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Los Angeles Lawyer
The Magazine of the Los Angeles County Bar Association

November 2003 Vol. 26, No. 8


MCLE Article: Searching Far and Wide

As extraterritorial searches by U.S. law enforcement increase, practitioners advising clients abroad need to be aware of relevant domestic and foreign law


By Mark Mermelstein

Joel T. Kornfeld and Anthony A. De Corso are shareholders in the law firm of Beck, De Corso, Daly, Kreindler & Harris, where they specialize in white collar criminal defense and business litigation.


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From raids of drug trafficker hideouts in Central America to sweeps of terrorist residences around the world,1 extraterritorial searches by U.S. law enforcement officers are on the rise. Searches abroad by U.S. officers are not limited to drug- or terrorist-related crimes but are also conducted in the context of business crimes.2 As the extraterritorial application of U.S. criminal law becomes more common, foreigners are more likely to find themselves in violation of U.S. criminal law without even setting foot on U.S. soil.3 Extraterritorial searches are now a key mechanism to gather evidence for the prosecution of these extraterritorial violations of U.S. criminal law.4 Given the current climate, practitioners advising multinational corporations or individuals abroad should acquire a working knowledge of the law relating to extraterritorial searches in order to properly advise a client and gather critical facts during the search itself.

Consider the facts in the U.S. Supreme Court case United States v. Verdugo-Urquidez,5 in which the defendant was suspected of drug smuggling and ordering the murder of a U.S. DEA agent. Mexican police and U.S. agents "worked in concert" to kidnap Verdugo-Urquidez, bring him to the United States to stand trial, and, while he was in U.S. custody, search his home in Mexico. In ruling upon the defendant's motion to suppress the fruits of that warrantless search in his U.S. criminal prosecution, the Supreme Court held that foreigners do not have the protection of the Fourth Amendment.6 The Supreme Court ruled that the evidence seized in the defendant's Mexican home could come into evidence in his criminal prosecution,7 notwithstanding the fact that U.S. law enforcement agents had not obtained a warrant, there was no compelling reason why law enforcement agents could not get a warrant, and the search was improper under Mexican law.

From this, one might conclude that if one's client does not enjoy any Fourth Amendment rights, there is nothing that the practitioner can do to defend against such searches. To the contrary, an examination of the current state of the law relating to extraterritorial searches reveals that there are indeed mechanisms for defending an extraterritorial search and possibly laying the foundation for a successful motion to suppress. To analyze the legality of extraterritorial searches, one must consider 1) the authority of U.S. law enforcement agents to search abroad, 2) the effect of bilateral treaties, 3) how the Fourth Amendment curtails extraterritorial searches, and 4) how the due process clause of the Fifth Amendment comes into play.8

U.S. Agents Abroad

The U.S. government has hundreds, if not thousands, of federal agents stationed abroad with the consent of local governments. The FBI alone has agents, known as legal attachés (LEGATs), stationed in 52 foreign countries collecting evidence to be used in a wide array of domestic criminal prosecutions, including business crimes.9 In 2000, the DEA had 338 agents stationed in 44 foreign countries.10 In addition, U.S. Customs Service attachés are stationed in 26 foreign locations to gather evidence on crimes such as smuggling and money laundering.11 One must distinguish the extraterritorial mission of these agencies-to gather evidence for criminal law enforcement purposes-from that of the CIA, which typically places agents in foreign nations, without their consent, for intelligence-gathering purposes.12

It might seem that the authority of U.S. law enforcement to operate outside the United States is coextensive with the host nation's consent. After all, any action by U.S. law enforcement without the consent of the local government would appear to be a clear violation of that nation's sovereignty. This position is supported by the internal guidelines of the DEA13 and the U.S. Attorney's Office,14 which suggest that their respective authority to operate within another country is limited by the extent to which the host nation consents.

To be sure, most searches are conducted with the consent, and in fact the participation, of the host nation. Pragmatically, the question to ask is whether a U.S. court would suppress the results of a search conducted without the consent of the host nation,15 particularly in the business crimes context, in which searches made without the consent of the host nation may be more commonplace.16 While no court has addressed this question head-on, the Supreme Court has noted that certain U.S. extraterritorial police work-in particular, the seizure of a Mexican national to be brought to trial in the United States-was conducted without the consent of the Mexican government, and yet the Court upheld a U.S. court's ability to criminally prosecute the defendant.17 If the nonconsensual seizure of a person is analogized to a nonconsensual search, one would conclude that a U.S. court would not suppress the fruits of an extraterritorial nonconsensual search. Further, federal government internal guidelines, such as those that authorize only consensual extraterritorial behavior, are merely guidelines for internal use and typically do not provide a remedy for a defendant who was prejudiced by a violation of the guidelines.18

Indeed, regarding the authority of U.S. law enforcement to search extraterritorially, the Justice Department has concluded that the president has inherent constitutional authority to order the FBI to carry out investigations and arrests in foreign states, even if those actions are taken without the consent of the host nation.19 In other words, the United States has claimed the authority to investigate abroad whether or not the host nation consents.

So, while it appears unlikely that a U.S. court would suppress evidence that resulted from a U.S. extraterritorial nonconsensual search, it is possible that a local court may intercede if the search is undertaken in violation of that nation's sovereignty. There is at least one documented case of Swiss officials arresting non-Swiss law enforcement agents for doing little more than making inquiries in Swiss territory.20 Further, the same Justice Department legal opinion that concludes that the president has authority to order extraterritorial, nonconsensual law enforcement action recognizes the possibility that U.S. law enforcement could be subject to local kidnapping charges.21 As a result, local trespass charges against U.S. officers engaged in a search without the consent of the host nation is, depending on local law, a distinct possibility.

Recommendations for Counsel

Accordingly, the first recommendation to practitioners defending a foreign search is evident: When arriving at the search, counsel should determine which sovereign's law enforcement is conducting the search. If the search is being conducted by U.S. law enforcement without the consent of local law enforcement, it is possible that the U.S. agents are acting in contravention of local law. While there may be no remedy for this conduct under U.S. law, there could be a remedy under local law, such as the issuance of an injunction against further searching and trespass.

To facilitate extraterritorial investigatory work, the United States has entered into a series of mutual legal assistance treaties (MLATs). These treaties generally require the requested state to locate persons believed to be in its territory, execute requests for searches and seizures, compel a witness's appearance and production of documents, and produce records in the government's possession.22 For example, the MLAT between the United States and Mexico provides that searches and seizures are to be carried out by the host state in accordance with the host state's legal provisions.23 It further provides that nothing in the treaty "empowers one party's authorities to undertake, in the territorial jurisdiction of the other, the exercise and performance of the functions or authority exclusively entrusted to the authorities of that other party by its national laws or regulations."24 On this basis, another argument that might be advanced in a suppression hearing before a U.S. court is that an extraterritorial search in violation of an MLAT is improper because the MLAT is the exclusive mechanism to obtain evidence extraterritorially.

In cases of extradition, counsel have argued that international extradition treaties provide the exclusive mechanism to seize a defendant extraterritorially, and therefore kidnapping the suspect and bringing him or her back to the United States to stand trial is illegal. However, case law is clear that international treaties that provide for extradition of foreign nationals do not deprive U.S. courts of jurisdiction over individuals and property that would otherwise be subject to their jurisdiction.25 In other words, even though there are treaties that provide a mechanism to gain jurisdiction of an individual, U.S. courts will not set aside a conviction obtained against an individual who was kidnapped by U.S. law enforcement.26 Courts in the United States reason that treaties are contracts between independent nations and it is up to the offended nation to determine whether a violation of sovereign interests occurred and requires redress. Therefore, an extradited individual lacks standing to raise a treaty as a basis for challenging the court's jurisdiction.

Thus, in considering the question of whether an MLAT bars extraterritorial searches, it is significant that like most MLATs, the U.S.-Mexico MLAT expressly precludes any private right of action based on the treaty.27 To date, there is no precedent about whether the existence of an MLAT precludes an extraterritorial search. However, given the case law, and the exclusion of private remedies in most MLATs, it appears unlikely that the existence of an international treaty will bar the admission in a criminal prosecution of evidence that was obtained by an extraterritorial search.

After having reviewed international law constraints on U.S. extraterritorial searches, the next question for defense counsel is whether U.S. domestic law provides any constraints on the searches. The Fourth Amendment protects the "right to be free of unreasonable searches and seizures." The Supreme Court has made clear that, in the context of extraterritorial searches by U.S. law enforcement, the Fourth Amendment does not apply to non-U.S. citizens or those without "sufficient connection" to the United States.28 In other words, no matter how unreasonable a search by U.S. law enforcement is, a nonresident alien does not have standing to challenge the admissibility of the fruits of that search. This is true even though that same alien receives the protections of both the Fifth and Sixth Amendments (due process and counsel, respectively).29 The distinction the Court drew between those with or without a sufficient connection to the United States appears to have emanated from Justice Wallace's dissent in the Ninth Circuit's Verdugo opinion. Wallace wrote that it is "[n]ot until an alien has assumed the complete range of obligations that we impose on the citizenry may he be considered one of 'the people of the U.S.' entitled to the full panoply of rights guaranteed by our Constitution."30 The Supreme Court did not define what it meant by "sufficient connection" other than to say that it is that "class of persons who are part of the U.S. national community or who have otherwise developed sufficient connection with this country to be considered part of that community."31

As a result, it remains somewhat unclear who is entitled to the protections of the Fourth Amendment abroad. Citizens of the United States enjoy Fourth Amendment protection abroad,32 but foreign nationals with a brief, involuntary physical presence in the United States, including those brought to the U.S. to stand trial, do not have a sufficient connection to the United States.33 Additionally, enemy belligerents do not have a sufficient connection to the United States.34

When counsel arrives at a search, he or she should examine the nationality of those whose property is being searched. The practitioner should immediately assess whether there are individuals who, by virtue of their citizenship or other conduct, bear a sufficient connection to the United States. The following factors may have a bearing on what constitutes a sufficient connection: Whether the alien 1) maintains a place of residence within the United States,35 2) owns property within the United States,36 3) pays U.S. taxes, 4) has resided within the United States, and 5) has been absent for only a limited time from the United States and intends to return. If the alien does have a sufficient connection to the United States, the Fourth Amendment applies to a search. If the alien does not, the Fourth Amendment may not apply.

Another question still unanswered by case law is whether a foreign company has standing to challenge an extraterritorial search. While it is clear that a corporation has standing to challenge an unlawful search in the United States,37 it is unclear whether the sufficient connection standard, which the Court applies to foreign individuals, is also applicable to foreign corporations. One could imagine a court defining "sufficient connection" as synonymous with "minimum contacts," which is the term used in the civil jurisdictional context to determine whether a foreign company can be sued in a United States court.38 Further, as a matter of fairness, it would seem that if a foreign corporation with a U.S. affiliate can be compelled to produce documents to a U.S. grand jury,39 that same U.S. affiliate (which provides a "connection" to the United States) should provide the foreign company with the standing to challenge a foreign search. If this is the case, the practitioner will need to examine the nature of the American business activities or assets that the foreign corporation conducts or holds. Furthermore, a proactive practitioner anticipating an extraterritorial search may recommend that the client increase its connection to the United States.

Assuming that a client being searched has a sufficient connection to the United States, the lawyer should next ascertain who is conducting the search. The Fourth Amendment does not apply to searches by foreign governments in their own countries,40 but the Fourth Amendment does apply to searches conducted as a "joint venture" between foreign and U.S. law enforcement.41 The Fourth Amendment also applies to searches conducted by U.S. law enforcement using "circuitous and indirect" methods, such as when foreign law enforcement is acting as the agent of U.S. law enforcement.42

These principles oblige the practitioner to take careful, detailed note of who is conducting the search. Case law is entirely unclear on the level of U.S. law enforcement involvement that causes the search to become a joint venture or the evidentiary showing that would be necessary to demonstrate that U.S. law enforcement was using local law enforcement as its stalking horse. For this reason, the practitioner's examination should include not only who is physically searching but also should examine the level of U.S. activity before, during, and after the search. Questions the practitioner should address include: Whose investigation is it? Who planned and instigated the search? Who specified the items to be seized? To whom was the evidence brought to decide if it was to be seized? Has there been any communication as to which law enforcement agency would keep the evidence seized during the search? Where is the trial to take place? Is there any evidence that U.S. agents were attempting to undermine the Fourth Amendment rights of a citizen by "circuitous and indirect" methods?

Whether a search may be found to be a joint venture is a highly fact-specific determination. The list of cases finding that the level of U.S. law enforcement participation was insufficient to constitute a joint venture is long,43 but at least two appellate courts have found U.S. law enforcement conduct that was sufficient to rise to the level of a joint venture.44 Accordingly, observing the search and gathering facts about its details is critically important for defense counsel, lest a motion to suppress be denied not on the merits but on the grounds of lack of specificity.45

Fourth Amendment Mandates

If a practitioner can establish that the Fourth Amendment applies to an extraterritorial search, what are the mandates that result? In the domestic realm, the Fourth Amendment generally mandates that U.S. law enforcement obtain a warrant before a search, but this is not the case abroad. Extraterritorially, according to the Ninth Circuit, the Fourth Amendment requires that the search comply with the law of the country where the search is being executed.46 In reaching this result, the court implicitly reasoned that since no American magistrate has the authority to issue an extraterritorial warrant, the legality of the search must necessarily be governed by local law.47 Accordingly, if the Fourth Amendment applies, and if the search violates local law, then the fruits of the search would be suppressed in a U.S. trial. For this reason, the defense practitioner must be well versed in local law relating to the execution of searches and be prepared to ask questions that are sufficient to learn if local law has been violated.

Fourth Amendment case law in the extraterritorial context became even more elaborate when the Ninth Circuit found that the "good faith exception" to the Fourth Amendment48 applies in the extraterritorial context. The Ninth Circuit ruled that even if an extraterritorial search does not comply with local law, as long as U.S. law enforcement had a good faith belief-typically based on a representation by local law enforcement-that it did, then the search will be held to comply with the Fourth Amendment, even if, as a factual matter, it did not.49 Justice Reinhardt, in dissent, noted that as a result of this rule, the fruits of a search to which the Fourth Amendment applies and that violates U.S. law and the applicable foreign law may nevertheless come into evidence in a U.S. proceeding.50

As perverse as this rule may appear, defense counsel may yet maneuver to limit its effect. During the search, a practitioner can explain to agents of U.S. law enforcement that the search does not comply with local law. This statement may defeat the U.S. agents' good faith belief that the search complies with local law. While there does not appear to be any case law on this issue, a practitioner who learns that a search does not comply with local law may want to inform U.S. law enforcement of his or her conclusion. This may negate the invocation of the good faith exception in opposition to the practitioner's motion to suppress.

The Fifth Amendment

In addition to Fourth Amendment considerations, the practitioner defending an extraterritorial search must also consider the mandates of the Fifth Amendment. Case law has held that an extraterritorial search that "shocks the conscience" is a violation of the due process clause of the Fifth Amendment, and the fruits thereof may be excluded.51 It is critical to realize that the Fifth Amendment, in contrast to the Fourth, applies to all extraterritorial searches as long as the proceeds thereof are being used in a subsequent U.S. criminal prosecution. In other words, the Fifth Amendment applies regardless of the nationality of the person being searched52 and whether the search was conducted by U.S. or foreign law enforcement officers.53

Searches found to violate the shock-the-conscience standard are extraordinary and typically only include cases in which a defendant was physically coerced in order to obtain evidence.54 Therefore, defense counsel should be alert for signs that the behavior of the investigating agents, whether U.S. or foreign, has exceeded what is necessary for routine searching and evidence gathering. When any physical contact is made with the client, careful notes should be taken, and witness information gathered, in order to prove the contact occurred.

The legal landscape for extraterritorial searches is entirely different from that of domestic searches. At least three rules that practitioners take for granted in the domestic context may not apply in the extraterritorial context. Within the United States, the government generally is prohibited from executing searches at night or conducting searches that are unlimited in scope. Additionally, the government is required to inventory the materials seized.55 In the extraterritorial context, on the other hand, the Fourth Amendment does not always apply, and when it does it requires nothing more than compliance with local law. Thus the domestic requirements for executing a search warrant are unlikely to apply. Unless local law prohibits it, there is no bar to night searches or searches that are unlimited in scope, nor is there a requirement that the searching authority prepare an inventory of the materials seized. Accordingly, practitioners should prepare an inventory of the items seized in order to have any hope of prevailing on a motion to suppress. This is especially important in light of case law suggesting the possibility of denying a motion to suppress because of a lack of specificity.56

A limitation to many of these recommendations is that the practitioner may not be able to arrive at the scene of the search while it is being conducted. Nevertheless, being physically present at the search is the single most important thing that a practitioner can do to position a client for a motion to suppress. The recommendations may be followed by local counsel or a client representative at the scene of the search with a portable telephone, but they are best fulfilled by the practitioner's physical presence. Accordingly, every effort should be made for the practitioner to be present at the scene. This effort may well include planning in advance of any search for a qualified, retained, conflict-free practitioner to be present at the scene of the search immediately, even if the search takes place at night.



1 See, e.g., Ronald J. Sievert, Meeting the Twenty-First Century Terrorist Threat within the Scope of Twentieth Century Constitutional Law, 37 Hous. L. Rev. 1421, 1431 (Winter 2000) [hereinafter Sievert] (discussing the search of apartments in Kenya looking for evidence regarding bin Laden operatives following the 1993 bombing of the World Trade Center).
2 Stonehill v. United States, 405 F. 2d 738, 743 (9th Cir. 1968) (tax-related documents seized in searches executed in Philippines); United States v. Marzano, 537 F. 2d 257 (7th Cir. 1976) (search and seizure in Grand Cayman Islands for information relating to bank fraud).
3 See, e.g., 49 U.S.C. app. §1472(n)(1) (1982) (airline hijacking); 18 U.S.C. §2332 (a terrorist act abroad that results in the death of an American citizen); Chua Han Mow v. United States, 730 F. 2d 1308, 1311 (9th Cir. 1984) (conspiracy); United States v. Nippon Paper Indus., 109 F. 3d 1 (1st Cir. 1997) (antitrust); see also Schoenbaum v. Firstbrook, 405 F. 2d 200, 208 (2d Cir. 1968) (civil securities).
4 See, e.g., Rupert Goodwins, Mobile Phone Firms Hit by Dawn Raids, ZDNet UK News, at http://news.zdnet
.co.uk/story/0,,t269-s2091107,00.html (July 11, 2001).
5 United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
6 Id. at 274-75.
7 Id.
8 Another question that the practitioner should consider is whether the suspected crime that led to the search has extraterritorial application. In order to justify a search there must be probable cause to believe that the location of the search will contain evidence of a crime. See United States v. Dunn, 946 F. 2d 615, 619 (9th Cir. 1991). It follows logically that a court must have jurisdiction to prosecute the suspected crime in order to have probable cause to justify a search in connection with that crime.
9 See the FBI Web site at http://www.fbi.gov/contact
10 See http://www.usdoj.gov/dea/pubs/briefing/7.htm.
11 See http://www.customs.ustreas.gov/location
12 In 1997, FBI Director Louis Freeh explained, "It is important to note that FBI agents stationed overseas are not intelligence officers or shadow intelligence officers. They do not engage in international espionage. The FBI's LEGATs are in place to facilitate the international battle against crime and terrorism." See Hearing Before the House Comm. on Int'l Relations, 105th Cong. 1997 (statement of Louis J. Freeh) (Fed. News Serv., Oct. 1, 1997).
13 DEA Agents Manual, subch. 651, at 181 (1988) (restricting DEA activities abroad to actions consistent with treaty or other approval by the host country); Alvarez-Machain v. United States, 331 F. 3d 604, 626 (9th Cir. 2003) (holding that 21 U.S.C. §878, which grants certain law enforcement powers to the DEA, does not authorize those law enforcement powers extraterritorially).
14 United States Attorney's Manual §§9-13.500 et seq. (1988) (setting guidelines for obtaining evidence abroad, generally through methods that respect host state's sovereignty); see also §9-15.610 ("Due to the sensitivity of abducting defendants from a foreign country, prosecutors may not take steps to secure custody over persons outside the United States…by means of Alvarez-Machain type renditions without advance approval by the Department of Justice.").
15 One author described U.S. law enforcement's policy regarding extraterritorial behavior as follows: "If investigating a case or seizing a fugitive means working the other side of the border then one contacts one's counterparts across the border directly. If that is seen as being either unnecessary or potentially problematic, one goes it alone and 'to hell with sovereignty.'" Ethan Nadelman, Cops Across Borders: The Internationalization of U.S. Criminal Law Enforcement 181 (1993).
16 In the business crimes context, U.S. law enforcement may have a harder time enlisting the consent and/or aid of local law enforcement. Many governments are reluctant to offer assistance in a foreign government's investigation of tax evaders within its borders. See id. at 176. Also, U.S. law enforcement is less able to resort to requests for legal assistance through mutual legal assistance treaties, because these treaties typically have dual criminality provisions-i.e., the matter of the request must be a crime in both the requesting and the host nation.
17 United States v. Alvarez-Machain, 504 U.S. 665 (1992).
18 See, e.g., United States v. Caceres, 440 U.S. 741 (1979); Sullivan v. United States, 348 U.S. 170 (1954).
19 See Authority of the Federal Bureau of Investigation to Override Customary or Other International Law in the Course of Extraterritorial Law Enforcement Activities, 13 Op. Off. Legal Counsel 195 (1989), 1989 OLC LEXIS 19 (reversing 1980 OLC opinion on same topic). Further, the Ninth Circuit has suggested that Congress has the authority to authorize American agents to unilaterally conduct law enforcement activities abroad. Alvarez-Machain v. United States, 331 F. 3d 604, 626 (9th Cir. 2003).
20 See Claus Schellenberg, The Proceedings against Two French Customs Officials in Switzerland for Prohibited Acts in Favor of a Foreign State, Economic Intelligence Service and Violation of Banking Law, 9 International Business Lawyer 139-40 (1981).
21 See Authority of the Federal Bureau of Investigation, supra note 19, 13 Op. Off. Legal Counsel 195 (reassuring U.S. law enforcement that even if their extraterritorial conduct violates local law, their fear that they will be extradited for such violations are not warranted because the U.S. secretary of state always has discretion to refuse to extradite).
22 Patricia Bellia, Chasing Bits across Borders, 2001 U. Chi. Legal F. 35, 50 & n.52 (listing MLATs in effect in 2001).
23 Mutual Legal Assistance Cooperation Treaty, Dec. 9, 1987, U.S.-Mex., art. 1, entered into force May 3, 1991, 27 I.L.M. 447 (1988) [hereinafter U.S.-Mex MLAT].
24 Id.
25 See, e.g., United States v. Zabaneh, 837 F. 2d 1249, 1261 (5th Cir. 1988).
26 See Ker v. Illinois, 119 U.S. 436 (1886); Frisbie v. Collins, 342 U.S. 519 (1952).
27 U.S.-Mex MLAT, supra note 23, at art. 1(5).
28 United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1994).
29 Matthews v. Diaz, 426 U.S. 67, 77 (1976); Verdugo, 494 U.S. at 278 (Kennedy, J., concurring); United States v. Tiede, 86 F.R.D. 227 (U.S. Ct. for Berlin, 1977).
30 Verdugo, 856 F. 2d at 1236 (Wallace, J., dissenting).
31 Verdugo, 494 U.S. at 265.
32 Id., 494 U.S. at 283 n.7 (Brennan, J., dissenting); United States v. Conroy, 589 F. 2d 1258, 1264 (5th Cir. 1979); United States v. Rose, 570 F. 2d 1358, 1362 (9th Cir. 1978).
33 Verdugo, 494 U.S. at 259; 856 F. 2d at 1236 (Wallace, J., dissenting).
34 Johnson v. Eisentrager, 339 U.S. 760 (1950).
35 Jean v. Nelsen, 727 F. 2d 957, 968 (11th Cir. 1984) (When considering the rights to be granted to aliens subject to deportation, whether the alien acquired any domicile within the United States is a factor.).
36 Michael Tricarico, How Sufficient Is the 'Sufficient Connection Test' in Granting Fourth Amendment Protections to Nonresident Aliens?: United States v. Verdugo-Urquidez, 64 St. John's L. Rev. 629, 634 & n.63 (Summer 1990).
37 G. M. Leasing Corp. v. United States, 429 U.S. 338, 352-55 (1977).
38 See International Shoe Co. v. State of Washington, 326 U.S. 310 (1945).
39 See United States v. Bank of Nova Scotia (In re Grand Jury Proceedings), 740 F. 2d 817 (11th Cir. 1984).
40 United States v. Rose, 570 F. 2d 1358, 1361 (9th Cir. 1978).
41 Stonehill v. United States, 405 F. 2d 738, 743 (9th Cir. 1968) ("[The] Fourth Amendment could apply to raids by foreign officials only if Federal agents so sufficiently participated in the raids so as to convert them into joint ventures between the United States and foreign officials."); United States v. Peterson, 812 F. 2d 486 (9th Cir. 1986).
42 Sloane v. United States, 47 F. 2d 889 (10th Cir. 1931); Byers v. United States, 273 U.S. 28, 32 (1927). If foreign authorities are acting only because of a U.S. interest, that may indicate it was a "circuitous and indirect" search by the United States. Sievert, supra note 1, at 1431.
43 Eric Bentley Jr., Toward an International Fourth Amendment: Rethinking Searches and Seizures Abroad after Verdugo-Urquidez, 27 Vand. J. Trnasnat'l L. 329, 400 nn.297-305 (May 1994) (providing a list of these cases).
44 United States v. Peterson, 812 F. 2d 486, 490 (9th Cir. 1986) (finding U.S. involvement did constitute a joint venture when the DEA was involved daily in translating and decoding intercepted transmissions, advising local authorities of their relevance, and treating the contraband as destined for the U.S.); United States v. Barona, 56 F. 3d 1087, 1090 (9th Cir. 1995) (finding joint venture where U.S. law enforcement requested search, information obtained was immediately forwarded to U.S. law enforcement, and an interpreter was provided by U.S. throughout surveillance); see also Powell v. Zuckert, 366 F. 2d 634, 640 (D.C. Cir. 1966).
45 Peterson, 812 F. 2d at 494 (finding that "there is much imprecision as to what search took place and what was seized as a result of it" and that "[w]e would be justified in rejecting [the petitioner's] claim for such lack of specificity").
46 Barona, 56 F. 3d at 1087.
47 Id. at 1092 n.1.; see also id. at 1102 (Reinhardt, J., dissenting).
48 See United States v. Leon, 468 U.S. 897 (1984) (Reliance on a facially valid search warrant, which is later discovered to be invalid, is in good faith, and the fruits of the search will not be excluded based on a violation of the Fourth Amendment.).
49 Barona, 56 F. 3d at 1092-93.
50 Id. at 1099-1100.
51 United States v. Toscanino, 500 F. 2d 267, 280-81 (2d Cir. 1974); Stonehill v. United States, 405 F. 2d 738, 745 (9th Cir. 1968); see also Rochin v. California, 342 U.S. 165 (1952). The Ninth Circuit has held that the fruits of a search that shocks the conscience are excluded under the authority of the court's supervisory powers-not the Fifth Amendment per se. Barona, 56 F. 3d at 1087.
52 The Fifth Amendment also applies to searches by foreign governments that shock the conscience and were induced by U.S. law enforcement. Birdsell v. United States, 346 F. 2d 775, 782 (5th Cir. 1965).
53 Birdsell, 346 F. 2d at 783 n.10 ("We do not mean to say that in a case where federal officials had induced foreign police to engage in conduct that shocked the conscience, a federal court might not refuse to allow the prosecution to enjoy the fruits of such action.").
54 Toscanino, 500 F. 2d at 275 (torture); Rochin, 342 U.S. at 166 (forced emetic solution into defendant's stomach to induce vomiting).
55 Fed. R. Crim. P. 41(e); Kremen v. United States, 353 U.S. 346 (1957) (A search may violate the Fourth Amendment if it is intolerable in scope.); Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 310 (1967) (The scope of a search must be strictly tied to and justified by circumstances.).
56 See supra note 45.


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