Farris, Joseph R.

English

University of Tulsa College of Law

Tulsa Law Review Volume 10 Issue 3 1975 Constitutional Law--Fourth Amendment Protection against Unreasonable Searches and Seizures Extended to Aliens on Foreign Soil Joseph R. Farris Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr  Part of the Law Commons Recommended Citation Joseph R. Farris, Constitutional Law--Fourth Amendment Protection against Unreasonable Searches and Seizures Extended to Aliens on Foreign Soil, 10 Tulsa L. J. 479 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol10/iss3/14 This Casenote/Comment is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact megan-donald@utulsa.edu. RECENT DEVELOPMENTSjudges are no more capable of appraising human motivations than isthe legislature, and because the statute applies equally to all guests, itdoes not discriminate invidiously and the court should not invade theprovince of the legislature.The Supreme Court of Iowa in Keasling v. Thompson summarilydismissed the equal protection arguments against the Iowa guest statutein finding that "If Silver v. Silver . . .is to be reversed we must ac-knowledge the Supreme Court's exclusive right to do So.''26 Under theruling of Keasling the proper remedy for the injured guest is with thelegislature.Due to the adoption of the significant relationship rule in Bricknerv. Gooden, Oklahoma residents who are injured guests have a greaterchance of recovery in the Oklahoma courts, but their opportunity to sueis by no means absolute. A foreign guest statute may yet defeat re-covery if an Oklahoma court finds that with respect to the particularissue the foreign state had the most significant relationship to the occur-rence and the parties. The only solution which will produce uniformityin this area is for the states which have guest statutes to repeal themor to follow the direction of the Thompson court and declare them un-constitutional.It appears likely that state courts will continue to split in acceptingor rejecting the Thompson rationale. Oklahoma courts can prevent theunequal consequences of these foreign statutes only by ruling that theforum state has the most significant relationship to the parties and ap-plying the law of Oklahoma in all guest litigation.Kenneth L. BruneCONSTITUTIONAL LAW-FoURTH- AMENDMENT PROTECTIONAGAINST UNREASONABLE SEARCHES AND SEIZURES EXTENDED TOALIENS ON FOREIGN SOIL. United States v. Toscanino, 500 F.2d267 (2d Cir. 1974).A tale of international intrigue involving kidnapping and torturehas resulted in a significant decision by the United States Court of Ap-peals for the Second Circuit against illegal searches and seizures by26. - Iowa -, -, 217 N.W.2d 687, 692 (1974).1975]1Farris: Constitutional Law--Fourth Amendment Protection against UnreasonaPublished by TU Law Digital Commons, 1974TULSA LAW JOURNALagents of the United States in foreign countries.' Francisco Toscaninoalleged that he had been kidnapped in Uruguay, tortured for over twoweeks in Brazil and ultimately brought to the United States where hewas convicted in the Eastern District of New York for conspiracy tosmuggle heroin into the United States.Without questioning the sufficiency of the evidence or making anyclaim of error with respect to the trial itself, Toscanino offered to provethat he had been abducted and brought under the jurisdiction of theUnited States in violation of the laws of Uruguay, Brazil and the UnitedStates. Toscanino, an Italian citizen residing in Uruguay, contendedthat he had been lured from his home in Montevideo by a telephonecall from a Uruguayan policeman who had been bribed by Americanagents. He was then knocked unconscious with a gun and thrown intothe car of the policeman and driven by a circuitous route to the Brazil-ian border where he was turned over to Brazilian-American agents.Once in Brazil, Toscanino claimed to have been tortured and interro-gated for seventeen days. The methods employed by his captors weresaid to have included deprivation of food and sleep, electrical shocksto sensitive areas of the body, beatings, and injections of harsh chemi-cals into the nasal and anal passages.Finally, Toscanino was taken to Rio de Janeiro where he wasdrugged and placed on a flight to the United States accompanied byAmerican agents. He alleged that during the entire period of his or-deal that the United States Attorney for the Eastern Distriot of NewYork (and the prosecutor of his case) received regular reports of theprogress of the interrogation. Toscanino also contended that he hadbeen the victim of illegal wiretaps prior to his abduction from Uruguayand that this activity was evidenced by the subsequent arrest in Uruguayof the telephone company employee who had been bribed by Americanagents.The United States Attorney for the Eastern District of New Yorkneither affirmed nor denied the allegations and the district court deniedToscanino's motion for an order vacating the verdict and ordering hisreturn to Uruguay. The lower court relied principally on the UnitedStates Supreme Court decisions of Frisbee v. Collins' and Ker v. Illi-nois,3 both holding that the illegal abductions which brought the de-1. 500 F.2d 267 (1974).2. 342 U.S. 519 (1952).3. 119 US. 436 (1886).[Vol. 102Tulsa Law Review, Vol. 10 [1974], Iss. 3, Art. 14https://digitalcommons.law.utulsa.edu/tlr/vol10/iss3/14RECENT DEVELOPMENTSfendants within the respective jurisdictions of Michigan and Illinoiswere immaterial to the disposition of the cases.The court of appeals reversed the district court's decision and re-manded for a hearing in which the government will be required to re-spond to Toscanino's allegations. Judge Mansfield, writing the major-ity opinion, acknowledged the Ker-Frisbee rule, but held that subse-quent decisions by the Supreme Court have undermined it and ex-panded the interpretation of "due process."No longer is [due process] limited to the guarantee of fairprocedure at trial. In an effort to deter police misconduct,the term has been expanded to bar the government from rea-lizing directly the fruits of its own deliberate and unnecessarylawlessness in bringing the accused to trial.4As support for this broadened interpretation of due process, JudgeMansfield cited Rochin v. California,5 a case decided during the sameterm as Frisbee. In Rochin the Court reversed a conviction for nar-cotics possession obtained after agents, by the forceful induction of anemetic solution, had caused the defendant to vomit up the morphinecapsules which he had swallowed. Justice Frankfurter, speaking forthe majority, stated that:Regard for the requirements of the Due Process Clause 'in-escapably imposes upon this Court an exercise of judgmentupon the whole course of the proceedings in order to ascer-tain whether they offend those canons of decency and fair-ness which express the notions of justice of English-speakingpeoples even toward those charged with the most heinousoffenses.' 6The landmark decision of Mapp v. Ohio,7 wherein the exclusion-ary rule was held applicable to state prosecutions, provided, in JudgeMansfield's opinion, further weakening of the Ker-Frisbee doctrine.That rule, he said, represented a device created by the courts to ".deter disregard for constitutional prohibitions and give substance toconstitutional rights." s The Court of Appeals for the Third Circuit hasalso expressed similar reservations about the continued validity of Ker-4. 500 F.2d at 272. See Miranda v. Arizona, 384 U.S. 436 (1966); Wong Sunv. United States, 371 U.S. 471 (1963); Mapp v. Ohio, 367 U.S. 643 (1961). See alsoPitler 'The Fruit of tie Poisonous Tree"- Revisited and Shepardized, 56 CALIF. L. REV.579, 600 (1968).5. 342 U.S. 165 (1952).6. Id. at 169.7. 367 U.S. 643 (1961).8. 500 F.2d at 273.. .197513Farris: Constitutional Law--Fourth Amendment Protection against UnreasonaPublished by TU Law Digital Commons, 1974TULSA LAW JOURNALFrisbee in Government of Virgin Islands v. OrtizO because it "condonesillegal police conduct".' 0Judge Mansfield was unable to reconcile these subsequent casesand their expansion of due process which has denied to the governmentthe fruits of deliberate pretrial illegality with the Ker-Frisbee rule. IfToscanino's allegations were proven to be true, then only by returninghim to his status quo ante (i.e., returning him to Uruguay) could therequirements of -the fourth amendment and fundamental fairness bemet. In other words, the majority felt that courts must simply divestthemselves of jurisdiction over defendants whose presence has been se-cured by illegal conduct.The existence of an extradition treaty" between the United Statesand Uruguay under which Toscanino's surrender may have been legallyeffected made the narcotics agents' conduct even more reprehensibleto the court. Judge Mansfield relied upon this treaty to distinguish thiscase and United States v. Cotten, 2 wherein the Court of Appeals forthe Ninth Circuit adhered to Ker and Frisbee in affirming convictionsof defendants who had been forcibly taken from Viet Nam to stand trialin the United States. The United States did not have an extraditiontreaty with the Republic of Viet Nam and Judge Mansfield disposedof Cotten by concluding: "Thus the transportation of the appellants tothe United States did not violate international law or an internationaltreaty."The most remarkable portion of the majority's opinion, however,is revealed in the discussion of the allegation of illegal wiretapping ofToscanino's home in Montevideo. Although agreeing with the govern-ment that the statute governing wiretapping' 3 had no application in aforeign country, the court held that an alien on foreign soil was entitledto the protection of the United States Constitution when he is the victimof unlawful conduct by United States government agents. Thoughnecessarily implied from the early portion of the opinion, the court hereexpressly held that:No sound basis is offered in support of a different rule withrespect to aliens who are the victims of unconstitutional ac-tion abroad, at least where the government seeks to exploit9. 427 F.2d 1043 (3d Cir. 1970).10. Id. at 1045 n.2.11. 35 Stat. 2028 (1908).12. 471 F.2d 744 (9th Cir. 1973).13. 18 U.S.C. § 2510 et seq.[Vol. 104Tulsa Law Review, Vol. 10 [1974], Iss. 3, Art. 14https://digitalcommons.law.utulsa.edu/tlr/vol10/iss3/14RECENT DEVELOPMENTSthe fruits of its unlawful conduct in a criminal proceedingagainst the alien in the United States. 4It has long been held that an alien within the jurisdiction of theUnited States is entitled to constitutional guarantees, 15 as are Americanson foreign soil when dealing with the United States government.' 6Here, however, as was said by Judge Mulligan, who dissented from thecourt's refusal to reconsider the case, the original decision ". . . holds,for ,the first time and without any discernible authority, that the FourthAmendment protects a foreign national while residing on alien soilagainst 'unlawful searches and seizures.' "17The court of appeals' holding is conceptually interesting. Onewould think that the term "unconstitutional" appears by definition tobe describing a force of some sort (a statute or police action, for ex-ample) working to deprive a person protected by the Constitution ofsome right guaranteed by it. Here, however, the Second Circuit' holdsin effect that one can be acting unconstitutionally toward another whoheretofore had not been entitled to the protection of the Constitution.Clearly, conduct such as that alleged should be deterred by ourcourts by refusing to the government the opportunity to exploit its fruits.Perhaps, however, the Second Circuit should not have gone so far asto extend constitutional protection to aliens in foreign countries. Al-though similar rights for the citizens of the world are to be desired, thepractical effect of such a holding is to make international fugitives im-mune from prosecution for federal crimes in United States courts unlessUnited States Constitutional criminal procedure is followed by federalagents in the country where they are apprehended.' 8 Most wouldagree that the procedural safeguards which the American agent couldpersonally extend to the subject of the investigation should be extended(e.g., Miranda warning). However, when the legal system of a foreigncountry does not afford a method by which American agents can com-14. 500 F.2d at 280.15. Au Yi Lau v. United States Immigration and Naturalization Service, 445 F.2d217, cert. denied, 404 U.S. 864 (1971).16. Reid v. Covert, 354 U.S. 1 (1957).17. Wall Street Journal, Oct. 16, 1974 at 2, col. 1.18. As Judge Mansfield implied, the "silver platter" doctrine is still in effect withregard to evidence obtained by foreign officials:The Constitution, of course, applies only to the conduct abroad of agents actingon behalf of the United States. It does not govern the independent conductof foreign officials in their own country. [Citations omitted]. Whether or notUnited States officials are substantially involved, or foreigners are acting astheir agents or employees, is a question of fact to be resolved in each case.500 F.2d at 280 n.9.1975]5Farris: Constitutional Law--Fourth Amendment Protection against UnreasonaPublished by TU Law Digital Commons, 1974TULSA LAW JOURNALply with the more technical procedural requirements of the UnitedStates, then perhaps our courts should be more reluctant to exclude evi-dence obtained in the foreign country.Judge Mansfield apparently relied upon the First Circuit decisionof Best v. United States 0 as support for his statement that, "It is noanswer to argue that the foreign country which is the situs of the searchdoes not afford a procedure for issuance of a warrant."20  The Bestdecision, however, indicated only that constitutional rights cannot besuspended in a foreign country when the United States is governing thatcountry (in this case, occupied Austria). Thus, even though UnitedStates citizens may not necessarily be assured of all procedural protec-tions when in a country where no equivalent legal machinery exists,Judge Mansfield's interpretation of Best and his generosity with Consti-tutional rights would insure such protection for aliens.21Judge Anderson, concurring in the result, would not have basedthe decision upon such broad grounds:[T]his court need not hold that the Bill of Rights has extra-territorial application for foreign nationals. Defendant couldshow that he was carried into this jurisdiction in violation ofthe Fourth Amendment, but the Government need not com-ply with the Fourth Amendment or the United States wiretaplaws in foreign jurisdictions. To hold otherwise would benovel and would make unreasonable demands on our foreignagents, who by following the laws of the country in whichthey are staying could at the same time find themselves indefiance of United States constitutional safeguards.22The court could have easily achieved the same result without anexpress holding that aliens are protected by the Constitution simply byrefusing to take jurisdiction when (1) the actions of the Americanagents violate the laws of the country where the accused is appre-hended, or (2) by declaring the Federal court system will not be de-meaned by exercising jurisdiction when sufficiently improper conductby American agents is involved. The majority, however, appeared toderive moral support for its reasoning from the dissenting opinion of19. 184 F.2d 131, 138 (1st Cir.), cert. denied, 340 U.S. 939 (1950).20. 500 F.2d at 280.21. The opinion is silent as to the possible ramifications of such a holding. Forexample, do the constitutional guarantees only attach when the alien is the object of aninvestigation by federal agents and do they disappear when the investigation is dropped?Would an alien later have a cause of action against federal agents for violating his con-stitutional rights?22. ld. at 281.[Vol. 106Tulsa Law Review, Vol. 10 [1974], Iss. 3, Art. 14https://digitalcommons.law.utulsa.edu/tlr/vol10/iss3/14

Constitutional Law--Fourth Amendment Protection against Unreasonable Searches and Seizures Extended to Aliens on Foreign Soil

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Constitutional Law--Fourth Amendment Protection against Unreasonable Searches and Seizures Extended to Aliens on Foreign Soil

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