Colombian nationals had no connection to the United States at the time the Colombia National Police wiretapped their Colombian cell phones in Colombia. This evidence came in when they were indicted in the Eastern District of Texas for conspiracy to import thousands of kilos of cocaine into the United States. There was no joint venture in this investigation between the DEA and Colombian officers at the time of the wiretaps. Therefore, they could not make a Fourth Amendment challenge in here to the legality of the Colombian wiretaps. United States v. Rojas, 2016 U.S. App. LEXIS 1396 (5th Cir. Jan. 28, 2016):
Here, at the time of the intercepts, the defendants were citizens and residents of Colombia. They do not argue that they had any significant voluntary connection to the United States. Nor does their participation in a drug trafficking conspiracy to import drugs into the United States constitute a sufficient connection to trigger the protections of the Fourth Amendment. In Verdugo-Urquidez, for example, the Court held that the defendant did not have a significant voluntary connection to the United States even though the DEA believed he was a leader of a drug trafficking organization that was smuggling narcotics into the United States and was detained in the United States pending trial when the DEA conducted the search. 494 U.S. at 262, 271, 274-75. Thus, under Verdugo-Urquidez, the defendants were not entitled to the protections of the Fourth Amendment. See United States v. Emmanuel, 565 F.3d 1324, 1331 (11th Cir. 2009) (“[The defendant’s] participation in a drug trafficking conspiracy directed at importing drugs into the United States does not mean that he was part of the ‘national community’ protected by the Fourth Amendment.”).
Cabalcante, Piñeda, and Moya respond that Verdugo-Urquidez does not apply because the Supreme Court did not address the joint-venture doctrine. But in Verdugo-Urquidez, the Supreme Court had no need to consider the joint-venture exception to the Fourth Amendment because the DEA itself performed the search. See 494 U.S. at 261-62; see also Emmanuel, 565 F.3d at 1331 (“Because the Fourth Amendment does not apply to nonresident aliens whose property is searched in a foreign country, there is no need to decide whether the Bahamian officials acted as agents of the United States or whether the wiretap was a joint venture.”). The defendants also cite two post-Verdugo-Urquidez decisions from the Second Circuit that they believe demonstrate that the court must still analyze the joint-venture doctrine regardless of where the search occurred. See United States v. Getto, 729 F.3d 221 (2d Cir. 2013); United States v. Lee, 723 F.3d 134 (2d Cir. 2013). But these cases dealt with searches of United States citizens; therefore, Verdugo-Urquidez’s limit on the Fourth Amendment did not apply. See Getto, 729 F.3d at 224; Lee, 723 F.3d at 136. The defendants in this case are not United States citizens, so the Second Circuit cases are not instructive.
Nor is it relevant that the defendants are invoking Fourth Amendment protections in the United States with respect to their prosecution here. The Supreme Court has explained that “a violation of the [Fourth] Amendment is ‘fully accomplished’ at the time of an unreasonable governmental intrusion.” Vergudo-Urquidez, 494 U.S. at 264. “Whether evidence obtained from [a search on foreign soil] should be excluded at trial in the United States is a remedial question separate from the existence vel non of the constitutional violation.” Id. Thus, we conclude that Cabalcante, Piñeda, and Moya have not shown that their constitutional rights were violated by admission of the Colombian wiretap evidence. Therefore, the district court properly denied the motion to suppress, the motion to reconsider, and the motion for a new trial.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)