{"id":14418,"date":"2014-11-26T14:32:01","date_gmt":"2014-11-26T19:32:01","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=14418"},"modified":"2014-12-01T13:00:24","modified_gmt":"2014-12-01T18:00:24","slug":"ca2-state-officers-lied-about-body-cavity-sw-for-defs-wife-suppressed-as-to-her-but-not-him-no-standing","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=14418","title":{"rendered":"CA2: State officers lied about body cavity SW for def’s wife; suppressed as to her but not him; no standing"},"content":{"rendered":"

State officers in Vermont \u201coutrageously\u201d lied to defendant\u2019s wife to get her to submit to a body cavity search for drugs after she\u2019d 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<\/a>, 13-4152-cr (2d Cir. November 24, 2014):
\n<\/p>\n

Mrs. Anderson was then escorted back to the processing room and interviewed for another two hours by Trenosky and another unidentified police officer.\u00a0\u00a0She admitted that the drugs were concealed in her vagina.\u00a0\u00a0Trenosky told her that the \u201ceasiest way to do this\u201d would be for her to remove the drugs in the presence of the female officer.\u00a0\u00a0Anderson, 2013 WL 5769976, at *5. He also told her that \u201cwith the body warrant, it\u2019s very difficult for us to actually get it signed a lot of times, so a lot of times we ask for voluntary consent,\u201d but he still did not tell her that the warrant had been denied.\u00a0\u00a0Id. at *5 n 4.\u00a0\u00a0Crowley then accompanied Mrs. Anderson to the bathroom where Mrs. Anderson recovered the drugs from a condom in her vagina and gave them to Crowley.<\/p>\n

At this point, Trenosky told Mrs. Anderson, for the first time, that the state judge had denied their application for a search warrant.\u00a0\u00a0Trenosky then shared with Mrs. Anderson his modus operandi.\u00a0\u00a0He told her (as recorded in a videotape of Mrs. Anderson\u2019s detainment) that, as police officers: \u201c[W]e don\u2019t necessarily have to tell you the truth one hundred percent of the time \u2013 Cuz that\u2019s our angle in law enforcement, ya know, I can, I can lie to you all day long, um and it\u2019s more of just I just want to make it clear that you don\u2019t feel coerced today, you don\u2019t feel like we did anything inappropriate or wrong.\u201d\u00a0\u00a0See ECF Dkt Entry No. 29 at 6 (citing Exhibit E at 0:20:27).<\/p>\n

. . .<\/p>\n

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.\u00a0\u00a0This is so notwithstanding the fact that the conduct of the Vermont state police was deceptive, coercive and illegal.<\/p>\n

In holding that Payner precludes Anderson\u2019s claim, we need not decide whether physical evidence obtained through outrageous conduct \u2013 such as torture \u2013 inflicted on a third party may never be excluded on due process grounds.\u00a0\u00a0The Seventh Circuit has explained that \u201ca violation of another person\u2019s [F]ifth [A]mendment rights may rise to the level of a violation of [a defendant\u2019s] rights to a fair trial.\u00a0\u00a0Due Process is implicated when the government seeks a conviction through use of evidence obtained by extreme coercion or torture.\u201d\u00a0\u00a0United States v. Chiavola, 744 F.2d 1271, 1273 (7th Cir. 1984) (internal citation omitted).\u00a0\u00a0Significantly, neither Payner nor this case involved conduct, such as torture, so beyond the pale of civilized society that no court could countenance it. <\/p>\n

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 \u201ctake sides\u201d on the continuing viability of the outrageous conduct defense in light of Payner, but noting that since Payner, the Supreme Court has regularly \u201creminded 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\u201d); United States v. Teague, 469 F.3d 205, 210 (1st Cir. 2006) (rejecting, under Payner, defendant\u2019s claim that the use of evidence recovered through an illegal search of a third party\u2019s 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) (\u201cHampton 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,\u201d the defendant \u201clacked standing to challenge these alleged violations\u201d); 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 \u201ccourt 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\u201d).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

State officers in Vermont \u201coutrageously\u201d lied to defendant\u2019s wife to get her to submit to a body cavity search for drugs after she\u2019d been detained nearly six hours and was groggy and hanging her head from being handcuffed to a … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[46,34],"tags":[],"class_list":["post-14418","post","type-post","status-publish","format-standard","hentry","category-due-process","category-standing"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/14418","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=14418"}],"version-history":[{"count":3,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/14418\/revisions"}],"predecessor-version":[{"id":14474,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/14418\/revisions\/14474"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14418"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14418"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14418"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}