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Good faith exception to exclusionary rule saves fruits of unlawful search in Mexico

State v. Jack E. Johnson, 2013 WI App 140; case activity

As part of their investigation of Johnson’s involvement in a homicide, Wisconsin police wanted to search Johnson’s rented residence in Rosarito, Mexico. They contacted FBI Special Agent Eckel, the U.S. liaison between Mexican and American law enforcement authorities. Eckel called a liaison in Mexico and told him that United States law enforcement authorities wanted to search Johnson’s residence and needed to make sure the search was lawfully conducted so any evidence found could be used in an American court. The Mexican liaison told Eckel that, according to the attorney general for Baja California, Mexico, where Johnson’s residence was located, a warrantless search would be legal as long as Johnson’s landlord consented. Mexican and American authorities searched Johnson’s residence after the landlord consented to the search. Wisconsin authorities made a list of items that they wished to take from the home, including a computer that they suspected Johnson used in carrying out the crime. The list was approved by Mexican law enforcement, and Wisconsin law enforcement thereafter received a warrant from a Wisconsin judge to search the computer. (¶¶2-4).

Johnson moved to suppress the evidence resulting from the search of his residence, arguing it was illegal under Mexican law and violated his Fourth Amendment rights. The court of appeals accepts the Fourth Amendment may be implicated by a search in a foreign country based on the “joint venture doctrine,” which holds that the exclusionary rule may be invoked if American law enforcement officials substantially participated in the search or if the foreign officials conducting the search were actually acting as agents for their American counterparts:

¶7        The Fourth Amendment’s prohibition against unreasonable searches or seizures, U.S. Const. amend. IV, is implicated in certain situations when foreign officials conduct searches targeting American citizens in foreign countries, United States v. Peterson, 812 F.2d 486, 490 (9th Cir. 1987). In such cases, federal precedent instructs that a search of a foreign residence is reasonable—and therefore constitutional—if it complies with foreign law. Id. at 491. Federal courts have also recognized a “good faith” exception to the exclusionary rule when United States officials reasonably rely on foreign interpretations of the legality of a search as “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. at 492.

On appeal the state concedes the record does not support a finding that Mexican law includes an exception to the warrant requirement based on landlord consent. (¶9 n.2). Accordingly, the court assumes the search was not legal under Mexican law, and so turns to the good faith exception.

Following United States v. Leon, 468 U.S. 897, 909 (1984), Wisconsin has applied the good faith exception to an unlawful search carried out in reliance on a facially valid search warrant, State v. Eason, 2001 WI 98, ¶73, 245 Wis. 2d 206, 629 N.W.2d 625, and on clear and settled precedent, State v. Dearborn, 2010 WI 84, ¶46, 327 Wis. 2d 252, 786 N.W.2d 97, and Johnson does not argue that the good faith exception to the exclusionary rule should not be extended to cases involving reliance on foreign authorities conducting foreign searches. (¶10). The policies justifying those applications of the good faith exception apply here:

¶11      Employment of the good faith exception in this case is in accord with our supreme court’s instruction that application of the exclusionary rule should be restricted to cases where the rule’s remedial objectives will be best served, focusing on the efficacy in deterring future Fourth Amendment violations. [Dearborn, 327 Wis. 2d 252], ¶35. The threat of suppression of evidence by a United States court is unlikely to have any effect on the legal opinions provided by Mexican authorities to United States law enforcement officials or how Mexican authorities conduct a search on their soil. More importantly, it would not alter the behavior of United States law enforcement officials who have relied on the assurances of foreign authorities that a search is legal. See Leon, 468 U.S. at 916. Holding American law enforcement officials “to a strict liability standard for failings of their foreign associates would be even more incongruous than holding law enforcement officials to a strict liability standard as to the adequacy of domestic warrants.” Peterson, 812 F.2d at 492.

As applied to this case, the court holds U.S. law enforcement officials involved in the search of Johnson’s Mexican residence acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment, Dearborn, 327 Wis. 2d 252, ¶33. “It was objectively reasonable for American law enforcement to believe in the legality of a joint Mexican-American search under the control of Mexican law enforcement that was carried out based on contact between the FBI liaison to Mexico and his counterpart in Mexico who contacted the head law enforcement officer in Baja California who advised as to how a warrantless search could occur.”(¶12). Further, under the facts of this case, it was not necessary for U.S. officials to conduct a separate inquiry into Mexican law to confirm the information received from the Baja California attorney general: “…[W]e presume high-ranking Mexican law enforcement personnel know their own laws.” (¶13).

Even if it’s sound to presume high-ranking foreign officials know their own law, the gaps in the record that make it unclear whether the search was legal under Mexican law also raise questions about the U.S. officers’ reliance on the information about Mexican law. According to the parties’ briefs (available here), Eckel had not been involved in a residence search before, though he knew that getting a warrant could be time-consuming and difficult, taking from four to 12 months (or even longer!). Though Eckel’s Mexican contact supposedly had “a close working relationship” with the AG’s office, he was not a lawyer; he simply told Eckel he had talked to the Mexican state AG and that the AG said the landlord’s consent was sufficient. In view of the second-hand nature of the “legal” advice they were getting, wouldn’t it be more reasonable to expect the police to confirm the legality of the consent search by contacting the Baja California AG (or an assistant) directly? At the very least this second-hand information suggests some distinction between this case and both Dearborn, 327 Wis. 2d 252, ¶28, where police relied on clearly settled state law (presumably taught to the officer in law enforcement training), and Eason, 245 Wis. 2d 206, ¶63, which mandates, at least in the case of a warrant, review by a legally knowledgeable police officer or government attorney.

 

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