Montgomery v. Cruz.
No. 23-1315. 1/6/2026. D.Colo. Judge Bacharach. Pat-Down Search—Search of Pockets and Wallet—Fourth Amendment—Qualified Immunity—Summary Judgment.
January 6, 2026
Montgomery shopped at a Walmart store, and as he left the store, he was stopped and asked for his receipt. He declined to produce a receipt. Officer Cruz, who was nearby, also asked for the receipt, which Montgomery again did not produce. Cruz suspected shoplifting and said he was going to get Montgomery’s “name” and “information.” Montgomery put his bags on the floor. Cruz then told Montgomery to raise his hands, and he handcuffed Montgomery and started to pat him down. Before Cruz patted Montgomery’s jacket, he observed a bulge and asked what it was. Montgomery said he didn’t know. Cruz then reached into Montgomery’s pockets and removed a prescription bottle and a wallet, from which he removed Montgomery’s driver’s license. Montgomery stated, “yeah, like I said, I tried to give [the ID] to you.” Following the search, Montgomery was detained in a police vehicle while Walmart employees investigated the situation. The investigation showed that Montgomery had paid for the items, and he was released. Montgomery sued Cruz alleging a Fourth Amendment violation for the pockets and wallet search. Cruz moved for summary judgment based on qualified immunity. The district court denied the motion.
On appeal, Cruz argued that he is entitled to qualified immunity because there was no Fourth Amendment violation. Alternatively, he asserted that a constitutional violation wouldn’t have been clearly established. A police officer can pat a suspect’s pocket during an investigative stop and, if something feels like a weapon, can reach into the suspect’s pocket and remove the object. Here, on reasonable suspicion, Cruz could stop Montgomery to investigate whether he had shoplifted, and for self-protection, could pat Montgomery’s pockets. If Cruz felt an object that he reasonably believed could be a weapon, he could reach into the pocket and retrieve the weapon. But here there is no record evidence that Cruz attributed the bulge to a gun, and the district court concluded that a factual dispute existed about whether Cruz had reached into Montgomery’s pocket without patting it. Without an initial pat-down, Cruz would have violated the Fourth Amendment by reaching into the pocket. Cruz could have searched Montgomery’s pockets incident to an arrest, but without an arrest, Tenth Circuit precedent prevented Cruz from searching the pockets even if probable cause, which is immaterial in this situation, existed. And Cruz admitted that he hadn’t arrested Montgomery before conducting the search. Further, given the absence of a pat-down or an arrest, all officers should have understood that the Fourth Amendment would have prohibited a search of Montgomery’s pockets. Cruz’s pockets search thus would have constituted a clearly established Fourth Amendment violation.
As to the wallet, Cruz argued that the wallet could have contained a small knife, that he had a right to retrieve Montgomery’s driver’s license, and that Montgomery consented to the retrieval. However, Cruz admitted that he retrieved the driver’s license only after determining that Montgomery hadn’t possessed a weapon; Cruz waived the second argument by waiting until his reply brief to argue that he was entitled to search for the driver’s license; and the district court concluded that a reasonable jury could find that Montgomery hadn’t consented to the wallet search before Cruz pulled it from his pocket. And because the wallet was found inside Montgomery’s pocket, the Fourth Amendment also prohibited the wallet search. Thus, Cruz is not entitled to summary judgment based on qualified immunity.
The denial of summary judgment was affirmed.