GGPDE_2020-22_Consular_Advice_Redux_2070693

JACKIE LACEY DISTRICT ATTORNEY LOS ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE ONEMINUTE BRIEF COPYRIGHT © 2020 LOS ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE. ALL RIGHTS RESERVED. MAY BE REPRODUCED FOR NON -COMMERCIA L PROSECUTORIAL, LAW ENFORCEMENT AND EDUCATIONAL PURPOSES ONLY . 1MB@da.lacounty.gov NUMBER : 2020-22 DATE : 07-14-20 BY: Devallis Rutledge TOPIC : Consular Advice Redux ISSUE : What duty do law enforcement office rs have to inform foreign nationals of their right to notify the consul of their native country of their arrest? Two previous 1MBs have addressed the topic of police duty to comply with treaty and statutory obligations regarding consular noti fication when a known or suspected f oreign national is arrested. See 1MBs 2005 -01, 2009 -20. The issue continues to arise; see People v. Eduardo David Vargas (2020) ___ Cal.5th ___ , S101247. The US is signatory to the Vienna Convention o n Consular Relations, Article 36 of which requ ires that when a citizen of one of the 180 signatory countries is arrested , the arrestee must be i nformed “without delay ” of his/her right to notify consul from that country, and to be visited , if requested. A similar provision in PC § 834c requires advice of the right to notify consul after arrest and bo oking or “deten tion for more than t wo hours ,” and makes notification to the consulate mandatory as to nationals of those 56 countries listed in the section. However … “Article 36 does not g uarantee defendants any assistance at all. The provision secures only a right of fore ign nationals to have their consulate informed of their arrest or detention — not to have their consulate intervene, or to have law enforcement authorities cease their inves tigation pending any such notice or intervention. ” Sanchez -Llamas v. Or egon (2006) 548 US 331, 349. This information was current as of publication date. It is not intended as legal advice. It is recommended that readers check for su bsequent developments, and consult legal advisors to ensure currency after p ublication. Local policies and procedures r egarding application should be observed. LADA ONE -MINUTE BRIEF NO. 20 20-22 PAGE 2 “Accordingly, the failure to notify a suspect of his or her consular rights does not, in itself , render a confession inadmissible under Article 3 6.” People v. Leon (2020) 8 Cal.5th 831, 846. ● But the fact that neither the VCCR nor § 834c mandates suppression of confessions or other evidence obtained without compliance does not mean that officers are free to ig nore these laws. Compl iance wit h our cons ular n otification duties makes it easier for the US State Department to insist on reciprocal compliance from other countries when Americans are arrested abroad. And the wholesale violation of these protections could have civil liability implications for of ficers and agencies, Carlo v. Chino (9th Cir. 1997) 105 F.3d 49 3, 497, 500, and might cause courts to create other rem edies. “Too often ignor ed, the nation ’s Article 36 obligations remain enormously important. Where courts become concerned that a consular notification failure may be part of a scheme to depri ve the national of any meaningful choice, a remedy for the con sular notification violation is surely warran ted.” People v. Vargas, supra, slip opn. at 58. BOTTOM LINE : A federal treaty and a state stat ute im pose duties on arresting officers and agencies to advise certain arrested foreign nationals of their rights to notify their consu late, and to give notice to certain consulates whether or not the arrestee reque sts it. (Bold emphases added and cita tions omitted in quoted material.)