"[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. ...
. . .
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.
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
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and enforcing a Bill of Rights. This country is built on the assumption that
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safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)