No published opinions today; only two summary orders (from the same panel of Katzmann, Sack, and Lohier) rejecting Fourth and Fifth Amendment challenges by the defendant.
In United States v. Mohammed Aleem, No. 15-186, the Court rejected appellant’s argument that evidence obtained by the Royal Canadian Mounted Police (RCMP), and later used in his prosecution, should have been suppressed because RCMP officers were acting as agents of the U.S. Border Patrol (and because their actions otherwise violated the Fourth Amendment). Relying on United States v. Getto, 729 F.3d 221, 227 (2d Cir. 2013), the Court ruled that “to render foreign law enforcement officials virtual agents of the United States, American officials must play some role in controlling or directing the conduct of the foreign parallel investigation”; “it is not enough that the foreign government undertook its investigation pursuant to an American . . . request.” Order at 3.
And unfortunately for Mr. Aleem, that is all that occurred here (or, more precisely, all that the district court found): American officials did not control or direct their Canadian counterparts, or even ask them to arrest Aleem and question him and search his vehicle. As the Court put it, “the interaction between the [] Border Patrol and the RCMP constitutes information sharing, not direction or control.” Order at 4.
In United States v. Von Simmonds, No. 15-577, the Court principally rejects two Fourth (and Fifth) Amendment arguments – one claiming that Simmonds was in “custody” when he was questioned without Miranda warnings by an FBI agent and the other claiming that law enforcement agents violated the Constitution when they, without a warrant, entered a street-level door (of a multi-unit building) to access a hallway and stairwell that led to the door of the apartment in which Simmonds was an overnight guest. No new law is made; the Court rejects both arguments after canvassing the facts as found by the district court.
One point worth noting: The parties disputed whether the defense or the Government carried the burden of proof regarding whether Simmonds was in “custody” when he was questioned without Miranda warnings. The Circuit noted that courts disagreed on this question, Order at 4, but declined to resolve it “because we conclude that the totality of circumstances show that Simmonds was not in custody regardless of which party had the burden of proof.” Id. at 5.
-Yuanchung Lee
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