As promised in my inaugural post, here is the first of the in-depth examinations of the cases only briefly mentioned there. I have decided to start with United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), for two reasons: first, it will likely play a large role in any commentary on recently decided cases that I review; and second, it is the starting point for many of the theoretical questions I intend to pose and discuss. As such, having a familiarity with the case will be useful to readers.
The holding in Verdugo-Urquidez was 6-3, but the Court split 4-1-1-3 in the rationale, with both Justice Kennedy and Justice Stevens concurring for different reasons. [EDIT: Justice Kennedy did formally join the majority - as noted below, however, his concurrence rejects much of Rehnquist's rationale]. As I noted in my earlier post, there is some dispute over whether the Chief Justice’s opinion is a majority or a plurality, with both lower courts and scholars split on the issue. (For the record, the reporter refers to Rehnquist’s opinion as the opinion of the Court). On the one hand, Justice Kennedy stated in his concurrence that his views did not differ materially from the Chief’s opinion. On the other, the rationale relied upon by Kennedy is starkly different. Regardless, aspects of both opinions have been cited and relied upon by lower courts.
Factual background: Rene Martin Verdugo-Urquidez was a citizen and resident of Mexico. The U.S. Drug Enforcement Agency believed he was one of the leaders of a cartel which smuggled drugs into the United States. They obtained a warrant for his arrest in August, 1985. In January 1986, Mexican police officers apprehended Verduo-Urquidez and transported him to Calexico, California, where he was turned over to U.S. marshals and then imprisoned in San Diego, awaiting trial.
Following his arrest, DEA agents arranged for searches of Verdugo-Urquidez’s residences in Mexicali and San Felipe, both in Mexico. DEA contacted the Director General of the Mexican Federal Judicial Police, who authorized the searches and promised cooperation. As a result, DEA and MFJP agents searched Verdugo-Urquidez’s property and seized certain documents, which seemed to prove Verdugo-Urquidez was smuggling marijuana into the United States. Verdugo-Urquidez moved to suppress the evidence on the grounds that the DEA had failed to secure a warrant. The District Court granted the motion and a divided panel of the Ninth Circuit affirmed. Although the panel recognized that an American warrant would have no legal validity in Mexico, the majority deemed it sufficient that a warrant would have “substantial constitutional value in this country.” 494 U.S. at 263.
Rehnquist’s opinion: After reciting the above facts, the Chief’s opinion begins by contrasting the Fourth Amendment with the Fifth Amendment. He pointed to two major distinctions: first, he argued, the Fifth Amendment is a fundamental trial right, and while conduct by government agents prior to trial may ultimately impair it, the constitutional violation occurs only at trial, when the coerced testimony is admitted. The Fourth Amendment, on the other hand, prohibits unreasonable searches and seizures, whether or not the evidence seized is ever introduced at trial. Thus, in his words, a violation of the Fourth Amendment is “fully accomplished” at the time the search and/or seizure takes place. Id. at 264. Thus, if there were a Constitutional violation, it occurred solely in Mexico.
Second, Rehnquist looked to the textual differences between the Fourth Amendment, on the one hand, and the Fifth and Sixth Amendment, on the other. He noted that the text of the Fourth Amendment applies to “the people” as opposed to “person” in the Fifth Amendment, or “the accused” in the Sixth Amendment. He stated that the term “’the people’ seems to have been a term of art employed in select parts of the Constitution.” Id. at 265. While acknowledging this was not conclusive, he believed it suggested that the people protected by the Fourth Amendment (and the First, Second, Ninth and Tenth Amendments), referred 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.” Id.
He then turned to the history of the Fourth Amendment and found no evidence the Amendment was understood to protect aliens in foreign territory or international waters. He then noted that the Insular Cases only extended fundamental rights to U.S. territories, so extending a non-fundamental right to completely foreign territory is clearly not supported. Finally, he argued that the Court held the Fifth Amendment’s protection did not apply to aliens in Johnson v. Eisentrager, and if the Fifth Amendment, which applies to “persons” did not reach beyond U.S. borders, a right limited to “the people” clearly did not. He quoted Eisentrager’s holding that “the alien…has been accorded a generous and ascending scale of rights as he increased his identity with our society” to bolster his textual claim. Id. at 270.
He then addressed an argument by Verdugo-Urquidez, which pointed to a line of cases finding rights for even illegal aliens found within the United States, as well as legally admitted aliens. Rehnquist dismissed this argument stating “These cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with the country.” Id. at 271. Without a doubt, this is the most lasting contribution of Rehnquist’s opinion to the subsequent debate about the extraterritorial application of the Constitution. While he never lays out markers as to what sorts of connections are “substantial” he made it clear that involuntary presence, for the sole purpose of criminal prosecution, does not meet the test.
He closes with a policy argument, that if Verdugo-Urquidez were to prevail, “aliens with no attachment to the country might well bring actions for damages to remedy claimed violations of the Fourth Amendment in foreign countries or in international waters.” Id. at 274.
Justice Kennedy’s concurrence: Justice Kennedy agreed that there was no violation of the Fourth Amendment. He recognized a distinction between citizens and aliens which “follows from the undoubted proposition that the Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of noncitizens who are beyond our territory.” Id. at 275. However, he rejected Rehnquist’s arguments that the textual reference to “the people” were of any constitutional significance in this case.
Instead, he approvingly cited the plurality opinion in Reid v. Covert for the proposition that “the Government may only act as the Constitution authorizes, whether the actions are foreign or domestic.” Id. at 277. For him, the question then became “what standards apply when the Government acts, in reference to an alien, within its sphere of foreign operations.” Id. He found the answer in the “impracticable and anomalous” test laid out in Justice Harlan’s concurrence in Reid. He believed it would be impracticable and anomalous to require U.S. agents to obtain a warrant when searching the foreign home of a nonresident alien.
Specifically, he found practical problems with enforcing the warrant requirement. He cited the absence of local judges or magistrates to issue the warrants, the “differing and perhaps unascertainable conceptions of reasonableness and privacy that prevail abroad,” and a need to cooperate with foreign officials all counseled against applying the warrant requirement in Mexico. Id. at 278.
He concluded by disclaiming, however, that Verdugo-Urquidez lacked all constitutional protections. He believed that all would agree that the Due Process Clause of the Fifth Amendment would still provide some protections to the defendant. Interestingly, this assumed agreement has not always played out in the lower courts.
Justice Stevens’s concurrence: Justice Stevens believed that all aliens who were lawfully present in the United States are among “the people” protected by the Fourth Amendment, and that while his presence may have been involuntary, Verdugo-Urquidez was in the United States legally. However, he also agreed that the Warrant Clause of the Fourth Amendment had no application to searches of noncitizens’ homes in foreign countries because there were no American magistrates who had power to authorize such searches. Thus, in his view, the appropriate question was whether the search of Verdugo-Urquidez’s residences were reasonable. Here, because the searches were conducted with the approval and cooperation of Mexican authorities, they met this test.
Justice Brennan’s dissent: Justice Brennan, joined by Justice Marshall, rejected the arguments of the plurality and concurrences, arguing that the Constitution is both the source of Congress’ authority to criminalize conduct abroad and the Executive’s authority to investigate and prosecute such crime, but also proscribes limits on those powers, whether exercised at home or abroad. In a famous line, Justice Brennan argued that the Fourth Amendment is “an unavoidable correlative of the Government’s power to enforce the criminal law.” Id. at 282.
He rejects the plurality’s “substantial connections” test as undefined and self-contradictory, based on the various moving requirements identified. In a footnote, he also points out that according to the majority’s logic, the Fourth Amendment would apply to an alien with sufficient connections to the United States, or to U.S. citizens living abroad. He believed a “warrantless, unreasonable search was no less a violation of the Fourth Amendment because it occurs in Mexicali, Mexico, rather than Calexico, California.” Id. at 283, n.7.
Even applying the plurality’s test, Justice Brennan believes it is met here through the Government’s actions. In seeking to prosecute Verdugo-Urquidez, the Government has made him one of the governed. Therefore, fundamental fairness requires that if he is required to respect our criminal laws, we are required to respect his rights, including the right to be free from unreasonable searches and seizures.
He argued that the term “the people” has no special significance other than in contrast to “the Government.” The Bill of Rights was designed not to create rights, but to prohibit the Government from infringing rights and liberties presumed to be pre-existing. He noted that the focus of the Fourth Amendment is on what the Government may and may not do, not on against whom such actions may be taken.
He believed that the Warrant Clause has applicability abroad and that it may not be ignored simply because Congress has failed to give any magistrate judges the authority to issue foreign warrants. To hold otherwise would allow Congress to define the meaning of the Constitution, by simply failing to act in ways required by the document. Thus, it has the same function overseas as at home: assuring a neutral magistrate has authorized the search and limited its scope.
Justice Blackmun’s dissent: Justice Blackmun issued a short dissent of his own. He parted ways with Justice Brennan, in that he did not believe that the Fourth Amendment governed every action by an American official that could be characterized as a search and seizure, because American agents acting abroad “do not purport to exercise sovereign authority over the foreign nationals with whom they come in contact.” Id. at 297. However, when the foreign national is being subjected to an exercise of American sovereign power, through criminal prosecution, he is being treated as one of “the governed” and the Fourth Amendment would apply. Like Justice Stevens, he believed the Warrant Clause was inapplicable, but that the search must be reasonable. In order to be reasonable, it has to be based upon probable cause. In this case, he felt that question had not been adequately addressed and so he would have vacated and remanded for further proceedings.
Conclusion: Thanks for reading this far, if you’ve made it. This case leaves several open questions, many of which were addressed in Justice Brennan’s dissent, and which will be the subject of further blog posts. For now, this (lengthy) summary provides a backdrop for further discussions of issues that have followed in the nearly three decades since Verdugo-Urquidez was decided.