Dicta: Illegal aliens have Fourth Amendment protection

In dicta, the U.S. District Court for the Western District of Texas held that a Mexican citizen in the United States and subject to the penal laws of the United States was protected by the Fourth Amendment. The stop and detention of the defendant was otherwise valid. United States v. Hernandez-Reyes, 501 F. Supp. 2d 852 n. 3 (W.D. Tex. 2007):

In holding that the Fourth Amendment provided no extraterritorial protection to a Mexican citizen whose home in Mexico was searched by federal agents without a warrant, the Supreme Court stated that its prior cases “establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” United States v. Verdugo-Urquidez, 494 U.S. 259, 271, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990). The Fifth Circuit recently declined to decide whether that statement in the Verdugo-Urquidez opinion was controlling law, given the statement in Justice Kennedy’s concurring opinion: “If the search had occurred in a residence within the United States, I have little doubt that the full protections of the Fourth Amendment would apply,” Verdugo-Urquidez, 494 U.S. at 278 (Kennedy, J., concurring). Martinez-Aguero v. Gonzalez, 459 F.3d 618, 624 (5th Cir.), cert. denied, 127 S. Ct. 837, 166 L. Ed. 2d 667 (2006). Prior to the Verdugo-Urquidez decision, the Fifth Circuit had “explicitly held[] that the Fourth Amendment applies to aliens.” Id. Because the Government does not argue that Defendant is not entitled to constitutional protections, Defendant was within the United States when he was arrested, Defendant is now subject to the penal laws of the United States, no evidence was presented indicating that Defendant’s “connection with the United States is so tenuous that he cannot reasonably expect the protection of its constitutional guarantees,” and the Fifth Circuit has not explicitly overruled the application of the Fourth Amendment to aliens within the United States, the Court will assume that Defendant was entitled to the protections guaranteed by the Constitution on the date of his arrest. Id. at 625. Furthermore, the Court is unaware of any case denying a criminal defendant’s motion to suppress evidence obtained inside the United States on the grounds that the defendant, as an alien, does not possess rights under the Fourth Amendment. See, e.g., United States v. Uscanga-Ramirez, 475 F.3d 1024, 1027 (8th Cir. 2007) (affirming district court’s denial of motion to suppress filed by a defendant charged with being an illegal alien in possession of a firearm “because of the consent and exigent-circumstances exception to the warrant requirement”); United States v. Torres-Castro, 470 F.3d 992, 1000 (10th Cir. 2006) (affirming district court’s denial of motion to suppress filed by a defendant charged with being an illegal alien in possession of a firearm in part because of the inevitable discovery doctrine); United States v. Herrera-Ochoa, 245 F.3d 495, 498 (5th Cir. 2001) (affirming a district court’s denial of a motion to suppress an A-file filed by a defendant charged with illegal reentry because the A-file is not suppressible under the fruit of the poisonous tree doctrine).