United States v. Sease, No. 09-5790 (6th Cir. Oct. 21, 2011) (to be published). Panel of Judges Cole, Rogers, and Griffin.
Former Memphis police officer appealed convictions stemming from a conspiracy to set up drug buys for the purpose of seizing drugs and money for personal profit. Jury convicted him on 44 counts, including charges of conspiring to deprive another of civil rights under color of law, and robbery and extortion under color of official right. Ct sentenced defendant to 225 years.
Defendant challenged the sufficiency of the evidence. Argued he did not violate the rights of the drug-buy participants b/c there was probable cause to arrest the drug dealers and seize the drugs and money. COA affirmed the convictions.
There was a question regarding whether the defendant was challenging the sufficiency of the evidence or just a jury instruction. Ct found it was the former.
Defendant looked to Whren v. United States, 517 U.S. 806 (1996), to argue his position. (Whren is the pretextual-traffic-stops-are-OK case.) Ct rejected the defendant's reasoning, finding that "it is inherently improper for officers to set up drug deals for the purpose of taking the money and drugs for themselves, regardless of the context." The defendant's "actions are improper in an entirely different way and to an entirely different degree than the actions of the officers in
Whren."Whren’s
holding that an officer's intentions are irrelevant in the Fourth Amendment analysis "comes out of a concern that courts are poorly positioned to engage in post hoc analysis of officer motivations, particularly in light of the snap decisions that law enforcement officers must make in stressful situations." This defendant, however, "was not faced with a complex set of assessments when he made his stops—the stops were pre-planned and staged to accomplish his criminal purpose."The punitive purpose of 18 U.S.C. 242 "would be undermined were the court to allow a corrupt officer to hide behind the policy goals of the exclusionary rule." While the subjective intent of officers is irrelevant for purposes of the exclusionary rule, in the § 242 context, courts may inquire whether an officer acted with a corrupt, personal, and pecuniary purpose.
Unlike in the exclusionary rule context, a court must inquire into the subjective intent of the officer because willfulness is an element of an offense under 18 U.S.C. § 242, so there is no additional evidentiary burden to justify ignoring an officer's subjective intent. And while there are "few reported cases that deal with this level of officer misconduct, those that do exist all agree that purely illegal activities by law enforcement constitute a constitutional violation."
The Court cites
United States v. Parker, 165 F. Supp. 2d 431, 441 (W.D.N.Y. 2001), in which "three Buffalo police officers, along with a DEA agent, entered into an agreement with a 'known drug trafficker' to arrange a meeting with a more prominent 'Jamaican drug dealer.' The plan was for the officers to rob the drug dealer’s safe house and divide the proceeds from the robbery between themselves, as well as detain the drug dealer and take cash and drugs off his person. In truth, the 'Jamaican drug dealer' was an FBI undercover agent and the officers’ contact was an FBI confidential informant." The officers in that case had also cited Whren in advancing arguments similar to those in Sease's case. The appellate court rejected the arguments, finding that willful conduct by officers, done with the specific intent to violate people's rights, supports conviction under § 242. The appellate case is United States v. Ferby, 108 F. App’x 676 (2d Cir. 2004).Court here found "where, as here, there is clear evidence that the officers were not engaged in bona fide law enforcement activities, but instead acted with a corrupt, personal, and pecuniary interest, the officers violate the civil rights of those that are stopped, searched, or have their property seized." The defendant "deprived those that he targeted of their constitutional rights, and thus his convictions under 18 U.S.C. §§ 241 and 242 are supported by sufficient evidence."
