The 4th Amendment and U.S. Citizens Abroad

This post is about a case in which a U.S. citizen claimed that a search conducted in Thailand primarily by Thai police violated his rights under the 4^th Amendment.

The case is U.S. v. Stokes, 2009 WL 4894600 (U.S. District Court for the Northern District of Illinois 2009). Charles Stokes was “charged with traveling in interstate and foreign commerce for the purpose of engaging in a sexual act with a minor” in violation of 18 U.S. Code § 2423(b). U.S. v. Stokes, supra.

The opinion we’re concerned with contains the federal district court judge’s ruling on Stokes’ motion to suppress “several items, including depictions of child pornography,” which the Thai police found when they searched his home in Thailand. U.S. v. Stokes, supra.

The events that led up to the search began when U.S. Immigration and Customs Enforcement (ICE) agents heard Stokes (i) had been fired from his job teaching English at a Thai school for allegedly “engag[ing] in inappropriate contact with young students,” (ii) had a “criminal history involving crimes against children in the United States” and (iii) had told teachers he once worked with that he had “`a boy or two’ living with him”. U.S. v. Stokes, supra. Based on that, ICE Agent Phillips contacted the Royal Thai Police, who told him they were already investigating Stokes because the manager of a building where he once lived told an officer he saw “two young boys visiting Stokes’ quarters.” U.S. v. Stokes, supra.

ICE agents “initiated surveillance of Stokes’ home in Pattaya in September 2003”, but soon found it necessary to ask the Royal Thai Police to help with the surveillance. U.S. v. Stokes, supra. ICE Investigator Paisarn asked Thai Police Colonel Thongsuk for assistance, and while the opinion doesn’t explicitly say that the Thai police helped with the surveillance, I get the sense they did, at least to some extent. U.S. v. Stokes, supra. And that brings us to the search warrant and the search:

Thai authorities informed Paisarn and Phillips that the Thai provincial court of Pattaya had issued a warrant allowing Colonel Thongsuk and his men to search Stokes's home. Colonel Thongsuk requested that Paisarn and Phillips accompany the Thai police officers to observe the search and assist with English translation if needed. . . .

On . . . October 9, 2003, Thai officers, commanded by Colonel Thongsuk, executed the warrant with assistance from Paisarn, Phillips, and other ICE investigators. The ICE agents and Thai police officers met outside Stokes's home at 6:10 a.m. Stokes was not home . . . so the officers waited for his return before attempting to enter. . . .

[W]hen Stokes arrived . . . Colonel Thongsuk . . . informed Stokes that Thai police had a warrant and intended to search the house. When it was clear Stokes could not understand what Thongsuk was saying, Thongsuk called Paisarn over to translate. Paisarn read the warrant . . . to Stokes in English. This was the first time Paisarn read the warrant. Phillips . . . did not read the warrant. According to the certified English translation, the warrant empowered the Thai police to . . . search Stokes's residence `. . . ` to locate and seize any illegal items and narcotics . . . of which possession is considered illegal . . . or which has been used or is intended to be used to commit a crime.’ . . .

Stokes allowed the Thai officers and ICE officers into the house. The Thai officers and Paisarn immediately moved to secure the house. Phillips entered only after the home was secured and he was invited in by Thai officers. Phillips . . . did not engage in an independent search of the home. . . .

Thai officers heard noises coming from an upstairs room. Stokes led Paisarn and Thai officers to the upstairs master bedroom where . . . the noise emanated from a television set. Paisarn searched the closet of the master bedroom, where he found a camera. . . . Paisarn turned on the camera and discovered that the camera contained photographs of children committing sexual acts. Paisarn called Colonel Thongsuk . . . and showed Thongsuk the camera and photographs. Thongsuk questioned Stokes as to the identity and location of the children in the photographs and told Paisarn to examine the full contents of the camera for `anything else that is illegal in the Thai law.’ . . .

Colonel Thongsuk discovered a safe in the master bedroom. . . . Stokes opened the safe, and Thai officers recovered a compact disc inside. In response to questioning from Paisarn, Stokes admitted the disc contained pornographic images of children and Stokes had made some of the images on the disc. Thai police also seized Stokes' computer after Phillips unplugged and disconnected the computer in a way that prevented the destruction of forensic evidence contained on the hard drive.

U.S. v. Stokes, supra. As noted above, Stokes was charged with violating 18 U.S. Code § 2423(b) and moved to suppress evidence recovered from the search of his home. U.S. v. Stokes, supra. Stokes claimed that (i) the Thai warrant was invalid, (ii) the ICE “agents involved in the search exceeded the scope of the warrant” and (iii) “the search was constitutionally unreasonable.” U.S. v. Stokes, supra. In other words, he argued that the search and seizure violated the 4^th Amendment.

In ruling on his motion, the judge did not immediately address the merits of Stokes’ 4^th Amendment arguments. Instead, she began with whether the 4^th Amendment applied to the search of Stokes’ home and the seizure of his property. U.S. v. Stokes, supra. She noted that the 4^th Amendment has two independent clauses: the Warrant Clause and the Reasonableness Clause. U.S. v. Stokes, supra. (You can see that for yourself if you look at the text of the amendment, which you can find here.)

She found the 4^th Amendment was “implicated in this instance” because the case “involves conduct by agents of the United States and Thailand to search the home and seize the property of an American Citizen living abroad”. U.S. v. Stokes, supra. The judge noted that while the 4^th Amendment usually does not “apply to searches by foreign authorities in their own countries, even if the targets . . . are American citizens”, an exception applies “when the participation of United States agents in the investigation is so substantial that the action is a joint venture between the United States and foreign officials.” U.S. v. Stokes, supra. She held that the involvement of the ICE agents in the search was substantial enough to establish that it “was a joint operation” that implicated the 4^th Amendment. U.S. v. Stokes, supra.

The judge then turned to Stokes’ first two arguments, both of which implicated the 4^th Amendment’s Warrant Clause. After reviewing relevant cases, she held that it was a

matter of first impression in this Circuit whether the Warrant Clause . . .governs searches and seizures of U.S. citizens in foreign lands. The court is not aware of any case . . . that holds that the Warrant Clause ever applies in foreign territory. Such an extension of the warrant requirement would be, in Justice Harlan's words, `impractical and anomalous.’ Accordingly, the court holds that the Warrant Clause does not apply to the search of Stokes's residence in Thailand. Stokes's objections to the search based on the invalidity of the Thai warrant and the scope of the search are overruled.

U.S. v. Stokes, supra (quoting Reid v. Covert, 354 U.S. 1, 74 (1957) (Justice Harland, concurring). (When the Stokes judge says the issue is a “matter of first impression in this Circuit,” she means the U.S. Court of Appeals for the Seventh Circuit hasn’t ruled on this issue. The Seventh Circuit’s decisions bind federal district courts in Illinois; the Seventh Circuit is, in effect, an Illinois federal district court judge’s immediate “boss” . . . . the Supreme Court being the judge's ultimate "boss.")

The judge then took up Stokes’ third argument: that the search was “unreasonable” under the 4^th Amendment. She noted that unlike the Warrant Clause, the Reasonableness Clause “`shelters [U.S.] citizens wherever they may be in the world from unreasonable searches by our own government.’” U.S. v. Stokes, supra (quoting U.S. v. Conroy, 589 F.2d 1258 (U.S. Court of Appeals for the Fifth Circuit 1979)). The judge ultimately held, though, that “the government’s conduct in this case was not unreasonable.” U.S. v. Stokes, supra.

She based that holding on the justification for the search (it occurred “only after lengthy investigations by both Thai and American authorities”) and the way the search was executed (the “entry into Stokes’ home was not unreasonable” nor was the way the search was conducted). U.S. v. Stokes, supra. As to the last point, the judge noted that the search “was conducted in an orderly fashion so as to avoid unnecessary harm or disruption to Stokes’s belongings” and “lasted roughly two hours, not an excessive amount of time”. U.S. v. Stokes, supra.

Finally, she addressed another issue Stokes raised: He claimed the search of his camera and computer were unreasonable because the Thai warrant authorized a search for “drug-related evidence” which, he argued, could not reasonably have been found in his camera or computer. U.S. v. Stokes, supra. He lost again: The judge rejected this argument because she found U.S. agents relied in good faith “on the representations of Thai legal authorities”. U.S. v. Stokes, supra. In other words, she found the ICE officers had no reason to know that the warrant did not authorize a search for child pornography. U.S. v. Stokes, supra. After noting that “[i]t is well settled that the exclusionary rule does not apply when police act in objectively reasonable reliance on a subsequently invalid search warrant”, she held that “the American ICE agents engaged in no misconduct”. U.S. v. Stokes, supra. “Given that the concern for deterrence that motivates the exclusionary rule is not implicated here, the suppression of evidence would be inappropriate in this case.” U.S. v. Stokes, supra.