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April 2019

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

Law Enforcement Training Centers’ Office of Chief Counsel is dedicated to providing law enforcement officers with quality, useful 

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

legal articles written to clarify or highlight various issues. The views expressed in these articles are the opinions of the author and 

do not necessarily reflect the views of the Federal Law Enforcement Training Centers. The Informer is researched and written by 

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This edition of The Informer may be cited as 4 INFORMER 19.
2

The Informer – April 2019

Case Summaries

United States Supreme Court

City of Escondido v. Emmons: Whether the Ninth Circuit Court of Appeals erroneously

denied two police officers qualified immunity in a lawsuit alleging excessive use of force..............5

Circuit Courts of Appeals

First Circuit

Págan-González v. Moreno: Whether federal agents were entitled to qualified immunity

in a Bivens action where the agents obtained consent to search after they lied to the plaintiffs

about the existence of an emergency................................................................................................6

Fourth Circuit

Williams v. Strickland: Whether officers were entitled to qualified immunity in a lawsuit

alleging an excessive use of force where the officers shot the driver of a moving vehicle.................7

Fifth Circuit

United States v. Richmond: Whether a state trooper’s tapping of a tire on the 

defendant’s vehicle during a traffic stop constituted a Fourth Amendment search...........................8

Sixth Circuit

Taylor v. City of Saginaw: Whether the City’s parking enforcement practice of using

chalk to mark the tires of parked vehicles to track how long they were parked in order 

to issue citations if the vehicles did not move within the allotted time had not moved 

constituted a Fourth Amendment search...........................................................................................9

Cruise-Gulyas v. Minard: Whether an officer was entitled to qualified immunity in 

a lawsuit alleging that he violated the plaintiff’s First and Fourth Amendment rights 

after the officer stopped the plaintiff because she extended her middle finger towards 

him after a traffic stop.....................................................................................................................10

Tenth Circuit

United States v. Knapp: Whether officers lawfully searched the defendant’s purse 

incident to her arrest.......................................................................................................................11

Eleventh Circuit

Sebastian v. Ortiz: Whether an officer was entitled to qualified immunity in a lawsuit 

alleging an excessive use of force after the suspect remained handcuffed for over five 

hours during which time he complained about pain and numbness in his hands and wrists............13

♦
3

FLETC Informer Webinar Schedule 

1. Understanding the Inventory Search (1-hour)

Presented by John Besselman, Senior Advisor for Training, Office of Chief Counsel, 

Federal Law Enforcement Training Centers, Glynco, Georgia.

(John.Besselman@fletc.dhs.gov)

The inventory search is an effective means for government agencies to protect themselves 

from dangers, real or imagined. This little corner of the Fourth Amendment search warrant 

exception arena includes some straightforward and simple rules. This webcast is designed 

to make sure agencies that seize personal items know what those rules are and why they 

exist. A training certificate will be available at the conclusion of the presentation.

Thursday May 9, 2019: 10:30 am Eastern / 9:30am Central / 8:30 am Mountain / 

7:30 am Pacific 

To participate in this webinar: https://share.dhs.gov/occ_inventories/

♦

2. Warrantless Searches - No PC Required! (1-hour)

Presented by John Besselman, Senior Advisor for Training, Office of Chief Counsel, 

Federal Law Enforcement Training Centers, Glynco, Georgia. 

(John.Besselman@fletc.dhs.gov)

There are several well recognized (and some not so well recognized) exceptions to the 

Fourth Amendment's Search Warrant requirement. This webcast will examine those 

exceptions in which probable cause is not even required. We will discuss the frisk, SIA, 

consent, inventory, and inspection exceptions and how they fit into the flow of the Fourth 

Amendment's limitation on governmental actions. A training certificate will be available 

upon completion of the training.

Tuesday May 14, 2019: 10:30 am Eastern / 9:30am Central / 8:30 am Mountain / 

7:30 am Pacific 

To participate in this webinar: https://share.dhs.gov/warrantlesssearch_nopc/

♦

3. Can’t Touch This! Update on Vehicle Searches Under Jones (1-hour)

Presented by Paul Sullivan and Patrick Walsh, Attorney-Advisors / Branch Chiefs, Federal 

Law Enforcement Training Centers, Glynco, Georgia. (patrick.walsh@fletc.dhs.gov)

In United States v. Jones (2012), the Supreme Court adopted the MC Hammer approach 

to searches under the Fourth Amendment. Physically touching a vehicle to gather 

information triggers Fourth Amendment protections. In the last few months, two federal 

appellate courts have ruled that officers conducted a search by touching a car. This 

webinar will explain the Jones case and demonstrate how courts are applying it to traffic 

stops and minor physical contact with vehicles. 
4

Thursday May 16, 2019: 10:30 am Eastern / 9:30am Central / 8:30 am Mountain / 

7:30 am Pacific 

and

Tuesday May 28, 2019: 2:30 pm Eastern / 1:30 pm Central / 12:30 pm Mountain / 

11:30 am Pacific

To participate in either webinar: https://share.dhs.gov/walsh/

♦

4. Dark Web: What Goes On Behind the Scenes? (1-hour)

Presented by Robert Duncan and Henry McGowen, Attorney-Advisors / Senior 

Instructors, Federal Law Enforcement Training Centers, Artesia, New Mexico. 

(robert.duncan@fletc.dhs.gov; henry.mcgowen@fletc.dhs.gov)

We have all heard of the so called “dark web,” but what is it really? We may have heard 

that it is where nefarious criminal activity occurs, but what are the criminals doing? How 

does it work? How does someone even find the dark web? This webinar presentation will 

shed some light on the dark web, discussing what it is and how it works. Our focus will be 

to demystify this shady part of the internet for law enforcement investigators and 

prosecutors seeking evidence of criminal wrongdoing hidden behind the scenes. We hope 

you will join us!

Wednesday May 22, 2019: 3pm Eastern / 2pm Central / 1pm Mountain / 

12 pm Pacific

To participate in this webinar: https://share.dhs.gov/artesia

♦

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5. You will now be in the meeting room and will be able to participate in the event.

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call our audio bridge line at (877) 446-3914 and enter participant passcode 232080 

when prompted. 
5

CASE SUMMARIES

United States Supreme Court

City of Escondido v. Emmons, 586 U.S. ___ (2019), 139 S. Ct. 500

Several police officers were dispatched to an apartment on a domestic violence call. The 

dispatcher told the officers two children might be in the apartment and that calls to the apartment 

had gone unanswered. When the officers arrived, no one answered the door, but they spoke to a 

woman through an open window. As the officers attempted to convince the woman to open the 

apartment door so they could conduct a welfare check, a man opened the door and came outside. 

Officer Craig told the man, later identified as Emmons, not to close the door but Emmons closed 

the door and tried to brush past him. Officer Craig stopped Emmons, quickly took him to the 

ground and handcuffed him. Officer Craig did not strike Emmons or display any weapon. Police 

body-camera video showed that Emmons was not in any visible or audible pain from the takedown 

or afterward while on the ground. The officers arrested Emmons for the misdemeanor offense of 

resisting and delaying a police officer. 

Emmons sued Officer Craig and one of the other officers, Sergeant Toth for, among other things, 

using excessive force in arresting him.

The district court held that Officer Craig and Sergeant Toth were entitled to qualified immunity. 

The court stated that the “video shows that the officers acted professionally and respectfully in 

their encounter” with Emmons. In addition, because only Officer Craig used any force at all, the 

district court dismissed Emmons’s claim against Sergeant Toth. 

Emmons appealed and the Ninth Circuit Court of Appeals reversed the district court. In denying 

the officers qualified immunity, the Ninth Circuit held, “The right to be free of excessive force 

was clearly established at the time of the events in question.” The officers appealed to the United 

States Supreme Court.

First, with respect to Sergeant Toth, the Supreme Court reversed the Ninth Circuit Court of 

Appeals. The Court noted that the Ninth Circuit offered no explanation for its decision to deny 

him qualified immunity. The Court added, the Ninth Circuit’s “unexplained reinstatement of the 

excessive force claim against Sergeant Toth was erroneous – and quite puzzling in light of the 

District Court’s conclusion that “only Defendant Craig was involved in the excessive force 

claim”” and that Emmons presented no contrary evidence. 

Next, the Court held that the Ninth Circuit erroneously determined that Officer Craig was not 

entitled to qualified immunity. A police officer is entitled to qualified immunity when his conduct 

does not violate a suspect’s clearly established constitutional or statutory right. The Supreme 

Court has repeatedly reminded the appellate courts not to define clearly established rights at a 

“high level of generality.” In this case, the Ninth Circuit should have asked whether clearly 

established law prohibited Officer Craig from stopping and taking down a man under the 

circumstances he faced when he arrested Emmons. Instead, the Ninth Circuit defined the clearly 

established right at a high level of generality by saying only that the “right to be free of excessive 

force” was clearly established” at the time of the incident. Consequently, the Supreme Court 

remanded the case and directed the Ninth Circuit to conduct the proper analysis to determine 
6

whether Officer Craig was entitled to qualified immunity for stopping and arresting Emmons in 

the manner in which he did as Emmons exited the apartment.

For the court’s opinion: https://www.supremecourt.gov/opinions/18pdf/17-1660_5ifl.pdf

*****

Circuit Courts of Appeal

First Circuit

Págan-González v. Moreno, 2019 U.S. App. Lexis 8716 (1st Cir. P.R. March 22, 2019)

Ten federal agents went to González’s home that he shared with his parents in Puerto Rico. 

Special Agent Moreno identified herself as an agent with the Federal Bureau of Investigation 

(FBI) and stated that law enforcement officers were there because a modem in a computer at the 

house was “sending a signal and/or viruses to computers in Washington.” This was not true. In 

reality, FBI agents had reason to believe that a computer on the premises contained child 

pornography, and the agents had come to the home to investigate. 

The agents asked the family for consent to inspect their computers and said they would try to fix 

the problem that was sending transmissions to Washington. The agents said that if they could not 

make the repair they would take the faulty computer and provide a replacement at the FBI’s 

expense. González, age 21, and his parents signed consent forms authorizing the computer 

searches. After inspecting two computers, the agents told the family that they needed to take 

González’s laptop. 

A forensic examination of the laptop revealed numerous images and videos of child pornography. 

Federal agents arrested González’ on December 12, 2013 and he remained in custody until his 

parents posted bond a week later. A grand jury indicted González on January 9, 2014 on child 

pornography-related offenses. 

González filed a motion to suppress the evidence obtained from the search of his computer. 

González argued that the agents’ deception about the reason for being at his house invalidated the 

consent given by the family for examination of their computers. Instead of responding to the 

suppression motion, the government filed a motion to dismiss the case, “in the interests of justice.”

González and his parents subsequently filed a Bivens action against the federal agents, arguing 

that they consented to the agents’ entry and search only after agents deceived them about the true 

nature of their investigation. As a result, they claimed that any consent was tainted by the agents’ 

lies, which led to an unreasonable search and seizure of the computers in violation of the Fourth 

Amendment. 

Law enforcement officers may conduct warrantless searches when they obtain valid consent. For 

consent to valid, it must be obtained voluntarily. While courts have found that some degree of 

deceit will not automatically render a person’s consent involuntary, there is consensus that two 

types of deception have an impermissibly coercive effect. First, the Supreme Court has rejected 

the consent to search obtained by officers who falsely claim they have a warrant. Second, courts 

have regularly held that coercion is implicit where officers falsely present a need for urgent action. 

Specifically, when an officer lies about the existence of exigent circumstances, the officer implies 

that the person has no right to resist and may face immediate danger if he tries. 
7

The court held that the agents were not entitled to qualified immunity. The court found that the 

appearance of ten federal agents at the González home with alarming news that computers in 

Washington, D.C. were receiving signals or viruses from their computers was sufficient to render 

their consent involuntary. The court rejected the government’s argument that a finding of coercion 

based on fabricated exigent circumstances is limited to lies about imminent physical danger or a 

time sensitive investigation involving the safety of a vulnerable person. The court found that by 

late 2013 cyber security was a major concern and that the national security threats posed by 

cyberattacks was public knowledge. 

The court further held that case-law concerning fabricated exigent circumstances put the agents 

on notice that their type of ruse violated the Fourth Amendment at the time of this incident. 

Specifically, the court found that a reasonable officer would have understood that the ruse used 

here carried out in a manner that signified an emergency would leave an individual with 

effectively no choice but to allow the agents inside his home so they could attempt to alleviate the 

threat. Consequently, a reasonable officer would have known that denying González any real

chance to deny consent violated the Fourth Amendment.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca1/16-2214/16-2214-

2019-03-22.pdf?ts=1553288403

*****

Fourth Circuit

Williams v. Strickland, 917 F.3d 763 (4th Cir. S.C. 2019)

On June 29, 2012, Williams drove from Georgia to South Carolina to visit a relative. Officer 

Heroux, who was on patrol, ran Williams’s license plate through dispatch and learned that the 

plate had been stolen. Officer Heroux followed Williams into the parking lot of an apartment 

complex and activated his blue lights. In response, Williams pulled into a parking space. As 

Officer Heroux got out of his patrol car, Officers Strickland and Criddle arrived on the scene. 

When Officer Heroux was about ten feet from Williams’s car, Williams shifted the car into reverse 

and cut the wheel, causing the front end to swivel in Officer Heroux’s direction. Officer Heroux, 

believing himself to be in danger, stepped back and drew his gun. At the same time, Officer 

Strickland started walking toward Williams’s car. Williams then put the car in gear in drive, 

straightened out, and drove toward Officer Strickland. 

Officers Heroux and Strickland discharged their firearms at Williams’s car. It was not clear at 

this stage how far Williams got before Officers Heroux and Strickland started shooting. Williams 

may have been headed toward Officer Strickland. Williams may have been passing by Officer 

Strickland, such that Strickland was alongside the car and out of the car’s trajectory; or, Williams 

may have already driven past Officer Strickland, such that Strickland, like Officer Heroux, was 

behind the car. After one of Officer Heroux’s shots hit Williams in the back, he lost control of 

the car and crashed into a tree. 

Williams sued Officers Heroux and Strickland under 42 U.S.C. § 1983. Williams claimed that by 

firing on him during the course of his arrest, the officers had subjected him to excessive force in 

violation of the Fourth Amendment. 
8

Officers Heroux and Strickland filed a motion for summary judgment based on qualified 

immunity. The district court held that a reasonable jury, viewing the facts as alleged by Williams, 

could conclude that when the officers discharged their firearms, Williams’s car was either (a) in 

the process of passing Officer Strickland or (b) already past Officer Strickland. According to the 

district court, if either (a) or (b) were true, then the officers’ use of deadly force would have been 

a violation of clearly established law, referencing a 2005 case. The officers appealed.

The court of appeals agreed with the district court and affirmed the denial of qualified immunity 

to the officers.

In 2005, the Fourth Circuit Court of Appeals in 2005 clearly established that (1) law enforcement 

officers may, under certain conditions, be justified in using deadly force against the driver of a car 

when the officers are in the car's trajectory and have reason to believe that the driver will 

imminently and intentionally run over them, but (2) the same officers violate the Fourth 

Amendment if they employ deadly force against the driver once they are no longer in the car's 

trajectory. This is true even if only a few seconds separate the point at which deadly force is 

reasonable from the point where deadly force is unreasonable. The court noted that, “force 

justified at the beginning of an encounter is not justified even seconds later if the justification for 

the initial force has been eliminated.” 

Consequently, the court concluded that if Officers Heroux and Strickland started or continued to 

fire on Williams after they were no longer in the trajectory of Williams’s car, they violated 

Williams’s Fourth Amendment right to be free from excessive force. Therefore, because a 

reasonable jury could conclude that the officers violated this clearly established right, they were 

not entitled to qualified immunity.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca4/18-6219/18-6219-

2019-03-05.pdf?ts=1551814226

*****

Fifth Circuit

United States v. Richmond, 915 F.3d 352 (5th Cir. TX 2019) 

A Texas State Trooper was on patrol when he saw a pickup truck driven by Jennifer Richmond. 

When the trooper drove alongside the truck, he saw that the tires were shaking, wobbly, and 

unbalanced. After the truck drove across the fog line between the right lane and the shoulder of 

the road, the trooper stopped the truck, concerned that the tires were a potential danger to the 

public. During the stop, the trooper looked at the passenger-side rear tire and saw that the bolts 

had been stripped as if they had been removed numerous times. The trooper tapped on the tire 

with his hand and heard a “solid thumping noise” that indicated that something besides air was 

inside the tire. After discovering inconsistencies with Richmond’s travel history, the trooper 

obtained Richmond’s consent to search the truck and had it taken to a local car dealership to have 

the tires examined. Technicians at the dealership discovered secret compartments that contained 

methamphetamine. 

The government charged Richmond with trafficking methamphetamine. Richmond filed a motion 

to suppress the evidence found in her truck’s tires, arguing that the trooper’s tapping on the tire 

constituted an unreasonable warrantless search. 
9

The court held that tapping Richmond’s tire was not a Fourth Amendment search under the 

reasonable expectation of privacy test outlined by the Supreme Court in Katz v. United States. 

The court concluded that Richmond did not have a reasonable basis to believe that the trooper 

would not touch the tire during the stop.

However, the court held that tapping the tire was a Fourth Amendment search under the propertybased approach outlined by the Supreme Court in U.S. v. Jones. In Jones, the Court held that a 

search occurs when the government trespasses upon a constitutionally protected area (persons, 

houses, papers or effects) to obtain information. In this case, the court concluded that the trooper’s 

tapping of the tire was a search, regardless of how insignificant it might seem.

Lastly, the court held that tapping the tire was reasonable. The court noted that the wobbly tires, 

the truck veering outside its lane, and the stripped bolts would have given a reasonable officer 

probable cause to believe that the tire posed a safety risk. The court commented that the 

government’s interest in making sure that a loose tire does not pose a safety threat strongly 

outweighed the intrusiveness of an officer’s tapping the tire for a second or two. It did not matter 

that the trooper might have suspected the tire contained drugs.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca5/17-40299/17-

40299-2019-02-08.pdf?ts=1549650668

*****

Sixth Circuit

Taylor v. City of Saginaw, 2019 U.S. App. LEXIS 11586 (6th Cir. MI Apr. 22, 2019)

The City of Saginaw uses a parking enforcement practice known as “chalking,” whereby City 

parking enforcement officers use chalk to mark the tires of parked vehicles to track how long they 

have been parked. Parking enforcement officers return to the car after the posted time for parking 

has passed, and if the chalk marks are still there, the officer issues a citation. 

Alison Taylor sued the City and its parking enforcement officer, claiming that chalking violated 

her Fourth Amendment right to be free from unreasonable warrantless searches. The district court 

held that while chalking may have constituted a Fourth Amendment search it was reasonable.

The Sixth Circuit Court of Appeals disagreed. First, the court held that the practice of chalking 

was a search for Fourth Amendment purposes. In U.S. v. Jones, the Supreme Court held that a 

Fourth Amendment search occurs when the government trespasses upon a constitutionally 

protected area (persons, houses, papers or effects) to obtain information. Here, it was undisputed 

that the parking enforcement officer made intentional physical contact with Taylor’s vehicle. The 

court found that this physical intrusion, constituted a trespass against Taylor’s effect. The court 

further found that the parking enforcement officer used the chalk marks to identify vehicles that 

have been parked in the same location for a certain period of time. The parking enforcement 

officer then used this information to issue citations. Although the court recognized that chalking 

was a low-tech investigative technique, this practice still amounted to an attempt to obtain 

information under a Jones analysis. 

Second, the court held that the warrantless search of Taylor’s vehicle was unreasonable because 

the City failed to establish an exception to the Fourth Amendment’s warrant requirement. The 

City argued that the warrantless search of Taylor’s vehicle was reasonable under the community 
10

caretaker exception. Under the community caretaker exception, as it relates to vehicles, officers 

are allowed to search and seize vehicles if they pose a risk to public safety. For example, if a 

vehicle is left disabled at the side of the road, impedes traffic, or otherwise creates and 

inconvenience, courts have held that it is reasonable for officers to impound the vehicle and 

inventory its contents. 

However, the court held that the City failed to demonstrate how this search was related to public 

safety. The City did not show that the location or length of time that Taylor’s vehicle was parked 

created the type of hazard or traffic impediment amounted to a public safety concern. Instead, at 

the time of the search, Taylor’s vehicle was lawfully parked in a proper parking space, imposing 

no safety risk whatsoever. The court added that because the purpose of chalking is to raise revenue 

and not to reduce a public hazard the City was not acting in its role as a “community caretaker.”

Finally, the court found that the warrantless search of Taylor’s vehicle was not valid under the 

automobile exception. The automobile exception allows officers to search a vehicle without a 

warrant if they have probable cause to believe that the vehicle contains evidence of a crime. 

However, the court found that City parking enforcement officers conduct searches of legally 

parked vehicles by chalking them without probable cause or any other suspicion of wrongdoing. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca6/17-2126/17-2126-

2019-04-22.pdf?ts=1555947016

*****

Cruise-Gulyas v. Minard, 918 F.3d 494 (6th Cir. MI 2019)

In June 2017, Officer Minard pulled over Debra Cruise-Gulyas for speeding. However, Officer 

Minard wrote her a ticket for a lesser, non-moving violation instead. As Cruise-Gulyas drove 

away, she raised her middle finger at him. Officer Minard pulled Cruise-Gulyas over a second 

time, less than 100 yards from where the initial stop occurred and amended the ticket to a speeding 

violation.

Cruise-Gulyas sued Officer Minard under 42 U.S.C.§ 1983 alleging that he violated the Fourth 

Amendment by pulling her over a second time and changing the original ticket to a more serious 

violation. Officer Minard filed a motion for summary judgment based on qualified immunity. 

The district court denied the motion holding that Cruise-Gulyas could not be stopped a second 

time in the absence of a new violation of the law, that she had a free speech right to make the 

gesture with her middle finger, and that the gesture did not violate any identified law. Officer 

Minard appealed.

Officer Minard did not dispute that he clearly lacked authority to stop Cruise-Gulyas a second 

time. Officer Minard argued that he should have been granted qualified immunity because at the 

time of the incident it was not clearly established that a second stop, after a first stop supported 

by probable cause, violated Cruise-Gulyas’s Fourth Amendment rights. 

The court disagreed. In making his argument, Officer Minard failed to acknowledge that the 

second stop was distinct from the first stop, not a continuation of it. As such, the court noted that 

case law from 2015 clearly required independent justification for the second stop. The court added 

that Cruise-Gulyas’s crude gesture could not provide that new justification. 
11

Cruise-Gulyas also alleged that Officer Minard violated her First Amendment right to free speech 

by stopping her the second time in retaliation for her expressive, if vulgar, gesture. To succeed, 

Cruise-Gulyas must show that (1) she engaged in protected conduct, (2) Minard took an adverse 

action against her that would deter an ordinary person from continuing to engage in that conduct, 

and (3) her protected conduct motivated Officer Minard at least in part.

The court held that at the time of the incident it was clearly established that (a) any reasonable 

officer would know that a person who raises her middle finger engages in speech protected by the 

First Amendment; (b) that an officer who seizes a person for Fourth Amendment purposes without 

proper justification an issues her a more severe ticket clearly commits an adverse action that would 

deter her from repeating that conduct in the future; and (c) that Minard stopped her because she 

made a crude gesture. As a result, the court affirmed the district court’s denial of qualified 

immunity. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca6/18-2196/18-2196-

2019-03-13.pdf?ts=1552498272

*****

Tenth Circuit

United States v. Knapp, 917 F.3d 1161 (10th Cir. WY 2019)

Stacy Knapp called the police to report a theft at a grocery store. Officers responded to the call, 

arrested the theft-suspect, and took a statement from Knapp. During their investigation, the 

officers discovered that Knapp had an outstanding warrant for her arrest. By that time, Knapp 

had left the grocery store so an officer went outside to locate her.

The officer found Knapp in the driver’s seat of a parked pickup truck outside the store. After the 

officer told Knapp that she was under arrest, she grabbed her purse, exited the truck and followed 

the officer back into the store. Because the officers were still concluding their theft investigation, 

Knapp was asked to sit on a chair outside a bank office located within the store.

Once Knapp sat down, the officer moved her closed purse a few chairs away from her. Knapp 

asked her friend who was present to take her purse so she would not have to take it to jail. Knapp’s 

friend declined to take the purse and the officer refused to let her leave the purse in her truck. The 

officer asked Knapp for consent to search the purse but she refused. The officer then placed 

Knapp in handcuffs behind her back and led her outside while another officer carried the purse. 

The officers and Knapp walked to a patrol car. An officer put Knapp’s purse on the hood of the 

car while Knapp stood near the front bumper of the car facing the officers. At that time, Knapp 

was handcuffed facing the officers while her purse was three to four feet behind her. Suspecting 

that Knapp had drugs in her purse, an officer told her it was a felony to bring drugs into the 

detention center. Knapp then told the officers that she was carrying a pistol in her purse. The

officers searched the purse and discovered a pistol. The government charged Knapp with being a 

felon in possession of a firearm. 

Knapp filed a motion to suppress the pistol, which the district court denied. Knapp appealed.

In Chimel v. California, the Supreme Court held that it was reasonable for an officer to conduct a 

warrantless search an arrestee’s person to locate any weapons, means of escape, and to prevent 

the concealment or destruction of evidence. In addition, the Court held that it was reasonable to 
12

search the area within the arrestee’s immediate control or to prevent the person from gaining 

possession of a weapon, a means of escape, or destructible evidence. 

In United States v. Robinson, the Court held that a search of an arrestee’s person incident to arrest 

does not have to be separately justified for each arrest, but instead is justified by the arrest itself. 

Although the Court did not address whether areas within the arrestee’s immediate control were 

also automatically subject to warrantless searches incident to arrest, it noted that searches of an 

arrestee’s person and searches of the area within the arrestee’s immediate control were two distinct

categories of searches. In cases concerning searches incident to arrest, it is noteworthy that the 

Court has never clearly delineated where the “person” ends and where the area within the 

arrestee’s immediate control, often referred to by lower courts as the “grab area” begins. 

In this case, the issue before the Tenth Circuit Court of Appeals was (1) whether the search of 

Knapp’s purse was one of her person under Robinson and therefore justified solely by virtue of 

her arrest, and (2) if Knapp’s purse was not part of her person, whether the search was nevertheless 

justified because it was within the area from which she might have gained possession of a weapon, 

a means of escape, or destructible evidence under Chimel. 

First, the court held that an automatic search of a person incident to arrest under Robinson is 

limited to searches of an arrestee’s clothing, including containers concealed under or within the 

clothing. As a result, the court found that visible containers in an arrestee’s hands such as Knapp’s 

purse are best considered to be within the area of arrestee’s immediate control; therefore, governed 

by Chimel, the search of which must be justified in each case. Because Knapp’s purse, which was 

not concealed under or within her clothing was easily capable of separation from her person, the 

court held that the officers did not have authority to automatically search its contents under 

Robinson.

Second, joining the Third Circuit Court of Appeals, the court found that to determine an arrestee’s 

immediate area of control or grab area it is necessary to focus on an arrestee’s ability to access 

weapons or destroy evidence at the time of the search rather than the time of arrest. 

Finally, the court concluded it was unreasonable for the officers to believe that at the time of the 

search the purse was located in an area within Knapp’s immediate control. First, Knapp’s hands 

were cuffed behind her back, while one officer stood next to her and two other officers were 

nearby. Second, the purse was closed and three to four feet behind her on the hood of a patrol car. 

Third, the officers had maintained exclusive possession of the purse after placing Knapp in 

handcuffs. Fourth, Knapp tried repeatedly to leave her purse behind during the whole encounter, 

suggesting that she was not trying to access a weapon, destroy evidence, or otherwise escape. 

Consequently, because the search of Knapp’s purse was not one of her “person” under Robinson

nor was the search supported by the justifications outlined in Chimel, the court held that it was 

unlawful for the officers to search Knapp’s purse incident to her arrest. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca10/18-8031/18-8031-

2019-03-05.pdf?ts=1551805238

*****
13

Eleventh Circuit

Sebastian v Ortiz, 2019 U.S. App. LEXIS 7477 (11th Cir. FL 2019)

A police officer stopped Ruben Sebastian for speeding and requested to check the tint on the front 

windows Sebastian’s vehicle to determine whether it was compliant under Florida law. Sebastian 

consented to the check of his interior window but did not consent to a search of the interior of the 

vehicle. The officer claimed that the tint on the rear windows prevented him from seeing into the 

back of the car. After Sebastian denied consent to search, the officer contacted Lt. Javier Oritz 

for backup.

When Lt. Oritz arrived, he asked for permission to search the interior of the vehicle and again 

Sebastian refused. At this point, according to Sebastian, Lt Ortiz “became enraged,” opened the 

car door, and removed Sebastian from the vehicle. By this time an unknown third officer, “Officer 

Doe,” arrived at the scene and either Lt. Ortiz or Officer Doe placed Sebastian in metal handcuffs. 

Sebastian claimed that the handcuffs were engaged “in a manner purposely intended to cause pain 

and injury, cutting off the circulation in his hands, and cutting into the skin on his wrists.” 

Sebastian complained and either Officer Doe or Lt. Ortiz told him that “he knew of a way to make 

them tighter.” 

While Sebastian was restrained, the officers searched his vehicle and found a firearm which 

Sebastian had a permit to carry. Afterward, Lt. Ortiz directed a fourth officer who had arrived at 

the scene to transport Sebastian to jail in the officer’s patrol car. Before transporting Sebastian, 

either Officer Doe or Lt. Oritz replaced the metal handcuffs with plastic flex cuffs, again, 

according to Sebastian, “intentionally tightening the cuffs in a manner purposely and wantonly 

intended to cause pain and further injury.” Sebastian alleged that the officers refused to loosen 

the flex cuffs after he complained that he was beginning to lose feeling in his hands. 

Sebastian was transported to the police station where he was detained for more than five hours 

with his hands still cuffed behind his back. Sebastian was charged with two counts of resisting or 

obstructing an officer without violence and one count of reckless display of a firearm. Those

charges were later dismissed by the State Attorney, although Sebastian pleaded guilty to a noncriminal speeding violation. 

Sebastian filed a lawsuit under 42 U.S.C. § 1983 against Lt. Oritz claiming an excessive use of 

force in violation of the Fourth Amendment. Sebastian claimed that he suffered permanent nerve 

damage to his hands and wrists as the result of being left in handcuffs for more than five hours.

Lt. Ortiz filed a motion for summary judgment based on qualified immunity. The district court 

denied Lt. Ortiz qualified immunity and he appealed.

The Eleventh Circuit Court of Appeals agreed with the district court and affirmed the denial of 

qualified immunity. 

To determine whether the force used by a police officer is excessive, a court must consider the 

factors outlined in Graham v. Connor, including, but not limited to the following: (1) the severity 

of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers 

or others, and (3) whether the suspect is actively resisting arresting or attempting to evade arrest 

by flight. Applying this test, the court noted that “we have repeatedly ruled that a police officer 

violates the Fourth Amendment and is denied qualified immunity if he or she uses gratuitous and 

excessive force against a suspect who is under control, not resisting, and obeying commands. 
14

In this case, the court held that all of the Graham factors weighed in Sebastian’s favor. First, 

speeding is a minor, non-criminal offense. Second, there was no evidence to support that 

Sebastian posed a threat to officer safety or to anyone else. Third, there was no evidence that 

Sebastian was a flight risk at any time during the stop. The court stated that Sebastian’s refusal 

to consent to a search of his vehicle resulted in his being subjected to force that left him with 

permanent injuries. 

The court was not persuaded by Lt. Ortiz’s argument that he did not violate the Fourth Amendment 

because the amount of force used against Sebastian was “de minimis”. The court recognized that 

the right to make an arrest necessarily carries with it the right to use some degree of force and that 

“painful handcuffing, without more, is not excessive force in cases where the resulting injuries 

are minimal.” However, the court added that the nature and extent of physical injuries sustained 

by a person are key factors in determining whether an officer’s use of force was reasonable, and 

in this case, Sebastian alleged serious, permanent injuries.

Next, while the court has never addressed a claim factually identical to Sebastian’s, at the time of 

the incident the law was clearly established that if an arrestee demonstrates compliance, and the 

officer nonetheless inflicts gratuitous and substantial injury using ordinary arrest tactics, the 

officer may have used excessive force. In this case, the facts as alleged by Sebastian, establish 

that substantial injuries were inflicted on him in a gratuitous manner, not as an incidental effect 

of legitimate law enforcement actions. 

Finally, although Sebastian was unsure which officer, Lt. Ortiz or Officer Doe applied the 

handcuffs, Sebastian alleged that if it was Officer Doe, Lt. Oritz is liable for failing to intervene 

in Officer Doe’s excessive use of force. The court noted that the failure to intervene claim is 

dependent on the underlying excessive force claim. Because Sebastian adequately alleged a 

clearly established constitutional right to be free from excessive force, Lt. Ortiz was not entitled 

to qualified immunity on the failure to intervene claim at this stage of the proceedings. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca11/17-14751/17-

14751-2019-03-14.pdf?ts=1552568424

*****