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March 2020

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

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

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

legal articles written to clarify or highlight various issues. The views expressed in these articles are the opinions of the author and 

do not necessarily reflect the views of the Federal Law Enforcement Training Centers. The Informer is researched and written by 

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This edition of The Informer may be cited as 3 INFORMER 20.
2

The Informer – March 2020

Case Summaries

United States Supreme Court

Hernandez v. Mesa: Whether the parents of a 15-year-old Mexican national who was 

killed by a Border Patrol agent in a cross-border shooting could bring a lawsuit against 

the agent under Bivens v. Six Unknown Fed. Narcotics Agents for alleged Fourth and

Fifth Amendment violations.............................................................................................................4

Circuit Courts of Appeals

Third Circuit

United States v. Baxter: Whether the border-search exception to the Fourth Amendment 

applied to the search of packages sent from the United States mainland to the United States 

Virgin Islands...................................................................................................................................5

Sixth Circuit

United States v. Ramamoorthy: Whether the defendant voluntarily, knowingly, and 

intelligently waived his Miranda rights prior to a custodial interrogation.........................................6

Eighth Circuit

United States v. Hoeffener: Whether the defendant had a reasonable expectation in 

computer files that he made available to the public through a peer-to-peer file sharing network......7

United States v. Williams: Whether the collection of evidence from the defendant’s

house was valid under the plain view seizure doctrine......................................................................8

McGuire v. Cooper: Whether a sheriff was entitled to qualified immunity in a lawsuit in

which the plaintiff claimed that he failed to reasonably train and supervise a deputy who

sexually assaulted her during a stop..................................................................................................8

District of Columbia

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

during an interview conducted by federal agents at the defendant’s home......................................10

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Cybercrime & Technical Investigations Training Conference 2020

The Federal Law Enforcement Training Centers (FLETC) Glynco, Georgia cordially invites you 

to attend the third FLETC CyberCrime & Technical Investigations Training Conference (CYCON2020) September 9-11, 2020. The goal of the conference is to foster education and awareness of 

current threats and innovations which impact how law enforcement investigate cybercrime and 

how they conduct technical investigations. Attendees will experience exhibits, lectures, 

demonstrations, and hands-on labs. Last held in 2018, CYCON-2018 provided 70 break-out 

training sessions from FLETC and industry professionals with 77 representatives from more than 

40 companies in attendance. There is no cost to attendees or vendors for participation; however, 

attendees, vendors, and agencies are responsible for all travel, lodging, and meal costs.
3

For additional details concerning attendee registration, conducting a presentation for CYCON2020, or conducting a vendor product demonstration please see the FLETC CYCON-2020 website:

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FLETC Office of Chief Counsel Podcast Series

Fundamentals of the Fourth Amendment – A 15-part podcast series that covers the

following Fourth Amendment topics: 

Click Here: https://leolaw.podbean.com/

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FLETC Informer Webinar Schedule

1. Law Enforcement Report Writing (1-hour)

Presented by Mary M. Mara, Attorney-Advisor/Senior Instructor, Federal Law Enforcement 

Training Centers, Artesia, New Mexico. 

The importance of a well-written police report cannot be overstated; it represents an officer’s first, 

best, and sometimes only opportunity to clearly and plainly set forth all of the relevant facts of a 

case as well as the factors that went into the officer’s decision-making process. While a wellwritten police report provides a solid foundation for subsequent criminal and civil litigation, a 

poorly written report can undermine an officer’s credibility, sabotage criminal prosecution, and 

expose the officer and his or her department to scrutiny, criticism, and protracted civil litigation. 

This webinar will review the significance of effective report writing and offer tips to improve this 

critical skillset. 

Wednesday, April 15, 2020: 3 p.m. EST / 2 p.m. CST / 1 p.m. MST / 12 p.m. PST

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

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audio bridge line at (877) 446-3914 and enter participant passcode 232080 when prompted. 

A Flash History of the Fourth Amendment

What is a Fourth Amendment Search?

What is a Fourth Amendment Seizure?

Fourth Amendment Levels of Suspicion

Stops and Arrests

Plain View Seizures

Mobile Conveyance (Part 1 and Part 2)

Exigent Circumstances

Frisks

Searches Incident to Arrest (SIA)

Consent (Part 1 and Part 2)

Inventories

Inspection Authorities
4

 CASE SUMMARIES

 Circuit Courts of Appeal

United States Supreme Court

Hernandez v. Mesa, 140 S. Ct. 735 (2020) 

A United States Border Patrol Agent, Jesus Mesa, Jr., standing in the United States, shot and killed 

Sergio Hernandez Guereca, a fifteen-year old Mexican citizen, standing in Mexico. Hernandez’s 

parents (plaintiffs) filed a lawsuit against Agent Mesa under Bivens v. Six Unknown Fed. 

Narcotics Agents, alleging that Agent Mesa violated their son’s rights under the Fourth and Fifth 

Amendments. Specifically, the plaintiffs alleged that Agent Mesa violated the Fourth Amendment 

by using excessive force against Hernandez and the Fifth Amendment by depriving Hernandez of 

due process. 

The Fifth Circuit Court of Appeals, sitting en banc, without deciding the issue, assumed the 

plaintiffs could sue Agent Mesa under Bivens. However, the court then held that the plaintiffs 

failed to state a claim for a violation of the Fourth Amendment because Hernandez was a Mexican 

citizen who had no “significant voluntary connection to the United States” and “was on Mexican 

soil at the time he was shot.” Consequently, the court dismissed the plaintiff’s Fourth Amendment 

excessive force claim.

The court further held that Agent Mesa was entitled to qualified immunity on the plaintiffs’ Fifth 

Amendment due process claim. Again, the court did not decide whether the plaintiffs could sue 

Agent Mesa under Bivens. Instead, the court granted Agent Mesa qualified immunity, finding 

that at the time of the shooting it was not clearly established that shooting across the United States 

border into Mexico and injuring someone with no significant connection to the United States was 

unlawful. 

Significantly, the Fifth Circuit Court of Appeals dismissed the lawsuit without deciding whether 

the plaintiffs had stated a valid constitutional claim under the Fourth or Fifth Amendments and 

whether they could sue Agent Mesa under Bivens. Hernandez appealed to the Supreme Court.

The Supreme Court vacated the Fifth Circuit Court of Appeal’s judgment and remanded the case 

on June 26, 2017. In part, the Court found that the Fifth Circuit should determine whether the 

plaintiffs have the right to sue Agent Mesa for the alleged Fourth and Fifth Amendment violations 

under Bivens, as no federal statute authorizes an action by a foreign citizen injured on foreign soil 

by a federal law enforcement officer under these circumstances. To determine this issue, the Court 

directed the Fifth Circuit Court of Appeals to apply the facts of the case to the two-prong test the 

Court outlined in Ziglar v. Abbasi, decided on June 19, 2017. In Abbasi, the Court noted that it 

does not favor judicially implied causes of action, such as Bivens, because under the separation 

of powers principle, Congress is in a better position to create express causes of action. Going 

forward, the Court commented that lower courts should determine if a case “is different in a 

meaningful way” from prior Bivens cases and if any “special factors” are present that would 

preclude extending Bivens. 
5

On remand, the Fifth Circuit Court of Appeals dismissed the lawsuit against Mesa. First, the court

held that this was not a typical excessive force case against a federal law enforcement officer. The 

court found that the transnational aspect of the facts presented a meaningful difference that would 

present a “new context” for a Bivens claim. Because Hernandez was a Mexican citizen with no 

ties to the United States, and his death occurred on Mexican soil, the existence of any 

Constitutional rights he might have had raises novel and disputed issues. In addition, the court 

recognized that there has been no direct judicial guidance concerning the extraterritorial scope of 

the Constitution and its potential application to foreign citizens on foreign soil. 

The court held that the “newness” of this “new context,” by itself, warranted the dismissal of 

Hernandez’s claim. The court further added that several “special factors” existed which precluded 

the court from extending Bivens in this area. The court found that judicially creating a cause of 

action in this transnational context would increase the likelihood that Border Patrol agents would 

“hesitate in making split second decisions.” The court also noted that extending Bivens in this 

context risked interference with foreign affairs and diplomacy in general. Finally, the court noted 

that Congress’ failure to provide causes of action in other related legislation was intentional and 

represented Congress’ refusal to create private rights of action against federal officials for injuries 

to foreign citizens on foreign soil. The court concluded by stating that it “is not credible that 

Congress would favor judicial invention of those rights.”

Hernandez appealed and the Supreme Court granted certiorari on May 28, 2019. The issue before 

the Court was:

Whether the federal courts can and should recognize a claim for damages under 

Bivens when a plaintiff plausibly alleges that a rogue federal law enforcement 

officer violated clearly established Fourth and Fifth Amendment rights for which 

there is no alternative legal remedy.

On February 25, 2020, the Supreme Court affirmed the Fifth Circuit Court of Appeals, holding 

that Bivens does not extend to claims based on a cross-border shooting. In a 5-4 opinion, Justice 

Alito acknowledged that the case was “tragic” but noted that Congress, not the courts, should 

decide whether to allow a plaintiff to bring a lawsuit for money damages against a federal official 

in this context. In reaching its decision, the court also considered: 1) the potential effect extending 

Bivens would have on foreign relations; 2) the risk of undermining border security; 3) and the fact 

that other federal statutes that created a cause of action for persons injured by government officers 

do not allow claims for injuries that occur outside the United States. 

For the court’s opinion: https://www.supremecourt.gov/opinions/19pdf/17-1678_m6io.pdf

*****

Third Circuit

United States v. Baxter, 951 F.3d 128 (3d Cir. 2020) 

Steven Baxter mailed two packages from South Carolina to St. Thomas, United States Virgin 

Islands. Upon arrival in St. Thomas, U.S. Customs and Border Protection (CBP) agents opened 

the packages. In the first package, the agents discovered the unassembled parts of a gun and one 

round of ammunition. In the second package, the agents discovered a gun and ammunition. The 

government charged Baxter with two counts of illegal transport of a firearm under 18 U.S.C. § 

922 (a)(5). 
6

Baxter filed a motion to suppress the firearms, arguing that CBP’s warrantless searches of the 

packages were not valid under the border-search exception to the Fourth Amendment. The district 

court agreed and suppressed the firearms.

The district court recognized that in United States v. Hyde, the Third Circuit Court of Appeals 

held that the border-search exception to the Fourth Amendment applied to persons and items 

entering the United States from the Virgin Islands. However, the district court held that the 

border-search exception did not extend to similar inspections of persons or items entering the 

Virgin Islands from the United States mainland. The government appealed.

The Third Circuit Court of Appeals reversed the district court. In Hyde, the court held that the 

United States has an interest in regulating commerce to enforce its customs border with the Virgin 

Islands. Applying this reasoning, the court concluded that the government’s interest applies to 

goods and currency both entering and leaving the mainland by crossing the customs border. As a 

result, the court held that the border-search exception applies regardless of a packages’ direction 

of travel. The court noted that its holding was consistent with every circuit that has considered 

the issue, the 1st, 2nd, 4th, 5th, 6th, 8th, 9th, and 11th circuits. Consequently, the court held that 

the searches of Baxter’s packages were routine customs searches that were reasonable under the 

border-search exception to the Fourth Amendment.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca3/18-3613/18-3613-

2020-02-21.pdf?ts=1582308007

*****

Sixth Circuit

United States v. Ramamoorthy, 949 F.3d 955 (6th Cir. 2020) 

Prabhu Ramamoorthy, an Indian citizen and H-1B visa holder living in the United States, took a 

redeye flight leaving Las Vegas on January 2, 2018 and landing in Detroit in the early hours of 

January 3. Ramamoorthy sat between his wife and another woman, Laura. According to Laura, 

she initially slept on the flight, but suddenly awoke to find her pants unbuttoned and unzipped and 

Ramamoorthy shoving his fingers into her vagina. Laura left her seat and reported the incident to 

the flight attendants.

Upon landing, the flight crew escorted Ramamoorthy off the plane. Two airport police officers 

met Ramamoorthy in the jetway and arrested him after a brief interview. The officers took 

Ramamoorthy to the airport police station where two FBI agents interviewed him for just over 

one hour. Before asking Ramamoorthy any questions about the flight, the agents provided him 

with a written Miranda form. Ramamoorthy read his right out loud, discussed them with the 

agents for approximately ten minutes, and signed the form. Ramamoorthy then told the agents 

that he had tried to put his fingers inside Laura’s pants.

The government charged Ramamoorthy with one count of sexual abuse in violation of 18 U.S.C. 

§ 2242(2). Ramamoorthy filed a motion to suppress his statements to the FBI agents. He claimed 

that he did not knowingly and intelligently waive his Miranda rights because he did not speak 

English fluently and did not understand that his statements to the agents would be admissible in 

court. The district court denied Ramamoorthy’s motion and he appealed.
7

Statements made in response to custodial police interrogation must be suppressed unless the 

suspect first waives his Miranda rights “voluntarily, knowingly, and intelligently.” To determine 

whether a Miranda waiver is valid, the court examines the totality of the circumstances 

surrounding the waiver. 

In this case, the Sixth Circuit Court of Appeals found that Ramamoorthy signed a written waiver 

form that listed his Miranda rights. Before signing, the agents asked him to read each line of the 

form out loud and write his initials next the line if he understood it, which he proceeded to do. At 

several points, the agents offered explanations of the rights Ramamoorthy had just read out loud. 

Ramamoorthy also asked questions about the meaning of his rights, which the agents answered. 

The agents discussed Ramamoorthy’s rights with him for approximately ten minutes before he 

signed the waiver form. In addition to these facts, the court reviewed a video of the interview in 

which Ramamoorthy appeared to understand English and was heard speaking English clearly. As 

a result, the court held that Ramamoorthy voluntarily, knowingly, and intelligently waived his 

Miranda rights.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca6/19-1033/19-1033-

2020-02-07.pdf?ts=1581098500

*****

Eighth Circuit

United States v. Hoeffener, 950 F.3d 1037 (8th Cir. 2020) 

A police officer conducted a child pornography “Internet undercover operation” using a software 

program called Torrential Downpour. Torrential Downpour is a law enforcement proprietary 

software program configured to search the BitTorrent peer-to-peer file sharing network for 

Internet Protocol (IP) addresses associated with individuals offering to share or possess files 

known to law enforcement to contain images or videos of child pornography. Torrential 

Downpour cannot access non-public areas or unshared portions of an investigated computer, nor 

can it override settings on a suspect’s computer. 

During the investigation, the officer connected to a computer with an IP address in the St. Louis 

area that contained files with videos or images suspected of containing child pornography. After

downloading the suspected files, the officer discovered two images that contained child 

pornography. The officer determined that the IP address belonged to Roland Hoeffener and 

obtained a warrant to search Hoeffener’s house, computers, and other related electronic devices

for images, videos, and other evidence of child pornography. A forensic examination of 

Hoeffener’s computer revealed over 7,365 image files and 460 video files of child pornography.

The government charged Hoeffener with several child pornography-related offenses. Hoeffener 

filed a motion to suppress the evidence discovered on his computer. Hoeffener claimed that he 

had a legitimate expectation of privacy in the use of his computer and the warrantless search that 

occurred while he was not actively sharing data with others violated the Fourth Amendment. 

The court disagreed. The court found that witness testimony established that Torrential Downpour 

searches for download candidates in the same way that any other public user of the BitTorrent 

network conducts a search. In addition, the court added that Torrential Downpour only searches 

for information that a user has already made public by the use of the uTorrent software. Finally, 

the court cited several cases in which the Eighth Circuit Court of Appeals has held that a defendant 
8

has no legitimate expectation of privacy in files made available to the public through peer-to-peer 

file-sharing networks. The court held that Hoeffener’s attempt to distinguish BitTorrent software 

from other peer-to-peer programs did not change the fact that he allowed public access to the files 

on his computer. Consequently, the court held that the district court properly denied Hoeffener’s 

motion to suppress.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca8/19-1192/19-1192-

2020-02-24.pdf?ts=1582561834

*****

United States v. Williams, 2020 U.S. App. LEXIS 5965 (8th Cir. MO Feb. 27, 2020) 

Police officers responded to a 911 call reporting a burglary at Kelvin Williams’ house. When 

officers arrived, they heard a home security siren blaring and they saw broken windows on the 

main and storm doors, blood on the porch floor and on a window shade stuck through the broken 

glass. The officers also saw footprints on the front door, which was ajar.

The officers entered the house and began a protective sweep to look for intruders or victims. 

While conducting their sweep, officers saw drugs, firearms, and drug paraphernalia on the floor 

in a hallway near a bedroom. In the basement, officers saw a bag containing a white powdery 

substance hanging out a hole in the wall. After finding no one in the house, the officers seized 

the drugs, firearms, and drug paraphernalia they had observed during the sweep.

The government charged Williams with drug and firearm offenses. Williams filed a motion to 

suppress the evidence seized from his house. Williams conceded that exigent circumstances 

justified the officers’ warrantless entry and protective sweep of his house. However, Williams 

claimed that after the officers determined no one was in the house, the exigency had ended and 

the officers were required to leave the evidence they had discovered during the sweep. 

The court disagreed. During a valid protective sweep, police officers may seize an item that is in 

plain view if the incriminating nature of the item is immediately apparent. In this context, 

immediately apparent means that “the police have probable cause to believe an item is 

incriminating.” 

In this case, the court held that the officers observed incriminating items during a lawful protective 

sweep of Williams’ house. The court noted that the officers had to step over drugs, drug 

paraphernalia, and two firearms lying on the floor. In addition, the officers saw a bag containing 

a white powdery substance protruding from a hole in the basement wall. Consequently, the court 

held that the officers lawfully seized the evidence from Williams’ house under the plain view 

doctrine. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca8/18-1445/18-1445-

2020-02-27.pdf?ts=1582821045

*****

McGuire v. Cooper, 2020 U.S. App. LEXIS 7032 (8th Cir. NE Mar. 6, 2020) 

On February 10, 2013, Cory Cooper was a deputy sheriff employed by the Douglas County, 

Nebraska Sheriff’s Office. While acting within the scope of his employment that night, Cooper 

approached Kyle Worland’s truck parked at Zorinsky Lake Park in Omaha, Nebraska. After 
9

Cooper smelled marijuana he saw a mason jar containing marijuana on the center console. Cooper 

seized the jar and directed the passenger, Megan McGuire to exit the truck and accompany him 

to his patrol car. Cooper asked McGuire what she was willing to do to keep her boyfriend out of 

jail and eventually sexually assaulted her. Afterward, Cooper released McGuire and she ran back 

ato Worland’s truck and the couple drove away.

McGuire reported the incident to the Omaha Police Department on February 14, 2013. One week 

later, the Omaha Police Department contacted the Douglas County Sheriff’s Office to inform 

Sheriff Timothy Dunning that it was investigating an alleged sexual assault committed by one of 

his officers. The Sheriff’s Office did not commence its own investigation. 

In early April 2013, a deputy sheriff reported that Cooper had a “suspicious interaction” with a 

woman for whom an arrest warrant had been issued. Cooper was placed on limited duty and the 

Sheriff’s Office commenced its own investigation. The Sheriff’s Office investigation revealed 

that Cooper had run a record check on Worland and McGuire and that the GPS in Cooper’s car 

placed Cooper at Zorinsky Lake Park on February 10, 2013 at the time of McGuire’s assault. 

Cooper was terminated on May 13, 2013.

In June 2013, Cooper was charged with first degree sexual assault. Cooper eventually pled no 

contest and was found guilty of third degree assault and attempted tampering with evidence. 

Cooper was sentenced to consecutive terms of six months imprisonment on each count.

At the time of the incident with McGuire, the Douglas County Sheriff’s office did not have a 

policy of reviewing employees’ behavior to determine those at risk for sexual misconduct and did 

not have a comprehensive policy addressing sexual misconduct. However, the Sheriff’s Office 

had implemented a citizen complaint process where citizens could submit complaints for review. 

Since Sheriff Dunning’s appointment in 1995, there had been at least fifteen complaints of sexual 

misconduct by deputies employed by the Sheriff’s Office. 

McGuire filed suit against Sheriff Dunning in his individual capacity under 42 U.S.C. § 1983 

alleging several constitutional violations for his failure to adequately train and supervise Deputy 

Cooper. Sheriff Dunning claimed that he was entitled to qualified immunity because all of the 

reported incidents of prior sexual misconduct by deputies employed by the Sheriff’s Office was 

not sufficient to provide notice that an on-duty deputy might sexually assault a member of the 

public like Cooper did. The district court disagreed and denied qualified immunity. Sheriff 

Dunning appealed.

The Eight Circuit Court of Appeals reversed the district court and held that Sheriff Dunning was 

entitled to qualified immunity. 

Even without being a direct participant in a constitutional violation, a supervising officer may still 

face personal liability for failing to train and supervise subordinates. To establish a claim for 

failing to supervise Deputy Cooper, McGuire was required to establish, among other things, that 

Sheriff Dunning had received notice of a similar acts of sexual misconduct committed by his 

subordinates in the past.

In this case, the court concluded that the prior instances of sexual misconduct were not “similar 

in kind or sufficiently egregious in nature” to demonstrate a pattern of sexual assault against 

members of the public by deputies in the Douglas County Sheriff’s Office. In order to establish 

a pattern, McGuire was required to establish that the other instances of sexual misconduct were 

“very similar” to Deputy Cooper’s misconduct in this case. The court found that the prior 
10

instances of sexual misconduct by deputies in the Sheriff’s Office were not similar enough to put 

Sheriff Dunning on notice that a deputy might use his position and authority to separate a woman 

from her boyfriend at the park and coerce her to engage in sexual contact with him. The court 

added, “a reasonable officer in Sheriff Dunning’s position would not have known that he needed 

to more closely supervise his deputies, including Cooper, or they might sexually assault a member 

of the public.” 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca8/18-2809/18-2809-

2020-03-06.pdf?ts=1583512228

*****

District of Columbia Circuit

United States v. Cooper, 949 F.3d 744 (D.C. Cir. 2020) 

The government opened an investigation after a postal inspector detected what appeared to be 

fraudulent tax returns being sent through the mail. As part of the investigation, federal agents 

executed a search warrant at Tarkara Cooper’s house in the District of Columbia. Approximately 

one hour into the search, two agents began interviewing Cooper in her living room. At some point 

during the questioning, Cooper admitted her role in receiving fraudulent U.S. Treasury checks, 

which she turned over to her uncle in exchange for payment. 

Prior to trial, Cooper filed a motion to suppress her statements to the agents. Cooper claimed that 

before questioning her, the agents were required to provide her Miranda warnings. The district 

court denied Cooper’s motion, holding that during the interview, she was not in custody for 

Miranda purposes. Cooper appealed.

A suspect is in custody for Miranda purposes if the circumstances surrounding the questioning 

“present a serious danger of coercion.” In addition, not all restraints placed on a person’s freedom 

of movement amount to custody for purposes of Miranda. Instead, the court must determine 

whether the environment in which the questioning occurs “presents the same inherently coercive 

pressure as the type of station house questioning” that occurred in Miranda. 

In this case, the court held that the evidence supported the conclusion that Cooper was not in 

custodywhen she admitted her participation in the fraudulent tax return scheme with her uncle. 

First, the agents questioned Cooper in her living room. When an interview takes places in a 

suspect’s home, that fact usually weighs against finding the kind of custodial situation that 

requires a Miranda warning. Second, before the interview began, the agents told Cooper that she 

was the subject of an investigation and described “the voluntary nature of the interview.” Third, 

the agents asked Cooper if she would agree to answer their questions and she agreed. Fourth, the 

agents did not brandish weapons, no handcuffs were used, and the agents employed a 

“professional and cordial tone.” Finally, Cooper never asked to end the questioning and when the 

interview was over the agents left without arresting Cooper. The court held that these facts did 

not constitute an environment that presented a meaningful danger of coercion. As a result, the 

court concluded that Cooper was not in custody for Miranda purposes; therefore, the agents were 

not required to provide her Miranda warnings.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/cadc/17-3057/17-3057-

2020-02-11.pdf?ts=1581436852
11

*****