We could not, for example, evade the Fourth Amendment by using foreign police officers as a
means of conducting searches that we could not conduct ourselves. If we use them as our agents in
an attempt to get around the Fourth Amendment, the courts will stop us. As an example, furnishing
information to the officials of a foreign government is not improper, unless the purpose of this action is
to get the foreign officials to conduct a search that we could not do ourselves. U.S. v. Morrison, 12 MJ
272 (CMA, 1982). If the American authorities become directly involved in the search, such as by
assisting in the search itself, this will trigger the Fourth Amendment. U.S. v. Armstrong, 9 MJ 374
(CMA, 1980). A key issue is whether or not the foreign officials were acting as our agents. In other
words, if we could not lawfully do the search, did we simply ask them to, in order to evade or
circumvent the requirements of the Fourth Amendment? If this is what has occurred, it is not
considered to be a foreign search. It will be treated as an American search, and it must meet the
requirements of the Fourth Amendment. U.S. v. Jones, 6 MQ 226 (CMA, 1979).
In one case, the court found that the exchange of information between American and British law
enforcement agents was "commonplace." The "mere furnishing of information to local law enforcement
officials by American investigative agencies does not justify a conclusion that it was done for the
purpose of instigating the accused's arrest." Again, if we act simply to circumvent (evade) the Fourth
Amendment, the courts will apply the Fourth Amendment. In effect, it will then be treated not as a
foreign search, but as an American search, involving U.S. governmental action. U.S. v. Koch, 15 MJ
847 (AFCMR, 1983).
Remember, the purpose of this rule "is to prevent American authorities from evading constitutional
protection by using foreign personnel to conduct a search or seizure that would have been unlawful if
conducted by Americans." This requires an element of causation, and more than our mere presence.
The presence of American officials may be for such legitimate purposes as simply to observe, to protect
American property, or to act as interpreters. Our mere presence, you will recall, does not convert it into
an American search. U.S. v. Baker, 16 MJ 689 (ACMR, 1983).
To sum up the issue of the foreign search, the accused may have had a reasonable expectation of
privacy in the area searched. This, however, is not enough to trigger the Fourth Amendment. There
must also be governmental action. This element is lacking here; consequently, the Fourth Amendment
is not applicable. Remember, this must not simply be an attempt to evade the law by having the foreign
officials do something that we could not do ourselves. If that is the situation, the courts will consider it
to be an American search, not a foreign one.
MP1021
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