SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

Foreign Nationals; P.C. § 834c(a)(1):
Advisal to Arrestee/Detainee: Upon the arrest and booking or
detention for more than two (2) hours of a known or suspected
foreign national, the arrestee/detainee shall be advised “without
delay” that he or she has a right to communicate with an official
from the consulate of his or her native country. If the
arrestee/detainee chooses to exercise that right, the peace officer
shall notify the pertinent official in his or her agency or department
of the arrest or detention and that the foreign national wants his or
her consulate notified.
This is a statutory enactment of the 1963 Vienna
Convention on Consular Relations, Article 36; a Treaty
signed by the United States and 169 other countries.
Although there is some disagreement, it is generally
accepted that a foreign national has the “standing”
necessary to invoke the provisions of the Vienna
Convention in so far as they require notice to an
arrestee/detainee of his right to contact his consulate. (See
United States v. Superville (Vir. Islands, 1999) 40
F.Supp.2 nd 672, 676-678.)
The United States Supreme Court, until recently (see
below), declined to decide whether a foreign national who
had not been advised of his rights under the Vienna
Convention had an enforceable right in U.S. courts.
(Sanchez-Llamas v. Oregon (2006) 548 U.S. 331, 343 [165
L.Ed.2 nd 557]; assuming for the sake of argument that they
did, while specifically declining to decide the issue. Four
dissenting opinions would have held that the defendants
had a right to raise these issues. (Id., at pp. 369-378.)
The officer’s department is then responsible for making the
requested notification. (subd. (a)(2))
The Vienna Convention also provides that any
communication addressed to the consular post by the
person arrested, in prison, custody or detention shall be
forwarded by the authorities “without delay.” (Art.
36(1)(b))
© 2012 Robert C. Phillips. All rights reserved
The law enforcement official in charge of a custodial
facility where a foreign national is housed shall ensure that
203