N.D.Ill.: Fourth Amendment applies to foreign search by U.S. officers, but warrant may be issued locally

Fourth Amendment applied to a search of an American citizen in Thailand by ICE officers investigating defendant’s international travel for the purpose of sex with minors in violation of U.S. law. However, the warrant clause does not require an American judge issue a warrant, and the search warrant here was issued by a Thai provincial court. United States v. Stokes, 710 F. Supp. 2d 689 (N.D. Ill. 2009):

It is a matter of first impression in this Circuit whether the Warrant Clause of the Fourth Amendment governs searches and seizures of U.S. citizens in foreign lands. The court is not aware of any case, and Stokes presents no authority, that holds that the Warrant Clause ever applies in foreign territory. Such an extension of the warrant requirement would be, in Justice Harlan’s words, “impractical and anomalous.” Accordingly, the court holds that the Warrant Clause does not apply to the search of Stokes’s residence in Thailand. Stokes’s objections to the search based on the invalidity of the Thai warrant and the scope of the search are overruled.

Though it has not addressed the issue directly, the Supreme Court has strongly suggested that the Warrant Clause has no extraterritorial application. Writing for the Court in Verdugo, Justice Rehnquist explained that warrants issued to conduct searches abroad “would be a dead letter outside the United States.” 494 U.S. at 274. Justice Kennedy elaborated:

The absence of local judges or magistrates available to issue warrants, the differing and perhaps unascertainable conceptions of reasonableness and privacy that prevail abroad, and the need to cooperate with foreign officials all indicate that the Fourth Amendment’s warrant requirement should not apply in Mexico as it does in this country.

Id. at 278 (Kennedy, J., concurring). Justice Steven’s brief concurrence and Justice Blackmun’s dissent also similarly suggest that the Warrant Clause does not govern overseas searches, at least where the targets of those searches are not U.S. citizens. Id. at 279 (Stevens, J., concurring)(“[The Warrant Clause has no] application to searches of noncitizens’ homes in foreign jurisdictions because American magistrates have no power to authorize such searches.”); Id. at 297(Blackmun, J., dissenting) (“l agree with the Government, however, that an American magistrate’s lack of power to authorize a search abroad renders the Warrant Clause inapplicable to the search of a noncitizen’s residence outside this county.”) All told, seven Justices in Verdugo seemed to agree that, because United States courts lack the sovereign authority to issue warrants abroad, the procedures and requirements set forth by the Warrant Clause do not apply to foreign searches.

According to the only federal appellate court to have considered the issue, the “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.” In re Terrorist Bombings of U.S. Embassies in East Africa, 548 F.3d 276, 287 (2nd Cir. 2008). In the Terrorist Bombings case, U.S. officials wiretapped and searched the home of an American citizen living in Kenya pursuant to a Kenyan warrant that authorized a search for “stolen property.” Id. at 279. The homeowner was suspected of assisting the bombings of American embassies in Kenya and Tanzania, not of possessing stolen property. Id. Relying on Verdugo, the Second Circuit determined that the Warrant Clause did not apply to any search of a U.S. citizen abroad by American officials. The court offered four reasons for its decision: “First, there is nothing in our history or our precedent suggesting U.S. officials must first obtain a warrant before an overseas search.” Id. at 289. “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.” Id. at 290. “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.” Id. at 290. “Fourth and finally, it is by no means clear that U.S. judicial officers could be authorized to issue warrants for overseas searches.” Id.

The court finds the Second Circuit’s reasoning persuasive here. The Thai court in Pattaya, not some distant American magistrate, was the sole sovereign entity with the power to authorize a search of Stokes’s home.