US v.
Verdugo-Urquidez Amendments, but not to Fourth Amendment
Topic: Warrantless Arrest; Rule 126 Sec 13
Section 13. Search incident to lawful arrest. —
A person lawfully arrested may be searched for
dangerous weapons or anything which may
have been used or constitute proof in the
commission of an offense without a search
warrant.
Facts
After the Government obtained an arrest warrant
for respondent Rene Martin Verdugo Urquidez --
a Mexican citizen and resident believed to be a
leader of an organization that smuggles
narcotics into the US -- he was apprehended by
Mexican police and transported to the US,
where he was arrested.
Following his arrest, Drug Enforcement
Administration agents, working with Mexican
officials, searched his Mexican residences and
seized certain documents. Terry Bowen, a DEA
agent, believed that the searches would reveal
evidence related to respondent’s alleged
narcotics trafficking activities and his
involvement in the kidnapping and torture-
murder of DEA Special Agent Salazar (separate
prosecution).
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, 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, 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
protection.
Issue: Does the Fourth Amendment right apply
in this case No.
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.
(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"
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.
(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.
(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. Indeed, the claim
that extraterritorial aliens are entitled to rights
under the Fifth Amendment -- which speaks in plunged into a sea of uncertainty as to what
the relatively universal term of "person" -- has might be reasonable in the way of searches and
been emphatically rejected. seizures conducted abroad. Any restrictions on
searches and seizures incident to American
(e) Respondent's reliance on Reid, supra, is action abroad must be imposed by the political
misplaced, since that case stands only for the branches through diplomatic understanding,
proposition that United States citizens stationed treaty, or legislation.
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.

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.

(f) The Court of Appeals' rule would have

significant and deleterious consequences for the
United States in conducting activities beyond its
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