Search-Incident-to-Arrest in the Tenth Circuit Requires an Actual Arrest; Post-Search “Consent” Does Not Cure an Illegal Wallet Search

1. Introduction

In Montgomery v. Cruz (10th Cir. Jan. 6, 2026), the Tenth Circuit addressed two recurring Fourth Amendment questions arising from a retail-theft investigation at Walmart: (1) whether an officer may justify a pocket search based on probable cause to arrest when the suspect is never actually arrested, and (2) whether a suspect’s statement after an unlawful search—suggesting he “would have provided” identification—can retroactively supply consent to validate a prior wallet search.

Plaintiff-Appellee William Montgomery brought a § 1983 claim alleging that Defendant-Appellant Officer Armando Cruz violated the Fourth Amendment by reaching into Montgomery’s pockets and searching his wallet during an investigative detention. The district court denied qualified immunity at summary judgment, and Officer Cruz took an interlocutory appeal.

2. Summary of the Opinion

The Tenth Circuit affirmed the denial of qualified immunity. Accepting the district court’s summary-judgment view of disputed facts, a reasonable jury could find:

• Pocket search: Officer Cruz reached into Montgomery’s pockets without first patting them down, which—absent other justifications—violates the Fourth Amendment under established stop-and-frisk principles.
• No “search incident to arrest”: Even if probable cause to arrest existed, Officer Cruz conceded no arrest occurred; under Tenth Circuit precedent, that concession foreclosed reliance on the search-incident-to-arrest doctrine.
• Wallet search: The wallet search was unlawful because it flowed from the unlawful pocket entry, and in any event Montgomery’s after-the-fact remark could not “transform the prior illegal search into a legal one.”

3. Analysis

A. Precedents Cited

1) Governing standards on appeal and qualified immunity framing

• Cummings v. Dean: restates the qualified-immunity framework—no liability unless plaintiff shows a constitutional violation of a clearly established right.
• Avant v. Doke: de novo review of summary judgment.
• Thomas v. Kaven (quoting Archuleta v. Wagner): plaintiff bears a “heavy two-part burden” to show both violation and clearly established law.
• Lewis v. Tripp (and Scott v. Harris): on interlocutory qualified-immunity appeal, the court generally accepts the district court’s factual view unless “blatantly contradicted” by the record.
• Cox v. Glanz and Santucci v. Commandant: “clearly established” is treated as a legal question, and the court focuses on arguments actually presented on appeal.

2) Terry-stop frisk limits: pat-down first, then intrusion only if justified

• Terry v. Ohio: permits a limited pat-down for weapons during an investigative stop when justified by safety concerns.
• Minnesota v. Dickerson: authorizes reaching into pockets only after a lawful pat-down reveals something reasonably believed to be a weapon (or, in limited circumstances, contraband under “plain feel”).
• Sibron v. New York and United States v. Santillanes: reinforce that reaching directly into pockets without the prerequisite justification (typically established by a pat-down) exceeds Terry’s scope.
• United States v. Garcia: recognizes pat-downs as a protective measure during investigative stops.
• Pennsylvania v. Mimms: invoked to illustrate that even when an officer suspects a weapon, the ordinary constitutional step is a frisk/pat-down—not an immediate pocket entry.
• Persuasive out-of-circuit support: United States v. Aquino (8th Cir.) and United States v. Brown (9th Cir.)—both criticized officers’ skipping the pat-down step before reaching into areas associated with a “bulge.”

3) Search incident to arrest: doctrinal foundation and the Tenth Circuit’s “actual arrest” condition

• United States v. Robinson: foundational statement that the “fact of the lawful arrest” provides authority to search incident to arrest.
• Knowles v. Iowa: explains rationales for search incident to arrest (officer safety, preservation of evidence) and limits when an arrest is absent.
• United States v. Romero and United States v. Braxton: identify the general permissibility of searches incident to arrest when an arrest occurs.
• Rawlings v. Kentucky and United States v. Anchondo: allow that a search may precede the formal arrest if the arrest follows “shortly after” and probable cause existed before the search—used here chiefly as a contrast, because Cruz conceded there was no arrest at all.
• United States v. Sanchez: quoted for the proposition that “there can be no search incident to arrest unless the suspect is at some point formally placed under arrest.” The majority used it to reinforce that the doctrine requires an arrest at some point.
• United States v. Ward: the most consequential Tenth Circuit authority for this case; it stated that even with probable cause, pocket contents were not constitutionally seizable “inasmuch as [the suspect] was not arrested.” The concurrence viewed Ward as the real driver of “clearly established” law, while criticizing the rule as overly formalistic.
• In re Smith: invoked to reject Cruz’s invitation for a panel to “modify” controlling circuit precedent; only en banc or Supreme Court authority can do that.

4) Consent and its limits after illegality

• United States v. Abdenbi: consent is a fact question, supporting the district court’s conclusion that a jury could find no prior consent to search the wallet.
• United States v. Carson: key rule applied—after-the-fact consent cannot “transform the prior illegal search into a legal one.”

5) Waiver/forfeiture on summary judgment briefing

• Cox v. Wilson: arguments raised too late (e.g., for the first time at oral argument) are not considered.
• Postnet Int'l Franchise Corp. v. Wu (quoting Gutierrez v. Cobos) and Beaird v. Seagate Tech., Inc.: arguments raised for the first time in a reply brief may be deemed waived/forfeited because the opposing party had no opportunity to respond—used to dispose of Cruz’s late-developed “right to get the driver’s license” theory.

6) Concurrence’s additional authorities (critiquing the Tenth Circuit rule)

• Manzanares v. Higdon and Cortez v. McCauley: cited to highlight that handcuffing and prolonged detention often resemble arrest—making Cruz’s concession of “no arrest” strategically puzzling.
• United States v. Gorman and People v. Simon: cited for the proposition that it is irrational to force officers to arrest as a precondition to a search they could have conducted incident to arrest when probable cause exists (and where a fruitless search might avoid arrest altogether).

B. Legal Reasoning

1) Pockets: why a jury could find a Fourth Amendment violation

The majority treated the case as turning on two mutually reinforcing limits:

• Terry limit: During an investigative detention, an officer may pat down outer clothing for weapons, but may not skip that step and immediately reach into pockets absent an exception. Relying on Terry v. Ohio, Minnesota v. Dickerson, Sibron v. New York, and United States v. Santillanes, the court held that—on the district court’s assumed facts—reaching into Montgomery’s pockets without first patting them was unreasonable.
• Search-incident-to-arrest limit: Cruz could not recharacterize the search as “incident to arrest” because he conceded Montgomery was never arrested. The court treated Tenth Circuit precedent (especially United States v. Ward, reinforced by United States v. Sanchez) as requiring an arrest at some point to invoke the doctrine.

2) Clearly established law: why qualified immunity was unavailable

Given (a) the factual dispute on whether Cruz skipped the pat-down and (b) Cruz’s concession that no arrest occurred, the court concluded “all officers should have understood” the conduct was unconstitutional. The court rejected Cruz’s attempt to rely on “arguable probable cause” because the constitutional defect was not the absence of probable cause; it was the absence of a lawful frisk predicate and the absence of an arrest needed to invoke search-incident-to-arrest doctrine.

3) Wallet: why the license retrieval did not salvage the search

The wallet search failed for multiple independent reasons:

• Fruit of the pocket entry: The wallet was found only because the officer unlawfully entered the pocket (on the district court’s assumed facts), making the wallet search a continuation of the illegality.
• New “knife in wallet” theory rejected: The majority refused to entertain an argument inconsistent with the district court’s assumed facts and the record (and noted Cruz’s admission that he retrieved the license after determining Montgomery had no weapon).
• Late “right to identification” theory forfeited: Raised only in reply briefing and not properly preserved.
• After-the-fact consent ineffective: Even if Montgomery later indicated willingness to provide ID, United States v. Carson prevents retroactive validation of an already-completed illegal search; factually, a jury could also conclude he meant he would have handed over the ID himself rather than allow “rummaging” through the wallet.

C. Impact

• Operational rule for officers in the Tenth Circuit: This decision reinforces that officers cannot rely on “probable cause to arrest” as a substitute for either (a) a lawful Terry frisk sequence (pat-down first) or (b) an actual arrest to trigger search-incident-to-arrest authority. The majority effectively reiterates an “arrest-at-some-point” requirement already found in circuit precedent.
• Incentives and the concurrence’s warning: Judge Baldock’s concurrence highlights a practical tension: if probable cause exists, a rule conditioning a search on an arrest may incentivize formal arrest earlier (to preserve search authority) even if investigation might otherwise quickly exonerate the suspect. He urges en banc reconsideration, suggesting United States v. Ward created a formalism that may be doctrinally unstable.
• Consent doctrine clarity: The wallet analysis underscores that post-search statements of cooperation do not “cure” a completed illegality. That principle, grounded in United States v. Carson, may be increasingly important in identification-related searches during retail-theft stops.
• Litigation posture: The decision also demonstrates how concessions on “arrest” status can be dispositive on interlocutory qualified-immunity appeal, and how forfeiture rules can prevent appellate rescue via newly minted theories (e.g., “right to ID” arguments raised too late).

4. Complex Concepts Simplified

• Investigative detention (“Terry stop”): A temporary stop based on reasonable suspicion. Officers may do a limited pat-down for weapons if they reasonably believe the person might be armed and dangerous.
• Pat-down vs. pocket search: A pat-down is an external frisk over clothing. Reaching into a pocket is a more intrusive search that generally requires the pat-down to reveal something that could be a weapon (or another recognized exception).
• Probable cause: A higher standard than reasonable suspicion; it means there is a fair probability a crime occurred and the person committed it. Probable cause can justify an arrest, but (in this circuit’s doctrine as applied here) does not automatically justify a full search unless tied to a recognized exception.
• Search incident to arrest: A categorical exception allowing officers to search an arrestee and areas within immediate control to protect officer safety and preserve evidence. In this case, the court treated an actual arrest as a required condition.
• Qualified immunity: A defense shielding officials from damages unless the plaintiff shows (1) a constitutional violation and (2) that the law was “clearly established” such that a reasonable officer would have known the conduct was unlawful.
• “Clearly established”: Not a general statement of rights, but sufficiently specific precedent putting officers on notice. Here, the court relied on established frisk limits and Tenth Circuit search-incident-to-arrest precedent (especially United States v. Ward).
• After-the-fact consent: Consent must precede or accompany the search to justify it. A later statement of willingness cannot retroactively legalize a search already completed (United States v. Carson).

5. Conclusion

Montgomery v. Cruz reaffirms two practical Fourth Amendment rules in the Tenth Circuit: (1) during an investigative detention, officers generally must pat down first before intruding into pockets absent another valid exception; and (2) the search-incident-to-arrest doctrine cannot justify a full pocket search where the suspect is never arrested, even if probable cause to arrest existed. The decision further clarifies that a suspect’s post-search statement expressing willingness to provide identification does not retroactively validate an unlawful wallet search. Together, these holdings narrow the room for post hoc rationalizations in retail-theft encounters and highlight the continuing force—and controversy—of United States v. Ward within Tenth Circuit qualified-immunity doctrine.