Nos. 95-466, 95-801 and 95-6433

In the Supreme Court of the United States

OCTOBER TERM, 1995

BRIAN BENNETT, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA


MARIA CECILIA BARONA, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA


MICHAEL DUBARRY MCCARVER, AKA MIKE BALD,
PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYS, III
Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney 
General

JOSEPH C. WYDERKO
Attorney

Department of Justice
Washington, D.C. 20530
(202) 514-2217

---------------------------------------- Page Break ----------------------------------------

     QUESTIONS PRESENTED

1. Whether electronic surveillance of an American
citizen traveling abroad that was jointly undertaken
by American and foreign law enforcement authorities
and that fully complied with the requirements of
foreign law violated the Fourth Amendment.
2. Whether the Fourth Amendment applies to
electronic surveillance of a resident alien in a foreign
country, jointly undertaken by American and foreign
law enforcement authorities.

(I)

---------------------------------------- Page Break ----------------------------------------

TABLE OF CONTENTS

Page

Opinions below  . . . . 1
Jurisdiction  . . . . 2
Statement  . . . . 2
Argument  . . . . 8
Conclusion  . . . . 16

     TABLE OF AUTHORITIES

Cases:

Adickes v. S.H. Kress & Co., 398 U.S. 144(1970) . . . . 15
Byars v. United States, 273 U. S. 28 (1927)  . . . . 12
California v. Ciraolo, 476 U. S. 207 (1986)  . . . . 11-12
California v. Greenwood, 486 U.S. 35 (1988)  . . . . 11
Chambers v. Maroney, 399 U. S. 42 (1970)  . . . . 9
FCC v. Beach Communications,Inc., 113S. Ct.
2096 (1993)  . . . . 15
Griffin v. Wisconsin, 483 U. S. 868 (1987)  . . . . 10 
Horton v. California, 496 U.S. 128(1990)  . . . . 12
Katz v. United States, 389 U. S. 347(1967)  . . . . 11
Oliver v. United States, 466 U.S. 170 (1984)  . . . . 11
Rakas v. Illinois, 439 U. S. 128(1978)  . . . . 11
Reid v. Covert, 354 U.S. 1(1957)  . . . . 12 
Skinner v. Railway Labor Executives' Ass'n,
489 U.S. 602 (1989)  . . . . 9
Terry v. Ohio, 392 U.S. 1 (1968)  . . . . 9-10 
United States v. Jacobsen, 466 U. S. 109 (1984)  . . . . 11 
United States v. Juda, 46 F.3d 961 (9th Cir.), cert.
denied, 115 S. Ct. 1811,2632 (1995)  . . . . 7
United States v. LaChapelle, 869 F.2d 488 (9th
Cir. 1989)  . . . . 6
United States v. Lovasco, 431 U. S. 783(1977)  . . . . 15 
United States v. Peterson, 812 F.2d 486(9th Cir.
1987)  . . . . 6, 7, 10
United States v. United States District Court,
407 U.S. 297 (1972)  . . . . 9 

(III)

---------------------------------------- Page Break ----------------------------------------

IV

Cases-Continued:

Page

United States v. Verdugo-Urquidez:

856 F.2d 1214 (9th Cir. 1988), rev'd, 494 U.S. 259
  (1990)  . . . . 6, 13
494 U.S. 259 (1990)  . . . . 6, 10, 11, 12, 13
Vale v. Louisianal 399 U.S. 30 (1970)  . . . .  9
Vernonia School District 47J v. Acton, 115 S. Ct.
2386 (1995)  . . . . 10
Williamson v. Lee Optical of Oklahoma, Inc.,
348 U.S. 483 (1955)  . . . .  15
Wyman v. James, 400 U.S. 309 (1971)  . . . .  9

Constitution and statutes:

Us. Const.:
Amend. IV  . . . .  5, 6, 7, 8, 9, 10, 12, 13, 15
Amend. XIV (Equal Protection Clause) . . . .15
18 U.S.C. 1956(a)(1)  . . . .  3
21 U.S.C. 841(a)(1)  . . . .  2
21 U.S.C. 846  . . . .  2
21 U.S.C. 848  . . . .  2, 3
22 U.S.C. 2291(c)(1)  . . . .  14
22 U.S.C. 2291(c)(5)  . . . .  14
31 U.S.C. 5324  . . . . 2,3
50 U.S.C. 401  . . . . 13, 15

Miscellaneous:
Exec. Order No. 12,333,46 Fed- Reg. 59,941 (1981)  . . . . 13,
					                    14, 15

Note, The Extraterritorial Applicability of the
Fourth Amendment, 102 Harv. L. Rev. 1672
(1989)  . . . .  11

---------------------------------------- Page Break ----------------------------------------

In the Supreme Court of the United States

      OCTOBER TERM, 1995

    No. 95-466

BRIAN BENNETT, ET AL., PETITIONERS

       v.

UNITED STATES OF AMERICA

     No. 95-801

MARIA CECILIA BARONA, ET AL., PETITIONERS

        v.

   UNITED STATES OF AMERICA

      No. 95-6433

MICHAEL DUBARRY MCCARVER, AKA MIKE BALD,
       PETITIONER

    v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

       OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-
49a)1 is reported at 56 F.3d 1087. A related opinion of

         
___________________(footnotes)

1 "Pet. App." refers to the appendix to the petition in No.
95466.

(1)

---------------------------------------- Page Break ----------------------------------------

2

the court of appeals (Pet. App. 50a-85a) is unreported,
but the judgment is noted at 59 F.3d 176 (Table).
       
JURISDICTION

The judgment of the court of appeals was entered on
June 5, 1995. Petitions for rehearing were denied on
July 18, 1995. Pet. App. 86a-88a. The petition for a
writ of certiorari in No. 95466 (Bennett Pet.) was
filed on September 18, 1995. On October. 10, 1995,
Justice O'Connor extended the time within which to
file a petition for a writ of certiorari in No. 95-801 to
and including November 15, 1995, and the petition
(Barona Pet.) was filed on that date. The petition for
a writ of certiorari in No. 95-6433 (McCarver Pet.)
was filed on October 12, 1995. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

        STATEMENT

Following a jury trial in the United States District
Court for the Central District of California, peti-
tioners were each convicted of conspiring to pos-
sess cocaine with intent to distribute it (Count 1),
in violation of 21 U.S.C. 846. Petitioners Bennett,
Barona, and Villabona-Alvarado (Villabona) were also
convicted on four.. counts of possessing cocaine with
intent to distribute it (Counts 2-5), in violation of 21
U.S.C. 841(a)(1); petitioners Harris, Martinez, and
McCarver were convicted on three taunts of pos-
sessing cocaine with intent to distribute it (Counts
24), in violation of 21 U.S.C. W(a)(l). In addition,
Bennett was convicted on two counts of structuring
financial transactions to avoid reporting require-
ments (Counts 1.2, 17), in violation of 31 U.S.C. 5324,
and one count of engaging in a continuing criminal
enterprise (CGE) (Count 28), in violation Of 21 U.S.C.
848. Villabona was also convicted on ten counts of

---------------------------------------- Page Break ----------------------------------------

3

money laundering (Counts 7-8, 19-26), in violation of
18 U.S.C. 1956(a)(1); five counts of structuring finan-
cial transactions to avoid reporting requirements
(Counts 12-16), in violation of 31 U.S.C. 5324; and one
count of engaging in a CCE (Count 27), in violation of
21 U.S.C. 848. Bennett was sentenced to life impris-
onment and fined $250,000. Harris was sentenced to
235 months' imprisonment, to be followed by five
years' supervised release, and fined $80,000. Barona
was sentenced to 235 months' imprisonment, to be
followed by five years' supervised release, and fined
$250,000. Martinez was sentenced to 235 months' im-
prisonment, to be followed by five years' supervised
release, and fined $200,000. Villabona was sentenced
to life imprisonment and fined $475,000. McCarver
was sentenced to 240 months' imprisonment, to be
followed by five years' supervised release, and fined
$80,000.
1. During 1987 and 1988, petitioners Bennett and
Villabona organized and supervised a criminal enter-
prise that obtained more than 3,000 kilograms of co-
caine from suppliers in Colombia. Petitioners Barona
and Martinez delivered the cocaine to petitioners
Harris and McCarver and other individuals in Los
Angeles, California, for further distribution in the
United States. Pet. App. 6a-8a; Gov't C.A. Br. 4-16.2
2. At trial, the government introduced into evi-
dence tapes of narcotics-related telephone conversa-
tions involving petitioners and other co-conspirators.
The conversations had been monitored and inter-
___________________(footnotes)
                            
2 "Gov't C.A. Br." refers to the brief filed by the United
States in the court of appeals in connection with the appeal
filed by petitioners Bennett and Harris.

---------------------------------------- Page Break ----------------------------------------

4

cepted by Danish and Italian law enforcement auth-
orities.
a. In December 1987, petitioners Bennett and Vil -
labona traveled to Copenhagen, Denmark, and regis-
tered at the Savoy Hotel. Between December 4 and 7,
the Danish police wiretapped the hotel telephone lines
and installed an electronic listening device in Villa-
bona's room. Pet. App. 7a, 20a-21a; Gov't C.A. Br. 6-8.
b. On December 7, 1987, petitioner Villabona and
his wife, Helle Nielsen, and petitioner Bennett trav-
eled to Aalborg, Denmark, and stayed with Nielsen's
parents. Between December 7 and 9, the Danish po-
lice wiretapped the telephone line at Nielsen's par-
ents' residence. After Villabona was observed making
calls from a public telephone, the Danish police also
wiretapped that telephone line. Pet. App. 7a, 21a-22a;
Gov't C.A. Br. 8. 
c. On December 8, 1987, petitioners Bennett and
Villabona returned to Copenhagen and stayed at the
Hotel Sara-Dan. On December 8 and 9, the Danish
police wiretapped the hotel's telephone line. Pet. App.
7a, 22a; Gov't C.A.Br. 8-9.
d. On December 9, 1987, petitioners Bennett and
Villabona flew from Copenhagen to Milan, Italy,
where they registered at the Hilton International
Hotel. The Italian police wiretapped the telephone
line of their room. Pet. App. 7a, 23a; Gov't C.A. Br. 9-
11. e. In late March 1988, petitioner Villabona and
Nielsen returned to Aalborg, where they again stayed
with Nielsen's parents. Between March 28 and April
16, the Danish police wiretapped the telephone lines of
Nielsen's parents' residence and the public telephone
in Aalborg. Pet. App. 7a, 22a-23a; Gov't C.A. Br. 11-13.

---------------------------------------- Page Break ----------------------------------------

5

2. Before trial, petitioners moved unsuccessfully
to suppress the tapes of the telephone conversations
intercepted by the Danish and Italian authorities.
Pet. App. 8a-9a, 89a-90a. The district court ruled that
the Fourth Amendment did not apply to the Italian
wiretap, because the Italian police did not conduct the
wiretap as part of a "joint venture" with American
authorities. Id. at 8a. Although the court found that
the Danish police were engaged in a "joint venture"
with American DEA agents, i bid., the court con-
cluded that the Danish wiretaps did not violate the
Fourth Amendment, because (i) "the order issued by
the Danish Court was lawful and in accordance with
their law" and (ii) "the United States authorities
reasonably relied upon the representations of the
Danish officials with respect to the wiretaps, and
therefore they were acting * * * in good faith," id.
at 8a-9a, 90a.
3. The court of appeals affirmed in part, reversed
in part, and remanded. Pet. App. 1a-49a.3 The court
rejected petitioners' claim that the United States'
participation in the Danish and Italian wiretaps
violated the Fourth Amendment. Id. at 8a-24a. The
court observed, initially, that "[i]t [wa]s not clear
*** that Villabona or the other non-citizen
                
___________________(footnotes)             

3 The court reversed the CCE convictions of petitioners
Bennett (Count 28) and Villabona (Count 27) and remanded for
resentencing, because it concluded that the jury had been
improperly instructed on one of the elements of that offense.
Pet. App. 24a-29a. In a separate unpublished opinion, the court
also reversed certain of the illegal structuring convictions of
Bennett (Counts 12, 17) and Villabona (Counts 12-16), on the
ground that the jury had been improperly instructed on one of
the elements of the offense. Id. at 66a. The court rejected
petitioners' other claims of error. Id. at 50a-85a.

---------------------------------------- Page Break ----------------------------------------

6

defendants * * * [we]re entitled to receive any
Fourth Amendment protection whatsoever," particu-
larly "in the context of an extraterritorial search."
Id. at 18a (citing United States v. Verdugo- Urquidez,
494 U.S. 259 (1990)). The court believed that it "could
hold * * * that Barona, Martinez, and Villabona
ha[d] failed to demonstrate that, at the time of the
extraterritorial search, they were `People of the
United States' entitled to receive the `full panoply of
rights guaranteed by our Constitution.'" Pet. App.
18a (quoting United States v. Verdugo- Urquidez,
856 F.2d 1214, 1236 (9th Cir. 1988) (Wallace, C.J.,
dissenting), rev'd, 494 U.S. 259 (1990)). It "cho[se],
however, not to reach the question because even if
[the non-citizen defendants] were entitled to invoke
the Fourth Amendment, their effort would be un-
successful." Pet. App. 18a.
Relying principally on the Ninth Circuit's earlier
decision in United States v. Peterson, 812 F.2d 486,
490 (1987) (Kennedy, J.), the court held that the in-
volvement of American law enforcement authorities
in the Danish and Italian wiretaps did not violate the
Fourth Amendment. Pet. App. 8a-24a. The court ob-
served that "[n]either our Fourth Amendment nor the
judicially created exclusionary rule applies to acts of
foreign officials" (id. at 9a (quoting United States v.
LaChapelle, 869 F.2d 48% 489 (9th Cir. 1989))) unless
(1) "the circumstances of the foreign search and
seizure are so extreme that they `shock the (judicial]
conscience,' [so that] a federal appellate court in the
exercise of its supervisory powers can require
exclusion of the evidence," or (2) United States
agents' participation in the investigation is so
substantial that the action is a joint venture be-
tween United States and foreign officials" (Pet. APP.

---------------------------------------- Page Break ----------------------------------------

7

10a (quoting Peterson, 812 F.2d at 490)). "If a joint
venture is found to have existed)" the court ex-
plained, "the law of the foreign country must be con-
sulted at the outset as part of the determination
whether or not the search was reasonable." Pet. App.
10a (quoting Peterson, 812 F.2d at 490). So long as
a foreign search. complies with applicable foreign law,
the court held, the search is reasonable under the
Fourth Amendment. Pet. App. 10a n.1.4
The court of appeals concluded that "the district
court did not clearly err in finding that the four
Danish wiretaps at issue were `joint ventures.'" Pet.
App. 18a. And, after concluding that each of those
wiretaps complied with the requirements of Danish
law, id. at 19a-23a, the court agreed that the United
                                            
___________________(footnotes)
    
4 In Peterson, DEA agents had participated with Philippine
authorities in wiretapping the telephone line of an apart-
ment in Manila that was rented by one of the defendants. 812
F.2d at 488-489. Writing for the court, then-Judge Kennedy
explained that, if "United States agents' participation in the
investigation is so substantial that the action is a joint venture
between United States and foreign officials, the law of the
foreign country must be consulted at the outset as part of the
determination whether or not the search was reasonable." Id.
at 490. After concluding that the wiretapping operation at
issue was a joint venture, the court assumed, for purposes of
analysis, "that the search did not comply with Philippine law
and was, as a result, not reasonable under the fourth amend-
ment ," id, at 491, but held that the evidence was nonetheless
admissible under the good-faith exception to the exclusionary
rule, because the United States agents had reasonably relied on
the representations of the Philippines' authorities that the
wiretap complied with Philippine law. Id. at 491-492. See
also United States v. Juda, 46 F.3d 961, 968 (9th Cir.) ("In
Peterson, we held that a foreign search is reasonable if it
conforms to the requirements of foreign law."), cert. denied,
115 S. Ct. 1811,2632 (1995).

---------------------------------------- Page Break ----------------------------------------

8

States' participation in the wiretaps did not violate
the Fourth Amendment, id. at 24a.
The court also concluded that the district court did
not clearly err when it found that the Italian wire-
tap had not been undertaken as part of a joint in-
vestigation. Pet. App. 23a. "Because th[at] wiretap
was conducted by foreign officials without substan-
tial United States involvement," the court explained,
"Fourth Amendment principles do not apply." Id. at
23a-24a.
Judge Reinhardt dissented in part. Pet. App. 30a-
49a. In his view, a search of an American citizen
abroad by foreign authorities, at the behest and for
the benefit of United States authorities, that fully
complies with the requirements of foreign law is an
unreasonable search under the Fourth Amendment
unless supported by probable cause. Id. at 31a-42a.
Judge Reinhardt found the majority's reliance on
Peterson misplaced, because "Peterson never dis-
cussed] the critical question of whether American
officials must have probable cause for inducing a
foreign government to carry out a search." Id. at 43a.
He would have relied, instead, on the court of appeals'
reasoning in Verdugo - Urquidez, in which the court
had held that probable cause was required for a
foreign search of a nonresident alien. Id. at 44a-47a.
Judge Reinhardt recognized that this Court reversed
the court of appeals' decision in that case, but in his
view this Court "left the part of the Verdugo analysis
relevant to this case undisturbed." Id. at 45a.

        ARGUMENT

1. Petitioners contend (Bennett Pet. 48, 11-13;
Barona Pet. 11-18; McCarver Pet. 6) that the tapes
of the telephone conversations obtained through the

---------------------------------------- Page Break ----------------------------------------

9

Danish wiretaps should not have been admitted at
trial, because (in petitioners' view) the United States'
participation in the Danish wiretaps violated the
Fourth Amendment. Relying largely on Judge Rein-
hardt's dissenting opinion, petitioners argue (Bennett
Pet. 12-13; Barona Pet. 15-18) that a foreign search
of an American citizen must both comply with the
requirements of foreign law and be supported by
probable cause.5 Neither this Court nor any court of
appeals has embraced that view.
a. The Fourth Amendment generally requires that
United States law enforcement officials obtain a
warrant based on probable cause before conducting a
search to discover evidence of criminal wrongdoing.
Skinner v. Railway Labor Executives' Ass'n, 489
U.S. 602, 619 (1989); United States v. United States
District Court, 407 U.S. 297, 315 (1972). Probable
cause is also generally required in circumstances
where no warrant is necessary. See, e.g., Vale v.
Louisiana, 399 U.S. 30 (1970) (warrantless search of
home); Chambers v. Maroney, 399 U.S. 42 (1970)
(warrantless search of vehicle). But, as this Court
has repeatedly observed, "the special content and
incidents of [the right to be free from unreasonable
searches and seizures] must be shaped by the context
in which it is asserted," Wyman v. James, 400 U.S.
309,318 (1971) (quoting Terry v. Ohio, 392 U. S. 1,9

___________________(footnotes)
 
5 Although petitioners Bennett and Harris generally assert
(Bennett Pet. 4) that "serious questions existed and still exist as
to the orders' validity under Danish law," they do not specify
how any of the wiretaps failed to comply with the require-
ments of Danish law. In any event, both the district court and
the court of appeals concluded that the wiretaps were valid
under Danish law; petitioners' fact-bound claim to the contrary
does not warrant this Court's review.


---------------------------------------- Page Break ----------------------------------------

10

(1968)), and "[a] search unsupported by probable cause
can be constitutional * * * `when special needs,
beyond the normal need for law enforcement, make
the warrant and probable-cause requirement imprac-
ticable,'" Vernonia School District 47J v. Acton, 115
S. Ct. 2386,2391 (1995) (quoting Griffin v. Wisconsin,
483 U.S. 868,873 (1987)).
"Special needs" exist in the context of a foreign
search. As this Court has recognized, "[f]or better or
for worse, we live in a world of nation-states in which
our Government must be able to `functio[n] effective-
ly in the company of sovereign nations.' Some who
violate our laws may live outside our borders under
a regime quite different from that which obtains in
this country." United States v. Verdugo- Urquidez,
494 U.S. 259, 275 (1990) (citation omitted). Foreign
authorities operating within their own countries may
not be willing to forgo a search that can be validly
conducted under their law until American authori-
ties are satisfied that probable cause exists. And
American officials seeking to enlist the cooperation of
foreign authorities in conducting a foreign search
cannot insist that the foreign legal system conduct
itself in accordance with domestic standards. Rather,
as then-Judge Kennedy recognized in United States
V. Peterson, 812 F.2d 486 (9th Cir. 1987), a foreign
"joint venture" search of an American citizen that
conforms to the requirements of foreign law should
be accepted as reasonable within the meaning of
the Fourth Amendment. Id. at 491; cf. Verdugo-
Urquidez, 494 U.S. at 279 (Stevens, J., concurring in
the judgment) (agreeing that "search conducted by
the United States agents with the approval and
cooperation of the Mexican authorities was not
`unreasonable' ").

---------------------------------------- Page Break ----------------------------------------

11

In the context of domestic searches, this Court has
recognized that the reasonableness of expectations of
privacy is grounded in "our societal understanding
that certain areas deserve the most scrupulous pro-
tection from government invasion." California v.
Greenwood, 486 U.S. 35, 43 (1988) (quoting Oliver v.
United States, 466 U.S. 170, 178 (1984)) (emphasis
added in Greenwood); see also United States v. Jacob-
sen, 466 U.S. 109, 122 (1984); Rakas v. Illinois, 439
U.S. 128, 143 n.12 (1978); Katz v. United States, 389
U.S. 347, 360-362 (1967) (Harlan, J., concurring). The
legitimacy of expectations of privacy in a foreign
country should similarly be judged by the socie-
tal understandings prevailing in that country. See
Verdugo- Urquidez, 494 U.S. at 278 (Kennedy, J.,
concurring) (noting the relevance of "differing and
perhaps unascertainable conceptions of reasonable-
ness and privacy that prevail abroad"). As one com-
mentator has observed: "A country's law provides
the surest source for ascertaining its societal norms
of privacy. The law of a foreign country, then, should
determine the reasonableness of an expectation of
privacy within that country."  Note The Extra-
territorial Applicability of the Fourth Amendment,
102 Harv. L. Rev. 1672, 1687 (1989) (footnote omitted).
An American citizen in a foreign country cannot,
therefore, legitimately claim any greater expectation
of privacy with respect to searches by that country's
authorities than that recognized by the country's
laws. Moreover, the American citizen cannot legiti-
mately claim an expectation of privacy as against
domestic law enforcement officers acting in concert
with foreign authorities that he did not possess as
against the foreign authorities acting alone. Cf. Cali-
fornia v. Greenwood, 486 U.S. at 4041; California v.

---------------------------------------- Page Break ----------------------------------------

12

Ciraolo, 476 U.S. 207, 213-214 & n.2 (1986). Hence, a
search conducted. by foreign law enforcement officials
and American agents abroad in compliance with the
requirements applicable to the foreign officials does
not violate the American citizen's reasonable expec-
tation of privacy.6
b. Contrary to the contentions of petitioners
Bennett and Harris (Pet. 5-6), the court of appeals'
decision in this case does not conflict with this
Court's decision in Reid v. Covert, 354 U.S. 1 (1957).
That case held only "that United States citizens
stationed abroad could invoke the protection of the
Fifth and Sixth Amendments." Verdugo - Urquidez,
494 U.S. at 259. In this case, the court of appeals
acknowledged that the Fourth Amendment applies to
"joint venture" searches of American citizens abroad.

___________________(footnotes)

6 Petitioners' alternative claim (McCarver Pet. 6; Barona
Pet. 17-18) `chat the foreign surveillance undertaken in this case
was conducted abroad purposefully to evade the need to
establish probable cause is equally without merit. Even if the
surveillance of petitioners Bennett and Villabona had been
conducted abroad for that purpose-and petitioners provide no
support whatever for that allegation-this Court has never
suggested that a lawful search is invalid because of the motives
of the law enforcement officers, see Horton V. California, 496
U.S. 128, 138 (1990), or that a lawful search would be invalid if
a court thought it were undertaken to circumvent otherwise
applicable restrictions.  For example, an officer may not
generally make a warrantless arrest of an individual in his
home, but nothing prevents the officer from avoiding the
warrant requirement by waiting to make the arrest when the
individual steps outside, Byars v. United States, 273 U.S. 28
(1927), does not assist petitioners. Byars held only that, in a
joint operation by state and federal officers, the United Sates
may not "avail itself of evidence improperly seized by [the]
state officers." Id. at 33 (emphasis added).

---------------------------------------- Page Break ----------------------------------------

13

It concluded, however, that the searches at issue
complied with the Fourth Amendment.
c. As Judge Reinhardt noted below (Pet. App. 44a-
45a), the Ninth Circuit held in United States v.
Verdugo-Urquidez, 856 F.2d 1214, 1228-1230 (1988),
rev'd, 494 U.S. 259 (1990), that the Fourth Amendment
requires American agents to obtain a warrant based
on probable cause in order to conduct a foreign s earth
of a foreign national. This Court categorically re-
jected the court of appeals' reasoning in that case,
and held that the Fourth Amendment does not apply
to a foreign search of a foreign national. Verdugo -
Urquidez, 494 U.S. at 274-275. Although this Court
had no occasion in Verdugo-Urquidez to decide
whether a foreign search of an American citizen must
be supported by probable cause, the Court cast a
skeptical eye on the proposition, Id. at 274 (noting
that court of appeals' "global view" of the Fourth
Amendment-including the court of appeals' holding
that "American agents would have to articulate
specific facts giving them probable cause to undertake
a [foreign] search or seizure''-would "plunge [the
Executive and Legislative Branches] into a sea of
uncertainty"). In any event, the existence vel non of
an intra-circuit conflict between whatever remains of
Verdugo-Urquidez and the decision of the panel in
this case is a matter for the Ninth Circuit to resolve,
and does not warrant review by this Court.
2. There is no merit to the claim (Bennett Pet. 8-
11) that the court of appeals' decision "runs afoul" of
50 U.S.C. 401 and "contravenes" Executive Order No.
12,333, 46 Fed. Reg. 59,941 (1981). That statute and
executive order address only the manner in which
intelligence activities relating to national security
and foreign policy may be conducted by certain de-

---------------------------------------- Page Break ----------------------------------------

14

partments and agencies of the government. Indeed,
Section 2.2 of Executive Order No. 12,333 states that
"[n]othing in this Order shall be construed to apply
to or interfere with any authorized civil or criminal
law enforcement responsibility of any department or
agency."
Nor is there any merit to the related claim
(Bennett Pet. 10-11, 14) that Congress's failure to
provide limitations applicable to law enforcement
searches overseas similar to those applicable to over-
seas intelligence activities deprives American citi-
zens who are subject to overseas law enforcement
searches of equal protection of the laws. Petitioners
do not contend that the governmental policies at issue
in this case distinguish among classes of American
citizens.7 Absent such discrimination, Congress may
address concerns that it has with respect to partic-
ular governmental functions without addressing such
concerns across the board:
The problem of legislative classification is a per-
ennial one, admitting of no doctrinaire definition.
Evils in the same field may be of different di-
mensions and proportions, requiring different
remedies. Or so the Legislature may think. Or
the reform may take one step at a time, ad-
dressing itself to the phase of the problem which
       
___________________(footnotes)

7 Congress has, in fact, restricted the overseas activities of
American officers or employees in the narcotics area, albeit
only with respect to "arrest[s] in [a] foreign country as part
of [a] foreign police action" and "interrogat[ion] or * * *
presen[ce] during the interrogation of [a] United States person
arrested in [a] foreign country." 22 U.S.C. 2291(c)(1) and (5).
Congress's determination not to restrict the overseas activities
of narcotics agents more extensively suggests that it did not
find such restrictions necessary or desirable.

---------------------------------------- Page Break ----------------------------------------

15

seems most acute to the legislative mind. The
legislature may select one phase of one field and
apply a remedy there, neglecting the others. The
prohibition of the Equal Protection Clause goes
no further than the invidious discrimination.

FCC v. Beach Communications, Inc., 113 S. Ct. 2096,
2102-2103 (1993) (quoting Williamson v. Lee Optical
of Oklahoma, Inc., 348 U.S. 483,489 (1955)).
In any event, petitioners did not advance any claims
premised on 50 U.S.C. 401 or Executive Order No.
12,333 in the court of appeals, and those claims are not
properly raised for the first time in this Court. See
United States v. Lovasco, 431 U.S. 783,788 n.7 (1977);
Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2
(1970).
3. Finally, petitioners Barona, Martinez, and Vil-
labona contend (Pet. 19-22) that the Court should
resolve in this case the applicability of the Fourth
Amendment to extraterritorial searches of resident
aliens and illegal aliens who have "substantial con-
nections" to the United States. The court of appeals
did not decide that issue in this case, however.8
Particularly in the absence of any demonstrated
conflict among the lower courts, there is no war-
rant for this Court to address the issue in the first
instance.

___________________(footnotes)       
                      
8 Although the court of appeals suggested that it could have
relied on petitioners' "fail[ure] to demonstrate that, at the time
of the extraterritorial search, they were `People of the United
States'" entitled to the protections of the Fourth Amendment,
the court chose "not to reach th[at] question because even if
they were entitled to invoke the Fourth Amendment, their
effort would be unsuccessful." Pet. App. 18a.

---------------------------------------- Page Break ----------------------------------------

  16

CONCLUSION

The petitions for a writ of certiorari should be
denied.

Respectfully submitted.

         DREW S. DAYS, III
           Solicitor General
          
		JOHN C. KEENEY
           Acting Assistant Attorney
          
		JOSEPH C. WYDERKO
           Attorney

DECEMBER 1995