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April 2018

THE

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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 4 INFORMER 18.
2

The Informer – April 2018

Case Summaries

United States Supreme Court

Kisela v. Hughes: Whether an officer was entitled to qualified immunity in a lawsuit

where the plaintiff claimed the officer violated the Fourth Amendment by using excessive

force when he shot her......................................................................................................................6

United States v. Microsoft: Whether a warrant issued under § 2703 of the Stored 

Communications Act required Microsoft to produce the contents of a customer’s email

account stored on a server outside the United States........................................................................7

Circuit Courts of Appeals

First Circuit

United States v. Favreau: Whether officers developed reasonable suspicion to extend the 

duration of a traffic stop ...................................................................................................................8

United States v. Delima: Whether the government satisfied the necessity requirement 

under 18 U.S.C. § 2518(1)(c) to obtain three separate wiretap authorizations..................................9

Second Circuit

United States v. Haak: Whether the defendant’s incriminating statements were made after

receiving a false promise of immunity from an officer or otherwise obtained involuntarily...........10

Third Circuit

Haberle v. Troxell: Whether an officer or the municipality was liable for money 

damages after a mentally disturbed man committed suicide...........................................................11

Fourth Circuit

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

traffic stop to investigate whether the defendant was transporting drugs........................................12

Fifth Circuit

United States v. Molina-Isidoro: Whether the warrantless search of the defendant’s cell

phone was lawful under the government’s border search authority................................................14

Hernandez v. Mesa: Whether federal courts have the authority to create an implied cause

of action under Bivens for an alleged use of excessive force where a Border Patrol agent

shot across the border killing a Mexican citizen (remanded from the U.S. Supreme Court) ...........14

United States v. Mendez: Whether the defendant’s post-Miranda statements to officers

were sufficiently attenuated from his detention during an unlawful stop........................................16

United States v. Perales: Whether an officer’s failure to return the defendant’s identification

prior to asking for consent to search his vehicle rendered his consent involuntary.........................17
3

Sixth Circuit

United States v. Tagg: Whether visiting a website containing child pornography 

established probable cause to believe the defendant had child pornography on his computer.........18

Seventh Circuit

United States v. Rodriguez-Escalera: Whether a state trooper established reasonable 

suspicion to extend the duration of a traffic stop.............................................................................19

United States v. Leonard: Whether the presentment of the wrong search warrant to

the owner of the premises invalidated the search and whether evidence discovered in 

two trash pulls established probable cause to search the defendant’s house....................................21

Eighth Circuit

United States v. Hampton: Whether the defendant invoked his right to counsel when

he told officers, “I haven’t even gotten a chance to get a lawyer or anything.” ....................22

Ninth Circuit

Thompson v. Copeland: Whether an officer was entitled to qualified immunity in a

lawsuit alleging excessive force where the officer pointed his gun at the plaintiff’s head...............22

Eleventh Circuit

United States v. Vergara: Whether the warrantless forensic searches of the defendant’s 

cell phones was lawful under the government’s border search authority........................................23

United States v. Johnson: Whether an officer was justified in conducting a Terry frisk

and whether the officer exceeded the scope of the frisk by removing a round of ammunition 

from the defendant’s pocket...........................................................................................................24

♦

FLETC Informer Webinar Schedule 

1. Section 2703 (d) of the Stored Communications Act (1-hour)

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

Training Centers, Glynco, Georgia

This webinar will focus on § 2703(d) court orders, the process under the Stored 

Communications Act that permits law enforcement officers to obtain, among other things, 

a suspect’s historical cell phone and email account information. Mr. Walsh will discuss 

the legal standard to obtain a 2703(d) court order, what information can be obtained, as 

well as the pending Supreme Court case, Carpenter v. United States, and how the Court’s 

ruling might affect § 2703(d) orders in the future. 

Wednesday May 9, 2018 - 3pm Eastern / 2pm Central / 1pm Mountain / 12pm Pacific

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

♦
4

2. Video Recording Police (1-hour)

Presented by Joe Haefner, Associate Chief Counsel, Federal Law Enforcement Training 

Centers, Artesia, New Mexico and Henry McGowen, Attorney-Advisor / Senior 

Instructor, Federal Law Enforcement Training Centers, Artesia, New Mexico 

This webinar will focus on the 1st Amendment rights of citizens to record law enforcement 

officers engaged in their official duties and address critical questions in this area: What 

are the legal limitations? Under what conditions can law enforcement prevent such 

recording without violating a person’s Constitutional rights? What are the potential 

consequences for violating a person’s 1st Amendment rights?

Wednesday May 16, 2018 - 3pm Eastern / 2pm Central / 1pm Mountain / 12 pm Pacific

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

♦

3. Clery Act Reporting Requirements (1-hour)

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

Enforcement Training Centers, Artesia, New Mexico 

The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act 

or Clery Act, is a federal statute that requires all colleges and universities that participate 

in federal financial aid programs to keep and disclose information about crime on and near 

their respective campuses. The act has been amended to include requirements for an annual 

security report (due by October 1 of each year), a crime log, timely warnings, and 

collection of crime statistics. This webinar will address common compliance questions 

from a law enforcement viewpoint (e.g. issuing a timely warning during active threat 

events) and is suitable for college police departments (public, private, tribal) as well as 

state/local/tribal officers with Title IV-funded schools in their response area. 

University/college/agency administrators and attorneys are welcome to attend.

Wednesday May 23, 2018 – 3pm Eastern / 2pm Central / 1pm Mountain / 12 pm Pacific

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

♦

4. Qualified Immunity (1-hour)

Presented by Johnnie Story, Attorney-Advisor / Senior Instructor, Federal Law 

Enforcement Training Centers, Glynco, Georgia

This webinar will discuss the protection federal officers have when sued for Constitutional 

Torts. Mr. Story will discuss an office’s qualified immunity from civil liability, how an 

officer asserts qualified immunity, and current case law where courts have evaluated the 

application of qualified immunity.

Wednesday May 30, 2018 - 3pm Eastern / 2pm Central / 1pm Mountain / 12 pm Pacific

To participate in this webinar: https://share.dhs.gov/walsh/
5

♦

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.

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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

CASE SUMMARIES

United States Supreme Court

Kisela v. Hughes, 2018 U.S. LEXIS 2066 (April 2, 2018)

In May 2010, a person called 911 and reported that a woman was hacking a tree with a kitchen 

knife. When Officer Kisela and another officer responded, they were flagged down by the 911 

caller. The caller gave the officers a description of the woman and told them the woman had been 

acting erratically. During this time, a third officer arrived. 

A short time later the three officers saw a woman, later identified as Susan Chadwick, standing 

next to a car in the driveway of a nearby house. A chain-link fence with a locked gate separated 

Chadwick from the officers. The officers then saw another woman, later identified as Amy 

Hughes, emerge from the house carrying a large knife at her side. Hughes matched the description 

of the woman who had been seen hacking the tree earlier. Hughes walked toward Chadwick and 

stopped approximately six feet from her. 

All three officers drew their guns and twice Hughes was ordered to drop the knife. Hughes 

appeared calm, but she did not acknowledge the officers’ presence or drop the knife. The top bar 

of the chain-link fence blocked Officer Kisela’s line of fire, so he dropped to the ground and shot 

Hughes four times through the fence. Afterward, the officers jumped the fence, handcuffed 

Hughes, and called paramedics, who transported her to a hospital. Less than a minute had elapsed 

from the time the officers saw Chadwick until the time Officer Kisela shot Hughes.

Hughes sued Officer Kisela under Rev. Stat. § 1979, and 42 U.S.C. § 1983, claiming that Kisela 

had used excessive force in violation of the Fourth Amendment. 

The District Court granted Officer Kisela qualified immunity, but the Ninth Circuit Court of 

Appeals reversed. Officer Kisela appealed to the United States Supreme Court.

The Court reversed the Ninth Circuit Court of Appeals and held that Officer Kisela was entitled 

to qualified immunity. An officer is entitled to qualified immunity when his conduct does not 

violate clearly established statutory or constitutional rights of which a reasonable person would 

have known. In this case, the court did not decide whether Officer Kisela violated the Fourth 

Amendment when he shot Hughes; however, even assuming a Fourth Amendment violation 

occurred, the Court concluded that Officer Kisela did not violate clearly established law. 

Although a plaintiff is not required to provide case law that is directly on point for a right to be 

clearly established, an officer cannot violate a clearly established right unless the right was 

sufficiently defined so that a reasonable officer in the defendant’s shoes would have understood 

that he was violating it. The Court noted that it has “repeatedly told courts – and the Ninth Circuit 

in particular – not to define clearly established law at a high level of generality.” The Court added 

that the general rules set out in Tennessee v. Garner and Graham v. Connor do not by themselves 

create clearly established law outside an “obvious case.” Instead, the Court reiterated that 

specificity is important in the Fourth Amendment context, as it is sometimes difficult for an officer 

to determine how the relevant legal doctrine concerning excessive force will apply to the situation 

facing the officer. 
7

When Officer Kisela encountered Hughes, he suspected that Hughes was the woman the 911 caller 

had seen hacking a tree with a large kitchen knife. In addition, Hughes was within striking 

distance of Chadwick; ignored the officers’ commands to drop the knife; the officers were 

separated from Hughes and Chadwick by a chain-link fence; and the situation unfolded in less 

than a minute. Based on these facts, Officer Kisela testified that he shot Hughes because he 

believed that Hughes posed a threat to Chadwick. The court concluded that this was far from an 

“obvious case” in which any competent officer would have known that shooting Hughes to protect 

Chadwick would violate the Fourth Amendment. The Court added that the none of the cases 

relied upon by the Ninth Circuit Court of Appeals supported the denial of qualified immunity for 

Officer Kisela and stated that the Ninth Circuit’s reliance on one case in particular was so 

erroneous that it “does not pass the straight-face test.” 

For the court’s opinion: https://www.supremecourt.gov/opinions/17pdf/17-467_bqm1.pdf

*****

United States v. Microsoft Corp., 2018 U.S. LEXIS 2495 (Apr. 17, 2018)

The government obtained a warrant issued under § 2703 of the Stored Communications Act (SCA) 

that directed Microsoft to seize and produce the contents of an email account that it maintained 

for a customer who used the company’s electronic communications services. The government 

then served the warrant on Microsoft at its headquarters in Redmond, Washington. 

Microsoft provided the government the customer’s non-content related information that was 

located on a server in the United States. However, Microsoft determined that to comply fully with 

the warrant, it would need to access customer content stored and maintained on a server located 

in Ireland. Microsoft refused to provide the government this data and filed a motion to quash the 

warrant. Microsoft argued that a warrant issued under the SCA could not require it to produce 

data that was stored on servers located outside the United States.

The government argued Microsoft was required to produce the data, pursuant to the warrant, no 

matter where the data was located, as long as Microsoft had custody and control of the data. 

The Second Circuit Court of Appeals held that § 2703 of the SCA does not authorize a United 

States court to issue and enforce an SCA warrant for the contents of a customer’s electronic 

communications stored on severs located outside the United States. Consequently, the court held 

the SCA warrant in this case could not lawfully compel Microsoft to produce the contents of a 

customer’s email account stored on servers located in Ireland. The government appealed.

The Supreme Court granted certiorari and heard oral argument on February 27, 2018. 

On March 23, 2018, Congress enacted and the President signed into law the Clarifying Lawful 

Overseas Use of Data Act (CLOUD Act) that directly addressed the issue before the Court in this 

case. The CLOUD Act contains a provision that requires email service providers to disclose 

emails within their “possession, custody, or control,” even when those emails are located outside 

the United States. Soon thereafter, the government obtained, pursuant to the CLOUD Act, a new 

§ 2703 warrant covering the information requested in the initial § 2703 warrant at issue in this 

case. In light of these facts, the Court concluded that there was no longer a “live” dispute between 

the United States and Microsoft on the legal question the Court agreed to review. As a result, the 

Court directed the lower court to dismiss the case as moot. 

For the court’s opinion: https://www.supremecourt.gov/opinions/17pdf/17-2_1824.pdf

*****
8

Circuit Courts of Appeal

First Circuit

United States v. Favreau, 2018 U.S. App. LEXIS 7413 (1st Cir. ME Mar. 23, 2018)

A police officer, who was aware of Favreau’s reputation as a drug dealer, received a tip from an 

informant that Favreau possessed a vehicle that contained a secret compartment in which drugs 

could be hidden. While conducting surveillance of Favreau’s house in an unmarked police car, 

the officer saw Favreau get into a car and drive away. The officer followed Favreau along with a 

K-9 officer who was driving a marked police cruiser. While following Favreau, the officers 

noticed that Favreau engaged in counter surveillance tactics designed to elude police officers that 

might be following him. After the officers saw Favreau make a turn without signaling, the officer 

in the marked cruiser activated his blue lights and siren. Favreau did not immediately pull over, 

which was another violation, but instead turned down another street before pulling over.

While discussing the traffic violations, the officers noticed Favreau was extremely nervous. 

Favreau told the officers he knew the officers had been following him and indicated that his 

driving maneuvers had been made with the police consciously in mind. During the encounter, the 

officers frisked Favreau and discovered $400 in cash. In addition, when the officers asked Favreau 

where he was going, Favreau told the officers he was going home, which they suspected was a 

lie. 

After completing the traffic stop, the K-9 officer walked his drug-dog around Favreau’s car several 

times, which took approximately three minutes. After the dog alerted to the presence of drugs, the 

officers searched the car and found a hidden compartment that contained cocaine.

The government charged Favreau with several drug-related offenses.

Favreau filed a motion to suppress the evidence seized from his car arguing that the officers 

unreasonably prolonged the duration of the traffic stop. 

The court disagreed. First, the court stated that while the officers’ primary interest in Favreau was 

his possible illegal drug activity and not his bizarre driving or traffic infractions, their ulterior 

motive was irrelevant. Second, the officers were justified in stopping Favreau for his erratic 

driving and traffic violations. Third, during the interview, Favreau admitted that his erratic driving 

was an attempt to evade the officers. Fourth, during the stop Favreau was extremely nervousness 

and lied to the officers about where he was going. Finally, the officers knew that Favreau had a 

reputation as a drug dealer and knew that his car might contain a secret compartment to conceal 

drugs. Based on these facts, the court held that the officers established reasonable suspicion to 

detain Favreau at the conclusion of the traffic stop. The court further held that the additional 

three-minute period of detention until the drug-dog alerted was reasonable. Finally, the court 

concluded that after the drug-dog’s alert, the officers had probable cause to search Favreau’s car

under the automobile exception to the Fourth Amendment’s warrant requirement. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca1/17-1261/17-1261-

2018-03-23.pdf?ts=1521838807

*****
9

United States v. Delima, 2018 U.S. App. LEXIS 7547 (1st Cir. ME Mar. 26, 2018)

During the investigation of a drug-trafficking organization, federal agents applied for and obtained 

three separate wiretap authorizations from the district court in Vermont. Through the wiretaps, 

agents learned that Delima and his brother were involved in manufacturing and using fraudulent 

credit cards. 

When agents executed a search warrant at the apartment of one of Delima’s associates in Maine, 

they recovered various equipment used to manufacture fraudulent credit cards as well as computer 

files that contained hundreds of stolen credit card numbers. 

The government charged Delima with conspiracy to commit access-device fraud. 

Delima filed a motion to suppress all evidence obtained through the wiretaps, arguing that the 

government had failed to demonstrate necessity under 18 U.S.C. § 2518(1)(c).

Under 18 U.S.C. § 2518(1)(c), wiretap applications must include “a full and complete statement 

as to whether or not other investigative procedures have been tried and failed or why they 

reasonably appear to be unlikely to succeed if tried or to be too dangerous.” To satisfy this 

“necessity” requirement, the government demonstrated that it “has made a reasonable, good faith 

effort to run the gamut of normal investigative procedures before resorting to means so intrusive 

as electronic interception of telephone calls.”

The court held that the affidavits in support of the three wiretap applications stated why each of 

the investigative techniques that had been employed up to that point would have been ineffective 

in achieving the goals of the investigation, which were also set forth in the applications. For 

example, the affidavit in support of the first wiretap application stated that the use of confidential 

informants would have been fruitless because the informants were low-level “runners” who did 

not have access to information pertinent to the investigation’s goals, that controlled drug 

purchases and pole cameras would not help to identify the leaders of the conspiracy, and that 

interviewing members of the conspiracy might compromise the investigation by alerting the 

suspects. 

The court further held that the affidavits in support of the second and third wiretap applications 

properly described why additional wiretaps were necessary to accomplish the investigation’s 

goals and why traditional investigative techniques would not be sufficient. For example, the 

second wiretap application explained that wiretaps on two additional phones were necessary to 

determine, among other things, the organization’s source for heroin and cocaine base, its 

trafficking and money-laundering methods, its use of firearms in furtherance of the conspiracy, 

and the extent of the organization’s distribution network. Finally, in the third wiretap application, 

the government targeted a phone that members of the conspiracy used for internal 

communications, whereas prior wiretaps had primarily targeted phones used by the suspects to 

communicate with customers. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca1/17-1132/17-1132-

2018-03-26.pdf?ts=1522096206

*****
10

Second Circuit

United States v. Haak, 884 F.3d 400 (2d Cir. NY 2018)

Local police officers working on a joint federal-state task force were investigating the death of 

James Forness from an apparent overdose of heroin laced with fentanyl. After reviewing text 

messages on Forness’ cell phone, officers identified Haak as Forness’ likely drug supplier. As a 

result, an officer contacted Haak and asked him to come to the police station. Haak voluntarily 

drove to the police station and was interviewed by two officers. Even though Haak was not in 

custody, the officers advised him of his Miranda rights. The interview was held in a standard 

interview room, lasted just over thirty minutes, and was video recorded. Both officers spoke to 

Haak in a conversational tone and both officers were dressed in casual street clothes with no 

weapons visible. During the interview, Haak was not handcuffed or otherwise restrained and was 

not arrested at the end of the interview. 

Approximately five minutes into the interview, Haak admitted that he supplied the drugs that 

killed Forness. Afterward, one of the officers told Haak that he would be “walking out” of the 

station at the end of the interview, but emphasized that Haak needed to “get on board” and 

cooperate with the officers so they could prevent future heroin-related deaths. The officer made 

other statements requesting Haak’s cooperation and specifically told Haak, “either you can get on 

board, put the team jersey on here, play for this team, or you can be on the losing team.” Haak 

then identified two of his drug suppliers and over the next few days, working under the direction 

of the officers, arranged for two controlled purchases of heroin. 

Six days after the interview, a federal complaint was filed charging Haak and one of his suppliers 

with drug-related offenses. Nine months later, a federal grand jury indicted Haak for fentanyl 

possession and distribution resulting in death. 

Haak filed a motion to suppress his statements to the officers. Haak claimed that his statements 

were coerced by the threat of prosecution if he did not cooperate with the officers. 

The district court held that the officer made an implied promise of immunity to Haak when the 

officer told Haak that in exchange for his cooperation, he would not be charged. As a result, the 

district court suppressed Haak’s statements, concluding that the officer’s promise of immunity 

overbore Haak’s will and rendered his statements involuntary. The government appealed.

The Third Circuit Court of Appeals reversed, holding that the district court improperly suppressed 

Haak’s statements. 

First, the court held that Haak’s initial statements, made before the alleged promise of immunity, 

approximately five minutes into the interview, were voluntary. The officer told Haak that cell 

phone records along with the text messages from Forness’ phone established that Haak was 

Forness’ drug supplier. In response, Haak nodded his head in agreement and twice again after the 

officer commented about text messages discovered on Forness’ phone. The court found there was 

nothing in these exchanges to indicate that Haak’s responses to the officer’s statements were 

involuntary.

Second, the court held that Haak’s will was not overborne by a false promise of immunity from 

the officer. The officer repeatedly emphasized to Haak that he was not being arrested and that 

Haak would be “walking out of” the station, which is what occurred. The court found that viewed 

in this context, the officer’s statements were most reasonably understood to communicate that the 
11

officer had no present intent to arrest Haak, not that he was promising him immunity from 

prosecution. The court noted that the decision not to arrest a suspect at a particular time does not 

prevent a suspect’s future prosecution. The court further added there is nothing improper when 

an officer truthfully tells a suspect that he will be prosecuted to the full extent of the law if he 

chooses not to cooperate. In addition, the court found that the officer’s “team” reference could 

not imply a promise of immunity because the analogy is routinely used to refer to individual who 

cooperate, the vast majority of whom do not receive immunity.

Finally, the court held that there was no other evidence to support Haak’s claim that his will was 

overborne by the officer’s conduct. Haak voluntarily went to the police station, and even though 

he was not in custody, the officer advised Haak of his Miranda rights. The interview lasted just 

over thirty minutes, Haak was not handcuffed, and nothing about the officers’ demeanor, dress, 

or conduct established Haak’s will was overborne.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca2/16-3876/16-3876-

2018-03-07.pdf?ts=1520440209

*****

Third Circuit

Haberle v. Troxell, 2018 U.S. App. LEXIS 6926 (3d Cir. PA Mar. 20, 2018)

Timothy Nixon suffered from a variety of mental health issues. In May 2013, Nixon was living 

with Nicole Haberle when he had a serious mental health episode involving severe depression. 

Nixon called Haberle, told her that he was suicidal, and then broke into a friend’s home and took 

a handgun. Afterward, Nixon went to his cousin’s apartment. 

Fearing for Nixon’s life, Haberle called the Borough of Nazareth Police Department and reported 

the incident. Officer Troxell obtained a warrant for Nixon’s arrest and went to the cousin’s 

apartment with other officers to arrest Nixon. Upon arriving at the apartment, some of the officers 

suggested setting up a perimeter and asking the Pennsylvania State Police to send crisis 

negotiators. Other officers suggested asking Haberle to help communicate with Nixon. Officer 

Troxell refused those suggestions and told the other officers that he was immediately going to the 

apartment because “that is how we do things in Nazareth.” Officer Troxell went to the apartment, 

knocked on the door, and identified himself as a police officer. Nixon then committed suicide by 

shooting himself.

Haberle sued Officer Troxell, claiming that his actions constituted an unlawful seizure in violation 

of the Fourth Amendment as well as a state-created danger in violation of the Due Process Clause 

of the Fourteenth Amendment. Haberle also sued the Borough of Nazareth, claiming the Borough 

violated the Americans with Disabilities Act (ADA). 

First, the court held that Officer Troxell’s actions did not constitute an unlawful seizure. Whether 

or not well advised, and despite his crudely expressed intentions, Officer Troxell merely knocked 

on the door and announced his presence. The court concluded that this, by itself, was not enough 

to violate the Fourth Amendment. The court added that even if a seizure had occurred, it would 

have been lawful because Officer Troxell had a valid warrant for Nixon’s arrest.

Next, the court held that Officer Troxell’s actions did not cause a state-created danger. The Due 

Process Clause of the Fourteenth Amendment, requires the government to protect individuals 
12

against dangers, which includes self-inflicted injury that the government creates. Under the statecreated danger doctrine, a plaintiff must establish, among other things, that a state actor acted with 

a conscious disregard of a great risk of harm to an individual. Here, the court found that Officer 

Troxell’s decision to ignore the advice of other officers fell beneath the threshold of conscious 

disregard of a great risk of harm to Nixon. According to the court, the fact that Officer Troxell 

chose to immediately knock while other officers counseled waiting manifested only a 

disagreement over how to manage a risk, not a disregard of it. 

Finally, the court concluded that it is possible for police officers to violate the ADA when making 

an arrest by failing to provide reasonable accommodations for a qualified arrestee’s disability; 

therefore, subjecting the arrestee to discrimination. The court added that this position is supported 

by other federal circuits, and even though there is some disagreement concerning the point during 

a law enforcement encounter at which the ADA applies to police conduct, no court of appeals has 

held that the ADA does not apply at all. However, even though the ADA generally applies in the 

arrest context, the court held that Haberle’s claim for money damages against the Borough failed 

as a matter of law because Haberle did not allege that the Borough acted with deliberate 

indifference to the risk of an ADA violation. Specifically, Haberle did not claim that the Borough 

was aware that its existing policies made it substantially likely that disabled individuals would be 

denied their federally protected rights under the ADA. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca3/16-2074/16-2074-

2018-03-20.pdf?ts=1521565208

*****

Fourth Circuit

United States v. Bowman, 884 F.3d 200 (4th Cir. NC 2018)

A patrol officer received a tip that two men suspected of transporting methamphetamine were 

possibly driving an older model, red Lexus in the area. At approximately 3:40 a.m., the officer 

saw an older model red Lexus and followed it. The officer stopped the vehicle for weaving over 

the fog line and speeding. The officer spoke with the driver, Bowman, who appeared to be 

nervous when he gave the officer his driver’s license and registration. The officer also noticed 

that the passenger, Alvarez, appeared to be nervous. Inside the vehicle, the officer saw an energy 

drink, food and food wrappers, in the front seat, and a suitcase and loose items of clothing in the 

backseat. The officer believed the presence of these items suggested that Bowman and Alvarez 

could have been travelling for a long period of time. 

The officer directed Bowman to sit in his patrol car while he ran a check on Bowman’s driver’s 

license and registration. While the officer processed Bowman’s information, he asked Bowman 

where he and Alvarez had come from and where they were going. Bowman told the officer that 

he was going home after having picked up Alvarez from Alvarez’s girlfriend’s house. Bowman 

was unable to give the officer the girlfriend’s address, but he told the officer that he had entered 

the address into the Lexus’ GPS. 

The officer also asked Bowman how he was employed, and Bowman told the officer that he was 

a welder, but that he was currently laid off from work. When the officer asked Bowman if he had 

any prior speeding violations, Bowman told the officer he had one prior ticket while driving a 

different vehicle that he had purchased online and added that he liked to buy cheap cars from 

Craigslist. The officer found it suspicious that Bowman was driving a Lexus and admitted that 
13

he recently bought another car from Craigslist. Based on his experience, the officer knew that 

drug traffickers often used multiple, different vehicles to transport narcotics. 

The officer issued Bowman a warning for the traffic violations and then completed the stop by 

returning Bowman’s driver’s license and registration and shaking his hand. As Bowman began 

to exit the patrol car, the officer asked if he could speak with Bowman further. Bowman agreed 

and remained in the patrol car. The officer again asked Bowman where he had been that evening. 

Bowman reiterated that he had picked up Alvarez from Alvarez’s girlfriend’s house, but that he 

could not remember exactly where she lived. The officer then told Bowman that he was going to 

ask Alvarez some questions, and Bowman said, “okay.” As the officer was getting out of the 

patrol car, he told Bowman, “just hang tight right there, okay,” to which Bowman replied, “oh, 

okay.” 

The officer asked Alvarez questions about where he and Bowman had been that morning. Alvarez 

gave an inconsistent story, telling the officer they had been visiting friends in Georgia. The officer 

went back to his patrol car and after Bowman repeated that he and Alvarez had come from the 

home of Alvarez’s girlfriend, the officer asked if there was any methamphetamine in the Lexus. 

Bowman denied there was any methamphetamine in the vehicle and refused to give the officer 

consent to search it. The officer contacted a K-9 officer who walked his drug-sniffing dog around 

the Lexus. After the dog alerted to the presence of drugs, the officer searched the Lexus and found 

methamphetamine, digital scales, and ammunition. 

The government charged Bowman with possession with intent to distribute methamphetamine. 

Bowman filed a motion to suppress the evidence discovered in his vehicle, arguing that the officer 

unlawfully prolonged the duration of the traffic stop without consent or reasonable suspicion.

The court agreed. It was undisputed that the initial traffic stop was complete when the officer 

issued Bowman a warning citation, returned his documents, and shook his hand. It was also 

undisputed that Bowman consented to the officer’s request to answer additional questions, which 

the officer did for approximately 40 seconds. However, the court concluded that this brief 

consensual encounter became a Fourth Amendment seizure when the officer told Bowman to 

“hang tight” in the patrol car while the officer questioned Alvarez. 

The court further held that Bowman’s seizure was not justified by reasonable suspicion. The court 

concluded that the totality of the circumstances, notably Bowman and Alvarez’ nervousness, an 

energy drink, food wrappers, a suitcase, loose clothing, Bowman’s uncertainty about the address 

of Alvarez’s girlfriend, and Bowman’s vehicle purchases did not provide reasonable suspicion to 

believe Bowman was engaged in criminal activity. As a result, the court held that the officer 

unreasonably prolonged the duration of the traffic stop; therefore, the district court should have 

suppressed the evidence recovered from Bowman’s vehicle.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca4/16-4848/16-4848-

2018-03-01.pdf?ts=1519938045

*****
14

Fifth Circuit

United States v. Molina-Isidoro, 884 F.3d 287 (5th Cir. TX 2018)

Molina attempted to enter the United States at a border crossing in El Paso, Texas. Customs and 

Border Protection officers detected anomalies while x-raying Molina’s suitcase and referred her 

to a secondary inspection area. When officers searched Molina’s suitcase, they found a hidden 

compartment that contained over four kilograms of methamphetamine. 

While questioning Molina, federal agents conducted a manual search of Molina’s phone, looking 

at the Uber and the WhatsApp apps. On WhatsApp, the agents found a conversation between 

Molina and another person concerning the details of her trip. After the search, the agents kept 

Molina’s phone, but did not conduct a forensic search of it. 

The government charged Molina with two drug offenses.

Molina filed a motion to suppress the evidence obtained from the search of her cell phone. Molina 

argued that the warrantless search of her cell phone, incident to her arrest, was unlawful.

First, the court declined to adopt a general rule concerning how the government’s border search 

authority applies to modern technology, such as cell phones or other electronic devices. Second, 

the officers lawfully scanned and searched Molina’s suitcase, in which the methamphetamine was 

discovered, during a lawful border search. Third, the agents reasonably relied in good faith on 

this broad border-search authority to search the apps on Molina’s cell phone. Fourth, while the 

Supreme Court in Riley v. California held that the traditional search-incident-to-arrest rationale 

did not apply to cell phones generally, the Court left open the possibility that “other case-specific 

exceptions may still justify a warrantless search of a particular phone.” Consequently, in this 

case, the court found that “it was reasonable for the agents to continue to rely on the robust body 

of pre-Riley case law that allowed warrantless searches of computers and cell phones.” Fifth, the 

court recognized that no post-Riley decision issued before or after the search in this case has 

required a warrant for a border search of an electronic device. Finally, only two of the many 

federal cases addressing border searches of electronic devices have ever required any level of 

suspicion. In those cases, the court noted that they both required only reasonable suspicion and 

that was for more intrusive forensic searches.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca5/17-50070/17-

50070-2018-03-01.pdf?ts=1519950616

*****

Hernandez v. Mesa, 2018 U.S. App. LEXIS 7161 (unpublished) (5th Cir. TX Mar. 20, 2018)

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

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

parents (plaintiffs) filed a lawsuit against Agent Mesa under Bivens, alleging that Agent Mesa 

violated their son’s rights under the Fourth and Fifth Amendments. Specifically, the plaintiffs 

alleged that Agent Mesa violated the Fourth Amendment by using excessive force against 

Hernandez, and the Fifth Amendment by depriving Hernandez of due process. 

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

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

failed to state a claim for a violation of the Fourth Amendment because Hernandez was a Mexican 
15

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

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

excessive force claim.

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

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

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

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

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

unlawful. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

preclude extending Bivens. 

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

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

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

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

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

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

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

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

Although the “newness” of this “new context,” by itself, warranted the dismissal of Hernandez’s 

claim, the court further added that several “special factors” existed that precluded the court from 

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

transnational context would increase the likelihood that Border Patrol agents would “hesitate in 

making split second decisions.” The court also noted that extending Bivens in this context risked 

interference with foreign affairs and diplomacy in general. Finally, the court noted that Congress’ 

failure to provide causes of action in other related legislation was intentional and represented 

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

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

favor judicial invention of those rights.”

For the court’s opinion: http://www.ca5.uscourts.gov/opinions/pub/12/12-50217-CV1.pdf

*****
16

United States v. Mendez, 2018 U.S. App. LEXIS 7498 (5th Cir. TX Mar. 23, 2018)

Police officers obtained a no-knock warrant to search Mendez’s house for drugs. Mendez was a 

known gang member with an extensive criminal history, who the officers considered armed, 

dangerous, and unstable. Unable to secure a SWAT team to assist in the execution of the warrant, 

officers decided to surveil Mendez’s house and execute the warrant after he left. 

After Mendez and his girlfriend left the house, officers entered the house and began to search it. 

In the meantime, an officer in a marked police car was directed to conduct a traffic stop on 

Mendez. The officer stopped Mendez less than one minute after he left his house, approximately 

a half-mile away. During the stop, an officer searched Mendez’s car and found a loaded revolver 

in a purse located on the front, passenger-side floorboard. The officer drove Mendez back to his 

house after the other officers secured it. 

While searching Mendez’s house, officers discovered loose ammunition and an empty Glock 

pistol case. After completing the search, the officers arrested Mendez for being a felon in 

possession of ammunition and transported him to the police station. An officer advised Mendez 

of his Miranda rights, which he waived. Mendez claimed ownership of the revolver discovered 

in the purse and told officers where to find a Glock pistol and some ammunition in his house. 

Officers returned to Mendez’s house and found the Glock pistol and ammunition. 

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

Mendez filed a motion to suppress the revolver, his statements to the officers, and the Glock pistol 

and ammunition found during the second search. The district court held that the initial stop of 

Mendez nearly a half-mile from his home was unlawful under Bailey v. United States and 

suppressed the revolver. However, the district court found that Mendez’s lawful arrest for being 

a felon in possession of ammunition was attenuated from his initial unlawful detention; therefore, 

Mendez’s subsequent statements to the officers at the police station and the evidence discovered 

during the second search of his house was admissible. Mendez appealed to the Fifth Circuit Court 

of Appeals. 

First, the court held that Mendez’s post-Miranda statements were voluntary. The court found that 

there was no evidence of physical coercion during the 90-minute interview. In addition, Mendez 

was handcuffed in the front rather than from behind, he was allowed to take breaks, and was 

offered water.

Next, the court held that Mendez’s post-Miranda statements were sufficiently attenuated from the 

initial traffic stop and search of his car. 

When applying the attenuation doctrine, the court evaluates the connection between an officer’s 

unlawful conduct and the subsequent discovery of evidence. Factors a court will consider to 

determine whether challenged custodial statements are the fruit of an unlawful arrest include:

1. Whether the suspect was provided Miranda warnings,

2. How much time elapsed between the unlawful arrest and the discovery of the evidence,

3. Whether any intervening circumstances were present, and

4. The purpose and flagrancy of the officer’s misconduct. 

In this case the court held that the first factor favored the government, as Mendez was provided 

Miranda warnings, which he waived. The court found that the second factor favored Mendez, as 
17

only a few hours elapsed between the traffic stop and Mendez’s statements to the officers. The 

court held that the third factor favored the government, as Mendez’s lawful arrest for being a felon 

in possession of ammunition was a critical intervening event between the unlawful stop and his 

subsequent statements. Finally, the court held that the unlawful stop was not purposeful and 

flagrant, but instead motivated by legitimate safety concerns. The officers had planned to enter 

Mendez’s house with a SWAT team while Mendez was there. When that plan failed, the officers 

decided it would be safest to wait for Mendez to leave, because they knew that Mendez was armed, 

dangerous, and unstable and the officers stopped him as soon as they could after he left his house. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca5/16-41057/16-

41057-2018-03-23.pdf?ts=1522072815

*****

United States v. Perales, 2018 U.S. App. LEXIS 8112 (5th Cir. TX Mar. 30, 2018)

A police officer saw a pickup truck operating with a non-functioning brake light. A computer 

check of the vehicle’s license plate indicated the truck might not be insured. The officer 

conducted a traffic stop and asked the driver, Perales, for his identification and proof of insurance. 

Perales gave the officer his identification, but he could not readily locate his insurance card. 

Eventually, Perales looked in the glove compartment, which was empty except for the insurance 

documents. The officer noticed the insurance policy had been purchased the day before and that 

it was only valid for thirty days. Based on his experience, the officer knew that it was common 

for drug traffickers to be unfamiliar with the location of insurance documents and for the interior 

of their vehicles to lack signs of personalization. In addition, the officer knew it was common for 

drug traffickers to get a 30-day liability insurance policy so that if the vehicle was seized carrying 

contraband, the trafficking organization would not lose money from having purchased a longer 

policy. 

After receiving Perales’ identification and insurance paperwork, the officer asked Perales to exit 

his truck and accompany him to his patrol car. The officer had Perales sit in the front passenger 

seat of the patrol car while he began his computer checks. During this time, the officer asked 

Perales several questions about his ownership of the truck and his travel plans. At some point, 

the officer became suspicious because Perales gave him inconsistent or deceptive answers to his 

questions. While the officer waited for the computer checks to come back, he asked Perales for 

consent to search his pickup truck. Perales consented. At the time of the request, the officer had 

not yet returned Perales’ driver’s license or issued him a citation. Perales remained seated in the 

unlocked patrol car while the officer and a second officer, who had been riding in the back seat of 

the patrol car during the stop, searched the pickup truck. The officers found almost three 

kilograms of cocaine concealed in the engine compartment of the vehicle.

The government charged Perales with drug-related offenses. 

Perales filed a motion to suppress the cocaine discovered in his truck, claiming that he did not 

voluntarily consent to the search of his vehicle. Specifically, Perales argued that the officer’s 

failure to return his identification documents prior to asking for consent to search constituted 

coercion that rendered his consent involuntary. 

The court disagreed. A police officer’s failure to return identification documents prior to 

requesting consent to search does not automatically render a person’s consent involuntary. 

Instead, an officer’s retention of identification documents is one factor a court considers when 
18

determining whether an officer used coercion to obtain consent. In this case, the officer’s initial 

stop was justified and during the stop the officer was allowed to examine Perales’ driver’s license 

and registration and to conduct computer checks. Approximately ten minutes elapsed between 

the officer’s initial encounter with Perales and when he asked Perales for consent to search his 

pickup truck. Although it was not clear at what point the computer checks were completed, it was 

clear that they were not completed when the officer asked Perales for consent to search. The court 

held there was nothing improper about the officer asking Perales for consent to search before the 

computer checks were completed. In addition, the court added that Perales did not argue the ten 

minutes that elapsed before the officer asked for consent to search was unreasonable. 

The court further held that the officer’s interaction with Perales was cordial and he did not use 

verbal threats or intimidation to obtain Perales’ consent. In addition, the court found that placing 

Perales in the front seat of his patrol car while he ran the computer checks did not constitute 

coercion.

Finally, the court held that the second officer’s presence did not create a coercive environment as 

he did not exit the patrol car during the traffic stop or otherwise interact with Perales before 

searching his vehicle.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca5/17-40005/17-

40005-2018-03-30.pdf?ts=1522431081

*****

Sixth Circuit

United States v. Tagg, 2018 U.S. App. LEXIS 7603 (6th Cir. MI Mar. 27, 2018)

Police officers obtained a warrant to search Tagg’s residence for child pornography. In the 

affidavit in support of the warrant, officers explained how they identified the IP address that 

accessed a child pornography website and they connected the IP address to Tagg’s residence. The 

officers also outlined Tagg’s internet browsing history, which Tagg did not dispute. Specifically, 

the affidavit stated that: (1) Tagg spend around five hours logged into Playpen, a known child 

pornography website (which also contained legal child erotica) under the pseudonym “derpderk.” 

(2) Tagg opened the website’s “index” and browsed them for topics of interest to him. (3) Tagg 

clicked on the “Pre-Teen Videos” entry in the index. (4) After browsing that topic, Tagg viewed 

a collection of pages under the heading “Girls HC”-which, in the pornography world, means 

explicit, penetrative sexual acts. (5) Tagg then accessed a message board “video collection 

clow85.” (6) On other occasions, Tagg accessed pages with sexually suggestive titles involving 

children. The affidavit, did not however, state whether Tagg actually viewed or downloaded any 

illegal files. 

The magistrate judge approved the warrant, which indicated that the officers had established 

probable cause that Tagg violated 18 U.S.C. § 2252(a)(5) (access of a website with the intent to 

view child pornography) and that evidence of the crime would be found at Tagg’s residence. The 

officers searched Tagg’s home and found over 20,000 files of child pornography on his personal 

computers. 

The government charged Tagg with receiving and possessing child pornography.
19

Tagg filed a motion to suppress the evidence seized by the government. Tagg argued that the 

search warrant was defective because the affidavit did not allege that he viewed child 

pornography. In addition, Tagg claimed that the use of a computer to allegedly commit a crime 

did not automatically justify a search of his home. 

The district court held that the warrant to search Tagg’s home was invalid. Specifically, the court 

held that the officers did not establish probable cause to search Tagg’s home for child pornography 

because the affidavit in support of the warrant did not state that Tagg actually clicked on or viewed 

any files containing child pornography. The court further held that the good-faith exception did 

not apply because the officers acted recklessly and because no reasonable officer could have relied 

on the warrant. The government appealed.

The Sixth Circuit Court of Appeals reversed. The court reminded the district court that in District 

of Columbia v. Wesby, the Supreme Court held that “probable cause deals with probabilities and 

depends on the totality of the circumstances,” and that probable cause “requires only a probability 

or substantial chance of criminal activity, not an actual showing of such activity.” The court also 

added that in Wesby, the Supreme Court found that “probable cause does not require officers to 

rule out a suspect’s innocent explanation for suspicious facts.” Finally, the court also reminded 

the district court that it has repeatedly held that “visiting or subscribing to a website containing 

child pornography creates a reasonable inference that the user has stored child pornography on 

their computer.” The court added the fact that a website contains both legal and illegal material, 

while relevant, does not automatically negate probable cause. Against this backdrop, the court 

concluded that the facts articulated in the officers’ affidavit established probable cause to believe 

that Tagg had accessed Playpen with the intent to view child pornography. 

Next, the court also stated that it has previously addressed the Fourth Amendment’s nexus 

requirement as applied in the digital age. Probable cause to believe a person committed a crime 

does not justify a search of his or her residence unless some independent evidence exists that links 

the residence to the crime. However, the court has held that a nexus exists when law enforcement 

connects the IP address used to access a website to the physical location identified by the warrant. 

In this case, the officers explained how they linked the IP address used to access Playpen to the 

residence listed on the warrant. The court concluded that this was enough to establish a nexus 

between child pornography and Tagg’s residence.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca6/17-1777/17-1777-

2018-03-27.pdf?ts=1522168219

*****

Seventh Circuit

United States v. Rodriguez-Escalera, 884 F.3d 661 (7th Cir. IL 2018)

A state trooper patrolling on Interstate 70 saw a vehicle abruptly switch lanes in front of a truck 

without using a turn signal and conducted a traffic stop. As the trooper approached the vehicle, 

he smelled the scent of air fresheners and noticed several air vent clip-in air fresheners, which he 

had been trained to associate with drug traffickers. The driver, Moran, gave the trooper her 

driver’s license and accompanied him to his patrol car. The trooper had Moran sit in his patrol 

car while he went back to ask Rodriguez, the passenger, for his identification. As Rodriguez 

retrieved his information, the trooper asked him where he and Moran were going. Rodriguez told 

the trooper they were traveling to Pennsylvania. 
20

The trooper went back to his patrol car and spoke to Moran, who told him that she and Rodriguez 

were driving from Los Angeles to New York for vacation. The officer knew that Los Angeles 

was a drug-distribution point. Within eleven minutes, the trooper had all of the information he 

needed to issue traffic citations to Moran. 

Having become suspicious of the couple’s travel plans, the trooper decided to have a drugdetection dog sniff Moran’s vehicle. However, the officer could see from his in-vehicle computer 

that his department’s K-9 unit was occupied with another traffic stop. Before he started writing 

the citations, the trooper asked Moran for more details about the couple’s trip. When the trooper 

asked Moran about the conflicting travel stories, Moran told the trooper that she told Rodriguez 

they were going to Pennsylvania. Moran added that she wanted the visit to New York City to be 

a surprise. The trooper eventually heard on the radio that the K-9 unit was available and on the 

way to his location. As soon as the K-9 officer arrived, the trooper handed Moran her citations, 

driver’s license, and other documents. At this point, thirty-three minutes had elapsed since the 

trooper stopped Moran.

Although the drug-dog did not alert to the presence of drugs, the trooper remained suspicious. He 

returned to his patrol car, where Moran was still detained, and resumed questioning her. Moran 

denied that she had anything illegal in her car and eventually consented to a search. 

The trooper and the K-9 officer searched Moran’s car and found over seven pounds of 

methamphetamine and $28,000 cash inside two pieces of luggage. Rodriguez claimed ownership 

of the drugs and Moran claimed ownership of the cash.

The government charged Rodriguez and Moran with possession of methamphetamine with intent 

to distribute. Both filed motions to suppress the drug evidence seized from Moran’s vehicle, 

claiming that the trooper detained them beyond the time necessary to complete the traffic stop.

After considering the trooper’s testimony and the video and audio recordings of the traffic stop, 

the district court refused to credit the trooper’s explanations for his delay. Instead, the court 

determined that the trooper intentionally prolonged the stop to give the K-9-unit time to arrive. 

As a result, the district court held that the trooper unreasonably extended the duration of the stop 

and suppressed the evidence seized from Moran’s vehicle as fruit of an unlawful seizure.

The government appealed, arguing that the trooper established reasonable suspicion that justified 

extending the duration of the stop. 

The Seventh Circuit Court of Appeals disagreed. When the trooper requested the dog sniff, he 

knew that the couple was coming from Los Angeles, that Moran had a few air fresheners in the 

car, that the couple did not have concrete travel arrangements, and that Moran claimed she was 

surprising Rodriguez with a trip to New York. The court found that the presence of air fresheners

in Moran’s car and the fact that she was from the Los Angeles area could apply to a very large 

category of innocent travelers. In addition, the court noted that Moran and Rodriguez did not act 

suspiciously nervous and that Moran explained the initial discrepancy in the couple’s travel 

stories. While the court recognized that an officer does not need to rule out a suspect’s explanation 

for conduct that appears to be suspicious at first, a court may consider how facts later obtained 

confirm or dispel that initial suspicion. Finally, the court added that no criminal history, tips, or 

surveillance supported the trooper’s suspicions. Based on these facts, the court concluded that the 

trooper did not establish reasonable suspicion of criminal activity during the stop. Consequently, 

the court held that it was unreasonable to detain Moran and Rodriguez beyond the time needed to 
21

complete the original purpose of the traffic stop because the only on-duty K-9 was busy with 

another stop.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca7/17-2334/17-2334-

2018-03-07.pdf?ts=1520449228

*****

United States v. Leonard, 884 F.3d 730 (7th Cir. IL 2018)

A confidential source told police officers that Courtney Watson was selling illegal drugs from the 

home she shared with her husband, Stephen Leonard. Based on the tip, officers on two occasions,

one week apart searched sealed trash bags left in a public alley outside the home. Both times the 

trash bags contained indicia of residency and tested positive for cannabis. Two days after the 

second positive test, officers obtained a warrant to search Watson’s home.

Police executed the warrant the next day, but the supervising officer who had a copy of the warrant 

had to leave the scene before Watson arrived home to meet with the officers. When Watson 

arrived home and asked to see the warrant, one of the remaining officers went back to the police 

station to get another copy. However, the copy of the warrant shown to Watson was not the 

correct one. Nonetheless, the officers searched Watson’s home and, in addition to drugs, found a 

handgun. Leonard admitted he owned the gun. 

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

filed a motion to suppress the gun. First, Leonard argued that the search was invalid because the 

officers did not present the proper warrant to Watson before the search.

The court disagreed. The Seventh Circuit has held that nothing in the Fourth Amendment requires 

the search warrant be shown to the person whose premises is being searched. The court reasoned 

that if warrant presentation is not required at all, it follows that, as long as a valid warrant exists, 

inadvertent presentation of the wrong warrant will not invalidate the search. 

Second, Leonard argued that the search warrant was not supported by probable cause.

Again, the court disagreed. As an initial matter, the court found that Watson and Leonard had no 

reasonable expectation of privacy in the trash placed in the public alley for collection. Next, the 

court concluded that two trash pulls taken a week apart, both testing positive for cannabis, and 

containing indicia of residency, were sufficient by themselves to establish probable cause for a 

search warrant. Because of this finding, the court did not determine if the information from the 

confidential source was credible or if Watson’s criminal history was relevant to establish probable 

cause. 

Finally, Leonard filed a motion to compel the government to disclose the identity of the 

confidential source. 

The court held that the government was not required to disclose the identity of the confidential 

informant because the informant’s identity was not essential to the “fair determination” of 

Leonard’s case.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca7/17-1924/17-1924-

2018-03-08.pdf?ts=1520544629

*****
22

Eighth Circuit

United States v. Hampton, 2018 U.S. App. LEXIS 7092 (7th Cir. IL Mar. 21, 2018)

Officers arrested Hampton for a variety of crimes and transported him to the police station. As 

the officers were about to interview him, Hampton objected to the interview being videotaped and 

said, “I haven’t even gotten a chance to get a lawyer or anything.” One of the officers turned off 

the video recorder and then explained to Hampton why they wanted to record the Miranda process 

and the interview. In addition, the officers discussed between themselves whether Hampton had 

invoked his right to counsel. After the officers decided that he had not, they advised Hampton of 

his Miranda rights. Hampton waived his rights, agreed to have the interview recorded, and 

confessed to several crimes. 

Before trial, Hampton filed a motion to suppress his confession. Hampton claimed that the district 

court should have suppressed his confession because he invoked his right to counsel when he said, 

“I haven’t even gotten a chance to get a lawyer or anything.”

During a custodial interrogation, if a suspect invokes his right to counsel, the officers must stop 

the interrogation. To invoke the right to counsel, the suspect must make a clear and unambiguous 

statement. Specifically, a suspect must articulate his desire to have counsel present sufficiently 

clearly so that a reasonable officer would understand the statement to be a request for an attorney. 

In this case, the court held that Hampton’s statement did not clearly show a present desire to 

consult with counsel. The Seventh Circuit has found such intent only when the suspect uses 

specific language, which constitutes more than an observation. The court found that Hampton’s 

statement was not specific or action-oriented, but instead only an observation that he had not 

gotten a lawyer. The court added that a suspect’s potential desire to consult with legal counsel is 

not invocation of the right to counsel. 

The court also noted that after Hampton’s ambiguous statement about not having talked to a 

lawyer, the officers did not immediately resume questioning, but instead they took extra 

precautions. The officers explained to Hampton his rights and tried to clarify his intent, which 

the Supreme Court has identified as “good police practice.”

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca7/16-4094/16-4094-

2018-03-21.pdf?ts=1521666027

*****

Ninth Circuit

Thompson v. Copeland, 2018 U.S. App. LEXIS 6191 (9th Cir. WA Mar. 13, 2018)

In December 2011, Deputy Copeland stopped Lawrence Thompson for committing several traffic 

violations. During the stop, Copeland learned that Thompson had a suspended license, that 

Thompson was a convicted felon, and that Thompson’s most recent felony conviction was for 

possessing a firearm. Copeland decided to arrest Thompson for driving with a suspended license 

and to impound Thompson’s car. 

Copeland had Thompson exit his car and frisked him for weapons. Finding none, Copeland called 

for back-up and had Thompson sit on the bumper of Copeland’s patrol car, approximately 10-15 
23

feet away. While conducting an inventory search of Thompson’s car, Copeland saw a loaded 

revolver sitting in an open garbage bag on the rear passenger-side floorboard. After seeing the 

gun, Copeland signaled to the back-up officer who watching over Thompson and then drew his 

gun. Thompson claimed that Copeland pointed his gun at Thompson’s head, demanded 

Thompson surrender, and threatened to kill him if he did not. Copeland directed Thompson to get 

on the ground, facedown, so that he could be handcuffed. Thompson complied and was 

handcuffed without incident. Copeland arrested Thompson for being a felon in possession of a 

firearm. 

Thompson sued Deputy Copeland and the county under 42 U.S.C. § 1983 claiming that Copeland 

violated his Fourth Amendment rights. Specifically, Thompson alleged that Copeland used 

excessive force in pointing his gun at Thompson’s head and threatening to kill him. Deputy 

Copeland countered by arguing that he was entitled to summary judgment based on qualified 

immunity.

First, accepting Thompson’s version of the incident as it was required to do, the court concluded 

that Deputy Copeland’s use of force in arresting Thompson was not objectively reasonable. The 

court found that Thompson complied with all of the officer’s directions during the stop. The court 

also found that Thompson would have had to travel 10-15 feet, past the back-up officer, to access 

the gun in his car. Finally, the court noted that Thompson was not armed, as Copeland had already 

frisked him for weapons and found none. While appreciating the concern for officer safety, the 

court held that where an officer has an unarmed felony suspect under control, where the officer 

easily could have handcuffed the suspect, and where the suspect is not in close proximity to an 

accessible weapon, pointing a gun at the suspect’s head constituted excessive force.

Even though the court determined that Deputy Copeland used excessive force, the court held that 

he was still entitled to qualified immunity. The court found that Thompson’s right not to have a 

gun pointed at him under the circumstances here was not clearly established at the time of the

incident. Specifically, the fact that: (1) Copeland was conducting a felony arrest at night, (2) 

Thompson was not handcuffed, (3) Thompson stood six feet tall and weighed two hundred and 

sixty-five pounds, which was taller and heavier than Copeland, and (4) Thompson had a prior 

felony conviction for unlawfully possessing a firearm, distinguished this case from prior Ninth 

Circuit decisions. Consequently, the court concluded that a reasonable officer in Deputy 

Copeland’s position would not have known that he was violating the constitution by pointing a 

gun at Thompson. The court concluded by stating that “going forward, however, the law is clearly 

established in this scenario.”

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca9/16-35301/16-

35301-2018-03-13.pdf?ts=1520960514

*****

Eleventh Circuit

United States v. Vergara, 2018 U.S. App. LEXIS 6413 (11th Cir. FL March 15, 2018)

Vergara, a United States citizen, arrived in Tampa, Florida on a cruise ship from a vacation in 

Cozumel, Mexico. Before his return, U.S. Customs and Border Protection (CBP) had identified 

Vergara based on his prior conviction for possession of child pornography, placing him on a list 

of the day’s “lookouts.” Individuals on the list are subjected to secondary screening at the border, 

which involves additional questioning and screening. 
24

When Vergara arrived, a CBP officer escorted him to the secondary inspection area. In Vergara’s 

luggage the officer found two cell phones, a Samsung phone and an iPhone. Vergara had a third 

cell phone, an LG phone on his person. When the officer found the Samsung phone, he asked 

Vergara to turn the phone on and then looked through the phone for about five minutes. After the 

officer found two child pornography videos, he contacted a special agent from the Department of 

Homeland Security. 

After viewing the video and interviewing Vergara, the agent decided to have all three phones 

forensically examined. The forensic examination of the Samsung and LG phones conducted that 

day revealed more than 100 images and videos of child pornography. 

The government charged Vergara with child-pornography related offenses.

Vergara filed a motion to suppress the evidence discovered on his cell phones. Vergara argued 

that Riley v. California, decided by the Supreme Court in 2014, required the agent to obtain a 

warrant before conducting forensic searches of his cell phones. 

In Riley, the Supreme Court held the search incident to arrest exception did not apply to an 

arrestee’s cell phone. However, the Court explained that other case-specific exceptions might still 

justify a warrantless search of a cell phone. 

Searches at the border, from before the adoption of the Fourth Amendment, have been considered 

reasonable solely because the person or item in question had entered into the United States from 

outside. In addition, “the Supreme Court has consistently held that border searches never require 

probable cause or a warrant. Courts only require officers establish reasonable suspicion of 

criminal activity at the border for “highly intrusive searches of a person’s body such as a strip 

search or an x-ray examination.” In this case, the court held that the warrantless forensic searches 

of Vergara’s phones required neither a warrant nor probable cause and the Riley decision did not 

change this rule.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca11/16-15059/16-

15059-2018-03-15.pdf?ts=1521138712

*****

United States v. Johnson, 2018 U.S. App. LEXIS 7159 (11th Cir. FL March 22, 2018)

At approximately 4:00 a.m., police received a 911 call about a possible burglary in progress at a 

multi-family duplex located in a high-crime area. The caller reported that a person was breaking 

into a neighbor’s house through a back window. The caller described the person as a black male 

wearing a white shirt. 

Within five minutes of receiving the call, officers arrived and saw Johnson coming from the back 

of the duplex. Johnson, a black male, was wearing a white shirt and the officers did not see anyone 

else in the area. The officers drew their firearms and handcuffed Johnson. One of the officers 

told Johnson that he was being detained and then frisked him. The officer felt a piece of material 

that felt like nylon as well as a hard, oval-shaped object that the officer immediately recognized 

to be ammunition. The officer reached into Johnson’s front pocket and removed a black nylon 

pistol holster and one round of .380 caliber ammunition. Within 15 to 20 minutes after seizing 

the ammunition from Johnson’s pocket, officers found two pistols on the ground near the area 

where the officers first saw Johnson. After the officers discovered the firearms had been reported 
25

stolen, they transported Johnson to the police station. Johnson told the officers that he and his 

brother had purchased the firearms “off the street.”

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

Johnson filed a motion to suppress the evidence seized from his pocket. The district court denied 

the motion and Johnson appealed.

Although Johnson conceded that the officers had reasonable suspicion to conduct a Terry stop, 

Johnson argued that the officers were not justified in conducting a Terry frisk. 

The court disagreed. Once an officer has stopped an individual, he may conduct a frisk for 

weapons if the officer “reasonably believes that his safety, or the safety of others, is threatened.” 

The court added that in determining whether a frisk is justified, Terry does not require “definitive 

evidence of a weapon or absolute certainty that an individual is armed.” 

In this case, the officers received a report of a suspected burglary around 4:00 a.m. in a high-crime 

area by a black male wearing a white shirt. In addition, Johnson fit the description of the suspect 

and was the only person in the area. Based on these facts, the court concluded that the officers 

were justified in conducting a Terry frisk after detaining Johnson.

Next, Johnson argued that the officer exceeded the scope of a Terry frisk by reaching into his 

pocket and removing the holster and ammunition.

The purpose of a Terry frisk is not to discover evidence of a crime but to ensure officer safety 

during an investigation. The Seventh Circuit has repeatedly affirmed that a Terry frisk may 

continue when an officer feels a concealed object that he reasonably believes may be a weapon. 

The court emphasized that the pat down and feeling of an object in a suspect’s pocket is limited 

to determining if the object is a weapon. However, the court also recognized that during a lawful 

frisk for weapons, an officer may seize an object deemed to be contraband if the incriminating 

nature of the object is immediately apparent to the officer. 

In this case, the government conceded that the round of ammunition, by itself, did not constitute 

a weapon. The government also conceded that when the officer felt the round of ammunition in 

Johnson’s pocket, he did not believe it was contraband, as the officer did not know Johnson was 

a felon at the time.

Based on these facts, the court held that a single round of ammunition, without facts supporting 

the presence, or reasonable expectation of the presence, of a firearm, was not sufficient to justify 

the seizure of the bullet and the holster from Johnson’s pocket. As a result, the court concluded 

the ammunition and holster should have been suppressed by the district court. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca11/16-15690/16-

15690-2018-03-22.pdf?ts=1521736240

*****