CA5: No joint venture between DEA and Colombian police to wiretap Colombia nationals’ cell phones there so no 4A challenge here

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.

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