PLATT & BUESCHER

 Attorneys at Law

MOTION TO SUPPRESS/ROSENAU-1 P.O. Box 727

No. CR06-157MJP Coupeville, WA 98239

Phone: (360) 678-6777

 Fax: (360) 678-0323

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The Honorable Marsha J. Pechman

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

STATE OF WASHINGTON, 

Plaintiff,

v.

HENRY ROSENAU

Defendant.

No. CR06-157MJP

MOTION TO SUPPRESS

Noted on Motion Calendar: 

September 16, 2011

The defendant, through undersigned counsel, moves this Court to suppress all evidence and 

statements obtained as a result of an unlawful search and seizure. This motion is based on the 

Fourth and Fifth Amendments to the United States Constitution, the defense brief in support of this 

motion, and any evidence which may be adduced at a hearing on this motion. 

FACTS AND DECLARATION OF COUNSEL

I swear under penalty of perjury that the following is true to the best of my knowledge based 

on information and belief:

1. I am the counsel of record for the above-named defendant.

2. The above matter arose out of a joint investigation by agents of the United States Bureau 

of Immigration and Customs Enforcement (ICE) and the Royal Canadian Mounted Police 

(RCMP).

Case 2:06-cr-00157-MJP Document 32 Filed 09/06/11 Page 1 of 12
PLATT & BUESCHER

 Attorneys at Law

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Phone: (360) 678-6777

 Fax: (360) 678-0323

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3. Law enforcement personnel on both sides of the Canada/United States Border were 

actively engaged in a joint operation.

4. This joint investigation was a part of a larger joint venture known as “Operation Frozen 

Timber.”

5. Jesse Miller, special agent with ICE, testified that the RCMP was a very important part of 

the ICE investigation and that without the RCMP, ICE would have faced hardship. 

Transcript of Grand Jury Proceedings, Testimony of Jesse Miller, 13. 

6. Miller further testified that the RCMP does a “really good job in regards to gathering 

facts to help us with our cases down here.” Id.

7. Special Agent Miller also confirmed in his testimony that the RCMP leaves law 

enforcement and prosecution to the United States. Id. 

8. On September 21, 2005, ICE agents in the United States witnessed a helicopter flying 

north toward the Canadian Border. 

9. Thereafter ICE contacted RCMP and/or the Integrated Border Enforcement Team.

10. The Integrated Border Enforcement Team is a joint investigation team composed of law 

enforcement personnel from both Canada and the United States. 

11. ICE had the RCMP personnel travel to certain properties located in Yale, Canada. 

12. These properties were owned by Glen Stewart, but Mr. Rosenau was currently leasing the 

premises, had occupational rights, and had an option to purchase the property. 

13. RCMP entered the property after driving past a gate with a large sign that reads “private 

property.” 

14. After driving about a half mile past the gate, RCMP made contact with Mr. Rosenau. 

Case 2:06-cr-00157-MJP Document 32 Filed 09/06/11 Page 2 of 12
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15. RCMP agents detained Mr. Rosenau and required him to remain at a Suburban vehicle 

for approximately one hour.

16. RCMP, Constable Kachur, claims he read Mr. Roseanu his “rights.” 

17. RCMP never read Mr. Rosenau his Miranda rights. 

18. RCMP then interrogated Mr. Rosenau and asked Mr. Rosenau questions including 

whether Mr. Rosenau knew the names of certain individuals, whether Mr. Rosenau had

been a flying a helicopter earlier that day, and where such flying may have occurred. 

19. Mr. Rosenau allegedly made several statements while being interrogated. 

20. RCMP officials then conducted a warrantless search of a helicopter allegedly owned by Mr. 

Rosenau without his consent.

21. RCMP opened and prowled through a gym bag found in the helicopter without consent. 

22. RCMP officials laid out items on the ground seized from the helicopter. RCMP discovered 

Satellite Phones, a GPS device, on which they then viewed programmed coordinates, a 

firearm and gathered other items and information. 

23. RCMP also took keys from Mr. Rosenau’s pocket and a Blackberry from his person. 

24. RCMP also conducted a search of a shop building without a warrant or consent. 

25. RCMP then told Rosenau he was free to leave, but also stated that Mr. Rosenau was going 

to die as an old man in an American jail.

DATED this 6th day of September, 2011.

Respectfully submitted,

PLATT & BUESCHER

s/Craig Platt_______________

Craig Platt

Attorney for Defendant

WSBA #12396

Case 2:06-cr-00157-MJP Document 32 Filed 09/06/11 Page 3 of 12
PLATT & BUESCHER

 Attorneys at Law

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Phone: (360) 678-6777

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INTRODUCTION

On September 21, 2005, United States and Canadian authorities were engaged in a joint 

venture. As a result Fourth Amendment protections were implicated and Fifth Amendment 

protections applied. The RCMP engaged in an unlawful search and seizure during this joint venture. 

Moreover, the RCMP failed to advise Mr. Rosenau of his Miranda rights before a custodial 

interrogation. As a result all fruits of this unlawful search and seizure and all statements made by 

Mr. Rosenau must be suppressed.

LAW AND ARGUMENT

Prior to the incorporation of the Fourth Amendment into the Fourteenth Amendment, it 

was important to determine whether Federal officials substantially participated in raids 

conducted by State officials. This was because a “joint venture” would subject State actors to 

the requirements of the Fourth Amendment. Stonehill v. U.S., 405 F.2d 738, 743 (9th Cir. 1968). 

This inquiry remains pertinent in order to determine whether Fourth and Fifth Amendment 

protections apply with respect to foreign law enforcement. See United States v. Peterson, 812 

F.2d 486 (9th Cir. 1987)(joint venture search implicated Fourth Amendment); U.S. v. Emery, 591 

F.2d 1266 (9th Cir. 1978)(statements suppressed where Mexican authorities engaged in joint 

venture with United States failed to give Miranda warnings).

I. JOINT VENTURE AND FOURTH AMENDMENT PROTECTION

In general, neither the Fourth Amendment nor the judicially created exclusionary rule 

applies to acts of foreign officials. United States v. LaChapelle, 869 F.2d 488, 489 (9th 

Cir.1989), quoting United States v. Maher, 645 F.2d 780, 782 (9th Cir.1981). However, an 

exception to the inapplicability of the exclusionary rule applies when “United States agents’

participation in the investigation is so substantial that the action is a joint venture between United 

Case 2:06-cr-00157-MJP Document 32 Filed 09/06/11 Page 4 of 12
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Phone: (360) 678-6777

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States and foreign officials.” U.S. v. Barona, 56 F.3d 1087, 1093 (9th Cir. 1995). To invoke the

“joint venture doctrine,” it must be determined whether the analysis contained in United States v.

Verdugo–Urquidez applies, the defendant must show that the United States and foreign officials 

were engaged in a joint venture, a violation of foreign law occurred made the search 

unreasonable, and the United States did not rely in good faith upon the foreign officials’

representations that their law was being complied with. See Barona, 56 F.3d at 1093. 

a. Verdugo-Urquidez

In Verdugo-Urquidez, the Supreme Court held that the Fourth Amendment does not 

apply to search and seizures by United States agents of property that is owned by a nonresident 

alien and located in a foreign county. United States v. Verdugo-Urquidez, 494 U.S. 259, 261, 110 

S.Ct. 1056, 1059 (1990). The Court reasoned that the term “the people” as used in Fourth 

Amendment refers to a class of persons who are part of a national community or who have 

otherwise developed sufficient connection with the United States to be considered part of 

community. Verdugo-Urquidez, 494 U.S. at 266, 110 S.Ct. at 1061. However, Verdugo does not 

apply in the instant case for several reasons.

First, the Supreme Court’s opinion in Verdugo makes no reference to the joint venture 

doctrine. United States v. Baboolal, No. 05-CR-215, 2006 U.S. Dist. LEXIS 40645 at *4 (E.D. 

Wis. June 16, 2006). The facts in Verdugo concern a search initiated by and conducted primarily 

by an actual United States agency. Verdugo-Urquidez, 494 U.S. at 262-263, 110 S.Ct. at 1059. 

Cases where the joint venture doctrine is discussed as an issue concern the search and seizures of

foreign authorities as opposed to those of actual United States agencies. See Stonehill v. United 

States, 405 F.2d 738 (9th Cir. 1968)(Philippine authorities); United States v. Rose, 570 F.2d 

1358 (9th Cir. 1978)(Canadian Police); United States v. Rosenthal, 793 F.2d 1214 (11th Cir. 

Case 2:06-cr-00157-MJP Document 32 Filed 09/06/11 Page 5 of 12
PLATT & BUESCHER

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Phone: (360) 678-6777

 Fax: (360) 678-0323

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1984)(Columbian authorities); United States v. Behety, 32 F.3d 503 (11th Cir. 1994)(Guatemalan 

Officials); United States v. Barona, 56 F.3d 1087 (9th Cir. 1995)(Danish and Italian authorities). 

This case, unlike Verdugo, concerns a search conducted by foreign authorities. 

Second, the Verdugo Court did not concern itself with the application of foreign law. 

The joint venture doctrine requires courts to look to foreign law when determining whether a 

search is reasonable. See Barona, 56 F.3d at 1094; U.S. v. Peterson, 812 F.2d 486, 490 (9th Cir. 

1987).

Finally, the actual holding of the case is inapplicable. The Court in Verdugo held that the 

Fourth Amendment does not apply to search and seizures by United States agents of property 

that is owned by a nonresident alien and located in a foreign county. Id. at 261, 110 S.Ct. at 

1056(emphasis added). This motion does not concern suppressing items or information resulting 

from a search or seizure conducted by United States, rather it concerns the RCMP. 

b. Joint Venture

If American law enforcement officials participate in a foreign search, or if the foreign 

authorities actually conducting the search were acting as agents for their American counterparts, 

the exclusionary rule can be invoked. Rose, 570 F.2d at 1362(citing United States v. Morrow, 

537 F.2d 120, 139 (5th Cir. 1976)). In Peterson, the Ninth Circuit held that the Fourth 

Amendment was implicated due to the existence of a joint venture. In arriving at this conclusion, 

the Ninth Circuit found relevant the fact that United States agents termed their actions a “joint 

investigation,” treated the affair as one in which marijuana was destined for the United States, 

were involved in translating and intercepting transmissions, and advised foreign authorities of 

the relevance of information received by foreign authorities. Peterson, 812 F.2d at 490. 

Case 2:06-cr-00157-MJP Document 32 Filed 09/06/11 Page 6 of 12
PLATT & BUESCHER

 Attorneys at Law

MOTION TO SUPPRESS/ROSENAU-7 P.O. Box 727

No. CR06-157MJP Coupeville, WA 98239

Phone: (360) 678-6777

 Fax: (360) 678-0323

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Here, the Government has admitted this case is the result of a joint investigation. 

Information provided in discovery shows that this joint investigation was a part of “Operation 

Frozen Timber.” The investigation concerned RCMP gathering intelligence for ICE, ICE was

directing RCMP where to focus their efforts, and the RCMP were leaving the prosecution to U.S.

authorities. As a result of this joint investigation, the RCMP made contact with Rosenau on 

September 21, 2005 and engaged in an unlawful search. The activities of the Canadian and U.S. 

authorities went far beyond mere cooperation. Operation Frozen Timber and the joint 

investigation of September 21, 2005 constitute a joint venture. 

c. Violation of Canadian Law

If a joint venture exists between United States and foreign officials, the law of the foreign 

country must be consulted at the outset as part of the determination whether or not the search 

was reasonable. Peterson, 812 F.2d at 490. Like the Fourth Amendment, Section Eight of the 

Canadian Charter of Rights and Freedoms provides that “[e]veryone has the right to be secure 

against unreasonable search or seizure.”

Canadian search and seizure law roughly reflects that of the United States. An 

assessment of the constitutionality of a search and seizure, or of a statute authorizing a search or 

seizure, must focus on its “reasonable” or “unreasonable” impact on the subject of the search or 

the seizure. The guarantee protects a reasonable expectation of privacy. A reasonable expectation 

of privacy is to be determined on the basis of the totality of the circumstances. If an accused 

person establishes a reasonable expectation of privacy, the inquiry must then proceed to 

determine whether the search was conducted in a reasonable manner. R. v. Edwards, [1996] 1 

S.C.R. 126; Hunter v. Southam Inc., 1984 CanLII 33 (S.C.C.), [1984] 2 S.C.R. 145. 

Case 2:06-cr-00157-MJP Document 32 Filed 09/06/11 Page 7 of 12
PLATT & BUESCHER

 Attorneys at Law

MOTION TO SUPPRESS/ROSENAU-8 P.O. Box 727

No. CR06-157MJP Coupeville, WA 98239

Phone: (360) 678-6777

 Fax: (360) 678-0323

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The party seeking to justify a warrantless search must be required to rebut a presumption 

of unreasonableness. Hunter et al., v. Southam Inc., 1984 CanLII 33 (S.C.C.), [1984] 2 S.C.R. 

145; R. v. Golden, 2001 S.C.C. 83 (CanLII), 2001 SCC 83 (CanLII), 2001 S.C.C. 83 (CanLII),

[2001] 3 S.C.R. 679, 2001 SCC 83, R. v. Mann, 2004 S.C.C. 52 (CanLII), 2004 S.C.C. 52 

(CanLII). In order to rebut the presumption of unreasonableness, three things must be 

established, namely (1) that the search was authorized by law, (2) that the law authorizing the 

search was reasonable, and (3) that the manner in which the search was carried out was 

reasonable. Only where these three criteria are met is the “presumption of unreasonableness”

rebutted: in all other cases, a warrantless search infringes s. 8 of the Charter. R. v. Collins, 1987 

CanLII 84 (S.C.C.), 1987 CanLII 84 (S.C.C.), 1987 CanLII 84 (S.C.C.), [1987] 1 S.C.R. 265. 

Here, on September 21, 2005, the RCMP entered properties leased by Rosenau without 

consent. Thereafter a warrantless search was conducted. RCMP searched a helicopter owned by 

Mr. Roseau without consent. Thereafter, RCMP removed keys from Mr. Rosenau’s pocket, took 

his Blackberry, and searched a shop located on the premises. The RCMP had no probable cause 

or legal justification to conduct these searches. The search and seizure was not authorized by 

Canadian Law and the manner in which the search was carried out was not reasonable. The 

search and seizure was in violation of the Section Eight of the Canadian Charter of Rights and 

Freedoms and the Fourth Amendment by virtue of the joint venture doctrine. The Government 

bears the burden of rebutting the presumption that the RCMP search and seizure was reasonable.

d. No Good Faith Reliance

If foreign law was not complied with, “the good faith exception to the exclusionary rule 

becomes part of the analysis.” Barona, 56 F.3d at 1092-1093. The good faith exception to the 

exclusionary rule announced in Leon applies to the foreign search. Peterson, 812 F.2d at 492. 

Case 2:06-cr-00157-MJP Document 32 Filed 09/06/11 Page 8 of 12
PLATT & BUESCHER

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Phone: (360) 678-6777

 Fax: (360) 678-0323

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The Fourth Amendment exclusionary rule should not be applied so as to bar the use in the 

prosecution’s case in chief of evidence obtained by officers acting in reasonable reliance on a 

search warrant issued by a detached and neutral magistrate but ultimately found to be invalid. 

U.S. v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 3420 (1984). Although, Leon speaks only in 

terms of good faith reliance on a facially valid search warrant, its reasoning applies as well to 

reliance on foreign law enforcement officers’ representations that there has been compliance 

with their own law. Peterson, 812 F.2d at 492(reliance on wiretap's legality by United States 

authorities participating in joint narcotics investigation was objectively reasonable where federal 

officers sought, and received, assurances from high ranking Philippine law enforcement 

authorities that all necessary authorization was being obtained, and thus evidence seized on basis 

of wiretap information was admissible under good-faith exception to exclusionary rule). 

Here, there is no evidence that United States law enforcement relied in good faith on a 

warrant for the search of properties leased by Mr. Rosenau in Yale, Canada. Additionally, there 

is no evidence that United States law enforcement sought assurances from Canadian authorizes 

that the search conducted by the RCMP was lawful. Finally, there is no evidence that Canadian 

officials provided United States authorities with assurances that the search was lawful. In sum, 

United States authorities did not act in reasonable reliance on representations made by Canadian 

authorities that the search was lawful. As a result, the good faith exception does not apply to 

circumvent application of the exclusionary rule. 

II. JOINT VENTURE AND FIFTH AMENDMENT PROTECTION

The Fifth Amendment provides that “[n]o person shall...be compelled in any criminal 

case to be a witness against himself.” In order to protect this privilege, police officers must 

inform a criminal suspect of his or her right to remain silent prior to any custodial interrogation, 

Case 2:06-cr-00157-MJP Document 32 Filed 09/06/11 Page 9 of 12
PLATT & BUESCHER

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MOTION TO SUPPRESS/ROSENAU-10 P.O. Box 727

No. CR06-157MJP Coupeville, WA 98239

Phone: (360) 678-6777

 Fax: (360) 678-0323

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the right to counsel, and the right to cease questioning if he or she requests the assistance of 

counsel. Miranda v. Arizona, 384 U.S. 436, 474, 16 L.Ed.2d 694, 86 S.Ct. 1602, 1627 (1966). 

The prosecution may not use statements, whether exculpatory or inculpatory, stemming from 

custodial interrogation of defendant unless it demonstrates use of procedural safeguards effective 

to secure privilege against self-incrimination. Miranda, 384 U.S. 436, 445, 86 S.Ct. 1602, 1612. 

United States law enforcement officials may not intentionally evade the requirements of 

Miranda by purposefully delegating interrogation duties to foreign law enforcement officers and 

then having the fruits of the interrogation admitted at trial in the United States. Two exceptions 

have developed to the general rule that voluntary statements obtained by foreign officials during 

a custodial interrogation without benefit of Miranda warnings are admissible. Namely, such 

statements will not be admissible if obtained by foreign officials (1) engaged in a joint venture 

with, or (2) acting as agents of, United States law enforcement officers. United States v. Abu Ali, 

528 F.3d 210, 228 (4th Cir. 2008). When a joint venture exists, the failure of foreign authorities 

to provide Miranda warnings to one subject to custodial interrogation requires suppression of 

statements. See U.S. v. Emery, 591 F.2d 1266 (9th Cir. 1978)(joint venture existed between 

United States and Mexican authorities such that statements given by one suspect while under 

interrogation by Mexican authorities were subject to suppression for failure of such authorities to 

administer Miranda warnings); see also U.S. v. Covington, 783 F.2d 1052, 1056 (9th Cir. 

1985)(holding Miranda and Edwards apply to foreign officers acting as agents of United States

law enforcement). 

Here, a joint venture between United States authorities and Canadian authorities clearly 

existed. Mr. Rosenau was detained by the RCMP for up to an hour. Mr. Rosenau was never free 

to leave. During the detention, the RCMP subjected Mr. Rosenau to an interrogation. Mr. 

Case 2:06-cr-00157-MJP Document 32 Filed 09/06/11 Page 10 of 12
PLATT & BUESCHER

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MOTION TO SUPPRESS/ROSENAU-11 P.O. Box 727

No. CR06-157MJP Coupeville, WA 98239

Phone: (360) 678-6777

 Fax: (360) 678-0323

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Rosenau answered questions without ever being informed of his Miranda rights. As a result, the 

statements made by Mr. Rosenau are not admissible pursuant to the Fifth Amendment and 

Miranda. 

CONCLUSION

A joint venture existed between United States and Canadian authorities in the above 

matter. The existence of a joint venture triggered Fourth and Fifth Amendment protections. The 

RCMP engaged in a warrantless search and seizure that was in violation of Section Eight of the 

Canadian Charter of Rights and Freedoms. As a result, any fruits of this warrantless search and 

seizure must be suppressed as required by the Fourth Amendment. In addition, Mr. Rosenau was

subject to a custodial interrogation by RCMP while engaged in a joint venture. Mr. Rosenau was 

never informed of his Miranda rights. As a result, all statements made by Mr. Rosenau during 

such custodial interrogation are inadmissible. 

 DATED this 6

th day of September, 2011.

Respectfully submitted,

PLATT & BUESCHER

s/Craig Platt_______________

Craig Platt

Attorney for Defendant

WSBA #12396

P.O. Box 727

Coupeville, Washington 98239-0727

Telephone: (360) 678-6777

Fax: (360) 678-0323

Email: craig@plattbuescher.com

Case 2:06-cr-00157-MJP Document 32 Filed 09/06/11 Page 11 of 12
PLATT & BUESCHER

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Phone: (360) 678-6777

 Fax: (360) 678-0323

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CERTIFICATE OF SERVICE

I hereby certify that on 9/6/2011, I electronically filed the foregoing with the Clerk of the 

Court using the CM/ECF system which will send notification of such filing to the attorney(s) of 

record for the defendant(s). I hereby certify that I have served the attorney(s) of record for the 

defendant(s) that are non CM/ECF participants via telephax. 

s/Craig Platt_______________

Craig Platt

Attorney for Defendant

WSBA #12396

P.O. Box 727

Coupeville, Washington 98239-0727

Telephone: (360) 678-6777

Fax: (360) 678-0323

Email: craig@plattbuescher.com 

 

 

 

 

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