Verdugo Case Ruling Provokes Legal Storm : Judge Toughens Rules on Foreign Evidence

U.S. agents admitted the arrest was a bit unusual.

After all, they had paid six Mexicans in early 1986 to abduct Rene Martin Verdugo, stuff him blindfolded into the back of a car and push him through a hole in the border fence at Calexico into the waiting hands of U.S. marshals.

Unusual--but not shocking enough to prompt U.S. Dist. Judge J. Lawrence Irving to throw out drug smuggling charges against the Mexicali man.

Yet Irving could be pushed only so far. When defense lawyers asked him to bar prosecutors from using evidence seized in searches of Verdugo’s Mexican homes--searches in which American drug agents were accompanied by a Mexican policeman who was himself a fugitive from two U.S. drug indictments and by a Mexican police commandant the agents suspected of corruption--Irving dug in his heels.

Violation Ruled

In February, the judge ruled that the Drug Enforcement Administration searches violated 4th Amendment protections against unreasonable searches and seizures. And Irving proposed a novel device to prevent further misconduct by federal agents. In the future, he said, they would have to obtain a warrant from a federal judge--and approval from foreign authorities--before conducting searches overseas.

The virtually unprecedented decision--now on appeal before the U.S. 9th Circuit Court of Appeals--has provoked sharp debate in law enforcement and legal circles.

Incredulous federal police agencies and prosecutors contend that Irving’s ruling not only ignored established legal tradition but set up an impractical standard for agents’ conduct that could damage international police relations and impede investigations of drug smuggling, terrorism and other crimes that ignore national borders.

“We all sometimes have a tendency to say we wish the rest of the world were as good as America, certainly in due process and criminal matters,” said Asst. U.S. Atty. Roger Haines Jr., who is handling the government’s appeal of Irving’s decision. “The problem is, we don’t control those countries, and we can’t impose our standards on those countries.”

Backed by Defense Lawyers

Defense lawyers and some academicians, meanwhile, say Irving cut through a thicket of confusing legal history to instate constitutional principles as the guideposts of U.S. agents’ conduct abroad. Law enforcement, they argue, should not be encouraged to take advantage of the lower standards of other nations by courts that close their eyes to misconduct that occurs overseas.

“What is growing in the area of criminal law enforcement is the area of total unaccountability,” said San Francisco attorney Ephraim Margolin, president-elect of the National Assn. of Criminal Defense Lawyers, who is arguing the same set of issues in another case pending before the appeals court. “The government suggests that there are no limits on the kinds of bastardy that can be committed.”

The Verdugo case--which had already attracted wide interest because of allegations that Verdugo was tied to the kidnaping and murder in Mexico of U.S. drug agent Enrique S. Camarena early in 1985--has helped crystallize lingering questions about the reach of the Constitution abroad and the rules that should govern police work in an age of increasingly sophisticated international crime.

Few Fetters

Historically, federal courts have held that there are few fetters on the activities of U.S. agents operating overseas. No charges have ever been dismissed because of the way officers went about gaining custody of a defendant--not when, as in the Verdugo case, there have been allegations of kidnaping, or even when there have been claims of torture at the hands of the foreign agents assisting U.S. law enforcement in a suspect’s capture.

Only rarely, moreover, have the federal courts punished law enforcement for its conduct by blocking the use at trial of evidence improperly collected outside the United States, according to legal scholars. If the evidence was collected by foreign officers and simply handed over to American investigators, the courts have reasoned, no lesson would be taught to U.S. agents by invoking the so-called “exclusionary rule” to bar use of the evidence in a U.S. court.

But cases like Verdugo’s inhabit a special niche in the law where the rules are less settled. When American agents have worked side by side with their foreign counterparts in collecting evidence--and, perhaps, have initiated and directed the investigative work--American courts have sometimes thrown out the evidence when the investigation was tainted by misconduct.

The status of the suspect is important, however: Courts generally have held that U.S. citizens and resident aliens have more protection from improper searches than foreign nationals, like Verdugo.

Irving’s decision, lawyers agree, was groundbreaking in several respects.

Extended Protection

First, he extended 4th Amendment protections to Verdugo, on the grounds that he was already facing U.S. charges and in U.S. custody at the time American agents went to Mexico to search his homes.

More surprising, Irving held that U.S. drug agents should have obtained a warrant from a U.S. court and the approval of proper Mexican authorities before searching the houses in Mexicali and Playa del Sol. Though it had not been the American agents’ practice to obtain warrants for searches in Mexico, Irving said they should have known--or at least found out by asking--that both the U.S. and Mexican constitutions required warrants for such searches.

The warrant requirement is law enforcement’s gravest concern about Irving’s decision. Top Drug Enforcement Administration and Justice Department officials are eager for a reversal, out of fear that the ruling, if established as precedent, could confound investigations worldwide.

“It could affect, for instance, the Justice Department’s efforts to deal with terrorists in the Middle East,” explained U.S. Atty. Peter Nunez. “It could affect any district that has an investigation involving Colombian cocaine.”

Written Arguments

Haines focuses on the potential pitfalls in his written arguments before the 9th Circuit.

“It would be virtually impossible to obtain United States warrants for distant countries like Bolivia or Thailand,” he says. “DEA agents abroad should not have to suspend their investigations while they wire affidavits back to the United States in support of a warrant authorizing the search of some remote mountain hut.”

The broader question raised by the ruling is whether American courts have any business--by insisting on warrants or any other mechanism--imposing restrictions on criminal investigations overseas.

Prosecutors say they don’t, except in the most unusual circumstances. To grant courts that power, they argue, requires U.S. agents and U.S. judges to second-guess foreign officials’ understanding of their own nations’ laws and practices--a stance Haines terms “judicial imperialism.”

Search Approval Obtained

In the Verdugo case, he notes in his brief, Mexican police obtained the approval of both the director general of the Mexican Federal Judicial Police and the Mexicali representative of the Mexican attorney general before allowing U.S. drug agents to join them in searching Verdugo’s houses.

To expect the U.S. agents to have doubted the foreign approvals--especially when they had never seen a Mexican officer obtain a warrant for a search--would establish an impossible, and possibly offensive, standard for law enforcement conduct, Haines contends.

“It is ‘judicial imperialism’ to insist that foreign governments bow to the demands of the United States Constitution and American courts whenever we ask them to conduct a search under their authority in their own country,” Haines writes in the brief. “It is equally offensive for our courts to establish themselves as judges of the legality of the official acts of foreign governments done in their own countries under their own laws.”

Instead, he argues, the appropriate standard for U.S. agents’ conduct is very much like the age-old dictum of St. Ambrose: “When you are in Rome, live in the Roman style; when you are elsewhere, live as they do elsewhere.” Short of condoning or abetting torture or other human-rights violations, he says, American agents should be free to follow a foreign nation’s own rules when gathering evidence overseas.

Submitted Brief

Verdugo’s lawyers, defending Irving’s decision in a brief they submitted to the 9th Circuit last week, insist that American law enforcement should be held to a higher standard.

The searches in Mexico exemplified the kind of conduct U.S. courts should not condone, attorney Patrick Hall argues in the defense brief. Besides the presence of allegedly corrupt Mexican officials, they were marked by the theft by Mexican police of Verdugo’s car and the seizure of his firearms. Buildings were broken into and searched at night, he notes, and no notice was left at the unoccupied Playa del Sol house to distinguish the search from a common burglary.

Relying on the “when in Rome . . . “ rule under such circumstances is “disturbing,” Hall says.

“Merely because some corrupt Mexican police officers conduct searches in such an unreasonable manner clearly does not constitute a basis for acceptance or judicial condonance of such a procedure,” his brief says.

Increased Reliance

Nor does Hall go along with the notion that U.S. agents and U.S. courts should resist second-guessing foreign police. If American courts assume they are incompetent to evaluate actions taken overseas, he argues, American law enforcement agencies may simply increase their reliance on improper overseas investigations to avoid judicial oversight.

“It is hard to conceive of a situation in which a DEA agent could not rationalize any illegal search on the grounds that he merely deferred to a foreign official’s actions,” Hall writes.

In both academic circles and the courts, debate on the issues raised by Irving’s ruling has been sharp.

Abraham Abramovsky, a professor at the Fordham Law School in New York, has written law review articles warning that federal prosecutors seem intent on harvesting the fruits of investigations conducted in nations that have standards far below America’s own. He envisions a day when U.S. prosecutors will go even further, relying on a web of treaties to have suspects tried in foreign courts under foreign rules and then, only at the end of the judicial process, have them returned to the U.S. to serve their sentences in less onerous American jails.

Predicts Reversal

“It’s a very unappealing policy,” Abramovsky said in an interview last week. He applauded Irving’s ruling, but called it an “aberration” and predicted that the 9th Circuit would overturn it.

Paul Stephan III, a professor at the University of Virginia School of Law, says the courts’ prevailing inclination to permit use of evidence gathered overseas is appropriate. In articles, he has argued that blocking use of such evidence will do little to deter police misconduct. In any event, he says, it should be left to Congress and the president--not the courts--to make decisions about how alien defendants should be treated in U.S. courts.

By entering into negotiations about how other nations’ citizens will be treated in U.S. courts, the U.S. may be able to win protections for its citizens overseas, Stephan explained in an interview last week.

“That isn’t to say these rights aren’t a good thing,” he said. “But I feel it ought to be through the treaty process, through bargaining, rather than by the courts unilaterally imposing these restrictions on U.S. agents without getting anything back from someone else.”

Court Struggle

The 9th Circuit, meantime, is having its own struggle over the proper rules for overseas investigations.

Just weeks after Irving’s ruling in the Verdugo case, the appeals court issued a decision holding that evidence collected abroad by means that violate American legal standards can be used in U.S. courts as long as American agents have the assurance of their foreign counterparts that the investigative conduct was legal under the foreign country’s laws.

The case challenged the use by the DEA in a marijuana smuggling case of information obtained from a wiretap conducted by Philippine police. After reviewing Philippine search-and-seizure law, the 9th Circuit judges ruled that the wiretap was illegal. But because the Filipino officials has assured their U.S. counterparts that the tap was authorized, the court permitted the use of the evidence.

Both sides have asked the appeals court to take the unusual step of convening a hearing before all its 28 judges to reconsider the decision.

Wants Ruling Revised

Haines--who also is handling the Philippines case--wants the court to revise its ruling to recognize that American judges should not even consider whether the Filipino officers’ conduct was appropriate under Filipino law. Even if the decision stands in its present form, however, Haines says it requires the appellate court to overturn Irving’s decision in the Verdugo case.

Hall argues that the cases differ sufficiently--mainly in the heavier involvement of U.S. agents in the Mexican searches than in the Filipino wiretapping--that Irving’s ruling can be upheld.

Meanwhile Margolin, who represents the defendants in the Philippines case, wants the appeals court to rethink its decision and instead follow Irving’s lead in extending the 4th Amendment’s reach.

“The notion that the U.S. can disclaim any illegality by its partners hypothetically could extend to a situation where we invite a dictator to torture people or kill them, and then we say, ‘Our hands did not shed this blood--the dictator did it,’ ” Margolin said.

“I think this is the kind of moral opaqueness that may be the tenor of the times,” he said. “But it ill becomes those who make that argument.”