W.D. Tex.: Request to Spain to search under MLAT did not make U.S. a joint venturer

The U.S. used the Mutual Legal Assistance Treaty (MLAT) between the U.S. and Spain in seeking to have Spain conduct a search under its law there. Spain took possession of the evidence. A year later, the evidence was reviewed by U.S. officials and resulted in charges in federal court in Texas. The U.S. officials were not sufficient instigators of the search in Spain to have participated in it. United States v. Adler, 2009 U.S. Dist. LEXIS 32583 (W.D. Tex. March 5, 2009):

Adler’s case is distinguishable from Hawkins, Heller, Morrow, and Birdsell, in which American authorities merely informed foreign officials of potentially criminal activity that the foreign officials then chose to pursue. Adler points out that the American MLAT request detailed specific evidence to be seized by Spanish authorities and also directed them where to search, why such evidence was desired, and how to handle the evidence.

Adler cites cases holding that American authorities so substantially participated in foreign searches as to make them joint ventures subject to Fourth Amendment protection. See United States v. Peterson, 812 F.2d 486, 488-90 (9th Cir. 1987) (American agents termed their actions “joint investigation” and participated in daily decoding and translating of intercepted transmissions with Thai authorities); United States v. Hensel, 699 F.2d 18, 25 (1st Cir. 1983) (“joint venture” involved high-seas chase and search by American and Canadian vessels, Americans began chase, requested Canadian aid, urged Canadians to seize ship, showed firepower, provided backup and interpreters to Canadians, and participated in second search). Adler’s case is distinguishable from Peterson and Hensel, as the level of American participation in each of those cases far surpasses American involvement here. The facts of this case therefore fall in the murky area between the limited American participation in Hawkins, Heller, Morrow, and Birdsell and the significant participation in Peterson and Hensel.

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Overall, the Court finds Gomez-Castrillon’s analysis more persuasive than that of Vilar. Although Adler’s facts do not align precisely with those in Gomez-Castrillon, they are sufficiently similar for that court’s holding–that an MLAT request does not make a complying foreign government an American agent–to be persuasive to this Court.

The record reflects that American authorities did not obtain the seized evidence until October 2002, a year after the search was conducted. At that time, American officials traveled to Spain to review the seized evidence and return to the United States with it. Although an FBI agent in Madrid was aware of the search, no American official was present at the search. Spanish officers recovered evidence that had not been requested by American authorities, such as the counterfeit Viagra for which Adler was prosecuted in Spain. Overall, the record shows Spanish officers chose how to implement the search, conducted it without American input besides the MLAT request, and benefitted from the fruits of the search.

The Court also notes the policy behind the exclusionary rule. The rule’s purpose is to deter American officials from violating American constitutional principles; it does not apply to foreign searches because an American court’s action is unlikely to affect the conduct of foreign authorities. Morrow, 537 F.2d at 139; see also Hensel, 699 F.2d at 25. Excluding evidence in this case would be unlikely to affect the conduct of Spanish officials in future Spanish searches, or even affect how the United States and Spain conduct future MLAT-related searches.

Having reviewed the record and the applicable law, The Court finds and concludes that American authorities did not participate in the October 11, 2001 search nor were Spanish officials acting as agents of the United States to the extent necessary to implicate the Fourth Amendment.