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Search & Seizure – Applicability of Exclusionary Rule – Vienna Convention on Consular Relations Doesn’t Create Privately Enforceable Right

State v. Jose Carlos Navarro, 2003 WI App 50, PFR filed 3/5/03
For Navarro: Michael S. Holzman


¶1. This case presents an issue of first impression in Wisconsin. Jose Carlos Navarro contends that Article 36 of the Vienna Convention bestows a judicially enforceable individual right upon foreign nationals who have been detained by police to consult with the consular officials of their country. He argues that because the police failed to notify him of this right at the time he was arrested, the police violated his right to consular notification and his potentially incriminating post-arrest statements should have been suppressed. We conclude that the Vienna Convention does not create a private right that a foreign national can enforce in a state criminal proceeding and therefore Navarro has no standing to assert any remedy pursuant to the Vienna Convention. We therefore affirm the judgment of conviction and sentence entered.

The Supreme Court subsequently weighed in, Sanchez-Llamas v. Oregon, 548 US 331 (2006) and Bustillo v. Johnson, 05-51 (assuming without deciding that Art. 36 encompasses individually enforceable rights, suppression of statement not remedy for VC violation; and, claim of VC violation is subject to procedural default). Though a VC violation does not, by itself, support suppression, it may be raised “as part of a broader challenge to the voluntariness of [the] statement to the police,”Sanchez-Llamas; see also Sierra v. State, TX Crim App No. PD-453-05, 3/21/07.

VCCR non-conferral of individually-enforceable rights extended to US-Canda Extradition Treaty: State v. Link, OR App No. A123223, 7/11/07.

Johnbull K. Osagiede v. USA, 543 F. 3d 399 (7th Cir No. 07-1131, 9/9/08) holds that a VCCR violation does confer rights that are individually enorceable; and, that although “direct” violation of the Vienna Convention doesn’t support suppression of evidence or dismissal of charge, other possible remedies may be fashioned:

… As the Court noted in Sanchez-Llamas, if a defendant “raises an Article 36 violation at trial, a court can make the appropriate accommodations to ensure that the defendant secures, to the extent possible, the benefits of consular assistance.” Sanchez-Llamas, 548 U.S. at 350, 126 S. Ct. 2669. After being apprised of a potential violation, “a court might . . . inquire as to whether a defendant knows that he may contact his consulate; it might even order that the prosecuting authority allow a foreign national to contact his consulate.” Mora v. New York, 524 F.3d 183, 200 n.24 (2d Cir. 2008). …


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