The United States Court of Appeals for the Tenth Circuit recently issued an opinion in Montgomery v. Cruz, a case that highlights the limits on searches conducted during an investigative detention. This case arose after a police officer searched a suspect’s pockets and wallet, triggering two overarching legal issues for the court to consider. For the search of the pockets, the court considered whether the officer could justify the search based on probable cause to make an arrest. As to the wallet, the Tenth Circuit considered what happens when a suspect provides consent after an illegal search occurs.
Summary of the Facts
During a shopping trip at Walmart, William Montgomery was leaving the store when he was stopped by an employee who requested to see his receipt. Montgomery refused, and a nearby police officer, Armando Cruz, approached Montgomery and repeated the request. After Montgomery declined again, Officer Cruz suspected him of shoplifting and stated that he was going to get his name and information. Montgomery put his bags on the floor and was directed to raise his hands. He was then handcuffed by Officer Cruz. Before conducting a pat-down of his jacket, Officer Cruz noticed a bulge and asked what it was. Montgomery stated that he did not know, prompting Officer Cruz to reach directly into his pants pocket. The officer removed Montgomery’s wallet and a prescription bottle. Officer Cruz opened and searched the wallet and pulled out Montgomery’s driver’s license. Montgomery responded: “Yeah, like I said, I tried to give [the ID] to you.” After the search, Montgomery was detained in a police vehicle while Walmart employees investigated the situation. The investigation revealed that Montgomery had paid for the items, and he was released.
Montgomery filed a civil rights action in federal district court under 42 U.S.C. § 1983 against Officer Cruz, claiming that the search of his pockets and wallet violated the Fourth Amendment. Montgomery claimed that the searches of his pockets and wallet during the investigative stop were not supported by probable cause to arrest and were not justified by any valid exception to the warrant requirement. Officer Cruz asserted qualified immunity and moved for summary judgment on the basis that, even if his conduct were deemed unconstitutional, the law was not clearly established at the time of the incident such that a reasonable officer would have known that reaching into a pocket and searching a wallet in the context of an investigative detention was unlawful. The district court ultimately agreed and granted summary judgment to Officer Cruz. Montgomery appealed, seeking review by the United States Court of Appeals for the Tenth Circuit.
United States Court of Appeals for the Tenth Circuit
On appeal, the Tenth Circuit examined whether the officers’ conduct violated the Fourth Amendment and, if so, whether that violation was clearly established at the time such that qualified immunity should be denied.
First, the Tenth Circuit examined whether Officer Cruz could reach into Montgomery’s pockets without patting them down under the Fourth Amendment. The court cited the Supreme Court’s holding in Terry v. Ohio, which governs investigative stops and protective frisks. Under Terry, officers who make an investigative stop may conduct a limited pat-down of the outer clothing to search for weapons if they have reasonable suspicion that the person is armed and dangerous. Applying Terry, the court found that Officer Cruz could make an investigatory stop if there was reasonable suspicion that Montgomery shoplifted. Additionally, he could pat down Montgomery to see whether he had a weapon for his own safety. The court also concluded that if Officer Cruz felt an object that he reasonably believed was a weapon, he could then reach into Montgomery’s pocket to retrieve it. The court recognized a factual dispute regarding whether Officer Cruz ever conducted a pat-down. The court cited two cases from the Eighth and Ninth Circuits as guiding precedent. Both cases held that the Fourth Amendment prohibits officers from searching an unnatural bulge without first conducting a pat-down.
In applying this principle to this case, the Tenth Circuit concluded that if Officer Cruz reached into Montgomery’s pocket without an initial pat-down, the search would violate the Fourth Amendment. In response, Officer Cruz maintained that he had probable cause to arrest Montgomery and was therefore justified in conducting a search incident to arrest. The Tenth Circuit rejected this argument, citing United States v. Ward, where this court held that although an officer had probable cause to believe the defendant committed a federal offense, the search of his pockets and ensuing seizure of the contents violated the Fourth Amendment. The court also considered United States v. Anchondo, which held that a warrantless search before an arrest is in fact a search incident to arrest if there is an arrest following the search. The court concluded that Officer Cruz never placed Montgomery under arrest before the search, and instead, briefly detained Montgomery and placed him in the police vehicle. After the employees verified that he paid, Officer Cruz did not arrest Montgomery. Therefore, the court found that Officer Cruz’s search of Montgomery could not be a search incident to an arrest, as Montgomery was never arrested.
The court then turned to the question of whether this constitutional violation was clearly established at the time. Officer Cruz first argued that probable cause to arrest was at least “arguable.” The court found this immaterial because the constitutional problem was not the absence of probable cause in the abstract, but that the search was neither a proper Terry frisk nor a valid search incident to arrest. The court emphasized that the legality of this search did not “turn on probable cause” but on whether it fit within the narrow categories of a pat-down for weapons or a search incident to arrest.
Cruz’s second argument was that case law did not clearly prohibit a search where the suspect could have been arrested. The court rejected this as incompatible with controlling precedent. Drawing on the Supreme Court cases Sibron v. New York and United States v. Santillanes, the court emphasized that an officer must conduct a pat-down before reaching into a suspect’s pockets during a stop. The court then relied on its previous rulings and emphasized that a broader search of the person is permitted only as a search incident to arrest and that such authority is conditioned on an actual or near-simultaneous arrest, not a hypothetical one. Officer Cruz conceded that Montgomery was never arrested; therefore, the court concluded that he could not retroactively justify the pocket search as incident to arrest. Since Cruz could not reach into Montgomery’s pocket, he accordingly could not search Montgomery’s wallet.
Therefore, the Tenth Circuit ultimately held that the officers violated Montgomery’s Fourth Amendment rights by reaching into his pockets and searching his wallet during an investigative stop that had not escalated into a custodial arrest. The court further held that this constitutional violation was clearly established at the time of the incident. Since the law clearly prohibited such an intrusive search in the context of a Terry stop absent probable cause, consent, or another recognized exception, the officers were not entitled to qualified immunity. The Tenth Circuit therefore reversed the district court’s grant of summary judgment on the qualified immunity issue and remanded for further proceedings consistent with its opinion.
Key Takeaways
Montgomery emphasizes that officers can only perform a limited pat-down during an investigative stop before they reach into a bulging pocket. It is crucial to remember that having probable cause to arrest is not enough to justify a pocket or wallet search if no arrest occurs. Officers may not rely on what they could have done and instead are judged on what they did do, including whether an arrest was made. Lastly, as illustrated in this case, consent must come before or during the search, and a later statement of willingness to provide identification cannot retroactively legalize an unlawful wallet search.