The U.S. Court of Appeals for the Tenth Circuit issued a published opinion January 6, 2026, in *Montgomery v. Cruz*, examining critical questions about police search authority when officers have probable cause but don't make an arrest.
The case, numbered 23-1315, involves William Montgomery as plaintiff-appellee and police officer Armando Cruz as defendant-appellant. The appeal stems from a 2020 civil lawsuit filed in the U.S. District Court for the District of Colorado.
According to the court's opinion written by Circuit Judge Bacharach, the case "grew out of a police officer's search of a suspect's pockets and wallet." The search raises fundamental Fourth Amendment questions about the scope of police authority during investigations.
The court identified two overarching legal issues triggered by the search. The primary question centers on whether Officer Cruz could justify searching Montgomery's pockets based on probable cause to make an arrest, even when no actual arrest occurred.
Traditionally, officers can conduct searches incident to arrest when a suspect is actually arrested. As the Tenth Circuit noted in *United States v. Romero* (10th Cir. 2019), officers "can ordinarily conduct a search incident to the arrest" when a suspect is arrested. However, the Montgomery case presents a more complex scenario.
"But what if the suspect is never arrested?" the court asked. "Absent an actual arrest, the officer can't justify a search" under the traditional search-incident-to-arrest doctrine, according to the opinion.
This legal question has significant implications for law enforcement practices and civil liberties. Police officers frequently encounter situations where they have probable cause to arrest but choose not to make an arrest for various tactical or practical reasons. The Montgomery decision will help clarify whether officers can search suspects in these circumstances without violating Fourth Amendment protections.
The case also involves a second issue related to the search of Montgomery's wallet, though the court document cuts off before detailing this aspect of the analysis.
The Denver City Attorney's Office represented Officer Cruz in the appeal, with Assistant City Attorneys Madison L. Smith and Joshua R. Woolf handling the case. Montgomery was represented by attorneys Erin M. Gust and Theresa Wardon Benz from Davis Graham & Stubbs LLP.
The three-judge panel included Circuit Judges Bacharach, Baldock, and Carson. The fact that the court designated this as a published opinion indicates the decision will have precedential value for future cases in the Tenth Circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
The underlying district court case was filed in 2020 and assigned case number 20-CV-003189-PAB-MEH. The lengthy litigation process from initial filing to appellate decision reflects the complex legal issues at stake.
Search and seizure law has evolved significantly in recent decades as courts balance law enforcement needs with constitutional protections. The Supreme Court has established various exceptions to the warrant requirement, including searches incident to arrest, but the boundaries of these exceptions continue to be refined through cases like Montgomery.
The Tenth Circuit's analysis will likely examine established precedents about when probable cause alone can justify a search without an arrest. Courts have generally required either a warrant, consent, or specific exigent circumstances to justify searches when no arrest occurs.
For law enforcement agencies throughout the Tenth Circuit, this decision could provide important guidance on search protocols. Officers may need to adjust their practices depending on how broadly or narrowly the court interprets existing search authorities.
Civil rights advocates will also closely watch this decision, as it addresses fundamental questions about the scope of police power during investigations. The balance between effective law enforcement and constitutional protections remains a central tension in Fourth Amendment jurisprudence.
The case highlights ongoing challenges in applying 18th-century constitutional language to modern policing practices. As law enforcement techniques evolve, courts must continually interpret how constitutional protections apply to new scenarios.
While the full opinion's reasoning and conclusion are not available from the document excerpt, the Tenth Circuit's willingness to publish the decision suggests it addresses important legal questions that will guide future cases involving police searches without arrest.
The Montgomery case joins a growing body of appellate decisions refining the boundaries of police search authority, contributing to the ongoing development of Fourth Amendment law in the federal court system.