The Fourth Amendment does not apply to court orders to obtain emails of a non-U.S. person created and sent from outside the country but stored in the U.S. Even if it did, the orders complied with the Fourth Amendment. United States v. Alahmedalabdaloklah, 2017 U.S. Dist. LEXIS 102740 (D. Ariz. July 3, 2017):
Defendant seeks suppression of email evidence obtained pursuant to the § 2703(d) Orders and Warrants as a remedy for violation of the Fourth Amendment. The parties have not cited, and the Court has not found, authority deciding whether the Fourth Amendment protects a nonresident alien, who has had no previous significant voluntary connection with the United States, from an unreasonable search and seizure of property located in the United States. Relevant binding authority, however, indicates that it does not.
In United States v. Verdugo-Urquidez, the Supreme Court held that the Fourth Amendment does not apply to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. 494 U.S. 259, 261, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990). The case involved the search of the Mexican residences of a citizen and resident of Mexico who had no previous significant voluntary connection with the United States. The Court explained that, unlike amendments that protect a “person” or an “accused,” the Fourth Amendment protects only “the people,” a term of art used in select parts of the Constitution and related to the Preamble’s use of “the People of the United States.” Id. at 265. It is a term of art that “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.” Id. Reviewing the history of the drafting of the Fourth Amendment, the Court concluded “its purpose was to restrict searches and seizures which might be conducted by the United States in domestic matters.” Id. at 266. The Court summarized its review:
The available historical data show, therefore, that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government; it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory.
Id. Therefore, although aliens receive certain constitutional protections when they have come within the territory of the United States and developed substantial connections with the United States, they may be denied protection outside the sovereign territory of the United States. Id. at 269-71. However, the issue presented in Verdugo-Urquidez involved only a search and seizure conducted outside the United States.
In United States v. Barona, the Ninth Circuit summarized Verdugo-Urquidez as holding the Fourth Amendment is inapplicable to “foreign searches involving aliens with ‘no voluntary connection’ to the United States.” 56 F.3d 1087, 1093 (9th Cir. 1995). At issue was whether wiretap evidence obtained in Denmark and Italy should have been suppressed. The Ninth Circuit declined to reach the question of whether the resident alien defendants had undertaken sufficient obligations of citizenship or had otherwise developed sufficient connection with the United States to be considered one of “the People of the United States” entitled to receive Fourth Amendment protection in the context of an extraterritorial search. Id. at 1094.
In United States v. Zakharov, after the United States Coast Guard seized a foreign fishing vessel smuggling cocaine in international waters and took its crew members into custody, one of the crew members confessed in San Diego, California, during an interview with an agent of the United States Drug Enforcement Administration. 468 F.3d 1171 (9th Cir. 2006). The crew member argued that failure to obtain a probable cause determination before he was physically present in the United States constituted undue delay under the Fourth Amendment and justified suppressing his confession made in the United States. The Ninth Circuit stated, “[T]he district court properly determined that Zakharov’s confession should not be suppressed because the Fourth Amendment does not apply to non-resident aliens outside of the United States.” Id. at 1174. Relying on Verdugo-Urquidez and Barona, the Ninth Circuit noted that the Fourth Amendment does not apply to searches and seizures by the United States against a non-resident alien in a foreign country, the alleged unconstitutional delay occurred outside of the United States in international waters, and there was no suggestion that the defendant had any substantial connection to the United States. Id. at 1179. The opinion did not address the fact that the evidence to be suppressed was obtained in the United States.
In United States v. Mohamud, the Ninth Circuit decided multiple issues involving the government’s use of evidence against a United States resident that was incidentally obtained from electronic surveillance targeting a foreign national pursuant to the Foreign Intelligence Surveillance Act. 843 F.3d 420 (9th Cir. 2016). The searches took place in the United States, but no evidence showed the targeted foreign national had sufficient voluntary connection with the United States for the Fourth Amendment to apply. Id. at 439 & n. 22. The Ninth Circuit concluded the search did not require a warrant because it was not directed at a United States person’s communications and because “the search was targeted at a non-U.S. person with no Fourth Amendment right.” Id. at 439. The Ninth Circuit explained that “what matters here is the location of the target, and not where the government literally obtained the electronic data.” Id. (internal quotation marks and citation omitted). The Ninth Circuit held the incidental interception of a non-targeted United States person’s email communications was lawful because the warrantless search of the email communications of a non-United States person located outside of the United States at the time of the surveillance was lawful. Id. at 441.
Here, it is undisputed that Defendant is a nonresident alien who had no previous significant voluntary connection with the United States. When the § 2703(d) Orders and Warrants were obtained and implemented, Defendant was located and resided outside of the United States. When the electronic communications were allegedly made by Defendant, he was located and resided outside of the United States. No physical property located in the United States was seized. The storage of the content of electronic communications on servers located in the United States—without more—cannot justify extending Fourth Amendment protection to a person who does not have substantial connections to the United States.