Montgomery v. Cruz, 2026 WL 32061 (10th Cir. 2026)
A search incident to arrest requires an arrest. This is a story of a routine retail stop that turned into a constitutional problem because of what the officer didn’t do. The case sits at the intersection of three familiar doctrines — Terry frisks, searches incident to arrest, and consent — and it reinforces a rule officers sometimes learn the hard way: Authority to search does not arise from what an officer could have done, but from what the officer actually did.
William Montgomery was leaving a Walmart in Denver, Colorado, when store personnel asked to see his receipt. He declined. A police officer standing nearby, Armando Cruz, repeated the request. Montgomery again declined. Officer Cruz suspected shoplifting and announced that he was going to obtain Montgomery’s “name” and “information.” Montgomery placed his bags on the floor. The officer told him to raise his hands, handcuffed him, and began what was described as a pat-down or a Terry frisk.
But before patting the pocket, Officer Cruz noticed a bulge in Montgomery’s jacket and asked what it was. Montgomery said he didn’t know. The officer then reached directly into the pocket, removing a prescription bottle and a wallet, and pulled Montgomery’s driver’s license from the wallet. After the search, Montgomery was detained in a police vehicle while Walmart employees checked their records. The investigation showed Montgomery had paid for all the items. He was released without being arrested.
Montgomery sued, alleging the pocket and wallet search violated the Fourth Amendment. Officer Cruz sought summary judgment based on qualified immunity. The district court denied summary judgment, and the officer appealed.
The court’s analysis focused on two overarching issues:
- Could Officer Cruz justify the pocket search under Terry or as a search incident to arrest, even though no arrest occurred?
- Could the wallet search be salvaged by later consent or by the officer’s asserted need to obtain identification?
In Terry v. Ohio (392 U.S. 1 (1968)), the U.S. Supreme Court approved the stop-and-frisk practice. Generally known as the “Terry frisk” doctrine, it is a very limited exception to the Fourth Amendment warrant requirement. An officer may conduct a pat-down frisk of a person only when the officer reasonably believes the person to be armed and presently dangerous to the officer or others. Even before the frisk, the officer must have a legitimate reason to stop the person (Arizona v. Johnson, 555 U.S. 323 (2009)). There is only one lawful purpose to a Terry frisk: to remove weapons that threaten the officer or others (Michigan v. Long, 463 U.S. 1032 (1983)). A Terry frisk is not intended to explore for drugs or other contraband.
The trial court found a factual dispute over whether Officer Cruz ever conducted a pat-down at all. If a jury concluded he went straight into the pocket, the search would violate the Fourth Amendment. The 10th Circuit emphasized a point officers sometimes overlook: A visible bulge alone does not authorize a reach-in search. The bulge must be confirmed through a lawful pat-down first. In this case, the record contained no evidence Officer Cruz believed the bulge was a weapon. Even if he did, the proper response would have been to pat the pocket, not bypass that step.
The government’s fallback argument was that Officer Cruz had probable cause to arrest Montgomery for shoplifting and therefore could conduct a search incident to arrest. The problem was simple and fatal: No arrest occurred. A search incident to arrest is justified by the fact of a lawful arrest — officer safety, close physical contact, and preservation of evidence. Those rationales do not apply when the officer chooses not to arrest and instead waits to see whether a private party confirms a crime.
“Authority to search does not arise from what an officer could have done, but from what the officer actually did.”
Here, Officer Cruz conceded on appeal that Montgomery was never arrested. Cruz waited while Walmart investigated and declined to arrest once the suspicion was dispelled. That choice mattered. Even if probable cause existed at some point, the authority to conduct a search incident to arrest does not arise unless an arrest actually occurs or immediately follows the search.
The appellate court rejected the suggestion that officers may search first and decide later whether to arrest. “He could have arrested him” is not a constitutional substitute for “he did arrest him.” The court held that the downstream wallet search fell with the initial illegality. The wallet was discovered only because the officer unlawfully reached into the pocket. That alone doomed Cruz’s search of Montgomery’s wallet.
The court also addressed — and rejected — three additional arguments. First, the government’s suggestion that the wallet might have contained a small knife found no support in the record. The officer admitted he retrieved the wallet only after determining Montgomery did not have a weapon. Second, the argument that the officer was entitled to retrieve identification was waived by being raised too late. More importantly, the Fourth Amendment does not generally authorize officers to rummage through a wallet simply to obtain identification during an investigative detention. Third, the consent argument failed both legally and factually. Montgomery’s statement — made after the search — that he would have provided his identification if asked could not retroactively legalize an unlawful search. Consent given after the fact does not cure a prior Fourth Amendment violation.
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Important points from Montgomery v. Cruz:
- “Could have arrested” is not a legal justification. If you choose not to arrest, you do not get the search authority that comes with an arrest.
- Pat-down first, reach second. A visible bulge does not authorize a reach-in search. The pat-down is the constitutional gateway. Skipping it is not a technical mistake — it’s a violation.
- Wallets are not pockets. Even when a pocket search is lawful, a wallet search raises separate issues. Searching for identification is not automatically permitted, and consent must be obtained before, not after.
- After-the-fact cooperation does not cure an unlawful search. A subject’s later willingness to provide information does not retroactively legitimize what has already occurred.
This case is not about shoplifting or receipt checks. It is about discipline in sequencing. The Fourth Amendment often turns not on bad intent, but on small choices made in the wrong order. Here, the officer’s decision to search without patting, and to search without arresting, made all the difference.
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