The Verdugo Case: The United States and the Comity of Nations
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Abstract
U.S. v. Verdugo-Urquidez,2 decided by the U.S. Supreme Court on February 28, 1990, holds that the U.S. Constitution's Fourth Amendment protection against `unreasonable searches and seizures' does not 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.'3 Arising in the context of the U.S. war on drugs, the Verdugo case has important international implications for the law concerning individual rights and state sovereignty. This brief note discusses the Verdugo case and its relationship to international law, paying particular attention to some of the doctrinal and theoretical assumptions of the different members of the U.S. Supreme Court.
In Verdugo, Chief Justice Rehnquist delivered the opinion of the Court; he was joined by Justices White, O'Connor, Scalia, and Kennedy. Justice Kennedy also wrote a concurring opinion. Justice Stevens wrote an opinion in which he concurred in the judgment, though not in the opinion, of the Court. The three more liberal judges - Justices Brennan, Marshall, and Blackmun - dissented in two opinions written by Justices Brennan and Blackmun. So, among the five opinions altogether, none commanded a majority of the Court.
Chief Justice Rehnquist's opinion recounted how Rene Martin Verdugo-Urquidez, a citizen and resident of Mexico, had been seized in Mexico in January 1986 and transported to the United States where he was arrested on charges of narcotics-related offences and held pending trial. Thereafter, U.S. Drug Enforcement Agency (`DEA') officials in concert with the Mexican Federal Judicial Police searched Verdugo's properties in Mexicali and San Felipe, Mexico, seizing documents that were ultimately used in the prosecution of Verdugo. Of particular importance was a tally sheet which the U.S. argued as showing quantities of marijuana smuggled by Verdugo from Mexico into the United States. However, since U.S. officials had not obtained a search warrant for Verdugo's Mexican properties, a U.S. district court and a divided Ninth Circuit court agreed with Verdugo's lawyers that the evidence from Mexico should be suppressed, these two courts holding that the search and seizure in Mexico violated the Fourth Amendment of the Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.4
Reversing the lower courts, Chief Justice Rehnquist, in a formal textual reading, concluded that the Fourth Amendment `by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people";' `the purpose of the Fourth Amendment [being] to protect the people of the United States against arbitrary action by their own Government.'5
With this key argument, a majority of the justices disagreed. Justice Kennedy, though otherwise joining in Chief Justice Rehnquist's opinion, refused to `place any weight on the reference to "the people" in the Fourth Amendment as a source of restricting its protections.'6 Justice Stevens, concurring only in the judgment, wrote that `aliens who are lawfully present in the United States are among those "people" who are entitled to the protection of the Bill of Rights, including the Fourth Amendment.'7 Justice Brennan, also writing for Justice Marshall, believed that `mutuality' between Verdugo and the U.S. put defendant within the class of `the people:' `If we expect aliens to obey our laws, aliens should be able to expect that we will obey our Constitution when we investigate, prosecute, and punish them.'8 And in his dissent, Justice Blackmun, though he distinguished between the relationship of the U.S. government and individuals residing in the U.S. and that involving U.S. a
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