C.D.Cal.: GFE applies to foreign search by Cambodia National Police turned over to U.S.

Defendant was charged in the Central District of California with international travel to have sex with a minor in Cambodia. He was also charged in Cambodia, and that case led to a Cambodian Supreme Court decision remanding the search question. That case is not over, and the Cambodian courts may or may not suppress the search. The papers from Cambodia were filed here. The U.S. officers in Cambodia believed in good faith at the time that the search in Cambodia was lawful. “The good faith exception to the exclusionary rule can apply to searches conducted abroad by foreign law enforcement officers. See Peterson, 812 F.2d at 492 (‘Although local law of the Philippines governs whether the search was reasonable, our law governs whether illegally obtained evidence should be excluded, and the essence of our inquiry is whether exclusion serves the rationale of deterring federal officers from unlawful conduct.’)” It applies here. United States v. Boyajian, 2014 U.S. Dist. LEXIS 166806 (C.D. Cal. November 26, 2014):

Applying these principles, the evidence shows that even if there was a violation of Cambodian law, there was no sufficiently culpable conduct by the United States officers involved with the search that would justify application of the exclusionary rule. Special Agent Nguyen (“SA Nguyen”), the ranking United States law enforcement officer involved with the investigation of defendant in Cambodia, submitted a declaration setting out the reasons why he believed the search complied with Cambodian law. SA Nguyen explained that he believed the search was legal based on several conversations with Cambodian officials, his prior experience with investigations in Cambodia, and the fact that the searching officers obtained permission from the prosecutor to search defendant’s room. Dkt. #58, Nguyen Decl. ¶ 21. Additionally, at the hearing held by the Court in connection with defendant’s suppression motion, SA Nguyen more fully explained his reasons for believing that the search was legal. SA Nguyen explained that he first learned that the CNP were going to conduct the search from Foreign Service National Investigator Suos Vansak (“Suos”), who also told him that the CNP had obtained authorization from the prosecutor to proceed. See Dkt. No. 342 Ex. C, Transcript of March 25, 2011 Hearing, 7:1-8:4. SA Nguyen further explained that this was consistent with his knowledge of the investigation practices of the Cambodian police, and that Suos also informed him that a search was allowed under these conditions by Article 91 of the CCCP. Id. 8:1-18. Finally, SA Nguyen learned directly from General Bith of the CNP that the police had received authorization from a prosecutor to conduct the search. Id. 8:18-9:3.

SA Nguyen therefore learned that the CNP had stated that they had authorization to conduct the search, and confirmed with Suos that this authorization justified the search under the CCCP. Other than relying on the CNP’s representation that they had legal authorization to conduct the search, and independently confirming that representation with Suos—a law enforcement agent with a Cambodian law degree and extensive experience with CNP policies and procedures—it is unclear what else SA Nguyen reasonably should have done to insure compliance with Cambodian law. Cf. Peterson, 812 F.2d at 492 (finding that the good faith exception applied because “federal officers sought, and received, assurances from high ranking law enforcement authorities in the Philippines that all necessary authorization was being obtained”). Moreover, here, as in Peterson, the applicable foreign search and seizure law is “less than completely clear,” further undermining the deterrent effects of suppression. Id. (citing lack of clarity in the applicable foreign law as militating against suppression). The Court therefore concludes that even assuming a violation of Cambodian law, applying the exclusionary rule would not result in the sort of “appreciable deterrence” that is a prerequisite to that rule’s application. Excluding the evidence would only hold SA Nguyen and the United States strictly liable for mistakes made by the CNP, which is inconsistent with the Fourth Amendment.