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May 2015

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

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

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

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This edition of The Informer may be cited as 5 INFORMER 15.
The Informer – May 2015

Case Summaries

United States Supreme Court

Rodriguez v. United States: Whether an officer may extend the duration 

of an already completed traffic stop without reasonable suspicion or other 

lawful justification in order to conduct a dog sniff......................................................................4

Henderson v. United States: Whether 18 U.S.C. §922(g) prohibits a court from 

approving a convicted felon’s request to transfer his firearms to another person.......................5

San Francisco v. Sheehan: Whether the Americans with Disabilities Act requires 

law enforcement officers to provide accommodations to an armed, violent, and 

mentally ill suspect while attempting to arrest the suspect, and whether it was clearly

established that an entry into a residence could be unreasonable under the Fourth

Amendment because of the anticipated resistance of an armed and violent suspect within........5

 ♦

Circuit Courts of Appeals

First Circuit

United States v. Aviles-Vega: Whether information provided by an anonymous 

caller established reasonable suspicion to stop and frisk the defendant......................................7

Fifth Circuit

United States v. Alvarado-Zarza: Whether Tex. Transp. Code Ann. § 545.104(b),

which requires drivers to signal 100 feet in advance of a turn, applies to lane changes.............8

Seventh Circuit

United States v. Procknow: Whether a hotel’s lawful termination of the defendant’s 

occupancy allowed the hotel to give officers lawful consent to enter the defendant’s room......9

Eighth Circuit

United States v. Cotton: Whether officers had reasonable suspicion to conduct a

Terry stop and then a Terry frisk on the defendant.....................................................................9

United States v. Thurmond: Whether officers established probable cause to obtain a

warrant to search the defendant’s residence..............................................................................10

Tenth Circuit

United States v. Paetsch: Whether officers were justified in detaining the defendant, 

along with 28 other people, when they barricaded an intersection after a bank robbery 

without having a particularized suspicion that the defendant had robbed the bank..................10

2
Eleventh Circuit

Mobley v. Palm Beach County Sheriff Department: Whether officers were

entitled to qualified immunity after the plaintiff alleged the officers used excessive

force when they arrested him.....................................................................................................11

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

privacy in cell site location information retained by the cell phone service provider,

and whether the government could lawfully obtain this information under a §2703(d)

court order..................................................................................................................................12

District of Columbia Circuit

United States v. Gross: Whether the defendant was seized under the Fourth

Amendment after an officer asked the defendant if he was carrying a gun and if

he would show the officer his waistband...................................................................................13

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3
CASE SUMMARIES

United States Supreme Court

Rodriguez v. United States, 2015 U.S. LEXIS 2807 (U.S. Apr. 21, 2015)

A police officer stopped Rodriguez for a traffic violation. After completing all of the tasks 

related to the stop, to include checking Rodriguez’s driver’s license and issuing a warning 

ticket, the officer asked Rodriguez for permission to walk his drug-sniffing dog around 

Rodriguez’s car. After Rodriguez refused, the officer directed Rodriguez to get out of the car 

until a back-up officer arrived. After the back-up officer arrived, the officer walked his dog 

around Rodriguez’s car and the dog alerted to the presence of drugs. The officer searched the

car, found a large bag of methamphetamine and arrested Rodriguez. Approximately seven or 

eight minutes elapsed from the time the officer issued the warning ticket until the dog alerted 

on Rodriguez’s car. 

Rodriguez moved to suppress the evidence seized from his car. Rodriguez argued that after 

issuing the ticket, the officer violated the Fourth Amendment by extending the duration of the 

traffic stop without reasonable suspicion in order to conduct the dog sniff. 

The district court denied Rodriguez’s motion. The court held that dog sniffs that occur 

shortly after the completion of a traffic stop are lawful if they constitute only a de minimis

intrusion on a person’s liberty. Here, the court found the seven to eight minutes added to the 

duration of the stop constituted a de minimis intrusion on Rodriguez’s personal liberty; 

therefore, it was reasonable for the officer to extend the duration of the stop after issuing 

Rodriguez a ticket.

The Eighth Circuit Court of Appeals affirmed the district court. Because the court held the 

delay in this case constituted an acceptable de minimis intrusion on Rodriguez’s personal 

liberty, the court declined to address whether the officer established independent reasonable 

suspicion to extend the duration of the stop after issuing Rodriguez the ticket. 

The issue before the Supreme Court was whether an officer may extend an already completed 

traffic stop for a dog sniff without reasonable suspicion or other lawful justification. In a 6-3 

decision, the court held that “a police stop exceeding the time needed to handle the matter for 

which the stop was made” constitutes an unreasonable seizure under the Fourth Amendment. 

When conducting a traffic stop, officers may check the driver’s license, determine whether 

there are outstanding warrants against the driver and inspect the automobile’s registration and 

proof of insurance. The court noted that all of these tasks are related to the objective of the 

stop, which is enforcement of the traffic code and ensuring that vehicles on the road are 

operated safely and responsibly. On the other hand, a dog sniff aimed at detecting evidence 

of a crime is not a routine measure ordinarily incident to a traffic stop. Consequently, the 

court noted the critical question is not whether the dog sniff occurs before or after the officer 

issues the ticket, but whether conducting the dog sniff extends the duration of the stop. If the 

dog sniff extends the duration of the stop, it is a violation of the Fourth Amendment unless the 

officer has reasonable suspicion of criminal activity. As the Eighth Circuit Court of Appeals 

never determined whether the officer had reasonable suspicion of criminal activity to justify 

4
the seizure of Rodriguez beyond the time needed to issue the ticket, the Supreme Court 

remanded the case to the Eighth Circuit to decide this issue.

Click HERE for the court’s opinion.

*****

Henderson v. United States, 2015 U.S. LEXIS 3199 (U.S. May 18, 2015)

Henderson, a former United States Border Patrol Agent, was charged with distribution of 

marijuana, a federal felony. As a condition of his bond, Henderson voluntarily surrendered 

nineteen firearms to the Federal Bureau of Investigation (FBI). Henderson pled guilty to the 

drug charge and became a convicted felon in 2007. In 2008, the FBI refused to return the 

firearms after Henderson proposed to transfer them to a potential buyer. Henderson then filed 

a motion under Rule 41(g) of the Federal Rules of Criminal Procedure requesting that he be 

allowed to transfer ownership of the firearms to the potential buyer, or alternatively, to his 

wife. 

The Eleventh Circuit Court of Appeals, in an unpublished opinion, denied Henderson’s 

motion. The court held it would be in violation of 18 U.S.C. § 922(g) if the court delivered 

actual or constructive possession of firearms to a convicted felon. The court noted Henderson 

acknowledged in his plea agreement that as a felon he would not be allowed to possess 

firearms. In addition, the court stated a defendant who has been convicted of a felony drug 

offense has “unclean hands” to demand the equitable return of his firearms. 

The issue before the Supreme Court was whether 18 U.S.C. § 922(g) prohibits a court from 

approving a convicted felon’s request to transfer his firearms to another person. 

The court reversed the Eleventh Circuit and held that a court ordered transfer of a felon’s 

lawfully owned firearms from government custody to a third party is not prohibited by 18

U.S.C. § 922(g) if the court is satisfied that the recipient will not give the felon control over 

the firearms. For example, the court noted that a court could order the guns be turned over to 

a firearms dealer for subsequent sale on the open market. Another option would be for the 

court to grant a felon’s request to transfer his firearms to a third party who would maintain 

custody of them. Under either option, a court must first be satisfied that the recipient of the 

firearms will not allow the felon to either use the firearms or direct their use. 

Click HERE for the court’s opinion.

*****

San Francisco v. Sheehan, 2015 U.S. LEXIS 3200 (U.S. May 18, 2015)

Sheehan, a woman who suffered from mental illness, lived in a group home that 

accommodated such persons. Sheehan’s social worker became concerned about her 

deteriorating condition because Sheehan was not taking her medications. When the social 

worker entered Sheehan’s room, Sheehan told the social worker to get out. In addition, 

Sheehan told the social worker she had a knife and threatened to kill him. The social worker 

left Sheehan’s room, cleared the building of other residents and called the police to help him 

transport Sheehan to a mental health facility for an involuntary commitment for evaluation 

and treatment. 

5
When Officers Reynolds and Holder arrived, the social worker told them he had cleared the 

building of other residents. The social worker also told the officers the only way for Sheehan 

to leave her room was by using the main door, as the window in Sheehan’s room could not be 

used as a means of escape without a ladder. The officers then entered Sheehan’s room 

without a warrant to confirm the social worker’s assessment, and to take Sheehan into 

custody. When Sheehan saw the officers, she grabbed a knife and threatened to kill them, 

stating she did not wish to be taken to a mental health facility. The officers went back into the 

hallway and closed the door to Sheehan’s room. The officers called for back-up, but before 

other officers arrived, Reynolds and Holder drew their firearms and forced their way back into 

Sheehan’s room. After Sheehan threatened the officers with a knife, the officers shot Sheehan 

five or six times. Sheehan survived and sued the city and the officers, claiming the officers 

violated her Fourth Amendment rights by entering her room without a warrant and using 

excessive force. 

The Ninth Circuit Court of Appeals held the officers first warrantless entry into Sheehan’s 

room was justified under the emergency aid exception to the Fourth Amendment’s warrant 

requirement. The court concluded that when the officers first entered Sheehan’s room, they 

had an objectively reasonable basis to believe Sheehan was in need of emergency medical 

assistance based on the information provided by the social worker. 

However, the court found that even though the officers might have been justified in entering 

Sheehan’s room the second time, there were unresolved factual issues that had to be 

determined by a jury and not the court. For example, Sheehan produced evidence suggesting 

the officers deviated from training they received from their department on how to deal with 

mentally ill subjects. Consequently, because a reasonable jury could find that the officers 

acted unreasonably by forcing their way into Sheehan’s room and provoking a near fatal 

confrontation, the court concluded the officers were not entitled to qualified immunity.

Concerning the officers’ use of deadly force, the court held at the moment of the shooting, the 

officers’ use of deadly force was reasonable because Sheehan posed an immediate threat of 

danger to the officers’ safety. However, the court determined that under Ninth Circuit case 

law, police officers may be liable for an otherwise lawful use of deadly force when they 

intentionally or recklessly provoke a violent confrontation by actions that rise to the level of a 

separate Fourth Amendment violation. In this case, the court found that Sheehan presented 

evidence from which a reasonable jury could find the officers acted recklessly by failing to 

take her mental illness into account and in forcing a deadly confrontation rather than 

attempting to de-escalate the situation. 

The City of San Francisco and the officers appealed, and the United States Supreme Court 

agreed to hear arguments on the two questions presented below.

1. Whether Title II of the Americans with Disabilities Act (ADA) requires law 

enforcement officers to provide accommodations to an armed, violent, and mentally ill 

suspect in the course of bringing the suspect into custody.

2. Whether it was clearly established that even where an exception to the warrant 

requirement applied, an entry into a residence could be unreasonable under the Fourth 

Amendment by reason of the anticipated resistance of an armed and violent suspect 

within. 

6
First, the Supreme Court dismissed the first question presented by the city because at oral 

argument, the city did not argue the issue presented in the question. Instead of arguing that 

the ADA did not apply to enforcement actions by law enforcement officers, the city conceded 

that the ADA might apply to arrests. The city then argued that in this case, the officers were 

not required to provide Sheehan an accommodation under the ADA because of the threat she 

posed to the officers. Because the United States Supreme Court does not usually decide 

questions of law that were not presented to and ruled upon by a lower court, it decided to 

dismiss the first question presented by the city. 

Concerning the second question presented by the officers, the court reversed the Ninth 

Circuit, holding the officers were entitled to qualified immunity. First, the court held the case 

law relied upon by the Ninth Circuit in denying the officers qualified immunity did not clearly 

establish that it was unreasonable for the officers to forcibly enter the home of an armed, 

mentally ill suspect who had been acting irrationally and threatening others when there was 

no objective need for immediate entry. Second, even if the officers acted contrary to the 

training they received on how to deal with mentally ill subjects, the court held at the time of 

the incident is was not clearly established that the Fourth Amendment required the officers to 

accommodate Sheehan’s mental illness before attempting to arrest her. 

Click HERE for the court’s opinion.

*****

Circuit Courts of Appeal

First Circuit

United States v. Aviles-Vega, 2015 U.S. App. LEXIS 5971 (1st Cir. P.R. Apr. 13, 2015)

An anonymous caller reported that he had witnessed the front-seat passenger in the car 

travelling in front of him, pass a firearm to a rear-seat passenger. The caller described the car, 

provided a partial license plate number as well as the location of the incident and the car’s 

direction of travel. Within thirty minutes, officers located a car matching the description of 

the car provided by the caller. The officers ordered the four occupants, including Vega, out of 

the car. An officer frisked Vega and seized a loaded handgun from him. The government 

charged Vega with being a felon in possession of a firearm. 

Vega argued the firearm should have been suppressed because the information provided by 

the anonymous caller was not sufficiently reliable to provide the officers with reasonable 

suspicion to stop and then frisk him. 

The court disagreed. First, the court recognized that Puerto Rico is a concealed-carry 

jurisdiction; therefore, a person must carry a firearm in a concealed manner even if he 

possesses a license to carry the firearm. Consequently, the court concluded if the information 

provided by the caller was correct, the officers had reasonable suspicion to believe the 

occupants in Vega’s car had violated the conceal-carry law. Second, the court held the 

information provided by the anonymous caller was sufficiently reliable to establish reasonable 

suspicion for the officers to stop Vega and frisk him. Here, the caller reported that he had just 

witnessed the passing of a firearm in Vega’s car and provided a detailed description and 

7
location of the car. The court found that the caller’s tip suggested he was a concerned citizen 

reporting his direct observation of a crime and not a person making a false report.

Click HERE for the court’s opinion.

*****

Fifth Circuit

United States v. Alvarado-Zarza, 2015 U.S. App. LEXIS 5499 (5th Cir. Tex. Apr. 6, 

2015)

An officer stopped Zarza for violating Tex. Transp. Code Ann. § 545.104(b) which requires 

drivers to signal 100 feet in advance of a turn. During the stop, the officer obtained consent to 

search and found cocaine in Zarza’s car. The government charged Zarza with possession with 

intent to distribute cocaine.

Zarza moved to suppress the evidence of the cocaine. At the suppression hearing, the officer 

testified that he believed Zarza violated § 545.104(b) by failing to signal 100 feet before 

making a lane change, and not when Zarza actually turned. Zarza claimed the stop was 

unlawful because § 545.104(b) only applies to turns, not lane changes. 

The court agreed with Zarza. First, the court found § 545.104(b) is unambiguous, as its 100-

foot requirement only applies to turns, not lane changes. Second, in other sections of the 

statute, there is a distinction made between turns and lane changes. Third, the Texas Driver’s 

Handbook defines the distinction between turns and lane changes. Consequently, the court 

concluded that § 545.104(b) by its plain terms, does not apply to lane changes. 

Next, the court noted that seven months before Zarza’s stop, the Texas Court of Criminal 

Appeals, in Mahaffey v. State, drew a clear distinction between turns and other movements, 

including lane changes. Because applicable case law pre-dated Zarza’s stop and because §

545.104(b) gave no support to the officer’s interpretation of the 100-foot requirement, the 

court concluded the officer’s mistake of the law was objectively unreasonable. 

The court further held is was not objectively reasonable for the officer to believe Zarza failed 

to signal 100 feet before actually turning when credible expert witness testimony concluded 

Zarza signaled 300 feet before turning. The officer conceded that he acted quickly and could 

not “really be measuring” the exact signaling distance. In addition, the officer’s estimations 

of distance related to the point where Zarza changed lanes and not the point where he turned. 

As a result, the court held the officer did not have reasonable suspicion to believe Zarza 

violated § 545.104(b); therefore, the evidence seized during the stop should have been 

suppressed.

Click HERE for the court’s opinion.

*****

8
Seventh Circuit

United States v. Procknow, 2015 U.S. App. LEXIS 6942 (7th Cir. Wis. Apr. 27, 2015)

Officers arrested Procknow and his girlfriend, Van Krevelen, in the lobby of a hotel where the 

couple had been staying. After their arrests, the hotel manager told officers the couple’s hotel 

stay was being terminated and asked the officers to collect the dog believed to be in their 

room. The officers entered Procknow’s room and secured the couple’s dog. While in the 

room, officers saw documents, financial forms and other evidence that caused them to believe 

Procknow was involved in identity theft. The officers secured the room, obtained a search 

warrant and seized evidence related to identity theft. At trial, Procknow moved to suppress all 

the evidence, arguing the officers’ initial warrantless entry into his hotel room violated the 

Fourth Amendment. 

The court disagreed. The court ruled the hotel’s termination of Procknow’s occupancy was 

justified under Minnesota law. Once the hotel terminated Procknow’s occupancy, the court 

held Procknow lost any reasonable expectation of privacy he might have had in the hotel 

room. After this occurred, the authority to consent to the officers’ entry into the room 

reverted to the hotel. As a result, the court held the officers’ entry into the hotel room did not 

violate the Fourth Amendment and the evidence seized was admissible against Procknow.

Click HERE for the court’s opinion.

*****

Eighth Circuit

United States v. Cotton, 2015 U.S. App. LEXIS 5459 (8th Cir. Minn. Apr. 6, 2015)

Officers were on patrol at an apartment complex when they saw a person throw a set of keys 

off a third floor balcony to two men who were standing on the ground below. The officers 

knew the property manager had instructed residents of the complex not to throw their keys off 

their balconies to people waiting below, as this behavior compromised the security of the 

building. In addition, one of the officers had patrolled the area for over eight years and 

described the location around the complex as a violent area plagued with narcotics activity, 

robberies and shootings. Immediately after the keys hit the ground, the officers told the men 

they were not allowed to take the keys. One of the men ignored the officers, grabbed the keys 

and entered an apartment. As the man was entering the apartment, the officers ordered him to 

stop; however, the man did not comply. During this time, the other man, who had a nervous 

look on his face, did not move. When the officers approached the man, later identified as 

Cotton, he reached for his waistband. Believing that Cotton was reaching for a weapon, the 

officers grabbed Cotton’s arms and handcuffed him. The officers frisked Cotton and seized a 

pistol from his waistband. The government indicted Cotton for being a felon in possession of 

a firearm. 

Cotton moved to suppress the pistol, arguing the officers did not have reasonable suspicion to 

initially stop him and then to frisk him.

The court disagreed. First, the officers encountered Cotton and another man in an area known 

for violence. Second, the unidentified man failed to comply with the officers’ commands not 

to pick up the keys, and when the man picked up the keys, he fled. As a result, the court 

9
concluded Cotton’s location in relation to the other man and the keys, combined with the 

violation of the apartment complex’s rules, gave the officers reasonable suspicion to conduct 

a Terry stop of Cotton.

The court further held the officers established reasonable suspicion to believe Cotton was 

armed and dangerous. The encounter occurred in a known violent area, and as the officers 

approached Cotton, he reached for his waistband with a nervous look on his face. 

Consequently, the court held it was reasonable for the officers to detain Cotton to conduct a 

Terry frisk.

Click HERE for the court’s opinion.

*****

United States v. Thurmond, 2015 U.S. App. LEXIS 5932 (8th Cir. Iowa Apr. 13, 2015)

An informant told officers that a man and a woman were selling crack cocaine from a specific 

residence. Officers went to the address and conducted a trash-pull. Inside one of the trash 

bags, officers found two marijuana “roaches” with green plant material inside that looked and 

smelled like marijuana, as well as “blunt” material and a piece of mail addressed to Thurmond 

at that address. A field test of the suspected marijuana tested positive for THC. The next day, 

officers conducted surveillance on the residence, but did not observe activity consistent with 

the sale of illegal drugs. The officers also discovered that Thurmond had been arrested one 

month prior for possession of a controlled substance and that he had a juvenile record, which 

included possession of a controlled substance. The following day, officers executed a search 

warrant on the residence and seized a sawed-off shotgun, marijuana and drug paraphernalia. 

The government indicted Thurmond for possession of an unregistered sawed-off shotgun. 

Thurmond argued the weapon should have been suppressed because the officers’ discovery of 

a de minimis amount of discarded marijuana in his trash did not establish probable cause to 

obtain the warrant to search his house. 

The court disagreed. Based on the totality of the circumstances, to include Thurmond’s 

history with controlled substances and the contraband obtained from the trash pull, the court 

held the officers established probable cause to believe contraband would be found in 

Thurmond’s residence. In addition, the court held the two-day delay in seeking the warrant 

following the trash-pull did not diminish the probable cause. The officers conducted the 

trash-pull and then reasonably conducted surveillance on the residence the next day, which 

did not yield any results. The court concluded that obtaining the warrant the following day 

did nothing to lessen the probable cause determination. 

Click HERE for the court’s opinion.

*****

Tenth Circuit

United States v. Paetsch, 2015 U.S. App. LEXIS 5624 (10th Cir. Colo. Apr. 8, 2015)

After an armed bank robbery, officers learned that one of the stacks of stolen money 

contained a Global Positioning System (GPS) tracking device. Approximately fourteen 

minutes after the robbery, officers isolated the GPS signal to a general area and barricaded an

10
intersection, which prevented a group of 20 cars containing 29 people from leaving. 

Approximately thirty-minutes later, officers ordered Paetsch out of his car and handcuffed 

him after he kept shifting in his seat and failed to keep his hands outside his car as ordered. 

After the officers cleared all 20 cars, they began a secondary search by looking through the 

cars’ windows to ensure no one was hiding inside them. Inside Paetsch’s car, officers saw a 

money band and a slip of colored paper that banks use to wrap stacks of money. 

Approximately one-hour later, the officers isolated the GPS signal to Paetsch’s car. The 

officers arrested Paetsch, searched his car and recovered stolen cash, the GPS tracking device, 

two handguns and other evidence related to the bank robbery.

Paetsch moved to suppress statements he made to the officers as well as the physical evidence 

seized from his car. Paetsch argued the police barricade violated the Fourth Amendment

because the officers lacked individualized suspicion that any particular person stopped at the 

intersection had committed the bank robbery. 

The court disagreed. The court held Paetsch’s initial thirty-minute seizure at the barricade did 

not violate the Fourth Amendment because the public interest in apprehending an armed bank 

robber outweighed the minimal intrusion on Paetsch’s liberty. The court further held that 

when the officers directed Paetsch out of his car and handcuffed him, they had established 

reasonable suspicion to believe Paetsch was involved in the robbery. As a result, the court 

concluded Paetsch’s additional one-hour detention was reasonable until the officers confirmed 

the GPS tracking device was located inside Paetsch’s car and arrested him. 

Click HERE for the court’s opinion.

*****

Eleventh Circuit

Mobley v. Palm Beach Cnty. Sheriff Dep't., 2015 U.S. App. LEXIS 6094 (11th Cir. Fla. 

Apr. 15, 2015)

Mobley was seated in his parked truck preparing to smoke crack cocaine when a police officer 

approached and asked Mobley, “What are you doing?” When Mobley started his truck, the 

officer reached through the open driver’s side window and tried to open the door. Mobley 

backed his truck out of the parking space and dragged the officer approximately twenty-feet 

across the parking lot before the officer fell clear of the truck. After Mobley fled, the officer 

radioed a bulletin that included a description of Mobley and his truck, and the fact that 

Mobley struck him with the truck and had tried to run him over. A short time later, other 

officers located Mobley and began a vehicle pursuit. During the pursuit, Mobley drove 

recklessly at high speeds in an attempt to evade the officers. After Mobley struck a tree, he 

exited his damaged truck and waded into the middle of an adjacent retention pond. Mobley 

eventually walked out of the pond and the officers shoved him to the ground. While on the 

ground, officers struck, kicked and tased Mobley repeatedly after Mobley refused the officers’ 

commands to place his hands behind his back to be handcuffed. As a result, Mobley suffered 

a broken nose, teeth and a broken dental plate. 

Mobley sued nine police officers under 42 U.S.C. § 1983 claiming the officers had used 

excessive force when they arrested him.

11
The court held the officers were entitled to qualified immunity. First, the officers who 

participated in Mobley’s arrest knew that Mobley was a fleeing suspect who had had struck an 

officer with his truck and then led officers on a reckless, high-speed chase. Second, the 

officers saw Mobley wade into the middle of a pond in what they reasonably assumed was a 

continuing attempt to avoid arrest. Finally, Mobley refused to allow the officers to handcuff 

him despite the application of escalating force and repeated use of a taser. The court 

concluded, under those circumstances, striking, kicking and tasing the resisting and 

presumably dangerous suspect in order to arrest him were reasonable uses of force and did not 

violate Mobley’s constitutional rights. 

Click HERE for the court’s opinion.

*****

United States v. Davis, 2015 U.S. App. LEXIS 7385 (11th Cir. Fla. May 5, 2015)

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

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

location information included a record of Davis’ calls and revealed which cell towers carried 

the calls. The government argued the cell site location information established that Davis 

placed and received cell phone calls near the locations of the robberies around the same time 

the robberies were committed. The government obtained Davis’ cell site location information 

after obtaining a court order pursuant to 18 U.S.C. § 2703(d). To obtain a court order under 

§2703(d), the government was not required to establish probable cause. 

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

government was required to obtain a warrant based on probable cause to obtain his cell site 

location information. The government argued the cell site location information was not 

covered by the Fourth Amendment and was properly obtained under the § 2703(d) court order.

A three-judge panel with the Eleventh Circuit Court of Appeals held that Davis had a 

reasonable expectation of privacy in the cell site location information and the government 

violated the Fourth Amendment when it obtained that information without a warrant. 

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

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

the court concluded the police officers, prosecutors and judge who issued the order followed 

the requirements of 18 U.S.C. § 2703 and had no reason to believe it was unconstitutional as 

written. The government appealed the panel’s ruling on the Fourth Amendment issue and the 

Eleventh Circuit Court of Appeals agreed to a rehearing en banc, or in front of eleven judges.

The full Eleventh Circuit Court of Appeals reversed the three judge panel, and held that the 

government did not violate the Fourth Amendment by obtaining Davis’ cell site location 

information through the use of a §2703(d) court order. The court concluded Davis had no 

reasonable expectation of privacy in these business records, which were maintained by the 

cell phone service provider. As a result, the government’s obtaining a §2703 (d) court order 

for the production of the cell phone provider’s business records at issue did not constitute a 

search under the Fourth Amendment. 

Click HERE for the court’s opinion.

*****

12
District of Columbia Circuit

United States v. Gross, 2015 U.S. App. LEXIS 6526 (D.C. Cir. Apr. 21, 2015)

Four officers with the D.C. Metropolitan Police Department’s Gun Recovery Unit were riding 

together in a police car in an attempt to recover guns. The officers’ car was unmarked, but 

each officer wore a tactical vest that said “police” in large letters on the front and back. When 

the officers first saw Gross, he was walking on the sidewalk to the left side of their car. When 

the officers reached an intersection, they turned left and watched as Gross also turned left and 

continued to travel in the same direction as the officers. Officer Bagshaw slowed the car as it 

moved next to Gross and shined a flashlight on Gross to get his attention. Officer Bagshaw 

then called out to Gross from the car, “Hey, it is the police, how are you doing? Do you have 

a gun?” Gross stopped, but did not reply. Officer Bagshaw stopped the car parallel to Gross 

and asked him, “Can I see your waistband?” Gross did not reply; however, he lifted his jacket 

to show his left side. Suspicious of Gross, Officer Katz exited the car and asked Gross, “Can 

I check you out for a gun?” Gross turned around and fled, with Officer Katz in pursuit. 

During the chase, Officer Katz saw Gross patting his right side with his hand, which caused 

Officer Katz to believe that Gross might be trying to hold a gun in his waistband. After 

Officer Katz apprehended Gross, he performed a Terry frisk and recovered a handgun from 

Gross’ waistband. The government indicted Gross for unlawful possession of a firearm by a 

convicted felon. 

Gross moved to suppress the handgun, arguing that he was unlawfully seized when Officer 

Bagshaw, speaking to him from the police car, asked Gross if he was carrying a gun and 

would expose his waistband. 

The court disagreed. A Fourth Amendment seizure occurs only when an officer, “by means of 

physical force or show of authority, has in some way restrained the liberty” of a person. The 

court noted that the presence of multiple officers wearing police gear does not automatically 

mean that a person has been seized. In this case, all four officers remained in a car separated 

from Gross by one lane of traffic during Officer Bagshaw’s questioning. In addition, while 

the officers carried weapons, there was no indication that the weapons were visible to Gross 

from the sidewalk. The court further found that Officer Bagshaw’s questions, “Do you have a 

gun?” and “Can I see your waistband?” did not accuse Gross of possessing a gun or 

committing a crime. Instead, Officer Bagshaw simply asked Gross two questions. 

Consequently, the court concluded that Officer Bagshaw’s questioning of Gross did not 

constitute a Fourth Amendment seizure. Gross did not appeal the denial of his suppression 

motion regarding Officer Katz’s question or the subsequent foot-chase and Terry frisk.

Click HERE for the court’s opinion.

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