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”).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)