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April 2016

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2

The Informer – April 2016

Article

The Fifth Amendment and Compelling Unencrypted Data, Encryption 

Codes and/or Passwords (Part 2)..........................................................................................5

By Robert Cauthen, Assistant Division Chief, Office of Chief Counsel/Legal Division, Federal Law 

Enforcement Training Centers, Glynco, Georgia

Case Summaries

 

Circuit Courts of Appeals

First Circuit

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

Terry stop and Terry frisk of the defendant, and whether the booking officer was 

required to Mirandize the defendant before asking him standard booking questions...............11

United States v. Cardona: Whether an officer established reasonable suspicion 

the defendant was presently armed and dangerous to support a Terry frisk.............................12

Fifth Circuit

United States v. Danhach: Whether officers lawfully entered and remained inside 

the defendant’s warehouse while conducting a “knock and talk” interview............................13

Seventh Circuit

United States v. Rivera: Whether officers established probable cause to conduct a

warrantless search of the defendants’ garage and vehicle.........................................................14

United States v. Hill: Whether an officer established reasonable suspicion to conduct

a Terry stop of the defendant, and then probable cause to arrest him.......................................15

United States v. Guidry: Whether an officer unlawfully prolonged the duration of 

a traffic stop to allow another officer to conduct a dog sniff of the defendant’s vehicle..........16

Eighth Circuit

United States v. Mshihiri: Whether an officer established probable cause to obtain 

a search warrant, and whether the defendant was in custody for Miranda purposes 

when officers interviewed him at the airport.............................................................................17

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

a Terry stop of the defendant after he intruded upon an active crime scene.............................18

United States v. Campos: Whether moving the defendant’s bicycle off a sidewalk

so it would not impede pedestrian traffic constituted a Fourth Amendment search..................19

Ninth Circuit

United States v. Lara: Whether the warrantless search of a probationer’s cell

phone violated the Fourth Amendment......................................................................................19
3

United States v. Lundin: Whether officers conducted a lawful “knock and talk” 

after they went to the defendant’s house with the intent to arrest him without a

warrant, and whether exigent circumstances justified the officers’ warrantless entry

and search of the defendant’s backyard and patio area.............................................................20

Tenth Circuit

United States v. Carloss: Whether officers violated the Fourth Amendment after they

ignored “No Trespassing” signs and went onto the porch of the defendant’s house to

conduct a “knock and talk” interview........................................................................................22

United States v. Mendoza: Whether the defendant’s consent to search was valid.................23

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5

The Fifth Amendment and Compelling Unencrypted Data, 

Encryption Codes and/or Passwords

By

Robert Cauthen

Assistant Division Chief

Office of Chief Counsel/Legal Division

Federal Law Enforcement Training Centers

Glynco, Georgia

Part 2 of 2

Part 1 of this article looked at the Fifth Amendment Self-Incrimination Clause and three United 

States Supreme Court decisions that form the underpinnings of the legal analysis concerning 

documents and data on electronic devices. Part 2 will discuss federal case law governing 

whether, and if so how, the government can compel a suspect or defendant to disclose a 

password or encryption code or produce an unencrypted version of data already lawfully in the 

government’s possession.1

ELECTRONIC OR DIGITAL DOCUMENTS, WRITINGS, AND DATA

We live in a digital and increasingly paperless world. Computers, tablets, electronic storage 

media, electronic devices, and cell and smart phones have permeated, perhaps saturated, our 

business and personal cultures. Documents, data, communications, and writings – potential 

evidence of crimes – are created, transmitted, and stored electronically. What if the government 

lawfully obtains the device but can’t access the data on it because it is password protected? 

What if access to the data is accomplished, but it is gibberish because it is encrypted? Can the 

defendant/suspect be compelled to provide the password/encryption code? Can the 

defendant/suspect be compelled to provide an unencrypted version of the data already in the 

government’s lawful possession?

Only a few federal courts have addressed these questions.

COMPELLING THE PRODUCTION OF A PASSWORD OR ENCRYPTION CODE

Doe v. United States, 487 U.S. 201, 108 S. Ct. 2341 (1988)

In this case, the government filed a motion for an order directing Doe to sign a consent directive 

authorizing banks in the Cayman Islands and Bermuda to disclose records of his accounts. 

The Supreme Court held that compelling Doe to sign the consent directive was not protected 

by the privilege against self-incrimination because neither the form itself nor the act of signing 

it were testimonial communications. The Court stated that compelling Doe to sign the form 

was “more like ‘be[ing] forced to surrender a key to a strongbox containing incriminating 

 1 This article will not address whether third parties, such as technology companies or internet service providers 

(ISPs) can be compelled to give the government access to another’s password protected devices and files and 

unencrypted data.
6

documents’ than it is like ‘be[ing] compelled to reveal the combination to [petitioner’s] wall 

safe.’” Doe, footnote 9 at 219. 

Is a password or encryption code the key to the strongbox or the combination to the wall safe?

United States v. Kirschner, 823 F. Supp. 2d 665 (E.D. Mich. 2010)

In this child pornography case, a grand Jury issued a witness subpoena (not a subpoena duces 

tecum) commanding Kirschner to appear and testify. It required him to provide “...all 

passwords used or associated with the...the computer...and any files.” Kirschner filed a 

Motion to Quash the subpoena asserting his Fifth Amendment privilege against selfincrimination. The district court agreed with Kirschner and quashed the subpoena.

The court held that testimony providing a password is a “testimonial communication.” The 

password itself is testimonial evidence because it reveals the contents of the mind.2

 The court’s 

ruling turns on a traditional view of what is “testimonial.” “In this case, the government is not 

seeking documents or objects – it is seeking testimony from the defendant, requiring him to 

divulge through his mental processes his password – that will be used to incriminate him.” The 

court reasoned that compelling Kirschner to testify to the password is more like compelling him 

to provide the combination to the wall safe than the key to the strongbox containing 

incriminating documents.

The court also held that a grant of act of production immunity under 18 U.S.C. §6002 is 

insufficient to overcome the defendant’s Fifth Amendment protection. Even if the password 

was not, in and of itself, incriminating, it may lead to incriminating evidence becoming a link 

in the chain of evidence. In other words, any files or data discovered by accessing the computer 

would be a “derivative use” of compelled testimonial evidence, the password.

United States v. Pearson, 2006 U.S. Dist. LEXIS 32982 (N.D.N.Y. 2006)

Pursuant to several search warrants, investigators seized numerous computers and storage 

media, including thumb drives and CDs. Some files on them were password protected. A 

second superseding indictment contained over 70 counts. The government issued a trial 

subpoena for “Any and all passwords, keys, and/or log-ins used to encrypt any and all files....” 

The defendant filed a Motion to Quash the subpoena based on the Fifth Amendment privilege 

against self-incrimination.

The government argued that, based on e-mails they had seized, the passwords would be so 

lengthy and complicated the defendant likely wrote them down. Therefore, as a document 

previously, voluntarily created, it would not be testimonial evidence. The defendant did not 

respond to that argument but, instead, argued that “[w]hile the content of the seized materials 

may not be protected by the Fifth Amendment because the production of said materials was not 

compelled or testimonial,” the “act of producing the decryption information ... would violate 

the Fifth Amendment because it would ‘communicate testimonial aspects as to the existence of 

the documents, possession or control of the documents, or the authenticity of the documents.’” 

 2 See also SEC Civil Action v. Huang, 2015 U.S. Dist. LEXIS 127853 (E.D. Pa. 2015); U.S. v. Rogozin, 2010 U.S. 

Dist. LEXIS (W.D.N.Y. 2010). 
7

The court addressed the Fifth Amendment issues, but then reserved ruling on the Motion to 

Quash until after a further hearing.

The court noted that, by proceeding directly to the “act of production” argument, defendant 

essentially conceded that the password itself carries no Fifth Amendment privilege.

The court stated the testimonial aspect of production is minimized if not eliminated when the 

existence, ownership, control, or authenticity of the document (or thing) is a “forgone [gone]” 

conclusion.

“[T]he act of producing [otherwise unprivileged documents] in response to a subpoena may 

require incriminating testimony in two situations: (1) if the existence and location of the 

subpoenaed papers are unknown to the government; or (2) where production would implicitly 

authenticate the documents.” Because the files were already in the government’s possession, 

because forensic examination had established the existence and use of encryption software on 

the files, and because the government had information from the defendant that he intended to 

encrypt certain files, knowledge of the actual password would add little to what the government 

already knew about their existence and location. The court decided to hold a factual hearing to 

determine whether the government can authenticate the files by evidence other than the 

production of the password. There is no further order on the defendant’s Motion to Quash. 

The last action on the case was an appeal of a restitution amount awarded after a guilty plea. 

United States v. Pearson, 570 F. 3d 480 (2d Cir. 2009).

Can the suspect be compelled to provide the password or encryption code? Probably so, if the 

government can satisfy the court that it’s written down or otherwise documented and, therefore, 

not a compelled testimonial communication and can either establish the “foregone conclusion” 

doctrine to overcome the act of production privilege or if the court grants use and fruits 

immunity.

COMPELLING THE PRODUCTION OF AN UNENCRYPTED VERSION OF A 

DOCUMENT ALREADY IN THE LAWFUL POSSESSION OF THE GOVERNMENT

What if, rather than compelling a password or encryption code, the government seeks instead 

to compel the production of an unencrypted version of a document or data already in its lawful 

possession?

In re: Grand Jury Subpoena to Boucher, 2009 U.S. Dist. LEXIS 13006 (D. Vt. 2009)

In this child pornography case, an initial border search revealed a file named “2yo getting raped 

during a diaper change,” which had last been opened 6 days before. A consent search of a 

laptop computer, including part of a Z drive3

, revealed suspected child pornography. The laptop 

was seized and a search warrant obtained, but the subsequent search of Z drive was blocked by 

password.

The government issued a grand jury subpoena for “all documents, whether in electronic or paper 

form, reflecting any passwords used or associated with” the seized laptop. Boucher sought to 

 3 On request, Boucher entered the password to the Z drive and allowed the agent to view it.
8

quash the subpoena, asserting his Fifth Amendment privilege against self-incrimination. The 

Magistrate Judge granted the motion and quashed the subpoena. The government appealed to 

the district court.

In its appeal, the government stated that “it does not in fact seek the password for the encrypted 

hard drive, but requires Boucher to produce the contents of his encrypted hard drive in an 

unencrypted format by opening the drive before the grand jury.” Then, in oral argument and 

post-argument submissions, the government stated that it intended only to require Boucher to 

provide an unencrypted version of the drive to the grand jury.4

The district court held there is no question the contents of the laptop were voluntarily prepared 

or compiled and are not testimonial, and therefore not protected by the Fifth Amendment. The 

district court also held the “foregone conclusion” doctrine applies because the government 

already knew of the Z drive and the files on it5, and can establish authenticity because the laptop 

was in Boucher’s car, he had already admitted it was his, and he had previously provided the 

government with access to the Z drive.

United States v. Fricosu, 841 F. Supp. 2d 1232 (D. Colo. 2012), appeal denied by, stay 

denied by Fricosu v. United States, 2012 U.S. App. LEXIS 3561 (10th Cir. Colo. Feb. 21, 

2012)

In this real estate fraud/mortgage fraud case, three computers were seized pursuant to a search 

warrant. One of the computers, the one found in Fricosu’s bedroom, was password protected. 

The government sought a writ pursuant to the All Writs Act, 28 U.S.C. § 1651, to compel 

production of the unencrypted contents of the computers.

Fricosu’s ex-husband was serving a sentence in state prison. A telephone conversation between 

him and Fricosu was taped not long after the search warrant was served. During the 

conversation, Fricosu said things that established that the computer was hers and that she knew 

the files were there and password protected. In addition, the registry key of the computer 

identified it as hers.

The district court held that the All Writs Act enables the court to issue orders to effectuate an 

existing search warrant. The court also held the contents of the computer were not privileged 

because they were voluntarily prepared or compiled. The court held the government had met 

its burden of showing by a preponderance of the evidence that the “foregone conclusion” 

doctrine applied to overcome any “act of production” protection. The government knew of the 

existence and locations of the files. There is no requirement that the government know of the 

specific content of any specific files. The government can independently establish the 

authenticity of the documents on the computer.

The court issued the Writ but prohibited the government from using Fricosu’s act of producing 

 4 Perhaps the government again changed the request because it was concerned that the act of opening it up in front 

of the grand jury would communicate to them that Boucher knows the password, knows there are protected files, 

and that he has access to them, triggering “act of production” and “derivative use” protections. 5 The court held that the government does not have to show it knows of the incriminatory contents of the sought 

files.
9

the unencrypted documents/data against her in any way.6

In re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011: U.S. v. John Doe, 670 

F.3d 1335 (11th Cir. 2012)

In this child pornography case, a search warrant was issued to seize all digital media, as well as 

any encryption devices or codes necessary to access such media. Certain portions of the data 

on the hard drives of Doe’s seized laptops and external hard drives were encrypted and 

inaccessible.

7

A grand jury subpoena duces tecum was issued requiring Doe to produce the “unencrypted 

contents” of the devices and “any and all containers and folders thereon.” In response, Doe 

invoked his Fifth Amendment privilege against self-incrimination. A show cause hearing was 

held at which the government requested the district court grant Doe immunity pursuant to 18 

U.S.C. §6002, limited only to the use of Doe’s production of the unencrypted contents but not 

to the use of the contents as evidence in a criminal prosecution. (In other words, no derivative 

use immunity.) The focus of the hearing was “whether the Fifth Amendment would bar the 

government from establishing before a petit jury—say, if Doe were indicted for possession of 

child pornography in violation of 18 U.S.C. § 2252—that the decrypted contents (child 

pornography) were Doe's because (1) the hard drives belonged to Doe (which was not in 

dispute), and (2) contained child pornography. Doe contended the establishment of point (2) 

would constitute the derivative use of his immunized grand jury testimony. That is, by 

decrypting the contents, he would be testifying that he, as opposed to some other person, placed 

the contents on the hard drive, encrypted the contents, and could retrieve and examine them 

whenever he wished.”8 The district court issued the order on the government’s terms. Doe 

again refused to decrypt the contents asserting the use of the contents as evidence against him 

would be a derivative use prohibited by the Fifth Amendment.9 The district court held Doe in 

contempt and ordered him incarcerated. Doe appealed.

On appeal, the Eleventh Circuit reversed the district court’s order holding Doe in contempt. 

The court held that the decryption and production of the contents is testimonial and privileged. 

Doe’s production of the unencrypted files would be more than just a physical, nontestimonial 

transfer. Requiring Doe to use a decryption code is akin to compelling the combination to a 

wall safe because both demand the use of the contents of the mind, and the production could 

imply incriminating factual statements.

The court held the “foregone conclusion” doctrine was not applicable because the explicit and 

implicit factual communications associated with decryption and production were not foregone 

conclusions. The government failed to show with “reasonable certainty” that it knew any files 

existed at all (the specific file name is not necessary), knew any files were located on the 

encrypted hard drives10, could independently authenticate any such files, or that Doe could 

access and decrypt any such files.

 6 In response, Fricosu claimed to not remember the password. About a month later, her ex-husband handed police 

a list of passwords one of which worked rendering the Fifth Amendment issues moot.

7 The contents were encrypted using software called “TrueCrypt.” 

8 Doe at 1339. 9 Doe also asserted that he was unable to decrypt the contents.

10 On cross-examination, the government’s forensic examiner testified that blank space appeared as random 

characters and conceded that it could not be distinguished from encrypted data.
10

Regarding the grant of immunity, the court held the act of production immunity granted was 

not synonymous with “use and derivative use” immunity under 18 U.S.C. §6002. Use and 

derivative use immunity establishes the critical threshold to overcome an individual’s 

invocation of the Fifth Amendment privilege against self-incrimination. No more protection is 

necessary; no less protection is sufficient. There is no provision under §6002 for just “act of 

production” immunity. The limited immunity grant under § 6002 was insufficient to overcome 

Doe’s protection.

INVESTIGATIVE PRACTICES

Even though the law on applying well established Fifth Amendment self-incrimination 

principles to passwords and encryption codes is in its infancy, there is guidance in the relatively 

few federal cases that criminal investigators can use when confronted with these circumstances.

When relevant data is believed to be on a device, ask for passwords and encryption codes. Ask 

the target or suspect.11 Ask the owner or apparent owner of the device. Determine if others 

have knowledge of, access to, and use of the device, and ask them. The Fifth Amendment is 

not violated if the response is voluntarily.

Look for and seize passwords and encryption codes. People have so many user names and 

passwords these days that they often write them down or otherwise record them and keep them 

handy for use when required, especially when, as in Pearson, the password is lengthy and 

complicated. Or, in the alternative, they use the same password for access to multiple accounts, 

devices, folders, and documents.

A search warrant should specifically authorize the search for and seizure of passwords and 

encryption codes.

Establish the “foregone conclusion” doctrine. Gather facts that establish the suspect’s 

ownership of, possession of, access to, and/or use of the device, knowledge of the contents on 

the device, knowledge that the data is password protected or encrypted, and the ability to 

decrypt the contents. The court must be convinced to a reasonable certainty12 that the act of 

production protection will add nothing to what the government already knows and can prove.

When confronted with password protected or encrypted data and the suspect/defendant refuses 

to give the password or encryption code, ask for an “unencrypted copy” of the data. A grand 

jury subpoena duces tecum will work when issued prior to the indictment. A trial subpoena 

duces tecum will work after formal charging.

Immunity under 18 U.S.C. §6002 will overcome potential act of production protection. In order 

to avoid “derivative use” protection and be able to use the produced unencrypted data as 

evidence in the criminal prosecution, establish the same facts as those required for the “foregone 

conclusion” doctrine.

 11 United States v. Gavegnano, 305 Fed. Appx. 954 (4th Cir. 2009) (unpublished decision); United States v. 

Furman, 2015 U.S. Dist. LEXIS 31099, 2015 WL 1061956, at *2 (D. Minn. Mar. 11, 2015)(government 

obtained password for locked device by asking defendant for it); United States v. Graham, 2014 U.S. Dist. 

LEXIS 88796, 2014 WL 2922388, at *3 (same).

12 In Fricosu, supra, the court applied a preponderance of the evidence standard.
11

CASE SUMMARIES

Circuit Courts of Appeal

First Circuit

United States v. Sanchez, 2016 U.S. App. LEXIS 5392 (1st Cir. Mass. Mar. 23, 2016)

A confidential informant (CI) called Officer Templeman and reported that an Hispanic male 

standing near a green Ford Taurus on the corner of Main and Calhoun Streets had a black 

semiautomatic handgun in his waistband and crack cocaine in his pocket. The CI described the 

man as being approximately 5’5” tall, and wearing a white t-shirt and black cargo-style pants. 

When Officer Templeman asked the CI how he knew about the gun and the crack, the CI replied 

that he had personally “seen” them. The CI had given Officer Templeman reliable information 

in the past that had led to arrests and convictions for drug and firearms related crimes. In 

addition, Officer Templeman knew the CI’s name, phone number and address, and as far as 

Templeman knew, the CI had never given him false information. 

After receiving the tip, Officer Templeman and other officers immediately went to the location 

indicated by the CI. Once there, the officers saw a green Ford Taurus and a man matching the 

description provided by the CI. Officer Templeman recognized the man as Sanchez, a 

suspected gang member with a known felony conviction for a drug offense. After conducting 

surveillance for ten minutes, Officer Templeman saw Sanchez touch his waistband in a way 

that reminded Templeman how he checks his own waistband when he carries a concealed 

handgun. In addition, Templeman saw the outline of an object under Sanchez’s shirt near his 

waistband. Based on these observations as well as his training and experience, Officer 

Templeman directed the other officers to detain and frisk Sanchez. One of the officers frisked 

Sanchez and found a handgun in Sanchez’s waistband. The officer then arrested Sanchez and 

discovered crack cocaine in Sanchez’s pocket during the search incident to arrest. The total 

time from the CI’s call to Sanchez’s arrest was approximately 15 minutes.

The officers transported Sanchez to the jail. During the intake process, the booking officer 

asked Sanchez a series of standard biographical questions. In addition to asking Sanchez his 

name, date of birth, social security number, height and weight, the booking officer asked 

Sanchez if he was employed. Sanchez told the booking officer that he was a “drug dealer.” 

The booking officer did not ask any follow-up questions concerning this remark and completed 

the booking process. 

Sanchez was charged with several criminal offenses.

Sanchez filed a motion to suppress the firearm, cocaine and his “drug dealer” statement.

First, Sanchez argued information provided by the CI did not provide the officers reasonable 

suspicion to detain and then frisk him. 

The court disagreed. Reasonable suspicion can be established by an informant’s tip if the tip 

possesses sufficient indicia of reliability. Here, Officer Templeman knew the informant’s 

identity, contact information, and that the informant’s tips had proven reliable in the past. In 

addition, the CI gave detailed information concerning Sanchez’s physical appearance, location, 
12

gun and drug possession, which the CI stated he had personally observed. Finally, while 

conducting surveillance, Officer Templeman saw Sanchez touch his waistband in a manner 

consistent with checking for a concealed gun, and he knew that Sanchez’s felony conviction 

prohibited him from lawfully possessing any firearms. Based on these facts, the court 

concluded the officers established reasonable suspicion to conduct a Terry stop and a Terry

frisk on Sanchez.

Second, Sanchez argued that his “drug dealer” statement should have been suppressed because 

the officers had not advised him of his Miranda warnings before questioning him during 

booking process. 

Again, the court disagreed. Miranda warnings must be provided when a person is subjected to 

custodial interrogation. Here, neither side disputed that Sanchez was in custody at the time of 

booking. However, the court noted it is well-settled that routine booking questions seeking 

background information are not considered “interrogation” for Miranda purposes. The booking 

questions exception is driven by the premise that questions concerning an arrestee’s name, date 

of birth, social security number and employment status “rarely elicit an incriminating response, 

even when asked after arrest.” In this case, the booking officer only asked Sanchez routine 

questions to complete the booking process, not to strengthen the government’s case against 

Sanchez, as the booking officer did not ask any follow-up questions when Sanchez told him 

that he was employed as a drug dealer. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca1/15-1107/15-1107-

2016-03-23.pdf?ts=1458763208

*****

United States v. Cardona-Vicente, 2016 U.S. App. LEXIS 5750 (1st Cir. P.R. Mar. 29, 

2016)

A police officer conducted a traffic stop after he saw the driver of a Jeep was not wearing a 

seatbelt, a violation of Puerto Rico law. The officer received the vehicle’s registration from the 

driver; however, the driver could not produce a driver’s license. When the officer went around 

to the back of the Jeep to check the registration sticker, he saw Cardona, the passenger, grabbing 

at a fanny pack that was around his waist. Based on his experience, the manner in which 

Cardona grabbed the fanny pack led the officer to believe it contained a gun. In addition, 

Cardona appeared to be nervous. The officer asked Cardona if he had a license to carry a 

firearm. Cardona did not reply, but he looked down and acknowledged non-verbally that he 

did not have a license to carry a firearm. The officer then ordered Cardona out of the vehicle, 

touched the fanny pack and felt a gun. The officer unzipped the fanny pack and found a loaded 

handgun, ammunition, cash and fourteen baggies of cocaine. Cardona was arrested and charged 

with drug and firearm offenses. 

While he conceded the traffic stop was lawful, Cardona claimed the evidence seized from the 

fanny pack should have been suppressed because the officer lacked reasonable suspicion to 

conduct a Terry frisk.

The court disagreed. The court noted several facts that became apparent to the officer as the 

traffic stop progressed which were sufficient to establish reasonable suspicion that there was a 

gun in Cardona’s fanny pack. First, the driver of the Jeep could not produce a driver’s license, 

suggesting the vehicle may have been stolen. Second, Cardona appeared nervous during the 
13

stop. Third, the officer saw Cardona was clutching the fanny pack in a manner that, based on 

his experience, was consistent with there being a gun inside it. Finally, with his suspicions 

aroused, the officer asked Cardona if he had a license to carry a firearm. Cardona increased the 

officer’s suspicions when he evasively looked down and then non-verbally gesturing with his 

head, admitting that he did not have a license. The court concluded this sequence of events was 

sufficient to establish Cardona was armed and dangerous; therefore, the officer was justified in 

ordering him out of the vehicle and touching the fanny pack.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca1/15-1188/15-1188-

2016-03-29.pdf?ts=1459267204

*****

Fifth Circuit

United States v. Danhach, 2016 U.S. App. LEXIS 4421 (5th Cir. Tex. Mar. 9, 2016)

The Houston Police Department (HPD) and the Federal Bureau of Investigation (FBI) suspected 

Danhach and Kheir were involved in an organized retail theft operation. During their 

investigation the agents discovered a warehouse where they believed Danhach and Kheir were 

storing stolen property. After agents surveilling the warehouse saw Kheir and another man 

enter the warehouse, the agents approached and knocked on the door in an attempt to gain entry. 

Kheir opened the door and allowed the agents to enter the warehouse. Once the agents were 

inside the warehouse Kheir gave them permission to walk back to the main warehouse area to 

locate the unidentified worker that Kheir had indicated was there. When the agents entered the 

main warehouse area, they saw what immediately appeared to be stolen property and other 

items consistent with an organized retail theft operation. The agents then asked for and received 

Kheir’s oral consent to search the entire warehouse. Sometime later, the agents obtained a 

warrant to search the warehouse and seized evidence that tied Danhach and Kheir to the stolen 

property operation.

The government indicted Danhach and Kheir for a variety of federal criminal offenses.

Danhach argued the evidence seized from the warehouse should have been suppressed. 

Danhach claimed the agents’ observations, which established probable cause to obtain the 

search warrant, occurred after the agents unlawfully entered the warehouse. 

The court disagreed. First, the agents’ initial entry into the warehouse was lawful because the 

agents utilized the “knock and talk” technique. The court noted this technique is a reasonable 

investigative tool when officers seek an occupant’s consent to search or when officers 

reasonably suspect criminal activity. Here, one of the agents testified they received Kheir’s 

permission before they entered the warehouse, and this testimony was supported by surveillance 

video. Second, it was uncontested that once inside the building, Kheir gave the agents 

permission to walk back to the main warehouse area. Consequently, the court concluded the 

agents were lawfully inside the warehouse when they saw evidence of stolen property and other 

evidence of a stolen property operation, which they used to establish probable cause to obtain 

the search warrant. Alternatively, the court added the agents’ observations were lawful because 

Kheir voluntarily consented to a full search of the warehouse. It was undisputed that Kheir was 

in charge of the warehouse, and while Kheir declined to sign a consent-to-search form, the court 

noted this refusal did not automatically withdraw Kheir’s previous oral consent. 
14

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/14-20339/14-

20339-2016-03-09.pdf?ts=1457569834

*****

Seventh Circuit

United States v. Rivera, 2016 U.S. App. LEXIS 4828 (7th Cir. Ill. Mar. 16, 2016)

A confidential informant (CI) arranged to purchase cocaine from Duenas. The CI drove to 

Duenas’ house, parked outside, went into the garage and discussed the transaction with Duenas 

and Rivera. After a short meeting, the CI went back outside to get the money for the purchase 

of the cocaine. However, instead of going back into the garage, the CI got into his car and 

drove away. The CI phoned the agents who were monitoring his movements and told them 

there was cocaine in Rivera’s truck, which was parked inside Duenas’ garage. The agents 

immediately went to Duenas’ house where they arrested Duenas outside the open garage and 

Rivera inside it. The agents then searched the garage and seized two kilograms of cocaine from 

Rivera’s truck. Between the CI’s departure from the garage and the agents’ arrival, 

approximately three minutes had elapsed.

The government charged Duenas and Rivera with conspiracy to possess and distribute cocaine. 

The defendants filed a motion to suppress the evidence seized from Rivera’s truck, arguing the 

agents’ warrantless searches of Duenas’ garage and Rivera’s truck violated the Fourth 

Amendment. 

The court disagreed. Once the CI told the agents that there was cocaine in Duenas’ garage, the 

court found the agents had probable cause to search the garage. The agents then could have 

obtained a warrant to search the garage by including this information in their search warrant 

application to the magistrate judge. However, the court concluded exigent circumstances 

existed which made the agents’ warrantless entry into Duenas’s garage and subsequent search 

of the garage and Rivera’s truck reasonable. Specifically, the court found the delay caused by 

the agents drafting the search warrant application and presenting it to a magistrate judge might 

have prompted Duenas and Rivera to move the drugs to another location once they realized the 

CI might not be returning to complete the transaction. The court stated, “The important point 

is that had time permitted, the agents would without question have obtained a warrant.”

It is significant to note that the court rejected the agents’ warrantless entry and search under the 

consent-once-removed doctrine upon which the district court relied to deny the defendants’ 

motion to suppress the evidence. Under the consent-once-removed doctrine, 

“If an informant is invited to a place by someone who has authority to invite him 

and who thus consents to his presence, and the informant while on the premises 

discovers probable cause to make an arrest or search and immediately summons 

help from law enforcement officers, the occupant of the place to which they are 

summoned is deemed to have consented to their presence.”

The court added, 

“At first glance the doctrine of "consent once removed" is absurd. If one thing 

is certain it's that Duenas and Rivera would never have consented to the entry of 
15

federal drug agents into Duenas's garage, where the drugs to be bought by the 

informant were stored. The doctrine thus cannot, despite its name, be based on 

consent.”

Although the court considered the term “consent-once-removed” to be misnamed, the court 

recognized the doctrine to have some validity even though the agents’ entry and searches here 

were valid under the doctrine of exigent circumstances. However, the court could not find a 

case that mentioned “consent-once-removed” in which the decision in favor of the government 

could not have been supported on other grounds such as actual consent, exigent circumstances, 

or inevitable discovery. In light of these decisions, the court was “inclined to think that the 

term ‘consent-once-removed’ is not only opaque, but expendable.”

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca7/15-1740/15-1740-

2016-03-16.pdf?ts=1458158466

*****

United States v. Hill, 2016 U.S. App. LEXIS 5073 (7th Cir. Ill. Mar. 21, 2016)

Hill robbed a bank and got away with $134,000 in cash. However, as Hill fled, a red dye pack 

exploded in the bag containing the cash. As a result, most of the bills were stained red. Several 

days later, Hill went into a casino with a backpack and a Santa hat filled with thousands of 

dollars of dye-stained bills. Hill went to a slot machine and fed the bills into the machine. A 

casino employee thought it was strange that Hill was not playing the slot machine. Instead, Hill 

was cashing out and receiving vouchers for the amount of money he had put into the slot 

machine. The employee also noticed that the bills Hill was feeding into the slot machine were 

stained red. The employee notified a supervisor who contacted a police officer who was 

working as a security officer at the casino. The officer approached Hill and saw him holding 

red-stained bills, still wrapped in bank bands. The officer asked Hill why his bills were red and 

where he had gotten the money. Hill told the officer he had found the money while changing a 

tire near a lake. The officer found Hill’s story suspicious. In addition, the officer knew from 

his law enforcement experience that bank employees often attempt to hide red-dye packs among 

stolen money during robberies. The officer then led Hill away, along with his bag and Santa 

hat to an interview room. The officer questioned Hill and eventually searched Hill’s bag and 

Santa hat, recovering a large quantity of dye-stained bills. 

The government indicted Hill for money laundering, bank robbery and transporting stolen 

money in interstate commerce.

Hill filed a motion to suppress his arrest, the searches of his backpack and Santa hat, as well as

his initial statements to the officer at the cash-out area. Specifically, Hill argued the officer’s 

initial conversation with Hill was an arrest for which the officer did not have probable cause. 

Alternatively, even if the initial encounter was not an arrest, Hill argued the officer did not have 

reasonable suspicion to perform a Terry stop. Finally, Hill argued the officer did not have 

probable cause to remove Hill to the interview room where the remainder of the stolen bills 

were discovered. 

First, the court held the officer’s initial encounter with Hill at the cash-out area was a valid 

Terry stop. When the officer approached Hill, he knew that a casino employee had seen Hill 

placing red-stained bills into a slot machine that he was not playing, but instead cashing out and

receiving vouchers. In addition, the officer knew from experience that dye packs are often used 
16

to mark stolen currency and it was suspicious to have a person using a slot machine as a “change 

machine.” Based on these facts, the court concluded the officer had reasonable suspicion to 

approach Hill and conduct a Terry stop.

Next, the court held that by the time the officer escorted Hill to the interview room, he had 

established probable cause to arrest Hill. When the officer approached Hill in the cash-out line, 

he saw that Hill was holding a stack of bills stained with red dye and wrapped in bank bands. 

When the officer asked Hill about the stained bills, Hill told the officer an unlikely story about 

how he supposedly obtained the bills. These new facts, combined with the facts the officer 

already knew when he approached Hill established probable cause to believe that Hill had 

committed or was committing a crime.

Finally, the court held the searches of Hill’s backpack and Santa hat were lawful. A search 

incident to arrest is valid if it does not extend beyond “the arrestee’s person and the area within 

his immediate control.” Here, when he was detained, Hill was holding the bag containing the 

dye-stained bills and was exercising immediate control over it. Consequently, the court 

concluded the officer’s search of those items was valid incident to Hill’s arrest. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca7/14-2019/14-2019-

2016-03-21.pdf?ts=1458577869

*****

United States v. Guidry, 2016 U.S. App. LEXIS 5322 (7th Cir. Wis. Mar. 22, 2016)

An officer stopped a car driving without license plates. When the officer approached the car, 

he recognized Guidry, the driver from a previous traffic stop. The officer also knew Guidry 

was a suspected drug user and dealer. During the stop, the officer smelled a faint odor of 

marijuana, but he did not believe he had probable cause to search Guidry’s car. Instead, the 

officer obtained Guidry’s driver’s license and vehicle information. The officer went back to 

his car where he called for a drug-detection canine unit. The canine officer arrived with her 

drug-detection dog, Bud, five-minutes later, while the officer was still preparing Guidry’s 

citation. The canine officer directed Guidry to exit his car, and Guidry stepped out, but he left 

the driver’s side door open. As soon as Bud passed the open car door, he alerted and then 

indicated the presence of drugs by sitting down in front of the door. Bud then got up, 

approached the car and put his head into the car through the open door. Guidry told the officers 

he had smoked marijuana at home immediately before the traffic stop and that he had some 

marijuana in his car. The officers searched Guidry’s car and found marijuana as well as heroin, 

powder cocaine, and crack cocaine, individually packaged in clear plastic baggies. 

Based on Guidry’s statements during the stop, the evidence seized from his car, and the 

testimony of two confidential informants (CIs) who admitted to purchasing drugs from Guidry 

at his house, officers obtained a warrant to search Guidry’s residence. 

Officers searched Guidry’s residence and seized heroin, powder cocaine, crack cocaine, and 

marijuana. A woman present at Guidry’s residence told the officers that Guidry maintained 

another residence where Guidry had drugs and prostituted women. The officers obtained a 

warrant to search Guidry’s second residence based on the woman’s statements and the evidence 

seized at his first residence.

The government charged Guidry with several drug and prostitution related offenses.
17

Guidry filed motions to suppress the evidence seized from his car and residences.

First, Guidry argued the officers violated the Fourth Amendment by unlawfully prolonging the 

duration of the traffic stop and then by allowing the drug-detection dog to search the interior of 

his car.

The court disagreed. The court held the dog sniff did not prolong the traffic stop. The canine 

officer arrived with Bud five minutes after being called, and when she arrived, the officer was 

still preparing Guidry’s traffic citation. Even if the traffic stop had been prolonged by the dog 

sniff, the court found the officer had established reasonable suspicion to believe Guidry had 

drugs in the car when he smelled the faint odor of marijuana when he first encountered Guidry. 

As a result, the officer would have been justified in extending the duration of the stop for a 

reasonable time to confirm or dispel his suspicions with the dog’s assistance. Next, the court 

held dog the sniff of Guidry’s car was lawful. When Guidry got out of the car, he left the door 

open. In addition, the canine officer kept Bud on his leash and did not allow Bud to jump into 

Guidry’s car. Finally, by the time Bud’s head entered Guidry’s car, the officers had probable 

cause to search the interior as Bud indicated the car contained drugs while sniffing outside the 

car. 

Second, Guidry argued the officers did not establish probable cause to search his residences. 

Again, the court disagreed. In both instances, the court found that the CIs’ information was 

reliable as they were known to the officers, they obtained their information through first-hand 

observations, and some of their information was corroborated through other sources. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca7/15-1345/15-1345-

2016-03-22.pdf?ts=1458678651

*****

Eighth Circuit

United States v. Mshihiri, 2016 U.S. App. LEXIS 4625 (8th Cir. Minn. Mar. 14, 2016)

After Mshihiri became a suspect in a mortgage fraud investigation, federal agents applied for 

warrants to search his residence and laptop computer. The affidavit in support of the search 

warrant included information provided by a confidential informant (CI) who claimed that he 

participated in the mortgage fraud scheme with Mshihiri. The affidavit also included 

information from bank and real estate records that corroborated information provided by the 

CI. 

The agents coordinated with Customs and Border Protection (CBP) officers to interview 

Mshihiri and to execute a search of his laptop computer upon Mshihiri’s return from Tanzania. 

When Mshihiri arrived at the Minneapolis-St. Paul International Airport, a CBP officer 

intercepted him at the immigration entry point, led him to baggage claim, and then escorted him 

to a reception area. At the reception area, the agents identified themselves and presented their 

credentials to Mshihiri. The agents asked Mshihiri if he would be willing to speak to them, 

explaining to Mshihiri that he was not under arrest or obligated to answer questions. Mshihiri 

agreed to be interviewed and voluntarily accompanied the agents to an interview room. The 

agents sat across the table from Mshihiri who sat in a chair next to the door. Speaking in a 

normal tone and volume, the agents asked Mshihiri several questions about the suspected 
18

mortgage fraud. During the forty- five minute interview, Mshihiri did not request a break, try 

to use his cell phone, ask to consult an attorney, or call his wife so that she could call an attorney 

for him. The agents abruptly ended the interview after one of the agents changed his tone of 

voice and accused Mshihiri of lying. The agents left the interview room and Mshihiri went 

back through the passport control area in the main terminal.

The government charged Mshihiri with a variety of offenses including bank fraud, mail fraud, 

and wire fraud.

Mshihiri filed a motion to suppress evidence seized as a result of the search warrants and the 

statements he made during his interview with the agents. Mshihiri argued the affidavit in 

support of the search warrants failed to establish probable cause and that the interview with the 

agents constituted a custodial interrogation in which he was not first advised of his Miranda

rights. 

The court disagreed. First, the court held the affidavit in support of the search warrants 

established probable cause. The court concluded that the CI’s first-hand knowledge of 

Mshihiri’s involvement in the mortgage fraud scheme established the CI’s reliability and basis 

of knowledge for the information he provided the agents. In addition, the court noted the CI’s 

information was corroborated by a variety of independent financial documents. 

Second, the court held Mshihiri was not in custody for Miranda purposes during the interview 

with the agents. In agreeing with the district court, the court found that the agents told Mshihiri 

that he was not under arrest; Mshihiri entered the interview room voluntarily and was seated 

next to the door throughout the questioning; the agents were dressed in casual clothing and did 

not display their weapons; most of the forty-five minute interview was calm and conversational, 

and Mshihiri was never handcuffed or placed under arrest. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/14-3802/14-3802-

2016-03-14.pdf?ts=1457969484

*****

United States v. Diriye, 2016 U.S. App. LEXIS 4789 (8th Cir. Minn. Mar. 16, 2016)

Officers responded to a report of a suspicious vehicle in a parking lot, which matched the 

description and license plate of a vehicle connected to an armed home invasion and robbery 

three days earlier. When the officers arrived, they removed two people they discovered 

sleeping in the vehicle. Approximately fifteen minutes later, while the officers were awaiting 

the arrival of a supervisor for instructions to search the vehicle, Diriye walked up to the suspect 

vehicle and got inside it. The officers immediately approached the vehicle, ordered Diriye out 

and handcuffed him. While standing outside the car, Diriye shifted his body to keep his right 

side away from the officers. Suspecting that Diriye was armed, one of the officers frisked him 

and recovered a loaded handgun from Diriye’s right pants pocket. Diriye was charged with 

being a felon in possession of a firearm. 

Diriye filed a motion to suppress the handgun, arguing the officers only discovered it after 

conducting an unlawful Terry stop. 

The court disagreed, holding the officers had reasonable suspicion to conduct a Terry stop on 

Diriye. First, Diriye bypassed an active crime scene and entered a suspect vehicle that had not 

yet been secured or searched by law enforcement officers. Second, the suspect vehicle matched 
19

the description of a vehicle connected to an armed home invasion and robbery three days prior. 

Based on the totality of the circumstances, the court concluded the officers had reasonable 

suspicion to believe criminal activity was afoot by Diriye’s blatant disregard for the active crime 

scene by siting in the suspect vehicle connected to recent criminal activity.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/15-2385/15-2385-

2016-03-16.pdf?ts=1458142252 

*****

United States v. Campos, 2016 U.S. App. LEXIS 5199 (8th Cir. Mo. Mar. 22, 2016)

When officers responded to a call for a man in need of medical attention, they found Campos 

lying on the sidewalk next to a fallen bicycle. Campos told the officers he did not need medical 

attention; however, Campos was incoherent which caused the officers to suspect that he was 

under the influence of drugs. When one of the officers moved the bicycle to keep it from 

blocking the sidewalk, an unzipped bag that was attached to the handlebars fell open. Without 

touching the bag, the officer saw that it contained a gun. The officer removed the gun and 

found a second gun along with a digital scale with residue and a syringe containing residue and 

blood. After Campos told the officers his name, they discovered that he was a convicted felon. 

The officers arrested Campos for being a felon in possession of a firearm.

Campos filed a motion to suppress the evidence discovered in the bag attached to his bicycle. 

Campos argued the officer conducted an unlawful search when he moved the bicycle, which 

allowed the officer to see the contents of the bag. 

The court disagreed, holding that the officer’s movement of the bicycle did not constitute a 

search under the Fourth Amendment. The court found the officer needed to move Campos’ 

bicycle because it was impeding pedestrian traffic in violation of a city ordinance. Although 

the officer incidentally caused the bag to move by picking up the bicycle, the officer did not 

touch, squeeze, or manipulate the bag in any way. Consequently, once the officer moved 

Campos’ bicycle and the unzipped bag came open, the firearm it contained was in plain view. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/15-1346/15-1346-

2016-03-22.pdf?ts=1458660658

*****

Ninth Circuit

United States v. Lara, 2016 U.S. App. LEXIS 3995 (9th Cir. Cal. Mar. 3, 2016)

Lara was placed on probation after being convicted of possession for sale and transportation of 

methamphetamine in violation of California law. Two probation officers arrived unannounced 

at Lara’s home after he failed to report for an appointment with one of the officers. Lara’s 

probation agreement required him “to submit [his] person and property, including any 

residence, premises container or vehicle under [his] control, to search and seizure at any time 

of the day or night by any law enforcement officer, probation officer, or mandatory supervision 

officer, with or without a warrant, probable cause, or reasonable suspicion.” After announcing 

that they were at the house to conduct a probation search, one of the officers ordered Lara to sit 

on the couch while the other officer examined a cell phone he saw on a table next to the couch. 

The officer stated that it was his department’s policy to search probationers’ cell phones during 
20

home visits. The officer reviewed several text messages on Lara’s phone and discovered 

messages containing three photographs of a handgun lying on a bed. The text messages 

suggested that Lara was attempting to sell the handgun to another individual. The officers 

searched Lara’s house but they did not find the gun; however, the officers found a folding knife, 

the possession of which violated the terms of Lara’s probation. The officers arrested Lara for 

possessing the knife and seized his cell phone. The officers submitted Lara’s cell phone for 

forensic testing which revealed GPS coordinates embedded in the photographs of the gun. The 

officers eventually seized a loaded handgun that resembled the gun depicted in the photographs 

from Lara’s mother’s home.

The government charged Lara with being a felon in possession of a firearm and ammunition.

Lara filed a motion to suppress the gun and ammunition on the ground that it had been seized 

as the result of the illegal searches of his cell phone by the probation officer and the forensic 

lab. 

The court agreed. Probationers do not completely waive their Fourth Amendment rights by 

agreeing as a condition of their probation to submit their person and property to search at any 

time upon request by a law enforcement officer. Specifically, any search made pursuant to a 

condition of probation must still meet the Fourth Amendment’s reasonableness requirement. 

Consequently, the court concluded the issue was not solely whether Lara accepted the cell 

phone search as a condition of his probation, but whether the search that he accepted was 

reasonable. 

First, because Lara was on probation, he had a reduced expectation of privacy concerning 

searches of his person and his property. Second, although Lara had a reduced expectation of 

privacy in these areas, Lara still had a substantial privacy interest in his cell phone and the data 

it contained. Third, Lara’s probation agreement did not clearly authorize cell phone searches, 

and the terms “container” or “property” could not be interpreted so broadly to include Lara’s 

cell phone and the information it contained. Finally, even though probationary searches support 

the government’s interests in combating recidivism and integrating probationers back into the 

community, in this case, Lara’s privacy interest in his cell phone and its data was greater. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca9/14-50120/14-

50120-2016-03-03.pdf?ts=1457028170

*****

United States v. Lundin, 2016 U.S. App. LEXIS 5236 (9th Cir. Cal. Mar. 22, 2016)

A woman told an officer that Lundin had come to her home earlier that evening and abducted 

her at gunpoint. After a short time, the woman stated Lundin brought her home and warned her 

not to call the police. After corroborating some of the woman’s story, the investigating officer 

believed he had probable cause to arrest Lundin for burglary, false imprisonment, kidnapping, 

and several other crimes. The officer issued a be-on-the-lookout (BOLO) and an arrest request 

for Lundin just before 2:00 am. 

Upon receiving the BOLO, an officer from another law enforcement agency went to Lundin’s 

home. The officer saw a vehicle matching the description of Lundin’s truck parked in the 

driveway and saw that lights were on inside the house. The officer called for backup, and two 

other officers arrived just before 4:00 a.m. With the intent to arrest Lundin, the officers 
21

approached Lundin’s front door without a warrant. While standing on the porch the officers 

knocked loudly, waited thirty seconds for an answer, and then knocked more loudly. After the 

second knock, the officers heard several loud crashing noises coming from the back of the 

house. The officer ran to the back of the house and found Lundin. The officers handcuffed 

Lundin and placed him in the back of a patrol car. The officers went back and searched the 

patio area where they found two handguns lying among several five-gallon buckets that had 

been knocked over. 

The government indicted Lundin on a variety of criminal offenses.

Lundin filed a motion to suppress, among other things, the two handguns the officers seized 

from the patio. The district court granted Lundin’s motion, and the government appealed.

The government argued the officers were entitled to stand on Lundin’s front porch and knock 

on the door under the “knock and talk” exception to the warrant requirement. The government 

then argued that the crashing noises the officers heard in the back yard created exigent 

circumstances, which allowed the officers to enter and search the back patio area of Ludin’s 

house. The government further argued the warrantless search of the back patio area was a valid 

protective sweep.

The court disagreed. The “knock and talk” exception to the warrant requirement allows officers 

to “encroach upon the curtilage of a home for the purpose of asking questions of the occupants.” 

This exception is based upon an implied license in which a homeowner consents for others, to 

include law enforcement officers, to approach their home, knock promptly, wait briefly to be 

received and then leave unless invited to enter. Here the court concluded the officers exceeded 

the scope of the “customary license” to approach a home and knock.

First, the court found that unexpected visitors are customarily expected to knock on the front 

door of a home during normal waking hours. While officers might have a reason for knocking 

that a resident would consider important enough to justify an early morning disturbance in some 

circumstances, that was not the case here. Instead, the officers knocked on Lundin’s door 

around 4:00 a.m. without evidence that he generally accepted visitors at that hour, and without 

a reason that a resident would ordinarily accept as sufficient to justify the disturbance, 

specifically to arrest the resident. Second, the scope of the implied license to approach a home 

and knock is generally limited to the “purpose of asking questions of the occupants,” and 

officers who knock on the door of a home for other purposes generally exceed the scope of the 

customary license and do not qualify for the “knock and talk” exception. As a result, the court 

held the “knock and talk” exception to the warrant requirement does not apply when officers 

encroach upon the curtilage of a home with the intent to arrest the occupant. 

The court pointed out that it was not prohibiting officers from conducting “knock and talks” 

when the officers have probable cause to arrest a resident, but do not have an arrest warrant. 

The court stated an officer would not violate the Fourth Amendment by approaching a home at 

a reasonable hour and knocking on the front door with the intent to merely ask the resident 

questions, even if the officer had probable cause to arrest the resident. 

The court then held that exigent circumstances did not justify the officers’ entry and search of 

the patio area. Exigent circumstances cannot justify a warrantless search when the officers 

“create the exigency by engaging . . . in conduct that violates the Fourth Amendment.” First, 

the officers had no reason other than hearing the crashing noises coming from the backyard to 

believe there was an exigency that allowed them to enter and search the patio area. Second, it 
22

was the officers’ knock on the door that caused Lundin to make the crashing noises. 

Consequently, as the officers were in violation of the Fourth Amendment when they knocked 

on Lundin’s door, the court concluded the officers created the exigency which led to the seizure 

of the handguns. 

Finally, the court held the warrantless search of the patio area was not justified as a protective 

sweep as Lundin had already been handcuffed and placed in a police car and the officers had 

no reason to believe there was anyone else present who posed a threat to them. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca9/14-10365/14-

10365-2016-03-22.pdf?ts=1458666156

*****

Tenth Circuit

United States v. Carloss, 2016 U.S. App. LEXIS 4547 (10th Cir. Okla. Mar. 11, 2016)

Officers received information that Carloss, a convicted felon, possessed a machine gun and was 

selling methamphetamine. Two officers went to the home where Carloss was living in an 

attempt to interview him. Carloss lived in a single-family dwelling, and while there was no 

fence or other barriers around the house or yard, there were several “No Trespassing” signs 

placed in the yard and on the front door. In response to their knocks on the front door, a woman, 

Heather Wilson, exited the back door of the house and met the officers in the side yard. A few 

minutes later Carloss exited the house, and joined the officers and Wilson in the side yard. The 

officers told Carloss why they were there and asked if they could search the house. Carloss 

told the officers they would have to ask the owner of the house, Earnest Dry, if they could 

search it. When the officers asked Carloss if they could go into the house to speak to Dry, he 

replied, “sure.” At no time did Carloss or Wilson point out the “No Trespassing” signs or ask 

the officers to leave. Once inside the house, the officers waited in Carloss’ room while Carloss 

went to get Dry. While in Carloss’ room, the officers saw drug paraphernalia and a white 

powdery substance that appeared to be methamphetamine. After Dry refused to give the 

officers consent to search, the officers left. However, based on the drug paraphernalia the 

officers saw in Carloss’ room, they obtained a warrant to search Dry’s house. During the search 

pursuant to the warrant, officers seized drugs, firearms and ammunition. The government 

indicted Carloss and Dry on a variety of drug and weapons offenses.

Carloss argued that the search of his home pursuant to the warrant was unlawful because the 

officers obtained the warrant based on information that they obtained in violation of the Fourth 

Amendment when they trespassed onto the curtilage of his home to knock on the front door. 

The court disagreed. First, law enforcement officers, like any member of the public, have an 

implied license to enter a home’s curtilage to knock on the front door, in an attempt to speak 

with a home’s occupants. Second, the court found the United States Supreme Court holding in 

Florida v. Jardines did not prohibit law enforcement officers from conducting knock and talk 

interviews. Instead, Jardines held that the license to approach a home and knock on the front 

door does not allow officers to perform a search of the interior of the house from the porch with 

the enhanced sensory ability of a trained dog. The court concluded that Jardines did not apply 

in this case, as the officers did not attempt to gather information about what was occurring 

inside the house from the front porch by using a trained dog or any other means. The officers 

simply went to the front door and knocked, seeking to speak consensually with Carloss. 
23

Third, the court noted that it is well established that “No Trespassing” signs do not prohibit law 

enforcement officers from entering privately owned “open fields.” As a result, the officers were 

entitled to enter any part of the yard that might be considered “open fields.” Concerning the 

“No Trespassing” sign that was on the front door of the home, the court could not find any 

authority supporting Carloss’ claim that a resident can revoke the implied license to approach 

his home and knock on the front door by posting a “No Trespassing” sign on it. As a result, the 

court held the presence of a “No Trespassing” sign, by itself, cannot convey to an objectively 

reasonable officer, or a member of the public, that he cannot go the front door and knock, 

seeking to speak consensually to an occupant. 

Finally, the court held that Carloss voluntarily consented to the officers following him into the 

house. The officers were dressed in plainclothes, never drew their weapons and they never 

touched or threatened Carloss in any way. In addition, Carloss was aware that he could refuse 

the officers’ request because he had just declined to give the officers broader general consent 

to search the house when he told the officers they would have to ask Dry for permission to do 

that. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca10/13-7082/13-

7082-2016-03-11.pdf?ts=1457719342

*****

United States v. Mendoza, 2016 U.S. App. LEXIS 5597 (10th Cir. Okla. Mar. 25, 2016)

A state trooper stopped Mendoza for speeding. Mendoza drove a half mile before pulling over,

and the trooper noticed food and trash in the passenger seat, suggesting that Mendoza had been 

trying to avoid stopping on the way to his destination. In addition, Mendoza appeared to be 

nervous and was visibly shaking when he handed his driver’s license to the trooper. After the 

trooper recognized the car was a rental, he asked Mendoza for the rental agreement, but 

Mendoza mistakenly gave him his insurance document before handing him the rental 

agreement. When the trooper asked Mendoza about his travel plans, he realized what Mendoza 

told him was inconsistent with information contained in the rental agreement. The trooper 

issued Mendoza a written warning, and as Mendoza was preparing to leave, the trooper asked 

him, “Can I ask you a question?” Mendoza agreed to speak with the trooper and eventually 

gave the trooper consent to search his car. The trooper asked Mendoza to wait in his patrol car 

and told him to honk the horn if he wanted the trooper to stop the search. In the meantime, a 

second trooper arrived to assist with the search.

The troopers found two ice chests in Mendoza’s car, one in the trunk and one in the back seat. 

They opened the ice chest from the trunk and found that it contained wrapped fish and shrimp. 

The troopers also noticed the chest showed signs of tampering. First, one of the hinges was 

broken and the lip of the inner lining was partially separated from the outer shell. Second, one 

screw was missing while several others looked as if they had been taken in and out multiple 

times. In addition, the troopers knew that smugglers sometimes use seafood to mask the 

presence of drugs. After removing the seafood and placing it on the ground, one of the troopers 

used an upholstery tool to pry the inner and outer liners farther apart. As he separated the liners, 

the trooper saw that the lining contained spray foam that did not originally come with the ice 

chest. When he pried the lining farther apart, the trooper saw the corner of a black, taped 

bundle. The trooper had encountered similar bundles in the past containing drugs. The trooper 

tore open the outer lining of the chest and found 13 bundles containing marijuana. The trooper 
24

then dismantled the second ice chest in a similar manner and found two bundles containing 

methamphetamine. Mendoza did not honk the horn at any time during the search. 

The government charged Mendoza with possession with intent to distribute methamphetamine 

and marijuana.

Mendoza argued the evidence seized from the ice chests should have been suppressed.

First, Mendoza argued his consent to search was not valid because it was obtained after the 

trooper unlawfully prolonged the duration of the traffic stop. 

The court disagreed. The court found the trooper established reasonable suspicion during the 

stop to believe that Mendoza might be involved in criminal activity. Among other things, the 

court noted that Mendoza drove for a half mile before pulling over, he was extremely nervous 

during the stop, and his travel plans did were not consistent with information on the car’s rental 

agreement. As a result, the court held Mendoza’s detention up to the consent search was lawful.

Second, Mendoza argued the trooper exceeded the scope of his consent by removing the 

packaged seafood from the first ice chest and prying open the lining. 

Again, the court disagreed. A general consent to search a car includes closed containers located 

within the vehicle. Here, Mendoza consented to a general search of his car without any 

limitations or restrictions. In addition, Mendoza had been told that he could stop the troopers’ 

search at any time by honking the horn in the patrol car, and although he had a clear view of 

the troopers’ actions, he never did. Finally, the trooper’s further separation of the already 

separated inner and outer lining of the ice chest did not permanently damage it. Once the trooper 

saw the black bundle in the lining of the first ice chest, he had probable cause to search the 

chest regardless of the scope of Mendoza’s consent.

Third, Mendoza argue the troopers violated the Fourth Amendment by destroying the second 

ice chest during the search without probable cause that it contained evidence. 

The court disagreed, holding that it was reasonable for the troopers to dismantle the second ice 

chest after they had found drugs in the modified lining of the first ice chest. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca10/15-7042/15-

7042-2016-03-25.pdf?ts=1458921668

*****