Petition for Writ of Certiorari — Pipes v. United States

Supreme Court, U.S.

\ FILED

96 490 SEP 25 1996,

N

©: —yerine-OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

+

DANIEL E. PIPES,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

Petition For Writ Of Certiorari

From The United States Court

Of Appeals For The Sixth Circuit

SI

PETITION FOR WRIT OF CERTIORARI

SI

Douctas A. TRANt, #6871

Counsel of Record

900 S. Gay Street

Suite 1502

Knoxville, TN 37902

(423) 525-7980

Attorney for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

I.

I.

QUESTIONS PRESENTED FOR REVIEW

WHETHER THE TRIAL COURT ERRED IN FAILING

TO SUPPRESS OR DISMISS THE INDICTMENT

BECAUSE OF DUE PROCESS VIOLATIONS

AMOUNTING TO OUTRAGEOUS CONDUCT BY

GOVERNMENT AGENTS.

WHETHER THE TRIAL COURT ERRED IN FAILING

TO DISMISS THE INDICTMENT BECAUSE OF VIO-

LATIONS OF THE TENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION.

ii

LIST OF ALL PARTIES TO THE PROCEEDING

The following is a list of all parties to the proceedings

in the United States Court of Appeals for the Sixth Cir-

cuit, whose judgment is sought to be reviewed in this

case:

United States of America

Daniel E. Pipes

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW........... i

LIST OF ALL PARTIES TO THE PROCEEDING .... ii

UIDs o swnw'sd bade ss cnedeusvacvere iii

RESEEE SPU PURSE RURIER EME 6555600 bv evn a concecescses iv

EE MEU Sind bi a. Gdn 6 bn.cds00dsopevedcece 1

SUPREME COURT JURISDICTION................. 1

CONSTITUTIONAL PROVISION CONSTRUED..... l

Parcsememun GP TRIE CASE... 6. cece cseccccccees 2

Paraememnws GOO ERE BACTS. 0.0... ccccccasccccces 3

SUMMARY OF ARGUMENT.....................5. 4

ET SEUSS GNSS vb obs 6 b544 0504 cava Wedes s Lek 6

ie a els Sin ce kok gas CURL EK AG ok 15

aa

iv

bee ee

TABLE OF AUTHORITIES

Cases CIrep:

Hampton v. United States, 425 U.S. 484 (1976)....... 8,9

Michigan v. Meese, 666 F.Supp 974 (E.D.Mich. 1987) .... 14

National League of Cities v. Usery, 426 U.S. 833, 96

S.Ct. 2465, 49 L.Ed 2d 245 (1976) ................. 13

Olmstead v. United States, 277 U.S. 438, 485 (1928) .... 12

State v. Crawford, 783 S.W.2d 573 (Tenn. Crim.

Age. UGB bss icin ccei edie i date ctiekadee ss vee 13, 14

State v. Kummer, 481 N.W.2d 437 (N.D. 1992)......... )

United States v. Barger, 921 F.2d 359 (6th Cir. 1991)

s eeade oe bee Viens ckeke thet ceeoeaeecdee 5, 8, 10

United States v. Brown, 635 F.2d 1207, 1212 (6th Cir.

|. PR ae rte ap A neni ag te a ee ey at OPEN 8

United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85

Cie: ee CAD cnn cchaninbancind¢hetdabdae cocker’ 13

United States v. Huff, 959 F.2d 731 (8th Cir. 1992) .... 10

United States v. Kummer, 15 F.3d 1455 (8th Cir.

So he hs bE ha kp eROhs Rade tee caer 9, 10

United States v. Norton, 700 F.2d 1072, 1075 (6th

Cir.), cert. denied, 461 U.S. 910 (1983)............... 8

United States v. Toscanino, 500 F.2d 267, 274 (2d Cir.

SP aX 56 ERA OCRed E EER AA es oS ah he bea RAs 9

Statutes CITED:

Tennessee Code Annotated § 53-11-451(d)(4)....4, 6, 15

1 UEC 6 ES nhs isis 14

TABLE OF AUTHORITIES —- Continued

Page

AuTHorities CIrep:

The Founders’ Constitution 406 (P. Kurland & R.

SCE GE; REA 6 6.5 Kone xh ake ER EEa ioe 14

= a Re eee nnn I See tte A

OPINIONS BELOW

The non-published Opinion of the United States

Court of Appeals in United States of America v. Daniel E.

Pipes, Number 95-6199 is reproduced in the Appendix at

la.

SUPREME COURT JURISDICTION

The Judgment of the United States Court of Appeals

for the Sixth Circuit was entered on July 2, 1996. This

Petition for Writ of Certiorari is filed pursuant to 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS CONSTRUED

Fifth Amendment to the United States Constitution:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment by a grand jury, except in cases arising in the

land or naval forces, or in the militia, when in actual

service in time of war or public danger; nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled ‘n any

criminal case to be a witness against himself; nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

Tenth Amendment to the United States Constitution:

The powers not delegated to the United States by the

Constitution, not prohibited by it to the states, are

reserved to the states respectively, or to the people.

¢

STATEMENT OF THE CASE

The Defendant was charged along with co-defendant

Martha M. Pratt on December 2, 1993 with attempting to

possess to distribute marijuana. (R. 1, Complaint). On

December 7, 1993, he was indicated for that offense as

well as conspiracy with the same co-defendant. (R. 10,

Indictment). On April 25, 1994, the Defendant filed his

motion to suppress or dismiss because of due process

violations. (R.109, Motion). On June 6, 1994, Magistrate

Judge Thomas W. Phillips filed a report and recommen-

dation to deny the motion to suppress or dismiss because

of due process violations. (R. 125, Report and Recommen-

dation). On September 9, 1994, the Defendant filed a

supplemental memorandum of law in support of his

motion to suppress or dismiss because of due process

violations. (R. 137, Supplementary Memorandum of

Law). On September 20, 1994, United States District Court

Judge James H. Jarvis denied the Defendant’s motion to

suppress or dismiss because of due process violations. (R.

142, Order). On January 10, 1995, the Defendant changed

his plea pursuant to a plea agreement reserving the ques-

tion for appeal as to the trial court’s overruling his

motion to suppress or dismiss for due process violations.

(R. 146, Ctrm. Minutes). On August 25, 1995, Judgment

was pronounced in this case, and the Defendant was

permitted to appeal to the United States Court of Appeals

for the Sixth Circuit the trial court’s overruling of his

motion to suppress and dismiss for due process viola-

tions. (R. 161, Judgment). On August 25, 1995, the Defen-

dant filed his Notice of Appeal. (R. 162, Notice of

Appeal). On August 28, 1995, the trial court stayed execu-

tion of Judgment pending decision by the United States

Court of Appeals for the Sixth Circuit. (R. 163, Order

Staying Execution of Judgment). The United States Court

of Appeals for the Sixth Circuit filed its Opinion in this

case affirming the District Court’s decision on July 2,

1996.

STATEMENT OF FACTS

During the summer and fall of 1993, State law

enforcement officers, with the assistance of a paid opera-

tive, cultivated a relationship with Mr. Daniel E. Pipes in

an attempt to entice him into purchasing illegal drugs.

Finally, on December 1, 1993, these state agents were

successful in setting up a “reverse sting” in which Mr.

Pipes would be their target. In this reverse sting they

attempted to sell a quantity of marijuana in Roane

County, Tennessee.

The agents brought marijuana from Davidson County

to Roane County to use in their reverse sting. The

Nashville Metro Police Department had previously seized

that marijuana. The Tennessee Bureau of Investigation

contacted the Nashville Metro Police Department on

November 30, 1993, and received verbal permission to

use the marijuana. This permission was received from

se ene |

Drug Custodian Officer Tim Allen. During the early after-

noon of November 30, 1993, Agent Ronald Gaskins, of the

Tennessee Bureau of Investigation, signed for the mari-

juana at the Nashville Metro Police Department. The

marijuana was then taken from Davidson County to

Roane County by state agents.

¢

SUMMARY OF ARGUMENT

I. WHETHER THE TRIAL COURT ERRED IN FAIL-

ING TO SUPPRESS OR DISMISS THE INDICT-

MENT BECAUSE OF DUE PROCESS VIOLATIONS

AMOUNTING TO OUTRAGEOUS CONDUCT BY

GOVERNMENT AGENTS.

Tennessee Code Annotated § 53-11-451(d)(4) pro-

vides that:

(4) Regardless of any other method of disposi-

tion of property contained in this chapter, use of

the property taken or detained, with permission

of the court and under such terms and condi-

tions as are approved by the court, for use in the

drug enforcement program of the county in which |

the goods are seized, and/or with the approval )

of the court having jurisdiction over the prop-

erty, sell the property and utilize the proceeds

for the drug enforcement program of the county

in which the property was seized. [emphasis

added].

For over two decades this has been the only legal

way for officers in Tennessee to use seized controlled

substances. The Attorney General of Tennessee issued a

formal opinion on February 22, 1990, which stated that:

Subsection (d)(4) provides a method whereby a seiz-

ing agency may use property taken or detained if the

agency receives judicial authorization. The property can

only be used by the seizing agency if the use has been autho-

rized by the local circuit or criminal court and the property is

to be used in the drug enforcement program of the county in

which the goods are seized. Attorney General’s Opinion No.

90-19. [emphasis added - copy attached].

It is the position of the Appellant that such

a flagrant violation of state law is fundamentally

unfair under the Due Process Clause of the Fifth

Amendment. Using the test set out by the Sixth

Circuit in United States v. Barger, 921 F.2d 359

(6th Cir. 1991) it is clear that the outrageous

conduct of the government ageits is clearly

demonstrated when examining the four factors

set out in Barger.

Il. WHETHER THE TRIAL COURT ERRED IN FAIL-

ING TO DISMISS THE INDICTMENT BECAUSE

OF VIOLATIONS OF THE TENTH AMENDMENT

TO THE UNITED STATES CONSTITUTION.

The Tenth Amendment to the United States Constitu-

tion clearly reserves to the states and the people powers

not delegated to the United States. In this case, Congress

has not implemented any statute allowing the use of a

confiscated controlled substance in a reverse sting such as

in the instant case. Since the State of Tennessee has regu-

lated the use, the United States should under our princi-

ples of federalism not interfere with the regulation by the

state of the use of controlled substances in reverse sting

cases. The United States, should respect, the state statute

and enforce its violation by suppressing the evidence in

this case or dismissing the Indictment.

S

ARGUMENT

Standard of Review

The facts in this case are undisputed. The govern-

ment admits that the officers violated the Tennessee stat-

ute. The standard of review, therefore, should be de novo

because a question of law is presented.

I. WHETHER THE TRIAL COURT ERRED IN FAIL-

ING TO SUPPRESS OR DISMISS THE INDICT-

MENT BECAUSE OF DUE PROCESS VIOLATIONS

AMOUNTING TO OUTRAGEOUS CONDUCT BY

GOVERNMENT AGENTS.

Those who are given the responsibility of enforcing

our laws are not above the law. They are granted specific

exemptions which allow them to carry out their law

enforcement duties. One of those exemptions is contained

in T.C.A. § 53-11-451(d)(4). Subsection (d)(4) provides:

(4) Regardless of any other method of disposi-

tion of property contained in this chapter, use of

the property taken or detained, with permission

of the court and under such terms and condi-

tions as are approved by the court, for use in the

drug enforcement program of the county in which

the goods are seized, and/or with the approval

of the court having jurisdiction over the prop-

erty, sell the property and utilize the proceeds

for the drug enforcement program of the county

in which the property was seized. [emphasis

added].

For over two decades this has been the only legal

way for officers in Tennessee to use seized controlled

substances. The Attorney General of Tennessee issued a

formal opinion on February 22, 1990, which stated that:

Subsection (d)(4) provides a method whereby a

seizing agency may use property taken or

detained if the agency receives judicial authori-

zation. The property can only be used by the seizing

agency if the use has been authorized by the local

circuit or criminal court and the property is to be

used in the drug enforcement program of the county

in which the goods are seized.

Attorney General’s Opinion No. 90-19. [emphasis added -

copy attached].

Based on a fair reading of the government's respon-

sive pleadings in this case, three separate violations of

Tennessee state law have occurred in the present case:

a. the marijuana used in this case was not

seized in Roane County;

b. it was not used by the agency that actually

seized it; and

c. despite a recent adverse ruling on precisely

these same grounds, the officers chose not to

obtain judicial authorization for this otherwise

illegal use of contraband.

As a result, the officers illegally possessed this marijuana

and could themselves be prosecuted under the laws of

the United States or Tennessee for illegal possession with

intent to distribute.

“Fundamental fairness is a core component of the

Due Process Clause of the Fifth Amendment.” United

States v. Barger, 931 F.2d 359, 363 (6th Cir. 1991). and

United States v. Brown, 635 F.2d 1207, 1212 (6th Cir. 1980).

A plurality of the United States Supreme Court in Hamp-

ton v. United States, 425 U.S. 484 (1976), indicated that

some police misconduct might be so egregious as to

violate the accused’s due process rights. Justice Powell

noted that if police over-involvement reached a demon-

strable level of outrageousness, it would be a bar to

conviction. 425 U.S. at 495 n. 7.

Before relief can be granted, the challenged govern-

ment conduct must violate fundamental fairness and be

shocking to the universal sense of justice. United States v.

Barger, 931 F.2d at 363. The Sixth Circuit has been reluc-

tant to impose sanctions because “to do so would greatly

intrude into the law enforcement functions of the execu-

tive branches of federal and state government.” United

States v. Barger, 931 F.2d at 363 (quoting from United States

v. Norton, 700 F.2d 1072, 1075 (6th Cir.), cert. denied, 461

U.S. 910 (1983)).

The very concerns which have caused the Sixth Cir-

cuit to hesitate in the past, however now counsel in favor

of imposing sanctions in this case. Failure to act would

put this court in the position of intruding on the legiti-

mate functions of the Tennessee Legislature and the Ten-

nessee judicial system. State Law enforcement officers

will be allowed to ignore the law as passed by the Legis-

lature and bypass the oversight mandated by the statute.

Unless checked, state agents can proceed with impunity

to violate state law and then avoid the consequences of

their official lawlessness by prevailing upon federal state

agents to hastily adopt what is in reality a State case.

“Society is the ultimate loser when, in order to convict

the guilty, it uses methods that lead to decreased respect

for the law.” United States v. Toscanino, 500 F.2d 267, 274

(2d Cir. 1974).

In State v. Kummer, 481 N.W.2d 437 (N.D. 1992), the

Supreme Court of North Dakota reversed a conviction

and remanded for a judgment of acquittal because state

agents violated a contraband statute similar to Tennes-

see’s.

After Mr. Kummer was acquitted in state court the

local U.S. Attorney filed a federal indictment based on

the same activities previously dismissed in state court. In

United States v. Kummer, 15 F.3d 1455 (8th Cir. 1994), the

Court affirmed Mr. Kummer’s federal conviction by a

split vote, 2-1. The panel held that under the federal

subjective theory of entrapment, Mr. Kummer could be

convicted of the federal offense in spite of his prior

acquittal in state court.

The majority in United States v. Kummer did not speci-

fically address the illegal actions of the state agents in

acquiring the cocaine for their reverse sting. The majority

acknowledged that a due process/outrageous conduct

argument was not foreclosed by Hampton v. United States,

supra but without mentioning the illegal activity of the

offices, concluded that Kummer had failed to show a due

process violation.!

' The court of course did not address the present situation

in which state law was flouted not once but twice within three

months within the same small county.

10

The dissenting judge in United States v. Kummer,

found outrageous conduct contrary to the fifth amend-

ment. Judge Arnold stated:

With respect, I disagree that the relevant facts

here are not substantially different from those

present in United States v. Huff, 959 F.2d 731 (8th

Cir. 1992) and other cases in which we have

upheld so-called reverse stings. The distinguish-

ing fact is that in none of those cases did it

appear that the police operation was put in

motion by acts that violated state law.

The court today evidently holds that it is not

outrageous for sworn offices of the state to

break the law. For me, official illegality must

almost always be outrageous, for if the government

will not obey the law, how can it rightfully expect its

citizens to feel an obligation to do so?

15 F.3d at 1462-63. (emphasis added).

Whether a due process violation or “outrageous con-

duct” exists must always be decided on a case by case

basis. Four factors to be weighed in determining if gov-

ernmental conduct is “outrageous” are:

(1) the need for the police conduct as shown

by the type of criminal activity involved;

(2) the impetus for the scheme or whether the

criminal enterprise preexisted the police

involvement;

(3) the control the government exerted over

the criminal enterprise; and

(4) the impact of police activity on the commis-

sion of the crime.

Barger, 931 F.2d at 363.

a,

11

The first factor weighs heavily in favor of finding a

due process violation because there was no legitimate

reason for the officers to ignore the statute and the courts.

This is especially true in light of the fact that the Criminal

Court of Roane County has dismissed a similar case on

similar grounds just three months before.

Second, whether any criminal enterprise existed

prior to December 1, 1993, is an open question. When the

government begins and ends the activity with a reverse

sting it may be impossible to know whether the criminal

enterprise preexisted the reverse sting. Clearly the offi-

cers suspected that criminal activity preexisted but

December 1, 1993, is the first time they had direct proof

of criminal activity.

Third, the officers exerted considerable control over

the criminal enterprise. They dictated when the

attempted delivery would occur. They decided the quan-

tity of drugs that would be involved. They helped estab-

lish the price and the terms under which the transaction

would be consummated.

The fourth and final factor to be considered is the

impact of the police activity on the commission of the

crime. The illegal possession of controlled substances is

not a prerequisite to effective law enforcement. In the

present case, it appears uncontroverted that if the agents

had not supplied the contraband there would have been

no crime.

When considered together, the factors weigh heavily

in favor of finding a due process violation or “outrageous

conduct” in the actions of the agents in this case. To allow

agents to repeatedly violate state law and then to also

12

allow them to escape the consequences of their transgres-

sion by retreating into federal court is shocking to a

universal sense of justice and therefore violative of due

process.

The now famous dissent of Justice Brandeis, in

Olmstead v. United States, 277 U.S. 438, 485 (1928), elo-

_ quently warns us of the subtle dangers of official lawless-

ness:

In a government of law, existence of the govern-

ment will be imperiled if it fails to observe the

_law scrupulously. Our Government is the

potent, the omnipresent teacher. For good for

for ill, it teaches the whole people by its exam-

ple. Crime is contagious. If the Government

becomes a lawbreaker, it breeds contempt for

the law; it invites every man to become a law

unto himself; it invites anarchy. To declare that

in the administration of the criminal law the end

justifies the means — to declare that the Govern-

ment may commit crimes in order to secure the

conviction of a private criminal —- would bring

terrible retribution. Against this pernicious doc-

trine this court should resolutely set its face.

This case is not a situation where officers have made

an insignificant mistake. Instead, state agents acted ille-

gally in the same county where the identical conduct had

been specifically prohibited just three months before.

Mr. Pipes respectfully requests that this Court dis-

miss the indictment or suppress the tainted evidence

because of these due process violations. If an evidentiary

hearing is necessary, the defense requests an initial hear-

ing to determine whether all of the officers involved in

this prosecution be granted use immunity so they can

13

testify without fear of prosecution for illegal possession

of contraband.

Il. WHETHER THE TRIAL COURT ERRED IN FAIL-

ING TO DISMISS THE INDICTMENT BECAUSE

OF VIOLATIONS OF THE TENTH AMENDMENT

TO THE UNITED STATES CONSTITUTION.

The Tenth Amendment to the United States Constitution

states:

The powers not delegated to the United States

by the Constitution, not prohibited to the states

are reserved to the states respectively or to the

people.

The United States Supreme Court in a line of cases

beginning with National League of Cities v. Usery, 426 U.S.

833, 96 S.Ct. 2465,49 L.Ed.2d 245 (1976) has held that the

Tenth Amendment does not prohibit congressional regu-

lation of commerce by making it an unconstitutional

intrusion upon the sovereignty of state and local govern-

ments. The Supreme Court in United States v. Darby, 312

U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941) held that the

Tenth Amendment does not deprive “the national gov-

ernment of authority to resort to all means for the exer-

cise of a granted power which are appropriate and

plainly adapted to the permitted end.” at 124, 462.

The Tennessee Court of Criminal Appeals in State v.

Crawford, 783 S.W. 2d 573 (Tenn. Crim. App. 1989) held

that the statutory exclusionary rule of the Omnibus

Crime Control Act of 1968 was not an intrusion prohib-

ited by the Tenth Amendment. The Court, however, went

on to hold:

14

In our judgment, the Act provides only the min-

imum standards governing the interception of

oral and wire communications; the states are not

precluded from enacting legislation which is

more restrictive. In this respect, there remains at

least a modicum of power under the Tenth

Amendment, “reserved to the states.” Crawford

at 576.

The United States District Court for the Eastern Dis-

trict of Michigan in Michigan v. Meese, 666 F.Supp. 974

(E.D.Mich. 1987), aff'd on other grounds, 853 F.2d 395

(6th Cir. 1988) held similarly that the Tenth Amendment

did not prohibit enforcement of the Omnibus Crime Con-

trol Act of 1968. The Court in Meese held that congress

can enact the statute that is necessary to implement its

larger purposes. at 979. Meese went on to quote President

James Monroe on the applicability of the Tenth Amend-

ment as it relates to criminal laws:

The administration of justice, and the whole

criminal code, except in cases of breaches of the

laws of the United States made under and in

conformity with the powers vested in Con-

gress .. . are regulated by state laws. The Foun-

ders’ Constitution 406 (P. Kurland & R. Lerner ed.

1987).

Clearly in this case the Congress has not imple-

mented any statute allowing the use of a confiscated

controlled substance in a reverse sting such as in the

instant case. 21 U.S.C. 881(f)(1) only provides for the

destruction of Schedule I controlled substances once they

are forfeited. Under the Tenth Amendment, therefore,

Congress has left any such regulation to the states. The

State of Tennessee has enacted such a regulation in T.C.A.

15

§ 53-11-451(d)(4). Applying the Tenth Amendment to that

statute, therefore, binds the United States to observe and

follow that statute. In this case, the statute clearly was not

followed and was violated by law enforcement agents.

The only way to deter future violations of the statute and,

consequently, the Tenth Amendment to the United States

Constitution is to suppress said evidence or dismiss this

indictment.

CONCLUSION

For all the reasons stated above, the Appellant

respectfully requests this Court to remand the case to the

trial court with instructions to dismiss this indictment or,

in the alternative, to suppress the evidence.

Douctas A. TRANT, #6871

Attorney for Petitioner

900 S. Gay Street

Suite 1502

Knoxville, TN 37902

(423) 525-7980

APPENDIX

la

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

ELECTRONIC CITATION: 1996 FED App. 0193P (6th Cir.)

File Name: 96a0193p.06

No. 95-6199

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Unitrep States oF AMERICA, )

Plaintiff-Appellee, ) On Appear from the

) United States District

Court for the Eastern

)

Daniet E. Pipes, ) District of Tennessee

Defendant-Appellant. )

Vv.

Decided and Filed July 2, 1996

Before KENNEDY and CONTIE, Circuit Judges, and

GRAHAM, District Judge.*

KENNEDY, Circuit Judge. Defendant pled guilty to

conspiracy to possess with intent to distribute marijuana

while reserving his right to appeal the District Court's

denial of his suppression motion. Defendant argues that

his conviction should not stand because Tennessee law

enforcement officers’ violation of a state law requiring

prior judicial approval before seized marijuana may be

* The Honorable James L. Graham, United States District

Judge for the Southern District of Ohio, sitting by designation.

a ee

2a

used in a reverse sting operation violated his due process

rights. For the following reasons, we affirm.

Defendant was arrested in Roane County, Tennessee

on December 1, 1993 while in the process of purchasing

forty-two pounds of marijuana from an undercover spe- |

cial agent with the Tennessee Bureau of Investigation. |

The Federal Bureau of Investigation had joined the inves- |

tigation as of November 30, 1993. Part of the marijuana

used in the reverse sting operation came from the

Nashville Metro Narcotics Department, in Davidson

County, and part came from the Tennessee Bureau of

Investigation. The law enforcement officers had not

received judicial approval before using the marijuana

obtained from Davidson County.

On December 2, 1993, defendant was indicted for

attempting to possess with intent to distribute marijuana

and conspiring to possess with intent to distribute.

Defendant entered into a plea agreement with the United

States under which he would plead guilty to count two of

the indictment, the conspiracy count, while retaining the

right to appeal the denial of his motion to suppress. This

appeal followed.

II

Defendant raises two arguments on appeal. First,

defendant claims that the Tennessee officers’ violation of

TENN. Cope ANN. § 53-11-451(d)(4) (1991), which requires

prior judicial approval before seized contraband may be

3a

used in a reverse sting operation, violates due process.

Second, defendant claims that since Tennessee exercised

its powers under the Tenth Amendment to the United

States Constitution when it required prior judicial

approval for the use of confiscated contraband in reverse

sting operations, the United States cannot violate this

state requirement when prosecuting federal crimes.

A

Defendant first argues that the Tennessee officers’

violation of a Tennessee regulation regarding use of con-

fiscated contraband was so outrageous as to violate due

process. The state law at issue, Tenn. Cope ANn. § 53-11-

451(d)(4) (1991), states:

(d) Property taken or detained under this sec-

tion shall not be subject to replevin, but is

deemed to be in the custody of the director or

the director’s authorized representative, agent

or employee, the commissioner or the commis-

sioner’s authorized representative, agent or

employee, or a sheriff, deputy sheriff, municipal

law enforcement officer, or constable, subject

only to the orders and decrees of the circuit or

criminal court. When property is seized under

parts 3 and 4 of this chapter or title 39, chapter

17, part 4, the seizing authority may:

(4) Regardless of any other method of dis-

position of property contained in this chapter,

use the property taken or detained, with permis-

sion of the court and under such terms and

conditions as are approved by the court, for use

in the drug enforcement program of the county

4a

in which the goods are seized, and/or, with

approval of the court having jurisdiction over

the property, sell the property and utilize the

proceeds for the drug enforcement program of

the county in which the property was seized.

Defendant also cites Tennessee’s Attorney General’s

interpretation of this provision:

Subsection (d)(4) provides a method whereby a

seizing agency may use property taken or

detained if the agency receives judicial authori-

zation. The property can only be used by the

seizing agency if the use has been authorized by

the local circuit or criminal court and the prop-

erty is to be used in the drug enforcement pro-

gram of the county in which the goods are

seized.

Tenn. Op. Atty. Gen. No. 90-19 (Feb. 22, 1990). Here, the

Tennessee officers admit that they did not receive judicial

approval before using confiscated marijuana to engineer

the reverse sting operation that ensnared defendant.

Defendant claims that the officers also violated the stat-

ute because the marijuana used in this case was not

seized in Roane County and was not used by the agency

that actually seized it.

Because defendant does not clearly articulate the the-

ory behind his asserted violation of due process, it is

necessary to consider the possible approaches by which

such a claim could be made. Defendant does not argue

that the officers’ violation of TENN. Cope ANN.

§ 53-11-451(d)(4) (1991) amounted to entrapment. In any

case, that approach has been rejected by the Supreme

Court, which noted that an entrapment defense is based

on a defendant's lack of predisposition, not on officer

5a

misconduct. See, e.g., United States v. Russell, 411 U.S. 423,

433 (1973).

Nor does defendant present an entrapment defense

based on due process notions, under which “the govern-

ment’s involvement in creating his crime, i.e., the means

and degree of inducement, was so great, ‘that a criminal

prosecution for the [crime] violates the fundamental prin-

ciples of due process,’ his predisposition to commit the

crime notwithstanding.” United States v. Tucker, 28 F.3d

1420, 1422 (6th Cir. 1994), cert. denied, 115 S. Ct. 1426

(1995), quoting Russell, 411 U.S. at 430. Indeed, such an

argument is also unavailable to this defendant, for the

officers’ failure to comply with Tenn. Cope ANN.

§ 53-11-451(d)(4)(1991) did not cause defendant to con-

spire to possess with intent to distribute marijuana. The

defendant obviously did not know that the officers were

violating TENN. Cope ANN. § 53-11-451(d)(4)(1991). Thus,

the officers’ failure to comply with the state regulation

had no impact on defendant’s decision to commit the

offense to which he has pled guilty. See United States v.

Caceres, 440 U.S. 741, 752-53 (1979) (rejecting defendant's

claim that evidence should be suppressed because gov-

ernment’s failure to comply with regulations requiring

IRS authorization for eavesdropping violated due pro-

cess, for “[r]jespondent cannot reasonably contend that he

relied on the regulation, or that its breach had any effect

on his conduct.”). Indeed, the Tennessee Court of

Appeals recently rejected an argument that officers’ non-

compliance with Tenn. Cope ANN. § 53-11-451(d)(4) (1991)

required suppression of the evidence. State v. Patton, 898

S.W.2d 732 (Tenn. Crim. App. 1994), appeal denied, (Mar. 6,

1995). In Patton, the Court found no nexus between the

6a

noncompliance and defendant's due process rights to life,

liberty, or property:

Thus, because we can find no significant con-

nection between the failure on the part of the

police to comply with the statute and the

alleged criminal acts on the part of the defen-

dant, a suppression of the evidence would con-

tribute nothing toward the protection of

individual rights.

898 S.W.2d at 735.

Defendant cites cases in which courts consider

whether police officers’ outrageous conduct might pre-

vent a conviction notwithstanding defendant's predis-

position to commit the crime. See, e.g., United States v.

Barger, 931 F.2d 359 (6th Cir. 1991). But defendant does

not claim that the government's allegedly outrageous

conduct caused him to be entrapped despite his predis-

position. Thus, cases like Barger are inapposite.

Defendant appears to be arguing then for a broader

due process right: a right to be free from outrageous

governmental conduct even when such conduct dees not

deprive individuals of a specific liberty interest. Thus

defendant argues that “some police misconduct might be

so egregious as to violate the accused’s due process

rights” without acknowledging that this proposition was

announced in a case considering whether a defendant

was entrapped by alleged police misconduct, not whether

police misconduct per se violates due process. In support

of his implicit argument, defendant encourages this Court

to adopt Judge Arnold’s dissent in an Eighth Circuit case

rejecting a defendant’s claim that noncompliance with a

statute requiring judicial approval for use of marijuana in

7a

a reverse sting operation was so outrageous as to consti-

tute a violation of his due process rights. United States v.

Kummer, 15 F.3d 1455 (8th Cir. 1994). In dissent, Judge

Arnold wrote:

The Court today evidently holds that it is

not outrageous for sworn officers of the state to

break the law. For me, official illegality must

almost always be outrageous, for if the govern-

ment will not obey the law, how can it rightfully

expect its citizens to feel an obligation to do so?

Kummer, 15 F.3d at 1462-63 (Arnold, J., dissenting).

There is some potential case support for defendant's

implicit theory. In United States v. Russell, the Supreme

Court noted:

While we may some day be presented with

a situation in which the conduct of law enforce-

ment agents is so outrageous that due process

principles would absolutely bar the government

from invoking judicial processes to obtain a con-

viction, cf. Rochin v. California, 342 U.S. 165

(1952), the instant case is not of that breed... .

The law enforcement conduct here stops far

short of violating that “fundamental fairness,

shocking to the universal sense of justice,” man-

dated by the Due Process Clause of the Fifth

Amendment.

Russell, 411 U.S. at 431-32. This passage does not appear

to limit its scope to entrapment cases or violations of

specific liberty interests. Moreover, Russell cites Rochin, in

which the Supreme Court struck down a conviction based

on evidence obtained when police officers had a doctor

8a

administer an emetic solution through a tube into defen-

dant’s stomach so that defendant would vomit the evi-

dence he had swallowed during a police raid, for “the

conviction of the petitioner has been obtained by

methods that offend the Due Process Clause.” Rochin v.

California, 342 U.S. 165, 174 (1952):

[T]he proceedings by which this conviction was

obtained do more than offend some fastidious

squeamishness or private sentimentalism about

combatting crime too energetically. This is con-

duct that shocks the conscience. Illegally break-

ing into the privacy of the petitioner, the

struggle to open his mouth and remove what

was there, the forcible extraction of his stom-

ach’s contents — this course of proceeding by

agents of government to obtain evidence is

bound to offend even hardened sensibilities.

They are methods too close to the rack and the

screw to permit of constitutional differentiation.

Rochin, 342 U.S. at 172. Because Russell and Rochin are

written in such broad terms, they could be read to sup-

port a theory of due process that protects individuals

from outrageous police conduct that shocks the con-

science even if that conduct does not deprive individuals

of a life, liberty, or property interest protected under the

due process clause.

Before sanctioning such a novel and wide-ranging

theory of due process, however, it suffices to note that

defendant has not come close to alleging outrageous

police conduct that shocks the conscience. The statute the

Tennessee officers violated is concerned primarily with

accounting for items that are subject to forfeiture. By

requiring law enforcement officers to receive judicial

9a

approval before using forfeited items in a drug enforce-

ment action, the statute seeks to ensure that such items

are used only on official police business rather than for

officers’ personal use. As such, Tenn. Code Ann.

§ 53-11-451(d)(4) (1991) has no relationship to this partic-

ular defendant’s individual rights; it is designed to fur-

ther the interests of all citizens in a lawful police force. In

sum, because the noncompliance at issue in this case

implicates no due process interests of the defendant, and

does not shock the conscience, it cannot bar his convic-

tion.

B

Citing National League of Cities v. Usery, 426 U.S. 833

(1976), defendant also argues that the United States is

bound, under the Tenth Amendment to the United States

Constitution, to respect Tennessee’s law requiring law

enforcement officials to receive judicial approval before

using forfeited marijuana in reverse sting operations.

This argument also fails.

First, Usery was explicitly overruled by Garcia v. San

Antonio Metro. Transit Authority, 469 U.S. 528 (1985). Sec-

ond, defendant has no individual right in requiring law

enforcement officers to comply with Tenn. Cope ANN.

§ 53-11-451(d)(4)(1991). Third, even if the State of Tennes-

see believed that its policy regarding use of seized contra-

band was so important as to merit suppression of

evidence gained by means that violate that policy, contra

State v. Patton, 898 S.W.2d 732 (Tenn. Crim. App. 1994),

appeal denied, (Mar. 6, 1995) (rejecting defendant’s motion

to suppress evidence when officers did not comply with

10a

Tenn. Cope ANN. § 53-11-451(d)(4)), defendant lacks

standing to raise the state’s interests. Warth v. Seldin, 422

U.S. 490, 499 (1975) (noting that a plaintiff “must assert

his own legal rights and interests, and cannot rest his

claim to relief on the legal rights or interests of third

parties”).

Ill

For the reasons stated above, we AFFIRM defen-

dant’s conviction and sentence.

lla

Tenn. Op. Atty. Gen. No. 90-19

Office of the Attorney General

State of Tennessee

Opinion No. 90-19

February 22, 1990

CRIMINAL LAW AND PROCEDURE:

Confiscation /Fortfeiture / Disposition:

T.C.A. Sec.53-11-409(d) authorizes a local circuit or crimi-

nal judge to allow the police who seize controlled sub-

stances to use the property for “reverse sting” operations

or other investigative operations related to the arrest and

prosecution of drug offenders. T.C.A. Sec.39-6-401 et seq.,

Secs.39-17-401 et seq., through 427, Secs.53-11-308, -401 et

seq., -409 through -415.

DRUGS AND NARCOTICS: Confiscation: Tennessee

Drug

Control Act of 1989

T.C.A. Sec.53-11-409(d) authorizes a local circuit or crimi-

nal judge to allow the police who seize controlled sub-

stances to use the property for “reverse sting” operations

or other investigative operations related to the arrest and

prosecution of drug offenders. T.C.A. Sec.39-6-401 et seq.,

Secs.39-17-401 et seq., through 427, Secs.53-11-308, -401 et

seq., -409 through -415.

JUDGES AND CHANCELLORS: Powers and Duties:

T.C.A. Sec.53-11-409(d) authorizes a local circuit or crimi-

nal judge to allow the police who seize controlled sub-

stances to use the property for “reverse sting” operations

or other investigative operations related to the arrest and

12a

prosecution of drug offenders. T.C.A. Sec.39-6-401 et seq.,

Secs.39-17-401 et seq., through 427, Secs.53-11-308, -401 et

seq., -409 through -415.

LAW ENFORCEMENT:

T.C.A. Sec.53-11-409(d) authorizes a local circuit or crimi-

nal judge to allow the police who seize controlled sub-

stances to use the property for “reverse sting” operations

. or other investigative operations related to the arrest and

prosecution of drug offenders. T.C.A. Sec.39-6-401 et seq.,

Secs.39-17-401 et seq., through 427, Secs.53-11-308, -401 et

seq., -409 through -415.

Authority of Circuit or Criminal Judges to Allow Use of

Seized Controlled Substances in Drug Operations

The Honorable Carl K. Kirkpatrick

District Attorney General

P.O. Box 526

Blountville, Tennessee 37617

QUESTION

Does Tenn. Code Ann. Sec. 53-11-409 authorize a judge to

allow the police to use seized controlled substances for

“reverse sting” operations or for any other law enforce-

ment investigative purpose?

OPINION

Section 53-11-409(d) (1989 Cum. Supp.) authorizes a local

circuit or criminal judge to allow the police who seize

controlled substances to use the property for “reverse

sting” operations or other investigative operations

related to the arrest and prosecution of drug offenders.

13a

ANALYSIS

Section 53-11-409, Tennessee Code Annotated, provides

for the seizure and disposition of various goods subject to

forfeiture. Among the goods subject to forfeiture are

“lajll controlled substances which have been manufac-

tured, distributed, dispensed, or acquired in violation of

parts 3 and 4 of this chapter [Sec. 53-11-401 et seq.] or title

39, chapter 6, part 4 [Sec. 39-6-401 et seg. (now Sec.

39-17-401 et seq.)*]

Section 53-11-409(d) (1989 Cum. Supp.) provides:

Property taken or detained under this section shall not be

subject to replevin, but is deemed to be in the custody of

the director of the Tennessee bureau of investigation or

his authorized representative, agent, employee, the com-

missioner of safety or his authorized representative,

agent, employee, or a sheriff, deputy sheriff, municipal

law enforcement officer, or constable subject only to the

orders and decrees of the circuit or criminal court. When

property is seized under parts 3 and 4 of this chapter or

title 39, chapter 6, part 4, the seizing authority may:

(1) Place the property under seal;

(2) Remove the property to a place designated by him;

(3) Require the director of the Tennessee bureau of

investigation or his authorized representative, agent or

employee, the commissioner of safety or his authorized

1 "Sections 39-17-401 - 39-17-427, 53-11-301 - 53-11-308,

and 53-11-401 — 53-11-415 comprise the “Tennessee Drug

Control Act of 1989.” Tenn. Code Ann. Sec. 39-17-401 (1989)

Noncumulative Supp.).

l4a

representative, agent or employee, or a sheriff, deputy

sheriff, municipal law enforcement officer, or constable to

take custody of the property and remove it to an appro-

priate location for disposition in accordance with law; or

(4) Regardless of any other method of disposition of

property contained in this chapter, use the property taken

or detained, with permission of the court and under such

terms and conditions as are approved by the court, for

use in the drug enforcement program of the county in

which the goods are seized, and/or, with approval of the

court having jurisdiction over the property, sell the prop-

erty and utilize the proceeds for the drug enforcement

program of the county in which the property was seized.

(A) In the case of property seized by the Tennessee

bureau of investigation, the director of the bureau is

authorized to designate in writing any part thereof for

use by the bureau for any period of time, subject to

inventory, management and disposition as provided by

law.

(B) In the case of an aircraft seized by the Tennessee

bureau of investigation, the director is also authorized to

designate in writing any such property for transfer to and

use by the department of general services subject to

inventory, management and disposition as provided by

law. If an aircraft is not sold, but is to be transferred to

another state governmental entity, such transfer shall be

approved by the commissioner of finance and administra-

tion.

(C) The proceeds from any sale conducted under this

chapter of forfeited property seized by the bureau and

not designated for its. use, or not transferred to the

15a

department of general services as provided above, shall

be paid to the state treasurer to be used only as appropri-

ated by the general assembly.

Page 946 follows

Subsection(d)(4) provides a method whereby a seizing

agency may use property taken or detained if the agency

receives judicial authorization. The property can only be

used by the seizing agency if the use has been authorized

by the local circuit or criminal court and the property is

to be used in the drug enforcement program of the county

in which the goods are seized.

The term, “drug enforcement program,” is not defined in

the code. In construing statutory language, legislative

intent and purpose is to be ascertained primarily from the

natural and ordinary meaning of the language used when

read in the context of the entire act or statute, without

any forced or subtle construction to limit or extend the

import of that language. Oliver v. King, 612 S.W.2d 152,

153 (Tenn. 1981); Weaver v. Woods, 594 S.W.2d 693, 695

(Tenn. 1980); The natural and ordinary meaning of the

term, “drug enforcement program,” when read in the

context of the Tennessee Drug Control Act of 1989 sug-

gests that it can be fairly interpreted as encompassing,

inter alia, “reverse sting” operations, in which undercover

law enforcement officers sell controlled substances to

willing buyers, and other investigative operations related

to the arrest and prosecution of drug offenders. Of

course, as required by the statute, only the seizing agency

can utilize the property and the use is confined to the

drug enforcement program of the county in which the

goods were seized.

l6a

It is, therefore, the opinion of this office that Tenn. Code

Ann. Sec. 53-11-409(d) (1989 Cum. Supp.) authorizes a

local circuit or criminal judge to allow police who seize

controlled substances to use the property for “reverse

sting” operations or other investigative operations

related to the arrest and prosecution of drug offenders.

Charles W. Burson

Attorney General & Reporter

John Knox Walkup

Solicitor General

Gordon W. Smith

Assistant Attorney General