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State v. Prasertphong9/2/2003
State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.
Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, art. 36(1)(b), T.I.A.S. No. 6820, available at 1969 WL 97928. The VCCR is binding on the states and local governments under the Supremacy Clause, Article 6, Clause 2 of the United States Constitution. The VCCR's protections are granted to all foreign nationals, "even to foreign nationals who do not benefit from the VCCR." U.S. Dept. of State, Bureau of Consular Affairs, Instructions for Federal, State, and other Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials To Assist Them, available at http://travel.state.gov/consul_notify.html (last accessed August 14, 2003).
In the context of this case, Prasertphong's claim that Article 36 of the VCCR was violated raises two issues: first, whether Article 36 creates individually enforceable rights, and second, whether the exclusionary rule applies to violations of Article 36. Because the exclusionary rule does not apply to violations of Article 36, we find it unnecessary to decide whether Article 36 creates individually enforceable rights.
Courts have split on whether the VCCR confers individually enforceable rights. Nevertheless, an overwhelming majority of courts have held that even if Article 36 creates individual rights, suppression of evidence is not a remedy for its violation. See e.g., United States v. Jimenez-Nava, 243 F.3d 192, 199 (5th Cir. 2001), cert. denied, 533 U.S. 962 (2001) (holding absent an express provision in a treaty, exclusion of evidence is not an appropriate remedy); United States v. Chaparro-Alcantara, 226 F.3d 616, 622 (7th Cir. 2000) (explaining " nly the legislature can require that the exclusionary rule be applied to protect a statutory or treaty-based right"); United States v. Li, 206 F.3d 56, 60 (1st Cir. 2000) (holding remedies for a VCCR violation do not include suppression); United States v. Lombera-Camorlinga, 206 F.3d 882, 885 (9th Cir. 2000) (en banc); United States v. Cordoba-Mosquera, 212 F.3d 1194, 1195-96 (11th Cir. 2000), cert. denied sub nom., Zuniga v. United States, 531 U.S. 1131 (2001); State v. Buenaventura, 660 N.W.2d 38, 46 (Iowa 2003); Commonwealth v. Diemer, 785 N.E.2d 1237, 1244-45 (Mass. App. Ct. 2003), review denied, 790 N.E.2d 1089 (Mass. 2003). We agree with the holdings of these courts. Accordingly, the trial court did not abuse its discretion in denying the motion to suppress based on a violation of Article 36 of the VCCR. See Lombera-Camorlinga, 206 F.3d at 888.
V.
Prasertphong next argues that his statement to the police was involuntary and therefore the trial court's failure to suppress the statement violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article 2, Sections 4 and 10 of the Arizona Constitution.
Prasertphong filed a motion to suppress his audio taped statement to the detectives. He claimed his statement was involuntary because the detectives made improper threats, promises, and offers of leniency while the tape recorder was turned off. At the suppression hearing, Prasertphong testified that Detective Olivas stated while the recorder was off, "How about I take you out to the desert and shoo
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