F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 7 2000 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 99-3198 v. (District of Kansas) (D.C. No. 98-CR-20071-GTV) DOSSIE LEE TAYLOR,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
I. INTRODUCTION
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Dossie Lee Taylor pleaded guilty to a single charge of conspiracy to
possess with intent distribute cocaine base (“crack”) and phencyclidine (“PCP”)
in violation of 21 U.S.C. § 846, preserving his right to appeal the district court’s
denial of his motion to suppress. During a roadside search of a car occupied by
two of Taylor’s co-conspirators, Johnny Crawford and Antonette Huckaby, an
officer of the Oklahoma Highway Patrol found large quantities of crack and PCP.
After the discovery of the drugs, Crawford and Huckaby agreed to cooperate with
agents of the DEA, including making two recorded telephone calls to Taylor to set
up a controlled delivery. When Taylor was eventually indicted on conspiracy
charges, he filed a motion to suppress the drugs and tape-recorded conversations
on the ground that they had been obtained through outrageous governmental
conduct in violation of the Fifth Amendment. The district court denied the
suppression motion, concluding Taylor had failed to demonstrate that the actions
of the law enforcement officers or prosecutors were outrageous or conscience
shocking. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and
affirms the district court’s denial of Taylor’s suppression motion.
II. BACKGROUND
On October 11, 1998, Oklahoma Highway Patrol Officer James Siler
stopped a vehicle for the infraction of following too close. The car was owned by
Huckaby but Crawford was driving. Siler asked Crawford if he could search the
-2- car; Crawford declined, stating the car belonged to Huckaby. After Huckaby gave
her consent to a search, Siler found approximately 450 grams of crack and 1900
grams of PCP in the trunk of the car. Crawford and Huckaby thereafter agreed to
cooperate with law enforcement officials and stated that they were transporting
the drugs from Arizona to Kansas where they would meet Taylor and other co-
conspirators. Crawford then placed two tape-recorded telephone calls to Taylor
in Kansas City, arranging a place to deliver the drugs. After the delivery took
place, Taylor was arrested along with Eric Lewis and Kenya Simpson.
Taylor, Lewis, Simpson, Crawford, and Huckaby were all eventually
indicted on conspiracy-to-possess-with-intent-to-distribute charges. In response
to the indictment, Crawford and Huckaby filed motions to suppress evidence
flowing from the search of Huckaby’s vehicle. In particular, they argued that
Huckaby’s consent to the search was tainted because Siler had not returned
Huckaby’s license to her before seeking consent to search the vehicle. Taylor,
Lewis, and Simpson all filed motions joining Crawford and Huckaby’s motions to
suppress. In response to the motions to dismiss, the United States Attorney (1)
moved to dismiss the indictment as to Crawford and Huckaby and (2) filed
supplemental memoranda noting that Taylor, Lewis, and Simpson lacked standing
to challenge the search of the vehicle driven by Crawford and owned by Huckaby.
-3- The district court granted the government’s motion to dismiss the indictment as to
Crawford and Huckaby.
In response to the dismissal of the indictment as to Crawford and Huckaby,
Taylor filed a new motion to suppress. In this new motion, Taylor recognized that
he did not have standing to challenge the search of the vehicle that led to the
discovery of the drugs. He asserted, however, that the fruits of that search,
particularly the drugs and tape-recorded telephone conversations, should be
suppressed under the Fifth Amendment. Although Taylor’s suppression motion
before the district court was less than clear, it appears to assert the following two
bases for suppression: (1) the sole reason Siler stopped the car was because
Crawford and Huckaby were African-American; (2) allowing the admission of the
fruits of the search of Crawford and Huckaby would encourage federal agents to
purposely conduct an unconstitutional search and seizure of one individual in
order to obtain evidence against third parties, those third parties being the real
targets of the government’s investigation.
After holding a hearing on Taylor’s motion, the district court denied the
motion to suppress. In so doing, the district court noted that the record was
completely devoid of any evidence suggesting that the search of Huckaby’s car,
although apparently violative of the Fourth Amendment, was a ruse to acquire
evidence against Taylor or that it was based upon some other impermissible
-4- motive. The district court further noted that to establish a Fifth Amendment
violation, Taylor had to show that the actions of the officers were so outrageous
and conscience shocking as to offend fundamental canons of decency and
fairness, see Hampton v. United States, 425 U.S. 484, 488-90 (1976), and that he
had utterly failed to make the requisite showing.
III. ANALYSIS
This court reviews a claim of outrageous governmental conduct de novo.
United States v. Sneed, 34 F.3d 1570, 1576 (10th Cir. 1994). The relevant inquiry
on appeal is whether, considering the totality of the circumstances “the
government’s conduct is so shocking, outrageous and intolerable that it offends
‘the universal sense of justice.’” United States v. Lacey, 86 F. 3d 956, 964 (10th
Cir. 1996) (quotation omitted). The doctrine of outrageous governmental conduct
“is an extraordinary [one] reserved for only the most egregious circumstances,”
and “is not to be invoked each time the government acts deceptively or
participates in a crime it is investigating.” United States v. Mosley, 965 F.2d 906,
910 (10th Cir. 1992).
On appeal, Taylor simply asserts, without pointing to any evidence in the
record, that Siler stopped Crawford and Huckaby because they were African-
Americans. Proceeding down this path, Taylor asserts that such conduct is so
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 7 2000 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 99-3198 v. (District of Kansas) (D.C. No. 98-CR-20071-GTV) DOSSIE LEE TAYLOR,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
I. INTRODUCTION
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Dossie Lee Taylor pleaded guilty to a single charge of conspiracy to
possess with intent distribute cocaine base (“crack”) and phencyclidine (“PCP”)
in violation of 21 U.S.C. § 846, preserving his right to appeal the district court’s
denial of his motion to suppress. During a roadside search of a car occupied by
two of Taylor’s co-conspirators, Johnny Crawford and Antonette Huckaby, an
officer of the Oklahoma Highway Patrol found large quantities of crack and PCP.
After the discovery of the drugs, Crawford and Huckaby agreed to cooperate with
agents of the DEA, including making two recorded telephone calls to Taylor to set
up a controlled delivery. When Taylor was eventually indicted on conspiracy
charges, he filed a motion to suppress the drugs and tape-recorded conversations
on the ground that they had been obtained through outrageous governmental
conduct in violation of the Fifth Amendment. The district court denied the
suppression motion, concluding Taylor had failed to demonstrate that the actions
of the law enforcement officers or prosecutors were outrageous or conscience
shocking. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and
affirms the district court’s denial of Taylor’s suppression motion.
II. BACKGROUND
On October 11, 1998, Oklahoma Highway Patrol Officer James Siler
stopped a vehicle for the infraction of following too close. The car was owned by
Huckaby but Crawford was driving. Siler asked Crawford if he could search the
-2- car; Crawford declined, stating the car belonged to Huckaby. After Huckaby gave
her consent to a search, Siler found approximately 450 grams of crack and 1900
grams of PCP in the trunk of the car. Crawford and Huckaby thereafter agreed to
cooperate with law enforcement officials and stated that they were transporting
the drugs from Arizona to Kansas where they would meet Taylor and other co-
conspirators. Crawford then placed two tape-recorded telephone calls to Taylor
in Kansas City, arranging a place to deliver the drugs. After the delivery took
place, Taylor was arrested along with Eric Lewis and Kenya Simpson.
Taylor, Lewis, Simpson, Crawford, and Huckaby were all eventually
indicted on conspiracy-to-possess-with-intent-to-distribute charges. In response
to the indictment, Crawford and Huckaby filed motions to suppress evidence
flowing from the search of Huckaby’s vehicle. In particular, they argued that
Huckaby’s consent to the search was tainted because Siler had not returned
Huckaby’s license to her before seeking consent to search the vehicle. Taylor,
Lewis, and Simpson all filed motions joining Crawford and Huckaby’s motions to
suppress. In response to the motions to dismiss, the United States Attorney (1)
moved to dismiss the indictment as to Crawford and Huckaby and (2) filed
supplemental memoranda noting that Taylor, Lewis, and Simpson lacked standing
to challenge the search of the vehicle driven by Crawford and owned by Huckaby.
-3- The district court granted the government’s motion to dismiss the indictment as to
Crawford and Huckaby.
In response to the dismissal of the indictment as to Crawford and Huckaby,
Taylor filed a new motion to suppress. In this new motion, Taylor recognized that
he did not have standing to challenge the search of the vehicle that led to the
discovery of the drugs. He asserted, however, that the fruits of that search,
particularly the drugs and tape-recorded telephone conversations, should be
suppressed under the Fifth Amendment. Although Taylor’s suppression motion
before the district court was less than clear, it appears to assert the following two
bases for suppression: (1) the sole reason Siler stopped the car was because
Crawford and Huckaby were African-American; (2) allowing the admission of the
fruits of the search of Crawford and Huckaby would encourage federal agents to
purposely conduct an unconstitutional search and seizure of one individual in
order to obtain evidence against third parties, those third parties being the real
targets of the government’s investigation.
After holding a hearing on Taylor’s motion, the district court denied the
motion to suppress. In so doing, the district court noted that the record was
completely devoid of any evidence suggesting that the search of Huckaby’s car,
although apparently violative of the Fourth Amendment, was a ruse to acquire
evidence against Taylor or that it was based upon some other impermissible
-4- motive. The district court further noted that to establish a Fifth Amendment
violation, Taylor had to show that the actions of the officers were so outrageous
and conscience shocking as to offend fundamental canons of decency and
fairness, see Hampton v. United States, 425 U.S. 484, 488-90 (1976), and that he
had utterly failed to make the requisite showing.
III. ANALYSIS
This court reviews a claim of outrageous governmental conduct de novo.
United States v. Sneed, 34 F.3d 1570, 1576 (10th Cir. 1994). The relevant inquiry
on appeal is whether, considering the totality of the circumstances “the
government’s conduct is so shocking, outrageous and intolerable that it offends
‘the universal sense of justice.’” United States v. Lacey, 86 F. 3d 956, 964 (10th
Cir. 1996) (quotation omitted). The doctrine of outrageous governmental conduct
“is an extraordinary [one] reserved for only the most egregious circumstances,”
and “is not to be invoked each time the government acts deceptively or
participates in a crime it is investigating.” United States v. Mosley, 965 F.2d 906,
910 (10th Cir. 1992).
On appeal, Taylor simply asserts, without pointing to any evidence in the
record, that Siler stopped Crawford and Huckaby because they were African-
Americans. Proceeding down this path, Taylor asserts that such conduct is so
-5- shocking and deplorable that this court should prohibit the government from using
the evidence obtained from Crawford and Huckaby against any of the defendants
in this case. The most basic problem with Taylor’s argument is that is based
purely on supposition and is utterly devoid of support in the record. In fact the
only inference supported by the record is that Siler stopped the vehicle because
Crawford had committed a traffic violation. Taylor’s baseless speculation about
Siler’s true motives is clearly not sufficient to carry his burden of proving
outrageous governmental conduct. See United States v. Diaz, 189 F.3d 1239,
1245 (10th Cir. 1999) (“Defendants have the burden of proving outrageous
governmental conduct . . . .”).
Furthermore, as noted by the district court, “[t]here is no evidence that the
government intentionally conducted an unconstitutional search of Crawford and
Huckaby to obtain evidence against defendants Lewis, Simpson, or Taylor.” Dist.
Ct. Order at 4. For that reason, this court’s decision in United States v. Lin Lyn
Trading, Ltd., 149 F.3d 1112 (10th Cir. 1998), where the government knowingly
used an illegally seized notebook containing attorney-client privileged material as
the entire basis of a criminal investigation, is simply not applicable to this case.
Accordingly, Taylor is left with nothing more as a basis for suppression than the
fact that Siler conducted an illegal search of a vehicle in which Taylor was not
present and had no possessory interest whatsoever. This Fourth Amendment
-6- violation, a violation which Taylor acknowledges he has no standing to challenge,
is plainly insufficient, standing alone as it does in this case, to support a claim of
outrageous governmental conduct. See Mosley, 965 F.2d at 910 (noting that
doctrine of outrageous governmental conduct is an “extraordinary” remedy
applicable in “only the most egregious circumstances”).
IV. CONCLUSION
For those reasons set out above, the district court’s denial of Taylor’s
motion to suppress is hereby AFFIRMED.
ENTERED FOR THE COURT:
Michael R. Murphy Circuit Judge
-7-