case, the Arkansas Court of Appeals held that 20 seconds of public shouting involving 

foul language did not establish disorderly conduct. 

In this case, Thurairajah’s shout was unamplified and fleeting, no crowd gathered because of it, 

traffic was not affected, no complaints were lodged by anyone in the community, business was 

not interrupted, nor were an officer’s orders disobeyed. Although Thurairajah’s conduct may 

have been offensive, it did not constitute unreasonable or excessive noise under the disorderly 

conduct statute. Consequently, the court held that the trooper lacked probable case or arguable 

probable cause for an arrest; therefore, he violated Thurairajah’s Fourth Amendment right to be 

free from unreasonable seizure, which was clearly established at the time of the incident. 

The court further held that Thurairajah’s profane shout was protected speech under the First 

Amendment. In addition, according to the trooper’s affidavit, Thurairajah’s arrest was motivated 

in part by the content of the language in his shout at the trooper. Consequently, the court held that 

arresting Thurairajah for the content of his speech constituted retaliation and would cause others 

to refrain from exercising their First Amendment rights in the future.

Finally, the court concluded that Thurairajah’s right to be free from retaliation was clearly 

established at the time of his arrest. The court recognized that that criticism of law enforcement 

officers, even with profanity, has been found to be protected speech.
12

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca8/17-3419/17-3419-

2019-06-03.pdf?ts=1559575832

*****

Fischer v. Hoven, 2019 U.S. App. LEXIS 16572 (8th Cir. S.D. June 3, 2019) 

Kathy Fischer and Susan Clynick went to a bar where they became intoxicated after consuming 

approximately three bottles of wine. When the bar owner asked the women to leave, they refused, 

so he called the police to have them removed. 

When Deputy Hoven arrived, he convinced both women to exit the bar. However, when they got 

outside, Fischer yelled at Deputy Hoven that the women had the right to be in the bar, then she 

went back inside to complain to the owner. Returning inside, Deputy Hoven told Fischer the 

owner wanted her to leave. Fischer yelled that she would not leave and walked outside to the bar 

patio. Deputy Hoven followed, requesting a second time that Fischer leave. After Fischer refused 

to leave, Deputy Hoven grabbed Fischer’s arm and put her in an escort position and walked her 

outside toward his vehicle. Fischer continued to yell but she did not physically resist.

Once outside, Fischer and Clynick began walking away from the bar. Fischer then turned around 

and approached Deputy Hoven “flailing” her arms and yelling at him about being removed from 

the bar. Fisher stopped in front of Deputy Hoven and placed her left hand on his right shoulder. 

Deputy Hoven grabbed Fischer’s left arm, placed her in an escort position against his vehicle, and 

told her that she was under arrest for disorderly conduct. As Fischer continued to yell at Deputy 

Hoven, Clynick came toward him. Deputy Hoven stepped toward Clynick with his right hand 

extended into her shoulder, knocking her to the ground. When this occurred, Deputy Hoven had 

his left hand on Fischer’s wrist with her arm behind her back. When Deputy Hoven reached for 

his handcuffs, Fischer turned to her left toward him. Deputy Hoven executed an arm-bar 

takedown, putting his right hand on Fischer’s triceps above the elbow and below the shoulder. 

Fischer landed face-first on the ground, suffering a facial cut, broken nose, broken tooth, and 

broken bones in her right arm and hand. 

Fischer sued Deputy Hoven under 42 U.S.C. § 1983 for excessive use of force in violation of the 

Fourth Amendment. Specifically, Fischer claimed that Deputy Hoven’s use of force was 

excessive because she was not resisting arrest or attempting to flee, she did not commit a violent 

or serious crime, and she did not pose a threat to the safety of Deputy Hoven or others. 

After the district court granted Deputy Hoven qualified immunity, Fischer appealed. 

The Eighth Circuit Court of Appeals agreed that Deputy Hoven was entitled to qualified 

immunity, concluding that his use of force was objectively reasonable.

In a lawsuit claiming excessive use of force, the amount of force used by the law enforcement 

officer must be objectively reasonable under the circumstances. Citing the Supreme Court’s 

decision in Graham v. Connor, the court added that objective reasonableness is “judged from the 

perspective of a reasonable officer on the scene,” in light of the “severity of the crime at issue, 

whether the suspect poses an immediate threat to the safety of the officer or others, and whether 

[s]he is actively resisting arrest or attempting to evade arrest by flight.”

Here, the court held that a reasonable officer in Deputy Hoven’s position could have believed that 

Fischer was resisting arrest and that she posed a threat to officer safety. First, as the only officer 

on the scene, Deputy Hoven faced a tense, unpredictable situation with two hostile, intoxicated 
13

individuals. Second, Fischer ignored Deputy Hoven’s orders to leave the bar and yelled at him 

several times. Third, after she walked away, Fischer turned around, approached Deputy Hoven, 

and touched his shoulder. Fourth, after putting Fischer into an escort position and telling her that 

she was under arrest, Clynick approached Deputy Hoven and Fischer turned toward him. Based 

on these facts, the court concluded that it was reasonable for Deputy Hoven to use some amount 

of force against Fischer.

The court further held that while Deputy Hoven could have used less force to secure Fischer, the 

use of the arm-bar takedown was objectively reasonable under the circumstances. The court 

recognized that it was required to view Deputy Hoven’s actions “from the perspective of a 

reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” noting that 

“officers are often forced to make split-second judgments” concerning the amount of force to use 

in situations that are often “tense, uncertain, and rapidly evolving.” Because a reasonable officer 

could have perceived Fischer as a resistant arrestee who threatened his safety, the court concluded 

that Deputy Hoven’s use of the arm-bar takedown was objectively reasonable. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca8/18-2061/18-2061-

2019-06-03.pdf?ts=1559575834

*****

Smith v. Kilgore, 2019 U.S. App. LEXIS 17391 (8th Cir. MO June 11, 2019) 

Officers Abidovic and Keller were dispatched to a report of suspicious activity in a park. Officer 

Abidovic saw two people that closely fit the dispatcher’s description and approached them. Upon 

seeing Officer Abidovic, the individuals, one later identified as Raymond Smith, began to walk 

away. When Officer Abidovic yelled for the pair to stop, Smith ran away and exited the park. In 

the meantime, Officer Keller radioed dispatch about the pursuit and Officers Krueger and Taylor 

were dispatched to assist. 

Officer Abidovic chased Smith into a parking lot and saw a gun in Smith’s hand. Officer Abidovic 

announced over his radio, “He’s armed,” and then pointed his gun at Smith, shouting, “Drop the 

gun!” As Smith was climbing over a chain-link fence, he fired a shot at Officer Abidovic. Officer 

Abidovic then fired three shots at Smith. Officer Keller radioed dispatch, “Shots fired.” From 

their patrol car, Officers Krueger and Taylor located Smith on the other side of the fence. As the 

officers saw Smith begin to raise his gun in their direction, Officer Krueger fired five shots at 

Smith, who fell to the ground. Officer Abidovic called for an ambulance; however, Smith died 

from the gunshot wounds.

Smith’s mother sued the chief of police, members of the Board of Police Commissioners, and the 

officers alleging that Officers Abidovic and Krueger used excessive deadly force against her son 

in violation of the Fourth Amendment.

The district court dismissed Smith’s claims against the chief of police and members of the Board 

of Police Commissioners and granted the officers qualified immunity. Smith appealed.

The Eighth Circuit Court of Appeals held that the district court correctly ruled that Officers 

Abidovic and Krueger used reasonable force. Citing the Supreme Court’s decision in Tennessee 

v. Garner, the court noted, “the use of deadly force is objectively reasonable where an officer has 

probable cause to believe that a suspect poses a threat of serious physical harm to the officer or 

others. In addition, previous cases decided by the Eight Circuit Court of Appeals have held that 
14

an officer’s use of deadly force is objectively reasonable against armed suspects who point their 

guns toward officers. 

Here, the court concluded that Smith posed a significant threat of death or serious physical injury 

to Officer Abidovic when he fired at him and to Officers Kruger and Taylor when he began to 

raise his gun in their direction. Based on these facts, the court held that it was objectively 

reasonable for Officer Abidovic and then Officer Krueger to use deadly force under the 

circumstances. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca8/18-1040/18-1040-

2019-06-11.pdf?ts=1560267035

*****

United States v. Dunn, 2019 U.S. App. LEXIS 18923 (8th Cir. MN June 25, 2019) 

Kalil Dunn fell asleep while driving his car and ran into three parked cars before coming to a stop 

in the middle of the street. Dunn’s car sustained heavy front-end damage, which rendered it 

inoperable. Police officers arrived and found Dunn’s car in the street, facing the wrong direction, 

and blocking traffic. The officers observed the vehicle’s condition and location and, pursuant to 

department policy, chose to tow and impound it, despite the fact that Dunn had already contacted 

a private tow truck. Pursuant to department policy, the officers conducted an inventory search of 

Dunn’s car before towing it. During the search, the officers found two pistols, two baggies 

containing crack cocaine, and two digital scales.

The government charged Dunn with several criminal offenses based on the evidence seized during 

the inventory search of his car as well as evidence that officers seized in unrelated traffic stop that 

occurred several months later.

Dunn filed a motion to suppress the evidence seized during the inventory search of his vehicle. 

Dunn argued that the search was unreasonable because the officers should have waited and 

deferred to his private towing arrangements rather than impounding his vehicle. 

The court disagreed. An inventory search is considered reasonable if it “is conducted according 

to standardized police procedures . . . .” Here, it was undisputed that: 1) department policy allows 

officers to tow and impound vehicles that are impeding traffic when the owner cannot immediately 

remove the vehicle on his own; 2) officers must conduct an inventory search before impounding 

a vehicle; and 3) department policy does not require officers to ask vehicle owners if they wish to 

make private towing arrangements before the officers tow and impound a vehicle. The court 

added that Dunn cited no legal authority supporting his position nor any legal authority showing 

that the department’s towing policy was unreasonable but instead admitted that the officers 

followed departmental policy when they impounded and inventoried his car. As a result, the court 

concluded that the decision to impound and inventory Dunn’s car was reasonable because the 

officers followed their departmental policy.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca8/18-2393/18-2393-

2019-06-25.pdf?ts=1561476638

*****
15

United States v. White, 2019 U.S. App. LEXIS 19446 (8th Cir. MO June 28, 2019) 

Officers were attempting to locate an address in a rural area in connection with an identity theft 

investigation; however, the sparsely populated and heavily wooded area made it difficult to see 

houses from the road. Unable to locate the address, the officers went down a driveway through a 

wooded area to request assistance from the homeowner. The officers followed the circular 

driveway around the house and parked near the front entrance. When the officers got out of their 

car, they smelled a strong odor of green marijuana and encountered the homeowner, Charles 

White. After White told the officers he did not know any of his neighbors, the officers left. 

Later that day, officers returned to White’s house to conduct a knock and talk interview with 

White concerning the odor of marijuana they had previously smelled on the property. The officers 

knocked on the front door and after no one answered, they decided to apply for a search warrant. 

Three officers remained on the property to secure the area while awaiting the warrant. During 

this time, the officers encountered Anthony Bearden as he emerged from the woods behind 

White’s house. Bearden told the officers that he was White’s neighbor. When questioned by the 

officers, Bearden admitted to possessing marijuana at his residence and allowed officers to enter 

his property where the officers smelled a strong odor of green marijuana. Based on these 

observations and Bearden’s statements, the officers applied for a warrant to search Bearden’s 

property as well. After obtaining both warrants, officers found hundreds of marijuana plants 

growing in a building on White’s property and inside a shed on Bearden’s property. 

The government charged White and Bearden with manufacturing marijuana. 

Bearden and White filed a motion to suppress the evidence seized from their properties, claiming 

that the officers committed a variety of constitutional violations. After the district court denied 

their motions, both men appealed. In 2015, the Eighth Circuit Court of Appeals affirmed the 

district court’s denial of Bearden’s motion to suppress. (See: 4 Informer 15 and 

https://cases.justia.com/federal/appellate-courts/ca8/14-1659/14-1659-2015-03-

17.pdf?ts=1426617126). 

Concerning White, he argued on appeal that the officers’ second entry onto his property violated 

the Fourth Amendment. White claimed that the officers’ second entry “went beyond” the scope 

of a permissible knock and talk because the officers wanted to follow up on the odor of green 

marijuana they smelled during their first entry onto his property.

The knock and talk exception to the Fourth Amendment’s warrant requirement permits law 

enforcement officers to approach a home and knock on the door to attempt to contact the 

homeowner. The knock and talk exception is based on the “implicit license” that individuals 

enjoy, including law enforcement officers, to “approach the home by the front path, knock 

promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.”

In this case, the court found that the officers entered the curtilage of White’s property and knocked 

on his front door in order to establish contact with him again. The court held that this conduct fell 

“squarely within the scope of the knock and talk exception.” The court added that the officers’

motivation for conducting the knock and talk, i.e. following up on the odor of green marijuana 

detected on their first entry, was not relevant because the officers conduct stayed within the 

bounds of the knock and talk exception. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca8/17-3097/17-3097-

2019-06-28.pdf?ts=1561735822
16

*****

Ninth Circuit

United States v. Brown, 2019 U.S. App. LEXIS 16886 (9th Cir. WA June 5, 2019) 

Police officers received an anonymous tip that a young black man of medium build with 

dreadlocks, a camouflage jacket, and red shoes was carrying a gun. A police officer spotted 

Brown, who was on foot and matched the 911 description. The officer followed Brown in his 

patrol car, driving behind him slowly for several blocks before turning on his patrol lights and 

driving the wrong direction down a one-way street to follow Brown. Seeing the lights and patrol 

car coming from behind him, Brown ran. The officer called his partner and both officers pursued 

Brown for one block before stopping him and ordering him to the ground at gunpoint. The officers 

placed Brown in handcuffs, frisked him, and found a firearm in his waistband. A further search 

revealed drugs and cash on Brown’s person.

Brown filed a motion to suppress the evidence from the searches, arguing that the officers lacked 

reasonable suspicion to stop him under Terry v. Ohio. The district court disagreed and denied 

Brown’s motion. Brown appealed.

The Ninth Circuit Court of Appeals reversed the district court, holding that the officers did not 

have reasonable suspicion to justify a Terry stop of Brown. 

A police officer may conduct a brief investigatory stop when the officer has “a reasonable, 

articulable suspicion that criminal activity is afoot.” Anonymous tips that identify an individual 

but otherwise lack some “indicia of reliability” do not provide support for a finding of reasonable 

suspicion. 

In this case, the court found that the officers did not articulate what crime they suspected Brown 

of committing and there was no evidence to establish the reliability of the tip. At the suppression 

hearing, the officers stated only that they believed that Brown had a firearm. The court added that 

this was significant because in Washington State, it is presumptively lawful to carry a gun. While 

carrying a concealed pistol without a license is a misdemeanor offense, Washington is a “shall 

issue state,” meaning that local law enforcement must issue a concealed weapons license if the 

applicant meets certain qualifications. 

The court also considered Brown’s flight from the officers. While it was undisputed that Brown 

fled after the officers activated their patrol car lights, the Supreme Court has never endorsed a per 

se rule that flight establishes reasonable suspicion. Instead, the Court has treated flight as just one 

factor in the reasonable suspicion analysis. 

Here, the officers did not communicate with Brown, use their speaker to talk with him, or tell him 

to stop before they flashed their lights and detained him at gunpoint. In addition, there was no 

evidence that the location of the stop was known for drug or gun crimes or otherwise considered 

a “high crime” area.

The court held that the officers took an anonymous tip that a young black man “had a gun,” which 

is presumptively lawful in Washington, and jumped to an unreasonable conclusion that Brown’s 

later flight indicated criminal activity. The court stated that the officers had nothing more than an 

unsupported hunch that Brown was involved in criminal activity, which was not enough to support 

a Terry stop.
17

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca9/17-30191/17-

30191-2019-06-05.pdf?ts=1559754137

*****

Cruz v. Barr, 2019 U.S. App. LEXIS 17674 (9th Cir. CA June 13, 2019)

In March 2006, Immigration and Customs Enforcement (ICE) agents received an anonymous tip 

that a Los Angeles company employed 200 to 300 undocumented immigrants. In February 2008, 

ICE agents obtained a search warrant for employment-related documents located at the company’s 

factory as well as arrest warrants for eight employees. 

An internal memorandum issued before the operation stated that ICE “would be conducting a 

search warrant and expects to make 150-200 arrests.” The memorandum also noted that ICE 

would have “2 buses and 5 vans” ready to transport potential detainees from the factory and “200 

detention beds available to support the operation.” Another planning document indicated that ICE 

“anticipated executing a federal criminal search warrant” at the factory in order to administratively 

arrest as many as 100 unauthorized workers.”

Two days after the warrants were obtained, approximately 100 armed and uniformed ICE agents 

went to the factory. The agents ordered all employees to stop working and then stated that no one 

was permitted to leave. Gregorio Perez Cruz was one of the detained employees. The agents 

handcuffed Cruz, frisked him, and took his wallet. While handcuffed, the agents asked him his 

name, his nationality, his date of birth, and the length of time he had worked at the factory. An

agent then escorted Cruz and other detained workers into another area, where he was questioned 

again. At some point during his detention, Cruz provided statements to the agents indicating that 

he lacked lawful immigration status. Cruz was taken to a detention facility and released the next 

day. According to a subsequent ICE press release, Cruz was one of 130 workers arrested at the 

factory for immigration violations.

About one month later, Cruz received notice to appear for a removal hearing. The notice charged 

Cruz as removable for entry without inspection. Based on the statements Cruz provided during 

his detention, ICE agents prepared a Form I-213 alleging that Cruz had admitted that he was 

brought illegally into the United States as a child. In addition to the Form I-213, the government 

produced Cruz’s birth certificate, obtained by an ICE agent in Mexico based on the statements 

Cruz made while detained during the factory raid.

Cruz filed a motion to terminate the proceedings, arguing that his arrest and interrogation violated 

federal regulations as well as the Fourth and Fifth Amendments. The immigration judge (IJ) 

granted Cruz’s motion to terminate the proceedings against him. The IJ found that ICE’s initial 

detention of Cruz violated “ICE’s own regulation” and that because Cruz was prejudiced by this 

regulatory violation, termination of the removal proceedings against him was warranted. 

Accordingly, the IJ did not issue an opinion regarding Cruz’s Fourth and Fifth Amendment claims. 

The government appealed. 

The Board of Immigration Appeals (BIA) reversed the IJ’s ruling. The BIA relied on Michigan 

v. Summers, in which the Supreme Court held that it was lawful to detain residents of a home 

where a search warrant was being executed. Because law enforcement officers are permitted to 

“secure the premises both for purposes of their own safety and in order to prevent the destruction 

of evidence” during the execution of a warrant under Summers, the BIA reasoned that the ICE 
18

agents did not violate the Fourth Amendment nor the ICE regulation by detaining the employees 

and asking them to self-identify their immigration or citizenship status. The BIA further held that 

even if Cruz’s detention was unlawful, the evidence introduced by the government was offered to 

prove only Cruz’s identity and therefore could not be suppressed. Consequently, on remand from 

the BIA, the IJ entered a removal order against Cruz. Cruz appealed to the Ninth Circuit Court of 

Appeals. 

First, the court addressed the government’s argument that even if Cruz were otherwise entitled to 

suppression of the evidence obtained as a result of his detention and arrest, Cruz’s statements as 

represented on the Form I-213 and his birth certificate constituted evidence only of his identity, 

which is not subject to suppression. 

While the court agreed that the identity of an alien in a removal proceeding is never “suppressible 

as fruit of an unlawful arrest,” evidence pertaining to alienage is subject to suppression. In this 

case, the court held that the government relied on alienage evidence included on the Form I-213 

at Cruz’s removal hearing. Cruz claimed this alienage evidence, to include his birthplace as well 

as his birth certificate was obtained by the government based on his statements to the agents while 

unlawfully detained. As a result, the court held that if Cruz could demonstrate that his alienage 

information was obtained as a result of “impermissible government action,” then the court could 

suppress this evidence. 

Second, the court held that the rationale for detaining the occupants of a premises during the 

execution of a search warrant was not applicable in this case; therefore, the Summers doctrine did 

not apply. In Summers, the Supreme Court held that it was reasonable to detain occupants of a 

premises without reasonable suspicion to believe they are involved in criminal activity during the 

execution of a search warrant in order to: (1) ensure officer safety, (2) facilitate the completion of 

the search, and (3) prevent flight. Significantly, the Court added that Summers does not authorize 

the detention of an occupant without “any individualized suspicion” of criminal activity where 

the officers’ primary purpose is not conducting a “safe and efficient search” pursuant to a warrant. 

In this case, the court found that the ICE agents’ focus was not on conducting a safe and efficient 

search but on engaging in a preplanned investigation and detention of a large number of 

individuals located on the premises where the search was authorized. The court held that the 

authority to detain individuals under Summers did not justify ICE agents using the execution of a 

search warrant for documents as means to “target” certain persons for detention, interrogation, 

nor to arrest busloads of people who could not otherwise be detained lawfully.

Third, the court held that in addition to violating the Fourth Amendment, the ICE agents violated 

an ICE regulation 8 C.F.R § 287.8(b)(2) by detaining and questioning Cruz without “reasonable 

suspicion, based on specific articulable facts, that the person being questioned is, or is attempting 

to be, engaged in an offense against the United States or is an alien illegally in the United States.” 

Because the agents violated 8 C.F.R § 287.8(b)(2), the court concluded that Cruz was entitled to 

suppression of the evidence obtained as a result of that violation. Consequently, as the 

government did not offer any other evidence of Cruz’s alienage beyond the Form I-213 and his 

birth certificate, i.e. fruits of the regulatory violation, the court concluded that the removal 

proceedings against Cruz should be terminated.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca9/15-70530/15-

70530-2019-06-13.pdf?ts=1560445358

*****