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October 2018

THE

FEDERAL LAW ENFORCEMENT

-INFORMER- A MONTHLY LEGAL RESOURCE AND COMMENTARY FOR LAW 

ENFORCEMENT OFFICERS AND AGENTS

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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 

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

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

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

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

This edition of The Informer may be cited as 10 INFORMER 18.
2

The Informer – October 2018

Supreme Court Preview: October Term 2018

Nielsen, Secretary of Homeland Security v. Preap: Whether a criminal alien becomes

exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released 

from custody, the Department of Homeland Security does not take him into immigration

custody immediately........................................................................................................................7

Gamble v. United States: Whether the Court should overrule the “separate sovereigns” 

exception to the Double Jeopardy Clause........................................................................................7

Nieves v. Bartlett: Whether probable cause defeats a First Amendment retaliatory-arrest 

claim under 42 U.S.C. § 1983..........................................................................................................8

Case Summaries

Circuit Courts of Appeals

Sixth Circuit

United States v. Pyles: Whether a trooper established reasonable suspicion to conduct a

traffic stop when he discovered the registered owner of a car had an outstanding arrest warrant......9

Ninth Circuit

United States v. Peterson: Whether a handgun found in the defendant’s backpack would 

have been inevitably discovered in an inventory search at the time of his booking.........................10

Scott v. City of San Bernadino: Whether it was reasonable for officers to arrest middle

school students “to teach them a lesson” and “to prove a point”.....................................................10

Ioane v. Hodges: Whether it was reasonable for a federal agent to witness the plaintiff 

using the bathroom during the execution of a premises search warrant to prevent the 

destruction of evidence and to promote officer safety.....................................................................11

Eleventh Circuit

Glasscox v. Argo: Whether an officer’s repeated use of a taser was reasonable against a 

suspect who was no longer resisting arrest and did not pose an immediate threat of harm..............13

♦
3

FLETC Informer Webinar Schedule 

1. History of Indian Law (1-hour)

Presented by Robert Duncan, Attorney-Advisor / Senior Instructor, Federal Law 

Enforcement Training Centers, Artesia, New Mexico. (robert.duncan@fletc.dhs.gov) 

There are three sovereign entities in the United States – federal, state, and tribal. Tribal 

governments are unique among the three, as they possess a separate sovereignty that has 

never been formally incorporated into the American constitutional framework, and the 

discussion of “Indian” and “non-Indian” concepts as matters of political recognition 

distinguishable from racial, genetic, cultural, or ethnic identity are especially important in 

light of public interest as well as upcoming Supreme Court cases involving Indian Country 

Criminal Jurisdiction. This webinar will discuss the history behind recognition through 

political status—especially in criminal jurisdiction—and why concepts unique to Indian 

law exist in a historical context.”

Wednesday November 7, 2018: 3pm Eastern / 2pm Central / 1pm Mountain / 

12 pm Pacific and

Wednesday November 28, 2018: 3pm Eastern / 2pm Central / 1pm Mountain / 

12 pm Pacific

To participate in this webinar on either date: https://share.dhs.gov/artesia

♦

2. Kalkines and Garrity Overview (1-hour)

Presented by John Besselman, Senior Advisor for Training, Office of Chief Counsel, 

Federal Law Enforcement Training Centers, Glynco, Georgia.

(John.Besselman@fletc.dhs.gov)

John Besselman will look at these two important cases and how they affect the 

government's ability to obtain statements from its employees that may be suspected of 

criminal activity. 

Thursday November 8, 2018: 2:30 pm Eastern / 1:30pm Central / 12:30 pm 

Mountain / 11:30 am Pacific

To participate in this webinar: https://share.dhs.gov/fletclgd0124/

♦

3. Warrantless Searches - No PC Required!

Presented by John Besselman, Senior Advisor for Training, Office of Chief Counsel, 

Federal Law Enforcement Training Centers, Glynco, Georgia. 

(John.Besselman@fletc.dhs.gov)

There are several well recognized (and some not so well recognized) exceptions to the 

Fourth Amendment's Search Warrant requirement. This 45-minute overview will examine 
4

those exceptions in which probable cause is not even required. We will discuss the frisk, 

SIA, consent, inventory and inspection exceptions and how they fit into the flow of the 

Fourth Amendment's limitation on governmental actions. A training certificate will be 

available upon completion of the training.

Tuesday November 13, 2018: 10:30 am Eastern / 9:30am Central / 8:30 am Mountain 

/ 7:30 am Pacific 

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

♦

4. Protective Sweeps (1-hour) 

Presented by Paul Sullivan and Patrick Walsh, Attorney-Advisors / Branch Chiefs, Federal 

Law Enforcement Training Centers, Glynco, Georgia. (patrick.walsh@fletc.dhs.gov) 

Entering a dwelling with a warrant in hand can be a dangerous activity. When can an 

officer search the premises to see if any dangerous persons are present? When are officers 

limited in where they can look? Find answers about the law on “protective sweeps” in this 

webinar. Paul Sullivan and Patrick Walsh will discuss when you can search a dwelling 

for persons during the execution of arrest and search warrants. 

Wednesday November 14, 2018: 10:30 am Eastern / 9:30am Central / 8:30 am 

Mountain / 7:30 am Pacific and

Tuesday November 27, 2018: 3pm Eastern / 2pm Central / 1pm Mountain / 

12 pm Pacific

To participate in this webinar on either date: https://share.dhs.gov/walsh/

♦

5. Use of Force in Medical Emergencies (1-hour)

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

Enforcement Training Centers, Artesia, New Mexico. (mary.m.mara@fletc.dhs.gov) 

This webinar presents legal aspects of use of force during medical emergencies following 

a recent decision by the Sixth Circuit Court of Appeals (Estate of Hill v. Miracle, 853 F.3d 

306 (6th Cir. 2017)). Police officers frequently encounter medical conditions which cause 

otherwise law-abiding citizens subjects to act in an erratic, aggressive and sometimes 

combative manners: diabetes, epilepsy, mental illness and excited delirium. When 

confronted with such a scenario, an officer must quickly assess the situation and, when 

appropriate, employ force to protect themselves, the patient, and other emergency 

responders providing necessary medical care.

Wednesday November 14, 2018 – 3:00 p.m. Eastern / 2:00 p.m. Central / 1:00 p.m. 

Mountain / 12 p.m. Pacific 

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

♦
5

6. Briefing Skills - Meetings with a Purpose (1-hour)

Presented by John Besselman, Senior Advisor for Training, Office of Chief Counsel, 

Federal Law Enforcement Training Centers, Glynco, Georgia. 

(John.Besselman@fletc.dhs.gov) 

In this webinar, we will discuss the basics of briefing the client (or your boss or your 

associates or . . . ). The lost art of getting to the point is useful not just for the lawyers in 

the crowd. See what John and the leaders of the field say about how to say less and mean 

more.

Thursday November 15, 2018: 2:30 pm Eastern / 1:30pm Central / 12:30 pm 

Mountain / 11:30 am Pacific 

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

♦

7. Wi-Fi and the Law (1-hour)

Presented by Patrick Walsh, Attorney-Advisor / Branch Chief, Federal Law Enforcement 

Training Centers, Glynco, Georgia. (patrick.walsh@fletc.dhs.gov)

When can law enforcement intercept Wi-Fi signals during a criminal investigation? This 

webinar will examine the few cases that look at the use of technology to intercept Wi-Fi, 

and make educated guesses on issues that have not yet been resolved. Join us for a look 

at Moocher Hunter, Shadows and other technology described in court cases that analyze 

when and how officers can lawfully use or intercept Wi-Fi to further their investigations.

Tuesday November 20, 2018: 10:30 am Eastern / 9:30am Central / 8:30 am Mountain 

/ 7:30 am Pacific 

Thursday November 29, 2018: 3pm Eastern / 2pm Central / 1pm Mountain / 

12 pm Pacific

To participate in this webinar on either date: https://share.dhs.gov/walsh/

♦

To Participate in a FLETC Informer Webinar

1. Click on the link to access the Homeland Security Information Network (HSIN).

2. If you have a HSIN account, enter with your login and password information.

3. If you do not have a HSIN account, click on the button next to “Enter as a Guest.”

4. Enter your name and click the “Enter” button.

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

6. Even though meeting rooms may be accessed before an event, there may be times when a 

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

7. If you experience any technical issues / difficulties during the login process, please

call our audio bridge line at (877) 446-3914 and enter participant passcode 232080 

when prompted. 
6

FLETC Talks

A brief review of United States Supreme Court cases involving a variety of Constitutional 

issues relevant to law enforcement officers.

1. Graham v. Connor: Use of Force / Objective Reasonableness Standard.

https://www.youtube.com/watch?v=zhtQovjR2C0

2. Carroll v. United States: Warrantless searches of automobiles (Carroll Doctrine/ 

Mobile Conveyance Exception/Automobile Exception).

https://www.youtube.com/watch?v=sF0BY7nBvck

3. Overflights: Legal issues concerning Unmanned Aerial Vehicles (UAVs/Drones).

https://www.youtube.com/watch?v=rcppCxR_Lto

4. Katz v. United States: Fourth Amendment searches and the reasonable expectation of 

privacy (REP) test.

https://www.youtube.com/watch?v=LS79Qz4TmV4

5. Arizona v. Gant: Search Incident to Arrest (vehicles).

https://www.youtube.com/watch?v=p-Ts09utgKQ

6. Government Employees and Free Speech

https://www.youtube.com/watch?v=W6EBfL9_oPY

7. Minnesota v. Dickerson: Plain-Touch Doctrine.

https://www.youtube.com/watch?v=3s4bDZ83krw

8. O’Connor v. Ortega: Government Workplace Searches.

https://www.youtube.com/watch?v=WeTm3GrzR4Q

9. Detective McFadden: Terry Stops/Terry Frisks.

https://www.youtube.com/watch?v=AVDy0EZFv3s

10. Michigan v. Long: Frisking vehicles for weapons.

https://www.youtube.com/watch?v=wh8ZIhmWWgI
7

Supreme Court Preview

Nielsen, Secretary of Homeland Security v. Preap

Decision below: 831 F.3d 1193 (9th Cir. 2016)

Title 8 U.S.C. § 1226(c) mandates that certain immigrants be detained while the government 

determines whether they should be removed from the United States. Specifically, 8 U.S.C. § 

1226(c)(1) states that the secretary of the Department of Homeland Security “shall take into 

custody any alien who— [is inadmissible or deportable on certain specified statutory grounds], 

when the alien is released, without regard to whether the alien is released on parole, supervised 

release, or probation, and without regard to whether the alien may be arrested or imprisoned again 

for the same offense.”

In this case, Mony Preap and Bassam Khoury are both lawful permanent residents with previous 

criminal convictions that make them eligible to be removed from the United States. Both men 

served their criminal sentences and upon release returned to their families. Years later, 

immigration authorities took them into custody and initiated removal proceedings against them. 

Because they were not detained “when ... released” from criminal custody, Preap and Khoury 

claimed they were not subject to mandatory detention under § 1226(c).

The Ninth Circuit Court of Appeals held that Congress’ use of the word “when” in § 1226(c)

conveyed immediacy. Consequently, the court held that the mandatory detention provision of § 

1226(c) applied only to those criminal aliens detained promptly after their release from criminal 

custody, not to aliens like Preap or Khoury who were detained long after. The Government 

appealed to the Supreme Court.

The issue before the Court is:

1. Whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. § 

1226(c) if, after the alien is released from custody, the Department of Homeland Security 

does not take him into immigration custody immediately.

The Court heard oral argument in this case on October 10, 2018.

Oral Argument – Transcript: 

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/16-1363_h315.pdf

Oral Argument – Audio: https://www.supremecourt.gov/oral_arguments/audio/2018/16-1363

***** 

Gamble v. United States

Decision Below: 694 Fed. Appx. 750 (11th Cir. 2017 - unpublished)

In 2015, a police officer in Mobile, Alabama conducted a traffic stop and found a handgun in 

Gamble’s car. The state of Alabama prosecuted Gamble for illegal possession of a firearm. 

Gamble was convicted and served one year in prison. The federal government subsequently 

charged Gamble with being a felon in possession of a firearm in regard to the same 2015 traffic 

stop.
8

Gamble argued that Double Jeopardy Clause of the Fifth Amendment to the United States 

Constitution prohibited the federal government from prosecuting him for the same conduct for 

which he had been prosecuted and sentenced by the state of Alabama.

The district court and the Eleventh Circuit Court of Appeals disagreed and Gamble was convicted. 

In an unpublished opinion, the Eleventh Circuit Court of Appeals stated, “the Supreme Court has 

determined that prosecution in federal and state court for the same conduct does not violate the 

Double Jeopardy Clause because the state and federal governments are separate sovereigns.” The 

court added that until the Supreme Court overturns Abbate v. United States, the 1959 case in 

which the Court outlined the “dual sovereign” doctrine, the Double Jeopardy Clause does not 

prevent different sovereigns (a state government and the federal government) from punishing a 

defendant for the same criminal conduct. Gamble appealed to the Supreme Court.

The issue before the Court is:

1. Whether the “separate sovereigns” exception to the double jeopardy clause should be 

overruled.

The Court will hear oral argument in this case on December 5, 2018.

*****

Nieves v. Bartlett

Decision Below: 712 Fed. Appx. 613 (9th Cir. 2017 - unpublished)

Russell Bartlett sued two Alaska State Troopers under 42 U.S.C. § 1983 for false arrest and 

excessive use of force, in violation of the Fourth Amendment as well as for retaliatory arrest, in 

violation of the First Amendment. The district court granted the troopers qualified immunity and 

dismissed Bartlett’s claims against the troopers. Bartlett appealed.

The Ninth Circuit Court of Appeals held that the troopers were entitled to qualified immunity for 

Bartlett’s false arrest claim because they had arguable probable cause to arrest Bartlett for 

harassment, disorderly conduct, resisting arrest, or assault under Alaska law. The court further 

held that the troopers were entitled to qualified immunity for Bartlett’s excessive use of force 

claim because the troopers’ limited use of force to effect Bartlett’s arrest was objectively 

reasonable. 

However, the court ruled that the troopers were not entitled to qualified immunity on Bartlett’s 

retaliatory arrest claim. The district court previously dismissed this claim because the troopers 

had probable cause to arrest Bartlett. However, the Ninth Circuit Court of Appeals had previously 

held that a plaintiff can prevail on a retaliatory arrest claim even if the officers had probable cause 

to arrest. (See 3 INFORMER 13 - Ford v. City of Yakima) As a result, the court held that the 

district court improperly dismissed Bartlett’s retaliatory arrest claim. The troopers appealed to the 

Supreme Court.

The issue before the Court is:

1. Whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 

U.S.C. § 1983

The Court will hear oral argument in this case on November 26, 2018.

*****
9

CASE SUMMARIES

Circuit Courts of Appeal

Sixth Circuit

United States v. Pyles, 2018 U.S. App. LEXIS 26238 (6th Cir. KY Sep. 17, 2018)

A Kentucky State trooper noticed a car traveling 63 miles per hour in a 70-miles per hour zone, 

while other vehicles on the road were going much faster. The trooper followed the car and ran its 

license plate number through a computer database. The trooper discovered the car’s owner, 

Angela Burdine, had an outstanding arrest warrant. Although the trooper could see the car

contained three or possibly four occupants, he could not tell the gender of the individuals in the 

backseat. 

The trooper stopped the car and as he approached, he saw Joshua Pyles stuffing something under 

a pile of clothes in the back seat. When one of the occupants rolled down a window, the trooper 

smelled marijuana. After back up officers arrived, they searched the car and found 

methamphetamine, marijuana, and a loaded handgun. 

The government charged the three occupants of the car, Joshua Pyles, Jason Whitis, and Robbie 

Whitis with drug and firearm offenses. 

Pyles filed a motion to suppress the evidence seized from the car. Pyles argued that the stop 

violated the Fourth Amendment because the trooper knew the car contained only three males, not 

Angela Burdine, a female, the registered owner for whom the warrant had been issued.

The court noted that once an officer discovers that a car’s owner has an outstanding arrest warrant, 

the officer needs only reasonable suspicion that the owner is in the vehicle to conduct a lawful 

traffic stop. To establish reasonable suspicion, an officer may infer that the registered owner of a 

car is in the car, unless the officer has information to the contrary.

In this case, the court held that the trooper had reasonable suspicion to conduct the traffic stop. 

First, the trooper knew that Angela Burdine owned the car, and he knew that she had an 

outstanding arrest warrant. Second, the trooper knew the car had at least three or four occupants. 

Finally, before the trooper stopped and approached the car, he could not determine the gender of 

the back-seat passenger and could not tell whether there were more passengers in the car. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca6/17-6334/17-6334-

2018-09-17.pdf?ts=1537209017

*****
10

Ninth Circuit

United States v. Peterson, 2018 U.S. App. LEXIS 25029 (9th Cir. WA Sep. 4, 2018)

Police officers arrested Peterson on outstanding misdemeanor warrants. During the arrest, 

Peterson twice broke away from the officers and tried to escape on foot. After securing Peterson 

in the back of a patrol car, an officer searched Peterson’s backpack and found a stolen handgun. 

The officers transported Peterson to jail where he was booked on charges of unlawful possession 

of a firearm and possession of a stolen firearm, both felony offenses. 

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

Peterson filed a motion to suppress the handgun. 

The district court held that, under the circumstances, the warrantless search of Peterson’s 

backpack was not justified as a search incident to his arrest. Instead, the district court held that 

the handgun would have inevitably been discovered during an inventory search at the time of 

booking. 

On appeal, Peterson argued that the search of his backpack was not inevitable. Peterson claimed 

that if the officers had not unlawfully searched his backpack incident to arrest, they would have 

only had cause to book him on his misdemeanor warrants, for which he would have posted bail 

and avoided the inventory search altogether. 

The Ninth Circuit Court of Appeals agreed that Peterson’s backpack would not have been subject 

to an inventory search had the officers only arrested him for his misdemeanor warrants. The court 

found that Peterson presented evidence that he would have been able to post bail for his 

misdemeanor offenses, thereby avoiding the booking and inventory search process.

However, the court found that the officers would have booked Peterson for obstructing law 

enforcement officers or resisting arrest even if they had not discovered the handgun in Peterson’s 

backpack. As a result, because bail had not yet been set on those charges, the court concluded 

that Peterson would have been taken into custody upon booking, and the contents of his backpack 

would have been inventoried. The court concluded that under these circumstances, officers would 

have inevitably discovered the handgun.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca9/17-30084/17-

30084-2018-09-04.pdf?ts=1536080538

*****

Scott v. Cty. of San Bernardino, 2018 U.S. App. LEXIS 25568 (9th Cir. CA Sep. 10, 2018)

A middle school assistant principal asked a school resource officer to counsel a group of girls who 

had been involved in ongoing incidents of bullying and fighting. School officials gathered the 

girls in a classroom and when the officer arrived, he attempted to mediate the conflict between 

the students. After the officer concluded that the girls were being unresponsive and disrespectful, 

the officer told the girls that he was not “playing around,” and that taking them to jail was the 

easiest way to “prove a point” and “make them mature a lot faster.” The officer then told the girls 

that he was going to arrest them for unlawful fighting in violation of California Penal Code § 415. 

The officer called for backup and when another officer arrived, the officers arrested seven girls, 
11

who were then handcuffed, transported to the sheriff’s department, and released to their parents. 

The school took no disciplinary action against the girls and no criminal charges were filed. 

Three of the girls sued the officers claiming that arresting them without probable cause violated 

the Fourth Amendment and state law. 

The district court denied the officers qualified immunity and the officers appealed.

The Ninth Circuit Court of Appeals agreed with the district court and held that the officers were 

not entitled to qualified immunity.

First, the court held that it was unreasonable to arrest the students because the officers only had 

generalized allegations that some of the students had been bickering and fighting, not specific 

information. At most, the officers knew that one of the girls had been in a fight on campus one 

month prior. Second, the school resource officer told the students that he was arresting them to 

“prove a point” and to “teach them a lesson.” The officer added that he “did not care” who was 

at fault. The court found that the officer’s clearly stated justification for the arrests was to punish 

perceived disrespect, and was not related to the commission of a crime. The court concluded that 

an arrest meant only to “teach a lesson” and to arbitrarily punish perceived disrespect toward the 

officer violated the Fourth Amendment. 

Second, the court held that at the time of the incident, no reasonable officer could have reasonably 

believed that the law authorizes the arrest of a group of middle school students to “prove a point.”

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca9/16-55518/16-

55518-2018-09-10.pdf?ts=1536598930

*****

Ioane v. Hodges, 2018 U.S. App. LEXIS 25569 (9th Cir. CA Sep. 10, 2018)

In June 2006, special agents with the Internal Revenue Service (IRS) Criminal Investigation 

Division obtained a warrant to search Michael and Shelly Ioane’s residence for records, 

computers, computer-related equipment, and computer storage devices. When the agents arrived, 

they told Michael and Shelly they could remain on the premises if they cooperated with the agents 

conducting the search. However, the agents told the Ioanes that if they chose to leave the premises 

they would not be allowed to return. Michael and Shelly remained on the premises and sat in the 

kitchen while the agents conducted the search.

At some point early in the search, Michael needed to use the bathroom. A male agent escorted 

Michael to the bathroom and conducted a quick search of the bathroom for weapons before exiting 

and closing the door behind him. The agent stood outside the closed bathroom door while Michael 

relieved himself.

Approximately thirty minutes later, Shelly told the agents that she needed to use the bathroom. 

Agent Jean Noll escorted Shelly to the bathroom, and when Shelly stepped inside and started to 

close the door, Agent Noll told Shelly that she had to come inside too. Agent Noll then told Shelly 

to remove her clothing so that she could make sure Shelly did not have anything hidden on her 

person. When Shelly objected, Agent Noll stated that she needed to make sure Shelly could not 

hide or destroy anything and that this was standard procedure. Shelly, who was wearing a long 

sundress, pulled up her dress so Agent Noll could see that she was not hiding anything. Afterward, 

Agent Noll made Shelly hold up her dress while she relieved herself, using one hand to hold up 
12

her dress and the other to pull her underwear down. Agent Noll faced Shelly while she used the 

bathroom, and when Shelly finished, Agent Noll escorted her back to the kitchen.

Shelly Ioane sued Agent Noll for violating her Fourth Amendment right to bodily privacy for 

monitoring Shelly while she used the restroom. After the district court denied Agent Noll 

qualified immunity, Agent Noll appealed.

The Ninth Circuit Court of Appeals agreed with the district court that Agent Noll was not entitled 

to qualified immunity.

As an initial matter, the court recognized that under the Fourth Amendment individuals have the 

right to bodily privacy. Next, the court found that the scope of Agent Noll’s intrusion into Shelly’s 

bodily privacy right was significant. Finally, the court held that none of the reasons Agent Noll 

offered for justifying the intrusion into Shelly’s right to bodily privacy were supported by the 

facts. 

First, the agents did not detain the Ioanes when they arrived to execute the search warrant. Instead, 

the agents told the Ioanes they were free to leave, but if they left, they would not be allowed back 

into the house. The court concluded that if Agent Noll legitimately feared that Shelly might 

destroy evidence in the bathroom, the agents would not have allowed her to leave the residence 

where she could have destroyed evidence elsewhere. 

Second, Agent Noll claimed that monitoring Shelly was necessary to ensure that Shelly did not 

have anything dangerous concealed in her clothing. However, the court noted that the search 

warrant authorized only a search of the premises, not the individuals on the premises. In addition, 

Agent Noll did not argue that she had a reason to believe that Shelly was armed, except for 

claiming that the agents had found other weapons on the premises. The court added that even if 

Agent Noll had an objectively reasonable belief that Shelly was armed and dangerous, this belief 

only would have justified a frisk for weapons, not the intrusion into bodily privacy that occurred 

here. 

Third, Agent Noll claimed that other safety concerns justified her monitoring Shelly while she 

used the bathroom, namely, that Shelly could have gained access to the rest of the house through 

a second door in the bathroom, putting the other agents or herself at risk. The court was not 

convinced as by the time Shelly needed to use the bathroom another agent had already checked 

the bathroom for weapons. In addition, Agent Noll offered no explanation as to why watching 

Shelly use the bathroom was the only way to eliminate the risk that Shelly might flee given that 

other agents could have been directed to stand outside the bathroom’s second door. Finally, the 

court commented that Michael, who was the subject of the investigation, had already been 

permitted to use the bathroom while a male agent stood outside the door. 

The court further held that at the time of Agent Noll’s actions in June 2006 an individual’s right 

to bodily privacy had been clearly established; therefore, Agent Noll was not entitled to qualified 

immunity.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca9/16-16089/16-

16089-2018-09-10.pdf?ts=1536598929

*****
13

Eleventh Circuit

Glasscox v. Argo, 2018 U.S. App. LEXIS 25839 (11th Cir. AL September 12, 2018)

Bob Glasscox was driving his pickup truck on an interstate highway when he experienced an 

episode of diabetic shock. Physically unable to control his truck, Glasscox began driving 

erratically at high speeds. After other motorists reported Glasscox’s driving, the Argo Police 

Department dispatched Officer Moses to the scene. 

Officer Moses activated his emergency lights and siren and pursued Glasscox for approximately 

five miles. During this time, Glasscox was traveling 80 miles per hour in a 70 mile per hour speed 

zone, and was weaving from the left lane onto the median, narrowly missing several road signs 

and a guard rail. Eventually, Glasscox stopped and Officer Moses approached his pickup truck

with his taser drawn. While yelling at Glasscox to get out of the truck, Officer Moses deployed 

his taser four times in rapid succession. The incident was captured on Officer Moses’ body 

camera, which recorded Glasscox’s attempts, between taser shocks, to comply with Officer 

Moses’ orders.

Glasscox sued Officer Moses and the Argo Police Department under 42 U.S.C. § 1983 for 

excessive use of force in violation of the Fourth Amendment. After the district court denied 

qualified immunity, Officer Moses appealed.

The Eleventh Circuit Court of Appeals agreed with the district court and held that Officer Moses 

was not entitled to qualified immunity. Even assuming that Officer Moses reasonably deployed 

his taser twice, the court held that a reasonable jury could conclude that the continued tasing, when 

the video conclusively showed that Glasscox was not resisting, but instead was voicing his desire 

to comply with the officer’s commands, violated Glasscox’s Fourth Amendment right to be free 

from the excessive use of force. 

In reaching this conclusion, the court applied the factors outlined in Graham v. Connor to the facts 

of the case. The court noted that the severity of the crime in question favored Officer Moses as 

Glasscox’s reckless, dangerous, and elusive driving justified Officer Moses’ initial use of force to 

arrest Glasscox. However, the court found that the repeated taser shocks, issued after Glasscox 

stopped driving recklessly, were unreasonable because Glasscox was not resisting arrest after the 

second taser shock and he no longer posed a threat which justified the repeated use of the taser. 

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

to use a taser repeatedly on an arrestee who is not resisting, even if that arrestee had previously 

offered resistance and was not yet restrained.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca11/16-16804/16-

16804-2018-09-12.pdf?ts=1536782473

*****