      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



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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



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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




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