                                                                        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       This order and judgment is not binding precedent, except under the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


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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.




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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


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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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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


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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




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