United States v. Anderson, No. 13-4152-CR (2d Cir. Nov. 24, 2013) (Parker, Lynch, and Carney), available hereFollowing a traffic stop of defendant’s car, Vermont state troopers arrested defendant’s wife Crystal, a passenger, believing that she had drugs hidden on her person. The troopers brought Crystal to the state police barracks, handcuffed her to a chair, and told her that they were applying for a warrant for a body cavity search. A state judge denied the application, but the troopers concealed this fact from Crystal. Instead, over several hours of detention and interrogation, the troopers falsely told Crystal that she would be taken to a hospital where the body search would be performed, falsely told her that her husband had incriminated her in drug trafficking, and refused her repeated requests to see a signed warrant. Ultimately, Crystal signed a Miranda waiver, admitted that there were drugs hidden in her vagina, removed the drugs, and surrendered them to the troopers.
Prior to defendant’s trial in D. Vt. (Crystal pleaded guilty), the district court (Reiss, C.J.) granted defendant’s motion to suppress the drugs, ruling that their admission would violate defendant’s substantive due process rights because they were obtained by law enforcement conduct that shocked the conscience.
On appeal, the government conceded that the troopers’ conduct violated Crystal’s Fifth Amendment substantive due process rights, but argued that defendant could not base a substantive due process claim for suppression on what happened to his wife. Relying on United States v. Payner, 447 U.S. 727, 735-37 n.9 (1980) (“[T]he limitations of the Due Process Clause ... come into play only when the Government activity in question violates some protected right of the defendant.”), the Circuit agreed and reversed. In the Circuit’s view, Payner “precludes suppression, on substantive due process grounds, of physical evidence obtained through a flagrantly illegal search directed at someone other than the defendant.” (slip op., at 11).
The Circuit left open the possibility that substantive due process might sometimes require suppression of physical evidence obtained through outrageous government conduct against a third party. Such conduct, however, would have to be “torture” or otherwise “so beyond the pale of civilized society that no court could countenance it.” (slip op, at 12). Finally, rejecting defendant’s alternative argument for affirmance, the Circuit held that suppression was not authorized in the exercise of the district court’s supervisory powers, where suppression was not compelled by the Fifth Amendment.