D.Mass.: Colombian wiretap didn’t violate due process

Defendant was subject to a Colombian wiretap in Colombia on a DEA tip. The court declines to impress our Fourth Amendment standards into whether a due process violation occurred in Colombia. “Here, there is no evidence that the wiretapping of defendants’ phone calls undermines fundamental elements of fairness. Although the wiretap authorization procedures in Colombia are less rigorous than the requirements of Title III of the Omnibus Control and Safe Streets Act of 1968, 18 U.S.C. § 2510-2520 and would violate the Fourth Amendment, they are not ‘outrageous’ or ‘shocking.’” United States v. Clavijo, 950 F. Supp. 2d 324 (D. Mass. 2013):

Defendants argue that admitting the evidence of telephone conversations obtained through the Colombian wiretap authorization procedure would violate “fundamental elements of fairness” guaranteed by the Due Process clause of the Fifth Amendment. Spencer v. Texas, 385 U.S. 554, 563-64, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1976). They argue that Colombian authorities intercepted their phone calls without any showing of “probable cause.” In their view, a prosecutor simply “rubberstamps” the DEA’s information regarding suspected illegal activity, and the Judge of Guarantee merely serves as a second “rubberstamp”.

The standard used to evaluate claimed due process violations is steep. Only those convictions based on evidence obtained by methods “so brutal and so offensive to human dignity” that they “shock[] the conscience” violate due process. Rochin v. California, …. Conduct that interferes with rights “implicit in the concept of ordered liberty” can also constitute a due process violation. See United States v. Salerno, ….