United States District Court, N.D. Georgia, Atlanta Division
ORDER AND FINAL REPORT AND RECOMMENDATION
CATHERINE M. SALINAS, UNITED STATES MAGISTRATE JUDGE.
criminal case is before the Court on several motions filed by
two of the defendants, Herbert Jonathan Castillo Juarez
(“Castillo”) and Paola Valenzuela Arevalo
(“Valenzuela”), a married couple.
September 21, 2016, a grand jury sitting in the Northern
District of Georgia returned an eight-count indictment
against Castillo, Valenzuela, and others alleging
heroin-related crimes, including conspiracy to import heroin
from Guatemala. [Doc. 12]. Thereafter, the indictment was
superseded twice. [Docs. 49, 93]. In the second superseding
indictment, Castillo and Valenzuela (collectively,
“Defendants”) are charged in each count.
Specifically, they are charged with being part of a
nine-year-long conspiracy to possess with intent to
distribute heroin (Count One) and a conspiracy to import
heroin from Guatemala (Count Two). [Doc. 93]. They are also
charged with importing heroin and possessing heroin with
intent to distribute on three dates during the summer of 2016
(Counts Three through Eight). [Id.].
have filed motions to suppress statements and evidence
related to their arrest in Switzerland [Docs. 175, 176, 183]
and motions to suppress photograph identification testimony.
[Docs. 187, 223]. I will address these motions in turn.
Motions to Suppress Statements and Evidence Regarding
Events that Occurred in Switzerland [Docs. 175,
August 2016, United States Homeland Security
(“HSI”) suspected that Defendants were involved
in a conspiracy to send people from Guatemala to the United
States with heroin in their luggage or inside their bodies.
Castillo had been identified by a person who had traveled
from Guatemala to Atlanta and been discovered with
heroin-filled pellets inside his body. At the direction of
U.S. law enforcement agents, the swallower had corresponded
with Castillo and learned that Defendants would be traveling
by plane from Mexico City, Mexico to Zurich, Switzerland in
mid-August 2016 for the purpose of transporting illegal
August 18, 2016, HSI Special Agent Lorenzo D'Andrea sent
an email to the Swiss federal police alerting them to the
fact that Defendants would be arriving later that day at the
Zurich airport and that Defendants might be carrying cocaine,
either in luggage or inside their bodies. Special Agent
Lorenzo stated: “HSI Attache Rome respectfully request
to have [Castillo and Valenzuela] and their personal property
examined for narcotics.” [Doc. 188-1 at 2].
scheduled, Defendants arrived in Zurich on August 18, 2016,
at which point Zurich Cantonal Police determined that
Defendants were carrying narcotics inside their bodies, based
on both field interviews and body scans. The Swiss
officials advised HSI that Castillo and Valenzuela each later
passed approximately fifty capsules filled with cocaine.
Defendants were arrested by Swiss law enforcement and were
charged with attempted trafficking of cocaine.
month later, on September 21, 2016, Defendants were indicted
in federal court in Atlanta, Georgia. At that time,
Defendants were still in Swiss custody. [Doc. 12].
were convicted in the Swiss courts of drug offenses and
served criminal sentences. After completing their sentences
in Switzerland, Defendants were extradited to the United
States. On June 21, 2017, the United States Marshal Service
took custody of Defendants from the Swiss authorities, along
with the electronic devices that were seized from Defendants
when they were originally arrested. Upon arriving in the
United States, HSI agents searched the devices (pursuant to a
warrant) and sent a request for information to the Swiss
authorities pursuant to the Treaty on Mutual Legal Assistance
in Criminal Matters (“MLAT”). Several months
later, the Swiss authorities provided the U.S. authorities
with information concerning Defendants, including certain
statements that Defendants made to Swiss authorities.
According to the Government, U.S. law enforcement agents were
not involved in obtaining the statements and did not know of
their existence until Switzerland provided the MLAT response.
The Government states that the MLAT information reflects that
each statement was made in the presence of Defendants'
Swiss defense counsel.
their motions to suppress evidence and statements, Defendants
argue that their arrests violated the Fourth Amendment of the
U.S. Constitution, and therefore any statements made while
they were in custody and any items seized at the time of
their arrests-including their electronic devices-should be
excluded as “fruit of the poisonous tree.” [Doc.
175 at 3; Doc. 176 at 2; Doc. 183 at 2-4]. Valenzuela also
argues that any statements she may have made in Switzerland
should be suppressed because the statements were not freely
and voluntarily made and because she did not knowingly or
voluntarily waive her Miranda rights. [Doc. 175 at
response, the Government argues that Defendants' motion
should be denied for several independent reasons. According
to the Government, Defendants lack standing to make any
Fourth Amendment challenge to the admission of any evidence
obtained in connection with their arrest in Switzerland
because they are Guatemalan nationals who were searched on
foreign soil. [Doc. 272 at 3-4]. The Government also argues
that the Fourth Amendment does not apply because Swiss
authorities (rather than U.S. authorities) made the arrests,
obtained the statements, and seized the items. [Id.
at 5-9]. With respect to Valenzuela's argument about the
voluntariness of her statements, the Government argues that
each statement at issue was made in the presence of counsel
and that prior to each interview, Swiss officials advised
Defendants of their rights under Swiss law, giving them
substantially similar admonitions as ones received under
Miranda. [Id. at 13]. The Government argues
further that that even if counsel had not been present, the
statements would still be admissible because Miranda
warnings are not required unless there was a joint venture
between the law enforcement officers in Switzerland and the
United States, and in this case, there was no such joint
venture. [Id. at 10-13].
reply, Defendants argue that because HSI agents sent the
email to the Swiss federal police requesting that Defendants
be examined for narcotics, there was a joint venture between
the two countries and, alternatively, that introduction of
this evidence “shocks the judicial conscience.”
[Doc. 287 at 2-4]. Valenzuela also urges the Court to hold a
Jackson v. Denno hearing to determine whether her
statements were voluntary. [Id. at 5-7].
respect to standing, the Supreme Court has held that the
Fourth Amendment does not apply to searches conducted outside
the United States where the person searched does not have a
previous significant voluntary connection to the United
States. United States v. Verdugo-Urquidez, 494 U.S.
259, 272-73, 275 (1990). The Supreme Court reasoned that
because the Fourth Amendment is expressly limited to
“the people, ” it refers only “to a class
of persons who are part of a national community or who have
otherwise developed sufficient connection with this country
to be considered part of that community” and that the
Fourth Amendment was not designed to restrain the actions of
the federal government against aliens outside of the United
States territory. Id. at 265-66, 272-73.
it is well settled that the Fourth Amendment exclusionary
rule does not apply to searches and seizures conducted by
foreign officials in a foreign country:
The general rule is that evidence obtained from searches
carried out by foreign officials in their own countries is
admissible in United States courts, even if the search would
not otherwise comply with United States law or the law of the
foreign country. But this Circuit has recognized two narrow
exceptions to this rule. The first exception is that evidence
from foreign searches is inadmissible if the conduct of the
foreign officials during the search shocks the judicial
conscience. This exception is based on a federal court's
inherent supervisory powers over the administration of
federal justice. The second exception is that evidence from
foreign searches is subject to the exclusionary rule 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
United States v. Emmanuel, 565 F.3d 1324, 1330 (11th
Cir. 2009) (internal citations and quotation marks omitted).
Similarly, statements obtained by foreign officers conducting
interrogations in their own nations are admissible despite a
failure to give Miranda warnings to the accused,
unless one of the two exceptions noted above applies. See
United States v. Heller, 625 F.2d 594, 599 (5th
the facts of this case fall squarely within the caselaw cited
above. Defendants have not disputed that at the time of their
arrests, they were both citizens and residents of Guatemala,
and they have presented no evidence that they had any
voluntary attachment to the United States. As such, they do
not have standing to assert a constitutional challenge to the