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.Read More