CA2: Warrant clause does not protect U.S. citizens abroad, only reasonableness

“[W]e have not yet determined the specific question of the applicability of the Fourth Amendment’s Warrant Clause to overseas searches. Faced with that question now, we hold that the Fourth Amendment’s warrant requirement does not govern searches conducted abroad by U.S. agents; such searches of U.S. citizens need only satisfy the Fourth Amendment’s requirement of reasonableness.” Also, national security is a valid reason to limit a defendant’s ability to see evidence in a suppression motion. In re Terrorist Bombings of United States Embassies in East Africa (Fourth Amendment Challenges) (United States v. Odeh), 548 F.3d 276 (2d Cir. November 24, 2008):

The question of whether a warrant is required for overseas searches of U.S. citizens has not been decided by the Supreme Court, by our Court, or, as far as we are able to determine, by any of our sister circuits. While never addressing the question directly, the Supreme Court provided some guidance on the issue in United States v. Verdugo-Urquidez, where the Court examined whether an alien with “no voluntary attachment to the United States” could invoke the protections of the Fourth Amendment to suppress evidence obtained through a warrantless search conducted in Mexico. 494 U.S. 259, 274-75 (1990). Relying on “the text of the Fourth Amendment, its history, and [the Court’s] cases discussing the application of the Constitution to aliens and extraterritorially,” the Supreme Court held that the Fourth Amendment affords no protection to aliens searched by U.S. officials outside of our borders. Id. at 274. With respect to the applicability of the Warrant Clause abroad, the Court expressed doubt that the clause governed any overseas searches conducted by U.S. agents, explaining that warrants issued to conduct overseas searches “would be a dead letter outside the United States.” Id. …

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These observations and the following reasons weigh against imposing a warrant requirement on overseas searches.

First, there is nothing in our history or our precedents suggesting that U.S. officials must first obtain a warrant before conducting an overseas search. El-Hage has pointed to no authority–and we are aware of none–directly supporting the proposition that warrants are necessary for searches conducted abroad by U.S. law enforcement officers or local agents acting in collaboration with them; nor has El-Hage identified any instances in our history where a foreign search was conducted pursuant to an American search warrant. This dearth of authority is not surprising in light of the history of the Fourth Amendment and its Warrant Clause as well as the history of international affairs. As the Verdugo-Urquidez Court explained, “[w]hat we know of the history of the drafting of the Fourth Amendment … suggests that its purpose was to restrict searches and seizures which might be conducted by the United States in domestic matters.” 494 U.S. at 266. In addition, the Warrant Clause appears to have been invested with a meaning at the time of the drafting that differs significantly from our modern view of the requirement. Justice White observed that “at the time of the Bill of Rights, the warrant functioned as a powerful tool of law enforcement rather than as a protection for the rights of criminal suspects,” and “it was the abusive use of the warrant power, rather than any excessive zeal in the discharge of peace officers’ inherent authority, that precipitated the Fourth Amendment.” Payton v. New York, 445 U.S. 573, 604-14, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) (White, J., dissenting) (documenting the history of the Fourth Amendment’s warrant requirement). Accordingly, we agree with the Ninth Circuit’s observation that “foreign searches have neither been historically subject to the warrant procedure, nor could they be as a practical matter.” United States v. Barona, 56 F.3d 1087, 1092 n.1 (9th Cir. 1995).

Second, nothing in the history of the foreign relations of the United States would require that U.S. officials obtain warrants from foreign magistrates before conducting searches overseas or, indeed, to suppose that all other states have search and investigation rules akin to our own. As the Supreme Court explained in Verdugo-Urquidez: …. The American procedure of issuing search warrants on a showing of probable cause simply does not extend throughout the globe and, pursuant to the Supreme Court’s instructions, the Constitution does not condition our government’s investigative powers on the practices of foreign legal regimes “quite different from that which obtains in this country.” Id.

Third, if U.S. judicial officers were to issue search warrants intended to have extraterritorial effect, such warrants would have dubious legal significance, if any, in a foreign nation. Cf. The Schooner Exchange v. M’Faddon, 11 U.S. 116, 135, 3 L. Ed. 287 (1812) (“The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.”). As a District Court in this Circuit recently observed, “it takes little to imagine the diplomatic and legal complications that would arise if American government officials traveled to another sovereign country and attempted to carry out a search of any kind, professing the authority to do so based on an American-issued search warrant.” United States v. Vilar, No. 05-CR-621, 2007 U.S. Dist. LEXIS 26993, 2007 WL 1075041, at *52 (S.D.N.Y. Apr. 4, 2007). We agree with that observation. A warrant issued by a U.S. court would neither empower a U.S. agent to conduct a search nor would it necessarily compel the intended target to comply. It would be a nullity, or in the words of the Supreme Court, “a dead letter.” Verdugo-Urquidez, 494 U.S. at 274.