Hackers Underworld 2: Forbidden Knowledge/Hackers Underworld 2: Forbidden Knowledge.iso/LEGAL/FEB07.TXT

Text File | 1990-03-16 | 31KB | 563 lines

FEBRUARY 1990


         FOREIGN SEARCHES AND THE FOURTH AMENDMENT

                           By

                   Austin A. Andersen, LL.B.
                       Special Agent
                    Legal Instruction Unit
                        FBI Academy

     In a recent international, multimillion dollar heroin
conspiracy and money laundering prosecution, in which local
police officers in Bermuda arrested and searched a fugitive
charged in New York for Federal violations, a U.S. District Court
observed that since modern day narcotics trafficking is conducted
on a global scale, law enforcement agencies will have to enlist
the cooperation of their counterparts in other parts of the
world.  The court went on to note, ``This international
cooperation does not mandate the conclusion that the assistance
rendered by foreign officials thereby makes them agents of the
United States and thus subject to our Constitution and
jurisprudence.'' (1)

     Because the tide of drugs flowing into the United States
cannot be stemmed unilaterally, it is becoming increasingly more
obvious that the war against drugs requires teamwork by law
enforcement agencies of the world.  As various nations share
information, coordinate cases of mutual interest, locate each
other's fugitives, and participate in transcontinental undercover
operations, American courts are being asked to delineate
standards governing the admissibility of evidence collected in
foreign countries.

     The purpose of this article is to identify the different
circumstances under which evidence can be located in a foreign
search and to determine when that evidence will be admissible in
American courts.  The salient legal issues to be addressed are:
1) Whether the fourth amendment is applicable to a foreign
search; and 2) if so, what procedures must police use to meet the
reasonableness standard of the fourth amendment. (2)

     The resolution of the first issue depends on the degree of
involvement or participation by U.S. officials in the foreign
search; in general, the greater the involvement, the more likely
fourth amendment standards will apply.  The extent of involvement
by U.S. officials can range from none to exclusive control; the
former situation will not implicate the fourth amendment while
the latter will. More difficult to categorize are those
foreign searches in which there is some degree of involvement by
both U.S. and foreign officials.  This article discusses specific
cases where courts have attempted to define the standards for
determining exactly how much involvement by U.S. authorities is
needed to trigger the extraterritorial application of the fourth
amendment and its reasonableness requirement.

FOREIGN SEARCHES WITH NO U.S. INVOLVEMENT

     It is clear that evidence independently acquired by foreign
police for their own purposes is admissible in U.S. courts
despite the fact that such evidence, if seized in the same manner
by American police, would be excluded under the fourth
amendment.(3)  This rule applies even when those from whom the
evidence is seized are American citizens. (4)  Such evidence is not
suppressed for two reasons.  First, the Supreme Court decided
more than 60 years ago that the framers of the U.S. Constitution
did not intend the fourth amendment to apply to private parties,
i.e., individuals who are not officials of the U.S. Government. (5)
Second, the exclusionary rule is not a constitutional right but
is instead a judicially created device intended to deter
misconduct by U.S. officials. (6)  Because the suppression in
American courts of evidence seized by foreign officials would
have no deterrent effect on police tactics in the United States,
no purpose is served by such punitive exclusion.

     American police, however, are often the beneficiaries of
such evidence.  For example, Canadian authorities recently used a
wiretap that did not meet U.S. standards and then provided the
contents of that intercept to DEA agents.  The U.S. Court of
Appeals for the Ninth Circuit held that because the DEA was not
involved in the initiation or monitoring of the wiretap, the
fourth amendment was not a bar to the use of evidence from the
wiretap in an American court. (7)

     A rarely applied exception to this rule occurs when a
foreign sovereign's actions during the search are so extreme as
to shock the judicial conscience, even though no American
involvement is present. (8)  Because of the small number of cases in
which evidence has been suppressed for shocking conduct, it is
not clear just how outrageous the conduct must be before a court
will exercise its supervisory authority to enforce the
exclusionary rule.  One case illustrating such shocking conduct
is United States v. Toscanino, (9) in which a Federal appellate
court held that the fourth amendment was violated when the
defendant, an Italian national, was forcibly abducted by
Uruguayan agents, tortured, interrogated for 17 days, drugged,
and returned to the United States for trial.

FOREIGN SEARCHES CONDUCTED EXCLUSIVELY BY U.S. AUTHORITIES

     It is clear that a search controlled exclusively by American
authorities either inside or outside the territorial boundaries
of the United States must be conducted in a manner consistent
with the fourth amendment.  The U.S. Government, whether it acts
at home or abroad, is subject to the limitations placed on its
power by the Bill of Rights, at least as far as its relationship
with U.S. citizens is concerned. (10)  Although the ability of a
sovereign state to assert its authority is generally limited to
acts occurring within its territorial boundaries, certain
situations motivate nations to assert subject matter jurisdiction
for their courts to entertain criminal matters which take place
in other countries. (11)

     In an ever-shrinking world, criminalization of
extraterritorial acts by one nation is usually respected by other
nations, as long as the statutes conform to generally recognized
principles of international law. (12)  For example, Congress has
extended Federal jurisdiction to vessels at sea, overseas
government reservations, and U.S. aircraft. (13)  Similarly,
Congress has enacted legislation protecting U.S. nationals from
terrorist acts in other countries. (14)  In addition, courts often
construe ordinary statutes designed to protect the government as
having extraterritorial effect, as long as the elements of the
statute do not specifically exclude such an intent by the
legislature. (15)

     While Congress has the power to make certain types of
extraterritorial activity illegal, the ability of U.S. agents to
investigate such violations on foreign soil cannot be granted
without contravening customary international law, which accords
each of the nations of the world exclusive peace-keeping
jurisdiction within its borders. (16)  Generally, American law
enforcement officers who conduct investigations abroad rely on
the foreign country's invitation, treaty, or permission;(17) more
often, the investigation is performed by the foreign officials
themselves at the request of U.S. authorities. However, in cases
where Congress has created extraterritorial investigative
jurisdiction and where the host country grants permission to
investigate, American authorities must then conduct their inquiry
in a m