TOPEKA POLICE DEPARTMENT
 Number: LB 00-7
LEGAL BULLETIN
SUBJECT: ARREST & INTERROGATION OF FOREIGN NATIONALS
OTHER REFERENCE: US Dept. of State "Diplomatic & Consular Immunity Guidelines for LEO
STATUTE REFERENCES: KSA 75-4351(e) 
ISSUING AUTHORITY: John Knoll, City Attorney DATE ISSUED: Dec. 29, 2000

    A recent Kansas Court of Appeals case, State v. Rosas, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 84,346 filed 12/22/2000), points out an additional notification requirement when a police officer arrests a citizen from another country. The Vienna Convention on Consular Relations (Vienna Convention), April 24, 1963, Art. 36(1)(b), 21 U.S.T. 77, T.I.A.S. No. 6820, creates a requirement for detaining authorities to notify the foreign national of his right to contact his consul. Article 36(1)(b) of the Vienna Convention states:

"[I]f he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending 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, 21 U.S.T. at 101.     Although the court held that failure to notify the Mexican consulate of Rosas' arrest did not require suppression of his confession and evidence seized incident to his arrest, the court said, "prosecutors should be aware of the Vienna Convention and inform foreign national defendants of their rights under Article 36(1)(b)." Slip opn. at 6.

    While it appears the court places the notification requirement squarely on the prosecutor's shoulders, I recommend that officers make foreign nationals aware that they have a right to contact their consul after being arrested. Such a notification does not appear to be overly burdensome for the arresting officer, and doing so will help avoid claims that confessions were coerced and for suppression of evidence.

    The court also reiterated that failure to appoint an interpreter prior to questioning or asking for consent to search a person who professes to primarily speak a foreign language will not necessarily require suppression of evidence. If the totality of the circumstances indicate that in-custody statements are freely, voluntarily and knowing given, or consent to search is voluntary, the statements or evidence will be admissible despite the per se violation of K.S.A. 75-4351(e).

    All of the above information is provided in complete detail in our "US Dept. of State’s Diplomatic & Consular Immunity Guidance for Law Enforcement and Judicial Authorities" located next to Department SOP’s in Roll Call, the Watch Commander’s Office, the Policy Review Unit , CID Administrative Sergeant’s desk and CECC.

The manual provides examples of the statements that are required to be given to foreign nationals in 13 languages.