By David and Johanna Zapp
- “When conducted in this country (U.S.), federal wiretaps are governed by federal wiretap law, but not outside the United States.” Maturo, 982 F.2d at 60.
- The Fourth Amendment’s exclusionary rule, suppressing evidence seized in violation of the Fourth Amendment’s (right to be free from unreasonable searches), generally does not apply to evidence obtained by searches abroad conducted by foreign officials.
- There is no duty imposed upon American law enforcement officials to review the legality, under foreign law, of applications for surveillance authority.
- “Information furnished to American officials by foreign police need not be excluded simply because the procedures followed in securing the evidence did not fully comply with our nation’s (U.S.) constitutional requirements.” United States v. Cotroni.
- Even when “the persons arrested and from whom the evidence is seized are American citizens.” Stowe v. Devoy.
- Two exceptions: 1) where the conduct of foreign officials in acquiring the evidence is so extreme that it “shocks the conscience” and 2) where foreign law enforcement officials are acting like “agents” or working exclusively for U.S. law enforcement. Maturo, 958 F2d.
- “Circumstances that will shock the conscience are limited to conduct that not only violates U.S. notions of due process (fairness), but also violates fundamental international norms of decency.” United States v. Vilar, 2007WL 1075041. Illegal wiretapping would hardly be called a shock to the “conscience.” Putting a gun to a child’s head would.
- “Within the second category, where the conduct of foreign law enforcement officials rendered them agents, or virtual agents, of United States law enforcement officials, putting them on U.S. payrolls might certainly make them agents.
- But just formalized collaboration between an American law enforcement agency and a foreign counterpart does not, standing alone, give rise to an “agency” relationship.
- Demand for documents in support of foreign wiretaps to be able to determine whether or not wiretaps were legal in the foreign country do not have to be supplied.
- A prosecutor is required to produce at the time of trial “verbatim statements or reports made by a government witness or prospective government witness” but only after the witness has testified, and limited to making a good-faith effort to obtain them.
- That is why receiving monies or equipment may be significant to establish “joint venture.” We have all suspected that foreign agents do U.S. bidding. The challenge is to prove it. And it is difficult. Judges do not look favorably on such an allegation because countries including the U.S. are supposed to be encouraging mutual cooperation, and do not want to challenge and undermine this mutual cooperation.