USA v. Wilhoite

1
In the United States District Court
for the District of Kansas
_____________
Case No. 25-cr-40002-TC
_____________
UNITED STATES OF AMERICA,
Plaintiff
v.
CHRISTOPHER JAMES WILHOITE,
Defendant
_____________
MEMORANDUM AND ORDER
A grand jury indicted Christopher Wilhoite with one count of pos-
session of a machinegun in violation of 18 U.S.C. § 922(o). Doc. 31.
Wilhoite moves to suppress the firearm found near the place of his
arrest as the fruit of an unreasonable search. Doc. 40. For the following
reasons, that motion is denied.
I
A
Wilhoite alleges the firearm was seized in violation of his Fourth
Amendment rights. The Fourth Amendment protects the “right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const. amend. IV.
Most suppression motions concern whether the search or seizure
was permissible. This one concerns the reasonableness of the manner
in which it was conducted. According to Wilhoite, his arrest was lawful
but the officer—and his K-9 partner—used too much force to effec-
tuate it.
An arrestee’s right to be free from excessive force during an arrest
is violated if the arresting officer’s actions were not “objectively
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reasonable in light of the facts and circumstances confronting him,
without regard to their underlying intent or motivation.” Graham v.
Connor, 490 U.S. 386, 397 (1989); accord Cruz v. City of Deming, 138 F.4th
1257, 1266 (10th Cir. 2025). Courts evaluating the force used look to
the totality of circumstances, paying particular attention to the severity
of the crime at issue, whether the suspect posed an immediate threat
to the safety of the officers or others, and whether he or she was ac-
tively resisting arrest or attempting to evade arrest by flight. Palacios v.
Fortuna, 61 F.4th 1248, 1256 (10th Cir. 2023). Bearing in mind that post
hoc inquiries from the comfort and safety of a judge’s chambers can
provide a false sense of tranquility, this inquiry is judged from the per-
spective of a reasonable officer on the scene, where tense, rapidly
evolving, and uncertain acts are unfolding. Vette v. K-9 Unit Deputy
Sanders, 989 F.3d 1154, 1170 (10th Cir. 2021); accord Graham, 490 U.S.
at 396-397.
When a search has been found to violate the Fourth Amendment,
the exclusionary rule has been applied to bar the use of evidence in
criminal proceedings. Mapp v. Ohio, 367 U.S. 643 (1961); Weeks v. United
States, 232 U.S. 383 (1914). The exclusionary rule is not a constitutional
guarantee and is meant to deter future Fourth Amendment violations.
United States v. Knox, 883 F.3d 1262, 1273 (10th Cir. 2018).
Whether it applies to the unreasonable use of force context is less
than clear. The Tenth Circuit has not addressed that specific question.
But generally speaking, a defendant seeking exclusion of evidence
bears the burden of showing that the incriminating evidence would not
have been obtained “but-for” the Fourth Amendment violation. United
States v. Shrum, 908 F.3d 1219, 1233 (10th Cir. 2018) (applying Wong
Sun v. United States, 371 U.S. 471, 488 (1963) in the context of an illegal
search case). But-for causality is a necessary—though not necessarily
sufficient—condition and application of the rule requires that “the
benefits of deterrence must outweigh the costs.” Herring v. United States,
555 U.S. 135, 141 (2009) (citing United States v. Leon, 468 U.S. 897, 910
(1984)).
B
On December 20, 2024, at around 11:45 p.m., a single Topeka Po-
lice Department officer responded to a reported burglary at 3200 SW
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Eveningside Drive in Topeka, Kansas.1 The caller reported that multi-
ple men had broken into one of the apartments.
The first officer, Bradley Netherton, arrived on the scene at ap-
proximately 11:52 p.m. Officer Chris Janes was the next to arrive. At
11:52:40 p.m., Janes exited his car, deployed his K-9 “Rebo,” and
turned on his bodycam. Janes and Rebo then took position on the
south side of the apartment building.
Netherton took position alone at the base of the stairs to the apart-
ment complex and waited for additional units to arrive before going
up the stairs. There he observed three men “ransacking” an apartment
on the second story balcony. Netherton drew his weapon, announced
his presence, and ordered the men to stop. They did not comply. In-
stead, they started running. Netherton pursued and quickly intercepted
one of the suspects, leaving two at large. Janes, still positioned on the
south side of the building, heard Netherton shouting at the suspects to
stop.
The following sequence of events occurred in a matter of seconds
and were captured on Janes’ bodycam. Upon hearing Netherton’s
statement, Janes, with Rebo, ran toward the east side of the building.
As soon as he rounded the corner of the building, he and Rebo imme-
diately encountered an unknown man—later determined to be Wil-
hoite—initially at a distance of 15-20 feet but running directly toward
them.
Without a warning, Janes released Rebo to assist in apprehending
Wilhoite. Wilhoite then changed the direction of his flight, turning to-
ward a nearby retaining wall and bushes. As Wilhoite approached the
wall, Rebo grabbed onto the lower backside of Wilhoite’s jacket. Wil-
hoite and Rebo jumped from the retaining wall, with Wilhoite landing
face down on the grass below.2 This encounter, it was later determined,
1 The following facts were found based on the evidence produced at the sup-
pression hearing, namely, Janes and Netherton’s testimony and the AXON
bodycam footage captured by Janes. Doc. 43.
2 The fall caused Wilhoite to suffer two broken legs and other associated
injuries. Wilhoite, during the suppression hearing, confirmed he was making
no claim relative to either the extent of his injuries or the subsequent inter-
actions with Janes (and Rebo) while he was being apprehended.
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dislodged a firearm from Wilhoite’s person. Rebo maintained his hold
on Wilhoite’s jacket upon landing on the grass.
Janes followed, commanding Wilhoite to put his hands up and
then put his hands behind his back. Wilhoite did not do so. Janes drew
and activated his Taser, deploying one probe into Wilhoite’s back and
additional probes into each of his hamstrings. Wilhoite then complied
and Janes commanded Rebo release his grip. After Rebo released his
grip, Wilhoite moved his left arm beneath his chest. Janes then com-
manded Rebo to bite Wilhoite’s left wrist. At that point, Janes was fi-
nally able to get Wilhoite into handcuffs and called an ambulance for
Wilhoite’s injuries.
Netherton subsequently recovered a Glock 19 from the bushes at
the base of the retaining wall that was dislodged by Rebo’s contact with
Wilhoite. That weapon had an extended magazine and a modified
switch enabling automatic discharge. United States v. Kuone, 2025 WL
1784973 at *1 (D. Kan. June 27, 2025) (describing a Glock switch as a
small piece of plastic that allows a semi-automatic Glock pistol to func-
tion as if it were a fully automatic machine gun).
Wilhoite moves to suppress the firearm. Doc. 40 at 4.3 The syllo-
gism he offers is that Janes’ release of Rebo without warning consti-
tuted unreasonable force in executing the seizure, the contact Rebo
made with him dislodged the firearm, and that, as a result, the firearm
should be excluded. Id. at 7.4 An evidentiary hearing on the motion to
suppress was held on September 17, 2026. Doc. 43.
3 All document citations are to the document and page number assigned in
the CM/ECF system.
4 Wilhoite also argues the firearm should be excluded because the use of a K-
9 without a warning and the subsequent use of Taser force and pain compli-
ance “shocks the judicial conscience” in violation of the Fourteenth Amend-
ment. Doc. 40 at 10. That claim fails as a matter of law. First, Janes’ use of
reasonable force to apprehend a potentially armed, fleeing burglary suspect
does not shock the conscience. See Lindsey v. Hyler, 918 F.3d 1109, 1116 (10th
Cir. 2019) (citing Lewis, 523 U.S. at 846). And second, even assuming the use
of force once Wilhoite was on the ground constitutes a Fourteenth Amend-
ment violation, it is immaterial to this suppression motion because it did not
affect discovery of the gun. Doc. 41 at 3; cf. Rochin v. California, 342 U.S. 165,
209-210 (1952).
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II
Janes’ use of his K-9 to apprehend Wilhoite, a suspect of a serious
and ongoing crime who was running at him, does not constitute the
use of unreasonable force. Even if it did, exclusion is not the appro-
priate remedy. Accordingly, Wilhoite’s motion is denied.
A
Wilhoite argues that Janes’ use of his K-9 without first giving a
verbal warning constituted an unreasonable use of force. Doc. 40 at 4.5
Based on the facts as they reasonably appeared to Janes at the time of
the encounter, it was not.
1
Wilhoite, as he must, concedes that Janes was investigating a seri-
ous crime. Doc. 40 at 1, 6. Generally speaking, burglary is a felony in
Kansas. Kan. Stat. Ann. § 21-5807. This factor alone weighs against
Wilhoite. Vette, 989 F.3d at 1170.
In addition, Janes reasonably perceived the suspect—Wilhoite—
to pose an immediate threat to his and the other officers’ safety. As set
forth in greater detail below, this factor, sometimes called “the most
important and fact intensive factor in determining the objective rea-
sonableness of an officer’s use of force,” Vette, 989 F.3d at 1170, cuts
decidedly in the Government’s favor.
It was objectively reasonable for Janes to believe that Wilhoite pre-
sented a threat to the officers’ and public’s safety. Janes was respond-
ing to a burglary in progress in the middle of the night and rounding
the east corner of the building when he immediately encountered Wil-
hoite, who Janes knew had already ignored Netherton’s command to
stop, running toward Janes from a distance of 15-20 feet. Not only was
the situation tense, fluid, and uncertain, but Janes testified that, in his
experience, most burglary suspects carried arms. See Marquez v. City of
Albuquerque, 399 F.3d 1216, 1221 (10th Cir. 2005) (considering officer’s
5 The Government does not contest that Wilhoite was seized in the arrest
made on December 20, 2024. Doc. 41 at 5. Neither does Wilhoite contend
that the police lacked either probable cause to effectuate an arrest or reason-
able suspicion to make an investigative stop.
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testimony that one quarter to one half of robbery suspects are armed
in concluding officer had a reasonable belief that suspect was poten-
tially armed). And, generally speaking, the Topeka Police Department
considers all burglaries particularly high-risk incidents. As a result, a
reasonable officer could objectively believe a potentially armed, fleeing
burglary suspect running in his direction at nighttime in a residential
area presented a threat to himself and other officers on the scene. See
Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1321 (10th Cir. 2009) (hold-
ing it was reasonable to use a K-9 to apprehend an armed suspect hid-
ing in a residential neighborhood at nighttime).
Additionally, Janes testified that the officers were divided on scene
and outnumbered by fleeing suspects, which made the situation ex-
tremely dangerous. See Marquez, 399 F.3d at 1221 (noting that the situ-
ation was “tense and rapidly evolving” as the solo officer was outnum-
bered by two potentially armed robbery suspects evading arrest). In
such a rapidly escalating situation, Janes was “forced to make [a] split-
second judgment[] … about the amount of force” he thought was nec-
essary to apprehend Wilhoite. Graham, 490 U.S. at 397; see also Marquez,
399 F.3d at 1221. Janes’ use of force—here, the deployment of his K-
9 without a verbal warning—was reasonable given the threat presented
by the potentially armed suspect he encountered alone in the dark be-
fore backup units had arrived. See Marquez, 399 F.3d at 1221 (finding
officer acted reasonably in using police K-9 to apprehend suspected
burglary accomplice he believed endangered public safety when she
fled the scene after ignoring commands to stop).
And finally, Wilhoite’s attempt to evade arrest by flight also weighs
in the Government’s favor. Wilhoite, prior to encountering Janes, was
found ransacking an apartment during a burglary, had already ignored
Netherton’s command to stop, fled from that encounter, and nearly
ran into Janes and Rebo during his flight. These facts also decidedly
point in favor of the Government’s use of force. See Palacios, 61 F.4th
at 1257-58 (the third Graham factor favored the Government’s use of
force because the suspect fled from police after he ignored their com-
mands); Marquez, 399 F.3d at 1221 (suspect’s attempt to evade arrest
by running away and trying to climb a wall favored the Government).
* * *
The totality of the circumstances show that Janes’ use of force was
reasonable. Janes, isolated from the other officer on scene, was re-
sponding to a burglary in progress—a serious crime—when he
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suddenly encountered a fleeing, potentially armed suspect running to-
wards him in the dark. The rapidly evolving situation objectively pre-
sented an immediate threat to his and public’s safety. Marquez, 399 F.3d
at 1221; Thomson, 584 F.3d at 1321. Accordingly, Janes’ use of Rebo
without a warning to apprehend Wilhoite was reasonable.
2
Wilhoite offers several arguments to the contrary. None support a
different conclusion.
First, he argues Janes’ decision not to warn Wilhoite prior to re-
leasing Rebo was unreasonable. Doc. 40 at 6. But providing a warning
is not always required, especially when the officer—as here—was im-
mediately confronted with a tense, rapidly-evolving, and dangerous sit-
uation. Thompson, 584 F.3d at 1321 (holding it was reasonable to use a
K-9 without warning to apprehend an armed suspect hiding in a resi-
dential neighborhood at nighttime). This is true even if, as Wilhoite
sought to convey during the hearing, the police department’s policy
encourages such warnings. See, e.g., Marquez, 399 F.3d at 1222 (noting
that a violation of police procedure does not mean an officer acted
unreasonably in using force).
And Chavez v. City of Albuquerque, 402 F.3d 1039 (10th Cir. 2005),
is inapposite. Contra Doc. 40 at 6–7. It is true that the Tenth Circuit
described a factual situation where the officer gave a K-9 warning, but
that is a factual circumstance. At no point did the Tenth Circuit con-
sider whether—much less hold—such a warning was constitutionally
required.
Wilhoite also attempts to invoke the injuries he suffered after his
attempted evasion and Janes’ subsequent use of force as support for
his challenge to Janes’ initial decision to deploy Rebo without a verbal
warning. Doc. 40 at 7. That argument is a non sequitur. As discussed,
the decision to use Rebo to apprehend Wilhoite was neither unreason-
able nor disproportionate to the rapidly evolving situation Janes faced.
See Marquez, 399 F.3d at 1221 (finding that use of a K-9 to apprehend
a suspected burglary suspect fleeing the scene after ignoring com-
mands to stop was reasonable). The subsequent physical consequences
of Wilhoite’s attempt to evade the dog—broken legs from jumping off
the wall to evade capture, for example—is not causally related to the
earlier dislodging of the weapon at issue in his motion. Neither is Janes’
later decisions to use Taser and other pain compliance techniques on
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Wilhoite once he was on the ground. So, any argument about the re-
sulting injuries or subsequent use of force once he was prone on the
ground is immaterial to his challenge.
And Graham recognized that the Fourth Amendment’s reasonable-
ness standard includes the practical fact that the ability to effect an
arrest necessitates at least some degree of force. See Graham, 490 U.S.
at 396; Helvie v. Jenkins, 66 F.4th 1227, 1239 (10th Cir. 2023) (stating
that when making an arrest, some degree of physical force is inevitable,
particularly when suspect is attempting to evade arrest). That means
the amount of force and the discretion to select it varies based on the
facts and circumstances being confronted. For example, the Supreme
Court has recognized that firing multiple shots—even if, in hindsight,
only a few were necessary—at a suspect presenting a severe threat to
public safety is not unreasonable because the need to use deadly force
continues until that threat is abated. Plumhoff v. Rickard, 572 U.S. 765,
777 (2014). Similarly here, Janes was responding to a credible threat to
officer safety when he used Rebo to apprehend a fleeing, potentially
armed burglary suspect while alone in the dark. And that use of force
was justified by Wilhoite’s continuing efforts to evade and thwart the
arrest until that encounter became secure. Thompson, 584 F.3d at 1316
(noting that using police K-9s to apprehend suspects can obviate the
need to resort to deadly force or firearms).
B
On the assumption that his rights were violated by the unreasona-
ble use of force, Wilhoite argues exclusion is the proper remedy. Doc.
40 at 7. It is not.
1
The exclusionary rule is meant to ensure that the Government does
not intrude on the Fourth Amendment’s right to privacy. Knox, 883
F.3d at 1273. It accomplishes this by generally forbidding the Govern-
ment from using evidence obtained during an illegal search and sei-
zures. Id.
Its lineage traces back to Boyd v. United States, 116 U.S. 616 (1886).
In that case, the Court likened illegal searches—that is, searches with-
out lawful justification—to compelled self-incrimination. The Boyd
Court stated that it is “the duty of courts to be watchful for the con-
stitutional rights of citizens, and against any stealthy encroachments
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thereon,” id. at 630, particularly those that interfere with personal se-
curity and liberty, id. at 635. Decades later in Weeks, 232 U.S. at 391-
92, the Court first excluded evidence seized without a warrant in a fed-
eral prosecution, reasoning that without exclusion, the Fourth Amend-
ment would have no effect in securing citizens from unlawful searches
and seizures. In Mapp, 367 U.S. at 647-48, 655, the Court extended the
remedy to the states. It maintained a “jealous regard for … the integrity
of individual rights” when holding that evidence seized in violation of
the Fourth Amendment must be suppressed. Id.
But the rule itself is not a constitutional guarantee. Knox, 883 F.3d
at 1273. Its sole purpose is to serve as a deterrent for constitutional
violations. Davis v. United States, 564 U.S. 229, 237 (2011). It is not a
personal right nor is it meant to redress injuries suffered as the result
of an unlawful search. Id. The rule is “calculated to prevent, not repair”
and is “restricted to those areas where its remedial objectives are
thought most efficaciously served.” United States v. Calandra, 414 U.S.
338, 347-48 (1974).
Indeed, whether the exclusionary rule applies is “an issue separate
from the question whether the Fourth Amendment rights of the party
seeking to invoke the rule were violated by police conduct.” Leon, 468
U.S. at 906 (internal citation omitted). There is no per se or “but-for”
exclusionary rule. Id. at 910-11. While real deterrence is a necessary
condition for exclusion, “the exclusion analysis must also account for
the substantial social costs generated by the exclusionary rule,” such as
the loss of reliable evidence. United States v. Little, 119 F.4th 750, 766
(10th Cir. 2024), cert. denied, 146 S. Ct. 202 (2025) (internal citation
omitted). Because the rule often “suppress[es] the truth and set[s] the
criminal loose in the community without punishment,” this bitter pill
must be swallowed only as a last resort. Id.
2
Wilhoite’s motion contends evidence must be suppressed when it
is the but-for product of an unreasonable seizure. Doc. 40 at 7-8. He
exclusively focuses on the causal link, arguing that exclusion of the gun
is required because “but for the dog’s forceful apprehension, the fire-
arm would not have been dislodged from Mr. Wilhoite’s hands and
discovered when and where it was.” Doc. 40 at 8. That framing fails
on at least two fronts.
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First, it presumes that exclusion is an available remedy for an ex-
cessive force violation. Not only was the force not excessive, see Part
II.A., supra, but exclusion is not a proper remedy for excessive force
claims.
Although the Tenth Circuit has not directly addressed the issue in
a case asserting excessive force, it has frequently recognized that ex-
clusion in unlawful search cases “is not an automatic remedy.” See e.g.,
Little, 119 F.4th at 766. The few circuits that have considered the issue
uniformly agree that it is not an available remedy in excessive force
cases. United States v. Collins, 714 F.3d 540, 543 (7th Cir. 2013) (rejecting
exclusion as a remedy to excessive force because the rule imposes great
social costs and a civil suit for damages is the appropriate remedy); see
also United States v. Garcia-Hernandez, 659 F.3d 108, 114 (1st Cir. 2011)
(same); United States v. Morales, 385 Fed. App’x 165, 167 (3d Cir. 2010)
(same). So, too, for the handful of district court cases across the coun-
try to have considered it. United States v. Cruz, 2022 WL 7131928 at *4
n.3 (E.D.N.Y. Oct. 12, 2022) (noting that even if there was excessive
force, the appropriate remedy is a civil suit, not suppression); United
States v. Brewer, 2025 WL 3638155 at *2 (D.D.C. Dec. 15, 2025) (same).
When questioned about the state of the law at the hearing, Wilhoite
acknowledged there was no authority in the Tenth Circuit or other cir-
cuit courts supporting his contention that exclusion was a proper rem-
edy for an excessive force claim.
Good reasons exist not to extend the exclusionary rule beyond the
illegal search and seizure realm. Exclusion is appropriate only when
“the deterrence benefits of suppression ... outweigh its heavy costs.”
Davis, 564 U.S. at 237. Law enforcement conduct that is “deliberate,”
“reckless,” or “grossly negligent” makes the “deterrent value of exclu-
sion ... strong.” Id. at 238. In other words, it encourages officers to
limit their unilateral discretionary investigative choices by encouraging
presentment of the issue to a neutral and detached judge except in lim-
ited circumstances. On the other hand, an “objectively reasonable
good-faith belief that [one’s] conduct is lawful,” or conduct involving
only “isolated negligence,” makes for a low deterrent value. Id. (cita-
tions and quotation marks omitted). Wilhoite makes no argument that
these values supporting the exclusionary rule in the search and seizure
context could ever be advanced by a post-hoc determination that the
force used to affect an arrest was excessive. See United States v. Pemberton,
94 F.4th 1130, 1137 (10th Cir.), cert. denied, 145 S. Ct. 604 (2024) (noting
that application of the rule must either alter the behavior of officers or
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the policies of their department responsible for the misconduct). In-
stead, the potential for civil liability and damages provides a meaning-
ful check on an officer’s conduct and a path for a plaintiff to pursue
any claim he or she may have. See e.g. Collins, 714 F.3d at 543. Con-
sistent with that reasoning, even if Janes’ conduct could be described
as excessive force, there is no persuasive argument that exclusion
would be an effective deterrent in this type of split-second encounter.6
Second, there is no causal connection between the force used and
the discovery of the firearm. The firearm was dislodged when the K-9
confronted Wilhoite, yet most of his arguments focused on the inci-
dents that occurred or the injuries suffered arising from his attempt to
flee the K-9. Moreover, there is no dispute that even if the weapon had
not been dislodged by that encounter, it would have eventually been
found once Wilhoite was on the ground and searched incident to that
arrest. And exclusion of this gun may actually undermine the safety of
the officer(s) and public, causing Janes or his colleagues to hesitate in
effectuating an otherwise lawful arrest. See Hudson v. Michigan, 547 U.S.
586, 587 (2006) (stating that “[i]f the consequences of running afoul of
the rule were so massive, officers would be inclined to wait longer than
the law requires [to effectuate a warrant]—producing preventable vio-
lence against officers in some cases”). Any conceivable deterrent effect
is outweighed by such substantial social costs. See id. Accordingly, Wil-
hoite has not shown—even if he had been subject to excessive force
and that exclusion is an available remedy—that the gun should be sup-
pressed because of Janes’ decision to release his K-9, Rebo.
6 During the hearing, counsel suggested that United States v. Quintanilla-Chavez,
807 F. Supp. 3d 641 (W.D. Tex.), reconsideration denied, 811 F. Supp. 3d 839
(W.D. Tex. 2025), may have reached a result favorable to his position. There,
a district court concluded that exclusion was the proper remedy because that
defendant had no available remedy under Bivens. Id. at 667. That case is not
helpful to Wilhoite. For one, he was not subject to excessive force and, even
if he had been, he has not argued that he lacks a civil remedy. For another,
the Tenth Circuit requires more consideration as to the need for exclusion
than the Texas court provided. See Little, 119 F.4th at 766. And finally, that
decision is not even binding on the judge that issued it, much less in the
District of Kansas. Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011). So, what-
ever may be said of Quintanilla-Chavez, it provides no help to Wilhoite.
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III
For the foregoing reasons, Wilhoite’s Motion to Suppress, Doc.
40, is DENIED.
It is so ordered.
Date: October 9, 2026 s/ Toby Crouse
Toby Crouse
United States District Judge
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