856 F.2d 1214 (9th Cir. 1988), 87-5061, United States v. Verdugo-Urquidez

Docket Nº:87-5061.
Citation:856 F.2d 1214
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Rene Martin VERDUGO-URQUIDEZ, Defendant-Appellee.
Case Date:August 29, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1214

856 F.2d 1214 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellant,

v.

Rene Martin VERDUGO-URQUIDEZ, Defendant-Appellee.

No. 87-5061.

United States Court of Appeals, Ninth Circuit

August 29, 1988

Argued and Submitted Dec. 10, 1987.

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Roger W. Haines, Jr., Asst. U.S. Atty., Crim. Div., San Diego, Cal., for plaintiff-appellant.

Michael Pancer and Patrick Q. Hall, San Diego, Cal., for defendant-appellee.

Appeal from the United States District Court for the Southern District of California.

Before WALLACE, NORRIS and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

Rene Martin Verdugo-Urquidez is in custody awaiting trial on twenty counts of a forty-one-count indictment returned against him and thirty-eight other defendants. The indictment charges Verdugo-Urquidez with numerous narcotics and narcotics-related criminal violations, including conspiracy to import multi-ton quantities of marijuana into the United States, possession with intent to distribute multi-ton quantities of marijuana, and engaging in an on-going criminal enterprise. Verdugo-Urquidez's presence in the United States is the result of his arrest by Mexican police officers in Mexico and his delivery by them, across the border, into the waiting arms of the United States government. Verdugo-Urquidez challenged the district court's jurisdiction over him because of the manner in which the United States obtained his custody. The district court rejected this contention, and Verdugo-Urquidez has not sought to appeal that ruling. The government appeals from the district court's order suppressing certain evidence obtained by United States Drug Enforcement Agency ("DEA") agents during their search of Verdugo-Urquidez's residence in Mexicali, Mexico.

The government raises two major arguments on appeal. First, the government contends that Verdugo-Uriquidez, a Mexican national, may not invoke the fourth amendment to the Constitution to challenge the DEA's actions in searching his Mexicali home. In the alternative, the government argues that even if the fourth amendment extends to Verdugo-Uriquidez, the evidence seized nonetheless should have been admitted because the DEA agents reasonably relied on assurances of Mexican officials that the search was permissible under Mexican law, and the search was carried out in a reasonable manner. We have jurisdiction of this interlocutory appeal under 18 U.S.C. Sec. 3731. We conclude that Verdugo-Urquidez is entitled to the protections of the fourth amendment, and that the district court properly suppressed the evidence obtained in the search of his Mexicali residence.

I

FACTS

Rene Martin Verdugo-Urquidez is reputed to be a drug smuggler and a killer. The DEA believes him to be one of the leaders of a large and violent organization based in Mexico, which smuggles large quantities of marijuana, cocaine and heroin into the United States. The DEA also believes Verdugo-Urquidez to have participated in the brutal and revolting kidnapping and torture-murder of DEA Special Agent Enrique Camarena Salazar. If these allegations are proved true at trial, there is little doubt that Verdugo-Urquidez's conduct has placed him beyond the pale of civilized society. But in this country, a person is presumed innocent until proven guilty. We would not permit a jury to discard this fundamental precept of criminal law simply because the accused is charged with a serious crime. Likewise, we will not allow ourselves to be swayed by the DEA's suspicions, no matter how well founded, or by the government's repeated assertions, that Verdugo-Urquidez is in some way responsible for the death of Special Agent Camarena.

Since the late 1970s, the DEA has kept abreast of Verdugo-Urquidez's alleged activities as a drug smuggler. Based on an informant's tip that Verdugo-Urquidez planned to transport several tons of marijuana into the United States, the DEA filed a sealed complaint against him on August 3, 1985, charging him with various violations

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of the criminal laws of the United States. Based on this complaint, the United States District Court for the Southern District of California issued a warrant for his arrest. Thereafter, the DEA stepped up its investigation efforts and attempted to apprehend Verdugo-Urquidez on one of his frequent trips to the United States. Unable to locate him in this country, the DEA confirmed that Verdugo-Urquidez resided in Mexicali, Mexico, and contacted the United States Marshals Service to determine whether it would be feasible for Mexican authorities to apprehend Verdugo-Urquidez in Mexico and deliver him to the United States for trial.

In January 1986, the United States Marshals Service contacted Mexican law enforcement officers, who advised the Service that Verdugo-Urquidez could be arrested by Mexican officers in Mexico, provided there was an outstanding United States warrant for his arrest. The Marshals showed the Mexican officers the warrant for Verdugo-Urquidez's arrest. The district court found that the following events then took place: On January 24, 1986, while driving his car in San Felipe, Baja California, Mexico, Verdugo-Urquidez was stopped by six Mexican police officers, at least one of whom showed him a badge. Verdugo-Urquidez was ordered from his car, arrested, handcuffed and placed in the back seat of the Mexican officers' unmarked car. With his hands still cuffed behind his back, the police forced Verdugo-Urquidez to lie face down on the car seat, with his head covered by his jacket. For most of the two-hour ride to the Mexican-American border, Verdugo-Urquidez either lay on the seat covered with his jacket or lay there blindfolded. At no time did the Mexican police officers explain to Verdugo-Urquidez where they were going or why he had been arrested. When the Mexican officers arrived at the border, they removed Verdugo-Urquidez from their car and walked him to where United States Marshals waited. 1 The Marshals placed Verdugo-Urquidez under arrest and drove him to the United States Border Patrol station in Calexico, California. The Marshals then phoned the DEA's resident agent in Calexico, Terry Bowen, who testified he had been waiting for the call informing him of Verdugo-Urquidez's arrest. The DEA took custody of Verdugo-Urquidez and delivered him to the Metropolitan Correctional Center in San Diego, California, where he remains incarcerated pending trial.

After the DEA took custody of Verdugo-Urquidez, Agent Bowen discussed with his fellow officers the prospect of searching Verdugo-Urquidez's house in Mexico. Agent Bowen believed that a search of Verdugo-Urquidez's Mexicali residence would disclose cash proceeds from his smuggling operations, as well as documentary evidence of those transactions, including drug ledgers and phone books listing the names and addresses of his associates. Agent Bowen also hoped that the search would disclose information relevant to the Camarena investigation. Agent Bowen contacted Walter White, the Assistant Special Agent in charge of DEA operations in Mexico. Agent Bowen and Special Agent White discussed the arrest of Verdugo-Urquidez and the possibility of a DEA search of Verdugo-Urquidez's Mexicali residence. Special Agent White told Agent Bowen that he would make some phone calls and would see what could be done.

Thereafter, Agent Bowen received Special Agent White's approval to search the Mexicali residence. 2 On January 25, 1988,

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a team of four DEA agents drove to Mexicali, Mexico, where they met with the local commandante of the Mexican Federal Judicial Police (MFJP). With the help of several MFJP officers, the DEA searched Verdugo-Urquidez's Mexicali residence, as well as a house owned by Verdugo-Urquidez located in San Felipe, Baja California, Mexico. The search of the Mexicali residence disclosed a tally sheet, which purportedly reflects the quantities of marijuana smuggled into the United States by Verdugo-Urquidez.

Verdugo-Urquidez moved to suppress the evidence seized from his Mexicali residence. After a hearing, the court concluded that the fourth amendment to the Constitution applied to the DEA's search because it was a "joint venture" of the American and Mexican police officers. Furthermore, the court held that a foreign national is entitled to seek the suppression of evidence seized by American officers during a search conducted in a foreign country on the ground that the search violates the norms established by the fourth amendment. The district court then suppressed the evidence seized by the DEA because it concluded the search was invalid for two reasons: First, the DEA failed to seek a warrant authorizing the search. Second, even if a warrant was not required to authorize the search, the DEA's conduct in carrying out that search was not reasonable because the search was unconstitutionally general, it occurred after midnight and the DEA failed to leave a contemporaneous inventory of the evidence seized. The government appeals.

II

ANALYSIS

Applicability of Fourth Amendment

The threshold issue we confront is whether a foreign national whose foreign residence has been searched by United States law enforcement officers may challenge that search under the fourth amendment. Strangely enough, this question has not yet been answered by the Supreme Court or definitively resolved by any circuit court of appeals. Indeed, until this case, we have been content simply to assume that the fourth amendment constrains the manner in which the federal government may pursue its extraterritorial law enforcement objectives. See, e.g., United States v. Peterson, 812 F.2d 486, 489 (9th Cir.1987).

1. The Fourth Amendment Limits Government Action Abroad

We begin our analysis with a proposition so...

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