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FEBRUARY 1990
FOREIGN SEARCHES AND THE FOURTH AMENDMENT
By
Austin A. Andersen, LL.B.
Special Agent
Legal Instruction Unit
FBI Academy
In a recent international, multimillion dollar heroin
conspiracy and money laundering prosecution, in which local
police officers in Bermuda arrested and searched a fugitive
charged in New York for Federal violations, a U.S. District Court
observed that since modern day narcotics trafficking is conducted
on a global scale, law enforcement agencies will have to enlist
the cooperation of their counterparts in other parts of the
world. The court went on to note, ``This international
cooperation does not mandate the conclusion that the assistance
rendered by foreign officials thereby makes them agents of the
United States and thus subject to our Constitution and
jurisprudence.'' (1)
Because the tide of drugs flowing into the United States
cannot be stemmed unilaterally, it is becoming increasingly more
obvious that the war against drugs requires teamwork by law
enforcement agencies of the world. As various nations share
information, coordinate cases of mutual interest, locate each
other's fugitives, and participate in transcontinental undercover
operations, American courts are being asked to delineate
standards governing the admissibility of evidence collected in
foreign countries.
The purpose of this article is to identify the different
circumstances under which evidence can be located in a foreign
search and to determine when that evidence will be admissible in
American courts. The salient legal issues to be addressed are:
1) Whether the fourth amendment is applicable to a foreign
search; and 2) if so, what procedures must police use to meet the
reasonableness standard of the fourth amendment. (2)
The resolution of the first issue depends on the degree of
involvement or participation by U.S. officials in the foreign
search; in general, the greater the involvement, the more likely
fourth amendment standards will apply. The extent of involvement
by U.S. officials can range from none to exclusive control; the
former situation will not implicate the fourth amendment while
the latter will. More difficult to categorize are those
foreign searches in which there is some degree of involvement by
both U.S. and foreign officials. This article discusses specific
cases where courts have attempted to define the standards for
determining exactly how much involvement by U.S. authorities is
needed to trigger the extraterritorial application of the fourth
amendment and its reasonableness requirement.
FOREIGN SEARCHES WITH NO U.S. INVOLVEMENT
It is clear that evidence independently acquired by foreign
police for their own purposes is admissible in U.S. courts
despite the fact that such evidence, if seized in the same manner
by American police, would be excluded under the fourth
amendment.(3) This rule applies even when those from whom the
evidence is seized are American citizens. (4) Such evidence is not
suppressed for two reasons. First, the Supreme Court decided
more than 60 years ago that the framers of the U.S. Constitution
did not intend the fourth amendment to apply to private parties,
i.e., individuals who are not officials of the U.S. Government. (5)
Second, the exclusionary rule is not a constitutional right but
is instead a judicially created device intended to deter
misconduct by U.S. officials. (6) Because the suppression in
American courts of evidence seized by foreign officials would
have no deterrent effect on police tactics in the United States,
no purpose is served by such punitive exclusion.
American police, however, are often the beneficiaries of
such evidence. For example, Canadian authorities recently used a
wiretap that did not meet U.S. standards and then provided the
contents of that intercept to DEA agents. The U.S. Court of
Appeals for the Ninth Circuit held that because the DEA was not
involved in the initiation or monitoring of the wiretap, the
fourth amendment was not a bar to the use of evidence from the
wiretap in an American court. (7)
A rarely applied exception to this rule occurs when a
foreign sovereign's actions during the search are so extreme as
to shock the judicial conscience, even though no American
involvement is present. (8) Because of the small number of cases in
which evidence has been suppressed for shocking conduct, it is
not clear just how outrageous the conduct must be before a court
will exercise its supervisory authority to enforce the
exclusionary rule. One case illustrating such shocking conduct
is United States v. Toscanino, (9) in which a Federal appellate
court held that the fourth amendment was violated when the
defendant, an Italian national, was forcibly abducted by
Uruguayan agents, tortured, interrogated for 17 days, drugged,
and returned to the United States for trial.
FOREIGN SEARCHES CONDUCTED EXCLUSIVELY BY U.S. AUTHORITIES
It is clear that a search controlled exclusively by American
authorities either inside or outside the territorial boundaries
of the United States must be conducted in a manner consistent
with the fourth amendment. The U.S. Government, whether it acts
at home or abroad, is subject to the limitations placed on its
power by the Bill of Rights, at least as far as its relationship
with U.S. citizens is concerned. (10) Although the ability of a
sovereign state to assert its authority is generally limited to
acts occurring within its territorial boundaries, certain
situations motivate nations to assert subject matter jurisdiction
for their courts to entertain criminal matters which take place
in other countries. (11)
In an ever-shrinking world, criminalization of
extraterritorial acts by one nation is usually respected by other
nations, as long as the statutes conform to generally recognized
principles of international law. (12) For example, Congress has
extended Federal jurisdiction to vessels at sea, overseas
government reservations, and U.S. aircraft. (13) Similarly,
Congress has enacted legislation protecting U.S. nationals from
terrorist acts in other countries. (14) In addition, courts often
construe ordinary statutes designed to protect the government as
having extraterritorial effect, as long as the elements of the
statute do not specifically exclude such an intent by the
legislature. (15)
While Congress has the power to make certain types of
extraterritorial activity illegal, the ability of U.S. agents to
investigate such violations on foreign soil cannot be granted
without contravening customary international law, which accords
each of the nations of the world exclusive peace-keeping
jurisdiction within its borders. (16) Generally, American law
enforcement officers who conduct investigations abroad rely on
the foreign country's invitation, treaty, or permission;(17) more
often, the investigation is performed by the foreign officials
themselves at the request of U.S. authorities. However, in cases
where Congress has created extraterritorial investigative
jurisdiction and where the host country grants permission to
investigate, American authorities must then conduct their inquiry
in a manner consistent with the U.S. Constitution.
FOREIGN SEARCHES BY FOREIGN AUTHORITIES WITH INVOLVEMENT OF U.S.
OFFICIALS
Since U.S. officials do not normally conduct investigations
in foreign countries, most foreign searches which produce
evidence of interest to U.S. law enforcement officers are
conducted by foreign police. The most important exception to the
general rule of admissibility of evidence located by foreign
police occurs when there is substantial involvement in the search
by U.S. authorities. Two types of involvement, often found
together in the same case, are more likely to transform a foreign
search into one subject to the protections of the fourth
amendment: 1) American officials make foreign police their agents
by causing them to conduct searches solely in the interest of the
U.S. law enforcement agency; (18) or 2) American officials, through
their substantial participation, convert the search into a joint
venture. (19)
Providing intelligence concerning criminal activity to a
foreign police department does not necessarily convert the
foreign police officer who conducts a search based on this
information into an agent of the U.S. official. For example,
when FBI Agents in New York notified the Royal Canadian Mounted
Police (RCMP) that an American citizen living in Toronto had
information about stolen securities that would soon be
transported from the United States into Canada for sale and
distribution, RCMP officers debriefed the informant and conducted
a warrantless search of the defendant's hotel room. A Federal
court refused to suppress evidence received from the RCMP search,
which would have been invalid under the fourth amendment. The
court held that the transmittal of the name, telephone number,
and general information concerning a crime of potential interest
to both countries amounts to routine interagency cooperation and
does not rise to the level of American involvement necessary to
invoke the fourth amendment. (20)
Another Federal court condoned a higher degree of
involvement in a case in which FBI Agents notified Mexican police
of the identities of two individuals in possession of vehicles
stolen in the United States for importation and sale in Mexico, a
violation of both U.S. and Mexican statutes. (21) After the
Mexican police conducted a warrantless search of the defendant's
premises, a second search was conducted in the presence of an FBI
Agent. Neither search met fourth amendment requirements. Noting
that the Mexican police had a legitimate investigative interest
in the defendant's activity, the court held the fourth amendment
inapplicable to evidence located in a search by Mexican police,
even though the defendants were American citizens, the American
police provided the information leading to the search, and an
American agent was present at the scene of the search.
These cases imply that a foreign officer who has no
independent motivation for a search conducted solely at the
behest of a U.S. officer may be considered an agent of that U.S.
officer; if so, evidence produced by that search will be tested
for admissibility in the U.S. court system under the fourth
amendment. (22) Generally, it is unusual for a foreign police
officer to have absolutely no interest in the outcome of a search
executed in his country, and an independent motive to search can
often be found.
In United States v. Molina-Chacon, (23) the defendant objected
to the introduction of evidence seized from his attache case by
Bermudian police during an arrest conducted at the request of DEA
agents who had a warrant charging him with conspiracy to import
heroin into the United States. Avoiding the issue of whether the
search of the attache case was constitutional, the court held
that the Bermudian police were not mere agents of the United
States when they cooperated in the apprehension of a criminal for
whom process was outstanding in New York. (24) The court's
decision was based on the following factors: 1) Molina-Chacon
suffered no mistreatment at the hands of the foreign officers; 2)
his rights under the laws of Bermuda were honored; 3) DEA agents,
although they possessed an arrest warrant, lacked the power to
execute it in a foreign country; 4) at least part of the
conspiracy charged occurred on Bermudian soil; and 5) routinely
complying with official requests to locate fugitives of other
nations is part of the broad responsibility of the police
agencies of the world to cooperate with each other. (25)
In most foreign searches with U.S. involvement, there is
some common interest in the subject matter of the investigation.
In these cases, courts must decide whether the participation by
American officials rises to the level necessary to convert the
search into a joint venture, thereby invoking the protections of
the fourth amendment. One court has described the necessary level
as ``substantial participation,'' (26) based on a case-by-case
factual analysis.
The following examples of involvement by U.S. officials
reflect the range of activity that courts have held did not
convert searches into joint ventures:
* Presence of an American agent to observe a search
not under his control; (27)
* Providing information predicating the foreign
investigation and limited assistance at the search
scene when there is a substantial foreign interest
in the case; (28)
* A request for international cooperation by police
agencies contacted by the United States for assistance
in the arrest of a fugitive. (29)
However, a joint venture was found in a recent case in
which DEA agents notified authorities in Thailand of a marijuana
smuggling ring in that country, participated in monitoring a
wiretap installed by the Thai police on the defendant's
telephone, and reviewed all information received from the
wiretap. (30)
The above cases show that courts will conduct factual
analyses of foreign searches to determine if involvement by U.S.
officials is so marginal as not to implicate the fourth amendment
or so substantial that the action must be characterized as an
exercise of American authority subject to the limitations of the
U.S. Constitution. For American law enforcement officers,
however, the determination of exactly how much involvement will
transform a foreign search into a joint venture is not easily
predictable.
APPLICATION OF THE FOURTH AMENDMENT TO A JOINTLY CONDUCTED
SEARCH
Once the decision has been made that a search is a joint
venture between the U.S. and foreign authorities, evidence
resulting from the search must be measured against the fourth
amendment in order to determine its admissibility in an American
court. The Supreme Court has ruled that all warrantless searches
are unreasonable per se unless a recognized exception to the
warrant requirement exists. (31) Warrantless joint venture
searches which fall within such exceptions (such as consent,
incident to arrest, or emergency) will, therefore, produce
admissible evidence as long as the legal requirements for the
exception are met. The emergency exception, in particular, seems
appropriate to the U.S. official in a foreign land where time,
language, and distance create formidable barriers to the issuance
of a warrant by a magistrate in the United States. Courts
generally excuse the need for a search warrant where probable
cause exists and clearly articulated exigent circumstances make
consultation with a judicial officer impractical. (32) In fact,
Congress has facilitated the need for practical extraterritorial
action when time is of the essence by authorizing certain
warrantless intrusions without probable cause, such as the
ability of the U.S. Coast Guard to search ships sailing under the
American flag on the high seas (33) and U.S. Customs officers to
board any vessel entering waters under Customs jurisdiction. (34)
In the event that an American officer participates in a
joint search that does not fall within a recognized exception to
the warrant requirement, there is still a chance that evidence
located may be salvaged through an exception to the exclusionary
rule. In United States v. Peterson, (35) Philippine authorities, at
the request of DEA agents, conducted a wiretap which the court
considered a joint venture. When information from the wiretap
was used as a basis for a search, the court reasoned that the law
of the foreign country must be consulted as a factor to
determine whether the wire-tap was reasonably conducted. In this
case, although the wiretap and resulting search were invalid
under Philippine law, the Ninth Circuit Court of Appeals found
that a reasonable reliance on the foreign law enforcement
officers' representations that there had been compliance within
their own law triggered the good faith exception to the
exclusionary rule. (36)
Courts differ on how they resolve the reasonableness issue
in joint searches for which there is no apparent exception to the
warrant requirement or the exclusionary rule. One solution is to
adopt the foreign constitutional norm when it is a reasonable
substitute for U.S. procedure. (37) This approach eliminates the
practical difficulty of attempting to superimpose American
regulations on the cooperating foreign host.
Recently, however, in United States v. Verdugo-Urquidez, (38)
the Ninth Circuit Court of Appeals, in a case hinging on the
question of whether the fourth amendment applies to joint
searches of nonresident aliens in foreign countries, held that
the fourth amendment is the proper standard for U.S. governmental
searches of citizens or aliens, at home or abroad.
Verdugo-Urquidez, a Mexican national suspected of the
torture-murder of an undercover DEA agent, became a fugitive
after being charged by the DEA with numerous drug violations in
the United States.
Based on the outstanding American warrant, Verdugo-Urquidez
was arrested in Mexico by the Mexican Federal Judicial Police
(MFJP) and remanded to U.S. Marshals at the California border.
The next day, the Director of the MFJP, at the request of DEA
agents, authorized a warrantless search of Verdugo's two
residences in Mexico. During the searches, conducted by MFJP
officers and DEA agents, one of the DEA agents found and seized
documents allegedly reflecting the volume of marijuana smuggled
into the United States by Verdugo's organization. Because the
searches which were unrelated to any contemplated Mexican
prosecution were initiated and participated in by DEA agents
(who took custody of the evidence), both the U.S. District Court
and the Ninth Circuit Court of Appeals found the participation of
the DEA agents so substantial as to convert the searches into
joint ventures.
Since the searches were of questionable validity under
Mexican law, the government argued that the good faith exception
to the exclusionary rule should apply to the evidence because it
was reasonable for the U.S. officials to rely on representations
of the Mexican police that the searches were legal. The court
disagreed, stating that the fourth amendment, and not Mexican
law, governs the procedures for joint searches in foreign
countries. Most significant, however, was the finding that in
the absence of any exception to the warrant requirement, the
fourth amendment required the DEA agents to obtain a U.S. search
warrant in order to search the residence of a foreign national.
The Supreme Court has agreed to review this lower court decision
during its 1989-1990 term.
CONCLUSION
Evidence located in foreign countries by foreign police
acting independently is not subject to fourth amendment standards
and is admissible in American courts, unless there is conduct
during the search so outrageous and bizarre as to shock the
judicial conscience. Evidence located by U.S. officials acting
independently in a search abroad is subject to fourth amendment
scrutiny. Often, however, there is involvement by both American
and foreign police in searches outside the United States. In
these cases, the following factors are among those considered in
determining the degree of involvement by U.S. officials: 1) How
the search or investigation was initiated; 2) whether the search
related to any contemplated investigation or a violation of the
laws of the foreign country; 3) whether U.S. authorities merely
observe, participate in a passive or supportive role, or control
the execution of the search; 4) which agency seized the evidence;
and 5) which agency maintained custody of the evidence. Because
courts may differ in the weight they give to the above factors in
the context of varying factual situations, it is difficult to
anticipate the precise degree of involvement which will convert a
foreign search into a joint venture. If it becomes apparent that
an American official will be involved in a foreign search that
might be considered a joint venture, that official should then
consider seeking legal advice to be certain that any action will
be deemed reasonable by fourth amendment standards.
FOOTNOTES
(1) United States v. Molina-Chacon, 627 F.Supp. 1253, 1260
(E.D.N.Y. 1986).
(2) U.S. Const. amend. IV reads: ``The right of the people to
be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated, and no
Warrant shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be
searched, and the person or things to be seized.''
(3) See, e.g., United States v. Mount, 757 F.2d 1315, 1317
(D.C. Cir. 1985); United States v. Rose, 570 F.2d 1358, 1361-2
(9th Cir. 1978); Government of Canal Zone v. Sierra, 594 F.2d 60
(5th Cir. 1979). See also Saltzburg, ``The Reach of the Bill of
Rights Beyond the Terra Firma of the United States,'' 20 Va.
Journal of Int. Law 741 (1980).
(4) See, e.g., Birdsell v. United States, 346 F.2d 775, 782
(5th Cir. 1965), cert. denied, 382 U.S. 963 (1965).
(5) Burdeau v. McDowell, 256 U.S. 465 (1921). See Andersen,
``The Admissibility of Evidence Located in Searches by Private
Persons,'' FBI Law Enforcement Bulletin, April 1989, pp. 25-29.
(6) The exclusionary rule should be used only in those
situations where this remedial objective will be achieved. See
United States v. Janis, 428 U.S. 433, 446-7 (1976).
(7) United States v. LaChapelle, 869 F.2d 488 (9th Cir. 1989);
see also, United States v. Delaplane, 778 F.2d 570 (10th Cir.
1985).
(8) Supra note 4.
(9) 500 F.2d 267 (2d Cir. 1974). Toscanino is a seizure rather
than a search case; it nevertheless illustrates an example of
appalling behavior by foreign officials which shocked the
judicial conscience in a fourth amendment case. In Rochin v.
California, 342 U.S. 165 (1952), the Supreme Court found that
U.S. officials committed shocking and outrageous conduct when
they forced an emetic solution into the defendant's mouth to
recover two morphine tablets which had been swallowed. See
also, U.S. ex rel. Lujan v. Gengler, 510 F.2d 62, 65 (2d Cir.
1974), another abduction case, in which the court, noting the
absence of torture or brutality, held that a defendant forcibly
brought from a foreign country into a domestic court's
jurisdiction was without a judicial remedy absent ``conduct of
the most outrageous and reprehensible kind....'' The authority
to try defendants who have been abducted for the purpose of
bringing them within a court's jurisdiction is based on two U.S.
Supreme Court cases Ker v. Illinois, 119 U.S. 436 (1886) and
Frisbie v. Collins, 342 U.S. 519 (1952).
(10) See Reid v. Covert, 354 U.S. 1, 5-6 (1957), in which
Justice Black writes for the majority: ``When the government
reaches out to punish a citizen who is abroad, the shield which
the Bill of Rights and other parts of the Constitution provide to
protect his life and liberty should not be stripped away just
because he happens to be in another land.'' See also, note,
``The Extraterritorial Application of the Constitution -
Unalienable Rights?'' 72 Va. L. Rev. 649 (1986); and Ragosta,
``Aliens Abroad: Principles for the Application of
Constitutional Limitations to Federal Action,'' 17 N.Y.U.J.
Intern. L. & P. 287 (1985).
(11) See, e.g., United States v. Bowman, 67 L.Ed. 2d 145, 151
(1922) in which the Court finds authority to criminalize certain
extraterritorial acts ``because of the right of the government to
defend itself against obstruction or fraud, wherever
perpetrated.''
(12) The source of recognition under international law for
criminal statutes that affect the world community has
traditionally been the following five principles of
jurisdiction: 1) Location of the offense; 2) nationality of the
victim; 3) nationality of the offender; 4) protection of
governmental functions; and 5) universally repugnant crimes, such
as piracy. For discussion, see Empson, ``The Application of
Criminal Law to Acts Committed Outside the Jurisdiction,'' 6
American Criminal Law Quarterly 32 (1967); and Petersen, ``The
Extraterritorial Effect of Federal Criminal Statutes: Offenses
Directed at Members of Congress,'' 6 Hastings International and
Comparative Law Review 773 (1983).
(13) 18 U.S.C. 7 (Special maritime and territorial
jurisdiction of the United States).
(14) 18 U.S.C. 2331 (Terrorist acts abroad against U.S.
nationals).
(15) See, e.g., United States v. Layton, 509 F.Supp. 212, 220
(N.D. Cal. 1981), in which the defendant was charged with the
homicide of Congressman Leo J. Ryan in Guyana on 11/18/78. The
court denied Layton's motion for dismissal for lack of subject
matter jurisdiction, stating that the Federal statute (18 U.S.C.
351) protecting U.S. officials has extraterritorial reach ``at
least when the attack is by a U.S. citizen and when the
Congressman is acting in his or her official capacity.''
(16) See, e.g., 1 Restatement (Third) of the Foreign Relations
Law of the United States 206.
(17) See Lujan, supra note 9, at 66-8 for a discussion of the
ability of police officers to engage in official conduct in
another country without the permission or in defiance of
representatives of that country.
(18) See, e.g., United States v. Rosenthal, 793 F.2d 1214,
1230-31 (11th Cir. 1986), cert. denied, 107 S.Ct. 1377 (1987).
(19) See, e.g., United States v. Paternina-Vergara, 749 F.2d
993, 998 (2d Cir. 1984), cert. denied, 469 U.S. 1217 (1985);
United States v. Hawkins, 661 F.2d 436, 455-6 (5th Cir. 1981);
United States v. Marzano, 537 F.2d 257, 269-71 (7th Cir. 1976),
cert. denied, 429 U.S. 1038 (1977).
(20) United States v. Morrow, 537 F.2d 120 (5th Cir. 1976).
(21) Supra note 4.
(22) See United States v. Hensel, 699 F.2d 18 (1st Cir. 1983),
in which the appellate court upheld a lower court finding that
the exclusionary rule applied in a case where an American DEA
agent urged Canadian authorities to seize and search a ship
entering Canadian waters because the foreign officers acted as
agents for their American counterparts.
(23) Supra note 1.
(24) Id. at 1260.
(25) Id. at 1259-60.
(26) Supra note 18, at 1231.
(27) Id. at 1223-26.
(28) Id.
(29) Supra note 1.
(30) United States v. Peterson, 812 F.2d 486 (9th Cir. 1987).
(31) Katz v. United States, 389 U.S. 347 (1967).
(32) See, e.g., Mincey v. Arizona, 437 U.S. 385 (1978).
(33) 4 U.S.C. 89(a).
(34) 19 U.S.C. 1581(a).
(35) Supra note 30.
(36) For discussion of good faith exception, see United States
v. Leon, 468 U.S. 897 (1989), and Fiatal, ``Judicial Preference
for the Search Warrant: The Good Faith Warrant Exception to the
Exclusionary Rule,'' FBI Law Enforcement Bulletin, July 1986, pp.
21-29.
(37) See, e.g., Jordan, 24 C.M.A. 156, 51 C.M.R. 375 (1976);
Peterson, supra note 30.
(38) 856 F.2d 1214 (9th Cir. 1988), cert. granted, 109 S.Ct.
1741 (1989).
ABOUT THE ARTICLE:
Law enforcement officers of other than Federal jurisdiction
who are interested in any legal issue discussed in this article
should consult their legal adviser. Some police procedures ruled
permissible under Federal constitutional law are of questionable
legality under State law or are not permitted at all.