United States District Court, N.D. Georgia, Atlanta Division
H. COHEN United States District Judge.
action comes before the Court on the Final Report and
Recommendation ("R&R") of Magistrate Judge
Catherine M. Salinas [Doc. 323] recommending that the
following motions be denied: Valenzuela's Preliminary
Motion to Suppress Statements [Doc. 175]; Valenzuela's
Preliminary Motion to Suppress Evidence [Doc. 176];
Castillo's Initial Motion to Suppress [Doc. 183]; and
Defendants' Motions to Exclude "Photo Show-Up"
and In-Court Eyewitness Identification [Docs. 187 & 223].
The Order for Service of the R&R [Doc. 324] provided
notice that, in accordance with 28 U.S.C. § 636(b)(1),
the parties were authorized to file objections within
fourteen (14) days of the receipt of that Order.
January 11, 2019, Defendants filed their "Joint
Objections" to the R&R [Doc. 344] ("Defs.'
Objs."). However, Castillo previously asked for an
additional thirty (30) days in which to file his own
objections to the R&R, and joined Valenzuela's
objections "in an abundance of caution."
Id. at 1 n.l. The Court granted Castillo and
additional period of time, to and through February 25, 2019,
in order to file any separate objections [Doc. 345]. However,
no additional objections were filed by Castillo, so the Court
considers the objections to be jointly raised.
reviewing a Magistrate Judge's R&R, the district
court "shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C.
§ 636(b)(1). "Parties filing objections to a
magistrate's report and recommendation must specifically
identify those findings objected to. Frivolous, conclusive,
or general objections need not be considered by the district
court." United States v. Schultz, 565 F.3d
1353, 1361 (11th Cir. 2009) (quoting Marsden v.
Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)). If there
are no specific objections to factual findings made by the
Magistrate Judge, there is no requirement that those findings
be reviewed de novo. Garvey v. Vaughn, 993 F.2d 776,
779 n.9 (11th Cir. 1993) (citations omitted). Absent
objection, the district court judge "may accept, reject,
or modify, in whole or in part, the findings or
recommendations made by the magistrate judge," 28 U.S.C.
§ 636(b)(1), and may accept the recommendation if it is
not clearly erroneous or contrary to the law. Fed. R. Crim.
P. 59(a). In accordance with 28 U.S.C. § 636(b)(1) and
Rule 59 of the Federal Rules of Criminal Procedure, the Court
has conducted a de novo review of those portions of
the R&R to which Defendant objects and has reviewed the
remainder of the R&R for plain error. See United
States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).
Motions to Suppress Statements and Evidence Taken in
undisputed that at the time of their arrests by Swiss
authorities in August 2016 on attempted trafficking of
cocaine, Defendants were citizens and residents of Guatemala
and had no attachment to the United States. Defendants
contend that they nevertheless have standing to object to the
search, seizure, and taking of statements by Swiss
authorities because agents of the United States "were
substantially involved so as to convert the seizure and
search into a joint United States/Switzerland law enforcement
venture." Defs.' Objs. at 3. The Magistrate Judge
concluded that: (1) because the Fourth Amendment does not
apply to searches conducted outside the United States where
the person has no significant connection to the United
States, Defendants have no standing under the Fourth
Amendment to challenge the admission of evidence gathered by
Swiss law enforcement officers after their arrest in
Switzerland; (2) even if Defendants had standing to challenge
the evidence seized by Swiss authorities, the Fourth
Amendment's exclusionary rule would not apply to the
arrests and searches made by Swiss law enforcement officers
in Switzerland; and (3) Defendants have made no showing that
the facts in this case shock the conscience or that the
United States and Switzerland participated in a "joint
venture," such that a Fourth Amendment challenge would
their objections, Defendants maintain they have standing to
challenge the search and seizure undertaken by Swiss
authorities because "[i]t is hard to believe" that
those authorities were not acting "jointly with and
under the direction of United States Homeland Security
("HSI") agents. Defs.' Objs. at 3-4. Defendants
also complain that the Magistrate Judge improperly denied
them an evidentiary hearing on their motions to suppress.
Id. at 2.
Supreme Court has held that the Fourth Amendment does not
apply to searches of a nonresident alien conducted outside
the United States where the person has no voluntary
attachment to the United States. United States v.
Verdugo-Urquidez, 494 U.S. 259. 274-275 (1990). See
also United States v. Rosenthal, 793 F.2d 1214,
1230-1231 (11th Cir. 1986) ("Evidence obtained by
foreign police officers from searches carried out in their
own countries is generally admissible in American courts
regardless of whether the search complied with the Fourth
Amendment.")- Consequently, the Magistrate Judge's
determination that Defendants have no standing to challenge
the search and seizure of evidence by Swiss authorities in
Zurich, Switzerland is correct.
are two exceptions recognized by the Eleventh Circuit where
this Court could apply the Fourth Amendment exclusionary rule
to foreign searches: "(1) if the foreign officers'
conduct shocks the conscience of the American court and (2)
if American officials participated in the foreign
interrogation, or if the foreign authorities were acting as
agents for their American counterparts, also known as the
joint venture doctrine." United States v.
Frank, 599 F.3d 1221, 1228-1229 (11th Cir. 2010)
(internal punctuation and citations omitted). The first
"exception is based on a federal court's inherent
supervisory powers over the administration of federal
justice." United States v. Emmanuel 565 F.3d
1324, 1330 (11th Cir. 2009) (internal quotation and citations
omitted). The second exception "is based on a
defendant's Fourth Amendment rights." Id.
contend that both exceptions apply. Defs.' Objs. at 3-5.
First, Defendants summarily conclude that "[i]t shocks
the conscience to subject foreign nationals to extreme
punishments for alleged violations of U.S. drug laws"
which is akin to "taxation without representation."
Id. at 5. However, in this case, it is undisputed
that, when Defendants arrived at the Zurich airport, Swiss
police officials determined that Defendants were carrying
narcotics inside their bodies based upon field interviews and
a body scan, and that Defendants later passed
"approximately fifty (50) capsules each that was field
tested positive for cocaine." HSI Report of
Investigation [Doc. 188-2]. This Court agrees with the
Magistrate Judge that "there is nothing shocking about
Swiss officials arresting narcotics traffickers carrying
cocaine in their bodies" or "examin[ing] people in
the airport for narcotics." R&R at 9.
Defendants assert that HSI agents "were substantially
involved" in the search and seizure by Swiss officials
based solely upon an email that was sent by a HSI special
agent to the Swiss police alerting them to the fact that
Defendants would be arriving that day at the Zurich airport
and might be carrying cocaine. Defs.' Objs. at 3-4.
Although there is some evidence to indicate that Swiss
officials never received this email "tip" because
it got caught in a spam email box, see HSI Report of
Investigation, the tip, even if received, would not
constitute American officials becoming "substantial
participants" in the search or that the Swiss
authorities were "acting as agents" of the HSI.
Rosenthal, 793 F.2d at 1231; see also United
States v. Behety, 32 F.3d 503, 511 (11th Cir. 1994)
("Agent Von Bresen's communication to Guatemalan
authorities regarding [the defendants' arrival on a
yacht] and plans to export cocaine is insufficient to bring
the search within the [joint venture] exception.");
United States v. Hawkins, 661 F.2d 436, 455-56 (5th
Cir. 1981) (finding that DEA's notice to Panamanian
authorities regarding the suspected crash of an airplane
carrying cocaine is insufficient to trigger Fourth Amendment
protections); United States v. Heller, 625 F.2d 594,
599-600 (5th Cir. 1980) (finding that a tip from United States
officials to British police regarding the defendant was
"peripheral at most" to the defendant's arrest
and search); United States v. Morrow, 537 F.2d 120,
140 (5th Cir. 1976) ("Normal lines of communication
between the law enforcement agencies of different countries
are beneficial without question and are to be encouraged.
Criminal conspiracies, as this case amply demonstrates, are
sometimes international in scope, and the routine transmittal
of the name and telephone number of a possibly valuable
informant across national borders clearly is permissible
under the fourth amendment.").
Defendants' objections to the Magistrate Judge's
recommendation regarding the requested suppression of
statements and evidence ...