United States v. Verdugo-Urquidez

STATES v. VERDUGO-URQUIDEZ UNITED Argued February No. 88-1353. November 1989 Decided Court, White, J., opinion of the in which Rehnquist, C. delivered J., JJ., joined. filed a con- Kennedy, Scalia, Kennedy, O’Connor, J., opinion concurring filed an Stevens, opinion, post, p. 275. curring J., dissenting opinion, in Brennan, p. filed a judgment, post, in 279. J., J., filed a dis- Blackmun, joined, post, p. 279. Marshall, which p. senting opinion, post, 297. cause for the United

Lawrence Robbins argued S. were Solicitor General him on the briefs States. With Dennis, and Solic- Starr, Deputy Assistant General Attorney Bryson. itor General the cause for With respondent.

Michael Pancer argued Q. L. and Patrick Goldberg brief were Charles him on the *Hall. delivered the opinion Rehnquist

Chief Justice Court. the Fourth this case is whether by presented

The question by and seizure United to the search applies Amendment a nonresident is owned property States hold that it does We country. alien and located a foreign not. Legal Justice Foun- Scheidegger a brief for the Criminal

*Kent filed S. urging curiae reversal. dation as amicus Powell, David D. Cole filed a brief Hoffman, L. A. Paul

John urging et al. as amici curiae Liberties Union for the American Civil affirmance. Verdugo-Urquidez is a citizen

Respondent Martin Rene He the United is believed States of Mexico. and resident (DEA) Agency Drug of the leaders to be one Enforcement smuggles organization nar- large in Mexico a and violent complaint charg- on a Based cotics into the United States. ing respondent offenses, the narcotics-related with various August 3, his arrest on for Government obtained a warrant police Januаry after officers, discus- In Mexican 1985. apprehended Verdugo- marshals, with sions United transported him the Urquidez United States in Mexicoand There, Calexico, California. station Border Patrol eventually respondent and moved arrested States marshals Diego, where California, center San him ato correctional pending trial. incarcerated he remains Terry agent Following respondent’s Bowen, DEA arrest, arrange assigned office, DEA decided to to the Calexico Verdugo-Urquidez’s Mexican residences located searches of Felipe. believed that Bowen Mexicali and San respondent’s al- reveal evidence related searches would leged trafficking and his involvement in activities narcotics Agent Special kidnaping DEA torture-murder of (for respondent Enrique which subse- Camarena Salazar quently separate prosecution. in a See has convicted been (CD Verdugo-Urquidez, No. United States CR-87-422-ER 1988)). telephoned White, Walter Cal., Nov. Bowen Special Agent charge in Mex- in the DEA office Assistant City, the search ico and asked him to authorization for seek from Federal the Director General the Mexican Judicial (MFJP). high attempts reach rank- Police After several to eventually ing Di- officials, contacted the Mexican White promised searches and General, rector who authorized the cooperation DEA Thereafter, of Mexican authorities. agents working searched in of the MFJP concert with officers Felipe respondent’s properties seized and San Mexicali particular, In of the Mexicali certain documents. the search tally the Government residence uncovered a which sheet, marijuana smuggled by quantities of reflects the believes Verdugo-Urquidez States. into the United sup- respondent’s granted motion to

The District Court concluding press during that searches, evidence seized applied and that the the searches the Fourth Amendment searching respondent’s justify agents had failed to DEA panel premises A divided Court without a warrant. Appeals 856 F. 2d affirmed. for the Ninth Circuit (1988). Covert, in Reid v. this decision It cited Court’s (1957), tried that American citizens which held U. S. country military in a were authorities United States protections Fifth and Sixth Amend- to the entitled imposes “[t]he sub- concluded that Constitution ments, and government, it even when constraints on the federal stantive Relying operates our deci- at 1218. on 2d, 856 F. abroad.” (1984), Lopez-Mendoza, where 468 U. S. 1032 sion INS illegal majority in the that aliens of Justices assumed rights, Ninth Amendment have Fourth Verdugo- majority to conclude that found it “difficult Circuit protections.” at 1223. Urquidez 2d, 856 F. same lacks these enjoy position respondent’s persons in that It also observed “[i]t rights, reasoned that would trial-related certain Verdugo-Urquidez acknowledge is entitled that odd indeed process amendment, and to a fair trial fifth under the to due deny protection him . and amendment, . . sixth under the afforded under the and seizures searches unreasonable from Having 1224. concluded Id., amendment.” fourth respond- applied the searches of Amendment the Fourth properties, on to decide went the court ent’s DEA because the the Constitution violated searches Although recognizing procure warrant. a search failed to legal be of no valid- would search warrant American that “an majority that a it sufficient war- ity deemed Mexico,” value this coun- constitutional “substantial have rant would magistrate’s determination try,” reflect a would because 264 probable define cause to search would existed

that there scope Id., at 1230. of the search. dissenting argued judge statement that this Court’s The Corp., Curtiss-Wright Export 304, 299 S.U. v. States United (1936), “[n]either nor the laws the Constitution 318 that territory any pursuance passed have force of it by any respect claim citizens,” foreclosed unless in of our own broadly, rights. respondent he More Amendment to Fourth among people “compact” as a viewed the Constitution protections the Fourth Amend- States, United people.” granted expressly to “the We ment were limited (1989). S; 1019 certiorari, 490 U. scope analyzing Amendment, we of the Fourth

Before operates significant it in different man- a it to note think in this is not at issue Amendment, Fifth which ner than the guaranteed against privilege self-incrimination case. right criminal a trial Fifth Amendment is fundamental (1964). Malloy Hogan, Al- v. 378 U. S. See defendants. prior may though officials to trial conduct law enforcement right, ultimately impair occurs a constitutional violation Kastigar States, 441, v. 406 U. S. at trial. United (1972). differently. It functions The Fourth Amendment prohibits searches and seizures” whether “unreasonable sought a trial, a criminal to be used not the evidence is “fully accomplished” at the of the Amendment violation governmental United intrusion. an unreasonable time of (1974); Calandra, 414 U. States v. S. (1984). purposes of this For Leon, U. S. violation, oc- case, therefore, if there were constitutional solely obtained from in Mexico. evidence Whether curred respondent’s trial be excluded at Mexican residences should separate question from the is a remedial in the United States Calandra, violation. non of the constitutional vel existence supra, supra, Leon, at 906. 354; provides: The Fourth Amendment right people per- be “The of the to secure their papers, against sons, effects, houses, and unreasonable searches and shall be seizures, violated, not and no War- upon probable supported by rants shall issue, cause, but particularly describing place Oath or affirmation, and things persons searched, to be and the to be seized.” by That text, contrast with the Fifth and Sixth Amendments, Contrary people.” sug- extends its reach “the to gestion phrase of amici curiae the Framers used this that “simply redundancy,” [an] to avoid rhetorical Brief awkward for American et al. as Amici Civil Liberties Union Curiae people” employed 4,n. “the seems have been a term of art parts in select of the Constitution. The Preamble declares by that the Constitution is ordained established “the Peo- ple protects of the United States.” The Second Amendment right people keep “the Arms,” of the and bear and the provide rights Ninth and Tenth Amendments thаt certain powers by people.” are retained and reserved to “the (“Congress also U. Const., See S. Arndt. shall make no law abridging right people peaceably . . . ... to assem- ble”) (“The § (emphasis added); Rep- cl. 1 I, 2, Art. House of composed every resentatives shall of Members chosen sec- States”) by People (emphasis ond Year the several added). by exegesis While this textual no means conclu- “the, suggests people” protected by sive, the Fourth by Amendment, and the First and Second Amendments, and rights powers to whom are reserved the Ninth and persons part Amendments, Tenth refers to a class of who are community developed have of a national or who otherwise country part sufficient connection with this to be considered community. See United States ex rel. Turner v. Wil- (1904)(Excludable liams, 194U. S. alien is enti- rights, “[h]e tled to First Amendment because does not be- people things by come one of the to whom these are secured law”). attempt by to enter our Constitution an forbidden language of these Amendments contrasts with the words “person” in the Fifth and Sixth Amend- used and “accused” procedure regulating in criminal cases. ments history drafting Fourth we know of the What purpose suggests that its was to restrict also Amendment might be conducted and seizures which searches originally matters. The Framers domestic United States provision like the Fourth Amend- not to include a decided they lacked the National Government ment, believed because power Warren, and seizures. See C. to сonduct searches (1928); Making 508-509 The Federal- of the Constitution 1961)(A. (C. Hamilton); p. 1 An- ed. 84, ist No. 513 Rossiter Madison). (1789) (statement Many Cong. of J. nals of pos- original disputed that view the Federal Government the only delegated powers affairs, over domestic sessed narrow prohibiting ultimately an un- felt Amendment however, and necessary. Madison, seizures was reasonable searches and granting example, argued a clause to Con- for that “there is necessary gress power all laws which shall the to make powers proper carrying all of the for into execution States,” the and that of United vested the Government might “necessary” general for the be considered warrants driving collecting purpose Id., revenue. at 438. The suggested adoption as Amendment, of the force behind the by hostility advocacy, widespread among was Madison’s empow- of assistance colonists to the issuance writs former places smug- suspected ering to search revenue officers general permitting gled goods, search warrants papers might private often to uncover that houses, search of Boyd persons v. United to' of libel. See be used convict (1886). The available histori- States, S. 625-626 U. purpose that the of the Fourth therefore, data show, cal people protect States of the United Amendment was to arbitrary against Government; was their own action provision suggested intended to restrain was never against aliens outside the Federal Government the actions of territory. States Thеre is likewise no indication the Fourth Amend- by contemporaries was understood of the Framers to ment apply against to activities United States directed territory Only in international aliens or waters. years Amendment, seven after the ratification of the French engaged interference with American commercial vessels triggered what came to be neutral trade known as the “unde- “protect In an Act clared war” with France. to the Com- Congress merce of the United authorized States” public President Adams “instruct the commanders of the employed are, armed vessels which or which shall be in the any States, subdue, service of the United seize and take juris- vessel, armed French which shall be found within the States, dictional limits of the United elsewhere, on § high seas.” 1 An Act Further to Protect the Commerce public States, 68, 1 of the United ch. Stat. 578. This naval Congress gave vessels, force consisted of so also power grant private President to the owners of armed ships “special and vessels of the United commissions,” authority which would allow them “the same license and for subduing, capturing any seizing and armed French ves- recapture goods sel, vessels, and for the of the and effects of people public States, of the United as the armed vessels § may by 1 2, of the United States law have.” see 579; Stat. (Congress power grant Const., I, §8, Art. cl. 11 U. S. has to marque reprisal). provision, letters of and Under the latter private 365 armed vessels were commissioned before March (1967); 1, 1799, Allen, see G. Our Naval War with France 59 together, in these enactments resulted scores of seizures congressional authority. of vessels under See M. Operations During Palmer, Stoddert’s War: Naval the Quasi- (1987). p. France, 1798-1801, War with 235 An See also Act Suspend Further to the Commercial Intercourse Between 1 France, the United States and ch. Stat. 613. com- Some manders were liable this Court for held unlawful seizures beyond scope congres- because their actions were of the 268 g., 2 authority, grant Barreme, Little v. see, e.

sional of (1804); 1 Seeman, Cranch cf. Talbot 170, 177-178 Cranch (seizure cap (1801) ship American lawful where neutral of 81 French), probable was but believe vessel cause to tain had suggested restrained Fourth Amendment that the was never authority Congress con to or of United States of operations such as this. duct Appeals appli- global the Court view taken contrary deci- to this Court’s is also

cation of the Constitution every con- held that not Cases, which in the Insular sions activity governmental provision applies even to stitutional g., sovereign power. e. See, has where the United (1922) (Sixth Amend- 298 Porto 258 U. S. Rico, Balzac v. Rico); Ocampo jury inapplicable right in Puerto to trial ment (1914) (Fifth Amendment 91 States, 234 U. S. v. United Philippines); inapplicable grand jury provision Dorr v. (1904) (jury provision in- trial States, 195 U. S. Philippines); applicable Mankichi, 190 U. S. Hawaii v. (1903) jury by grand jury (provisions on indictment Hawaii); inapplicable Bidwell, 182 U. S. Downes v. trial (Revenue (1901) inapplicable to Clauses of Constitution Rico). general rule that In Dorr, we declared Puerto clearly territory unincorporated destined an —one system adopt Congress required “a was not statehood — by jury, right and that the of trial include the laws shall which legislation its own not, without does Constitution right territory carry S., so situated.” U. such force, added). Only (emphasis “fundamental” constitutional at rights guaranteed of those territories. inhabitants are Examining supra, Board 312-313; see at 148;Balzac, Id., Surveyors Engineers, Otero, v. Flores de Architects (1976). respect If with that is true n. 30 572, 599, S. U. by Congress, respondent’s ultimately governed to territories protections extend Amendment of the Fourth claim that the certainly, it And is even weaker. to aliens in nations open light endorse the to the Insular Cases to us of is applies every provision wherever the constitutional view that power. its exercises States Government rejected aliens we the claim that are entitled Indeed, have sovereign rights territory the of Fifth Amendment outside to Eisentrager, In States. Johnson v. 339 U. S. the United (1950), enemy aliens arrested in the held that Court imprisoned Germany War II after World could China corpus in our federal courts on the not obtain writs of habeas ground crimes had violated convictions war the their provisions. Amendment and other constitutional The Fifth opinion acknowledged Eisentrager some cases con- provisions beyond citizenry; “[t]he extend the ‍​‌​​​‌‌‌​​​​‌​​​​​‌​‌‌​​‌‌‌​‌​​​​‌‌‌‌​​​​​​​‌‌​‌‍stitutional generous ascending . . has accorded scale alien . been identity society.” rights Id., as he increases his with our of application rejection of 770. But our of extraterritorial emphatic: the Fifth Amendment was application organic of law would “Such extraterritorial practice significant in the been an innovation have so apprehended, governments if that, intended or it could contemporary scarcely have failed to excite comment. cited. decision of Not one word can be No this Court supports Bidwell, a view. Downes 182U. S. such Cf. [(1901)]. None of learned commentators on our practice has even at it. Constitution hinted every government opposed Id., to it.” at 784. modern speaks Amendment, true the Fifth which in the If such is relatively “person,” would term of seem even universal ap- respect Amendment, true with to the Fourth which more people.” plies to “the support all-encompassing view of Fourth Amend-

To his plurality opin- respondent points language from ment, (1957). Reid in Reid v. 354 U. S. 1 involved an Covert, ion subject attempt Congress wives of American serv- military protection to trial tribunals without icemen The Court that it Fifth and Amendments. held Sixth apply Military Uniform Code of was unconstitutional capital American women for of the the trials Justice to “rejected] the that when the idea Four crimes. Justices against free of citizens abroad it can do so United States acts added). (emphasis plural- Rights.” Id., the Bill of ity say: to went on entirely a creature of the Constitu-

“The States is authority power have no source. It other tion. Its im- all the limitations in accordance with can act posed by When Government the Constitution. punish a the shield abroad, citizen who is out to reaches parts Rights Constitu- Bill of and other which the liberty protect provide his life should not be tion happens away just stripped he be another because omitted). (emphasis footnote added; land.” at 5-6 Id., interpret Respondent urges mean this we discussion to that Amend- the Fourth officialsare constrained federal they against But the whomever act. ment wherever and holding sweeping proposition: for no such of Reid stands could stationed abroad decided that United States citizens protection Fifth and Amendments. invoke Sixth Reid Frankfurter and Harlan in Justices The concurrences grounds plural- narrower than the case on much resolved the ity citizens were hold that United States and declined even to protections range in all full of constitutional entitled to the (Harlan, prosecutions. J., at 75 id., See overseas criminal result) my agree concurring brother with (“I Frank- analogous, question ul- before us a we have that... furter process; say, timately, in fact, one can issues of due safeguards specific question Constitution of which applied particular appropriately in a context over- to be are process ‘due’ to the issue of what is can reduced seas particular particular of a in the circumstances defendant case”). respondent citizen, not a he United States Since holding. from the Reid can no comfort derive in which Verdugo-Urquidez on of cases relies a series also rights. enjoy certain constitutional we that aliens have held (ille (1982) 202, 211-212 g., Plyler S. Doe, 457 U. See, e. Clausе); Kwong Hai by Equal protected gal Protection aliens (resident (1953) is a Colding, alien 590, 596 v. 344 U. S. Chew Amendment); meaning “person” the Fifth within the (1945)(resident aliens Bridges 135, 148 Wixon, 326 U. S. rights); Fleet v. Volunteer Russian (1931) Amendment have First (Just Compensation States, 282 U. S. 481 Wing Amendment); Wong States, v. United Fifth Clause (1896)(resident to Fifth and aliens entitled 228, 238 163U. S. Hopkins, rights); 118 U. S. Yick Wo v. Amendment Sixth (1886) (Fourteenth protects resident Amendment 356, 369 aliens). only re that aliens establish cases, however, These they protections come within have when ceive constitutional developed territory substantial of the United supra, g., Plyler, at country. e. See, with this connections “ (The ‘are uni provisions Amendment the Fourteenth persons application, the territo within to all in their versal .’”) 369); supra, (quoting at jurisdiction Wo, Yick . . rial (“The Rights supra, a Bill of is Kwong 596, n. 5 at Chew, Hai seeking authority first admission for the the alien futile lawfully alien enters once an But to these shores. time rights country with the invested he becomes in this resides people within our bor guaranteed all the Constitution ders”) opinion) (concurring supra, Bridges, (quoting at added)). Respondent has had no (emphasis an alien who voluntary significant with the United previous connection him not. these cases avail States, so judgment takes the in the concurrence Stevens’ Justice place though it is Mexico, search -took even view requirements governed of the Fourth nonetheless “lawfullypresent respondent in the was because Amendment brought though and held here he was . . . even United States presence— against But this sort of at 279. Post, will.” his any involuntary sub- sort to indicate not of the lawful but —is country. extent to which with our connection stantial protection might Amend- respondent of the Fourth claim the stay ifment the duration of his in the United States were to prolonged by prison example a sentence, for need — —we not decide. When the search of his house in Mexico took place, present he had been in the United States for days. matter applicability We do not think the premises Fourth Amendment the search of in Mexico should turn on the fortuitous circumstance of whether the custodian of its nonresident alien owner had or had not trans- ported him to the United States the time the search was made. Appeals support holding

The Court of found some for its Lopez-Mendoza, our (1984), decision in INS v. 468 U. S. 1032 majority where a of Justices assumed that the Fourth applied illegal Amendment aliens the United States. Appeals placing We cannot fault the Court of some reli expressly ance on case, but our decision did not address proposition gleaned by question the court below. The presented Lopez-Mendoza for decision in was limited to exclusionary whether the Fourth Amendment’s rule should deportation proceedings; extended to civil it did not en compass protections whether the of the Fourth Amendment illegal country. extend to in aliens this The Court often grants particular legal certiorari to decide issues while as suming deciding validity without proposi of antecedent compare, (1980) g., tions, e. Maine v. Thiboutot, 448 U. S. 1 (assuming “person” meaning State is a within 42 §1983), U. Michigan Dept. S. C. with Will v. State Police, (1989) (State “person”), U. S. is not a and such as sumptions jurisdictional binding on issues—are not in —even directly questions. future cases that raise Id., at Hagans (1974). 4;n. v. Lavine, 415 U. 528, 535, S. n. 5 Our Lopez-Mendoza dispositive statements are therefore not how the Court would rule on a Fourth Amendment claim illegal aliens in the United States if such a claim were squarely assuming before us. Even such aliens would be en protections, titled to Fourth Amendment their situation is illegal Lopez- respondent’s. The aliens in different from voluntarily presum- Mendoza were in the United obligations; ably respondent accepted societal but some had country voluntary might with this connection had no among people” place him “the of the United States. differently Respondent also that to treat aliens contends respect some- citizens with to the Fourth Amendment from equal protection component of the Fifth how violates the He Amendment to the United States Constitution. relies on (1971), Foley Richardson, 403 U. S. 365 v. Graham (1978), proposition. Connelie, 435 U. S. 291 for this But the previously respect protection very cited with to the ex- cases tended the Constitution to aliens undermine this claim. They expressly are constitutional decisions of this Court ac- cording differing protection citizens, to aliens than to based particular provisions question that the on our conclusion degree were not intended to extend to aliens the same as (1976) Diaz, Mathews v. 79-80 to citizens. Cf. U. S. (“In power the exercise of its broad over naturalization and immigration, Congress regularly makes rules that would be citizens”). unacceptable applied if history against respondent, are and case law but Not Eisentrager, pointed out in Johnson v. S. 763 as U. (1950), accepting signifi- claim have the result of his would consequences for the cant and deleterious United States beyond conducting activities its boundaries. The rule apply adopted Appeals the would to law Court of operations foreign pol- abroad, but also to other enforcement icy operations might in which result “searches or seizures.” frequently employs Armed Forces outside The United States country history protec- in this 200 times our the —over —for security. Congres- tion of American citizens or national Instances of Use of United States Service, sional Research 1989). (E. 1798-1989 ed. Abroad, Armed Forces Collier Application of the Fourth Amendment to those circum- ability significantly disrupt political the the stances could of involving respond foreign our na- to situations branches to respondent prevail, to aliens with no Were tional interest. country bring might well actions for dam- to this attachment remedy ages of the Fourth Amendment to claimed violations foreign in international waters. See Bivens countries or Agents, Narcotics 403 U. S. 388 Unknown Federal v. Six (1985); (1971); v. S. Graham Garner, cf. Tennessee U. (1989). Perhaps a Bivens action 490 U. Connor, v. S. might to or all of these situations due be unavailable some Chappell “‘special counselling hesitation,’” see factors (1983) supra, (quoting Wallace, Bivens, S. 462 U. case-by- 396), still be faced with but the Government would availability adjudications concerning such an ac- the of case wholly inapplicable in Bivens deemed tion. And even were problems foreign activity, the of that would not obviate cases attending application of Fourth Amendment abroad Legislative and aliens. The Members the Executive to they uphold pre- Constitution, to Branches are sworn sumably to commands. But the Court of desire follow its applicability plunge Appeals’ global its would them view of uncertainty might as a sea to what reasonable into way Indeed, of searches and seizures conducted abroad. Appeals exigent circumstances, the Court of held that absent agents couldnot effect a “search or seizure” country purposes without first a law enforcement obtaining warrant —which would be a dead letter outside a country. magistrate a in this Even —from United States required,

if no warrant were American would have probable giving specific facts them cause under- articulate they comply if a wished to with the take search seizure Appeals. as conceived the Court of Fourth Amendment Amendment, think that text of the Fourth its his- We discussing application tory, cases the Constitu- our extraterritorially require rejection re- tion aliens spondent’s search, claim. At the time of the he was citizen voluntary with attachment to the and resident of Mexico no place in Mexico. was located searched States, and Amendment has no the Fourth circumstances, these Under application. in a world of nation-states worse, we live or for

For better “functio[n] effec- able to must be our Government in which sovereign company Perez tively nations.” of in the (1958). who violate our Some U. S. Brownell, 356 regime quite may dif- under live outside our borders laws country. Situations obtains this that which ferent from may important threatening interests arise half- American po- globe, way the view of the situations which around require American re- an our Government branches of litical restrictions on sponse If there are to be armed force. with to such American which occur incident and seizures searches political imposed they branches must action, treaty, understanding, legislation. through diplomatic accordingly Appeals judgment of of the Court

Reversed. Kennedy, concurring. Justice agree Amendment has oc- the Fourth that no violation of

I judgment of the Court reverse the and that we must curred my ap- Although explanation Appeals. views is some given I propriate case, this do not believe the difficulties of opinion respects they depart from the in fundamental join. I which Court, application involving the extraterritorial

In cases person whether the have taken care to state Constitution, we g., protection claiming Covert, e. Reid v. citizen, see, is a its (1957), g., Eisen e. Johnson v. alier, see, or an 354 U. S. (1950). citi trager, The distinction between 339 U. S. proposition from the undoubted aliens follows zens and general principles of create, nor do does the Constitution country any juridical our relation bеtween create, law beyond who are class of noncitizens limitless undefined, some territory. however, that the absence note, We should our only depend limited on the idea that a not

this does relation formed Gov- persons instrument that our ratified the class of beyond dispute persons Though must be it ernment. the not not assent to did and could the United States outside any quite of irrelevant to construction that is Constitution, imposed by powers As it. the limitations the conferred or Story explained in his Commentaries: Justice voluntary compact may originate government in the “A people people or of a states, of several or of the assent yet adopted ratified and when and united, never before resting compact; longer in a matter but be no them, government fun- constitution, or a an executed become difficulty league. But the a mere law, damental and not compact asserting people of in be a between people is, of the other states state, each all the expression, contains no such itself the constitution designation parties.” 1 on the of Commentaries no such (1833) omitted). (footnote § p. 335 Constitution it was The brought is confined because force of Constitution being by persons gave imme- into certain who their diate to its assent terms. place any weight I reasons,

For similar cannot somewhat people” on the as reference to “the the Fourth Amendment respect, protections. restricting a I sub- source of its With mit from force or its reach. these words do not detract its history Given of Nation’s over warrantless our concern explicit recognition right of searches, unreasonable “the protection may people” of the in- to Fourth Amendment terpreted importance right, rather ‍​‌​​​‌‌‌​​​​‌​​​​​‌​‌‌​​‌‌‌​‌​​​​‌‌‌‌​​​​​​​‌‌​‌‍underscore may persons category than who it. to restrict assert The must restrictions that the United States observe with beyond territory jurisdiction reference to aliens its or de- pend, general interpreta- consequence, principles as a on inquiry tion, an who not on as to formed Constitution being rights construction that are as those some mentioned people.” “the plurality opinion correct, in Reid v.

I take it to be as the may only forth, sets that the Government act as the Covert question authorizes, whether the actions are Constitution principle 354 U. at 6. But this S., or domestic. See step resolving question a first this case. be- apply us then becomes what constitutional standards fore acts, alien, reference to an within when Government sphere foreign operations. its We have not overruled (1891), Ross, In re 140U. S. 453 or the so-called Insu- either (i. (1901); lar Downes v. 182 244 Ha- e., Bidwell, Cases U. S. (1903); Mankichi, waii v. U. S. Dorr v. United (1904); 195 U. S. 138 Balzac v. Porto 258 U. S. States, Rico, (1922)). authorities, These as well as United States v. (1936), Curtiss-Wright Export Corp., 299 U. S. proposition interpret that we must constitu- stand for protections light power in of the undoubted of the tional legitimate power take actions to assert its United States to authority Harlan and abroad. Justice made this observation judgment opinion conсurring in in the in Reid v. Covert: his suggestion every provision agree “I cannot with the that always must be deemed automati- of the Constitution cally every part applicable American of the citizens an world. For Ross and the Insular Cases do stand for important proposition, one which seems to me a wise and necessary proposition gloss is, The on our Constitution. apply’ not over- course, not that the Constitution ‘does provisions in the but that there are Constitution seas, necessarily apply in all circumstances in do not which every foreign place. words, In other it seems to me teaching of Ross and the Insular Cases is that the basic rigid Congress, and abstract rule that as that there is no exercising power precedent Ameri- over condition subject guaran- must exercise it to all the overseas, cans the conditions tees of the no matter what Constitution, adherence to a are that would make considerations altogether impracticable guarantee specific and anoma- S., at 74. lous.” 354 U. this case would make and considerations of

The conditions requirement Fourth Amendment’s warrant adherence to the impracticable as the Constitution and anomalous. Just require Congress implement all Insular Cases did not guarantees in because of their its territories constitutional “wholly institutions,” the Constitu- traditions and dissimilar require a war- to obtain tion does not United States searching foreign a nonresident alien. home of rant when in a within the United If had occurred residence thе search protections that the full I have little doubt States, apply. But that is not this case. Fourth Amendment would judges magistrates available to issue of local absence differing perhaps concep- unascertainable warrants, the prevail privacy abroad, reasonableness and tions of cooperate with officials all indicate requirement the need to warrant should the Fourth Amendment’s country. apply reason, as it does in this For this Mexico persuasive justifications the other stated addition to agree I that no the Fourth Amendment Court, violation of rights citizen, as in the case before us. The of a has occurred continuing obligations, are to whom the United States has by presented this case. not imply, decided, not

I do not mean to and the Court has persons position respondent in of the have no constitu- prosecuting foreign protection. a The United is tional III, and all of the national in a court established under Article by proceedings governed All are the Constitution. trial agree, that the dictates of the Due Proc- instance, would protect Fifth Amendment the defendant. ess Clause put question it, Harlan “the of which Indeed, as Justice applied specific safeguards appropriately in a . . . are to be particular what . . . can be reduced to the issue of context process particular in circumstances is ‘due’a defendant approach- Nothing particular supra, a 75.' Reid, case.” ing process in this case. a violation of due has occurred in the Stevens, Justice concurring judgment. lawfully my opinion present

In in aliens who are the United among “people” pro who are entitled to the States are those including Rights, Bill tection of the Fourth Amend person Respondent surely though ment. such even he brought against was his will. I and held here therefore can join sweeping opinion.* agree, I the Court’s do how ever, with the Government’s submission that the search approval conducted the United States with the cooperation of the Mexican authorities was not “un in reasonable” as that term is used first Clause of the any I Amendment. do not believe the Warrant Clause has application foreign ju to searches of noncitizens’ homes magistrates power American risdictions because have no I authorize such searches. therefore concur the Court’s judgment. with whom Brennan,

Justice Justice Marshall joins, dissenting.

Today although foreign the Court holds that nationals must countries, abide our laws even when their own our Gov- by the ernment need not abide Fourth Amendment when it investigates respectfully I them for violations of our laws. dissent.

I Particularly past sought, decade, our Government has successfully, criminally to hold nationals liable under entirely beyond federal laws for conduct committed the terri- torial limits of the United States nevertheless has effects interesting simply *The Court’s historical discussion is irrelevant to the lawfully territory question sovereign an alien within the of the whether protection to the of our laws. Nor is comment on United States is entitled illegal protections to the of the Fourth Amendment nec- aliens’ entitlement essary case. to resolve this

280 to take care not must now nationals Foreign country. this our securities laws,2 antitrust laws,1 our our drug

violate criminal statutes.4 of other federal laws,3 and a host 1 permit broadly enough to written drug statutes enforcement Federal manufacture, proscribing the dis laws include application extraterritorial of con to manufacture or distribute tribution, intent possession or with (1982 1903(h) App. § vessels, 46 U. S. C. see board trolled substances on V) (“This . . . out reach acts committed ed., is intended to Supp. section States”), possession, man the United jurisdiction of the the territorial side purposes for of unlawful substance ufacture, of a controlled or distribution 959(c) (same), conspiracy to violate fed § importation, see 21 U. S. C. States, 1308, 2d 730 F. laws, Han Mow v. United see Chua eral narcotics (CA9 1984) §§ a 21 and 963 to conduct (applying S. C. 846 U. 1311-1312 (1985). denied, 1031 Malaysia), 470 U. S. Malaysian cert. citizen 2 foreign corporations, 15 to include “person” Act defines The Sherman beyond conduct the territorial 7, applied § certain and has been U. S. C. by foreign corporations and nationals for least States limits of United America, 416, 148 2dF. v. Aluminum Co. years. United States 45 See of (CA2 1945). 443-444 3 10(b) § may of the Securities Ex corporations liable under Foreign §78j(b), transactions that occur outside change 1934, 15 S. C. Act of U. registered involve and listed on the transactions stock United if exchange alleged and the conduct “detrimental a national securities Firstbrook, 405 F. American invеstors.” Schoenbaum of the interests (CA2 (CA2), 405 F. 2d 215 rehearing grounds, on other 208 rev’d on 2d (1969). 1968) denied, (en banc), 395 U. S. 906 cert. 4 32(b) (violence against § g., an individual aboard See, e. S. C. U. country registered in a other than the any “civil aircraft destruction or (assaulting, § resisting, flight”); such aircraft is States while United § employees); (influencing, impeding, or impeding officers or certain or by threatening injuring family or a retaliating against a federal official murder, (murder, member); attempted conspiracy §§ 1201(a)(5) § employees); (kidnaping officers and certain federal murder 1201(e) 1114); § § employees (kidnaping listed in of “an officers and federal alleged internationally protected person,” if the offender is found States, “irrespective place where the offense was committed United offender”); § nationality alleged (hostage victim or or the States, person or if the offender seized is taking outside the United national, States, if if the is found in the United offender United States compelled is the Government governmental organization sought to be “the (fraud visas, States”); permits, § 1546 and misuse of

281 expansion jurisdiction enormous federal criminal outside suggest our Nation’s boundaries has led one commentator to country’s largest exports that our three are now “rock jeans, music, blue and Grundman, United States law.” The Imperialism: Application New Extraterritorial United (1980). 14 Law, States Int’l 257, Law. Congress’ authority

The Constitution is the source of to criminalize conduct, abroad, whether here or and of Ex- authority prosecute investigate ecutive’s and to suсh con- prescribes duct. But the same Constitution also limits on authority investigate, prosecute, our Government’s punish foreign criminal conduct, whether or domestic. As a plurality Covert, of the Court in Reid noted v. U. S. (1957): entirely 5-6 “The United States is a creature of the power authority Constitution. Its have no other source. imposed It can act in accordance with all the limitations (Footnotes omitted.) by the Constitution.” ante, See also (“[T]he concurring) may at 277 (Kennedy, J., Government only as act the Constitution authorizes, whether the actions domestic”). question foreign particular, are or In provides: Fourth Amendment right people per-

“The of the to be secure in their papers, against sons, houses, effects, unreasonable seizures, searches and shall not be violated; and no War- upon probable supported by rants shall issue but cause, (terrorist documents); § immigration against other acts abroad United (1982 V) 1472(n) (air- nationals); App. § Supp. U. S. C. ed. and States, piracy special jurisdiction craft outside the aircraft of the United if States). Foreign may the offender is found the United nationals also be criminally falling “special liable for numerous federal crimes within the States,” jurisdiction territorial maritime and United which includes “[a]ny place jurisdiction any respect outside the nation with to an offense §7(7). against or a national of the United States.” 18 U. S. C. Fi- nally, conspiracy may permit pros- broad construction of federal statutes anyone ecution of nationals who have had no direсt contact with or States, Ford anything in the United States. 273 U. S. See (1927). 619-620 describing place particularly affirmation, and or

Oath things persons be seized.” searched, and the today antilogy: author- the Constitution creates an The Court abroad, but criminal laws to enforce our izes Government our authority, Fourth the this when exercise Government At This be. them. cannot with Amendment does not travel cor- an unavoidable very Amendment the the Fourth least, power enforce the criminal to of Government’s relative the law.

A peo- right guarantees of the “the Fourth Amendment ple” and seizures and searches from unreasonable to be free only upon presentation provides issue that a warrant shall par- demonstrating probable cause and an or affirmation oath persons place ticularly describing the to be searched and the majority, According things to the the term be seized. or to part persons people” are of a “a who “the refers to class developed community suffi- otherwise or who have national country part this to be considered cient connection with community.” Ante, admits at 265. The Court that citizenry, beyond people” the but leaves the “the extends precise its connection” test unclear. “sufficient contours of protected point majority that aliens At the hints are one they by when come within the the Fourth Amendment develop our United States and “substantial connections”with country. junctures, sug- Ante, at 271. At other the Court presence gests must that an alien’s in the States be United 5 voluntary “accepted and that the alien have some so- must 5 ante, 271, by majority, requires cases the at an None the cited “voluntary” before the alien alien’s connections the United States to be Diaz, Indeed, Mathews the v. can claim benefits of the Constitution. (1976), con explicitly rejects S. notion that an individual’s U. voluntary qualify nections to the United States must be sustained Furthermore, protection. if a even voluntariness re constitutional governmental quirement guaranteeing were sensible in bene cases certain (1982) Doe, aliens, g., Plyler illegal (holding e. S. 202 fits to U. obligations.”6 yet points, Ante, cietal at 273. At other majority implies respondent protected would place Fourth if Amendment searched were in Ante, States.7 274-275. majority ignores, however,

What the is the most obvi- Verdugo-Urquidez ous between connection and the United investigated being prosecuted States: he was and is for viola- may spend tions of United law and well rest of his prison. life in a United States The “sufficient connection” is supplied by Verdugo-Urquidez, but the Government. ‍​‌​​​‌‌‌​​​​‌​​​​​‌​‌‌​​‌‌‌​‌​​​​‌‌‌‌​​​​​​​‌‌​‌‍deny illegal public that States cannot the free they pro- aliens education aliens), legally vide to citizens and documented require- is not a sensible impose ment when our Government chooses to our laws on criminal others. discussion, implicitly In this suggests Court that the Fourth Amend may Ante, protect illegal ment not in the aliens United at States. 273. courts, however, Numerous lower have held that illegal aliens in the protected by United Amendment, States arе the Fourth and not a single See, contrary. g., lower court has held to the e. INS, Benitez-Mendez v. (CA9 1985); 760 F. 2d 907 Rodriguez, 834, United v. States F. 532 2d 838 (CA2 1976); INS, App. 156, Au Yi Lau v. 144 S. 147, U. D. C. 445 F. 2d denied, 217, 225, (1971); INS, 404 cert. U. S. 864 Sang Yam Kwai v. 133 369, 372, App. 683, 686, denied, U. S. D. C. 411 F. 2d cert. 396 U. S. 877 (1969). 7 express The Fourth Amendment no implied contains territorial limitations, majority and the hold that does not the Fourth Amendment is inapplicable to searches outside the United States and its territories. It respondent protected by holds that is not the Fourth Amendment because people.” Indeed, he majority’s is not one of “the the analysis implies that foreign “developed national who had sufficient with connection this coun try part community” to be considered of protected by [our] would be regardless Fourth Amendment of location Certainly of the search. nothing opinion rule, in the questions validity Court’s accepted by every Appeals Court of to question, have considered the applies Fourth Amendment to searches conducted the United States See, against Government United g., States citizens abroad. e. United 1258, (CA5), denied, Conroy, States v. F. 2d cert. 444 U. S. 831 Rose, (1979); (CA9 1978). United 2d States F. A war rantless, search unreasonable and seizure is no less a violation of the Mexico, Mexicali, Fourth Amendment because it occurs rather than Calexico, California. protections Respondent to the of the Fourth is entitled by investigating him Government, because our Amendment attempting him under to hold accountable community treated him as a member of our laws, criminal has quite purposes enforcing become, He has lit- our laws. of erally, governed. Fundamental and the one fairness of compel Rights underlying Bill of our the conclusion ideals obligations,” impose ante, that when “societal we obligation comply laws, on to with our criminal such as the obliged respect to certain we turn are nationals, among rights, the Fourth Amendment. correlative them respondent people’.’ By concluding is not one “the majority protected by Amendment, the disre- the Fourth mutuality. expect obey gards If we aliens to basic notions of obey expect that will our laws, our aliens should able to we prosecute, punish investigate, Constitution when we principle recognized fundamental of mu- them. We have tuality this Madison, uni- since the time of the Framers. James versally primary recognized Bill as the architect importance mutuality Rights, emphasized when he against spoke a dec- out the Alien and Acts less than Sedition adoption of the ade after the Amendment: Fourth parties “[I]t follow, are because aliens not to the does parties Constitution, it, that, as citizens whilst are they actually they right pro- no its it, conform have parties are not to the laws than tection. Aliens more they yet parties to the not be dis- Constitution; are will they puted temporary hand, owe, as obedi- that, on one they protection ence, entitled, return, to their are Report Virginia advantage.” the Madison’s on Resolu- (2d (1800), reprinted in 4 Elliot’s Debates 556 ed. tions 1836).

Mutuality fairness is essential ensure fundamental Rights. Foreign Bill that nationals investi- underlies our prosecuted alleged gated for violations United States just oppressive laws are as vulnerable to Govern- criminal investigated ment behavior as are United States citizens prosecuted alleged for the violations. Indeed, same a case such as this where the Government claims the existence of conspiracy, foreign an international criminal citizens and na- may charged codefendants, tionals under the same stat- facing penalties for the same utes conduct and the same if They may investigated by convicted. have been the same agents pursuant authority. to the same enforcement When our Government holds these codefendants to the same stand- protects conduct, ards of Amendment, Fourth which pro- citizen from unreasonable searches and seizures, should foreign tect the national as well.

Mutuality also serves to inculcate the values of law and By respecting rights foreign order. courage nationals, we en- respect rights

other nations to of our citizens. increasingly Moreover, as our Nation becomes concerned about the domestic crime, effects of international we can- forget agents the behavior of our law enforcement powerful message abroad sends a about the rule law in- everywhere. dividuals As Justice Brandéis warned Olm- (1928): States, stead v. United 277 U. S. 438 “If the lawbreaker, Government becomes a it breeds contempt every it law; invites man to become a law anarchy. unto himself; invites To declare that justifies administration of the criminal law the end bring Against means . . . would terrible retribution. pernicious resolutely doctrine, this Court should set (dissenting opinion). Id., its face.” at 485 principle applies This is no different when the United States respect conduct its rules of If nationals. we seek principles order, for law and we must observe these our- selves. Lawlessness breeds lawlessness.

Finally, when United States conduct unreasonable they disregard searches, whether at home or abroad, Na- our years, country tion’s values. For over 200 our has consid- protector ered itself the world’s foremost of liberties. The primary sanctity tenets privacy home have been judicial national philosophical, Our beliefs.8 moral, our pre by the need those values and is defined interest pride just in our com We take institutions. serve our own whim, mere break cannot, that on mitment to a Government places. personal of We ex most and invade the down doors example. How can we ex follow our nations to hort other plain long cherished these to ourselves—that to others—and being consequence suddenly the door when of no ideals are foreigner? belongs to a broken principles today majority of mutual- aside the brushes our Nation’s

ity that are central to fairness and fundamental a “suffi- The Court articulates conscience. constitutional the under- then refuses to discuss test but cient connection” any interpretation upon test lying principles of that which among by placing respondent those rest. I believe that must governed by investigating him for laws and criminal federal part him a has made the Government laws, those violations of community purposes Amendment. of the Fourth of our

B respondent have suf- does not In its effort to establish considered one to be to the United States ficient connection people” protected Amendment, the the Fourth of “the historical evi- Amendment, relies on the text of Court pro- refusing apply constitutional certain dence, and cases these, however, None of outside the United States. visions interpretation cramped justifies majority’s of the Fourth applicability. Amendment’s independence from origins of our Adams traced 8 President John against the British argument in 1761 impassioned

England to James Otis’ assistance, American officers to search which allowed revenue writs of man’s they argued “[a] wanted. whenever Otis homes wherever and (C. 1850), castle,” Adams 524 Adams ed. of John house is his Works Independence was born.” and there the child “[t]hen declared that Adams (C. 1856). ed. Adams 248 Adams 10 Works John majority provisions The looks to various constitutional “ suggests people’ ‘the seems to have been a term of art.” majority Ante, at 265. But the admits that its “textual exe gesis by no means conclusive.” Ibid.9 One Member of majority place any weight even states that he “cannot people’ on the reference to ‘the in the Fourth Amendment as restricting protections.” a source of its Ante, at 276 (Ken concurring). majority suggests J., The a restrictive nedy, interpretation оf those with “sufficient connection” to this country among people,” to be considered “the but the term people” counterpoint “the is better understood as a rhetorical rights to “the Government,” such that that were reserved to people” protect subject “the were to all those to “the Gov Jersey ernment.” New Cf. v. T. L. O., 469 325, U. S. 335 (1985)(“[T]he long spoken Court has of the Fourth Amend imposed upon ‘governmental ment’s strictures as restraints action’”). people” governed.” “The are “the drafting

In Rights, both the Constitution and the Bill of decidedly the Framers strove to a create form of Government heritage. different from their British Whereas the British Parliament was unconstrained, the Framers intended to cre- powers. Bailyn, ate Government of limited See B. The Ideological Origins (1967); of the American Revolution 182 1 (H. 1981). Complete Storing The Anti-Federalist 65 ed. The dangerously colonists considered the British Government omnipotent. rights all, After the British declaration of majority places The unsupportable an reliance on the fact that Drafters people” used “the using “person” the Fourth Amendment while ante, and “accused” in respectively, the Fifth and Sixth Amendments see at 265-266. purposely The Drafters did not use the term “accused.” As ante, majority recognizes, the Fourth Amendment is violated intrusion, at the time of an governmental unreasonable even if the victim governmental of unreasonable never formally any action is “accused” of wrongdoing. majority’s suggestion that the Drafters could have used “person” ignorеs the fact that the Fourth Amendment then would have begun quite awkwardly: right persons “The per to be secure their sons . . . .” people, but not Parliament. had enacted been 1987). (M. p. Ameri- Beloff ed. No.

The Federalist rights vehemently were matters attacked the notion cans given people grace,’” the Govern- of “‘favor from Dickinson). (quoting Bailyn, supra, John at 187 ment. B. Rights purport did of the Bill of Thus, Framers they designed Rights rights. the Bill Rather, “create” infringing rights prohibit and liber- from our Government g., pre-existing. presumed Const., e. See, U. S. to be ties (“The in the Constitution of certain enumeration Arndt. deny disparage rights, re- or others be construed to shall not by people”). for exam- Amendment, The Fourth tained the security against ple, right a new of unreason- does not create right “[t]he the of able and seizures. It states searches persons, papers, people ef- houses, in and to be their secure against not seizures, and shall fects, unreasonable searches is on . The focus the Fourth Amendment beviolated . . .” may act, do, can and how it what the and cannot Government may against Bestow- these be taken. on whom actions not protected groups rights delineating ing been would have conception of a with the Drafters’ fundamental inconsistent Rights limitation the Government’s conduct Bill of as a on respect govern. It is thus ex- all whom seeks to with tremely unlikely con- that the intended the narrow Framers presented today by people” “the the struction of the term majority. history drafting Amendment also does

The of the Fоurth majority’s interpretation people.” support of “the the right against limit the unrea- chose not to First, Drafters specific ways. They in more searches and seizures sonable right “citizens,” “freemen,” “resi- have limited the could people.” The called to or “the American conventions dents,” Virginia, ratify in York and for exam- the Constitution New every stating, ple, an amendment “That each recommended right all to be secure from unreasonable freeman has a Cuddihy, .” . . . W. Sei- searches seizures Search pt. zure Britain and the American Colonies, Great 2, (1974). p. 571, 129, n. n. 134 But the Drafters of the rejected pro- Fourth Amendment this limitation and instead broadly right “[t]he people vided to be secure persons, papers, their houses, and effects.” Second, histori- cal contain materials no evidence that the Drafters intended availability right expressed to limit the in the Fourth Amendment.10 Amendment was introduced on floor Congress, Committee, considered debated Representatives House of Senate, and the and submitted to approval. Throughout process, the 13 States for that entire speaker pro con, no or commentator, referred term people” “the as a limitation.

10 The historical majority evidence the sets forth in support of its interpretation restrictive of the Fourth Amendment involves the seizure of during French an vessels “undeclared war” with France 1798 and 1799. opinions Supreme cases, Barreme, Because two Court Little v. 2 Cranch Seeman, (1804), (1801), and Talbot v. 1 Cranch 1 “never suggested thаt authority Congress Fourth Amendment restrained the or of United this,” ante, operations ‍​‌​​​‌‌‌​​​​‌​​​​​‌​‌‌​​‌‌‌​‌​​​​‌‌‌‌​​​​​​​‌‌​‌‍to conduct such as ma jority deduces those alive when the adopted Fourth Amendment was protected did not believe it Relying nationals. on the absence any of of the decisions, however, discussion Fourth Amendment in these directly contrary majority’s runs to the admonition that the Court Ante, truly that “expressly decides which it address[es].” at 272 (1984)). (discussing Lopez-Mendoza, INS v. Moreover, 468 1032 U. S. the Court in Little found that the American commander had violated the seizures, authorizing any statute thus rendering the discussion of con See, superfluous. TVA, question stitutional g., e. Ashwander v. 297 (1936) (Brandéis, J., Talbot, U. S. 347 concurring). And in the ves opposed purely sel’s owners the on grounds, claiming seizure factual the Furthermore, vessel was French. although not neither Little nor Talbot expressly Amendment, opinions mentions the Fourth adopt “proba both a standard, suggesting may ble cause” that applied the Court have either or Little, been informed the Fourth Amendment’s standards of conduct. 179; Talbot, supra, supra, at 31-32 (declaring prob at that “where there is able cause to believe the met vessel with at is in sea the condition of one her, capture, subject liable to is lawful to take her to the examina courts”). adjudication tion and of the

290 dealing a of with relies on series cases also

The Court procedural protections of application outside the criminal of every constitutional to that “not the States United conclude activity governmental provision applies the even where to sovereign power.” Ante, at 268. None United States has purports phrase read “the to the cases, however, of these protections limiting people” the Fourth Amendment the of as States, to the United with “sufficient connection” those analysis. majority’s gives The none content the thus respondent light question on whether no the cases shed —a nonenemy being tried in a United of a nation citizen people” protected the of Fourth court—is one “the federal Amendment. Eisentrager, majority mischaracterizes

The Johnson (1950), having “rejected as the claim aliens that U. S. sovereign rights outside are entitled Fifth Amendment territory Ante, Johnson, In at 269. States.” United engaging in of continued nationals were convicted German activity against military States after surren- United Japan Germany of in World der and before the surrender of does con- The War II. Court held “the Constitution security immunity military right personal from fer an a engaged punishment upon enemy an alien trial and government war with the at hostile service added). (emphasis As S., the Court States.” U. wrote: vulnerability exposes war the relative

“It is protection enjoyed security alien’s status. allegiance amity remains with while nation his greatly impaired are when his nation the United States up against . coun- arms us. . . But disabilities this takes enemy try lays upon are who also an alien becomes imposed temporarily as an as an of war and not incident alienage.” Id., at 771-772. incident of

291 rejected German nationals’ obtain The Court efforts to corpus they foreign writs of habeas not because were nation- they enemy als, but because soldiers. were Insular Cases, Rico, The Balzac v. Porto S. 258 U. 298 (1922), Ocampo (1914), States, 91 v. United 234 U. S. Dorr v. (1904), States, Mankichi, 138 Hawaii U. S. (1903), inapposite. U. S. likewise are The Insular persons enjoyed pro all Cases concerned whether accused rights prosecutions brought by tections of certain in criminal territorial authorities in territorial courts. These cases were long ago, limited to their v. Covert, facts see Reid U. S., (“[I]t (plurality opinion) judgment 14at is our that neither the reasoning any given expan cases nor their should be further sion”), they analytical are of no when a value criminal de prosecu fendant seeks to invoke the Fourth Amendment in a by tion the Federal Government a federal court.11

C majority’s rejection respondent’s claim to Fourth protection apparently by Amendment is motivated its fear application of the Amendment law enforcement against foreign signifi- searches nationals overseas “could cantly disrupt ability political respond branches to involving Ante, situations our national interest.” majority’s doomsday at 273-274. The Ameri- scenario—that conducting protect can Armed Forces a mission to na- our security objective tional with no law enforcement “would specific giving probable have to articulate facts them cause ante, seizure,” to undertake a search or at 274—is fanciful. Verdugo-Urquidez protected is the Fourth Amendment 11 The last of the Cases majority, Insular cited Downes v. Bidwell, Doivnes, equally 182 U. S. In (1901), irrelevant. the Court part held that Puerto respect Rico was not “the United States” with provision Duties, Imposts constitutional that “all and Excises shall be throughout States,” §8, Const., I, uniform the United U. Art. cl. 1. S. S., Clause, 182 U. Unlike Uniform 249. Duties the Fourth Amend express ment contains no sivpra. territorial limitations. See n. 292 prosecuting by investigating Government, our

because supra, governed.” made him one of See has “the him, governed,” Accepting respondent as one “the 284, 287. enemy hardly accept requires aliens however, the Court governed” among entitled invoke wartime as “the protection v. See Johnson the Amendment. of the Fourth Eisentrager, supra. respect activities to non-law-enforcement

Moreover, with enemy against but neverthe- aliens wartime not directed exceptions security, implicating doctrinal less national probable requirements general cause of a warrant and the frequently applicable likely abroad, thus less- be more would purported ening the Fourth Amend- tension between power. affairs the Executive’s ment’s strictures and likely operations involving Many abroad sensitive situations exigent such warrant circumstances would involve Hayden, requirement Warden v. 387 Cf. would be excused. (1967). Therefore, the Government’s conduct U. S. standard, under the reasonableness would be assessed depends application on See which context. (1985) Montoya Hernandez, 531, 537 de 473 U. S. States v. (“What depends upon all of the circumstances is reasonable surrounding and the nature of the or seizure search itself”). search or seizure precise addition,

In contours of “reasonable” where Branch will unclear, search and seizure are Executive uncertainty,” “plunge[d] ante, at . . . into a sea impair materially ability to conduct for- 274, that will its immunity long eign have affairs. Doctrines such as official any protected ex- chill on the Government from undue g., Economou, Butz v. See, of lawful e. ercise discretion. (1978). recognized Similarly, has S. 478 Court U. may the offensive which that there be certain situations rights Cf. Bivens use be limited. of constitutional should Agents, U. Fed. S. Unknown Narcotics Six (1971) damages (precluding violations suits for “special factors there are the Fourth Amendment where hesitation”). counselling implicating In most cases for- policy eign of an concerns which the reasonableness over- application unclear, seas search or of the Fourth seizure is tradi- Amendment will not interfere with the Executive’s foreign prerogative tional in affairs because a court will have constitutionality occasion to decide the of such a search bring prosecution if the Executive decides to a criminal and evidence seized abroad. When the Executive introduce de- part ongoing a search to conduct as of an criminal in- cides vestigation, get fails to a warrant, and then seeks to intro- the fruits of that trial, however, duce search at the courts must enforce the Constitution.

II governs Because the Fourth Amendment the search of re spondent’s properly residences, Mexican the District Court suppressed the in evidence found that search because the conducting officers the search did not obtain a warrant.12 agree I cannot with Blackmun Justice Justice Ste application that the Warrant has no Clause searches vens exigent justify The District found Court no circumstances that would respondent’s Mexico, After in warrantless search. arrest he was trans custody ported to the United States and held in in southern California. Only respondent custody after in in Drug was the United States did the (DEA) begin preparations Enforcement Administration for a search of his arrested, night respondent Agent Mexican residences. On the was DEA Terry Special Agent Bowen contacted DEA in Walter White Mexico to Special in conducting Agent seek his assistance the search. White con morning p.m. Agent tacted Mexican officials the next and at 1 authorized Bowen to conduct the search. A team of DEA then drove to Mex ico, officials, met with Mexican respondent’s and arrived at the first of two (CA9 1988). residences after dark. 856 F. 2d The search did approximately day begin p.m. respondent not until after was taken custody. App. time, into particularly to Pet. for Cert. 101a. In all that respondent Agent when Bowen were both in the United States and Agent awaiting Special Bowen was Agent further communications from White, easily DEA agents sought could have a warrant from a United Magistrate. because Ameri foreign jurisdictions homes noncitizens’ lack to authorize such searches.13 magistrates power

can ante, at 279 J., dissenting); See at 297 post, (Blackmun, The Warrant J., concurring judgment). (Stevens, same functions abroad as primary Clause serve the would no and I see reason between distinguish does domestically, searches. domestic of the warrant is its requirement The primary purpose stated As Justice Jackson for neutrality. assurance of judgment concurs in the because he believes that Justice Stevens not as that term is used the search this case “was ‘unreasonable’ Ante, I at 279. do not the Amendment.” understand first Clause of question in the in why reaches reasonableness first Justice Stevens Appeals. remanding rather that issue the Court The Dis stance than search, that, required this even if a warrant trict Court found were The court found that nevertheless unreasonable. the search was unconstitutionally scope, in as not general its the were search was type of by any descriptions or oral of the documen precise limited written Furthermore, App. Pet. for 102a. the tary sought. evidence Cert. specific exigent circumstances that would demonstrated no Government respondent’s justify searching residences be the increased intrusiveness of Id., a.m., day. at 101a. Fi p.m. during rather than the tween 10 prepare nally, agents who conducted the search did not contem the DEA poraneous receipts of items seized leave to inform the inventories the or Id., at 102a. the the items seized. Because residents the search Clause, the it Appeals that the search violated Warrant Court of found holding that the search was the District Court’s alternative never reviewed Thus, if I agreed even required. if no warrant were unreasonable even case, apply in this that the Warrant did not with Justice Stevens Clause Appeals I the Court of for consideration of whether the would remand to record, I Barring a review of the think was unreasonable. detailed search any the inappropriate to draw conclusion about reasonableness of the it is conduct, particularly when conclusion reached contra the Government’s specific findings of the District dicts the Court. Kennedy rejects application of the Warrant Clause not be- Justice protection, identity seeking but because of cause of the individual (“[T]he ante, opinion) (concurring at 278 the location of the search. See apply not requirement warrant Mexico as Fourth Amendment’s should Kennedy, however, explains why country”). Justice never does this Clause, Clause, opposed the Warrant would not as the Reasonableness apply to abroad. searches States,

the Court in 10, Johnson United 333 U. 13-14 S. (1948)(footnotes unfitted): point

“The Amendment, Fourth which often is by grasped officers, zealous not that it denies law support enforcement of the usual inferences which protection reasonable men draw from evidence. Its requiring consists in that those drawn inferences be a magistrate being judged neutral and detached instead of engaged competitive the officer in the often enter- prise ferreting Any аssumption out crime. that evi- support magistrate’s dence sufficient to a disinterested justify determination to issue a search warrant will making officers a search without a warrant would re- nullity people’s duce the Amendment to a leave police homes secure in the discretion of officers. . . . right privacy yield reasonably When must to the right by judicial rule, is, of search as a to be decided a by policeman government officer, not enforcement agent.” Wisconsin,

See also Welsh v. 466 U. S. 740, 748-749, and (1984); Coolidge Hampshire, n. 10 v. New 443, 403 U. S. (1971). scope A warrant also defines of a search and lim inspecting its the discretion of the Burger, officers. New See York v. (1987); States, 482 U. S. Marron v. United (1927). purposes 275 U. S. These would be served no less than in the domestic context. ignored simply

The Warrant Clause cannot because Congress given any magistrate not has States United author- ity foreign to issue search warrants for See searches. Fed. 41(a). Congress Rule Crim. Proc. cannot define the con- applies, tours of the If the Constitution. Warrant Clause Congress by cannot excise the from Clause the Constitution failing provide agents a means for United States to obtain States, a warrant. Best v. See United 184 F. 2d (CA1 1950)(“Obviously, Congress may nullify guar- not the simple expedient antees of the Fourth Amendment the application any judicial empowering act on an officer to not (1951). warrant”), 340 U. denied, cert. S. for a merely inapplicable because a is Warrant Clause Nor magistrate could not “author- a United States warrant from country. Although may foreign this in a a search ize” law, it is irrelevant our a mаtter of international true as interpretation matter Amendment. As a of the Fourth a warrant serves the same law, constitutional domestically: primary it it does assures overseas as function magistrate and lim- authorized search that a neutral has suspected scope. protect of crim- need to those ited its investigating activity discretion of from the unbridled inal important than at home.14 is no less abroad officers

Ill a enforcement search our Government conducts law When foreign against of the United States and a national outside comply it with the Fourth Amendment. territories, must its exigent obtain a consent, must Absent circumstances already importance recognized the Government has The United States requirement by adopting a warrant requirements of these constitutional Army Department regulations state foreign certain searches. “judicial a United States court Army must seek a warrant” from a Army intercept the wire or oral communications of whenever the seeks to Military Justice outside of the person subject not to the Uniform Code 12-2(b) Army Regulation 190-53 and its territories. United States (1986). supported Any request judicial for a warrant must be sufficient applied interceptions of probable-cause wire to meet the standard facts 2518(3). States, § Army S. C. in the United 18 U. or oral communications 2(b). foreign country intercep If in which the Regulation 190-53 *12— met before other na requirements has certain must be tion will occur communications, judicial intercept an American war can wire or oral tions interception under international law. will alone authorize rant Nevertheless, Army recognized that an from a United States has order By regulations, its the United necessary under law. own court is domestic warrant although an American has conceded that States Government country, procedure warrant an a letter” in a a might be “dead indispensable circumscribing plays vital and role American court of the Federal Government. discretion search warrant from a United States court. When we tell expect people, they may the world that we all wherever be, laws, to abide our we cannot the same breath tell the world that our law enforcement officers need not do the expect respect same. Because we cannot others to our laws respect respectfully until we our I Constitution, dissent. Blackmun, Justice dissenting. accept Appeals’

I cannot the Court of conclusion, echoed portions in some dissent, that the Justice Brennan’s governs every Fourth Amendment action an American of- ficialthat can be characterized as a search or seizure. Amer- agents acting generally purport ican abroad do not to exer- sovereign authority foreign cise over the nationals with whom they relationship come contact. The between these foreign fundamentally is nationals therefore dif- relationship ferent from the between United States officials residing country. and individuals within this agree I am inclined to with howevеr, Brennan, Justice purported awhen national is held accountable for effectively violations of United States criminal laws, he has governed” been treated as one of “the and therefore enti- protections. Although tled to Fourth Amendment the Gov- ‍​‌​​​‌‌‌​​​​‌​​​​​‌​‌‌​​‌‌‌​‌​​​​‌‌‌‌​​​​​​​‌‌​‌‍power ordinarily impli- ernment’s exercise of abroad does not cate the Amendment, Fourth the enforcement of domestic paradigmatic criminal law seems to me to be the exercise of sovereignty compelled obey. any over those who are In respondent event, notes, as Justice ante, at 279, Stevens lawfully (though involuntarily) country was within this at the time the search occurred. Under these circumstances I be- respondent protections lieve that is entitled to invoke agree Fourth I Amendment. with Government, how- magistrate’s power ever, that an American lack of to author- ize a inapplicable search abroad renders the Warrant Clause country. to the search of a noncitizen’sresidence outside this requires The Fourth Amendment nevertheless that the purpose search be “reasonable.” when And of a search is procurement prosecution, of evidence for a criminal we consistently search, reasonable, have held to be upon probable must be based cause. Neither the District Appeals proba- Court nor the addressed the Court issue of ble I that a cause, and do not believe reliable determination could be made I on the basis of record before us. there- judgment Appeals fore would vacate the Court of proceedings. remand case for further

Case Details

Case Name: United States v. Verdugo-Urquidez

Court Name: Supreme Court of the United States

Date Published: Feb 28, 1990

Citation: 494 U.S. 259

Docket Number: 88-1353

Court Abbreviation: SCOTUS