United States v. Verdugo-Urquidez
Decided on Feb. 28, 1990; 494 US 259

The Fourth Amendment does not apply to the search and seizure by United States agents of property owned by a nonresident alien and located in a foreign country. The reference in the Constitution to "the people" means all citizens and legal aliens while in the United States.


A. Issues Discussed: Search and seizure

B. Legal Question Presented:

Does the Fourth Amendment 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?


A. Background:

"After the Government obtained an arrest warrant for respondent - a Mexican citizen and resident believed to be a leader of an organization that smuggles narcotics into this country - he was apprehended by Mexican police and transported [in the U.S.], where he was arrested.

Following his arrest, Drug Enforcement Administration (DEA) agents, working with Mexican officials, searched his Mexican residences and seized certain documents. The District Court granted his motion to suppress the evidence, concluding that the Fourth Amendment - which protects 'the people' against unreasonable searches and seizures - applied to the searches, and that the DEA agents had failed to justify searching the premises without a warrant.

The Court of Appeals affirmed. Citing Reid v. Covert, which held that American citizens tried abroad by United States military officials were entitled to Fifth and Sixth Amendment protections - the court concluded that the Constitution imposes substantive constraints on the Federal Government, even when it operates abroad.

Relying on INS v. Lopez-Mendoza, where a majority assumed that illegal aliens in the United States have Fourth Amendment rights - the court observed that it would be odd to acknowledge that respondent was entitled to trial-related rights guaranteed by the Fifth and Sixth Amendments, but not to Fourth Amendment protection."

On certiorari, the US Supreme Court reversed the judgment of the US Court of Appeals for the Ninth Circuit.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Michael Pancer argued the cause for respondent. With him on the brief were Charles L. Goldberg and Patrick Q. Hall.

John A. Powell, Paul L. Hoffman, and David D. Cole filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

Lawrence S. Robbins argued the cause for the United States. With him on the briefs were Solicitor General Starr, Assistant Attorney General Dennis, and Deputy Solicitor General Bryson.

Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging reversal.

The Supreme Court held that "The Fourth Amendment does not apply to the search and seizure by United States agents of property owned by a nonresident alien and located in a foreign country...

The Fourth Amendment phrase 'the people' seems to be a term of art used in select parts of the Constitution and contrasts with the words 'person' and 'accused' used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that 'the people' 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.

The Fourth Amendment's drafting history shows that its purpose was to protect the people of the United States against arbitrary action by their own Government and not to restrain the Federal Government's actions against aliens outside United States territory...

The view that every constitutional provision applies wherever the Government exercises its power is contrary to this Court's decisions in the Insular Cases, which held that not all constitutional provisions apply to governmental activity even in territories where the United States has sovereign power...

Those cases in which aliens have been determined to enjoy certain constitutional rights establish only that aliens receive such protections when they have come within the territory of, and have developed substantial connections with, this country. Respondent, however, is an alien with no previous significant voluntary connection with the United States, and his legal but involuntary presence here does not indicate any substantial connection with this country...

The Court of Appeals' rule would have significant and deleterious consequences for the United States in conducting activities beyond its borders... Any restrictions on searches and seizures incident to American action abroad must be imposed by the political branches through diplomatic understanding, treaty, or legislation."

The US Supreme Court reversed the US Court of Appeals for the Ninth Circuit judgment.

Justice Vote: 3 Pro vs. 6 Con
  • Brennan, W. Pro (Wrote dissenting opinion)
  • Blackmun, H. Pro (Wrote dissenting opinion)
  • Marshall, T. Pro (Joined dissenting opinion)
  • Rehnquist, W. Con (Wrote majority opinion)
  • Kennedy, A. Con (Wrote concurring opinion)
  • Stevens, J. Con (Wrote concurring opinion)
  • White, B. Con (Joined majority opinion)
  • O'Connor, S. Con (Joined majority opinion)
  • Scalia, A. Con (Joined majority opinion)

    The ACLU, as amicus curiae, urged affirmance of the judgment of the United States Court of Appeals for the Ninth Circuit; the Supreme Court reversed in a 3-6 vote, giving the ACLU an apparent loss.