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

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

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This edition of The Informer may be cited as 10 INFORMER 17.
2

The Informer – October 2017 

Case Summaries

Circuit Courts of Appeals

First Circuit

United States v. Gordon: Whether the government violated the particularity, necessity, 

and minimization requirements of a Title III wiretap order on the defendants’ cell phones...........4

Second Circuit

United States v. Pabon: Whether probable cause to believe the defendant was “body

packing” narcotics dissipated after an x-ray examination failed to reveal the presence of

a rectal foreign body, and whether the officers unreasonably delayed the defendant’s

probable cause hearing to obtain additional evidence against him.......................................5

Seventh Circuit

United States v. Paige: Whether the officer had probable cause to arrest the defendant and

whether the search of the defendant and his vehicle was a valid search incident to arrest.............7

United States v. Brown: Whether a police officer charged with using excessive force

during an arrest could introduce testimony from an expert witness that the officer’s actions 

were consistent with his department’s use of force policy................................................8

United States v. Ford: Whether an officer established reasonable suspicion to frisk the

defendant, and whether the officer exceeded the scope of the frisk.......................................9

United States v. Jones: Whether a photo array was unduly suggestive because a 

federal agent showed the witness the same photograph of the suspect that was used 

in a previous photo array administered by a different police officer two months earlier.............10

Ninth Circuit

Sharp v. County of Orange: Whether officers were entitled to qualified immunity for 

alleged violations of the plaintiff’s rights under the Fourth and First Amendments..................11

Eleventh Circuit

United States v. Williams: Whether agents’ entry into an outbuilding on the defendant’s

property during the execution of an arrest warrant for the defendant was reasonable..............12

♦
3

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Paul Sullivan and Patrick Walsh will discuss the Public Safety Exception to the 

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Branch Chief, Federal Law Enforcement Training Centers, Glynco, Georgia.

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Live Webinar: Legal Issues in Drone Countermeasures (2-hours)

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Branch Chief, Federal Law Enforcement Training Centers, Glynco, Georgia.

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4

CASE SUMMARIES

Circuit Courts of Appeal

First Circuit

United States v. Gordon, 2017 U.S. App. LEXIS 17423 (1st Cir. Me. Sept. 8, 2017)

In September 2012, the Drug Enforcement Administration (DEA) began investigating a drugdistribution ring based in Lewiston, Maine. Despite using a variety of investigative techniques, 

the DEA was unable to determine the identity or location of the drug ring’s suppliers or determine 

the ring’s organizational structure. As a result, the DEA obtained court orders to conduct wiretaps, 

pursuant to 18 U.S.C. §§ 2510-2522 (Title III), on several telephones connected to members of 

the ring. The government eventually charged Gordon and eleven other co-defendants with drugrelated criminal offenses.

Gordon filed a motion to suppress the evidence obtained through the wiretaps.

First, Gordon argued that the wiretap orders failed to comply with Title III’s particularity 

requirement because the orders were not limited to the phone numbers being used by the 

defendants when the judge issued the orders. Instead, the wiretap orders included phone numbers 

“subsequently assigned to or used by the instruments bearing the same” electronic serial number 

(ESN) or International Mobile Equipment Identity (IMEI) number as the original tapped 

telephone. For example, if a defendant changed the ten-digit telephone number assigned to a 

particular cell phone, the wiretap order would automatically cover the new ten-digit number, and 

the government would not have to seek a new wiretap order every time that number changed. 

The court held that Title III’s particularity requirement does not require limiting a wiretap order 

to a specific telephone number rather than a specific ESN or IMEI number reasonably believed to 

be used by the target. In this case, the affidavit submitted by the government outlined several 

convincing reasons for tracking telephones by ESN or IMEI numbers, such as the fact that drug 

traffickers change telephone numbers frequently in an attempt to avoid detection and they do not 

typically associate their names with telephone numbers. In addition, the court noted that the 

wiretap orders restricted interception to the specific serial numbers associated with the targets’ 

cell phones. 

The court further held that the wiretap orders satisfied Title III’s particularity requirement because 

the government listed specific criminal statutes, which identified the offenses to which the soughtafter communications related. 

Finally, the court held that the wiretap orders were sufficiently particular in describing the DEA 

as “the agency authorized” to conduct the wiretapping. 

Second, Gordon argued that the government failed to establish that is was necessary to conduct 

the wiretapping. To protect a person’s right to privacy, Title III requires the government establish 

“necessity” as a prerequisite for obtaining a wiretap order. 

The court disagreed. To satisfy the necessity requirement, a wiretap application must include “a 

full and complete statement as to whether or not other investigative procedures have been tried 
5

and failed, or why they reasonably appear unlikely to succeed if tried, or to be too dangerous.” In 

this case, the government did not apply for wiretap orders until eighteen months into its 

investigation. At that point, the DEA already had employed a variety of investigative techniques, 

including the use of confidential informants, physical surveillance, controlled buys, analysis of 

telephone data and public records, and the issuance of subpoenas. The government’s application 

included this information as well as why other investigative techniques, such as obtaining cellsite location information and vehicle tracking, were not plausible. The court concluded that the 

government established that its investigation had reached a point where wiretapping was 

reasonably necessary. 

Third, Gordon argued that the government violated Title III’s “minimization” requirement. Title 

III requires that wiretaps must “be conducted in such a way as to minimize the interception of 

communications not otherwise subject to interception.” 

The court concluded that the wiretap orders in this case satisfied this requirement, as the orders 

directed the monitors to stop listening and/or recording when it became apparent that a 

conversation was not related to the criminal investigation. In addition, the government distributed 

a “minimization memorandum” to the wiretap monitors, which contained a similar warning. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca1/15-2087/15-2087-

2017-09-08.pdf?ts=1504902604

*****

Second Circuit

United States v. Pabon, 871 F.3d 164 (2d Cir. Vt. Sept. 11, 2017)

Officers suspected that Jaiden Paige transported narcotics from Connecticut to Maine. The

officers also had information that indicated Paige would not carry the narcotics himself, but would 

instead have another person body-pack the narcotics during the drive. After receiving a tip that 

Jaiden Paige was transporting narcotics on a particular day, officers conducted a traffic stop when 

Paige committed a traffic violation. After Paige consented to a search of his vehicle, the officers 

directed Paige and his passenger, Pabon, to exit the vehicle. The officers conducted a canine sniff 

on the vehicle and the canine alerted on the exterior passenger-side front door. The officers 

transported Paige, Pabon, and their vehicle to the police station. 

Officers subsequently obtained a search warrant that authorized the officers to direct medical

personnel take x-rays of Pabon’s lower abdomen. 

At the hospital, Pabon’s x-rays were taken and two doctors examined the images. The images 

revealed several shaded masses in Pabon’s pelvic area but in their written reports, the doctors 

concluded that the x-rays did not provide specific “evidence of a foreign body” or of any “rectal 

foreign body.” However, one of the doctors told the officers that x-rays are not the best way to 

determine if a person is body-packing narcotics. The doctor explained that it was possible there 

could be some type of “rectal packing . . . not identifiable in the x-ray image.” The doctor added 

that the lack of body-packing evidence on the x-ray did not mean that a foreign body was not 

present.

The hospital discharged Pabon, and the officers took him back to the police station. Several hours 

later, the officers obtained a search warrant, which authorized medical personnel to perform a CT 
6

scan of Pabon’s lower abdomen. The CT scan images revealed evidence that Pabon was bodypacking narcotics. A few hours later, Pabon passed three packages containing narcotics. Pabon 

continued to pass packages over the next several days that contained cocaine and heroin. 

Approximately 63 hours after his arrest, a state court judge determined that there was probable 

cause to detain Pabon. 

The government charged Pabon with possession with intent to distribute cocaine and heroin. 

Pabon filed a motion to suppress the narcotics evidence. Pabon argued that after the doctors 

determined the x-ray images did not reveal evidence of body-packing, the officers no longer had 

probable cause to believe he was involved in criminal activity. As a result, Pabon claimed that 

the officers should have released him after his discharge from the hospital. 

The court disagreed. While the doctors’ written reports reflected their view that the x-ray images 

did not reveal positive evidence of any foreign objects in Pabon’s system, one of the doctors told 

the officers that an x-ray examination is of limited value in determining if a person is bodypacking narcotics. The doctor explained to the officers that an x-ray image will not necessarily 

capture evidence of body-packing even if someone is carrying narcotics because narcotics can 

have density similar to organic material in a person’s body. The court concluded that it was clear 

to the officers that while the x-ray did not reveal the presence of narcotics in Pabon’s body it did 

not mean that he was not body-packing. Consequently, the court found that probable cause to 

believe that Pabon was transporting narcotics had not dissipated, even taking into account the xray examination results. 

Pabon also argued that the narcotics evidence and CT scan results should have been suppressed 

because the officers violated the Fourth Amendment by not bringing him before a state court judge 

within 48 hours of arrest for a probable cause determination. 

Without deciding whether a violation of the 48-hour rule requires suppression of evidence, the 

court noted that the evidence Pabon sought to suppress was obtained within 24 hours of Pabon’s 

arrest. As a result, the court held that there was no connection between any alleged violation of 

the 48-hour rule and the discovery of this evidence. 

Finally, even if suppression was not warranted for a violation of the 48-hour rule, Pabon argued 

that after arresting him the officers unreasonably delayed his probable cause hearing so they could 

obtain additional evidence to support his arrest. 

The court held that the officers did not delay Pabon’s probable cause hearing while they attempted 

to obtain evidence to justify Pabon’s arrest. The court noted that the officers had probable cause 

to detain Pabon when they arrested him immediately after the traffic stop. The court reiterated 

that probable cause continued to exist after the officers received inconclusive results from the xray examination and throughout the remainder of his detention.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca2/16-1754/16-1754-

2017-09-11.pdf?ts=1505140215

*****
7

Seventh Circuit

United States v. Paige, 870 F.3d 693 (7th Cir. Wi. Sept. 1, 2017)

Around midnight, an employee of a McDonald’s restaurant called 911, reported that a vehicle had 

been sitting in the drive-through lane for approximately one-hour, and expressed concern that the 

driver might be sick or injured. When a police officer arrived, she saw Paige standing outside the 

open driver’s door of the vehicle talking to a firefighter who had also responded. As the officer 

approached, she smelled a strong odor of fresh marijuana coming from Paige. The firefighter told 

the officer that he had found Paige asleep in the driver’s seat of the vehicle, and had awakened 

Paige by knocking on the vehicle’s window. Paige told the officer that he had just fallen asleep 

and was “ok.” Skeptical of Paige’s story, the officer decided to detain Paige in her police car 

before she continued her investigation. Before placing Paige in her vehicle the officer frisked him 

for weapons and found a loaded handgun in Paige’s waistband. The officer arrested Paige and 

placed him in her vehicle.

The officer walked over to Paige’s vehicle, saw a bottle of alcohol on the driver’s seat, and smelled 

a strong odor of marijuana coming from inside the vehicle. The officer searched the vehicle and 

found crack cocaine and marijuana inside the console. 

The government charged Paige with possession of a firearm by a convicted felon, and possession 

with intent to distribute crack cocaine and marijuana. 

Paige filed a motion to suppress the firearm seized from his waistband and the drugs seized from 

his vehicle.

First, the court held that the officer had probable cause to arrest Paige for possession of marijuana 

and operating a vehicle under the influence because she smelled marijuana emanating from 

Paige’s body, knew that Paige had been sleeping in his car for approximately one-hour in an open 

McDonald’s drive-through, and believed that Paige was not answering her questions truthfully. 

Second, after the officer established probable cause to arrest, she was allowed to search Paige 

incident to arrest without any additional justification. As a result, the court concluded that the 

officer lawfully seized the firearm from Paige’s waistband incident to arrest.

Third, the court held that the officer lawfully searched Paige’s vehicle incident to his arrest. An 

officer may search a vehicle incident to an arrest when it is reasonable to believe that the vehicle 

contains evidence of the offense for which the suspect was arrested. Here, the court concluded 

that the officer reasonably believed that Paige’s vehicle contained evidence related to the offenses 

of possession of marijuana, and driving while impaired, because as the officer approached the 

vehicle she smelled the strong odor of marijuana emanating from the interior. The court added 

that this fact also provided the officer probable cause to believe that Paige’s vehicle contained 

marijuana and supported a warrantless search under the automobile exception. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca7/16-4128/16-4128-

2017-09-01.pdf?ts=1504285424

*****
8

United States v. Brown, 871 F.3d 532 (7th Cir. Ill. Sept. 8, 2017)

Two Chicago police officers, Also Brown and George Stacker, went to a convenience store to 

investigate a tip that drugs were being sold there. After searching the store, Officer Brown 

directed Howard, a store employee, to lift his shirt to show his waistband. While Howard held 

his shirt, Officer Brown punched him in the face and then grabbed Howard by the neck, holding 

him against a large refrigerator. At Officer Brown’s direction, Howard removed a small bag of 

marijuana from his back pocket and gave it to Officer Brown. Without provocation, Officer 

Brown punched Howard in the ribs and pulled him down an aisle toward the back of the store 

where he forced him to lie on the floor on his back. When Howard tried to sit up, Officer Brown 

hit him in the face again and forced him back to the ground on his stomach. Officer Brown then 

handcuffed Howard, searched his back pocket, and found a handgun. Officer Brown seized the 

handgun, walked to the front of the store to show it to Officer Stacker, and then returned to kick 

Howard in the ribs before arresting him. Surveillance cameras inside the store captured the 

incident. 

The government charged Officer Brown with, among other things, depriving another of a federal 

right under color of law under 18 U.S.C. § 242. Specifically, the § 242 count alleged that Officer 

Brown used excessive force against Howard, depriving him of his right to be free from 

unreasonable seizure. 

At trial, Officer Brown planned to call a former Chicago police officer as an expert witness who 

would describe how the Chicago Police Department’s “Use of Force Model” applied to Officer 

Brown’s confrontation with Howard. The expert witness also planned to offer his conclusions 

that Officer Brown’s actions were consistent with departmental policy and that his response was 

appropriate under the circumstances. 

The government filed a motion to exclude this expert witness testimony, which the district court 

granted. 

The jury convicted Officer Brown of willfully violating Howard’s Fourth Amendment right to be 

free from excessive force. Officer Brown appealed, arguing that the district court improperly 

excluded his expert witness.

The court of appeals disagreed. First, the Fourth Amendment requires that seizures of persons be 

reasonable. As a result, it is a violation of the Fourth Amendment for police officers to use 

excessive force to effect an arrest. When an officer is accused of using excessive force, the issue

that a court must determine is whether the officer’s conduct was objectively reasonable under the 

circumstances. 

Second, the issue of whether an officer used excessive force is governed by constitutional 

principles, not police-department policy. An officer’s compliance with or deviation from 

departmental policy does not determine whether the officer used excessive force. Police 

department policies are not the same across the country. The court reasoned that if compliance 

with departmental policy were the standard, the Fourth Amendment’s reasonableness requirement 

would vary from place to place and the police department would have the final say as to what 

constituted a reasonable seizure, “a prospect that would have horrified those responsible for the 

Amendment’s ratification.” 

Third, the court noted that expert testimony concerning police policy is not categorically barred. 

Specifically, the court found that evidence of police policy or procedure in some cases might be 
9

relevant to determine whether an officer’s actions were objectively reasonable. Even though 

jurors can understand the concept of objective reasonableness, in some cases they may not fully 

grasp particular techniques or equipment used by police officers. In those cases, the court 

reasoned that expert testimony of this type may be relevant where specialized knowledge of law 

enforcement custom or training would assist the jury in understanding the facts, or resolving a 

contested issue. 

Fourth, the court held that this case provided a “textbook example of easily comprehensible facts.” 

Officer Brown was indicted for punching and kicking Howard. Officer Brown did not use a 

sophisticated tool or technique. He hit a motionless man in the face with his fist and continued to 

beat and kick him before placing him under arrest. The court concluded that an expert witness’ 

explanation of the Chicago Police Department’s Use of Force Model would have added nothing 

that the jurors could not ascertain on their own by viewing the surveillance video and applying 

their everyday common sense. Consequently, the court held that the district court properly 

excluded the expert witness’ testimony about departmental use of force standards. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca7/16-1603/16-1603-

2017-09-08.pdf?ts=1504899066

*****

United States v. Ford, 2017 U.S. App. LEXIS 18200 (7th Cir. Ill. Sept. 20, 2017)

A police officer with the Moline, Illinois Police Department saw a car with three male occupants 

enter Moline from Rock Island, Illinois around 2:00 a.m. on December 4, 2015. The officer ran 

the license plate after all three occupants looked away as they passed his marked car. The license 

plate check revealed that the vehicle was registered to Tyler Mincks. The officer recalled Mincks’ 

name from an officer safety advisory that the Rock Island Police Department had emailed to the 

Moline Police Department on December 3. The advisory stated that a few days earlier, Bryan 

Brinker shot Cameron Hoefle after Hoefle had stolen marijuana from Brinker. The advisory noted 

that Hoefle did not cooperate with the Rock Island investigators, and neither did his friends Tyler 

Mincks and Michael Ford. Instead, the three men told the investigators they would “deal with the 

situation themselves.” Consequently, the Rock Island Police Department sent the officer safety 

advisory to the Moline Police Department warning that Hoefle, Mincks, and Ford might go to 

Brinker’s residence to retaliate. 

The officer followed the car and conducted a stop when he observed a traffic violation. Mincks, 

Hoefle, and Ford were the occupants of the vehicle. After the officer removed an open beer bottle 

from the floor where Ford was sitting, he obtained identification from the men. A computer check 

revealed that Mincks, Hoefle, and Ford had extensive criminal histories as well as “alerts for gang 

activity, weapons, and drugs.” The officer directed the men out of the car and frisked them. When 

the officer frisked Ford, he felt an object he recognized as a cell phone and an unknown object 

that felt like a handle. Because the feel of a handle “could be indicative of a firearm,” the officer 

testified that he “scrunched” Ford’s pocket two or three times before he “reached in and retrieved” 

a small pistol.

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

Ford filed a motion to suppress the firearm, arguing that the officer did not have reasonable 

suspicion to frisk him. 
10

A police officer conducting a stop may frisk a suspect for weapons if the officer has an objectively 

reasonable suspicion that the suspect might be armed and dangerous. In this case, the court held 

that the officer had reasonable suspicion to believe Ford was armed and dangerous; therefore, the 

frisk was lawful. First, the officer had been warned via email that Ford and his companions might 

seek retaliation for the shooting of Hoefle two days earlier. Recent shootings, reports of 

discharged weapons, and indications of recent gang activity are factors that officers can use to 

support a finding of reasonable suspicion. Second, Ford and his companions likely had been 

drinking, as evidenced by the beer bottles found in the car. The court found that the consumption 

of alcohol gave the officer greater reason to be concerned that the men might be “unpredictable, 

unwise, and dangerous.” Finally, the officer knew that Ford, Mincks, and Hoefle had extensive 

criminal histories. 

Ford also argued that the officer exceeded the scope of the frisk by “scrunching” his pocket several 

times before removing the pistol. Ford claimed that it was unlawful for the officer to continue 

manipulating the object when its incriminating nature was not immediately apparent.

The court disagreed. The “immediately apparent” restriction does not apply until the officer 

determines that the object in question is not a weapon. When an officer feels a small, hard object 

during a frisk, he may have reasonable suspicion to believe the object is a weapon. In this case, 

the officer never concluded that the unknown object in Ford’s pocket was not a weapon. 

Consequently, the court held that when the officer felt the “handle-like” object in Ford’s pocket 

it was reasonable for him to believe the object was a weapon.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca7/16-3732/16-3732-

2017-09-20.pdf?ts=1505937670

*****

United States v. Jones, 2017 U.S. App. LEXIS 18204 (7th Cir. Ill. Sept. 20, 2017)

Based on information provided by a confidential informant (CI), the government suspected that 

Jones was the leader of a drug-distribution operation. After federal agents arrested one of Jones’ 

drug dealers, Jones engaged in an effort to locate and kill the CI. To achieve this goal, Jones 

went to an apartment building and fired a gun through a door to the apartment where he believed 

the (CI) lived. However, instead of shooting the CI, who lived in the same building, but in the 

unit on the floor below, Jones shot Kensha Barlow. 

A few days later, Barlow went to the local police station where Detective Taylor assembled a 

photo arrays based on information he received from the federal agents investigating Jones. 

Although Jones’ photograph appeared in the array, Barlow denied recognizing anyone in the array 

as the person who shot him. 

Two months later, Barlow was arrested on unrelated drug charges. While being interviewed by 

Special Agent Labno, Barlow mentioned that the person who shot him had been depicted in the 

photo array assembled by Detective Taylor. Barlow said that he denied any recognition of the 

shooter because he feared for his safety. At that point, Agent Labno left and printed large-scale 

pictures of the six individuals from Detective Taylor’s photo array, intending to display the photos 

for Barlow in the same order as the previous array.

When Agent Labno re-entered the interview room, he held the six photos in the same order as the 

previous array, however, the top three photos, which included Jones’ photo, were more 
11

prominently displayed than the other photos in the stack. Before Agent Labno could put the 

photos on the table, Barlow identified the person that shot him as the person depicted in Jones’ 

photo. Agent Barlow then placed the photos on the table in the same order as the previous array, 

as he initially planned to do, and Barlow identified Jones again. 

The government subsequently charged Jones with a variety of criminal offenses. Prior to trial, 

Jones filed a motion to suppress Barlow’s identification of him on several grounds. The district 

court denied his motion and after he was convicted, Jones appealed. 

First, Jones claimed that the identification procedure was unduly suggestive because Agent Labno

showed Barlow the same arrest photo of Jones that was contained in the array first administered 

by Detective Taylor.

The court disagreed. The court found that “there is nothing per se impermissible about placing 

the same suspect in two different identification procedures,” as the “danger to be avoided in 

identification procedures is that . . . of orchestrating the procedure so that the procedure implicitly 

suggests to the witness that ‘this is the man.’” Here, the agent showed Barlow the same arrest 

photo of Jones as well as the same arrest photos of the five other individuals. Given that the six 

photos were the same in both identification procedures, the court concluded that the use of the 

same arrest photo did not implicitly suggested that Jones was the shooter. 

Second, Jones claimed that when Agent Labno entered the room where Barlow was waiting, it 

was unduly suggestive to have his photo more prominently displayed than the other photos. 

Again, the court disagreed. When Agent Labno walked into the room, Jones’ photo was one of 

three photos that was more prominently displayed than the others were. However, the court found 

that Jones’ photo was no more prominently displayed than the other two photos. In addition, 

Jones’ photo, like the other two, was previously viewed at the initial identification procedure. 

Finally, Jones argued that the identification procedure was unduly suggestive because two months 

elapsed between the first identification procedure and the second identification procedure. 

The court noted that in a previous case it held that a two-month period between identification 

procedures did not make the second identification procedure unduly suggestive; therefore, the 

second identification procedure in this case was not unduly suggestive. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca7/16-2208/16-2208-

2017-09-20.pdf?ts=1505939447

*****

Ninth Circuit

Sharp v. Cty. of Orange, 2017 U.S. App. LEXIS 18148 (9th Cir. Cal. Sept. 19, 2017)

Merritt Sharp III (Sharp III) and his wife were home when police officers arrived to execute an 

arrest warrant for their son, Merritt Sharp IV (Sharp IV), whom the officers believed lived with 

his parents. The officers mistakenly arrested Sharp III instead of his son. During the course of 

the arrest officers forcefully restrained Sharp III and searched him. After the officers discovered 

their mistake, the officers kept Sharp III handcuffed and locked in a patrol car for approximately 

twenty minutes while they continued to search the house for Sharp IV. Sharp III was furious and 

adamantly protested his detention, loudly swearing at the officers and threatening to sue them. In 
12

response, one of the officers told Sharp III, “If you weren’t being so argumentative, I’d probably 

just put you on the curb.” 

Sharp III subsequently sued the officers under 42 U.S.C. § 1983. Sharp III alleged several Fourth 

Amendment violations based on the seizure of his person to include the initial mistaken arrest, the 

continuing detention in the patrol car, and the use of excessive force against him. Sharp III also 

alleged Fourth Amendment violations based on the search of his person and his house. In addition, 

Sharp III brought a First Amendment retaliation claim based on the officers’ refusal to release 

him on account of his “argumentative” demeanor.

The court held that the officers were entitled to qualified immunity on Sharp III’s Fourth 

Amendment claims. Although the court found that much of the officer’s conduct was 

unconstitutional, their actions were not prohibited by clearly established case law. 

However, the court held that the officers were not entitled to qualified immunity on Sharp III’s 

First Amendment retaliation claim. The officer told Sharp III, “If you weren’t being so 

argumentative, I’d probably just put you on the curb.” The court concluded that this statement 

constituted unconstitutional retaliation because the officer was essentially telling Sharp III, “If 

you weren’t [exercising your First Amendment rights], I’d probably [change the current 

conditions of your detention].” The court added that at the time of the incident Ninth Circuit 

Court of Appeals case law clearly established that this type of conduct was unconstitutional.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca9/15-56146/15-

56146-2017-09-19.pdf?ts=1505840584

*****

Eleventh Circuit

United States v. Williams, 2017 U.S. App. LEXIS 18202 (11th Cir. Ala. Sept. 20, 2017)

The government charged Williams and 24 other individuals with a variety of criminal offenses 

including conspiracy to distribute controlled substances, and a warrant was issued for Williams’

arrest. The agents confirmed that Williams’ residence consisted of a single-family, ranch-style 

house, with an outbuilding approximately twenty feet away in the back yard. The outbuilding 

resembled a guesthouse or mother-in-law-suite as it had a front and back door, several windows, 

and a garage door. During a pre-arrest operational meeting, the agents did not know whether 

Williams lived in the main house or the outbuilding. As a result, the agents planned to make 

simultaneous entries of both buildings. When agents performed a drive-by of Williams’ 

residence, they saw Williams’ car and two other vehicles parked in the driveway. Based on this 

observation the agents believed that Williams was possibly inside the residence with multiple 

other subjects. 

The agents arrived at Williams’ residence at approximately 6:00 a.m. and entered the main house 

and the outbuilding. One team of agents arrested Williams in the main house while a second team 

of agents entered the outbuilding. Inside the outbuilding the agents saw a white powdery residue 

and razor blades on a table, and a drug press sitting in the corner of the room. After the agents 

cleared the main house and outbuilding they obtained a warrant to search those areas based on 

their observations from the initial entry. During the search pursuant to the warrant, the agents 

seized cocaine, heroin, drug paraphernalia, and weapons.
13

Williams argued that the agents unlawfully entered the outbuilding because it was unreasonable 

to believe that he lived there or would be inside it. As a result, Williams claimed that the items 

the agents saw in the outbuilding could not provide a basis to obtain the search warrant.

The court disagreed. The court concluded that it was reasonable for the agents to enter the main 

house and the outbuilding pursuant to the arrest warrant. First, the agents confirmed that Williams 

owned the property through a public records check and had seen Williams on the property during 

previous surveillance. Second, it was reasonable for the agents to believe Williams was present 

when they executed the warrant as the agents confirmed that Williams’ car was in the driveway 

and the arrest occurred in the early morning. Finally, both buildings were possible living spaces, 

which made it reasonable for the agents to believe that Williams might be living or present in 

either structure. 

Alternatively, the court held that the agents’ entry into the outbuilding qualified as a valid 

protective sweep. 

To ensure their safety during an arrest, officers may conduct a protective sweep by searching areas

immediately adjoining the place of arrest where a person might be found. However, to search 

areas beyond those adjoining the place of arrest, officers must have reasonable suspicion that the 

area to be swept contains an individual posing a danger to those on the arrest scene. In this case, 

the court concluded that the close proximity of the outbuilding to the main house, the belief that 

drug distribution activities were occurring on the property, and the fact that there were three cars 

parked in the driveway suggested there might be other people besides Williams on the premises 

who could pose a threat to the agents’ safety. As a result, once the agents lawfully swept the 

outbuilding, any evidence observed in plain view could be used to obtain a search warrant. 

Williams also argued that evidence found in the outbuilding should have been suppressed because 

the agents executed the arrest warrant at approximately 6:00 a.m., which rendered the warrant 

invalid. 

The court disagreed. The court noted that the Fourth Amendment does not contain any time 

limitations on reasonable searches and seizures. However, Federal Rule of Criminal Procedure 

41 provides that warrants are to be executed “during the daytime,” unless the issuing judge for 

good cause shown expressly authorizes another time. Daytime is defined as “the hours between 

6:00 a.m. and 10:00 p.m. local time.” Assuming for the sake of argument that agents entered 

Williams’ residence a minute or two before 6:00 a.m., the court held that suppression of evidence 

was not proper because there was no evidence that the agents did so deliberately or that Williams’ 

arrest would not have otherwise occurred. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca11/16-16444/16-

16444-2017-09-20.pdf?ts=1505939508

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