United States v. Aleem , 641 F. App'x 96 ( 2016 )

15-186
United States v. Aleem
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 11th day of March, two thousand sixteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
ROBERT D. SACK,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee,
v. No. 15-186
MOHAMMED A. ALEEM,
Defendant-Appellant.
For Appellee: Sean O’Dowd and Rajit S. Dosanjh,
Assistant United States Attorneys, for
Richard S. Hartunian, United States
Attorney for the Northern District of New
York, Syracuse, NY.
For Defendant-Appellant: Malvina Nathanson, New York, NY.
Appeal from a judgment of the United States District Court for the Northern District of
New York (Sharpe, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Mohammed Aleem appeals a judgment of conviction entered on
January 9, 2015, and amended on February 5, 2015, by the United States District Court for the
Northern District of New York (Sharpe, J.), following a jury verdict finding him guilty of one
count of alien smuggling in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). We assume the parties’
familiarity with the underlying facts, procedural history, and issues on appeal.
Aleem’s sole argument on appeal is that evidence that was obtained by the Royal
Canadian Mounted Police (“RCMP”), and which the government used in his criminal
prosecution, should have been suppressed because the RCMP officers were acting as agents of
the U.S. Border Patrol and violated his Fourth Amendment rights.
“On appeal from a district court’s ruling on a motion to suppress evidence, ‘we review
legal conclusions de novo and findings of fact for clear error.’” United States v. Bershchansky,
788 F.3d 102, 108 (2d Cir. 2015) (quoting United States v. Freeman, 735 F.3d 92, 95 (2d Cir.
2013)). We “review de novo mixed questions of law and fact.” Id. Whether foreign law-
enforcement officers were acting as agents of the U.S. government is a mixed question of law
and fact. Cf. Cabrera v. Jakabovitz, 24 F.3d 372, 385–86 (2d Cir. 1994).
We have consistently held that “suppression is generally not required when the evidence
at issue is obtained by foreign law enforcement officials.” United States v. Getto, 729 F.3d 221,
227 (2d Cir. 2013) (quoting United States v. Lee, 723 F.3d 134, 140 (2d Cir. 2013)). The logic
behind this rule is that, “in this context, the Fourth Amendment’s exclusionary rule does not
2
serve the deterrence purpose for which it was designed because ‘the actions of an American
court are unlikely to influence the conduct of foreign police.’” Lee, 723 F.3d at 139 (quoting
United States v. Valdivia, 680 F.3d 33, 51 (1st Cir. 2012)).
We have, however, “recognized two circumstances where evidence obtained in a foreign
jurisdiction may be excluded. First, where the conduct of foreign officials in acquiring the
evidence is so extreme that [it] shock[s] the judicial conscience . . . [and] [s]econd, where
cooperation with foreign law enforcement officials may implicate constitutional
restrictions . . . .” Id. at 140 (quoting United States v. Maturo, 982 F.2d 57, 60–61 (2d Cir.
1992)). Under the second circumstance, “constitutional requirements may attach in two
situations: (1) where the conduct of foreign law enforcement officials rendered them agents, or
virtual agents, of United States law enforcement officials; or (2) where the cooperation between
the United States and foreign law enforcement agencies is designed to evade constitutional
requirements applicable to American officials.” Id. (quoting Maturo, 982 F.2d at 61). “[T]o
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.”
Getto, 729 F.3d at 230. Contrary to Aleem’s suggestion, “[i]t is not enough that the foreign
government undertook its investigation pursuant to an American . . . request.” Id.
Based on the district court’s factual findings, which, as noted, are reviewed for clear
error, we agree with the district court’s legal conclusion that the RCMP officers were not acting
as virtual agents of the U.S. government. Briefly, on the night in question, a U.S. Border Patrol
civilian employee phoned his Canadian counterpart, informing him that (1) the U.S. Border
Patrol had detected a motion-sensor alert on the U.S. side of the border in an area known to
authorities on both sides of the border as a human smuggling area, (2) an individual was running
3
southbound, (3) a “drop-off” vehicle was stationary on the Canadian side, and (4) U.S. Border
Patrol units were responding to the southbound runner. The U.S. Border Patrol civilian officer
never directed the RCMP to stop the drop-off vehicle, much less question its occupant or search
its contents. Likewise, on his second call, the U.S. Border Patrol civilian employee merely (1)
informed his Canadian counterpart that the southbound runner was in custody and (2) asked for
the drop-off vehicle’s registration information. The RCMP eventually arrested Aleem, the
vehicle’s occupant, and handed both him and evidence obtained from his vehicle over to the U.S.
Border Patrol. Put simply, the interaction between the U.S. Border Patrol and RCMP constitutes
information sharing, not direction or control.
The district court held in the alternative that, “[e]ven if the arrest at issue were effectuated
by U.S. law enforcement and analyzed under Fourth Amendment principles and U.S. law, the
arrest was supported by probable cause.” United States v. Aleem, 88 F. Supp. 3d 110, 116 n.8
(N.D.N.Y. 2014). Because we agree with the district court’s primary holding, we express no
view as to whether the Fourth Amendment, assuming it applied to the circumstances here, would
have required probable cause for such an overseas search or seizure, see In re Terrorist
Bombings of U.S. Embassies in E. Afr., 553 F.3d 150, 151–52 (2d Cir. 2008) (per curiam), or
whether there was or could have been a constitutional violation to begin with, see generally
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (discussing extra-territorial application
of the Fourth Amendment).
We have considered the remaining arguments advanced on appeal and find no basis for
reversal. For the reasons stated herein, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4