[4525] in cryptography@c2.net mail archive
Re: Day 2 of the CJ vs. Jeff Gordon show
daemon@ATHENA.MIT.EDU (Lee Tien)
Thu Apr 15 14:22:38 1999
In-Reply-To: <Pine.GSO.3.96.990414225108.15497E-100000@boxster>
Date: Thu, 15 Apr 1999 09:33:03 -0700
To: "Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>,
John Gilmore <gnu@toad.com>
From: Lee Tien <tien@well.com>
Cc: jya@pipeline.com, declan@well.com, ann_harrison@cw.com,
cryptography@c2.net, cypherpunks@toad.com
[This is the last message on this particular thread I'm letting
through -- it has nothing any more to do with Crypto. --Perry]
At 8:05 PM -0700 4/14/99, Michael Froomkin - U.Miami School of Law wrote:
>you rang?
>
>On Wed, 14 Apr 1999, John Gilmore wrote:
>[...]
>
>>The day's testimony was reportedly from Canadian officers who searched
>>Carl Johnson's house and seized computers from it. An interesting bit
>>of side news is that apparently you can't challenge the
>>Constitutionality of a search done overseas -- even though US
>>prosecutors are introducing the results of the search as evidence to
>>convict you with in the US. Seemed like a big loophole to me. Any
>>lawyers care to comment?
There are several different issues and variables here, as Michael's already
noted. I'm trying to not be repetitive; most of this is cut-and-paste from
United States v. Barona, 56 F.3d 1087 (9th Cir. 1995), which I'm assuming
is a fair statement of the law. http://laws.findlaw.com/9th/3/56/1087.html
First, there's a general "state action" issue -- unless the search can be
called a government search, the Fourth A doesn't even apply. The 4th A
prohibits "unreasonable searches and seizures" whether or not the evidence
is sought to be used in a criminal trial, and a violation is "fully
accomplished" at the time of an unreasonable governmental intrusion. United
States v. Calandra, 414 U.S. 338, 354 (1974); United States v. Leon, 468
U.S. 897, 906 (1984). Exclusion is a remedy for the violation. But if the
search was by Canadian authorities, and not attributable to the U.S. gov't,
there was no "U.S. action."
I.e., "[n]either our Fourth Amendment nor the judicially created
exclusionary rule applies to acts of foreign officials." United States v.
LaChapelle, 869 F.2d 488, 489 (9th Cir. 1989) (quotation/citation omitted).
Second, there's a "who is searched?" issue -- the Fourth Amendment only
protects "the people," which the Supreme Court says is something different
from "persons."
With regard to foreign searches involving aliens with "no voluntary
connection" to the United States, the Supreme Court has said that the
Fourth Amendment is simply inapplicable. See United States v.
Verdugo-Urquidez, 494 U.S. 259, 274-75 (1990) (Verdugo). Verdugo reversed a
9th circuit decision finding the Fourth Amendment applicable to a search of
a Mexican citizen's Mexicali residence. 856 F.2d 1214 (9th Cir. 1988),
rev'd.
The Court rejected a "global view of [the Fourth Amendment's] applicability
[which] would plunge [us] into a sea of uncertainty as to what might be
reasonable in the way of searches and seizures conducted abroad." Verdugo,
494 U.S. at 274.
Unlike the Fifth Amendment Due Process Clause, which protects all
"persons," the Fourth Amendment protects only "the People of the United
States." Id. at 265 (the term "people" used in the Fourth Amendment was a
term of art employed in selected parts of the Constitution to refer to "the
People of the United States"). This term "refers to a class of persons who
are part of a national community or who have otherwise developed sufficient
connection with this country to be considered part of that community." Id.
I don't know that any court has decided whether a resident alien has
undertaken sufficient obligations of citizenship or has "otherwise
developed sufficient
connection with this country," Verdugo, 494 U.S. at 265 to be considered
one of "the People of the United States" even when he or she steps outside
the territorial borders of the United States.
So even if the search were "U.S. action," a Canadian citizen might not be
protected by the Fourth A. (Still might have a Due Process claim, though).
Third, there's a remedies issue. The exclusionary rule is a remedial rule
and the mere fact of a Fourth A violation doesn't entail exclusion. As
noted earlier, the exclusionary rule is generally inapplicable to acts of
foreign officials.
Two very limited exceptions apply. One exception applies "if the
circumstances of the foreign search and seizure are so extreme that they
'shock the [judicial] conscience,' [so that] a federal appellate court in
the exercise of its supervisory powers can require exclusion of the
evidence." LaChapelle, 869 F.2d at 490. This type of exclusion is not
based on the 4th A, but rather on judicial integrity and the courts'
so-called supervisory powers.
The second exception to the inapplicability of the exclusionary rule
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." Id. at 490. That is, though carried out by foreign
officials, it's still U.S. action
If a joint venture is found to have existed, "the law of the foreign
country must be consulted at the outset as part of the determination
whether or not the search was reasonable." Id.
If foreign law was not complied with, "the good faith exception to the
exclusionary rule becomes part of the analysis." Id. at 492. "The good
faith exception is grounded in the realization that the exclusionary rule
does not function as a deterrent in cases in which the law enforcement
officers acted on a reasonable belief that their conduct was legal." Id.
So under this exception the elements are: (1) that the United States and
foreign officials were engaged in a joint venture, (2) that a violation of
foreign law occurred making the search unreasonable, and (3) that the
United States did not rely in good faith upon the foreign officials'
representations that their law was being complied with.
But again, this only comes into play if the person is "protected" by the
4th A in the first place.
Lee
