United States v. Verdugo-Urquidez/Dissent Blackmun

Justice BLACKMUN, dissenting.

I cannot accept the Court of Appeals' conclusion, echoed in some portions of Justice BRENNAN's dissent, that the Fourth Amendment governs every action by an American official that can be characterized as a search or seizure. American agents acting abroad generally do not purport to exercise sovereign authority over the foreign nationals with whom they come in contact. The relationship between these agents and foreign nationals is therefore fundamentally different from the relationship between United States officials and individuals residing within this country.

I am inclined to agree with Justice BRENNAN, however, that when a foreign national is held accountable for purported violations of United States criminal laws, he has effectively been treated as one of "the governed" and therefore is entitled to Fourth Amendment protections. Although the Government's exercise of power abroad does not ordinarily implicate the Fourth Amendment, the enforcement of domestic criminal law seems to me to be the paradigmatic exercise of sovereignty over those who are compelled to obey. In any event, as Justice STEVENS notes, ante, at 279, respondent was lawfully (though involuntarily) within this country at the time the search occurred. Under these circumstances I believe that respondent is entitled to invoke protections of the Fourth Amendment. I 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 country.

The Fourth Amendment nevertheless requires that the search be "reasonable." And when the purpose of a search is the procurement of evidence for a criminal prosecution, we have consistently held that the search, to be reasonable, must be based upon probable cause. Neither the District Court nor the Court of Appeals addressed the issue of probable cause, and I do not believe that a reliable determination could be made on the basis of the record before us. I therefore would vacate the judgment of the Court of Appeals and remand the case for further proceedings.