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

Defendant’s hotel room and thumb drive were searched in Belize with a Belize search warrant which was lawful under Belize law. The fact U.S. Embassy officials passed the information on to Belize officials who got the warrant and executed it and the U.S. officials were there and watched did not make it a U.S. search governed by the Fourth Amendment. The fact a U.S. official interrogated defendant did not change the result. United States v. Flath, 845 F. Supp. 2d 951 (E.D. Wis. 2012) (posted here)*:

Generally, Fourth Amendment principles do not apply to searches by foreign authorities in their own countries, even if the targets of the search are American citizens. United States v. Stokes, 710 F.Supp.2d 689, 697 (N.D. Ill. 2009) (citing United States v. Peterson, 812 F.2d 486, 490 (9th Cir. 1987)). An exception occurs, however, when the participation of United States agents in the investigation is so substantial that the action is a joint venture between the United States and foreign officials. Id. (citing United States v. Barona, 56 F.3d 1087, 1091 (9th Cir. 1995)). In other words, the court must ask whether the level of involvement of the United States government agents was sufficient enough for them to be considered participants in the actions of the foreign police. United States v. Marzano, 537 F.2d 257, 270 (7th Cir. 1976). It is well-settled that providing information to foreign authorities does not transform a subsequent search by foreign officials into a joint venture. Id. at 270-71. Likewise, the mere presence of United States officials during a search is not sufficient to make the officials participants. Id.

In this case, the U.S. officials, though present at the search of Flath’s residence and at the Inn, did not actively participate in the actual search of defendant’s property. Instead, Belizean officers obtained and executed the warrant. Even though the warrant was supported by information gathered and provided by the United States officials, that provision of information is clearly insufficient. Moreover, like the Magistrate, this court finds that the interrogation of Flath by a U.S. officer is quite distinct from the actual search of his residence and the Inn. Thus, the fact that the U.S. officer’s interrogation could be categorized as substantial has no bearing on this court’s inquiry into whether the U.S. officers’ participation in the search was substantial. Accordingly, the court finds that the facts of this case do not support a finding that the United States officers’ actions in the search were so substantial as to be considered participants in the search. In turn, the search of defendant’s Belizean residence and the Inn does not implicate Fourth Amendment protections, and, therefore, the court will deny Flath’s motion to suppress.