Defendant has Rochin due process standing to challenge removal of drugs from his wife’s vagina, but he didn’t have Fourth Amendment standing. Using a Rochin due process analysis, the court concludes that Mrs. Anderson was handcuffed to a bench for hours after her nighttime arrest, and she couldn’t sleep because she was constantly uncomfortable. Then the officers decided to talk to her, and she admitted she had drugs hidden in her. She was ultimately told that a judge refused to issue a body cavity search warrant. Under the due process clause, because the court finds that this qualified under Rochin, Mr. Anderson gets standing. United States v. Anderson, 2013 U.S. Dist. LEXIS 153638 (D. Vt. October 24, 2013):
As the court previously found, Defendant does not have standing under the Fourth Amendment to seek suppression of evidence obtained from Ms. Anderson’s person. See United States v. Hamilton, 538 F.3d 162, 167 (2d Cir. 2008) (“A defendant seeking to suppress the fruits of a search by reason of a violation of the Fourth Amendment must show that he had a ‘legitimate expectation of privacy’ in the place searched.”) (quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)). However, Defendant is not required to seek suppression of the physical evidence on Fourth Amendment principles alone. The Supreme Court’s decision in Graham v. Connor, 490 U.S. 386 (1989), requires a defendant to base a constitutional argument on the Fourth Amendment, rather than on “the more generalized notion of ‘substantive due process,'” only when “the Fourth Amendment provides an explicit textual source of constitutional protection.” Id. at 395; see also Albright v. Oliver, 510 U.S. 266, 273-75 (1994) (affirming the Graham rule and determining substantive due process afforded defendant “no relief” when defendant could have raised a Fourth Amendment claim). When a defendant’s claim is not “‘covered by’ the Fourth Amendment,” as is the case here, the defendant may proceed with a substantive due process claim. See County of Sacramento v. Lewis, 523 U.S. 833, 842-43 (1998) (concluding claim based on “facts involving a police chase aimed at apprehending suspects” was not covered by the Fourth Amendment and so the facts of that case could “support a due process claim”).
If the drugs extracted from Ms. Anderson’s person are analogized to involuntary statements, they would be inadmissible against Defendant even if highly probative of his guilt. As the Rochin Court observed: “To attempt … to distinguish what lawyers call ‘real evidence’ from verbal evidence is to ignore the reasons for excluding coerced confessions. Use of involuntary verbal confessions … is constitutionally obnoxious not only because of their unreliability,” but also because they “offend the community’s sense of fair play and decency.” Rochin, 342 U.S. at 173. Accordingly, under Rochin, Defendant has standing to challenge the admissibility of the physical evidence obtained from Ms. Anderson’s body.
. . .
The Supreme Court has recognized that substantive due process may be violated by a “cognizable level of executive abuse of power.” Lewis, 523 U.S. at 846. For a due process claim, “there is no meaningful distinction between physical and psychological harm.” United States v. Cuervelo, 949 F.2d 559, 565 (2d Cir. 1991) (citing United States v. Chin, 934 F.2d 393, 399 n.4 (2d Cir. 1991)). While the Court has “defined the category of infractions that violate ‘fundamental fairness’ very narrowly,” Rochin prohibits an abuse of police power that offends “the community’s sense of fair play and decency.” Dowling v. United States, 493 U.S. 342, 352-53 (1990). It is for this reason that an involuntary confession, even if obtained by means of police coercion that is only psychological in nature, is inadmissible for any purpose. Indeed, the Supreme Court “mandate[s] the exclusion of reliable and probative evidence for all purposes … when it is derived from involuntary statements.” Michigan v. Harvey, 494 U.S. 344, 351 (1990) (citing New Jersey v. Portash, 440 U.S. 450, 459 (1979) (holding compelled incriminating statements inadmissible for impeachment purposes)). As the Court explained in Watkins v. Sowders, 449 U.S. 341 (1981), “while an involuntary confession is inadmissible in part because such a confession is likely to be unreliable, it is also inadmissible even if it is true, because of the ‘strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.” Id. at 347 (quoting Jackson v. Denno, 378 U.S. 368, 386 (1964)).
Accordingly, “‘[t]he aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.'” Colorado v. Connelly, 479 U.S. 157, 167 (1986) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Rochin and its progeny thus reveal the Court’s continuing vigilance in ensuring that the “Due Process Clause imposes limitations on the government’s ability to coerce individuals into participating in criminal prosecutions.” Doe v. United States, 487 U.S. 201, 214 n.13 (1988).
C. Whether the Police Conduct Violates Substantive Due Process.
In order to find a violation of substantive due process, the court must consider the rights at stake, whether a violation of those rights offends human dignity and undermines fundamental fairness, whether a compelling government interest justified the infringement of e [*29]ights and whether any intrusion was narrowly tailored to further that interest, and whether law enforcement engaged in deliberate misconduct in contravention to “precisely the qualities society has a right to expect from those entrusted” with power. Rochin, 342 U.S. at 172; see also Glucksberg, 521 U.S. at 720-21 (explaining the “features” of substantive due process are “that the Due Process Clause specially protects those fundamental rights and liberties … implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed” and that the government cannot infringe thereon “unless the infringement is narrowly tailored to serve a compelling state interest”) (internal citations and quotation marks omitted).
The court addresses the totality of the police conduct at issue here because it provides a context within which the court may evaluate whether there was an abuse of police power that offends “the community’s sense of fair play and decency.” Dowling, 493 U.S. at 353.
