N.D.Ga.: Malaysian police seizing evidence on execution of an extradition warrant to the U.S. wasn’t a “joint venture” with U.S.

Defendant is a Nigerian who was living in Kuala Lumpur, Malaysia. He was arrested on an extradition warrant from the United States for computer hacking of the Georgia Tech computer system. His computers and media were seized at the time of his arrest. Royal Malaysian Police (RMP) acting on an extradition warrant doesn’t make this a joint venture in the search, and the Fourth Amendment does not apply. United States v. Olaniyi, 2018 U.S. Dist. LEXIS 50592 (N.D. Ga. Feb. 15, 2018):

Nothing about the fact that the RMP officers seized Defendant’s computer equipment and other property during his arrest “shocks the conscience.” While the officers may have lacked a warrant specifically authorizing a search for and seizure of these materials, the RMP advised the FBI that it did not need such a warrant under Malaysian law. Defendant provides no argument otherwise, that is, that the seizure of these electronic materials was illegal under Malaysian law. In any event, the courts have held “conduct does not shock the judicial conscience when it is ‘simply illegal’; rather, it must be ‘egregious.'” United States v. Getto, 729 F.3d 221, 228 (2d Cir. 2013) (internal citations omitted). The mere seizure of electronic evidence in the possession or in the residence of an arrestee suspected of computer crimes is not, in itself, “egregious.”

While U.S. Fourth Amendment law did not apply to this search, it is hardly clear that the RMP’s search for and seizure of Defendant’s electronic equipment would have violated the Fourth Amendment, either. Under U.S. law, items in the possession of an arrestee may be seized and searched in many circumstances as incident-to-arrest, and obviously incriminating material may be seized if seen in plain view while authorizing a valid arrest warrant. While the Supreme Court in recent years has clarified that the internal contents of smart phones and computer storage media may not be automatically searched incident-to-arrest, see Riley v. California, 573 U.S. , 134 S.Ct. 2473, 189 L. Ed. 2d 430 (2014), there is no indication that the RMP or the FBI did that here. Rather, the FBI simply obtained a forensic copy of the electronic media while in Malaysia, and refrained from actually searching the electronic memory of that media until it obtained a proper search warrant from a judicial officer in this district.

While the RMP’s alleged beating of Defendant obviously would have violated U.S. law, the Court finds it unnecessary to consider whether this conduct was so “egregious” as to “shock the conscious” for purposes of considering whether to suppress the physical evidence. Plaintiff makes no showing that this conduct related specifically to or resulted in the seizure of the electronic evidence in Defendant’s possession. Rather, the evidence suggests simply that this material was seized as being in Defendant’s possession and/or his apartment when he was arrested, as it very well might have been had the arrest occurred in the U.S. The record suggests that any beating was immaterial to the RMP’s mere seizure of this electronic evidence, or at least Plaintiff makes no showing otherwise.