An ongoing formal relationship between a U.S. law enforcement agency and its counterpart in a foreign country does not create an agency relationship sufficient to implicate the Fourth Amendment on searches conducted abroad, the U.S. Court of Appeals for the Second Circuit has ruled.
The circuit rejected the claim of convicted marijuana smuggler Stephen Lee, a U.S. citizen who while not the target of a Jamaican wiretap was nonetheless caught on tape discussing the shipping of drugs to New York. The wiretap evidence was passed on by Jamaican police to U.S. authorities who used it to obtain both their own electronic surveillance warrants and a grand jury indictment of Lee in the Eastern District of New York.
The circuit, in United States v. Lee, 12-0088-cr, also held that Eastern District Judge Allyne Ross did not err in denying Lee discovery of the wiretap application materials used by Jamaican authorities to obtain permission for electronic surveillance in Jamaica.
Judges Jose Cabranes, Richard Wesley and J. Clifford Wallace, sitting by designation from the U.S. Court of Appeals for the Ninth Circuit, decided the case.
The appeal required the circuit to outline the degree of involvement by U.S. law enforcement sufficient to create an agency relationship that would allow a defendant to attack a search that takes place abroad.
The United States and Jamaica signed a memorandum of understanding in 2004, under which Jamaican authorities, after obtaining court approval, monitor intercepted phone conversations for the purposes of both countries as they gather evidence or leads in narcotics investigations.
Under the memorandum, the United States provides surveillance equipment and training to members of the Jamaica Constabulary Narcotics Division Vetted United (VU), and the Jamaican government provides the fruit of wiretaps to the United States in disc form so the Drug Enforcement Administration can use it in U.S. courts.
In 2006, a large shipment of marijuana hidden on a boat bound for the United States was seized by Jamaican authorities. The VU began an investigation and notified the DEA, which opened its own probe.
From 2006 to 2009, with authorization of Jamaica’s highest court, the VU intercepted communications from several phones in Jamaica, and Lee was captured on tape discussing drug shipments to people who were the targets of the investigation.
Once this information was shared by Jamaica, the DEA and prosecutors obtained wiretaps in the United States. Lee was indicted in Brooklyn, where he moved unsuccessfully for an order from Ross suppressing the evidence.
Lee was convicted in 2011 of conspiring to import 1,000 kilograms or more of marijuana and conspiring to distribute 1,000 kilograms or more of marijuana knowing it would be unlawfully imported in the United States — all for a scheme to hide the drug in large shipments of Jamaican produce. He was sentenced to 15 years in prison.
Lee appealed to the Second Circuit, where oral arguments were heard on May 7.
Writing for the circuit, Cabranes said Title III of the Omnibus Crime Control and Safe Streets Act of 1969, which governs wiretaps, does not apply outside the United States.
"It is also well-established that the Fourth Amendment’s exclusionary rule … generally does not apply to evidence obtained by searches abroad conducted by foreign officials," he added.
But Lee claimed the Fourth Amendment was implicated because the VU acted as "virtual agents" of the DEA in the context of parallel investigations.
But Cabranes said the panel disagreed.
"A review of the record makes clear that, while the United States and Jamaica agreed on several measures designed to facilitate collaboration and cooperation in transnational drug investigations, the Jamaican investigation of Lee was an independent undertaking by a foreign sovereign," he wrote.
The judge said Jamaican officials had initiated their own probe before the DEA launched its own and "did not solicit the views, much less approval, of DEA agents prior to conducting surveillance."
Cabranes continued, "Nor did the DEA make a formal request that Jamaican authorities conduct surveillance on Lee or other members of the marijuana trafficking organization. While no one factor — or combination of factors — is dispositive, we conclude that the Jamaican law enforcement officials here did not act as ‘virtual agents’ of the United States."
The court then turned aside Lee’s argument that he was entitled to the documents underlying the Jamaican wiretap applications.
Cabranes said that in "limited circumstances" the Fourth Amendment’s exclusionary rules can bar evidence where the "conduct of foreign officials was so extreme that it would shock the judicial conscience," or where the nature of the cooperation between United States and foreign law enforcement "implicates constitutional restrictions," such as a virtual agency relationship or where the cooperation is designed to evade constitutional requirements for U.S. officials.
"These two narrow exceptions, however, do not suggest, much less require, that the government or the District Court had the duty to review the legality, under Jamaican law, of the applications for surveillance authority considered by Jamaican courts," he said.
Jillian Harrington of Monroe Township, N.J., argued for Lee.
"We’re obviously very disappointed," Harrington said Monday. "It’s very troubling that an American citizen can be prosecuted in an American court with evidence obtained by a foreign country with absolutely no review of the manner in which that evidence was gathered."
Assistant U.S. Attorney Sylvia Shweder argued for the government, which declined to comment.