E.D.Wis.: Belize search warrant executed in Belize was not a “joint venture” even though U.S. officers there

A search warrant issued for defendant’s Belize residence was not governed by the Fourth Amendment because it was conducted under and enforcing Belize law and was otherwise reasonably executed. There was no showing of a “joint venture” of the U.S. and Belize even though U.S. officers were present. United States v. Flath, 2011 U.S. Dist. LEXIS 144931 (E.D. Wis. November 18, 2011):

In arguing that he is subject to the protection of the Fourth Amendment, Flath contends that the “joint venture” doctrine is applicable to his case. I disagree. To be clear, the record shows cooperation between the U.S. officers and Belizean officers. And a Belizean officer believed the search to be a “joint operation.” But, whether the search is a joint venture depends on the level of U.S. participation. See Marzano, 537 F.2d at 271 (finding that Grand Cayman officer’s intent to help the United States was not a sufficient reason to treat his actions as those of United States agents); United States v. Baboolal, No. 05-CR-215, 2006 WL 1942357, *3 (E.D. Wis. July 11, 2006) (“[T]he mere fact that the Canadians and Americans were cooperating as part of the Toronto Strategic Partnership does not transform any subsequent search into a joint venture.”). That the U.S. also expressed interest in prosecuting Flath for violation of U.S. laws does not alter the analysis. See Marzano, 537 F.2d at 271; Baboolal, 2006 WL 1942357, at *3 (stating that “if the fact that the case ultimately ends up in a United States court was significant, the [joint venture] doctrine would apply in virtually all cases involving foreign searches”).

At the outset, I see a distinction between the U.S. officers’ involvement in the search at issue and in the interrogation of Flath which is not at issue. The U.S. was substantially involved in Flath’s interrogation. A U.S. officer read Flath his Miranda rights, questioned him, and showed him incriminating evidence.

By contrast, the U.S. officers’ level of involvement in the search, on which I must focus, was more peripheral. Marzano, 537 F.2d at 270 (whether the Government participated as to render the search a Government action must be determined by examining the facts surrounding the search). Here, the U.S. officers’ involvement in the search was as follows. The U.S. officers passed the incriminating video to the local Belizean police which launched the investigation. The U.S. officers accompanied Belizean police to get the search warrant. The U.S. officers accompanied Belizean police to the residence. The U.S. officers waited at the back door with Belizean police upon arrival at the residence. The U.S. officers stopped and secured Flath at the back door when he tried to leave. The U.S. officers were present but did not participate in the search.

These facts do not support a finding that the U.S. officers’ actions in the search were so substantial as to be considered participants in the search. Passing of information and presence during the search are not sufficient. Marzano, 537 F.2d at 270 (“[T]he law is clear that providing information to a foreign functionary is not sufficient involvement for the Government to be considered a participant in acts the foreign functionary takes based on that information …. Mere presence of federal officers is not sufficient to make the officers participants.”).