CA2: State officers lied about body cavity SW for def’s wife; suppressed as to her but not him; no standing

State officers in Vermont “outrageously” lied to defendant’s wife to get her to submit to a body cavity search for drugs after she’d been detained nearly six hours and was groggy and hanging her head from being handcuffed to a chair for whole time. They told her that a warrant had been issued when one had actually been turned down. As to her the drugs were suppressed for a due process violation. The district court held that the evidence was also inadmissible against her husband because of the outrageous conduct of the police. On appeal, the Second Circuit reversed; he had no standing to contest what happened to her unless she was tortured. United States v. Anderson, 13-4152-cr (2d Cir. November 24, 2014):

Mrs. Anderson was then escorted back to the processing room and interviewed for another two hours by Trenosky and another unidentified police officer.  She admitted that the drugs were concealed in her vagina.  Trenosky told her that the “easiest way to do this” would be for her to remove the drugs in the presence of the female officer.  Anderson, 2013 WL 5769976, at *5. He also told her that “with the body warrant, it’s very difficult for us to actually get it signed a lot of times, so a lot of times we ask for voluntary consent,” but he still did not tell her that the warrant had been denied.  Id. at *5 n 4.  Crowley then accompanied Mrs. Anderson to the bathroom where Mrs. Anderson recovered the drugs from a condom in her vagina and gave them to Crowley.

At this point, Trenosky told Mrs. Anderson, for the first time, that the state judge had denied their application for a search warrant.  Trenosky then shared with Mrs. Anderson his modus operandi.  He told her (as recorded in a videotape of Mrs. Anderson’s detainment) that, as police officers: “[W]e don’t necessarily have to tell you the truth one hundred percent of the time – Cuz that’s our angle in law enforcement, ya know, I can, I can lie to you all day long, um and it’s more of just I just want to make it clear that you don’t feel coerced today, you don’t feel like we did anything inappropriate or wrong.”  See ECF Dkt Entry No. 29 at 6 (citing Exhibit E at 0:20:27).

. . .

Accordingly, on the facts before us, Payner precludes suppression, on substantive due process grounds, of physical evidence obtained through a flagrantly illegal search directed at someone other than the defendant.  This is so notwithstanding the fact that the conduct of the Vermont state police was deceptive, coercive and illegal.

In holding that Payner precludes Anderson’s claim, we need not decide whether physical evidence obtained through outrageous conduct – such as torture – inflicted on a third party may never be excluded on due process grounds.  The Seventh Circuit has explained that “a violation of another person’s [F]ifth [A]mendment rights may rise to the level of a violation of [a defendant’s] rights to a fair trial.  Due Process is implicated when the government seeks a conviction through use of evidence obtained by extreme coercion or torture.”  United States v. Chiavola, 744 F.2d 1271, 1273 (7th Cir. 1984) (internal citation omitted).  Significantly, neither Payner nor this case involved conduct, such as torture, so beyond the pale of civilized society that no court could countenance it.

This holding is in line with our sister circuits that have considered this issue. See, e.g., United States v. Dyke, 718 F.3d 1282, 1285, 1288 (10th Cir. 2013) (declining to “take sides” on the continuing viability of the outrageous conduct defense in light of Payner, but noting that since Payner, the Supreme Court has regularly “reminded us … that we are not to reverse convictions simply to punish bad behavior by governmental agents, but should do so only when the bad behavior precipitates serious prejudice to some recognized legal right of the particular defendant before us”); United States v. Teague, 469 F.3d 205, 210 (1st Cir. 2006) (rejecting, under Payner, defendant’s claim that the use of evidence recovered through an illegal search of a third party’s vehicle violated his due process rights); United States v. Noriega, 117 F.3d 1206, 1214 (11th Cir. 1997); United States v. Valdovinos-Valdovinos, 743 F.2d 1436, 1437-38 (9th Cir. 1984) (per curiam) (“Hampton and Payner preclude defendants from raising due process violations allegedly suffered by third parties [and because] [a]ny due process violations in the instant controversy involved the Fifth Amendment rights of the two illegal aliens,” the defendant “lacked standing to challenge these alleged violations”); see also United States v. Miceli, 774 F. Supp. 760, 770 (W.D.N.Y. 1991) (following Payner and rejecting an outrageous misconduct defense where a government investigator seduced the defendant’s ex-wife in order to gather incriminating information about the defendant, but noting that the “court would not hesitate to intervene if [the investigator] had raped or otherwise abused [the ex-wife] in a single-minded effort to collect evidence of crime against the defendant”).

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