US v. Holloway

906 F. Supp. 1437

UNITED STATES of America, Plaintiff, v. Billy Z. HOLLOWAY, Defendant.

No. 95-40053-01-SAC.

United States District Court, D. Kansas.

October 5, 1995.

Charles D. Dedmon and David J. Phillips, Office of Federal Public Defender, Topeka, KS, for defendant.

Randy M. Hendershot, Office of United States Attorney, Topeka, KS, for plaintiff.

MEMORANDUM AND ORDER

CROW, District Judge.

On June 28, 1994, the grand jury returned a four count indictment against Billy Z. Holloway. Count 1 charges Holloway with possession with intent to distribute cocaine base (in violation 21 U.S.C. § 841(a)(1)) on or about April 19, 1993; Count 2 charges Holloway with carrying a firearm during and in relation to the drug trafficking crime (in violation of 18 U.S.C. § 924(c)(1)) charged in Count 1. In Count 3, Holloway is charged with maintaining a place for the purpose of manufacturing, distributing, or using a controlled substance (in violation of 21 U.S.C. § 856(a)(1)). Count 4 charges Holloway with possession with the intent to distribute 84 grams of cocaine base. The crimes charged in Counts 3 and 4 are alleged to have occurred on January 3, 1995.

This case originally came before the court upon the following pretrial motions filed by Holloway:

Motion to dismiss or suppress (Dk. 16).

Motion to sever counts (Dk. 17).

The government has filed responses in opposition to each motion. See (Dk. 20 and 21).

On August 9, 1995, the grand jury returned a superseding indictment adding one additional count to the original indictment. Count 5 charges Holloway with knowing and intentional possession of a shotgun with a barrel less than 18 inches. The shotgun was apparently discovered when Holloway was arrested on counts three and four on June 30, 1995.

On August 11, 1995, based upon the superseding indictment and defense counsel's indication that its return might require additional or supplemental motions, the court set the time for the filing of additional motions. Holloway has since filed a new motion to sever counts (Dk. 28). The government has filed a response (Dk. 26).

On September 15, 1995, the court held a hearing on the defendant's motions. Having considered the evidence presented, the arguments and briefs of counsel, and the applicable law, the court is now prepared to rule.

Motion to dismiss or suppress (Dk. 16).

Holloway seeks dismissal of Counts 3 and 4 of the indictment, or in the alternative, an order suppressing certain evidence seized during the execution of a search warrant on January 3, 1995, on a house located at 1228 S.W. Locust St., Topeka, Kansas. During the execution of the search warrant, officers arrested or otherwise secured six occupants. One of the persons detained was Holloway. While Holloway was handcuffed, officers asked several questions. Because Holloway did not respond audibly, officers suspected that he had something in his mouth. One of the officers apparently ordered Holloway to spit out the contents of his mouth; Holloway apparently refused. Officers then grabbed and "physically manhandled" Holloway in an attempt to extract the unknown evidence. Unsuccessful in making Holloway relinquish the contents of his mouth, Officers sprayed CAPSTUN,¹ a chemical weapon, in Holloway's face. Officer Brian Hill testified that he applied a one-second burst of CAPSTUN to Holloway. Holloway testified that he was sprayed more than one time. Holloway also testified that during the officers' attempt to extract the contents of his mouth, he was choked from behind and that a knee was placed in his back, making it hard for him to breath. Holloway, an asthmatic, claims to have suffered great pain and loss of control of his facial muscles as a result of the spray. Ultimately, the officers' effort proved successful as Holloway disgorged a quantity of cocaine base from his mouth.

After Holloway disgorged the contents of his mouth, he was taken outside to the open air to alleviate the discomfort of the CAPSTUN. In addition, Holloway's face was washed off. Holloway was taken to police headquarters. According to Holloway, the CAPSTUN caused him great physical distress. Holloway claims to have had difficulty breathing. Despite his pleas for assistance, officers did little to alleviate his discomfort. Eventually, however, the effects of the CAPSTUN wore off.

Holloway contends that the officers violated his Fourth and Fifth Amendment rights in obtaining the evidence from his mouth. Holloway contends that the officers' conduct was "outrageous, shocking to the conscience, an impermissible compulsion violating his freedom from self-incrimination, and an unreasonable search and seizure." Holloway suggests that the officers should have explored less intrusive means, like the passage of time, to obtain the evidence.

The government responds, arguing that the search was performed in a reasonable manner, taking into consideration the need for the evidence and safety of the officers and Holloway. The government argues that the use of the pepper spray was a superior alternative to the other options: choking, squeezing or waiting for the drugs to pass through Holloway's digestive system.

Legal Standards

Outrageous Governmental Conduct

The concept of outrageous conduct was first recognized by dictum in United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973): "We may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." United States v. Harris, 997 F.2d 812, 815 (10th Cir.1993). Most circuits, including the Tenth, recognize outrageous government conduct as a viable defense. United States v. Mosley, 965 F.2d 906, 909 (10th Cir.1992). In other cases this court has considered but rejected defendants' claims of outrageous governmental conduct. See United States v. Ailsworth 873 F.Supp. 1450, 1461-1462 (D.Kan.1994) (defendants fail to prove that government's conduct was outrageous); United States v. Holveck, 867 F.Supp. 969, 973-975 (D.Kan.1994) (rejecting defendants' claim of outrageous governmental conduct). The burden is with the defendant to prove this defense. United States v. Pedraza, 27 F.3d 1515, 1521 (10th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 347, 130 L.Ed.2d 303 (1994).

Neither the Supreme Court nor the Tenth Circuit have reversed a conviction on this defense with one possible exception. United States v. Diggs, 8 F.3d 1520, 1523 (10th Cir.1993) (citing Jacobson v. United States, 503 U.S. 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992) (reversed conviction when government did not dispute inducing the defendant and failed to adduce evidence supporting the jury's verdict that the defendant was predisposed)); see United States v. Harris, 997 F.2d at 816 (only two circuit court decisions and a handful of district court decisions have set aside convictions or dismissed charges because of outrageous government conduct). The outrageous government conduct defense "is an extraordinary defense reserved for only the most egregious circumstances." United States v. Mosley, 965 F.2d at 910; see United States v. Clonts, 966 F.2d 1366, 1369 (10th Cir.1992) (the defense "has been severely limited").

To be so outrageous as to bar a prosecution, the government's conduct must offend "that `fundamental fairness, shocking to the universal sense of justice,' mandated by the Due Process Clause of the Fifth Amendment." Russell, 411 U.S. at 432, 93 S.Ct. at 1643. As opposed to the defense of entrapment that looks at the defendant's state of mind, the defense of outrageous conduct focuses on the government's actions with respect to the charged offense. Diggs, 8 F.3d at 1525. This defense is resolved only after an inquiry into the totality of the circumstances of the particular case. Mosley, 965 F.2d at 910.

Excessive Force

In Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989), the Supreme Court held that "all claims that law enforcement officers have used excessive force-deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard, rather than under a `substantive due process' approach."<sup>2</sup>See Austin v. Hamilton, 945 F.2d 1155, 1158 (10th Cir.1991) ("As a general matter, claims based on the use of excessive force during arrest are now governed by the objective reasonableness standard of the fourth amendment."); Swanson v. Fields, 814 F.Supp. 1007, 1016 (D.Kan.), aff'd, 13 F.3d 407 (10th Cir.1993). "Determining whether the force used to effect a particular seizure is `reasonable' under the Fourth Amendment requires a careful balancing of `"`the nature and quality of the intrusion on the individual's Fourth Amendment interests'"' against the countervailing governmental interests at stake." Graham, 490 U.S. at 396, 109 S.Ct. at 1872 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1968) (quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983)).

"Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham, 490 U.S. at 396, 109 S.Ct. at 1872. A police officer may even use deadly force in those situations where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others. Tennessee v. Garner, 471 U.S. at 11, 105 S.Ct. at 1701.

Because "the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," Bell v. Wolfish, 441 U.S. 520, 559 99 S.Ct. 1861, 1885, 60 L.Ed.2d 447 (1979), however, its proper application requires

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