INTERNATIONAL LAW ENFORCEMENT COOPERATION: Wire Taps Based on Intel From Foreign Governments Create Constitutional Concerns

While surveillance, eavesdropping and spying have become prominent features in the American lexicon over the past several months, they have long been insidious instruments of the criminal justice system. As criminal defense lawyers, we are all to aware the growing problem of government encroachment into private affairs and fight daily to push back against this intrusion.

The case of Stephen Lee (aka Chino) and his drug distribution co-conspirators sufficiently illustrate these observations.

Let us begin by pointing out that federal courts have recognized for the past few decades that federal wiretaps in this country are, for the most part, governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968—codifided at 18 U.S.C. §§ 2510-2520 (“Act”).

The Fourth Amendment’s exclusionary rule prohibits evidence seized in violation of the Act from being used in a criminal trial; however, the Act does not apply to evidence obtained by searches conducted abroad by foreign officials. Thus, “information” provided to American law enforcement by foreign law enforcement officials is not covered by the Fourth Amendment’s exclusionary rule, notwithstanding that the manner in which the information is discovered does not comply with the provisions of the Act, even though the information is seized from an American citizen.

And that is the lesson the Stephen Lee case teaches.

He was the target of parallel narcotics investigations conducted by the American DEA and the Jamaica Constabulary Force Narcotics Division Vetted Unit (“VU”) in 2006. America and Jamaica signed what is called a Memorandum of Understanding (“MOU”) in 2004 which effectively formalized cooperation between the two countries in drug trafficking investigations.

The MOU provided that Jamaican authorities would “monitor intercepted phone conversations authorized by Jamaican court orders” to obtain evidence in narcotics investigations conducted by both countries while American authorities would “provide surveillance equipment and training” for the VU. The MOU specifically provided that the VU would provide the “fruits of [their] wiretaps” to the DEA for use in American courts.

So it was in 2006 that the VU launched an investigation into an international drug smuggling ring in which Lee was allegedly a member. In September 2006 the VU “seized a large shipment of drugs” bound for the United States. They notified the DEA of the drug seizure, prompting the DEA to launch a parallel investigation into the American side of the drug ring. These joint investigations produced information and evidence that large shipments of marijuana were being sent from Jamaica to the New York area. Lee reportedly arranged for the clearance of these shipments in which thousands of pounds of marijuana were interspersed “among common items of Jamaican produce.”

During the two-year joint investigation, 2006-2009, the VU secured authorization from Jamaica’s Supreme Court to intercept “wire communications on several telephones” in that country. Although he was not the target or focus of the VU investigation, Lee was recorded by Jamaican authorities speaking about drug shipments with individuals in Jamaica who were targets of the VU investigation. These recorded conversations, as well as others, prompted DEA officials to secure warrants for “further electronic surveillance” in the United States. In effect, the VU wiretaps provided the probable cause needed by the DEA to secure its electronic surveillance warrants. This evidence led to Lee being indicted and convicted for conspiracy to distribute 1,000 kilograms of marijuana into the United States.

Prior to his trial, Lee sought to have the United States District Court for the Eastern District of New York suppress the Government’s recordings of his intercepted conversations. Lee argued the VU agents had acted as “virtual agents” of the DEA. The trial court denied Lee’s motion on the basis of a Second Circuit Court of Appeals precedent which held that “the mere fact that an MOU existed, information was shared and the DEA provided money, training and equipment does not warrant a finding of agency” between the DEA and VU.

The Second Circuit in that precedent decision, United States v. Maturo, explained that there are only two recognized circumstances where suppression of evidence obtained in a foreign jurisdiction is warranted. First, the conduct of the foreign officials must be so extreme that it shocks “the judicial conscience” and, second, the cooperation between law enforcement officials “implicate constitutional restrictions.”

With respect to the second prong, the Maturo court explained that constitutional restrictions are implicated in two situations: “(1) where the conduct of foreign law enforcement officials rendered them agents, or virtual agents, of United States law enforcement officials; or (2) where the cooperation between the United States and foreign law enforcement agencies is designed to evade constitutional requirements applicable to American officials.”

The Second Circuit found that none of these circumstances and/or situations applied in Lee’s case. “A review of the [Lee] 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. Indeed, Jamaican law enforcement officials (1) initiated their investigation into the marijuana trafficking organization with which Lee was associated before the DEA commenced its investigation; and (2) did not solicit the views, much less approval, of DEA agents prior to conducting surveillance. Moreover, DEA agents were likewise not involved in the actual interpretation or translation, from Jamaican dialect, of the conversations at issue. Nor did the DEA make a formal request that Jamaican authorities conduct surveillance on Lee or other members of the marijuana trafficking organization.”

That is the law. Of course, it is subject to ours, and others, dislike. We would assume the VU did in fact act as “virtual agents” of the notorious DEA. However, given the court’s inquiry stopped at the agency threshold, we don’t know if the VU had sufficient probable cause to issue electronic warrants that would satisfy American Fourth Amendment standards or if the evidence used by the DEA to secure its electronic surveillance warrants was so contaminated as to make it unreliable.

Criminal defense lawyers often find themselves defending the Constitution against an ever encroaching federal government. This is especially so now that fear based politics is often used to obtain citizen relinquishment of these valuable rights. We are proud to put the Government to task and defend our clients against over reaching big brother tactics.