The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on Petitioner Eunice Husband's Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1) (Petition). For the reasons set forth below, the Petition is DENIED.
On August 6, 1998, Husband was indicted on the charge of possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). United States v. Husband, Docket No. 98-30050, Indictment (criminal docket entry no. 1). Assistant Federal Defender David Mote was appointed to represent Husband.
Mote filed a motion to suppress all evidence found subsequent to the time that police officers stopped Husband on March 12, 1998. The Motion recited facts based on the affidavits and reports of law enforcement officials. Motion to Suppress (criminal docket entry no. 9) (Motion), ¶¶ 1-22 . According to the officers, the following occurred. Springfield Police Detective Stephen Welsh received a telephone call from a neighborhood resident who suspected that drugs were being sold from a vehicle that was parked regularly in the driveway of 1225 North 5th Street, Springfield, Illinois. The vehicle was regularly parked in the driveway from 4:00 p.m. to 3:00 a.m. The caller stated that people approached the vehicle, talked to the driver briefly, and then left. The caller never saw drugs or cash change hands.
On March 12, 1998, Welsh and Springfield Police Detective G. Bonnett went to the area of 1225 North 5th Street.*fn1 They observed a gray vehicle sitting in the driveway. A black man and a white woman were seated in the vehicle. They observed another white woman approach the driver side of the vehicle, talk with the occupants briefly, and leave. The vehicle subsequently drove away. Welsh and Bonnett attempted to follow the vehicle, but lost it. The vehicle returned to the driveway at 1225 North 5th.
Welsh then contacted Police Officers Steven Tremaine and Scott Robert Kincaid. Welsh directed them to approach the vehicle to find out if the persons in the vehicle were allowed to be on the property at 1225 North 5th. On March 12, 1998, at about 7:41 p.m., Tremaine and Kincaid approached the vehicle. Kincaid recognized Husband as the driver. Kincaid was aware of a prior incident in which Husband had a gun. Officers Kincaid and Tremaine ordered the occupants of the vehicle to show their hands. The passenger raised her hands, but Husband did not raise his hands. Officers again told Husband to show his hands, but he did not do so. Tremaine then drew his weapon.
At this time, Kincaid observed that Husband's pants were undone, and Husband's hands were in his pants. Husband raised his hands to his mouth and appeared to put something in his mouth. Kincaid and Tremaine then placed Husband under arrest for obstructing a police officer. After he was arrested, Husband kept his jaw clenched shut and refused to open his mouth.
Husband was taken to the Sangamon County, Illinois, jail. All during this time, Husband refused to open his mouth. Police officers kept Husband under constant surveillance to make sure that nothing went into or out of his mouth.
Welsh then prepared an application and an affidavit to secure a warrant to search Husband's body. The affidavit recited the facts set forth above. The affidavit stated that an object appeared to be in Husband's cheek and that Husband refused to open his mouth. Petition, attached exhibits, Affidavit of Stephen Welsh.
While waiting for the warrant, officers observed Husband starting to sweat and twitch. Officers were concerned that he was starting to have a seizure. He was then transported by ambulance to St. John's Hospital in Springfield, Illinois. Officer Tremaine rode with Husband in the ambulance. The EMT gave Husband an injection in the ambulance. The shot was a medicine designed to slow down the effects of any drug that Husband may have swallowed.
Illinois Associate Circuit Judge George Ray then issued a warrant to search the body of Husband for illegal drugs, weapons, or contraband. Id., exhibits, Warrant. At the hospital, Husband continued to refuse to open his mouth. Doctors tried to pry his mouth open, but were unsuccessful. The doctors then administered an anesthesia called Etomidate (also called Amidate) to Husband. As the anesthesia took effect, Husband's mouth relaxed, and officers retrieved crack cocaine from his mouth. See United States v. Husband, 226 F.3d at 629.
Husband moved to suppress the evidence on the grounds that the officers did not have sufficient cause to make the initial stop; the use of anesthesia to carry out a search was unlawful; failure to show Husband the warrant and give him an opportunity to comply before using the anesthesia violated the Fourth Amendment's requirements of reasonableness; and the warrant was overbroad.
Attorney Mote and the Government entered into a stipulation of facts for consideration of the Motion. The stipulation adopted the facts set forth in the Motion and the Government's response. The stipulation further stated that the injection in the ambulance was done by an intravenous fluid line started by the EMT and that the drug administered in the ambulance was Narcan. Stipulation (criminal docket entry no. 22). Husband states that he wanted to testify and have his best friend James Markey testify. Markey lived next door at 1215 North 5th Street. Husband states that Mote would not let them testify.
United States Magistrate Judge Byron G. Cudmore entered a Report and Recommendation recommending that the Motion to Suppress be denied. Report and Recommendation entered December 1, 1998 (criminal docket entry no. 24). Husband objected to Judge Cudmore's Report and Recommendation. United States District Judge Richard Mills accepted the Report and Recommendation, over Husband's objections, and denied the Motion. Husband then entered a conditional plea of guilty in which he reserved the right to appeal the decision to deny the motion to suppress. Judge Mills then sentenced Husband to the statutory mandatory minimum sentence of 120 months. Judgment in a Criminal Case entered July 21, 1999 (criminal docket entry no. 52).
Husband then appealed his conviction. The Seventh Circuit Court of Appeals remanded the case for further factual findings surrounding the details of the use of the anesthesia to cause Husband to open his mouth. United States v. Husband, 226 F.3d 626, 629 (7th Cir. 2000). On remand, Husband was represented by a new attorney, Stanley Wasser. Judge Cudmore allowed Husband to withdraw from the stipulation of facts and present evidence. An evidentiary hearing was held on February 27-28, 2001. Transcripts of Proceedings on February ...