Case Law Update


SCENARIO: Border Patrol agents stopped an individual in his vehicle they believe was helping individuals enter into the United States illegally. While questioning him they asked for permission to search two phones they observed in the vehicle. Saying the vehicle and phones were not his he gave CBP permission to ‘search’ his phones.

While looking at the phone it rang and the CBP agent answered it and obtained additional evidence that the person they had stopped was engaged in assisting illegal entry into the United States. He was arrested.

Was answering the phone the agent had permission to search legal?

ANSWERS: United States v. Lopez-Cruz 9/12/13, XIPHOS September 23, 2013 (Utah Attorney General Newsletter) No. The court ruled that “As a general matter, consent to search a cell phone is insufficient to allow an agent to answer that phone; rather specific consent to answer is necessary.”



SCENARIO: Toledo PD put together a saturation enforcement at a shopping center known for high crime to include robbery, theft, drug activity and loitering. After surveillance for most of the day numerous people were targeted as loiters because they neither shopped, had shopping bags, and/or entered the stores. They did, however converse with a person riding a bicycle that came and went frequently during the day.

With officers to block all exits, a helicopter, sergeant and lieutenant supervising they initiated what they called the ‘bum rush’ which is their saturation tactic of coming in fast to the location, covering all exits, to contain where all their targets were.

Officers Toth and Niles, when approaching the shopping center observed who appeared to be the person who was in and out of the center on his bicycle all day. This was the person officers were most interested in. While pedaling the bicycle normally away from the center towards Franklin Street Niles rolled down his window as they came abreast of him and asked if he could speak with him (Jeter).

Jeter did not respond and started wandering away on his bike. Officers Toth and Niles moved their vehicle to effectively block Jeter’s pathway onto Franklin Street. Once blocked from exiting Jeter stopped at that point. Toth and Niles exited their vehicle to speak with Jeter. Jeter looked at both officers and started running away.

While running officers noticed Jeter clutching the right front pocket of his shorts. Upon catching Jeter they found a .22 caliber handgun in his right front pocket. Jeter was charged with felon in possession of a handgun. Was Jeter seized when police blocked his path with their patrol car?

Did police ‘provoke’ f light to use as a factor to justify a reasonable

suspicion stop?

Once officers caught up and detained Jeter was this a lawful detention/seizure?

ANSWERS: United States v. Jeter, Brian S. Batterton, Attorney PATC Legal & Liability risk Management Institute October 2013

No. There are two types of seizure recognized by the United States Supreme Court. “The first type exists when an officer uses physical force to restrain a suspect. The second type of seizure occurs when a person submits to a show of authority from an officer.” Terry v. Ohio 1968, California v. Hodari D. 1991.

A ‘show of authority’ could be an officer saying ‘stop’ or ‘hold up’ and that person does stop, or hold up.

The momentary pause can hardly be considered a submission to authority. In this case Jeter did not, in any way, converse by word or gesture any compliance with officers at all. Discarding his bicycle and running away from officers, Jeter, in effect, manifested his intent to ignore the officers.

Where there is no seizure, there can be no Fourth Amendment violation. California v. Hodari D. and Galas v. McKee 1986.

Yes. Jeter argued police ‘provoked’ his flight. The court said there was a ‘lack of clarity’ as to what facts may constitute a provoked flight which would render all evidence, after seizing the suspect, tainted. They mentioned fraud and/or fear of imminent

harm from police. None was found in this case. The court said:

There was no evidence that the police used fraud to provoke Jeter. He did not run because he feared imminent harm.

The court noted that Jeter was the only person in the whole group of individual to f lee when the police rushed the group

Only one car with two officers approached Jeter.

Officers approached with their windows down and asked to speak with him

Jeter admitted he ran because he had a gun. This negated his argument he ran because he was ‘provoked’ by police

Citing U.S. v. Wardlow 2000, the court said that flight is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. Here Jeter f led in response to the presence of law enforcement AND grabbed the front right pocket of his shorts as he fled giving officers a belief that he possibly had contraband. That plus a ‘high crime area’ provides the inference of suspicious behavior that justifies a Terry stop under Wardlow.

Here, again, this case was won by prosecutors because of the ‘detail’ put into the police reports. Without that articulation this case may have had a different outcome.



SCENARIO: 911 received a call on a man assaulting a woman on a street corner. The complainant reported he saw a ‘man beating up his girlfriend or his wife’ and adding that the man was ‘giving it to her pretty good.’ A description was then given of both the man and woman involved.

The call was dispatched as a possible domestic violence. Officer Cunningham and Sergeant Zaino arrived to find a man and woman matching the description given by dispatch. Both parties were separated. Both parties told police nothing had happened.

Mouscardy refused to give his name or any type of identification to either officer. Mouscardy had grown visibly ‘agitated and fidgety’ and began ‘eye-balling’ the area. Keeping his right hand in his jacket pocket Mouscardy began to circle away from the wall

until he was almost standing in the street. Zaino asked Cunningham if Mouscardy had been patted down. The answer was no after which Zaino told Mouscardy that he was going to search him for weapons and to take his right hand out of his pocket.

Officer Selfridge had arrived on the scene by this time and initiated the pat-down. As Selfridge reached the right pocket Mouscardy slapped his hand away. Selfridge managed to grab the pocket where it ripped slightly as Mouscardy turned away and started to flee. The contents of the pocket were still not known.

Selfridge running ten feet behind watched Mouscardy try and take something from his pocket. During the pursuit a gun was extracted from this pocket and shifted to his left hand. Mouscardy was taken into custody trying to climb a chain link fence and prosecuted federally.

Was a Terry Frisk justified at the time it was initiated?

ANSWERS: United States v. Mouscardy July 2013. Brian S. Batterton, Attorney PATC Legal & Liability Risk Management Institute September 2013

Yes. The court has to apply the two-step analysis to a Terry Stop & Frisk.

The first is whether there was enough information to justify a Terry Stop at its inception. The court had no problem with this. Upon arriving at the scene they found the two individuals who matched the description of the assault/domestic.

The court then had to decide if the officer’s actions were reasonably related to the facts that justified the stop. Mouscardy argued that once both parties said nothing had happened the detention exceeded the scope.

Again the court had no problem. The court cited police diligently pursued a means of investigation likely to confirm or dispel their suspicion. Mouscardy refused to identify himself during the investigation at least six times. This denial prevented officers from completing their investigation more quickly.

‘It is undeniably both appropriate and important for an officer to take steps to identify the parties involved in a domestic dispute.’ Hiibel v. Sixth Judicial Dist. Court of Nev. (2004)

Officers needed identification in order to determine whether arrest warrants or restraining orders exist. (Citing Hiibel again)

‘…police conducting a Terry stop are entitled to take reasonable measures to protect their own safety and taking such measures does not transform a Terry stop into an arrest.’ United States v. Pontoo 2011. The court in this case noted that the dispatch involved a violent crime, particularly that a man was beating a woman. The court said it was ‘highly relevant’ that this incident involved the report of a crime of violence. Mouscardy refused to identify himself, thereby attempting to conceal his identity. Lastly the court referred to Mouscardy became nervous and agitated and began “eye-balling” the area as the officer’s spoke with him.

Finally the court said: ‘We conclude that, in light of the totality of the circumstances, Officer Selfridge had a reasonable suspicion that Mouscardy might be armed and dangerous, thus justifying his initiation of the frisk.’



SCENARIO: An officer was dispatched to meet an off duty officer who had been following an erratic driver whom the off duty officer felt may be DUI. The officer was told the driver had just pulled into a garage at a home. The on duty officer pulled up and parked across the driveway of Corey’s garage. The office saw Corey halfway between her car and her interior door entrance to her home, which was on the driver’s side of her car.

Walking up the driveway the officer identified him, asked if he could talk to her, and began having a conversation with her about how she had been driving erratically. At the top of the driveway the officer said Corey had her hand on the doorknob, foot on the step, and was getting ready to shut the garage door.

After entering the garage the officer found Corey did not smell of alcohol, had a prescription bag in her hand from a pharmacy, had driven her car to the end of her garage rupturing a container of liquid and damaging the wall. The officer asked if there was anyone else in the house. Corey replied her children and she had to urinate. The officer told Corey to stand right there so we can… (Tape was unintelligible).

Back up arrived and the officer re-contacted the off duty officer and spoke with him about two minutes getting further details. Corey was not allowed to go inside her home.

After re-entering the open garage Corey was questioned if she had anything to drink. She said she had a glass of wine, was under stress because her husband was incarcerated, refused an ‘alco-sensor test’ and just wanted to go inside her house where

her kids were and go to sleep.

Next the officer had a two minute conversation with his supervisor after which he decided to continue his DUI investigation in the garage. After three FST Corey was arrested for DUI drugs.

Was this garage a constitutionally protected area under the Fourth Amendment?

Were their exigent circumstances for a warrantless entry into this garage?

Did Corey consent to the officer’s entry into her garage?

ANSWERS: Corey v. State Georgia Court of Appeals March 2013. Brian S. Batterton, Attorney PATC Legal & Liability risk Management Institute August 2013

Yes. This garage as well as any curtilage are protected and cannot be entered without a warrant, exigent circumstances, or proper consent. Oliver v. United States 1984, United States v. Dunn 1987.

Curtilage can be defined as the yards and grounds of a particular address, its gardens, barns, and buildings.

No. “In order for exigent circumstances to validly provide an exception to the Fourth Amendment, in the context of a criminal investigation, there must also be probable cause of a crime or that evidence of a crime is located in the place sought to enter. In this case, the ‘exigent circumstance’ may be the dissipation of alcohol if the office took the time to obtain a warrant. However, the court noted that, here, the officer did not have ‘probable cause’ to believe that Corey was DUI at the time he approached her and entered her garage. At best, the officer possessed ‘reasonable suspicion’ that Corey may have been DUI, but there was not sufficient evidence to amount to probable cause of DUI.”

The court further stated that even if probably cause existed for reckless driving, the exigency associated with reckless driving ended when Corey got home and ceased driving.

No. The state had the burden of proving the consent was voluntary and not the product of coercion. Corey never expressly consented to entry into her garage. Corey was about to close the garage door had her hand on the doorknob and her foot on the step. Even though Corey did not tell the officer to leave the officer himself testified she expressed concern about her children inside her home and that she needed to urinate. The officer did not allow her to go inside for either reason.

Lastly the court said that even if Corey engaged in a consensual conversation with the officer the unlawful initial entry and any resulting evidence would be suppressed as ‘fruit of the poisonous tree.’ “Therefore, the judgment of trial court denying the motion to suppress was reversed.



SCENARIO: While on patrol Deputy Dennis Guthard spotted Steve Bargen’s van on a gravel drive leading down a hill to an open shed. Guthard had previously seen Bargen running power into one of the storage units and had refused Guthard permission

to check serial numbers on his power equipment.

On approaching the van the deputy spotted a Trailblazer beyond it (belonging to Skoda). Bargen got out of the van acting like he had just been sleeping. The deputy saw items associated with meth production near both cars and called for back up.

The property the vehicles were on belonged to the Skoda family. Bargen had told deputies Skoda had walked off after calling him to the scene to help with car trouble. Skoda’s father was called who gave deputies permission to search.

Guthard saw what looked like items associated with meth production near the cars and what appeared to be a pseudoephedrine pill and empty pseudoephedrine boxes in the Trailblazer (belonging to Skoda), officers searched both vehicles. Items associated with meth production were found in both vehicles.

  1. Skoda appealed the property search as it belonged to his father and was in a remote area. Does Skoda have standing to object to the search?
  2. Skoda next appealed the search of both vehicles saying a search warrant was needed. Was there probable cause to search both these vehicles without a warrant?

ANSWERS: United States v. Skoda, Eighth Circuit Court of Appeals February 13, 2013. Legal & Liability Risk Management Institute August 2013 ‘Does a Person have a Reasonable Expectation of Privacy on Family Property.’ Brian S. Batterton, Attorney

No, Skoda did not live on the property and as such had no standing to object. The court ruled: “The fact [the property] belonged to his father is irrelevant; defendants have no expectation of privacy in a parent’s home when they do not live there.”

Yes. No warrant was needed to search either of these vehicles. “The court further noted that probable cause exists when there is a ‘fair probability’ that evidence of a crime is in the place to be searched.”

The court ruled: “It was late at night in a remote area and the suspiciousness of Bargen’s presence was compounded by his story about Skoda calling for help and then walking away. Implements of meth production lay near the cars, including a lithium battery shell casing, pliers, lithium strips, tinfoil, and a gas can with a plastic tube coming out of it. Police saw a red tablet that looked like pseudoephedrine in the car, along with a bag containing pseudoephedrine boxes on the f loorboard. Further, the other implements of meth production found in Bargen’s van increased the probability that contraband or evidence of a crime was in Skoda’s Trailblazer.”



SCENARIO: One Lieutenant Tony Viator lawfully stopped Cotton and his passenger. Viator had information from another officer Cotton may be carrying drugs. After speaking with both Cotton and his passenger (which took 11 minutes) the following

conversation between Viator and Cotton took place.

Viator: Can I search this vehicle?

Cotton: [Unintelligible]

Viator: Hold on. Come here. Come here. Come here. Is it okay if I search it?

Cotton: Search my luggage. [Unintelligible]

Viator: Okay. Is it okay if I search everything in the car?

Cotton: My luggage, yeah.

With backup watching Cotton and Thornton Viator began a meticulous search of the entire vehicle. Forty minutes later Viator observed loose screws and tool markings on the driver’s side rear door panel. Prying back the panel a plastic wrapped bundle

of crack cocaine was found.

Was this a lawful consent to search?

Did this search exceed the scope given by Cotton?

ANSWERS: United States v. Cotton, Fifth Circuit Court of Appeals July 2, 2013. Legal & Liability Risk Management Institute August 2013 ‘Scope of Consent to Search a Car may be Limited.’ Brian S. Batterton, Attorney

Yes, this was a lawful consent.

Yes, this search exceeded the scope of consent given by Cotton.

The court said: “When conducting a warrantless search of a vehicle based on consent, officers have no more authority to search than it appears was given by the consent.”

Continuing: “Authority to enter and search the car for Cotton’s luggage was not authority to search discrete locations within the car where luggage could not reasonably be expected to be found.”

Continuing: “…Cotton’s consent was not ambiguous. In fact the officer twice clarified the consent and each time Cotton referred to his ‘luggage.’”

“Additionally, while Cotton did not object when the officer began to exceed the scope of the consent, he was not required to do so because he had already clearly stated the scope of his consent.”