The Fourth Amendment Abroad: U.S. Citizens

The majority opinion in Verdugo-Urquidez left two huge questions unanswered.  First, what constitutes "substantial connections" that would satisfy the majority's test?  They never say.  And second, assuming you have "substantial connections," what does that mean for the Fourth Amendment's application?  The majority did not rely on any of the practical problems identified by Justice Kennedy in its holding - it merely held Verdugo-Urquidez lacked any connections that would justify Fourth Amendment protections.

This blog post looks at the second question.  Regardless of what connections the majority would deem to be "substantial" it is unquestionable that citizenship would qualify.  After all, if a U.S. citizen is not among "the people" protected by the Fourth Amendment, who is?

But what does Fourth Amendment protection abroad look like for U.S. citizens?  The Supreme Court has never had occasion to say.  But numerous Courts of Appeals have addressed this question, and they have created a three-tier structure for examining the question.

The three tiers are as follows: 1) foreign searches by foreign agents; 2) joint ventures; and 3) foreign searches by U.S. agents.

The Fifth Circuit first addressed the question of foreign searches by foreign agents in Birdsell v. United States, 346 F.2d 775 (5th Cir. 1965).  The Court held that the Fourth Amendment has no sway over a search conducted by foreign agents in a foreign country, even if American police gave information leading to the search.  The Ninth Circuit followed suit two years later in Brulay v. United States, 383 F.2d 345 (9th Cir. 1967).  They held that the prophylactic effect of the exclusionary rule would have no effect on Mexican officials who are not bound by the Fourth Amendment.

The Ninth Circuit recognized two exceptions to this general rule in United States v. Rose, 570 F.2d 1358 (9th Cir. 1978).  First, if the circumstances of the foreign search and seizure are so extreme that they "shock the conscience," an appellate court will exercise its supervisory power and exclude the evidence.  Second, if US agents participated in the search or if the foreign agents were acting as agents for their American counterparts, the exclusionary rule can be invoked.  See also United States v. Maturo, 982 F.2d 57 (2nd Cir. 1992); and United States v. Barona, 56 F.3d 1087 (9th Cir. 1995).

This leads to the joint venture analysis.  Under this test, if the US agents substantially participated so as to convert searches into joint ventures between the United States and foreign officials, then the Fourth Amendment would apply.  See Stonehill v. United States, 405 F.2d 738 (9th Cir. 1968); United States v. Peterson, 812 F.2d 486 (9th Cir. 1986); United States v. Stokes, 726 F.3d 880 (7th Cir. 2013)(holding that the Warrant Clause does not extend overseas, but the Fourth Amendment's reasonableness requirement does due to the joint nature of the investigation).

Since at least 1950, courts have held that searches by U.S. agents of U.S. citizens abroad are covered by the Fourth Amendment.  See e.g. Best v. United States, 184 F.2d 131 (1st Cir. 1950).  Best was an American citizen who lived in Vienna, Austria and participated in pro-Nazi propaganda efforts during the war.  Following the fall of Germany, U.S. occupying forces raided his Vienna apartment searching for evidence to support an indictment for treason which had been issued against him.  The Court held that he was protected by the Fourth Amendment, despite the fact he was abroad and the search was conducted by U.S. military forces.  However, the Court concluded the search was reasonable.  Id. at 140.

The D.C. Circuit followed suit in 1966 in Powell v. Zuckert, 366 F.2d 634 (D.C. Cir. 1964).  Appellant was a civilian employee with the U.S. Air Force in Japan.  He was terminated for violations of various regulations.  He resided with his family in off-base housing, which was searched by Air Force agents after they obtained a Japanese warrant.  It was undisputed the warrant was general in nature, and the Government did not contest that the general warrant relied upon violated the Fourth Amendment.  Id. at 640.  As a result, the Court excluded the use of the evidence and overturned his removal.

More recently, the Second Circuit agreed that the Warrant Clause did not apply outside the United States, but the Fourth Amendment's requirement of reasonableness did.  See In re Terrorist Bombings of U.S. Embassies in East Africa (Fourth Amendment Challenges), 552 F.3d 157 (2nd Cir. 2008).  In that case, a U.S. citizen suspected of participating in the bombing of several U.S. embassies challenged the search of his residence in Nairobi, Kenya and electronic surveillance of telephone conversations, both land-based and cellular, in Kenya.  The Court held that the searches were governed by the Fourth Amendment's reasonableness requirement and that they met that test.  Therefore, the evidence need not be suppressed and the convictions were affirmed.  See also Saylor v. United States, 374 F.2d 894 (Ct. Cl. 1967); United States v. Conroy, 589 F.2d 1258 (5th Cir. 1979); and United States v. Demanett, 629 F.2d 862 (3rd Cir. 1980).

Based on this line of cases, it appears that the application of the Fourth Amendment to U.S. citizens abroad is far less controversial than the application of the same protections to aliens with no ties to the United States.  Indeed, in many of the cases cited, the Government did not even contend that the Amendment did not apply.  At most, they challenged the application of the Warrant Clause, while conceding the applicability of the Amendment's requirement for reasonableness.

The long line of cases that predated Verdugo-Urquidez may explain why none of the opinions felt it was necessary to address the rights of U.S. citizens abroad.  Given this line of cases, it seems safe to assume that an alien who can demonstrate "substantial connections" to the United States, however defined, would also be able to claim the protections of the Fourth Amendment, so long as the United States substantially participates in the search, or conducts it on its own.