CA7: Warrant clause of 4A has no extraterritorial application

The Fourth Amendment warrant clause has no extraterritorial application; reasonableness does. Defendant was a teacher in Miami-Dade, and he was charged with sex offenses against young male students. He somehow moved to Thailand within a month, and he resumed sexual conduct there as a teacher. Thai authorities became interested in him, too. They executed a search warrant and recovered 6000 images on his computer, yet he wasn’t arrested for another three years. Then, the U.S. sought to extradite him for interstate or international travel for sex with children, which took another year. The warrant clause of the Fourth Amendment did not apply to the search of the computers in Thailand. ICE, however, was involved, so the reasonableness requirement of the Fourth Amendment applies, and this search was reasonable. United States v. Stokes, 726 F.3d 880 (7th Cir. 2013):

The challenge to the search raises two questions: (1) whether an extraterritorial search of an American citizen by U.S. agents is subject to the Fourth Amendment’s implicit warrant requirement and the explicit requirements of the Warrant Clause; and (2) whether the search by ICE agents was reasonable. Following the Second Circuit, we hold that the Fourth Amendment’s warrant requirement and the Warrant Clause have no extraterritorial application. See In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 157, 171 (2d Cir. 2008). But Stokes remains protected by the Amendment’s touchstone requirement of reasonableness. See id. at 170 n.7. Because the search was reasonable, the photographic evidence was properly admitted at trial.

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Stokes argues that the Thai warrant violated the Warrant Clause because it did not describe the items to be seized with particularity and the search exceeded the scope of the warrant. There is no question that the warrant used very general language. Stokes’s argument thus requires us to decide whether an extraterritorial search by U.S. agents is subject to the Warrant Clause.

The Warrant Clause is phrased as a limitation on the power to issue warrants and is distinct from the Fourth Amendment’s “warrant requirement,” which though not expressed in the text of the Amendment is implied as a matter of long-standing Supreme Court doctrine.2 See Kentucky v. King, 131 S. Ct. 1849, 1856 (2011) (“Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, this Court has inferred that a warrant must generally be secured.”); Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (“searches and seizures inside a home without a warrant are presumptively unreasonable”); Payton v. New York, 445 U.S. 573, 586-87 (1980). The Supreme Court has never addressed whether the Warrant Clause or the doctrinal requirement of a warrant applies extraterritorially. Nor have we.

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Among the circuit courts of appeals, only the Second has addressed whether the Fourth Amendment’s warrant requirement applies to searches conducted by U.S. agents overseas, concluding that it does not. See In re Terrorist Bombings, 552 F.3d at 167 (“[W]e 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.”). The Second Circuit took its cues from Verdugo-Urquidez, in which no fewer than “seven justices of the Supreme Court endorsed the view that U.S. courts are not empowered to issue warrants for foreign searches.” Id. at 169.

Beyond reading the clear signals from the Supreme Court in Verdugo-Urquidez, the Second Circuit noted the absence of any historical support for the argument that the Fourth Amendment’s warrant requirement applies to searches carried out by U.S. agents overseas. Id. (“[T]here is nothing in our history or our precedents suggesting that U.S. officials must first obtain a warrant before conducting an overseas search.”). The court also considered the foreign-policy implications of extending the warrant requirement to extraterritorial searches, noting that “nothing in the history of the foreign relations of the United States would require that U.S. officials obtain warrants from foreign magistrates … or, indeed, to suppose that all other states have search and investigation rules akin to our own.” Id. at 170.

Finally, the court returned to the basic difficulty that “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 171. And “it is by no means clear that U.S. judicial officers could be authorized to issue warrants for overseas searches.” Id. For these reasons, the court concluded that “the Fourth Amendment’s Warrant Clause has no extraterritorial application,” and “foreign searches of U.S. citizens conducted by U.S. agents are subject only to the Fourth Amendment’s requirement of reasonableness.” Id.

Stokes has no response to In re Terrorist Bombings. Nor does he grapple with the clear implication of the Supreme Court’s statements in Verdugo-Urquidez. We agree with the Second Circuit’s reasoning and now hold that the Fourth Amendment’s warrant requirement, and by extension the strictures of the Warrant Clause, do not apply to extraterritorial searches by U.S. agents. The search of Stokes’s home in Thailand is governed by the Amendment’s basic requirement of reasonableness, see In re Terrorist Bombings, 552 F.3d at 170 n.7, to which we now turn.