7. The Dominican officers returned to Mr. Staino's residence to arrest him. Tr. 20. According to Agent Warner, he did not instruct them to take defendant into custody. Tr. 31. They made an independent decision to arrest Mr. Staino. Tr. 31-32.
8. Mr. Staino testified that the two men who had just spoken with him again came to his door. Tr. 49. This time they arrived with drawn guns and told him that he was under arrest. Tr. 49. He also noticed four other officers with drawn guns surrounding the house. Tr. 50. Mr. Staino claimed that two of the officers present were United States Marshals, whom he recognized on the plane from Puerto Rico. Tr. 49. I am unable to credit defendant's testimony because he was unable to identify one of the Marshals on the plane, see supra para. 4, and because he was unsure whether one or two Marshals accompanied him on his flight to Philadelphia. Tr. 64. Moreover, on cross-examination Mr. Staino did not know whether the Marshal(s) had guns (Tr.64), even though he had testified on direct examination that the officers surrounding the house had their guns drawn. Tr. 50. I credit Agent Warner's testimony that he did not see any Marshals arrest defendant or search his residence.
9. Defendant was placed in handcuffs and brought outside the house. Tr. 51. At this time, Agent Warner walked up the driveway with Agent Williams and approached defendant. Tr. 20. With Agent Williams interpreting for Agent Warner, Agent Warner identified defendant after asked to do so by the Dominican officials. Tr. 20-21. Agent Warner and Mr. Staino exchanged words in the driveway (Tr. 21, 54), but Agent Warner did not attempt to question him. Tr. 24, 54.
10. Agent Warner took pictures of the defendant outside his home with a camera belonging to the Dominican officials. Tr. 55, 69, 78. They gave Agent Warner permission to use the camera. Tr. 78. They also took some photographs at the scene. Tr. 78-80.
11. The Dominican officials told Agent Warner that the search of the residence would take place upon the arrival of the local District Attorney, who would identify himself to the defendant and conduct the search. Tr. 22-23. The District Attorney came to defendant's residence. Tr. 22. Mr. Staino testified that a man in a suit came to his home while he was in custody, but that he did not know his identity. Tr.61-62.
12. While the search was being conducted by the Dominican officials, Agent Warner remained outside the house in the driveway. Tr. 35-36. He neither searched nor asked to search the premises. Tr. 23. He did not ask the Dominican officers to search the house. Tr. 23, 33-35. After the search began, Mr. Staino was taken from his home by the Dominican police. Tr. 24, 35-36. Agent Warner left the premises before the search was completed. Tr. 35-36. He was not shown any seized items at the scene or later that day. Tr. 23-24, 34. To the extent that Mr. Staino's recollection of Agent Warner's involvement in the search differs from that of the Agent, I credit the Agent's testimony.
13. On January 14, 1988, the Dominican officials gave Agent Warner an envelope that contained items taken during the search. Tr. 24. Agent Warner did not request these articles and did not know of any other items that were seized. Tr. 34-35, 41-42.
14. Agent Warner did not travel to Puerto Rico with the defendant. Tr. 25.
B. Conclusions of Law
15. Neither the Fourth Amendment nor the exclusionary rule applies to searches conducted in foreign countries by foreign officials. See United States v. Callaway, 446 F.2d 753, 755 (3d Cir. 1971), cert. denied sub nom. DeVyver v. United States, 404 U.S. 1021, 30 L. Ed. 2d 670, 92 S. Ct. 694 (1972); see also United States v. Maher, 645 F.2d 780, 782-83 (9th Cir. 1981); United States v. Morrow, 537 F.2d 120, 139 (5th Cir. 1976), cert. denied, 430 U.S. 956, 51 L. Ed. 2d 806, 97 S. Ct. 1602 (1977); Stonehill v. United States, 405 F.2d 738, 743 (9th Cir. 1968), cert. denied, 395 U.S. 960, 23 L. Ed. 2d 747, 89 S. Ct. 2102 (1969). A clearly established exception to this rule has been created where the involvement of the United States officials is so extensive that it converts the search into a "joint venture" between the United States and the foreign government. See Callaway, 446 F.2d at 755; see also United States v. Peterson, 812 F.2d 486, 490 (9th Cir. 1987); United States v. Hensel, 699 F.2d 18, 25 (1st Cir.), cert. denied, 461 U.S. 958, 77 L. Ed. 2d 1317, 103 S. Ct. 2431 (1983); Morrow, 537 F.2d at 139; Stonehill, 405 F.2d at 743.
Although the question is not completely free from doubt, I conclude that the activities of the United States officials in connection with the arrest of defendant and the search of his residence were not sufficient to constitute a joint venture between the United States and the Dominican Republic.
16. A number of significant facts support my conclusion that no joint venture existed. The United States agents were prohibited from carrying guns in the Dominican Republic. Agent Warner did not participate in the arrest or questioning of the defendant, and did not participate in the search of defendant's residence. The Dominican police acted on their own initiative in arresting defendant and searching his home. Neither Agent Warner nor other United States officials instructed the Dominican police to arrest the defendant or to search his home. Agent Warner left defendant's home before the search was completed. He did not receive any articles taken from defendant's home until the day following the search. The articles were given to Agent Warner by the Dominican authorities without Warner's requesting them.
17. My ruling that neither the arrest of defendant nor the search of his home was a joint venture also comports with the decisions of other courts that have found no joint venture existed, even though the participation of the United States officials was substantial. In United States v. Marzano, 537 F.2d 257 (7th Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 749, 97 S. Ct. 734 (1977), for example, the Seventh Circuit Court of Appeals found no joint venture even though the United States agents instigated the investigation of the defendants who, like Mr. Staino, were fugitives from the United States. Id. 537 F.2d at 269. The agents also provided information to officials of the Grand Cayman Islands, and were present during portions of the investigation and search of the defendants. Id. at 270. Moreover, the Grand Cayman official, through his actions, intended to help the United States. Id. at 271. The district court concluded, and the Court of Appeals agreed, that the FBI agents were acting merely as observers. Id. at 269. In reaching its conclusion, the Court of Appeals relied on the following facts, a number of which are present in this case: the FBI agents could not carry weapons, like Agent Warner; these agents could not interrogate the defendants or take them into custody; the agents had no jurisdiction in the Grand Cayman Islands; the defendants were arrested for violations of Grand Cayman law; the Grand Cayman official, like the Dominican officials in this case, made an independent decision about what to do with the information provided by the FBI; and the FBI agents, like Agent Warner, Agent Williams, and the Marshals, did not actively interrogate the defendants, search them, or select the evidence to seize. Id. at 270.
18. Similarly, in the seminal case of Stonehill v. United States, 405 F.2d 738, the Ninth Circuit Court of Appeals concluded that the extensive involvement of a United States agent was insufficient to constitute a joint venture. In Stonehill, the involvement of the United States official was more extensive than that of the agents in this case. Some of the preparation meetings for the Phillipine search were held at the home of the agent. Id. at 741. The agent suggested a building be included in the search. Id. Inadvertently, the Phillipine government was provided a diagram and a memorandum, both drafted by the agent, concerning two targeted buildings. Id. The agent was asked for his comment on a warrant that was going to be utilized during the search. Id. Moreover, the agent located the "most significant" documents
in a warehouse being searched, and pointed out the "record storage area" in an office being searched. Id. at 742. In contrast, the agents here did not participate at all in the search and did not select any of the evidence to be seized. See also United States v. Rosenthal, 793 F.2d 1214, 1231 (11th Cir. 1986) (no joint venture where United States agents were apprised of foreign government's plan prior to arrest and search, and were present when residence was searched), cert. denied, 480 U.S. 919, 94 L. Ed. 2d 692, 107 S. Ct. 1377 (1987); Government of the Canal Zone v. Sierra, 594 F.2d 60, 71-72 (5th Cir. 1979) (no joint venture where search solely under control and jurisdiction of foreign government, even though a United States official provided key information leading to search of defendant's house, and was present at scene).
19. In the few cases in which the courts have found a joint venture, the involvement of the United States was more extensive than that presented here. For example, in Hensel, the First Circuit Court of Appeals affirmed the district court's finding of a joint venture based on the following facts:
The Americans began the search, the Americans asked the Canadians to join in the effort, an American DEA agent urged the Canadians to seize the ship if it entered Canadian waters, the RELIANCE(an American ship) showed firepower and provided back-up assistance during the Canadians' boarding, the RELIANCE provided interpreters after the boarding, and an American officer participated in a second search of the PATRICIA [the ship containing drugs].