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[Cite as United States v. Verdugo-Urquidez, 494
U.S. 259 (1990). Note: This decision regards Fourth Amendment protections
to non-citizens outside this country. The Court mentions the right to arms at
page 265 which is in a
seperate file. The dissenting opinion touches on this on pages 287 ("'The people' are
'the governed.'") and 288 ("Americans
vehemently attacked the notion that rights were matters of '"favor and grace,"'
given to the people from the Government.") Listing the Second
Amendment among individual rights is similar to Robertson v.
Baldwin, 165 U.S. 275, 281-282 (1897) a
UNITED STATES v. VERDUGO-URQUIDEZ
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 88-1353. Argued November 7, 1989--Decided
February 28, 1990
After the Government obtained an arrest warrant for
respondent--a Mexican citizen and resident believed to be a leader of an
organization that smuggles narcotics into this country--he was apprehended by
Mexican police and transported here, where he was arrested. Following his
arrest, Drug Enforcement Administration (DEA) agents, working with Mexican
officials, searched his Mexican residences and seized certain documents. The
District Court granted his motion to suppress the evidence, concluding that the
Fourth Amendment--which protects "the people" against unreasonable searches and
seizures--applied to the searches, and that the DEA agents had failed to justify
searching the premises without a warrant. The Court of Appeals affirmed. Citing
Reid v. Covert, 354 U.S. 1--which held that American
citizens tried abroad by United States military officials were entitled to Fifth
and Sixth Amendment protections--the court concluded that the Constitution
imposes substantive constraints on the Federal Government, even when it operates
abroad. Relying on INS v. Lopez-Mendoza, 468 U.S.
1032--where a majority assumed that illegal aliens in the United States
have Fourth Amendment rights--the court observed that it would be odd to
acknowledge that respondent was entitled to trial-related rights guaranteed by
the Fifth and Sixth Amendments, but not to Fourth Amendment protection.
Held: The Fourth Amendment does not apply to the
search and seizure by United States agents of property owned by a nonresident
alien and located in a foreign country. Pp. 264-275.
(a) If there were a constitutional violation in this
case, it occurred solely in Mexico, since a Fourth Amendment violation is fully
accomplished at the time of an unreasonable governmental intrusion whether or
not the evidence seized is sought for use in a criminal trial. Thus, the Fourth
Amendment functions differently from the Fifth Amendment, whose privilege
against self-incrimination is a fundamental trial right of criminal defendants.
(b) The Fourth Amendment phrase "the people" seems
to be a term of art used in select parts of the Constitution and contrasts with
the words "person" and "accused" used in Articles of the Fifth and Sixth
Amendments regulating criminal procedures. This suggests that "the people"
(p.260)refers to a class of persons who are
part of a national community or who have otherwise developed sufficient
connection with this country to be considered part of that community. Pp. 264-266.
(c) The Fourth Amendment's drafting history shows
that its purpose was to protect the people of the United States against
arbitrary action by their own Government and not to restrain the Federal
Government's actions against aliens outside United States territory. Nor is
there any indication that the Amendment was understood by the Framers'
contemporaries to apply to United States activities directed against aliens in
foreign territory or in international waters. Pp. 266-268.
(d) The view that every constitutional provision
applies wherever the Government exercises its power is contrary to this Court's
decisions in the Insular Cases, which held that not all constitutional
provisions apply to governmental activity even in territories where the United
States has sovereign power. See, e.g., Balzac v. Porto
Rico, 258 U.S. 298. Indeed, the claim that extraterritorial aliens
are entitled to rights under the Fifth Amendment--which speaks in the relatively
universal term of "person"--has been emphatically rejected. Johnson v. Eisentrager, 339 U.S. 763, 784. Pp. 268-269.
(e) Respondent's reliance on Reid,
supra, is misplaced, since that case stands only for the proposition that
United States citizens stationed abroad could invoke the protection of the Fifth
and Sixth Amendments. Similarly, those cases in which aliens have been
determined to enjoy certain constitutional rights establish only that aliens
receive such protections when they have come within the territory of, and have
developed substantial connections with, this country. See, e.g.,
Plyler v. Doe, 457 U.S. 202, 212. Respondent,
however, is an alien with no previous significant voluntary connection with the
United States, and his legal but involuntary presence here does not indicate any
substantial connection with this country. The Court of Appeals' reliance on
INS v. Lopez-Mendoza, supra, is also misplaced, since that case
assumed that, but did not expressly address the question whether, the Fourth
Amendment applies to illegal aliens in the United States. Even assuming such
aliens--who are in this country voluntarily and presumably have accepted some
societal obligations--would be entitled to Fourth Amendment protections, their
situation differs from that of respondent, who had no voluntary connection with
this country, that might place him among "the people." This Court's decisions
expressly according differing protection to aliens than to citizens also
undermine respondent's claim that treating aliens differently under the Fourth
Amendment violates the equal protection component of the Fifth Amendment. Pp. 269-273.
(f) The Court of Appeals' rule would have
significant and deleterious consequences for the United States in conducting
activities beyond its (p.261)borders. The rule
would apply not only to law enforcement operations abroad, but also to other
foreign operations--such as Armed Forces actions--which might result in
"searches and seizures." Under the rule, aliens with no attachment to this
country might bring actions for damages to remedy claimed violations of the
Fourth Amendment in foreign countries or in international waters, and Members of
the Executive and Legislative Branches would be plunged into a sea of
uncertainty as to what might be reasonable in the way of searches and seizures
conducted abroad. Any restrictions on searches and seizures incident to American
action abroad must be imposed by the political branches through diplomatic
understanding, treaty, or legislation. Pp. 273-275.
856 F. 2d 1214, reversed.
Rehnquist, C. J., delivered
the opinion of the Court, in which White, O'Connor, Scalia, and
Kennedy, JJ., joined. Kennedy, J., filed a
concurring opinion, post, p. 275. Stevens, J., filed an opinion concurring in the judgment,
post, p. 279. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 279. Blackmun, J., filed a dissenting opinion, post, p. 297.
Lawrence S. Robbins argued the cause for the
United States. With him on the briefs were Solicitor General Starr,
Assistant Attorney General Dennis, and Deputy Solicitor General
Michael Pancer argued the cause for respondent. With him on
the brief were Charles L. Goldberg and Patrick Q. Hall.[261.*]
Chief Justice Rehnquist
delivered the opinion of the Court.
The question presented by this case is whether the Fourth Amendment
applies to the search and seizure by United States agents of property that is
owned by a nonresident alien and located in a foreign country. We hold that it
Respondent Rene Martin Verdugo-Urquidez is a citizen and resident of
Mexico. He is believed by the United States Drug Enforcement Agency (DEA) to be
one of the leaders of a large and violent organization in Mexico that smuggles
narcotics into the United States. Based on a complaint charging respondent with
various narcotics-related offenses, the Government obtained a warrant for his
arrest on August 3, 1985. In January 1986, Mexican police officers, after
discussions with United States marshals, apprehended Verdugo-Urquidez in Mexico
and transported him to the United States Border Patrol station in Calexico,
California. There, United States marshals arrested respondent and eventually
moved him to a correctional center in San Diego, California, where he remains
incarcerated pending trial.
Following respondent's arrest, Terry Bowen, a DEA agent assigned to
the Calexico DEA office, decided to arrange for searches of Verdugo-Urquidez's
Mexican residences located in Mexicali and San Felipe. Bowen believed that the
searches would reveal evidence related to respondent's alleged narcotics
trafficking activities and his involvement in the kidnaping and torture-murder
of DEA Special Agent Enrique Camarena Salazar (for which respondent subsequently
has been convicted in a separate prosecution. See United States
v. Verdugo-Urquidez, No. CR-87-422-ER (CD Cal., Nov. 22, 1988)).
Bowen telephoned Walter White, the Assistant Special Agent in charge of the DEA
office in Mexico City, and asked him to seek authorization for the search from
the Director General of the Mexican Federal Judicial Police (MFJP). After
several attempts to reach high ranking Mexican officials, White eventually
contacted the Director General, who authorized the searches and promised the
cooperation of Mexican authorities. Thereafter, DEA agents working in concert
with officers of the MFJP searched respondent's properties in Mexicali and San
Felipe and seized certain documents. In particular, the search of the Mexicali
residence uncovered a tally sheet, which the Government (p.263)believes reflects the quantities of marijuana smuggled
by Verdugo-Urquidez into the United States.
The District Court granted respondent's motion to suppress evidence
seized during the searches, concluding that the Fourth Amendment applied to the
searches and that the DEA agents had failed to justify searching respondent's
premises without a warrant. A divided panel of the Court of Appeals for the
Ninth Circuit affirmed. 856 F. 2d 1214 (1988). It cited
this Court's decision in Reid v. Covert, 354 U.S. 1
(1957), which held that American citizens tried by United States military
authorities in a foreign country were entitled to the protections of the Fifth
and Sixth Amendments, and concluded that "[t]he Constitution imposes substantive
constraints on the federal government, even when it operates abroad." 856 F. 2d, at 1218. Relying on our decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), where a
majority of Justices assumed that illegal aliens in the United States have
Fourth Amendment rights, the Ninth Circuit majority found it "difficult to
conclude that Verdugo-Urquidez lacks these same protections." 856
F. 2d, at 1223. It also observed that persons in respondent's position
enjoy certain trial-related rights, and reasoned that "[i]t would be odd indeed
to acknowledge that Verdugo-Urquidez is entitled to due process under the fifth
amendment, and to a fair trial under the sixth amendment.... and deny him the
protection from unreasonable searches and seizures afforded under the fourth
amendment." Id., at 1224. Having concluded that the
Fourth Amendment applied to the searches of respondent's properties, the court
went on to decide that the searches violated the Constitution because the DEA
agents failed to procure a search warrant. Although recognizing that "an
American search warrant would be of no legal validity in Mexico," the majority
deemed it sufficient that a warrant would have "substantial constitutional value
in this country," because it would reflect a magistrate's determination (p.264)that there existed probable cause to search and
would define the scope of the search. Id., at
The dissenting judge argued that this Court's statement in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318
(1936), that "[n]either the Constitution nor the laws passed in pursuance
of it have any force in foreign territory unless in respect of our own
citizens," foreclosed any claim by respondent to Fourth Amendment rights. More
broadly, he viewed the Constitution as a "compact" among the people of the
United States, and the protections of the Fourth Amendment were expressly
limited to "the people." We granted certiorari, 490 U.S. 1019
Before analyzing the scope of the Fourth Amendment, we think it
significant to note that it operates in a different manner than the Fifth
Amendment, which is not at issue in this case. The privilege against
self-incrimination guaranteed by the Fifth Amendment is a fundamental trial
right of criminal defendants. See Malloy v. Hogan, 378 U.S.
1 (1964). Although conduct by law enforcement officials prior to trial
may ultimately impair that right, a constitutional violation occurs only at
trial. Kastigar v. United States, 406 U.S. 441, 453
(1972). The Fourth Amendment functions differently. It prohibits
"unreasonable searches and seizures" whether or not the evidence is sought to be
used in a criminal trial, and a violation of the Amendment is "fully
accomplished" at the time of an unreasonable governmental intrusion. United States v. Calandra, 414 U.S. 338, 354 (1974); United States v. Leon, 468 U.S. 897, 906 (1984). For
purposes of this case, therefore, if there were a constitutional violation, it
occurred solely in Mexico. Whether evidence obtained from respondent's Mexican
residences should be excluded at trial in the United States is a remedial
question separate from the existence vel non of the constitutional
violation. Calandra, supra, at 354; Leon, supra, at 906.
The Fourth Amendment provides:
[Currently at pages 259-264.
Proceed to pages 265-266.
Proceed to pages
[261.*] Kent S. Scheidegger filed a brief for the
Criminal Justice Legal Foundation as amicus curiae urging reversal.
John A. Powell, Paul L. Hoffman, and David D.
Cole filed a brief for the American Civil Liberties Union et al. as amici
curiae urging affirmance.