EDNY Discusses Extraterritorial Application of the Fourth Amendment

At the end of last month, the Eastern District of NY decided U.S. v. Loera, denying two motions to suppress by Joaquin Loera, better known as El Chapo. Loera argued that the U.S. Government violated his Fourth Amendment rights when it searched servers containing his information in the Netherlands, as well as evidence contained in spyware accounts on U.S. servers owned by Amazon.

The Court decided that Loera lacked standing, because he refused to acknowledge the seized data was his (a Catch-22 the Court recognized), but went on to state that even if he possessed Fourth Amendment standing, it would have ruled against him regardless. This is where the Court’s discussion of the extraterritorial application of the Constitution appeared.

The Court relied on Verdugo-Urquidez, noting that much like Verdugo-Urquidez himself, Loera is accused of being a high ranking member of a Mexican drug cartel. While the searches at issue in Loera took place in the Netherlands, as opposed to Mexico, the Court held that the search was outside the United States of property owned by a Mexican citizen, which is exactly the situation the Supreme Court faced in Verdugo-Urquidez.

Loera argued that he had sufficient connections to the United States, as demonstrated by the Government’s affidavits, alleging his wide-ranging criminal conspiracy to import drugs to the United States. The Court rejected this argument for two reasons: 1) the Defendant bears the burden of demonstrating a substantial connection to the United States and may not rely on Government affidavits to meet that burden; and 2) this is not the sort of connection that the Supreme Court envisioned when it discussed the community of people covered by the Fourth Amendment. Rather, purely criminal acts do not entitle a defendant to the Fourth Amendment’s protections.

The Court also made other findings as to why, even if the Fourth Amendment applied, the evidence would not need to be suppressed.

This was a straightforward application of Verdugo-Urquidez and as such, is fairly uncontroversial. I also find the Court’s additional rationales for allowing the searches to be convincing and thus I agree the evidence should not be suppressed. However, as noted elsewhere, I have issues with Verdugo-Urquidez itself. But one aspect of this case bears special mention.

It is odd to argue that purely criminal activities do not establish the “substantial connections” required to render the Fourth Amendment applicable to someone like Loera, when the Fourth Amendment is largely concerned with protecting the rights of criminal defendants. Surely, criminals are a part of the American community, otherwise there would be no basis for finding even American citizens within the ambit of “the people” protected by the Fourth Amendment. Furthermore, courts have regularly found that the Fourth Amendment applies to undocumented immigrants who are found within the United States, and yet their very presence is often described as a criminal act.

Given that, it is hard to credit the Court’s rationale on this particular issue.