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United States v. Husband

November 4, 2002


Appeal from the United States District Court for the Central District of Illinois. No. 98-CR-30050 Richard Mills, Judge

Before Flaum, Chief Judge, and Easterbrook and Ripple, Circuit Judges.

The opinion of the court was delivered by: Flaum, Chief Judge


This case is before us for a second time. Defendant Eunice Husband entered a conditional plea of guilty to one count of possession of crack cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), after the district court denied his motion to suppress evidence that cocaine was found in his mouth. Husband retained his right to appeal the denial of the motion to suppress. Husband appealed, and this court reversed the denial and remanded the case so that a more complete factual record could be developed. United States v. Husband, 226 F.3d 626 (7th Cir. 2000). Upon further factfinding the district court again denied the motion to suppress. Husband appeals. The factual record now establishes that the method of executing the warrant was constitutionally reasonable, and we affirm.

I. Background

a. Facts

A few days prior to March 12, 1998, Springfield police received a call from a neighborhood resident who suspected that a vehicle parked in the driveway at 1225 North Fifth Street was involved in the sale of drugs. The caller informed the police that every day a black male parked a gray four-door vehicle in the driveway with the front end of the car toward the street from 4:00 P.M. until 3:00 A.M.

Police Detectives Bonnett and Welsh conducted surveillance on the vehicle from the caller's house. During the surveillance the car drove away and the detectives attempted to follow it but lost sight of the car. After returning to the caller's home the detectives saw the gray car pull into the driveway at 1225 North Fifth Street again. The car was occupied by a black male, who turned out to be Eunice Husband, in the driver's seat and a white female in the passenger's seat. The detectives contacted Officer Termine who, along with three other officers, approached the vehicle. One of the officers recognized Husband from a past incident involving a firearm. The officers ordered the occupants to show their hands. The female occupant did so immediately. Husband did not. One of the officers drew his revolver and again ordered Husband to show his hands. Husband then lowered his hands and placed them inside his underwear. After continually ignoring police commands to show his hands, Husband lowered his head and raised his cupped hands to his lips and appeared to place something in his mouth. When Husband removed his hands from his face a very large lump in his left cheek was visible.

The officers removed Husband from the vehicle, placed him on the ground, and cuffed him. The officers instructed Husband to spit out whatever was in his mouth. Husband refused. The officers arrested Husband for obstruction and resisting a police officer. On the trip to the jail Husband continued in his refusal to open his mouth. An officer observed him during the trip to make sure nothing went in or out of his mouth.

Because he possibly possessed illegal drugs, Husband was not admitted to the county jail. Instead he was placed in a padded isolation cell. At this point Detective Walsh began the process of obtaining a warrant to search Husband's body. In the meantime the officers observed Husband start to sweat and twitch and saw his eyes begin to flutter and roll back. A correctional officer noticed that the bulge in Husband's cheek had dissipated. The officers, thinking Husband might be having a seizure, called for an ambulance.

Husband was transported to St. John's Hospital. At about the same time a warrant was issued to search Husband's body. The officers and medical staff with Husband learned of this about 10 minutes later. During transport Emergency Medical Technicians Curt Moffit and Mike Dozier started an IV in defendant's arm and administered Narcan through that IV. *fn1 The radio log shows that the EMTs reported that Husband displayed seizure-like activity.

When the ambulance arrived at the hospital, Dr. Alan Wayne Gravett attended to Husband. Gravett informed Husband of the dangers presented by the foreign object in his mouth. Dr. Gravett and others attempted to pry Husband's mouth open with a ceramic spoon. This method failed and was abandoned for fear of damaging Husband's teeth and gums. Dr. Gravett informed Husband that drugs would be administered to render Husband unconscious if he did not open his mouth. Dr. Gravett also informed Husband that a search warrant had been obtained.

Husband did not open his mouth. Dr. Gravett then consulted with a colleague, Dr. Michael Jones, to determine the best course of action. Additionally he reviewed two medical texts: Rosen's Principles and Practice of Emergency Medicine and Tientalli Emergency Medicine. Dr. Gravett then administered forty milligrams of Etomidate *fn2 to Husband through the IV the EMTs had started. Husband's mouth relaxed and Dr. Gravett removed the objects, 20.3 grams of crack cocaine in plastic baggies. As a result of the Etomidate Husband stopped breathing and Dr. Gravett used a bag and mask to administer forced breathing until Husband began breathing on his own. Subsequently ...

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