¹ The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

² See Wolf v. Colorado, 338 U.S. 25, 27–28 (1949) (Frankfurter, J.) (“The security of one’s privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society. It is therefore implicit in ‘the concept of ordered liberty’ and as such enforceable against the States through the Due Process Clause” of the Fourteenth Amendment).

³ See McDonald v. United States, 335 U.S. 451 (1948); Michigan v. Tyler, 436 U.S. 499 (1978).

⁴ See Weeks v. United States, 232 U.S. 383, 391–92 (1914); Mapp v. Ohio, 367 U.S. 643 (1961). In United States v. Leon, 468 U.S. 897 (1984), a good faith exception was added to the exclusionary rule; if a police officer in good faith relies on a search warrant that proves faulty, the evidence seized can still be used.

⁵ In Elkins v. United States, 364 U.S. 206 (1960), prior to the Mapp decision, the Court forbade the “silver platter” doctrine, which formerly allowed federal prosecutors to introduce evidence seized in violation of the Constitution by state agents.

⁶ The Verdugo-Urquidez Court will nonetheless characterize the search events as wholly extra territorial.

⁷ Article 16 of the Constitution of Mexico states: “No one shall be molested in his person, family, domicile, papers, or possessions except by virtue of a written order of the competent authority stating the legal grounds and justification for the action taken… . Every search warrant … can be issued only by judicial authority and … must be in writing.” Flanz & Moreno, Constitution of Mexico, in Constitutions of the Countries of the World (A. Blaustein & G. Flanz eds. 1988) [hereinafter Const.].

⁸ See United States v. Verdugo-Urquidez, 86–0107–JLI–Crim. (S.D. Cal. Feb. 5, 1987), reproduced as App. B to the Government’s Petition for Certiorari in the United States Supreme Court, United States v. Verdugo-Urquidez, No. 88-1353 (LEXIS, Briefs file).

⁹ See Fed. R. Crim. P. 41(a) (“A search warrant authorized by this rule may be issued by a federal magistrate … within the district wherein the property or person sought is located …”).

¹⁰ Other cases have held that the federal courts have “inherent authority” to issue search warrants required by the Fourth Amendment, even where Rule 41 fails to provide for the case. See United States v. Torres, 751 F.2d 875, 878 (7th Cir. 1984) (Posner, J.) (stating that the power to issue a warrant was historically, and still is, an “inherent” or “common law” power. “Indeed, it is an aspect of the court’s power to regulate procedure. A search warrant is often used to obtain evidence for use in a criminal proceeding, and is thus a form of (or at least an analogue to) pretrial discovery”), cert. denied, 470 U.S. 1087 (1985); United States v. Biasucci, 786 F.2d 504, 509 n.6 (2d Cir.), cert. denied, 479 U.S. 827 (1986); United States v. Ianniello, 621 F.Supp. 1455, 1467 (S.D.N.Y. 1985). See also United States v. New York Telephone Co., 434 U.S. 159, 168 n.14 (1977) (acknowledging, without disapproval, that some courts of appeals had derived authority for judicial orders authorizing “pen registers” from an “inherent power closely akin to” Fed. R. Crim. P. 41); Eisentrager v. Forrestal, 174 F.2d 961 (D.C. Cir. 1949) (Congress’s omission to assign statutory jurisdiction to issue writs of habeas corpus cannot restrict federal courts' exercise of the writ), rev’d on other grounds sub nom. Johnson v. Eisentrager, 339 U.S. 763 (1950); Fed. R. Crim. P. 54(b)(2) (“These rules apply to proceedings for offenses committed upon the high seas or elsewhere out of the jurisdiction of any particular state or district…”); id. 57(b) (“If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute”); 18 U.S.C §3238 (1988).

These cases are close cousins to the lingering suggestion of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816), that the Article III jurisdiction of federal courts may be self-executing, even without the legislative assignment of jurisdiction.

¹¹ United States v. Verdugo-Urquidez, 856 F.2d 1214 (9th Cir. 1988).

¹² Id. at 1231 (Wallace, J., dissenting).

¹³ 110 S.Ct. 1056, 1060.

¹⁴ 258 U.S. 298 (1922).

¹⁵ The Due Process Clause of the Fifth Amendment provides, “nor shall any person … be deprived of life, liberty, or property, without due process of law.”

¹⁶ On the other hand, Justice Kennedy noted his view that “differing and perhaps unascertainable conceptions of reasonableness and privacy” may “prevail abroad.” 110 S.Ct. at 1068 (Kennedy, J., concurring).

¹⁷ Brief for the United States, United States v. Verdugo-Urquidez, No. 88-1353, at 30 (citing Rochin v. California, 342 U.S. 165, 172, 173 (1952)). It was, of course, the Due Process Clause of the Fourteenth Amendment that provided the route for protecting core principles of privacy in state cases.

¹⁸ Justice Stevens found the warrant requirement inapplicable because “American magistrates have no power to authorize such searches.” 110 S.Ct. at 1068 (Stevens, J., concurring). Whether or not one agrees with the result, the explanation is thin. There is a difference between a necessary and a sufficient condition. An American magistrate’s approval may be prerequisite in domestic law, even though American agents should additionally seek the permission of appropriate foreign authorities under international and foreign law.

¹⁹ 110 S.Ct. at 1070 (Brennan, J., dissenting).

²⁰ 410 F.Supp. 144 (D.D.C. 1976).

²¹ Berlin Democratic Club may have inspired the Ninth Circuit’s additional step; the Berlin Democratic Club court dismissed the claim of an Austrian citizen who complained of U.S. electronic surveillance, but also concluded that “when a non-resident alien is brought from abroad to appear for and be the subject of a domestic criminal prosecution, there are different expectations of treatment than when a non-resident alien is simply affected by United States officials abroad.” Id. at 152. See also United States v. Toscanino, 500 F.2d 267, 279–80 (2d Cir. 1974).

²² 354 U.S. 1 (1954).

²³ See Johnson v. Eisentrager, 339 U.S. 763 (1950).

²⁴ The Court of Appeals for the District of Columbia Circuit struggled with the middle ground between the world of civilian law and the perceptions of a Hobbesian ausland in Ramirez de Arellano v. Weinberger, 745 F.2d 1500 (D.C. Cir. 1984) (en banc), summarized in 79 AJIL 449 (1985), vacated and remanded in light of subsequent legislation, 471 U.S. 1113 (1985). In Ramirez a cattle ranch in Honduras was occupied by U.S. Army troops as a camp to train Salvadoran soldiers following Congress’s ban on the dispatch of additional American advisers to El Salvador. The land was owned by a U.S. citizen, as sole shareholder of several Puerto Rican corporations and their Honduran corporate subsidiaries. Six judges of the District of Columbia Circuit found there was a justiciable cause of action under the Fifth Amendment for injunctive or declaratory relief; the Fifth Amendment rule against government appropriations of property without just compensation applied to property abroad. The four dissenting judges argued that the federal courts should not interpose themselves in overseas military exercises, and that the case for injunctive relief was variously barred as a nonjusticiable political question, by principles of equitable discretion, or by a Honduran act of state, with the remaining possibility of a damages recovery under the Tucker Act in the Court of Claims.

²⁵ United States v. Noriega, 88–0079–CR (S.D. Fla. filed Feb. 4, 1988) (trial pending).

²⁶ See 3 Elliot’s Debates 583 (1836) (speech of James Madison); 3 id. at 575 (speech of Edmund Randolph); Friendly, The Historic Basis of the Diversity Jurisdiction, 41 Harv. L. Rev. 483, 495–98 (1928).

²⁷ Judiciary Act of 1789, §9, 1 Stat. 77, codified at 28 U.S.C. §1350 (1982).

²⁸ See The Chinese Exclusion Cases, 130 U.S. 581 (1889); Fong Yue Ting v. United States, 149 U.S. 698(1893).

²⁹ In a noncriminal context, the Fourth Amendment may apply differently to aliens and to citizens, because of the Government’s interests in protecting national security. Cf. Foreign Intelligence Surveillance Act, 50 U.S.C. §1801 (1982) (different standards for electronic surveillance of foreign nationals and U.S. citizens). But in Verdugo-Urquidez, the purpose of the search was to gather evidence for criminal prosecution.

³⁰ Since the plurality so efficiently excluded nonresident aliens from the “people” protected by the Fourth Amendment for extraterritorial searches, it is not clear how they could manipulate constitutional text to allow these noncitizens any Fourth Amendment rights for searches and seizures conducted within the United States.

³¹ In Verdugo-Urquidez, the Court awkwardly disowns its recent opinion in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), where, as the Chief Justice put it, “a majority of Justices assumed that the Fourth Amendment applied to illegal aliens in the United States.” 110 S.Ct. at 1064. The statements in Lopez-Mendoza should not be considered “dispositive of how the Court would rule on a Fourth Amendment claim by illegal aliens in the United States if such a claim were squarely before us,” instructs the Chief Justice of a changed Verdugo-Urquidez Court. Id. at 1065. Lopez-Mendoza held that the exclusionary rule would not be applied to civil deportation proceedings, but stated: “We do not condone any violations of the Fourth Amendment that may have occurred in the arrest of [illegal aliens] Lopez or Sandoval…. Our conclusions concerning the exclusionary rule’s value [in deportation proceedings] might change if there developed good reason to believe that the Fourth Amendment violations by INS officers were widespread.” 468 U.S. at 1050.

³² On the basis of the practice of many drug dealers in maintaining records of their transactions, there was likely probable cause for the searches. The seizure of some files without examination in the early morning hours and the failure to leave an inventory might disqualify under the rules of domestic searches, but the U.S. agents did not control the decision to conclude the search abruptly. Mexican law seems to require a warrant for physical searches. See Const. Art. 16, supra note 7. But the search was conducted on a weekend, when Mexican judicial assistance might not have been available, and a prompt search was likely essential to prevent Verdugo-Urquídez’s associates from destroying evidence once word of his arrest filtered back. As the trial judge complained, the DEA agents were imprudent in failing to seek any advice from the United States Attorney, the Department of Justice or DEA headquarters on the search, including advice on whether Mexican law dispenses with warrants in “exigent circumstances”; but absent unusual facts, the U.S. agents might in good faith have relied on the legal determination of the Mexican police officials.

³³ See Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc. A/810, at 71 (1948), Art. 12 (“No one shall be subject to arbitrary interference with his privacy,… home or correspondence …. Everyone has the right to the protection of the law against such interference or attacks”).

³⁴ 110 S.Ct. at 1068 (Kennedy, J., concurring).