CA11: Bahamian wiretap not subject to Fourth Amendment

Bahamian wiretap used in the U.S. was not a violation of the Fourth Amendment, and there would be no exclusion here. United States v. Emmanuel, 565 F.3d 1324 (11th Cir. 2009):

Next, Emmanuel argues that the second exception applies to this case because “the Bahamian officials did, in fact, act as agents of the United States in a joint venture to interdict this [sic] narcotics.” (Appellant’s Br. at 32). But this exception is based on a defendant’s Fourth Amendment rights. Emmanuel cannot show that he is entitled to the protections of the Fourth Amendment. In United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990), the Supreme Court held that the Fourth Amendment does not apply to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. Aliens do enjoy certain constitutional rights, but not the protection of the Fourth Amendment if they have “no previous significant voluntary connection with the United States ….” Id. at 271. Here, Emmanuel was a citizen and resident of the Bahamas with no significant voluntary attachment to the United States. And the wiretapped telephones were located in the Bahamas. Emmanuel’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. Id. at 265. Indeed, he was entirely outside of that community. “Under these circumstances, the Fourth Amendment has no application.” Id. at 275. 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 Fourth Amendment exclusionary rule simply is not available to Emmanuel with respect to the Bahamian wiretap evidence.

Officers responding to a shoot-out call found AK-47 casings and bullet holes and a report that the shooter had fled to a specific place. That was exigency for an entry and protective sweep. Consent after the protective sweep was voluntary. United States v. Walton, 323 Fed. Appx. 837 (11th Cir. 2009) (unpublished).*

Officers in an unmarked car who parked next to defendant’s car and got out did not show weapons or even identify themselves as officers such that defendant would be subjected to a stop. No reasonable person could believe he was subjected to a stop. After they saw a gun in the car, that led to the stop. United States v. Graham, 323 Fed. Appx. 793 (11th Cir. 2009) (unpublished).*