312 F.3d 247 (7th Cir. 2002), 01-4082, United States v. Husband

Docket Nº:01-4082.
Citation:312 F.3d 247
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Eunice HUSBAND, Defendant-Appellant.
Case Date:November 04, 2002
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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312 F.3d 247 (7th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,

v.

Eunice HUSBAND, Defendant-Appellant.

No. 01-4082.

United States Court of Appeals, Seventh Circuit.

Nov. 4, 2002

Argued Sept. 17, 2002.

Page 248

Frances C. Hulin, Gregory M. Gilmore (argued), Office of the U.S. Atty., Springfield, IL, for Plaintiff-Appellee.

Babette P. Salus (argued), Schwing & Salus, Springfield, IL, for Defendant-Appellant.

Before FLAUM, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges.

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

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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. 1 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 2 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

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forced breathing until Husband began breathing on his own.

Subsequently the hospital monitored Husband to ensure his safety. Detective Welsh then provided Husband with a copy of the warrant. Husband was then brought back to the county jail.

b. Procedural History

After indictment Husband moved to suppress the evidence regarding the 20.3 grams of crack. The motion was based on various claims of Fourth Amendment violations that Husband claimed were inherent in the initial stop and the search. A hearing was held before a magistrate judge. The hearing was conducted on stipulations and medical records without any witnesses. The magistrate judge entered a Report and Recommendation, which the district court adopted, and the motion ultimately was denied. Husband entered into a conditional plea agreement reserving the right to appeal the denial of the motion to suppress. On appeal Husband argued only that the use of anesthetic to execute a search warrant violated the Fourth Amendment. This court was unable to determine whether the search was reasonable on the record before us at that time. After stating the legal standard for determining whether a search was constitutionally reasonable, we noted certain facts that were not discernible from the record before us. We reversed the denial and remanded for the development of a more complete factual record.

On remand the magistrate judge conducted an evidentiary hearing. At the hearing Husband raised, in addition to his challenge to the method of the search itself, challenges to the stop, arrest, and validity of the warrant. The magistrate judge found that our remand was general but that Husband had waived these additional challenges. At the hearing numerous witnesses including Dr. Gravett and two expert doctors, one for each side, testified. The magistrate judge entered a Report and Recommendation which the district court adopted in denying the motion to suppress. Husband then appealed to this court.

II. Discussion

a. Scope of Remand and Waiver

Our initial task is to make clear what issues were open for argument after our first remand. Because some confusion exists about the interplay between the term "scope of remand" and the question of whether issues were waived at the initial appeal, we find it necessary to clarify the law on this point. This confusion is linguistic and can be cleared up by simply recognizing that this court does not remand issues to the district court when those issues have been waived or decided. The question of whether an issue was waived on the first appeal is an integral and included element in determining the "scope of remand." In fact, any factors that limit remand are implicitly taken into account when this court remands a case. See United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996). Thus "scope of remand" is an inclusive term and is the relevant inquiry.

There are two major limitations on the scope of a remand. 3 First, any issue that could have been but was not raised on appeal is waived and thus not remanded. See United States v. Morris, 259 F.3d 894, 898 (7th Cir.2001)

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("[P]arties cannot use the accident of remand as an opportunity to reopen waived issues."); Parker, 101 F.3d at 528 ("A party cannot use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first appeal."); see also Barrow v. Falck, 11 F.3d 729, 730 (7th Cir.1993) ("An argument bypassed by the litigants, and therefore not presented in the court of appeals, may not be resurrected on remand and used as a reason to disregard the court of appeals' decision."). Second, any issue conclusively decided by this court on the first appeal is not remanded. Morris, 259 F.3d at 898. To determine whether an issue falls within the second limitation the opinion needs to be looked at as whole. The court may explicitly remand certain issues exclusive of all others; but the same result may also be accomplished implicitly. Parker, 101 F.3d at 528 ("[T]he scope of the remand is determined not by formula, but by inference from the opinion as a whole."). For example "[i]f the opinion identifies a discrete, particular error that can be corrected on remand without the need for a redetermination of other issues, the district court is limited to correcting that error." Parker, 101 F.3d at 528; see also Barrow, 11 F.3d at 730. In such a case the implication is that for arguments not...

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