Department of Homeland Security

Federal Law Enforcement Training Centers

Office of Chief Counsel

Legal Training Division 

July 2016

THE

FEDERAL LAW ENFORCEMENT

-INFORMER- A MONTHLY LEGAL RESOURCE AND COMMENTARY FOR LAW 

ENFORCEMENT OFFICERS AND AGENTS

Join THE INFORMER E-mail Subscription List

It’s easy! Click HERE to subscribe,

change your e-mail address, or unsubscribe.

THIS IS A SECURE SERVICE. No one but the FLETC Legal Division will have 

access to your address, and you will receive mailings from no one except the 

FLETC Legal Division.

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 

members of the Legal Division. All comments, suggestions, or questions regarding The Informer can be directed to the Editor at 

(912) 267-3429 or FLETC-LegalTrainingDivision@dhs.gov. You can join The Informer Mailing List, have The Informer delivered 

directly to you via e-mail, and view copies of the current and past editions and articles in The Quarterly Review and The Informer by 

visiting https://www.fletc.gov/legal-resources. 

This edition of The Informer may be cited as 7 INFORMER 16.
2

The Informer – July 2016

Case Summaries

United States Supreme Court

Voisine v. United States: Whether a misdemeanor assault conviction for reckless 

conduct prohibits a person from lawfully possessing a firearm under 18 U.S.C. § 922(g)(9)............4

Circuit Courts of Appeals

First Circuit

United States v. Casey: Whether the defendant’s grandparents could give officers valid

consent to search the defendant’s bedroom he occupied in the grandparents’ house.........................5

United States v. Rivera: Whether the officer’s search warrant application established

a nexus between the defendant’sresidence and his alleged drug dealing..........................................6

Sixth Circuit

United States v. Crumpton: Whether Miranda required the officer to inform the 

defendant he had the right to stop answering questions at any time, and whether 

Miranda required the officer to inform the suspect any statement he made could 

be used against him “in court.”.........................................................................................................6

United States v. Brown: Whether the officer’s search warrant application established a

nexus between the defendant’s residence and his alleged drug trafficking.......................................8

Seventh Circuit

United States v. Patterson: Whether the defendant was in custody for Miranda purposes

when he voluntarily accompanied federal agents to their office to be interviewed...........................9

United States v. Miranda-Sotolongo: Whether an officer established reasonable 

suspicion to conduct a traffic stop...................................................................................................10

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

the defendant after he completed a traffic stop................................................................................11

Eighth Circuit

United States v. Briere de L’Isle: Whether scanning the magnetic strips on the backs of 

credit, debit, and gift cards, without a warrant, constituted an unlawful search...............................13

United States v. Roberts: Whether the officers warrantless entry into an apartment 

violated the Fourth Amendment......................................................................................................14

United States v. Dillard: Whether officers established reasonable suspicion to conduct

a traffic stop....................................................................................................................................14

United States v. Nowak: Whether a warrantless search of the defendant’s backpack

violated the Fourth Amendment.....................................................................................................15

United States v. Roelandt: Whether officers established reasonable suspicion to conduct 

a Terry stop.....................................................................................................................................16
3

Tenth Circuit

Davis v. Clifford: Whether officers were entitled to qualified immunity after allegedly 

shattering the driver’s side window of the plaintiff’s car and then dragging her out by

her hair and arms during a traffic stop for driving under suspension...............................................16

District of Columbia Circuit

United States v. Castle: Whether officers established reasonable suspicion to conduct 

a Terry stop....................................................................................................................................18 

♦

FLETC Informer Webinar Series

Please check: https://share.dhs.gov/informer for the latest webinar schedule and news.

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.

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

6. Even though meeting rooms may be accessed before a webinar, there may be times 

when a meeting room is closed while an instructor is setting up the room.

7. Meeting rooms will be open at least one-hour before a scheduled webinar.

8. Training certificates will be provided at the conclusion of each webinar.

***************************************************************************
4

CASE SUMMARIES

United States Supreme Court

Voisine v. United States, 2016 U.S. LEXIS 4061 (U.S. June 27, 2016)

Voisine pled guilty to assaulting his girlfriend in violation of § 207 of the Maine Criminal Code, 

which makes it a misdemeanor to “intentionally, knowingly, or recklessly cause bodily injury or 

offensive physical contact to another person.” Several years later, law enforcement officers 

investigated Voisine for killing a bald eagle and discovered that he owned a rifle. The government 

subsequently charged Voisine with possession of a firearm after having been convicted of a 

misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9). 

Armstrong pled guilty to assaulting his wife in violation of § 207 of the Maine Criminal Code. A 

few years later, law enforcement officers found six guns and a large quantity of ammunition when 

they searched Armstrong’s home as part of a narcotics investigation. Like Voisine, the 

government charged Armstrong under § 922(g)(9) for unlawfully possessing firearms. 

Voisine and Armstrong argued they were not prohibited from possessing firearms under §

922(g)(9) because their prior convictions under § 207 of the Maine Criminal Code could have 

been based on reckless, rather than knowing or intentional conduct, and therefore did not qualify 

as misdemeanor crimes of domestic violence. 

Title 18 U.S.C. § 922 (g)(9) prohibits persons convicted of a “misdemeanor crime of domestic 

violence” from possessing firearms. A “misdemeanor crime of domestic violence” is defined to 

include any misdemeanor committed against a domestic relation that necessarily involves the “use 

. . . of physical force.” In United States v. Castleman, the United States Supreme Court held a 

knowing or intentional assault against a domestic relation qualified as a “misdemeanor crime of 

domestic violence.” Here, the issue before the Court was whether a misdemeanor conviction for 

recklessly assaulting a domestic relation disqualifies a person from possessing a firearm under 18 

U.S.C. § 922 (g)(9).

In resolving a split between the circuits, the Court held a conviction for a “reckless” domestic 

assault qualifies as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922 (g)(9). 

Congress’ definition of a “misdemeanor crime of domestic violence” contains no exclusion for 

convictions based on reckless behavior. In addition, the court noted a person who assaults another 

recklessly, i.e., with conscious disregard of a substantial risk of harm, uses force no less than one 

who carries out that same assault knowingly or intentionally. 

For the court’s opinion: http://www.supremecourt.gov/opinions/15pdf/14-10154_19m1.pdf

*****
5

Circuit Courts of Appeal

First Circuit

United States v. Casey, 2016 U.S. App. LEXIS 10109 (1st Cir. P.R. June 3, 2016)

Officers arrested Casey in connection with the death of an undercover police officer during a drug 

buy. While Casey was in custody, officers went to Casey’s grandparents’ house with whom he 

lived. Casey’s grandfather, Rivera, told the officers Casey lived in the residence because Casey 

could not afford to live on his own. Rivera told the officers that he and his wife provided Casey’s 

lodging and food for free, and that both had free access to Casey’s unlocked room at all times. 

Casey’s grandparents fully cooperated with the officers and readily gave both oral and written 

consent to search their home, to include Casey’s bedroom. Inside Casey’s bedroom, officers 

found evidence that connected Casey to the death of the undercover officer.

Casey filed a motion to suppress the evidence seized from his bedroom arguing that his 

grandparents lacked the authority to consent to the search.

The court disagreed. Without deciding whether Casey’s grandparents had actual common 

authority to consent to a search of the bedroom, the court concluded the grandparents had apparent 

authority to consent to a search of Casey’s bedroom. Apparent authority exists when the person 

giving consent does not have actual authority, but the officer reasonably believes that the person 

has actual authority to consent to the search.

Here, when the officers arrived, the door to Casey’s bedroom was open and unlocked. In addition, 

Rivera told the officers Casey did not contribute to rent or food, and that he and his wife both had 

free access to Casey’s bedroom. The court concluded it was reasonable for the officers to rely on 

Rivera’s representation that he and his wife had actual common authority over Casey’s bedroom, 

and therefore could consent to its search.

Casey also claimed a photo-array identification made by a witness was unduly suggestive; 

therefore, it should have been suppressed. Specifically, Casey argued that he was the darkestskinned, black, non-Latino man in the array and the only individual pictured with a distinct, long, 

thin, facial structure. 

Again, the court disagreed, holding the circumstances surrounding the photo array identification 

were not unduly suggestive. First, the array contained six black and white photographs. Second, 

while Casey had the darkest complexion among them, each individual could have been described 

as black, and they shared relatively similar facial features, a near-identical haircut, and groomed 

eyebrows. In addition, the array displayed no names and bore a disclaimer in Spanish and English 

stating that the person the witness saw may or may not appear among the presented photographs. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca1/13-1839/13-1839-

2016-06-03.pdf?ts=1464976805

*****
6

United States v. Rivera, 2016 U.S. App. LEXIS 10465 (1st Cir. Mass. June 9, 2016)

A confidential informant (CI) called Rivera to arrange the purchase of crack cocaine. 

Approximately three minutes later, officers conducting surveillance of Rivera’s residence saw

Rivera’s car drive away. A few minutes later, officers saw Rivera’s car parked outside a location 

they suspected Rivera used as a drug stash-house. The officers followed Rivera’s car from the 

stash-house to a Walgreens parking lot. The officers saw the CI get out of his car and into Rivera’s 

car. The CI purchased crack cocaine from Rivera, got out of Rivera’s car and left the area. The 

officers followed Rivera, who drove back to the stash house. 

Based on information from the monitored phone call between Rivera and the CI, the purchase of 

crack cocaine from Rivera, and observations from their surveillance, the officers obtained 

warrants to search Rivera’s stash-house as well as his residence. At Rivera’s residence, officers 

seized among other things, a loaded 9mm handgun.

The government charged Rivera with being a felon in possession of a firearm. 

Rivera filed a motion to suppress the firearm seized from his residence. Rivera argued the search 

warrant affidavit provided no nexus, or connection, between his residence and his alleged drug 

dealing; therefore, the officers failed to establish probable cause to search his residence. 

The court disagreed. A search warrant application must establish probable cause to believe that a 

crime has occurred and that evidence of the crime will be at the location to be searched, also 

known as the nexus element. To establish probable cause the government has to establish there 

is a “fair probability” that contraband or evidence of a crime will be found at the place to be 

searched. In this case, while the search warrant affidavit provided no information showing that 

Rivera sold drugs out of his residence, the government established he was likely at home when he 

participated in the drug-related phone call with the CI. In addition, the judge that issued the search 

warrant was entitled to rely on the officer’s affidavit statement, that in his training and experience

drug dealers often kept evidence related to their crime, such as cash, firearms, and records, in their 

homes. Consequently, the court held that the government established probable cause to believe 

evidence connected to Rivera’s illegal sale of drugs would be found in his residence.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca1/15-1349/15-1349-

2016-06-09.pdf?ts=1465504207

*****

Sixth Circuit

United States v. Crumpton, 2016 U.S. App. LEXIS 9993 (6th Cir. Mich. June 2, 2016)

Police executed a search warrant at Crumpton’s residence for evidence related to drug and firearm 

violations. At this time, a federal agent read Crumpton his Miranda rights. The agent recited and 

Crumpton confirmed his understanding of the following: 

(1) "the right to remain silent"; (2) that "anything you say can be used against 

you in court"; (3) "the right to consult with an attorney and have them 

present during questioning" and (4) that "if you cannot afford an attorney, 

one will be appointed to represent you prior to questioning."

Crumpton then told the agent “there may be some old bullets laying around.” (First Statement)
7

The agent conducted a second interview with Crumpton sometime later during the execution of 

the search warrant. The agent advised Crumpton of his Miranda rights again; however, the agent 

added a fifth warning, and told Crumpton “if you decide to answer any questions now without a 

lawyer present, you have the right to stop answering questions at any time.” 

Crumpton asked the agent, “Will we be going to court?” The agent told Crumpton, “No, I’m just 

saying, in general. Anything you say can be used against you in court. That’s, these are your 

rights.” 

Crumpton eventually made an additional incriminating statement concerning his knowledge of 

ammunition in his residence. (Second Statement)

Crumpton filed a motion to suppress both statements he made to the agent. Crumpton argued his 

first statement should be suppressed because the agent violated Miranda by failing to advise him 

he had the right to stop answering questions, as the agent had done when he advised Crumpton of 

his Miranda rights the second time.

The district court agreed and suppressed Crompton’s first statement on its belief that Miranda

requires that a suspect be advised of his right to stop answering questions at any time during a 

custodial interview. The government appealed. 

The Court of Appeals reversed the district court. The Court held the district court misread 

Miranda to require that a suspect be advised of his right to stop answering questions at any time 

during a custodial interrogation. The court added Miranda requires that a suspect undergoing 

custodial interrogation be informed of four particular rights: 

(1) "that he has a right to remain silent"; (2) "that any statement he does make may 

be used as evidence against him"; (3) "that he has a right to the presence of an 

attorney"; and (4) that the attorney may be "either retained or appointed." 

The court noted that subsequent Supreme Court decisions have reiterated these four, and only four 

required warnings.1 In addition, the Sixth Circuit and other circuits have made clear that "a 

defendant need not be informed of a right to stop questioning after it has begun." 

The district court suppressed Crumpton’s second statement. When Crumpton asked the agent, 

“Will we be going to court?” and the agent replied, “No,” and the court held that the agent misled 

Crumpton into believing he would never go to court in connection with statements he might give 

to law enforcement; therefore, nullifying the Miranda warning that anything Crumpton said could 

be used against him “in court.” 

The government appealed, and again, the Court of Appeals reversed the district court. In Miranda, 

the Supreme Court mandated that four warnings be given to inform a suspect in police custody of 

certain rights in order to protect the privilege against self-incrimination. One such warning was 

phrased in the opening section of the Court’s opinion as notice “that any statement he does make 

may be used as evidence against him.” At two later points in the opinion, the Court suggested 

that the warning would use the phrase “in court” after the suspect was told that anything he said 

could be used against him. However, the Court has never dictated the words in which the essential 

 1

Florida v. Powell, 559 U.S. 50, 59-60 (2010), Colorado v. Spring, 479 U.S. 564, 567 (1987), United States v. LaresValdez, 939 F.2d 688, 689 (9th Cir.), United States v. Davis, 459 F.2d 167, 168-169 (6th Cir. 1972), United States v. 

Ellis, 125 F. App’x 691, 699 (6th Cir. 2005).
8

information from Miranda must be conveyed to the suspect. The Miranda court stated the 

warnings seeks to convey “the consequences of forgoing [the privilege of self-incrimination]” and 

“to make the individual more acutely aware that he is faced with a phase of the adversary system 

– that he is not in the presence of persons acting solely in his interest.” In keeping with this 

purpose, the Sixth Circuit along with two other Circuits have specifically held that a warning that 

omits the “in-court” language does not violate Miranda.

2

 Consequently, a suspect who is 

informed of his right to remain silent and the fact that failing to do so will result in his statements 

being used “against him” is sufficiently informed of the key information the warning seeks to 

provide. In this case, the agent was not required to add the words “in court” to his warning to 

Crumpton. 

In addition, the court found the agent did not undermine or contradict the point of the warning by 

answering, “No” when Crumpton asked, “Will we be going to court?” Instead, the court found 

when taking the agent’s entire answer in context, the agent was informing Crumpton of his rights 

and the consequences of waiving them, not telling Crumpton specifically what would happen the 

next day.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca6/15-1299/15-1299-

2016-06-02.pdf?ts=1464879644

*****

United States v. Brown, 2016 U.S. App. LEXIS 11739 (6th Cir. Mich. June 27, 2016)

On March 8, 2011, federal and state police officers arrested Middleton, Brown, and Woods for 

attempted delivery of heroin after conducting a traffic stop on Woods’ vehicle. In response to 

standard booking questions, Brown provided a home address and possessed a driver’s license that 

listed the same address as his residence. 

The next day, officers obtained a warrant to search Middleton’s house. When officers executed 

the warrant, they discovered a vehicle registered to Brown on the street in front of Middleton’s 

house. The vehicle registration listed the same address Brown had given the officers as his home 

address the day before. In addition, a drug-detection dog alerted to the odor of narcotics inside 

Brown’s vehicle. A few days later, an agent with the Drug Enforcement Administration (DEA) 

discovered Brown had a prior conviction for drug distribution and had served time in federal 

prison.

On March 30, 2011, the DEA agent applied for a warrant to search Brown’s house for evidence 

related to drug trafficking. A magistrate judge issued the warrant, which officers executed on 

March 31, 2011, twenty-two days after Brown’s arrest. Pursuant to the warrant, the agents found 

drugs, firearms, and ammunition inside Brown’s house. 

The government charged Brown with a variety of drug and firearm offenses.

Brown moved to suppress the evidence seized from his house. Brown argued the information in 

the agent’s search warrant affidavit failed to establish probable cause because it did not establish 

a connection, or nexus, between illegal drug activity and Brown’s house. 

 2 United States v. Castro-Higuero, 473 F.3d 880, 886 (8th Cir. 2007), Evans v Swenson, 455 F.2d 291, 295-96 (8th 

Cir. 1972), United States v. Franklin, 83 F.3d 79, 82 (4th Cir. 1996)
9

The court agreed.3

 An affidavit supporting a search warrant application must demonstrate a nexus, 

or connection between the evidence sought and the place to be searched. In this case, the court 

found the search warrant affidavit contained no evidence that Brown distributed narcotics from 

his home, stored narcotics in his home, or that any suspicious activity occurred in Brown’s home. 

In addition, even though a drug-dog alerted to the presence of narcotics in Brown’s car while it 

was parked in front of Middleton’s house, this fact only supported a search of Brown’s car. The 

alert by the drug-dog did not support a fair probability that evidence of drug trafficking would be 

found at Brown’s house. The court noted a more direct connection was required, such as 

surveillance indicating Brown had used the car to transport drugs from his house to Middleton’s 

house on the day in question.

Finally, although the affidavit characterized Brown as a known “drug dealer,” based on his prior 

criminal history, the court held a suspect’s “status as a drug dealer, standing alone,” cannot give 

rise to a “fair probability that drugs will be found in his home.” Instead, the government is 

required to provide some reliable evidence connecting the known drug dealer’s ongoing criminal 

activity to his home, such as an informant who observed drug deals or drug paraphernalia in or 

around the suspect’s home. 

The court further held the good-faith exception to the exclusionary rule did not apply to the 

evidence seized from Brown’s house. For the good-faith exception to apply, the court noted the 

affidavit was required to contain a minimal nexus between the illegal activity and the place to be 

searched. Except for a passing reference to Brown’s car registration, the affidavit failed to provide 

any facts establishing a nexus between Brown’s alleged drug dealing activity and his house. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca6/13-1761/13-1761-

2016-06-27.pdf?ts=1467066637

*****

Seventh Circuit

United States v. Patterson, 2016 U.S. App. LEXIS 10767 (7th Cir. Ind. June 14, 2016)

Federal agents suspected that Patterson committed a bank robbery. Two agents drove separately 

to a residence connected to Patterson where they saw him standing outside in the driveway. The 

agents approached Patterson, identified themselves, and told Patterson two or three times to show 

his hands. After Patterson complied, the agents told Patterson they wanted to talk to him about a 

bank robbery. When Patterson asked the agents some questions about the case, the agents told 

Patterson they did not want to discuss the details in the driveway. The agents asked Patterson if 

he would be willing to go to their office to discuss the case and “clear his name.” Patterson agreed 

to accompany the agents to their office. Before Patterson got into the agent’s vehicle, he allowed 

one of the agents to frisk him for weapons. After completing the frisk, the agent asked Patterson, 

“I just want to make sure you’re voluntarily coming with us, correct?” Patterson responded 

affirmatively. 

The agent drove Patterson to the public garage for his building, parked, and took the public 

elevator to the agents’ office. Once inside, the agents took Patterson to a conference room, 

 3 The court issued an opinion in the case on September 11, 2015, in which it denied Brown’s motion to suppress the 

evidence seized from his residence before issuing this amended opinion. (See 801 F.3d 679 (6th Cir. 2015) and 10 

Informer 15).
10

allowing Patterson to sit closest to the door. When asked about the bank robbery, Patterson denied 

any involvement. The agents accused Patterson of being involved, and told Patterson that he could 

speak freely, as he was not going to be arrested that day. Patterson then confessed to his 

involvement in the robbery. At the end of the interview, the agents told Patterson an arrest warrant 

would likely be issued in a week or two and gave him a ride back to his house. 

Patterson filed a motion to suppress his incriminating statements, arguing that he was “in custody” 

at the time of the interview; therefore, the agents should have advised him of his Miranda rights 

before questioning him. 

A person is “in custody” for Miranda purposes if there is a formal arrest or a restraint on the 

person’s freedom of movement of the degree associated with a formal arrest. Because the agents 

did not formally arrest Patterson, the court had to determine whether a reasonable person in 

Patterson’s position would have believed he was free to leave. 

The court concluded that Patterson was not “in custody” for Miranda purposes because the agents 

did not restrain Patterson’s movement to the degree associated with a formal arrest. First, 

Patterson went to the agents’ office voluntarily. The agents told Patterson they wanted to talk to 

him about their investigation, while truthfully implying that his name might not be “clear.” In 

addition, the agents double-checked by asking Patterson if he was voluntarily going with them 

before he got into the agents’ car. 

Second, Patterson was not “in custody” for Miranda purposes during the initial encounter with 

the agents in the driveway. At most, the initial contact, from the driveway to getting into the 

agents’ car was a Terry stop. The court noted that the temporary and relatively non-threatening 

detention involved in a Terry stop does not constitute Miranda custody. In addition, in the Seventh 

Circuit, it has been repeatedly held that a Terry frisk does not establish custody for Miranda 

purposes. 

Third, during the drive to the agents’ office, Patterson never requested that the agents stop the car 

so he could get out or do anything to indicate that he did not want to speak with the agents.

Fourth, while the agents were armed, they never used their weapons or restrained Patterson in any 

way. 

Finally, at the end of the interview, the agents told Patterson he was not going to be arrested that 

day, and was allowed to leave so he could get his affairs in order.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca7/15-3022/15-3022-

2016-06-14.pdf?ts=1465932663

*****

United States v. Miranda-Sotolongo, 2016 U.S. App. LEXIS 11816 (7th Cir. Ill. June 28, 

2016)

A police officer saw Miranda driving on an interstate highway and noticed the Indiana temporary 

vehicle tag on Miranda’s car looked “odd.” The officer checked the registration number from the 

tag in a database, but found no record of the registration. The officer then had a police dispatcher 

run a check on the tag in the same database. Like the officer, the dispatcher could not find a record 

of the car’s registration in the database. After receiving this information from the dispatcher, the 
11

officer conducted a traffic stop to investigate whether the tag on Miranda’s car might be a forgery 

designed to hide a stolen or otherwise unregistered vehicle. 

When the officer asked Miranda for his driver’s license, Miranda told the officer he was driving 

on a suspended license. The officer arrested Miranda. During an inventory search of Miranda’s 

car, the officer found two firearms. The government charged Miranda with being a felon in 

possession of a firearm.

Miranda argued the firearms seized from his car should have been suppressed because the officer 

did not have reasonable suspicion to conduct the traffic stop. 

The court disagreed. The officer stopped Miranda after two computer checks failed to verify 

Miranda’s car was temporarily registered as the tag indicated. First, the court concluded the 

officer’s observing and recording the registration number from the tag on Miranda’s car was not 

a Fourth Amendment search. Second, it was not a search when the officer used the registration 

tag number, in which Miranda had no reasonable expectation of privacy, to retrieve the 

registration information from the law enforcement database. As a result, after the officer and the 

dispatcher both checked the relevant database and found no record of the car’s registration in 

Indiana, the court held the officer had reasonable suspicion to justify the stop. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca7/14-2753/14-2753-

2016-06-28.pdf?ts=1467140586

*****

United States v. Walton, 2016 U.S. App. LEXIS 12084 (7th Cir. Ill. June 30, 2016)

A police officer pulled over a Chevrolet Suburban for several minor traffic violations. The 

Suburban contained two people; Smoot, the driver, and Walton, the passenger. After the officer 

told Smoot that he planned to issue a written warning, Walton told the officer that they had been 

stopped in Kansas the previous evening and had received a written warning for using an improper 

signal. Walton gave the officer a copy of the written warning issued in Kansas, which indicated 

Walton was driving at the time, and that he had a suspended driver’s license. Walton then stated

the officers in Kansas had detained them for two hours and had searched the Suburban, which was 

a rental vehicle. When the officer asked Walton why he had rented such a large vehicle, Walton 

told him that it was the only vehicle available, which the officer found implausible. Walton gave 

the officer a copy of the rental agreement, which indicated the Suburban had been rented at the 

Denver International Airport, that the rental fee was almost $1,000, and that Smoot was not an 

authorized driver.

The officer asked Smoot to accompany him to his squad car while he prepared the written warning. 

When the officer asked Smoot why Walton had rented such a large expensive vehicle, she told 

him, “guys like trucks.” When the officer asked Smoot about the encounter with the police in 

Kansas the previous evening, Smoot told him the stop did not last two hours, and the officers did 

not search the Suburban. The officer also learned that Smoot and Walton were driving back to 

their home in Ohio. Finally, during the stop, the officer learned from his dispatcher that Walton 

had a criminal history that included a drug trafficking arrest. 

After issuing Smoot the written warning, the officer asked Walton some follow-up questions 

concerning the trip, as well as the rental car. The officer then asked Walton for consent to search 

the Suburban. Walton denied the officer’s request to search inside the Suburban; however, Smoot 
12

consented to a search of her bag. After Walton refused, the officer told him that he was calling a 

canine unit to conduct a sniff around the exterior of the Suburban, as the officer believed he had 

established reasonable suspicion that Smoot and Walton were involved in criminal activity. After 

searching Smoot’s bag, finding only a change of clothing, the officer contacted dispatch and 

requested a canine unit. Approximately 14 minutes elapsed from when the officer issued Smoot 

the written warning until he requested the canine unit. 

When the canine unit arrived, the officer walked his dog around the Suburban, and the dog alerted 

to the presence of drugs in the vehicle. The officers searched the Suburban, found cocaine 

concealed in bags hidden in a void within the rear driver’s side quarter panel, and arrested Smoot 

and Walton. 

Walton filed a motion to suppress the cocaine, arguing the officer did not have reasonable 

suspicion to detain him after issuing the written warning to Smoot.

The court disagreed. First, within three to four minutes of pulling over Walton and Smoot, the 

officer saw there were only two individuals with one bag of luggage in a large Suburban, which 

seated seven to eight passengers. The officer testified that in his experience criminals often rent 

large luxury vehicles for the larger areas available to conceal contraband. Second, the officer 

learned the Suburban was rented solely for the purpose of driving two people from Colorado to 

Ohio at a rental cost of almost $1,000. The officer knew the pair could have rented a smaller 

vehicle that accomplished the same goal for around $100 or $200. Third, by the time the officer 

issued the written warning, he had heard conflicting stories from Walton and Smoot regarding 

how long the Kansas police officers had detained them the previous evening, and whether the car 

was searched during that time. Fourth, Smoot and Walton gave the officer different stories as to 

why Walton rented the Suburban. Fifth, prior to issuing the written warning, the officer 

discovered that neither Smoot nor Walton was legally entitled to drive the Suburban, as Smoot 

was not authorized under the rental agreement, and Walton had a suspended driver’s license. 

Consequently, the court found the officer could have towed the Suburban and conducted an 

inventory search. Finally, before he completed the written warning, the dispatcher told the officer 

of Walton’s lengthy criminal history, which included a drug trafficking offense. Based on the 

totality of the circumstances, the court held the officer had reasonable suspicion to detain Walton 

after he issued Smoot the written warning. 

Walton further argued that the officer unreasonably prolonged the duration of the stop by failing 

to diligently request a canine unit to search the Suburban after issuing Smoot the written warning. 

Again, the court disagreed. The court noted that after issuing the written warning to Smoot, the 

officer asked Walton some brief follow-up questions, requested consent to search the Suburban, 

which was denied, and searched Smoot’s bag, with her consent. The court concluded that nothing 

in this 14-minute timeline suggested that the officer did not act diligently in requesting the canine 

unit. 

For the court’s opinion: http://law.justia.com/cases/federal/appellate-courts/ca7/15-3626/15-

3626-2016-06-30.html

*****
13

Eighth Circuit

United States v. Briere de L'Isle, 2016 U.S. App. LEXIS 10345 (8th Cir. Neb. June 8, 2016)

During a traffic stop, an officer lawfully seized a large stack of credit, debit, and gift cards located 

in a duffle bag in the trunk of the defendant’s car. Afterward, a federal agent scanned the seized 

cards and discovered the magnetic strips on the backs of the cards either contained no account 

information or contained stolen American Express credit card information. 

The government charged the defendant with possession of fifteen or more counterfeit and 

unauthorized access devices.

The defendant filed a motion to suppress any evidence discovered when the agent scanned the 

magnetic strips on the seized cards. The defendant argued that scanning the magnetic strips on 

the backs of the cards, without a warrant, constituted an unlawful Fourth Amendment search.

The court disagreed. First, the court noted a physical intrusion or trespass by a government official 

constitutes a search under the Fourth Amendment. However, the court concluded that scanning 

the magnetic strips on the cards was not a physical intrusion into a protected area prohibited by 

the Fourth Amendment. The magnetic strips on the back of a debit or credit card is a type of 

external electronic storage device that is designed to record the same information that is embossed 

on the front of the card. Consequently, the information embossed on the front of the card and 

recorded in the magnetic strip will only be different if someone has tampered with the card. Credit 

card readers simply reveal whether the information in the magnetic strip on the back of the card 

matches the information on the front of the card. The court found the process of using a credit 

card reader “analogous to using an ultraviolet light to detect whether a treasury bill is authentic”, 

which is not considered a Fourth Amendment search. Therefore, the court held that because 

sliding a card through a scanner to read virtual data does not physically invade a person’s space 

or property, the agent did not conduct a search under the original trespass theory of the Fourth 

Amendment. 

The court further held that scanning the magnetic strips on the cards did not violate any reasonable 

expectation of privacy the defendant might have had in the cards. First, the defendant could not 

subjectively expect privacy in the cards in which his name was embossed on the front. Second, 

the defendant could not have had a subjective expectation of privacy in any of the other cards, in 

which his name was not embossed on the front, because the purpose of a credit, debit, or gift card 

is to enable the holder of the card to make purchases. When the holder uses the card, he knowingly 

discloses the information on the magnetic strip of the card to a third party. Consequently, the 

holder of the card cannot claim a reasonable expectation of privacy in this information.

Even if the defendant had an actual, subjective expectation of privacy in the information found in 

the magnetic strips on the backs of the cards, the court held this privacy interest is not one society 

if prepared to accept as reasonable. All of the information found in the magnetic strips on

legitimate American Express cards is identical to the information in plain view on the front of the 

cards. If it is not reasonable to expect privacy in the information that is visible on the front of 

these cards, the court concluded the defendant could not reasonably expect privacy in information

contained in the magnetic strip that is either non-existent or different from the information on the 

front of the card. 

The court added that American Express cards with no information in the magnetic strips, and debit 

and gift cards that have been re-coded with new information in the magnetic strips are counterfeit 
14

cards, and therefore, considered contraband. Governmental conduct that only reveals the 

possession of contraband “compromises no legitimate privacy interest.” The court concluded that 

because scanning the magnetic strips on the cards was the government’s way of revealing the 

defendant’s possession of contraband, the counterfeit cards, there was no violation of a legitimate 

privacy interest, and no search within the meaning of the Fourth Amendment. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/15-1316/15-1316-

2016-06-08.pdf?ts=1465398085

*****

United States v. Roberts, 2016 U.S. App. LEXIS 10347 (8th Cir. Mo. June 8, 2016)

Police officers went to an apartment to locate a suspect involved in a deadly shooting the day 

before. When an officer knocked on the door and announced “police officers,” the door 

unexpectedly swung open. Rather than stand in the open doorway, providing easy targets, the 

officers entered the apartment. Inside the apartment, the officers found Roberts, sitting on a couch. 

The officers smelled the odor of burning marijuana and saw something green and leafy smoldering 

in an ashtray. The officers also saw a handgun on the couch. 

The government charged Roberts with being a felon in possession of a firearm. 

Roberts argued the evidence seized from the apartment should have been suppressed because the 

officers’ warrantless entry into his apartment violated the Fourth Amendment. 

The court disagreed. When the door opened unexpectedly after a hard “police knock,” the officers 

found themselves caught off-guard, isolated, and framed in an open doorway to an apartment they 

thought might contain an armed gunman. While the court commented that it had not previously 

considered an exigent circumstances case with facts similar to these, it concluded the officers’ 

concern for their safety when the apartment door opened was reasonable. Facing a split-second 

decision between entry and retreat, the court refused to hold the officers only reasonable response 

was to retreat. 

Click for the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/15-2642/15-

2642-2016-06-08.pdf?ts=1465398087

*****

United States v. Dillard, 2016 U.S. App. LEXIS 10417 (8th Cir. Mo. June 9, 2016)

Two officers patrolling in a marked squad car in an area known for, among other things, auto 

thefts, saw three individuals standing near a parked car. As a different squad car passed by the 

parked car, all three individuals moved away from the vehicle. After the squad car passed, one of 

the men, Dillard, walked back to the driver’s side door of the parked car. When the two original 

officers drove past the parked car to obtain its license plate number, Dillard again walked away 

from the car. Believing Dillard’s activities to be suspicious, the officers decided to conduct a 

“pedestrian check” or a “car check.” The officers suspected Dillard was attempting to break into 

the parked car, had previously stolen the car, or possibly was hiding something in the car. By the

time the officers turned around however, the car was gone from its parking spot and no longer 

visible to the officers. The officers knew the car must have been travelling in excess of the 25 

miles-per-hour speed limit, as it would not have been possible to travel out of their view in the 

time it took them to turn around. The officers radioed for assistance locating the car. Another 
15

officer located and stopped Dillard. During the stop, officers found a loaded firearm in Dillard’s 

car.

The government charged Dillard with being a felon in possession of a firearm.

Dillard filed a motion to suppress the firearm, arguing the officers did not have reasonable 

suspicion to justify the traffic stop.

The court disagreed. While patrolling a high-crime area, two officers saw Dillard acting 

suspiciously by moving away then returning to the parked car as another squad car drove past. 

Then, when the officers drove past the parked car, Dillard repeated the same behavior. Finally, 

when the officers decided to conduct a “pedestrian check,” or “car check” because they suspected 

Dillard might be involved in criminal activity, they discovered the car was gone, and likely had 

fled at a high rate of speed. At this point, the court concluded the officers were justified in stopping 

the fleeing car to investigate whether Dillard was involved in criminal activity. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/15-1668/15-1668-

2016-06-09.pdf?ts=1465486278

*****

United States v. Nowak, 2016 U.S. App. LEXIS 10956 (8th Cir. S.D. June 17, 2016)

Nowak asked his friend, Madsen, for a ride. When Nowak got into Madsen’s car, he placed his 

backpack on the floor in front of him. A few minutes later, an officer stopped Madsen for a traffic 

violation. When Nowak got out of the car, the officer told Nowak to get back into Madsen’s car, 

and Nowak complied. When the officer returned to his patrol car to contact dispatch, Nowak 

exited Madsen’s car and ran from the scene. The officer did not pursue Nowak. Madsen gave the 

officer consent to search his car, and when the officer asked Madsen about the backpack, Madsen 

told the officer it belonged to Nowak. The officer searched the backpack and found a handgun. 

Other officers searched the area but did not locate Nowak who did not return to the scene during 

the 24-minute traffic stop. 

The government charged Nowak with being a felon in possession of a firearm.

Nowak filed a motion to suppress the firearm, arguing the warrantless search of his backpack 

violated the Fourth Amendment. 

The court disagreed, holding Nowak had abandoned the backpack; therefore, he gave up any 

privacy interest he had in its contents. The test to determine whether property has been abandoned 

is based on the objective facts available to the investigating officers, not based on the owner’s 

subjective intent. For example, it does not matter if an owner has a desire to reclaim his property 

later. In addition, the court considers whether the owner physically relinquished his property and 

whether he denied ownership of it. The court added that verbal denial of ownership is not 

necessary for a finding of abandonment. 

In this case, Nowak did not deny ownership of the backpack but he physically relinquished it 

when he fled the scene of the traffic stop, leaving the backpack in Madsen’s car. Even though 

Nowak left the backpack in Madsen’s car, he did not ask Madsen to store or safeguard the 

backpack for him to ensure its contents would remain private. Instead, when expressly directed 

by the officer to remain in the car, Nowak got out of the car, ran from the scene, and left his 
16

backpack behind. Consequently, it was objectively reasonable for the officer to believe that 

Nowak abandoned the backpack, and it was lawful for the officer to search it without a warrant.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/15-2576/15-2576-

2016-06-17.pdf?ts=1466177474

*****

United States v. Roelandt, 2016 U.S. App. LEXIS 12030 (8th Cir. Iowa June 30, 2016)

A plainclothes officer saw Roelandt walking quickly through a high-crime area at night. The 

officer noticed Roelandt was continually looking around, and he appeared to be extremely 

nervous. The officer knew Roelandt was a convicted felon and a “hard core” member of a local 

street gang. In addition, a confidential informant (CI) told the officer three month earlier that 

Roelandt was known to carrying a gun. Finally, the officer knew that an hour or two before he 

saw Roelandt that evening, another member of Roelandt’s gang sustained a gunshot wound and 

was admitted to the hospital. The plainclothes officer directed a uniformed officer to stop 

Roelandt. The officer stopped Roelandt and frisked him. The officer felt a hard object in 

Roelandt’s pocket and removed a loaded 9mm pistol.

The government charged Roelandt with being a felon in possession of a firearm.

Roelandt filed a motion to suppress the pistol, arguing the officer did not have reasonable 

suspicion to stop him.

The court disagreed, holding the totality of the circumstances supported the officer’s reasonable 

suspicion that Roelandt was engaged in the criminal activity of possessing a firearm. Roelandt 

was a known felon and gang member who was walking quickly through a high-crime area and 

suspiciously looking around as he walked. The officer had received a past report from a CI that 

Roelandt had possessed a gun, and the officer knew a fellow gang-member, and friend of 

Roelandt’s had been admitted to the hospital hours earlier with a gunshot wound. Although the 

officer did not know the details of the shooting, he knew from his experience that gang members 

often engaged in retaliatory shootings. Each aspect of Roelandt’s behavior was largely consistent 

with innocent behavior when considered by itself; however, when considered together, the court 

concluded the officer had reasonable suspicion to stop Roelandt.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/15-2590/15-2590-

2016-06-30.pdf?ts=1467300658

*****

Tenth Circuit

Davis v. Clifford, 2016 U.S. App. LEXIS 10648 (10th Cir. Colo. June 13, 2016)

Officer Clifford decided to conduct a traffic stop after he discovered Davis had an active warrant 

for driving with a suspended license due to a failure to provide proof of insurance. After he 

activated his emergency lights, Clifford called for back-up assistance, and three other officers 

responded that they were en route. Davis pulled into a parking lot and turned off her car, and the 

other officers soon arrived, blocking Davis’ car from all directions. 
17

According to Davis, after being surrounded by police cars, she heard batons banging on her car. 

Fearing for her safety, Davis locked her doors and rolled up her window. Officer Clifford and 

Officer Fahlsing approached the driver’s side door, and Clifford told Davis to step out of the car. 

Through a gap in the window, Davis asked why she had been pulled over and offered to show 

Clifford her license, insurance, and registration information. Davis then alleged Clifford told her, 

“You know why,” and commanded her to “step the fuck out of the car.” After the officers told 

Davis she was under arrest, and again ordered her to exit her car, Davis responded that she would 

get out of the car if the officers promised not to hurt her. When she did not immediately exit her 

car, Davis claimed Fahlsing shattered the driver’s side window with his baton. Davis claimed that 

Clifford and Fahlsing then grabbed her by her hair and arms, pulled her through the shattered 

window, pinned her face-down on the broken glass outside the car, and handcuffed her. 

Davis sued Officers Clifford and Fahlsing, claiming they used excessive force when they arrested 

her.

While recognizing that many of the material facts alleged by Davis were disputed by the officers, 

the court commented that it was required to view the facts in the light most favorable to Davis. 

Consequently, the court concluded the facts as alleged by Davis demonstrated that Clifford and 

Fahlsing used excessive force; therefore, they were not entitled to qualified immunity.

The court took the facts alleged by Davis and applied them to the factors outlined by the United 

States Supreme Court in Graham v. Connor to determine whether the officers’ use of force was 

objectively reasonable. In Graham, to determine the objective reasonableness of an officer’s use 

of force, the court found the following factors must be considered: 1) the severity of the crime, 

2) whether the suspect poses an immediate threat to the safety of the officer or others, and 3) 

whether the suspect is actively resisting arrest or attempting to evade arrest by flight. 

The court concluded the severity of Davis’ crime weighed against the use of anything more than 

minimal force because the charge underlying her arrest for a minor driving offense was a 

misdemeanor. Davis claimed that the officers shattered her car window and dragged her through 

the broken glass by her arms and hair. The court found that this degree of substantial force was 

not proportional to the misdemeanor offense suspected. 

The court found the second factor, whether Davis posed and immediate threat to the safety of the 

officers or others, weighed against Clifford and Fahlsing. The court noted there was no evidence 

that Davis had access to a weapon or that she threatened to harm herself or others.

The court held the third factor, whether Davis actively resisted or attempted to evade arrest, 

weighted slightly against Clifford and Fahlsing. Even though Davis did not immediately obey the 

officers’ commands to exit her car, police cars surrounded Davis’ car on all sides, so she could 

not have driven away. In addition, there was no evidence presented that Davis actually attempted 

to flee. 

The court further held at the time of the incident it was clearly established that the use of 

disproportionate force to arrest an individual who had not committed a serious crime and who 

poses no threat to herself or others, constitutes excessive force.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca10/15-1329/15-1329-

2016-06-13.pdf?ts=1465833689

***** 
18

District of Columbia Circuit

United States v. Castle, 2016 U.S. App. LEXIS 10713 (D.C. Cir. June 14, 2016)

On a very cold night in February, officers on patrol in an un-marked pick-up truck saw a man 

walking quickly away from the direction of an apartment complex outside of which PCP was 

known to be sold. The man crossed the street and entered an alley where the officers saw him 

lean over near a parked U-Haul truck. The officers then saw the man walk back across the street 

with his hands in his pockets. The officers approached the man and recognized him as Harold 

Castle. The officers knew Castle had been arrested previously for PCP-related offenses and 

conducted a Terry stop. After ordering Castle to sit down on the curb, the officers saw Castle 

place a small vial on the ground and try to conceal it. Based on the vial’s appearance and smell, 

the officers believed it contained PCP. The officers arrested Castle.

Castle argued the vial should have been suppressed because the officers did not have reasonable 

suspicion to conduct a Terry stop. 

The government claimed the officers patrolled the area so regularly that “people in the 

neighborhood” had come to recognize the un-marked pick-up truck as a police vehicle. As a 

result, the government argued when Castle saw the truck he recognized it as a police vehicle, and 

his subsequent behavior allowed the officers to believe he was involved in criminal activity. 

The court disagreed. First, the court noted the government failed to put any evidence into the 

record that would support a reasonable officer’s belief that Castle saw the officer’s truck before 

he crossed the street and entered the alley. When the truck turned onto the street, Castle and the 

truck were at opposite ends of a long city block, and the truck’s headlights were on and pointed 

in Castle’s direction. Second, even if Castle saw the truck, the court found that no matter how 

widely and readily recognizable the truck may have been known in the neighborhood as a police 

vehicle, there was no evidence to show that Castle knew it was a police vehicle. Finally, the court 

held that walking quickly on a very cold evening into an alley is common. The fact that Castle 

was doing these things in a neighborhood known for drug use did not establish reasonable 

suspicion that he was involved in criminal activity. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/cadc/14-3073/14-3073-

2016-06-14.pdf?ts=1465916542

*****