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 August 2021

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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 

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This edition of The Informer may be cited as 8 INFORMER 21.
2

The Informer – August 2021

Case Summaries

Circuit Courts of Appeals

Fourth Circuit

Walker v. Donahoe: Whether a police officer established reasonable suspicion to support an

investigatory detention of a man who was walking along a public road near a school with an 

AR-15 style assault rifle, dressed to look like a soldier, one week after a school shooting................4

United States v. Rose: Whether the defendant had a reasonable expectation of privacy in

two packages addressed to a deceased person that were delivered to an address in which 

the defendant had no connection.......................................................................................................5

Fifth Circuit

Jackson v. Gautreaux: Whether officers used excessive force by shooting a suspect who

was using his car as a weapon...........................................................................................................7

Seventh Circuit

United States v. Tuggle: Whether the warrantless use of pole cameras located on public 

property to conduct surveillance on the defendant’s home for approximately eighteen 

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

Eighth Circuit

United States v. Thompson: Whether officers had the authority to conduct a protective 

sweep of a house after the defendant was arrested and placed in a police car..................................10

United States v. Sanders: Whether the warrantless entry and search for a firearm was

justified under the exigent circumstances exception to the warrant requirement............................12

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

in files he shared on a public peer-to-peer network.........................................................................13

Tenth Circuit

United States v. Woodard: Whether Tulsa Police Department policy authorized officers

to impound the defendant’s vehicle, and whether officers used that policy as a pretext to

impound the vehicle to search it for evidence of crime...................................................................14

♦
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FLETC Informer Webinar Schedule – September 2021

1. Exigent Circumstances

Presented by Arie J. Schaap, Attorney Advisor / Senior Instructor, Federal Law 

Enforcement Training Centers, Artesia, New Mexico.

The Fourth Amendment protects individuals from unreasonable searches and seizures and

a warrant is needed for most search and seizure activities. However, the Supreme Court 

has established several exceptions to the warrant requirement, including exigent 

circumstances. This presentation will explore exigent circumstances the Court has 

identified that may justify a warrantless search of a home. This presentation will also look 

at the recent Supreme Court case of Lange v. California, where the Court held that the 

Fourth Amendment requires case-specific exigent circumstances for the police to pursue 

an individual into a private home without a warrant to make a misdemeanor arrest.

Friday, September 24, 2021: 3 p.m. Eastern / 2 p.m. Central / 1 p.m. Mountain / 

12 p.m. Pacific

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

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To Participate in a FLETC Informer Webinar

1. Click on the link to access the Homeland Security Information Network (HSIN).

2. If you have a HSIN account, enter with your login and password information.

3. If you do not have a HSIN account, click on the button next to “Enter as a Guest.”

4. Enter your name and click the “Enter” button.

♦
4

CASE SUMMARIES

Circuit Courts of Appeals

Fourth Circuit

Walker v. Donahoe, 3 F.4th 676 (4th Cir. 2021) 

On February 21, 2018, a concerned citizen called 911 and reported a man with an assault rifle 

walking westbound along Route 33 through a suburban residential and commercial area. Corporal

Brian Donahoe and Deputy Brandon Pauley were dispatched to locate the armed man. From the 

caller’s report, the officers knew that Teays Valley Christian School was less than a mile ahead 

of the armed man. In addition, the officers knew that on February 14, 2018, a 19-year old gunman 

in Parkland, Florida shot and killed 17 persons and wounded several others with an assault rifle 

inside Marjory Stoneman Douglas High School. Finally, although it is generally legal in West 

Virginia to openly carry firearms, including assault rifles, the officers knew there were some 

limitations to this law. For example, a person under the age of 18, who is not married or otherwise 

emancipated, is prohibited from possessing or carrying concealed or openly any deadly weapon.

A short time later, the officers saw the armed man, later identified as Michael Walker, walking 

toward Teays Valley Christian School. Walker was wearing military-style clothing, and he was 

carrying a backpack and an uncased AR-15-style assault rifle on his back. Upon seeing Walker, 

the officers believed that he could be under the age of 18 because of his youthful appearance and 

the fact that he was walking rather than driving. 

The officers stopped Walker and obtained his identification papers, which indicated that he was 

24 years old. Corporal Donahoe then called the Sheriff’s dispatch office for a criminal history 

check to ascertain whether Walker had any criminal conviction that would disqualify him from 

carrying a firearm. The Sheriff's dispatch office promptly responded to Corporal Donahoe’s 

request for a criminal history check and reported that Walker had been convicted of a 

misdemeanor drug offense and acquitted of a charge of obstructing a law enforcement officer. At 

this point, believing that Walker was eligible to carry a firearm, Corporal Donahoe returned 

Walker’s identification papers and told him that he was free to go. The entire encounter lasted less 

than nine minutes.

Walker sued the officers under 42 U.S.C. § 1983. Walker claimed that Corporal Donahoe’s 

detention of him constituted an unreasonable Fourth Amendment seizure and that Deputy Pauley 

was liable as a bystander of Corporal Donahoe’s conduct. The district court dismissed the lawsuit. 

The district court found that the facts known to Corporal Donahoe when he detained Walker 

supported a reasonable suspicion that: 1) Walker posed an imminent threat to the students and 

staff at Teays Valley Christian School, and 2) Walker was violating West Virginia law, which 

prohibits minors under the age of eighteen from carrying firearms, 

Walker appealed. Walker claimed that in a state like West Virginia, where it is legal to openly 

carry a firearm, the act of openly carrying a firearm can never establish reasonable suspicion to 

support a stop and investigatory detention. Walker further argued that there was no lawful basis 

to consider a person’s open carry of an AR-15 differently from any other lawful firearm under 

state law. 
5

The Fourth Circuit Court of Appeals disagreed. First, the court noted that in states where 

individuals are permitted to openly carry firearms, the exercise of this right, without more, cannot 

justify an investigatory detention. However, the court recognized that lawful possession of a 

firearm, “plus something more,” can contribute to reasonable suspicion that a person is involved 

in criminal activity, and therefore justify an investigatory detention. Second, the court stated that 

Supreme Court and Fourth Circuit case law has held that different firearms have different features, 

capabilities, and typical uses, which may be considered in a reasonable suspicion analysis, 

particularly when comparing handguns to AR-15 and other assault rifles.

After finding that possession of a firearm can be a circumstance justifying an investigatory

detention, the court held that Corporal Donahoe established “something more” than the fact that 

Walker was openly carrying a firearm that justified his detention. 

First, the court held that it was proper for Corporal Donahoe to consider the type of firearm that 

Walker was carrying, an AR-15-style assault rifle. Corporal Donahoe testified that such rifles 

have been “the weapon of choice for the deadliest mass shooters of the past decade,” to include 

massacres including: at a movie theater in Aurora, Colorado; at Sandy Hook Elementary School 

in Newtown, Connecticut; at a holiday party in San Bernardino, California; at the Pulse nightclub 

in Orlando, Florida; at a music festival in Las Vegas, Nevada; at a church in Sutherland Springs, 

Texas; and at Marjory Stoneman Douglas High School in Parkland, Florida. Second, the Parkland 

school shooting occurred just a week before Walker was stopped and detained while carrying an 

AR-15-style rifle. Corporal Donahoe stated that he had been on heightened alert for possible 

copycat crimes. Significantly, the Parkland shooter used an AR-15-style assault rifle to kill and 

injure his victims. Third, Walker was walking toward and within a mile of Teays Valley Christian 

School when Corporal Donahoe detained him. Fourth, Walker was dressed to look like a soldier, 

in a black sleeveless shirt and camouflage pants. Fifth, Walker was walking rather than driving, 

suggesting that he might be a minor and perhaps a student at Teays Valley Christian School. 

Based on these facts, the court held that it agreed with the district court that Corporal Donahoe 

had reasonable suspicion that Walker was intent on perpetrating a mass shooting at Teays Valley 

Christian School. The court declined to decide the issue of whether Corporal Donahoe had 

reasonable suspicion that Walker was under the age of 18 and therefore illegally carrying a 

firearm.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca4/20-1547/20-1547-

2021-07-07.pdf?ts=1625682630

*****

United States v. Rose, 3 F.4th 722 (4th Cir. 2021) 

In October 2016, drug task force agents were screening packages at a FedEx facility when they 

noticed a suspicious package. The package attracted the officers’ attention because of the type of 

box, the heavy taping used, and the sender’s location in Chandler, Arizona, which was a known 

“source city” for narcotics. The package was addressed to Ronald West and listed a phone number 

on the label. After checking a law enforcement database, the officers verified that neither the 

phone number nor the address was registered to a person named Ronald West. The officers alerted

the FedEx facility’s manager to the suspicious package, which the manager opened. The package 

contained about two kilograms of cocaine.

Several minutes later, officers saw a second package with similar characteristics, which also was 

addressed to Ronald West and had been shipped from Chandler, Arizona. When the officers had 
6

a dog trained in narcotics detection approach the package, the dog signaled an “alert.” Based on 

this alert, the officers obtained a search warrant, opened the package, and found two more 

kilograms of cocaine.

Following these discoveries, law enforcement officers coordinated a controlled delivery of both 

packages to West’s residence and conducted surveillance of the home. After the packages were 

delivered, officers observed Faruq Rose and another man, LaVonne Murray, arrive at West’s 

residence in a silver car and enter the home, before leaving shortly thereafter. However, while at 

the house, neither Rose nor Murray touched the packages that had been left on the front porch. 

When West later arrived at his residence, he entered but also did not touch the packages on the 

porch. Later that day, Rose and Murray returned to the residence, retrieved the packages, and 

departed in the silver car. The officers ultimately stopped the vehicle and arrested Rose.

The officers discovered that Rose paid his friend, Donald West, to allow the packages, which were 

addressed to West’s deceased brother, Ronald West, to be delivered to West’s house in Wallace, 

North Carolina. Rose did not live at West’s residence. Under the delivery arrangement with 

Donald West, and before delivery of the packages in this case, Rose successfully had obtained 

multiple packages addressed to Ronald West that had been delivered to the residence. Law 

enforcement was not aware of these prior deliveries.

Before trial, Rose filed a motion to suppress evidence of the cocaine found in the two searches 

conducted at the FedEx facility. Rose argued that although he was neither the sender of, nor the 

named recipient on, the packages, he nonetheless had a reasonable expectation of privacy in those 

packages because he was their intended recipient. The district court rejected Rose’s argument and 

denied his motion to suppress the evidence. Rose appealed.

The Fourth Circuit noted that both senders and recipients of letters and other sealed packages 

ordinarily have a legitimate expectation of privacy in those items even after they have been placed 

in the mail. However, when a sealed package is addressed to a party other than the intended 

recipient, that recipient does not have a legitimate expectation of privacy in the package unless he 

can establish “other indicia of ownership, possession, or control” of the package at the time of the 

search. The court added that this indicia of ownership, possession, or control can be proven if a 

defendant can show that the fictitious name is an established alias. 

In this case, the court held that Rose did not have a reasonable expectation of privacy in the 

packages addressed to Ronald West because, at the time of the searches, there were no objective 

indicia that Rose owned, possessed, or exercised control over the packages. Specifically, the court 

found that nothing about the packages, including the sender’s name, the named recipient, the 

address, or the phone number listed on the packages indicated that Rose had an interest in the 

packages. The packages were addressed to a deceased individual at a residence lacking any 

established connection to Rose. In addition, at the time of the searches, Rose had not taken 

possession of the packages.

The court further held that its holding was not altered by the fact that Rose previously had 

collected from West’s home multiple packages addressed to Ronald West using the same delivery 

scheme. The court held that Rose’s limited use of this deceased, third party’s name did not 

establish that Rose used “Ronald West” as an alias or was commonly known by that name. The 

court added there was no evidence that anyone recognized Rose by the name Ronald West, nor 

did any evidence show that Rose used the name Ronald West regularly under different 

circumstances. Consequently, the court found that the district court did not err in denying the 
7

motion to suppress because Rose failed to establish an expectation of privacy in the two packages 

at issue.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca4/19-4755/19-4755-

2021-07-09.pdf?ts=1625855420

*****

Fifth Circuit

Jackson v. Gautreaux, 3 F.4th 182 (5th Cir. 2021) 

At approximately 8:30 p.m. on February 23, 2016, Kimula Porter called 911 to report that her 

boyfriend, Travis Stevenson, physically assaulted her and her daughter with pepper spray, 

smashed a hole in the wall with a beer bottle, took her wallet, and fled from their shared apartment. 

After Stevenson left, he called and texted Porter to say he was going to commit suicide.

Around 9:50 p.m., Lieutenant Michael Birdwell located Stevenson. Stevenson was in a car, which 

was turned off and parked next to an apartment building. An SUV was parked to the left of 

Stevenson, an industrial-sized dumpster was on his right, and the building was directly in front of 

him. 

Lieutenant Birdwell parked his patrol car behind and perpendicular to Stevenson’s car, 

approached the driver’s side where Stevenson was seated, and knocked on the window. Stevenson 

ignored him at first, so Lt. Birdwell kept knocking. At this point, Stevenson turned on the car as 

if to drive away. In response, Lt. Birdwell attempted use his pocketknife to break the driver’s-side 

window and remove Stevenson from the vehicle. However, before Lt. Birdwell could remove him, 

Stevenson placed his car in reverse and slammed into Lt. Birdwell’s patrol car. The force caused 

Lt. Birdwell’s patrol car to crash into a nearby parked car and deploy its airbags. 

Seconds later, Detective Scott Henning arrived on the scene and ordered Stevenson to exit the 

vehicle. Stevenson refused to comply and repeatedly yelled “Kill me!” By this time, Lt. Birdwell 

was positioned between the front of Stevenson’s car and the apartment building. Stevenson then 

shifted the car into drive and accelerated toward Lt. Birdwell. Believing Stevenson was trying to 

run over Lt. Birdwell and that Lt. Birdwell was in a position to be injured or killed, Det. Henning 

shot his firearm toward Stevenson. The bullet didn't hit Stevenson, instead it hit one of the 

windows. As Stevenson accelerated toward him, Lt. Birdwell jumped back and hit the parked 

SUV. Stevenson crashed into a pole in front of the apartment building. He then shifted back into 

reverse and slammed into Lt. Birdwell’s patrol car again.

Shortly thereafter, several other officers arrived on the scene. One officer fired two or three shots 

into the driver’s-side tire in an attempt to disable the vehicle. The shots didn’t stop Stevenson, 

who accelerated forward and then back into Lt. Bidwell’s patrol car again and again. While 

Stevenson was oscillating between the apartment building and the patrol unit, Lt. Birdwell was 

trapped in Stevenson’s path. Eventually, officers opened fire on the vehicle. Stevenson sustained 

seven gunshot wounds and was pronounced dead on the scene. The entire episode, from the time 

Lt. Birdwell spotted the car, to the time officers notified dispatch that Stevenson was down, lasted 

85 seconds.

Stevenson’s estate (Plaintiffs) sued the officers under 42 U.S.C. § 1983. The plaintiffs alleged that 

the officers used excessive force to seize Stevenson in violation of the Fourth Amendment. The 
8

district court disagreed, holding that the officers were entitled to qualified immunity. Plaintiffs 

appealed.

To determine whether an officer is entitled to qualified immunity, the first question the court will 

ask is whether the officer violated a constitutional right. The second question the court will ask is 

whether the constitutional right at issue was clearly established at the time of the incident. In this 

case, the Fifth Circuit Court of Appeals found that it needed only to resolve the first question, as 

the plaintiffs could not show a Fourth Amendment violation for excessive force.

An officer’s use of force must be objectively reasonable. A court will consider the severity of the 

crime, the immediacy of the threat posed by the suspect, and whether the suspect is actively 

resisting arrest or trying to flee. In addition, when considering the reasonableness of using deadly 

force, the court will consider whether the suspect poses a threat of serious physical harm to the 

officer or others. 

In this case, the court held that the officers’ use of force was objectively reasonable for three 

separate reasons. First, Stevenson was using his car as a weapon. Second, Stevenson exhibited 

volatile behaviors that contributed to the officers’ justification in firing to prevent death or great 

bodily harm to Lt. Birdwell. Specifically, before the incident, Stevenson was drinking and using 

drugs; he pepper sprayed his girlfriend and her daughter in a fit of rage; he stole his girlfriend’s 

wallet and drove away while intoxicated; he repeatedly told his girlfriend and the officers that he 

was suicidal; he repeatedly yelled, “Kill me!” at one officer while ignoring commands from other 

officers; and he repeatedly rammed his car into a patrol unit and a concrete pillar while only inches 

away from hitting Lt Birdwell. Third, the plaintiffs did not produce any evidence that suggested 

the officers might have had a reasonable alternative course of action. 

When asked at oral argument for a reasonable alternative, plaintiffs’ counsel said that officers 

should have “step[ped] back and allow[ed] Mr. Stevenson to finish the episode, and then they 

could have acted.” The court found that to be “absurd,” as Lt. Birdwell was inches from the front 

left bumper of Stevenson’s car while he was repeatedly driving it backwards and forwards and 

violently crashing into things. The court added that “whatever reasonable alternatives officers 

might've had, doing nothing and praying for the best [was] not one of them.”

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca5/20-30442/20-

30442-2021-07-01.pdf?ts=1625151615

*****

Seventh Circuit

United States v. Tuggle, 2021 U.S. App. LEXIS 20841 (7th Cir. IL July 14, 2021) 

Between 2013 and 2016, several law enforcement agencies investigated a large methamphetamine 

distribution ring in central Illinois. As part of their investigation, officers installed three cameras 

on public property that viewed Travis Tuggle’s home. Officers mounted two cameras on a pole 

in an alley next to Tuggle’s residence and a third on a pole one block south of the other two 

cameras. The first two cameras viewed the front of Tuggle’s home and an adjoining parking area. 

The third camera also viewed the outside of Tuggle’s home but primarily captured a shed owned 

by another member of the ring. Together, the three cameras captured almost eighteen months of 

footage by recording Tuggle’s property between 2014 and 2016. 
9

While in use, the cameras recorded around the clock. Rudimentary lighting technology improved 

the quality of overnight footage, although the cameras did not have infrared or audio capabilities. 

Officers could also remotely zoom, pan, and tilt the cameras and review the camera footage in 

real time, though the footage captured only the exterior of Tuggle’s house. While officers 

frequently monitored the live feed during business hours, they could later review all the footage 

at other times. In addition, the cameras had the practical advantage of enabling the officers to 

surveil Tuggle’s home without conspicuously deploying agents to perform traditional visual or 

physical surveillance on the lightly traveled roads of Tuggle’s residential neighborhood.

The cameras provided substantial video evidence that supported the belief that Tuggle and others 

were trafficking methamphetamine. Specifically, the officers accumulated over 100 instances of 

what they suspected were deliveries of methamphetamine to Tuggle’s residence. Camera footage 

depicted individuals arriving at Tuggle’s home, carrying various items inside, and leaving only 

with smaller versions of those items or sometimes nothing at all. After these suspected “drops,”

different individuals would soon arrive, enter the home, and purportedly pay for and pick up 

methamphetamine. Several witnesses corroborated these activities. Relying heavily on the video 

evidence, the officers obtained and executed search warrants on several locations, including 

Tuggle’s house. A grand jury subsequently indicted Tuggle on two drug-related offenses. 

Prior to trial, Tuggle filed a motion to suppress the evidence obtained from the pole cameras, 

arguing that the use of the cameras constituted a warrantless search in violation of the Fourth 

Amendment. After the district court denied the motion, Tuggle entered a guilty plea. However, 

Tuggle reserved his right to appeal the court’s denial of his motion to suppress the pole camera 

evidence. 

On appeal, Tuggle first argued that the warrantless pole camera surveillance, regardless of the 

length of that surveillance, violated the Fourth Amendment. 

The Seventh Circuit Court of Appeals held that the isolated use of pole cameras on public 

property, without a warrant, to observe Tuggle’s home, did not violate the Fourth Amendment. A 

person’s expectation of privacy generally does not extend to what a person “knowingly exposes 

to the public, even in his own home.” In this case, the court noted that Tuggle knowingly exposed 

the areas captured by the three cameras. Specifically, the outside of his house and his driveway, 

which were plainly visible to the public. In addition, the court reasoned that the officers only used 

the cameras, a technology that is in “general public use,” to identify who visited Tuggle’s house 

and what they carried, all things that a theoretical officer could have observed without a camera. 

Consequently, the court held that Tuggle did not have a reasonable expectation of privacy in what 

happened in front of his home. The court added that the Fourth and Tenth Circuit Courts of 

Appeals have considered the use of cameras by police officers to observe the exterior of private 

homes and have held such uses to be constitutional. 

Second, Tuggle argued that the prolonged and uninterrupted use of the pole cameras to conduct 

continuous surveillance of his house, for a period of approximately eighteen months, constituted 

a Fourth Amendment violation, under the “mosaic theory.”

The court noted that Tuggle’s argument was based on the belief that the “government can learn 

more from a given slice of information if it can put that information in the context of a broader 

pattern, a mosaic.” The court stated that while it has garnered some passing endorsements from 

several Supreme Court justices in various opinions, the “mosaic theory” has not been adopted by 

the Court and the Court has not required the lower courts to apply it. 
10

The court added that, even if it was bound to apply it, the pole camera surveillance in this case 

would not have constituted a search under the mosaic theory. In the cases where the mosaic theory 

was discussed, the Supreme Court was concerned with types of surveillance, like GPS tracking, 

that could create “a precise comprehensive record of a person’s public movements,” which would 

reveal “a wealth of detail” about a person’s “familial, political, professional, religious, and sexual 

associations.” In this case, the court recognized that the pole cameras captured an important sliver 

of Tuggle’s life, but they did not paint an exhaustive picture of his every movement that concerned 

the Supreme Court in other cases. Unlike GPS and other technologies, the pole cameras exposed 

no details about where Tuggle traveled, what businesses he frequented, with whom he interacted 

in public, or whose homes he visited. If anything, instead of capturing Tuggle’s public 

movements, the pole cameras only highlighted Tuggle’s lack of movement, as they did not reveal 

what occurred when Tuggle left his home. 

Next, the court recognized that the constitutionality of prolonged pole camera surveillance

presented an issue of first impression in the Seventh Circuit. However, the court commented that 

no other federal circuit court of appeals has held that a Fourth Amendment search occurred based 

on long-term use of pole cameras on public property to view plainly visible areas of a person’s 

home. The court agreed with the rationale behind these holdings and affirmed the district court’s 

denial of Tuggle’s motion to suppress the pole camera evidence. 

In conclusion, the court added that the Fifth Circuit Court of Appeals held that the government’s 

use of a pole camera for more than thirty days to record the exterior of the defendant’s home

constituted a search under the Fourth Amendment. Significantly, however, the government 

positioned the camera in that case to look over a ten-foot-tall fence and capture images unviewable 

to passersby. Finally, the court noted that several federal district courts outside the Seventh 

Circuit, as well as several state appellate and supreme courts have found that the use of pole 

cameras for varying durations violates the Fourth Amendment. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca7/20-2352/20-2352-

2021-07-14.pdf?ts=1626289227

*****

Eighth Circuit

United States v. Thompson, 2021 U.S. App. LEXIS 22041 (8th Cir. MO July 26, 2021)

Police officers had an arrest warrant for Tyreese Thompson for robbery. At the time, officers 

knew Thompson was a convicted felon and that he was suspected of being involved in a gunfight 

in 2014 and stealing guns from a pawnshop in 2016. A confidential informant told the officers 

that Thompson was at a house that belonged to his girlfriend. The officers went there to arrest 

him.

Officers knocked on the door, announced themselves, and called Thompson’s name. They saw 

window blinds move and heard sounds of people walking and moving things inside the house. 

Officers continued to knock and call for six to eight minutes. A man, later identified as George 

Richards, finally answered the door with an aggressive dog. Officers asked Richards to restrain 

the dog, and he dragged it away, leaving the door open. An officer then saw Thompson peek out 

from inside the house, so he ordered him to show his hands. Thompson instead retreated around 

a corner, but eventually he came out and surrendered. When he was arrested and put in a police 

car, officers saw dirt and spider webs on his arms, shirt, and the back of his head.
11

Richards then emerged. Police asked him twice whether anyone else was inside, but he did not 

answer right away. Then he said, “Nobody else that I know of.” Officers were not sure of this 

because of his reluctance to answer, his odd response, the information suggesting Thompson’s 

girlfriend lived there, the sounds from inside, and the long delay in answering the door. Concerned 

about “some sort of an ambush,” the officers told Richards that they would do a protective sweep 

of the home. Richards did not object.

During the ten-minute sweep, police looked into a back-bedroom closet and noticed an attic access 

panel in the ceiling and a scuff mark on the wall. Worried that someone went into the attic, an 

officer guarded the closet until the house was cleared. Afterward, the officers opened the attic 

access panel and saw disturbed cobwebs and guns.Richards claimed that he either owned or rented 

the house but denied knowing about the guns. He agreed to a search of his house. Richards said 

that Thompson was dropped off at the house the day before and did not live there. Richards also 

said that Thompson spent the night and slept in the room with the attic access. When officers went 

into the attic again, they recovered four guns.

The government charged Thompson with being a felon in possession of a firearm, for the guns 

seized from the attic. Thompson filed a motion to suppress the firearms, which the district court 

denied. Thompson was convicted. On appeal, he argued that the officers violated the Fourth 

Amendment because they had no authority to conduct a protective sweep of the home after he 

voluntarily came out of the house and was in the police car. 

In Maryland v. Buie, the Supreme Court held that police officers may conduct a protective sweep 

of a house for unknown individuals who may pose a threat to officers as they “effectuate an arrest.” 

Officers conducting a protective sweep must “possess a reasonable belief based on specific and 

articulable facts which, taken together with the rational inferences from those facts, reasonably 

warranted the officer in believing . . . that the area swept harbored an individual posing a danger 

to the officer or others.” Although Buie does not allow officers to conduct a protective sweep to 

locate weapons or contraband, officers may seize any “immediately apparent” contraband that is 

“in plain view” while performing the sweep.

In this case, the Eighth Circuit Court of Appeals held that the officers were justified in performing 

a sweep. First, Thompson was suspected of stealing several guns from a pawn shop in a burglary, 

committing a robbery, and possessing a handgun during a gunfight. Based on these facts, the court 

reasoned that Thompson could have left guns behind in the house for another person to use against 

officers. Second, after announcing their presence, officers were forced to wait for minutes while 

the blinds on either side of the door moved and they heard movement, and possible preparation 

for an attack inside. Third, officers thought the house belonged to Thompson’s girlfriend, who 

was not located. Fourth, after Richards was asked whether anyone else was still in the house, he 

was silent at first and then gave the odd, ambiguous answer that there was “nobody else” in the 

home “that he knew of.” The court concluded that Richards’s initial reluctance and his unusual 

response strengthened the officers’ suspicion that potentially dangerous people remained in the 

house. Fifth, Thompson was covered in dust and cobwebs, suggesting that he had just been in a 

dusty place like an attic or basement. The court held that these facts support the reasonable belief 

that “someone else could be inside posing a danger to [officers] during or following the arrest.” 

Finally, the court held that extending the sweep to the closet and then to the attic after seeing the 

scuff mark was reasonable. The court noted that sweeping a space that requires a boost or ladder 

to access, like an attic, is at the outer boundary of the protective sweep doctrine; but we think the 

officers’ conduct in this case was reasonable.
12

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca8/20-1228/20-1228-

2021-07-26.pdf?ts=1627313420

*****

United States v. Sanders, 2021 U.S. App. LEXIS 21065 (8th Cir. IA July 16, 2021) 

An eleven-year old girl, N.R., called her grandmother and said that her mother, Karina LaFrancois 

and her mother’s boyfriend, Kenny Sanders were “fighting really bad” and that “they needed 

someone to come.” The grandmother called 911, reported what N.R. had told her and told the 

operator that two additional minor children, ages seven and one, were inside the residence.

When officers arrived at LaFrancois’ house, one of them saw N.R. “acting excited” and gesturing 

through an upstairs window. The officers knocked on the front door and LaFrancois came outside 

to talk to them. LaFrancois told the officers that everything was okay, even though LaFrancois 

was visibly upset and had red marks on her face and neck. The officers told LaFrancois that they 

needed to talk to Sanders. LaFrancois offered to have Sanders speak with the officers outside. 

The officer initially agreed to allow LaFrancois to go inside and get Sanders; however, when she 

opened the door, the officers heard crying inside. At that point, the officers decided to enter the 

house to make sure that everyone was safe. 

Upon entering, the officers saw Sanders and LaFrancois standing just inside the doorway and a 

crying infant located in a nearby playpen. One of the officers went upstairs to check on N.R. 

while another officer directed Sanders to sit on the couch. N.R. told the officer that during the 

fight with Sanders, she heard her mother yelling, “Put the gun down!” N.R. told the officer that 

the gun might be in a specific drawer downstairs. The officer checked the drawer, but he did not 

find a gun. The officer then spoke with LaFrancois who stated that the gun might be “in the 

couch.” The officer asked Sanders to get off the couch and discovered a handgun in the couch 

cushions.

The government charged Sanders with possession of a firearm by a prohibited person, in violation 

of 18 U.S.C. §§ 922(g)(1), 922(g)(9), and 924(a)(2). Sanders argued that the officers’ warrantless 

entry into the house and the search of his couch for the gun violated the Fourth Amendment.

In April 2020, the Eighth Circuit Court of Appeals affirmed Sanders’s conviction. The court held 

that the warrantless entry into the house was reasonable under the community caretaking 

exception to the Fourth Amendment’s warrant requirement.

In May 2021, in Caniglia v. Strom, the Supreme Court held that there is no standalone community 

caretaker doctrine that justifies warrantless searches and seizures in the home. In light the Court’s 

holding in Caniglia, Sanders appealed. The Supreme Court vacated Sanders’s conviction and 

remanded the case the Eighth Circuit. The Court emphasized that while it rejected the community 

caretaker exception as it related to warrantless searches and seizures in the home, another 

exception to the warrant requirement might apply in this case. 

On remand, the Eighth Circuit Court of Appeals held that the officers’ warrantless entry into 

Sanders’s house was reasonable under the exigent circumstances exception to the warrant 

requirement. Under this exception, an officer may enter a home without a warrant if he has an 

objectively reasonable basis to believe that entry is necessary “to render emergency assistance to 

an injured occupant or to protect an occupant from imminent injury.” 
13

In this case, the court held that the facts known to the officers when they decided to enter the 

house included: 1) the information from the 911 call; 2) the officers’ observations when they 

arrived; and 3) the information provided by N.R. and LaFrancois. Based on these facts, the court 

concluded that it was reasonable for the officers to believe that an emergency situation existed 

that required their immediate attention by entering the house to either provide emergency 

assistance to the child who was heard crying or to prevent an imminent assault on the daughter 

who had reported the incident. 

The court further held that exigent circumstances justified the officer’s warrantless search to locate 

and secure the gun because: 1) “domestic disturbances are highly volatile and involve large risks”;

2) the officer had an objectively reasonable belief that a gun was inside the house; and 3) the 

officer limited his search to areas where the gun might have been placed. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca8/19-1497/19-1497-

2021-07-16.pdf?ts=1626449449

*****

United States v. Shipton, 2021 U.S. App. LEXIS 21852 (8th Cir. MN July 23, 2021)

Peer-to-peer networks provide common forums for those who trade child pornography on the 

Internet. Users may connect to a peer-to-peer network and share files on their computer with 

others. Law enforcement agencies have developed programs that mimic ordinary users of peerto-peer networks that are designed to help identify child-pornography purveyors. Like ordinary 

participants in the network, officers can search for and obtain child pornography from other users. 

In addition, officers can also compare a retrieved file’s “hash value,” which is essentially a 

particular file’s digital signature, with the hash values of files known to contain child pornography. 

When the values match, officers can almost always be assured that the file at issue contains child 

pornography.

In this case, a Minneapolis police officer used a program called RoundUp eMule to search for 

users on a peer-to-peer network who were sharing child pornography. The officer downloaded 

part of a file, a video that played for twenty to thirty seconds, from an IP address in or around St. 

Paul, Minnesota. Using the file’s hash value, the officer was able to obtain the complete file and 

determined that it contained child pornography.

After subpoenaing the relevant internet service provider, the officer learned that Christopher 

Shipton was the person associated with the IP address. The officer further discovered that Shipton 

was a registered sex offender who was convicted in June 2015 of possessing child pornography. 

Further, a search of the Child Protection System database, which is a database that “compiles hash 

values of previously identified child pornography and documents hits that have occurred for 

certain IP addresses,” revealed that Shipton had advertised 92 known or suspected child 

pornography files near the time the officer here was investigating him. These 92 files were 

uncovered by programs similar to RoundUp eMule known as G2Scanner and Nordic Mule. Based 

on this information, a Minnesota state court issued a search warrant for Shipton’s home, where 

officers found additional digital files containing child pornography.

The government charged Shipton with possession of child pornography. Shipton filed a motion 

to suppress the evidence seized during the search. Shipton argued that the officer who used the 

RoundUp eMule program to download the initial file had conducted a warrantless search in 

violation of the Fourth Amendment. Shipton claimed that the officer violated his reasonable 
14

expectation of privacy in the anonymous communications he made on the network. Shipton also 

requested that the software the officer used to facilitate the sharing be tested to ensure it was 

reliable and that it did not gain access to private areas of Shipton’s computer. The district court 

denied Shipton’s motion and upon conviction he appealed.

The Eighth Circuit Court of Appeals affirmed Shipton’s conviction. First, the court stated, “we 

have held numerous times that a defendant has no objectively reasonable expectation of privacy 

in files he shares over a public peer-to-peer network, including those shared anonymously with 

law enforcement officers.” The court added that the First, Fourth, Fifth, and Ninth circuits have 

reached the same conclusion in similar cases. 

Next, the court addressed Shipton’s concern about the government’s “dragnet surveillance” 

through programs like RoundUp eMule and vast databases of known hash values that connect

known or suspected child pornography to IP addresses where those files were offered for sharing. 

The court noted that these programs and databases contain only information that users of peer-topeer networks have deliberately chosen not to keep private. 

Finally, the court held that the evidence in the record established the programs used by the officer 

operated reliably, did not access private areas of Shipton’s computer, and that Shipton did not 

offer any reason to conclude otherwise. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca8/20-2570/20-2570-

2021-07-23.pdf?ts=1627054245

*****

Tenth Circuit

United States v. Woodard, 2021 U.S. App. LEXIS 22443 (10th Cir. OK July 26, 2021) 

An individual called the police and stated that Evan Woodard had violated a protective order, that 

he was “fighting a huge drug case,” may have smoked PCP, and that he had three previous gun 

cases. After talking to the caller, the police discovered that Woodard had an outstanding warrant 

for misdemeanor public intoxication. Based on this information, officers began looking for 

Woodward, planning to serve him with the protective order and execute the warrant. 

Officers found Woodard in Tulsa, Oklahoma, at about 8:00 a.m. and initiated a traffic stop (the 

Tulsa stop). Woodard pulled into a parking lot at a QuikTrip convenience store and stopped there. 

The officers told Woodard to get out of the car, arrested him based on the warrant, and took his 

cellphone. Woodard then asked if he could call someone to pick up the car. One of the officers 

responded, “I don't think so.” The officers decided to impound Woodward’s car pursuant to the 

Tulsa Police Department’s standardized impoundment policy. This policy generally restricts 

impoundment to removal of vehicles from a public way, but it allows impoundment from private 

property when the traffic stop follows an offense committed on a public way. 

Two officers then opened the front doors and began to search the car. One officer looked in the 

panel on the driver’s side door and on the floor under the driver’s seat, saying that Woodard was 

“fighting a huge drug case.” The other officer replied that Woodard liked PCP. As the officer 

replied, he opened the center console, stating that he was looking for verification of car insurance, 

while expressing doubt that Woodward had insured the car. After seeing no verification in the 

center console, he eventually found proof of an old insurance policy in the glove compartment. 
15

By then, however, another officer had found marijuana, cocaine, a digital scale, and a gun. With 

that evidence, the police obtained a warrant allowing access to text messages on Woodard’s 

cellphone. Those text messages provided evidence of drug dealing.

Based on the messages found on the cellphone, the government charged Woodward with drug and 

firearm-related crimes stemming from the Tulsa traffic stop and from a previous stop in which 

drug evidence had been seized from his car. 

Woodward filed a motion to suppress the evidence found during the Tulsa stop, including the 

drugs, the gun, his cellphone, and a digital scale. Woodward argued that: 1) the Tulsa Police 

Department’s policy had not authorized impoundment of his car because he had not committed 

an offense on a public way, and 2) the officers ordered impoundment as a pretext to search vehicle 

for criminal evidence. The district court denied the motion and Woodward appealed.

The Tenth Circuit Court of Appeals agreed with Woodward. First, the court held that the Tulsa 

Police Department’s standardized impoundment policy did not authorize the impoundment of 

Woodard’s car. The officers stopped Woodward to serve a protective order and execute a warrant 

for public intoxication. The stop occurred in the QuikTrip parking lot, which the government did 

not dispute was private property. As such, the court reasoned that the policy only permitted the 

officers to impound Woodard’s vehicle from private property “when the offense the vehicle was 

initially stopped for occurred on a public way.” The court held that the stop of Woodard to serve 

the protective order and to execute the arrest warrant for public intoxication did not constitute an 

“offense.” Because no offense took place on a public way, the court held the policy did not allow 

the officers to impound Woodard’s vehicle. 

Next, the court held that the officers’ decision to impound Woodard’s vehicle was pretextual. An 

impoundment is pretextual when the police are seeking evidence of a criminal violation rather 

than acting to safeguard the vehicle or its contents to promote public safety or convenience. In the 

Tenth Circuit, five factors are considered to determine the possibility of pretext: 

1) Whether the car is on private or public property;

2) Whether the property owner has been consulted;

3) Whether an alternative to impoundment exists, especially the availability of someone else 

to drive the car;

4) Whether the car is implicated in a crime; and 

5) Whether the driver or owner has consented to the impoundment.

In reviewing these factors, the court concluded that every factor pointed to pretext. First, 

Woodard’s vehicle was on private property, where public safety and convenience are less likely 

to be at risk. Second, the officers did not consult the QuikTrip employees to see if they wanted 

the vehicle impounded. Third, the officers had an alternative to impoundment, as Woodard asked 

the officers if he could call someone. However, the officers refused, without providing an 

explanation. The court added that neither party raised the issue of whether the police have a duty 

to allow an arrestee to contact someone else to pick up a vehicle before impounding it. Regardless, 

the court noted this issue had nothing to do with whether alternatives existed to impoundment. 

Fourth, the government conceded that the vehicle was not implicated in a crime, so there was no 

need to preserve evidence by impounding the car. Finally, Woodard did not consent to 

impoundment. 
16

The court further held that the officers’ comments and actions showed pretext. First, before 

searching the vehicle, while discussing how to proceed, an officer declared his intent to “friggin 

light [Mr. Woodard] up with whatever we can.” Next, as the officers started the search, one officer 

said that Woodard was fighting a big drug case and facing three gun charges. Third, another 

officer commented that Woodard liked PCP, adding that he began his search in the center console 

area because Woodard had been “digging around” there. Finally, an officer repeatedly stated that 

he was searching the vehicle for a valid insurance card despite expressing doubt that one existed 

and without asking Woodard for an updated card, contacting the insurance company, or checking 

an available database. The court found that these comments and actions showed the officers’ 

intent to look for criminal evidence rather than to safeguard the vehicle and its contents. 

Because the Tulsa Police Department’s standardized policy did not apply and the officers’ stated

reasons for impoundment of Woodard’s vehicle was pretextual, the court held that the district 

court erred in denying the motion to suppress the evidence found during the search.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca10/20-5004/20-5004-

2021-07-26.pdf?ts=1627313460

*****