W.D.Wash.: RCMP’s search in Canada at ICE’s suggestion would not be suppressed

At the suggestion of the ICE, the RCMP searched defendant’s property and a helicopter in Yale, BC for alleged authorized flights across the border into the US. Defendant alleged that the search violated the Canadian Charter of Rights and Freedoms [§ 8]. The RCMP’s search did not shock the judicial conscience. United States v. Rosenau, 2011 U.S. Dist. LEXIS 120371 (W.D. Wash. October 18, 2011):

Generally, neither the Fourth Amendment nor the judicially created exclusionary rule applies to searches conducted by foreign authorities in their own countries. See United States v. Rose, 570 F.2d 1358, 1361 (9th Cir. 1978). The Ninth Circuit, however, has recognized two very limited exceptions to the general rule that Fourth Amendment protections are inapplicable to actions of foreign agents conducted in foreign countries. The first is “if the circumstances of the foreign search and seizure are so extreme that they shock the judicial conscience.” United States v. LaChapelle, 869 F.2d 488, 489 (9th Cir. 1989). The second applies when “United States agents’ participation in the investigation is so substantial that the action is a joint venture between United States and foreign officials.” United States v. Peterson, 812 F.2d 486, 490 (1987).

First, Defendant’s assertion that the RCMP conducted a warrantless search of his property and his helicopter (Dkt. No. 32), even if true, cannot be said to shock the judicial conscience. This is an exacting standard, where exclusion is not based on Fourth Amendment jurisprudence, but rather on the recognition the Court may employ supervisory powers when “absolutely necessary to preserve the integrity of the criminal justice system.” United States v. Barona, 56 F.3d 1087, 1091 (9th Cir. 1995). Defendant offers no facts indicating that his treatment by Canadian officials rises to the level requiring judicial intervention to protect the integrity of the criminal justice system.

Second, the Court need not reach the issue of whether a joint venture existed, because the exclusionary rule applies only if it was objectively unreasonable for U.S. officers to rely on the assurances of their foreign counterparts. Peterson, 812 F.2d at 492. In Peterson, the Ninth Circuit directed courts to consider whether American law enforcement officers were in an advantageous position to judge whether the foreign search was lawful, and whether it serves the purpose of deterring unlawful behavior to hold U.S. agents strictly liable for the failings of their foreign associates. Id. Here, Defendant offers no facts indicating that it was objectively unreasonable for U.S. authorities to rely on the assurances of Canadian officers. Therefore, there is no basis for the Court to suppress evidence obtained by the Canadian authorities.