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July 2014

THE

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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 

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This edition of The Informer may be cited as 7 INFORMER 14.
In This Issue 

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Case Summaries

Circuit Courts of Appeals

 Click Here

2nd Circuit 3rd Circuit 4th Circuit

5th Circuit 7th Circuit 8th Circuit

10th Circuit 11th Circuit 

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July 2014

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1. Law of Video Surveillance

1-hour webinar presented by Bruce-Alan Barnard, FLETC Legal Division

This course will review statutory and case law concerning video surveillance.

Date and Time:

Tuesday July 29, 2014: 10:30am EDT

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2. United States Supreme Court Wrap-Up: 2013 Term

1-hour webinar presented by Ken Anderson and John Besselman, FLETC Legal Division

This webinar will review nine United States Supreme Court cases decided in the October 2013 Term 

that affect law enforcement officers. The cases are: Fernandez v. California, U.S. v. Apel, 

U.S. v. Castleman, Navarette v. California, Wood v. Moss, Plumhoff v. Rickard, Abramski v. U.S., 

Riley v. California and U.S. v. Wurie. 

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CASE SUMMARIES

Circuit Courts of Appeal

2nd Circuit

United States v. Ganias, 2014 U.S. App. LEXIS 11222 (2d Cir. Conn. June 17, 2014)

Ganias owned an accounting business that provided services to a client who had contracts with the 

federal government. After receiving a tip the client was involved in criminal activity, federal 

investigators obtained a warrant to search Ganias’ offices for accounting records related to the client. 

As a result, in November 2003, the investigators made mirror images of Ganias’ computers’ hard 

drives. The mirror images included copies of every file on Ganias’ computers, including files 

containing Ganias’ personal financial records, which were beyond the scope of the search warrant. 

In December 2004, investigators isolated and extracted the computer files that were covered by the 

search warrant. However, the investigators did not purge or delete Ganias’ personal financial records

from the mirror images that were not related to their investigation. 

In April 2006, investigators obtained a warrant to search the mirror images for Ganias’ personal 

financial records. As a result, investigators discovered evidence that was introduced against Ganias at

his trial for income tax evasion.

Ganias was convicted. On appeal, Ganias argued the government violated the Fourth Amendment 

when the investigators seized his personal computer records in November 2003 and then retained 

them for more than two and one half years before obtaining a warrant to search them in April 2006. 

The court agreed, concluding the unauthorized seizure and retention of Ganias’ personal financial 

records was unreasonable. The search warrant issued in 2003 did not authorize the seizure of Ganias’ 

personal financial records. By December 2004, Ganias’ personal records had been separated from 

those relevant to the federal investigation. Nevertheless, the government continued to retain Ganias’ 

personal records until it developed probable cause to search and seize them in April 2006. Without 

some independent basis for retaining those documents, the court held the government violated 

Ganias’ Fourth Amendment rights by retaining his personal financial files for a prolonged period of 

time and then using them in a future criminal investigation. 

Click HERE for the court’s opinion.

*****

3rd Circuit

United States v. Stanley, 2014 U.S. App. LEXIS 10833 (3d Cir. Pa. Jan. 7, 2014)

A police officer investigating the online distribution of child pornography discovered a computer on 

the Gnutella peer-to-peer network sharing files he believed contained child pornography. The officer 

determined the computer’s Internet protocol (IP) address and the subscriber to whom the computer

was assigned (the Neighbor). However, when the officer executed a search warrant, he discovered 

none of the Neighbor’s computers contained child pornography or the Gnutella file sharing software. 

4
When the investigator learned the Neighbor’s Internet router was not password-protected, he 

suspected another person was connecting wirelessly, or mooching, the Neighbor’s Internet connection 

without permission. With the Neighbor’s consent, the officer connected a police computer to the 

Neighbor’s router, which allowed the officer to determine the media access control (MAC) address 

and IP address of any other device that connected to the router. 

A few weeks later, the officer was alerted that a computer sharing child pornography was mooching 

the Neighbor’s Internet connection. The officer determined the MAC and IP addresses of the 

mooching computer. The officer went to the Neighbor’s house and using free mobile tracking 

software called MoocherHunter tried to locate the computer that was accessing the Neighbor’s router. 

By using MoocherHunter and a directional antenna, the officer measured the signal strength of the 

radio waves emitted from the MAC card of the mooching computer. The officer discovered 

MoocherHunter’s readings were strongest when he aimed the antenna at a six-unit apartment complex 

across the street from the Neighbor. When the officer stood on a public sidewalk in front of the 

apartment building, MoocherHunter’s readings were strongest when the officer aimed the antenna 

directly at Stanley’s apartment. Based on this information, the officer obtained a warrant to search 

Stanley’s apartment. The officer seized Stanley’s computer and later recovered numerous images and 

video files depicting child pornography. 

Stanley argued the officer violated the Fourth Amendment when he used MoocherHunter to trace 

Stanley’s wireless signal back to the interior of his apartment. 

The court disagreed. Stanley intentionally sent a wireless signal from his computer to the Neighbor’s 

router every time he logged on to the Neighbor’s Internet connection. Once this occurred, the 

Neighbor’s router relayed data to the Internet service provider (ISP) and back to Stanley’s computer 

without either the Neighbor’s or the ISP’s knowledge or consent. Under these circumstances, the 

court found Stanley was, in effect, a virtual trespasser. Consequently, the court held Stanley had no 

reasonable expectation of privacy in the wireless signal emitted from his computer while he 

committed this virtual trespass. In addition, the court noted that MoocherHunter revealed only the 

path of the radio waves that were mooching the Neighbor’s Internet connection and not their content. 

Click HERE for the court’s opinion.

***** 

4th Circuit

United States v. Saafir, 2014 U.S. App. LEXIS 10847 (4th Cir. N.C. June 11, 2014)

A police officer stopped Saafir for speeding and driving a car with excessively tinted windows. 

During the stop, the officer saw a hip flask commonly used to carry alcohol in the pocket of the 

driver’s side door. After the officer issued Saafir warning tickets and returned his identification 

documents, the officer asked Saafir for consent to frisk him. Saafir consented, but the frisk revealed 

nothing. The officer then asked Saafir if he could search Saafir’s car, but Saafir refused. After Saafir 

refused to consent to a search of the car a second time, the officer told Saafir he had probable cause to 

search the car based on the presence of the hip flask, as a state statute made it a violation for a person 

to possess an alcoholic beverage other than in the manufacturer’s original container. Having declared 

his authority and intent to search the car, the officer asked Saafir if there was anything he should 

know about inside the car. Saafir told the officer there “might” be a gun in the car. The officer 

searched the car and found a gun in the glove compartment. The officer never touched the flask and 

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there was no evidence Saafir had been drinking. Saafir was convicted of being a felon in possession 

of a firearm. 

The court noted it is well settled that a search or seizure is unreasonable if it is premised on a law 

enforcement officer’s misstatement of his authority. On appeal, the government conceded the 

presence of the hip flask in the door pocket did not establish probable cause to search Saafir’s car. 

However, it was only after the officer told Saafir that he had probable cause to search the car that 

Saafir admitted to the presence of the gun in the car. Consequently, the court held the officer’s false 

assertion of his authority to search the car tainted Saafir’s incriminating statements as well as the 

subsequent search of the car. Therefore, Saafir’s incriminating statement and the gun discovered in 

the glove compartment should have been suppressed. 

Click HERE for the court’s opinion.

*****

5th Circuit

United States v. Boche-Perez, 2014 U.S. App. LEXIS 11309 (5th Cir. Tex. June 17, 2014)

At approximately 9:10 a.m., Customs and Border Patrol (CBP) agents detained Perez for secondary 

inspection at the Laredo Port of Entry after an identification check revealed Perez was a suspected 

narcotics smuggler. At 12:40 p.m., CBP agents found DVDs containing child pornography in Perez’s 

luggage. An agent with Immigration and Customs Enforcement (ICE) arrived, interviewed Perez and 

received confirmation from an Assistant United States Attorney at 3:22 p.m. that the government 

would prosecute Perez. The ICE agent arrested Perez and turned him over to a CBP agent so Perez

could be processed for admission into the United States. At 4:15 p.m. Perez admitted to the CBP 

agent that he knew the DVDs in his luggage contained child pornography. Afterward, the CBP agent 

prepared a written statement containing Perez’s admission, which Perez reviewed and signed at 6:00 

p.m. At 9:00 p.m., CBP informed ICE that Perez had confessed and was ready for transport to jail. 

Before transporting Perez, an ICE agent questioned Perez again. Perez admitted to the ICE agent that 

he possessed more child pornography at his home in Arkansas. The ICE agent booked Perez into jail 

at 11:40 p.m. Perez spent two nights in jail before he was presented to the magistrate judge. 

Perez argued his three confessions should have been suppressed because the ICE agent unreasonably 

delayed his presentment to the magistrate judge. Perez further argued his confessions should have 

been suppressed because they were involuntary. 

Rule 5 of the Federal Rules of Criminal Procedure requires that “a person making an arrest within the 

United States must take the defendant without unnecessary delay before a magistrate judge.” 18 

U.S.C. § 35019(c) further provides that a court may not suppress a confession made during a six-hour 

safe harbor period solely due to a delay in presentment if the confession was made voluntarily. 

However, confessions obtained outside the six-hour safe harbor may be excluded if the delay in 

presentment was unreasonable. In addition, when determining whether a delay was reasonable, the 

court examines the delay at the time of the confession, not when the defendant actually was presented 

to the magistrate judge. 

Here, the district court found the six-hour safe harbor began at 9:10 a.m., which the government did 

not contest, and expired at 3:10 p.m. As a result, the court concluded Perez’s three confessions 

occurred outside the six-hour safe harbor. 

6
Nonetheless, the court held the government’s delay in not presenting Perez by 4:15 p.m., the time of 

his oral confession, was reasonable. The court found during this time CBP agents were processing 

Perez for entry and searching his luggage. Once the DVDs were discovered, the ICE agent was 

notified. The ICE agent then investigated the alleged crime and notified the AUSA. Finally, the ICE 

agent had to prepare, review and submit a criminal complaint to the AUSA. After the ICE agent 

finished, CBP still had to administratively process Perez for immigration purposes before Perez could 

be transported to the jail. 

After Perez’s oral confession at 4:15 p.m., the CBP agent drafted a written confession, which Perez 

reviewed and signed at 6:00 p.m. The court held the government’s delay in not presenting Perez by 

6:00 p.m. was reasonable while the CBP agent was transferring Perez’s oral confession into writing. 

Finally, the court did not rule on the delay concerning Perez’s 9:00 p.m. confession. The court found 

the record was not clear and any error in admitting this confession was harmless as Perez did not 

plead guilty to any of those additional offenses. 

The court further held that Perez’s confessions were voluntary. First, there was no evidence to show 

the delay in presentment was designed to obtain a confession from Perez. Second, immediately after 

waving his Miranda rights, Perez admitted to the CBP agent that he knew the DVDs in his luggage 

contained child pornography and then Perez signed a written statement to that effect. 

Click HERE for the court’s opinion.

*****

7th Circuit

United States v. Valley, 2014 U.S. App. LEXIS 11808 (7th Cir. Wis. June 18, 2014)

In September 2010, a police officer using file-sharing software downloaded files containing child 

pornography from an IP address assigned to Valley’s mother, Jenson. In May 2011, a state court 

judge issued a warrant to search computers, digital storage devices and other related items found at 

Jenson’s house. When police officers arrived at Jenson’s house, the officers located Valley in the 

basement and handcuffed him. Once the house was secured, ten minutes later, the officers removed 

Valley’s handcuffs and allowed him to get dressed. The officers told Valley he was not under arrest 

and that he could leave at any time. Valley elected to remain at the house where he smoked, drank 

sodas and used the bathroom during the 5 1⁄2 hours the officers searched the house. During this time, 

Valley made incriminating statements to the police officers. After discovering child pornography on 

his computer, the government indicted Valley.

Valley claimed his incriminating statements should have been suppressed because the officers failed 

to provide him Miranda warnings. Valley also argued the search warrant did not establish probable 

cause that Valley still possessed images of child pornography, as eight months had elapsed since the 

officer last downloaded child pornography from his computer. 

The court held Valley was not entitled to Miranda warnings because Valley was not in custody for 

Miranda purposes. First, the officers never drew their guns or threatened Valley. Second, the 

officers told Valley, after the house was secured, that he was free to leave. Third, the officers allowed 

Valley to smoke, drink soda, and move around the house without restraints. The court concluded a 

reasonable person in these circumstances would have felt free to leave. 

7
The court further held the information in the search warrant affidavit was not stale; therefore, the 

officers established probable cause Valley possessed child pornography. In the search warrant 

affidavit, the officer acknowledged the eight-month delay and stated that in “almost every instance” 

when multiple months separate the discovery of child pornography and the issuance of a warrant, the 

images remain on the computer even if the computer moves or the Internet access ends. Additionally, 

the court recognized prior case law in this area has held that investigators looking for digital evidence 

can assume it remains on the hard drive because modern computers, by default, retain the data. 

Click HERE for the court’s opinion.

*****

Hawkins v. Mitchell, 2014 U.S. App. LEXIS 11906 (7th Cir. Ill. June 23, 2014)

Bumgarner called 911 and reported Hawkins locked her out of his house, but that her keys were still 

inside the residence. Bumgarner told the 911 operator Hawkins had a history of abusiveness, but the 

current argument was “verbal only.” When Officer Mitchell arrived, he saw clothing scattered across 

the yard, and Bumgarner shouting at Hawkins, who was on the front porch. Hawkins then went 

inside his house and slammed the door. Bumgarner told Mitchell she was not injured, apologized for 

calling 911, but that she needed her keys so she could leave. Bumgarner told Mitchell that Hawkins 

had not been violent and had not threatened her. Mitchell knocked on the door and Hawkins opened 

it, telling Mitchell he did not want to talk to him. Mitchell stuck his foot in the doorway, which 

prevented Hawkins from closing it, and then Mitchell entered Hawkins’ house. Hawkins repeatedly 

told Mitchell to get out of his house, but Mitchell refused. When Officer Bowersock arrived, 

Mitchell motioned him inside Hawkins’ house. In the meantime, Hawkins was on the telephone, 

speaking with his attorney. Bowersock told Hawkins to get off the phone, or he would be arrested. 

When Hawkins did not comply, Bowersock told Hawkins he was under arrest. Bowersock and 

Mitchell then grabbed Hawkins by his wrists and wrestled him to the floor. The state filed charges 

against Hawkins, but later dismissed them. 

Hawkins sued the officers, claiming among other things, the officers violated the Fourth Amendment

when they entered his house without a warrant, consent or an exigency. The officers argued they 

were justified in entering Hawkins’ house without a warrant “to prevent imminent serious injury” and 

to question Hawkins about the “situation.”

First, the court stated the need to question Hawkins amounted to ordinary investigation of possible 

crime, which did not constitute exigent circumstances.

Second, the court ruled the facts, even as presented by the officers, did not support the conclusion that 

the entry into Hawkins’ house was necessary to prevent imminent serious injury to anyone. When 

Mitchell arrived, Bumgarner told him she was not injured and that her argument with Hawkins was 

verbal. Instead of expressing a need for protection from Hawkins, Bumgarner told Mitchell she 

wanted to get her keys from inside the house. Even though Mitchell lawfully attempted to initiate a 

consensual encounter with Hawkins, Mitchell’s non-consensual and warrantless entry into Hawkins’ 

house was unreasonable. When Mitchell entered the house, there was no evidence that Hawkins

posed a threat to anyone, and after Bowersock entered, Hawkins continued to object to the officers’ 

presence. Even though Hawkins did not comply with Bowersock’s command to get off the phone, 

Hawkins never threatened the officers. Consequently, the court held because Mitchell and 

Bowersock did not have a warrant, consent or exigent circumstances, their entry and in-home arrest 

of Hawkins violated the Fourth Amendment. 

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Click HERE for the court’s opinion.

*****

8th Circuit

United States v. Humphrey, 2014 U.S. App. LEXIS 10454 (8th Cir. Mo. June 5, 2014)

Two police officers were conducting surveillance on Humphrey, who was a suspect in a burglary and 

homicide. The officers driving separate unmarked police cars followed Humphrey as he drove 

around town. At one point, Humphrey pulled next to one of the officers and raised his right arm 

parallel to the ground, pointing it in the direction of the officer. Believing that Humphrey realized he 

was being followed, the officer decided to discontinue his surveillance. However, when the officer 

pulled into the parking lot of a strip mall, Humphrey entered the parking lot from a different direction 

and drove straight at the officer’s car, until the vehicles faced each other only a few feet apart. The 

second officer pulled up behind Humphrey, boxing him in. Both officers activated their lights and 

sirens and got out of their vehicles with guns drawn. The officers identified themselves and 

approached Humphrey’s car. When Humphrey rolled down his window, one of the officers saw a 

handgun resting on Humphrey’s knee. Knowing Humphrey was a convicted felon, the officers 

arrested him for unlawful possession of a firearm. 

Humphrey argued the officers did not have reasonable suspicion he was involved in criminal activity; 

therefore, the firearm was discovered as the result of an unlawful Terry stop. 

The court disagreed. The officers were investigating Humphrey’s possible connection to recent 

violent crimes. When it appeared that Humphrey realized he was being followed, Humphrey became 

the pursuer and positioned his car facing the officer’s car in the parking lot. In addition to his 

behavior, the officers knew Humphrey had convictions for violent crimes and firearms offenses. As a 

result, it was reasonable to believe that Humphrey might assault the first officer, which justified a 

Terry stop. 

Click HERE for the court’s opinion.

*****

United States v. $48,100.00 in United States Currency, 2014 U.S. App. LEXIS 12128 (8th Cir. 

Neb. June 27, 2014)

Nelson was driving his parents’ recreational vehicle (RV) from Colorado to Wisconsin when he was 

stopped for a traffic violation in Nebraska. After receiving Nelson’s consent to search, the police 

officer found 2.7 grams of marijuana, a marijuana grinder, several marijuana-themed magazines and a 

plastic bag containing $48,100 in currency inside a backpack located in the RV. The officer arrested 

Nelson for possession of marijuana and seized the currency. The government filed an action seeking 

forfeiture of the $48,100, arguing the currency was substantially connected to drug trafficking. 

Although the government conceded the currency had come from legitimate sources, it nonetheless 

argued Nelson planned to use the currency to purchase narcotics in an unspecified transaction, which 

had yet to occur. The government provided no evidence concerning the future drug transaction. 

The magistrate judge adopted the government’s position, concluding it was more likely than not the

$48,100 was subject to forfeiture as it was substantially connected to a planned, but unconsummated 

drug transaction. Nelson appealed. 

9
The court agreed with Nelson, holding no affirmative evidence existed to support the government’s 

theory that Nelson planned to obtain a large amount of marijuana to sell in Wisconsin. First, both 

parties agreed the currency came from legitimate sources. Second, the amount of marijuana seized 

from the RV was small, consistent with personal use, as was the paraphernalia seized by the officer. 

Third, the officer testified there were several things missing which he would typically expect to find 

if Nelson had been planning to purchase and transport a large amount of drugs cross-country to sell. 

For example, the officer searched Nelson’s cell phone, but he did not find any text messages or voice 

mail recordings referring to a plan to engage in drug trafficking. In addition, Nelson did not have a 

firearm, the possession of which the officer testified often goes “hand in hand” with drug trafficking. 

The court concluded the government’s theory about a planned drug transaction relied on mere 

speculation rather than evidence. As a result, the court reversed the magistrate judge’s directing the 

forfeiture of the $48,100. 

Click HERE for the court’s opinion.

*****

10th Circuit

Felders v. Malcom, 2014 U.S. App. LEXIS 11627 (10th Cir. Utah June 20, 2014)

Trooper Bairett stopped Felders for speeding. During the stop, Bairett noticed Felders was nervous, 

and would not maintain eye contact with him. Bairett also smelled the strong odor of air freshener 

coming from the car and saw a license plate ring with “Jesus” written on it. Based on these 

observations, Bairett suspected Felders was transporting drugs in her car. After issuing Felders a 

speeding ticket, Bairett asked to speak to the two passengers in the car. Based on several perceived 

inconsistencies between the passengers’ stories and Felders’ story about the details of their trip, 

Bairett believed he had reasonable suspicion Felders was transporting drugs. After Felders refused 

to consent to a search of her car, Bairett called for a K-9 unit to bring a drug-sniffing dog. When 

Deputy Malcolm arrived with his K-9, Duke, Bairett told him about the encounter with Felders and 

that Bairett believed there was probable cause to search Felders’ car for drugs. Bairett then ordered

the passengers get out of the car, but he did not let them close the car doors. Bairett’s dash camera 

recorded Malcolm commenting to Bairett, “Nice of them to leave the door open for you,” to which 

Bairett responded, “Yeah it was, wasn’t it?” When Malcolm began the dog sniff, Duke jumped into 

Felders’ car through the open rear passenger door and alerted on the center console. Malcolm opened 

the console and found two bags of jerky. After removing the jerky, the officers searched Felders’ car 

for approximately two-hours, but found no drugs. 

Felders sued, claiming Bairett and Malcolm violated the Fourth Amendment by illegally searching 

her car.

While the district court held neither officer was entitled to qualified immunity, only Deputy Malcolm 

appealed. Malcolm argued probable cause existed to search Felders’ car before the dog sniff. 

Alternatively, Malcolm argued if he did not have probable cause to search Felder’s car, the law did 

not clearly establish that his actions during the dog sniff violated the Fourth Amendment. The Tenth 

Circuit Court of Appeals disagreed and affirmed the district court holding that Malcolm was not 

entitled to qualified immunity. 

First, the court held Malcolm did not have probable cause to search Felders’ car for drugs prior to 

conducting the dog sniff. The court ruled Malcolm could not reasonably rely on Bairett’s conclusion 

that probable cause existed to search Felders’ car, nor would a reasonable officer in Malcolm’s 

10
position believe he had probable cause to search for drugs. The court found, at best, Bairett and 

Malcolm had reasonable suspicion to conduct a Terry stop.

Second, the court held Malcolm did not independently establish probable cause to search Felders’ car. 

Malcolm’s argument that inconsistencies in Felders’ statements to Bairett were lies, which constituted 

obstruction of justice under Utah law, was not reasonable. 

Third, the court held at the time of the incident, it was clearly established that facilitation of a dog’s 

entry into a car without probable cause violated the Fourth Amendment. The court found a 

reasonable jury could conclude Bairett intentionally caused the car doors to remain open to facilitate 

Duke’s entry and that Duke failed to properly alert before entering Felders’ car. 

Click HERE for the court’s opinion.

*****

11th Circuit

United States v. Davis, 2014 U.S. App. LEXIS 10854 (11th Cir. Fla. June 11, 2014)

A jury convicted Davis on seven counts of robbery. At trial, the government introduced cell site

location information obtained from Davis’ cell phone service provider. The cell site location 

information included a record of Davis’ calls and revealed which cell tower carried the calls. The 

government argued the cell site location information established Davis placed and received cell phone 

calls near the locations of the robberies around the same time the robberies were committed. The 

government obtained Davis’ cell site location information after obtaining a court order pursuant to 18 

U.S.C. § 2703(d). To obtain a court order under §2703(d), the government was not required to 

establish probable cause. 

On appeal, Davis claimed the government violated the Fourth Amendment, arguing the government 

was required to obtain a warrant based on probable cause to obtain his cell site location information. 

The government argued the cell site location information was not covered by the Fourth Amendment

and was properly obtained under the § 2703(d) court order.

The court held that Davis had a reasonable expectation of privacy in the cell site location information 

and the government violated the Fourth Amendment when it obtained that information without a 

warrant. However, the court further held the cell site location information did not need to be 

suppressed because the officers acted in good faith reliance on §2703(d) order. Here, the police 

officers, prosecutors and judge who issued the order followed the requirements of 18 U.S.C. § 2703

and had no reason to believe it was unconstitutional as written.

Click HERE for the court’s opinion.

*****

United States v. Folk, 2014 U.S. App. LEXIS 10929 (11th Cir. Fla. June 12, 2014)

Police officers obtained a warrant to search a residence where Folk, a convicted felon, lived with 

Brandow and her seventeen-year-old son. The warrant authorized the officer to search for illegal 

prescription drugs, currency, and records relating to drug sales. While executing the warrant, an 

officer saw a rifle and a shotgun in the master bedroom closet. The officer believed Folk and 

Brandow slept in that bedroom because he saw photographs of the couple around the room and 

11
several empty pill bottles prescribed to Brandow and Folk. The government indicted Folk for being a 

felon in possession of a firearm. 

Folk claimed the officer violated the Fourth Amendment by seizing the rifle and the shotgun, arguing 

the search warrant did not specifically authorize the officers to seize firearms. 

The court disagreed, holding the officers lawfully seized the firearms under the plain view doctrine. 

First, the firearms were located in a closet where the officers had a lawful right to be to search for the 

items listed in the warrant. Second, the incriminating nature of the firearms was immediately 

apparent to the officer because the officer knew Folk was a convicted felon. In addition, the court 

concluded it was reasonable for the officer to believe the firearms belonged to Folk. The closet was 

located in the master bedroom that contained photographs of Folk and Brandow as well as 

prescription bottles with Folks’ name on them. 

Click HERE for the court’s opinion.

***** 

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