William H. Rehnquist: We'll hear argument next in No. 88-1353, United States v. Rene Martin Verdugo-Orquidez. Mr. Robbins, you may proceed.
Lawrence S. Robbins: Mr. Chief Justice, and may it please the Court: This case involves the overseas search of a foreign national's residence conducted by American agents with the full permission and participation--
William H. Rehnquist: Overseas is a little strong for Mexicali, isn't it? [Laughter]
Lawrence S. Robbins: --Indeed it is.
Antonin Scalia: --exaggerate in your first statement, your first sentence, for pete's sake.
Lawrence S. Robbins: Well, it's extraterritorial. It's outside the United States and perhaps two or three other adjectives, and overseas is not probably one of them. In any event, the search was conducted, as I say, with the full permission and participation of the host country's officials. In its judgment below, the Court of Appeals for the Ninth Circuit imposed two sweeping constraints on such extraterritorial searches. First, the court held that respondent was entitled to invoke the protections of the Fourth Amendment to the United States Constitution. And, second, the court held that under that amendment the agents were required to secure a search warrant from an American court before they could conduct the search of respondent's premises. That broad, potentially far-reaching and in our view mistaken decision, arises from a not uncommon set of facts. On January 24th, federal marshals took respondent, a Mexican national, into custody in the United States believing that his two houses in Mexico would contain evidence of narcotics trafficking as well as his complicity in the assassination of a federal narcotics agent. DEA agents made arrangements to search his houses. After attempting first, without success, to reach the second Deputy Attorney General of the State of Mexico, the agents contacted the Director General of the Mexican Federal Judicial Police, thereafter spoke with more local police authorities, and from those persons secured permission to conduct the searches. Thereafter the agents, together with members of the Mexican police force, proceeded to respondent's Mexicali and San Felipe residences. Once there, the police and the agents conducted the searches. At the direction of the Mexican police commander who substantially dictated the scope, duration, and the actual operation of--
John Paul Stevens: Mr. Robbins, may I just ask this question? Did that Mexican official have the authority to authorize a search like this?
Lawrence S. Robbins: --As far as we know, he did, Your Honor. The record reflects that before giving his final okay, and before the actual search took place, he conferred with what the record shows is in Mexico called a delegado, who is an attorney present at the local MFJP station house, and who represents the Attorney General of the Republic of Mexico and supervises that--
John Paul Stevens: In other words, in Mexico the executive branch of the government has full authority to conduct whatever searches it thinks necessary. It doesn't have to have any warrant or judicial participation in--
Lawrence S. Robbins: --Well--
John Paul Stevens: --Is that your submission?
Lawrence S. Robbins: --No... well, our submission, Justice Stevens, of course,--
John Paul Stevens: Well, you said with the full authority of the Mexican official... I take it you're meaning it was clearly in compliance with Mexican law.
Lawrence S. Robbins: --No, as--
John Paul Stevens: I mean, would it matter if they asked the corner policeman, do you mind if we go in and search this house? Or, would that do... be any different?
Lawrence S. Robbins: --Well, I think it's possible that if the facts were very different from the ones we have here, it could be that asking someone who obviously has no authority or apparent authority would present a different case. This is not such a case. I can't--
John Paul Stevens: I mean, we don't know whether Mexican law requires anything like a warrant procedure or judicial participation--
Lawrence S. Robbins: --Well--
John Paul Stevens: --in the authority to conduct the search of a private home.
Lawrence S. Robbins: --We do know that Article 16 of the Mexican constitution purports to require a warrant under certain circumstances. We've indicated in our reply brief in response to an argument made by respondents that it is not at all clear whether under these circumstances a warrant would, in fact, had been required if this were a search governed by Mexican constitutional law. We, of course... it's our submission that Mexican constitutional law does not control this case and, in any event, it's our view that for all appearances sake, the Mexican officials that authorized this search had every authority that they were conveying to the American agents who did conduct it.
John Paul Stevens: What I'm really asking... you emphasized in your presentation that it was done with the permission of the Mexican authorities.
Lawrence S. Robbins: Correct.
John Paul Stevens: And I'm wondering if that is essential to your position. And, if so, do they have to be Mexican authorities who had the authority to grant the permission? That's--
Lawrence S. Robbins: I don't--
John Paul Stevens: --I just wonder how relevant it is to the analysis.
Lawrence S. Robbins: --Well, I think that the fact that there was permission--
John Paul Stevens: By somebody.
Lawrence S. Robbins: --Well, by someone who it was reasonable to suppose... reasonable to suppose... had the authority that they were conveying is relevant in our view to whether the search was reasonable, if you assume that the Fourth Amendment governs that search.
Speaker: Right.
Lawrence S. Robbins: We, of course, make no such assumption. I state that as a background fact because it bears on the second half of my argument, which will be addressed to the assumption arguendo that the Fourth Amendment does apply.
Sandra Day O'Connor: Well, Mr. Robbins, I take it your fallback position is that it doesn't matter whether Mexican law was followed in making this search. And you also make the argument that it doesn't matter whether the United States constitutional... you say that the U.S. Constitution doesn't apply here... at least the Fourth Amendment doesn't.
Lawrence S. Robbins: That's correct.
Sandra Day O'Connor: Does anything at all limit searches by U.S. officials beyond our borders of people that we're going to then prosecute, and, if so, what?
Lawrence S. Robbins: What limits our ability to exercise law enforcement jurisdiction overseas is in the typical case, our ability to secure the cooperation of the host country which is sovereign within its borders.
Sandra Day O'Connor: Well, under your argument, I guess, if our officials could get away with it, they could just not ask anybody and break into the house in Mexicali and do what they wanted.
Lawrence S. Robbins: Well, I think--
Sandra Day O'Connor: And your position, I take it, would be the same. That that evidence could be used?
Lawrence S. Robbins: --Well, our position is that the Fourth Amendment doesn't control the analysis of that question. And Your Honor's question asks, of course, about a regime that's not presented in this case, in which we have no cooperation, in which in fact we are flouting the sovereign jurisdiction that we're entering and behaving, I gather, with a form of, sort of random violence.
Antonin Scalia: But that's fair. That's on your own assumption. That is on your own assumption. That you didn't really need the permission of the Mexican authorities. I think your answer to Justice O'Connor's question has to be yes, that if these people are living in a regime that lets people break into their houses and do anything they want, we should benefit from that regime as well as anybody else. Isn't that your... isn't that essentially your position?
Lawrence S. Robbins: Well, I think there comes a point... and we've indicated that there is, as it were, a safety net to this argument provided by the Due Process Clause which operates in a very different way from the Fourth Amendment. That is to say, in the hypothetical presented by Justice O'Connor's question, if the agents went in there and behaved in a fashion that just bespoke utterly no limitations at all as it were, to choose a--
Sandra Day O'Connor: Well, they just entered the house without any authority from anybody and took the evidence? Does that shock your conscience?
Lawrence S. Robbins: --No, it doesn't. And I think--
Antonin Scalia: Why does the Due Process Clause apply abroad and not the Fourth Amendment?
Lawrence S. Robbins: --Because it's not applying abroad, and that's one of the important differences.
Antonin Scalia: It's not?
Lawrence S. Robbins: No. It applies--
Antonin Scalia: What shocks the conscience unless it's the breaking into the house abroad?
Lawrence S. Robbins: --I take it that the shock the conscience cases are talking about what shocks the conscience of courts that are asked to introduce evidence. And so that the Due Process Clause attaches to the introduction of evidence obtained in a way that a judge, a court, a reviewing court believes to shock the conscience. The Fourth Amendment doesn't operate that way. The admission of evidence in an American court is not a separate violation of the Fourth Amendment. The Fourth Amendment violation occurs, if it occurs at all, extraterritorially and the separate introduction of that evidence triggers no constitutional question at all.
Antonin Scalia: So, as long as you had such a break-in for intelligence purposes only and never tried to prosecute the individual, then at least in that situation you could... you could do it with impunity?
Lawrence S. Robbins: Well, impunity may make a greater claim that we wish to make here. The fact that the Fourth Amendment doesn't control that question doesn't mean, for example, that treaties that the United States and foreign countries have entered into has no bearing. It does not mean that statues passed by Congress such as 22 U.S.C. 2291(c) which imposes certain limited restrictions on law enforcement agents bears not at all. It simply means that the Fourth Amendment by it nature and in this context, does not supply the substantive restraints on that activity. And yet that is indeed our submission.
Anthony M. Kennedy: Does the Constitution control what United States officials do when they're abroad generally? Or never? Or sometimes?
Lawrence S. Robbins: Well, I think the answer is sometimes, and the answer is it depends. And, of course, it's the very fact that it depends--
Anthony M. Kennedy: When and what does it depend on?
Lawrence S. Robbins: --Well, if I might, Justice Kennedy, I'd like to turn to that directly because the central failing, we believe, of the court of appeals, is that they thought it never depends. They thought that the Constitution, as it were, provides a sort of universal declaration of rights of man. It applies whenever, wherever and against whomever government authority acts. And we don't believe that. We believe, as Justice Harlan suggested in his separate opinion in Reid against Covert that questions of extraterritoriality are ones of judgment and not compulsion. And from this Court's cases, we isolate, Justice Kennedy, three factors on which the question of judgment ultimately turns. The first of these is, what is the nature of the right that's being applied? What is the nature of the constitutional claim that the person seeks the benefit of? And in this respect it's our view that some constitutional rights do not attach to all persons by their very nature and do not apply in all settings by their very nature. And I think the Fourth Amendment in some ways is a paradigm case of a constitutional provision that makes next to no sense in most overseas settings.
Byron R. White: Well, you mean even if the house happens to be owned by a citizen of the United States?
Lawrence S. Robbins: Justice White, we think that is a very different case and one--
Byron R. White: Well, the way you put it, it wouldn't be.
Lawrence S. Robbins: --Well, no. I think... in any event, what I meant to say is that the Fourth Amendment presents, in our view, a constitutional provision whose overseas application ought to be by its very nature limited. And it may very well be, and we would not contest the point that it may be limited to citizens or persons with connections to the United States close to citizenship. And I base that on a couple of different features of the Fourth Amendment which give us the sense that it was not intended, as it were, to be a universal declaration of rights. We start with the text. The Fourth Amendment to the Constitution reserves its rights to a class of persons called "the people". We have tried to indicate in our brief a variety of reasons why we firmly believe this is not mere happenstance. It's not mere... it's not words that were chosen haphazardly. It was in fact... the language was in fact chosen precisely to confine the reach of the protections conferred. Like the preamble to the Constitution, it suggests a compact relationship between the claimants, the ones entitled to the benefits of that right, and--
John Paul Stevens: Yes, but, Mr. Robbins, there's a big difference between the preamble which says, "We, the people", and "the people" used in the Fourth Amendment which speaks in the third person, which may suggest that there third party beneficiaries to the compact that you described.
Lawrence S. Robbins: --Well, I think, for that matter, Justice Stevens, there were... there were third party beneficiaries to the preamble as well. Persons who were not the ratifiers are clearly entitled to the benefits. But I think--
John Paul Stevens: And so how does the word people tell us who the third party beneficiaries are?
Lawrence S. Robbins: --Well, the word... it's not just the word people, it's "the people". And I think this is not accidental. Let me suggest two reasons why I think so. First of all, if you go back and take a look at what the contemporary versions of the... that were available for the Fourth Amendment to choose from... for example, Your Honor's dissenting opinion in New York Telephone suggested that the Fourth Amendment derives... that the closest precursor was the Massachusetts Bill of Rights. Well, the Massachusetts Bill of Rights was phrased "every subject". When... when Richard Henry Lee, for example, tried to append a Bill of Rights to the Constitution before it was submitted to the ratifying conventions, he phrased it as "the citizens". When Patrick Henry, in the ratification convention in Virginia came up with a version of the Fourth Amendment, he limited it to "every freeman". So, there was a sense, I think, at the time of the framing of the Fourth Amendment, of confining the scope of its protections, a point I think--
John Paul Stevens: Except they rejected those drafts.
Lawrence S. Robbins: --I'm sorry?
John Paul Stevens: They rejected those drafts.
Lawrence S. Robbins: Well, it's... it's... they didn't choose any of those. But nor did they choose the Fifth Amendment's "no person". Nor did they choose the Sixth Amendment's, the "right of the accused in all criminal cases. " And what's more--
Antonin Scalia: And they couldn't have used "every subject", or they wouldn't have been likely to use "every subject", would they? In fact, "the people" is probably the best equivalent in democratic terms of every subject.
Lawrence S. Robbins: --Well, I think, at a minimum, it conveys the sense that the court of appeals, which viewed the Fourth Amendment as a universal declaration of rights, was considerably off base. The last point I want to make and then I'll move to the other two factors, Justice Kennedy, that I think inform the analysis is... it's worth comparing the other provisions in the Bill of Rights that also use the phrase "the people" because they cannot be understood unless you recognize that "the people" was a limiting concept. The other provisions that use that phrase are the Ninth and Tenth Amendments which make utterly no sense except in terms of this compact that I'm describing; the Second Amendment, which refers to the right to bear arms, which can't plausibly be assumed to be a right of persons overseas to have arms; and finally, a portion of the First Amendment which speaks of the right to peaceably assemble and petition the government. Again, the notion that one comes back to is the sense of a compact relationship with the government that receives some of the power but in which the people reserve the balance that is not extended.
Anthony M. Kennedy: Well, of course, in order to make this complete, the Third Amendment says no soldier shall in time of peace be quartered in any house. And I assume that under your semantic analysis it does apply overseas.
Lawrence S. Robbins: Well, I'm not... I'm not sure that it does. But, Justice Kennedy, let me hasten to add that I do not rely on... I don't know if I would call it semantics... but at least purely a textual argument because I believe that the purpose of the Fourth Amendment is one that makes it awfully difficult to suppose it was intended to provide rights in every quarter of the globe. After all, the Fourth Amendment, as this Court and every other court has said more than once, is designed to protect expectations of privacy. And that concept, I suggest, is unusually sensitive to local tradition and culture. It's difficult for courts to adjudicate. And what's more, it seems to us that adjudication of what is a reasonable expectation of privacy in an American court in a contested criminal litigation or any other kind is perhaps unseemly, perhaps even improper, raising, I suppose, even act of state doctrine questions. Now, that's just the first inquiry. What is the nature of the right? But from this Court's cases, we think that there are two other factors that again move us away from this universalist view taken by the court of appeals. The second is what is the relationship between the United States and the place in which the constitutional claim arises? The fact that the search or seizure takes place in a foreign country, in a separate sovereignty, makes the case, I think, for overseas application of a constitutional right a very difficult one to win on. And that's true for any number of reasons. The fact that this is a separate sovereignty, Mexico, indicates that it's their laws and not ours that ought to presumptively control disputes. Our Constitution, by its nature, does not seem designed to have widespread overseas application. The preamble which Justice Stevens adverted to before uses language that just doesn't sound like it was written for Mexico, France, The Netherlands, and the rest of the world. And finally,--
Antonin Scalia: Well, that's all true, but all it takes to accommodate that is to say that unreasonable... I mean, the only governing word it has is "unreasonable". Everything is okay if it's reasonable, right? And all you have to say is that it's not unreasonable if it complies with local law, wherever that is.
Lawrence S. Robbins: --Well,--
Antonin Scalia: And that would mean everything would be just the way you would like it.
Lawrence S. Robbins: --Well, I think if what Your Honor is saying is that we can build into the reasonableness investigation the context, the fact that this is an overseas search, I couldn't agree more. I think that's yet a separate and entirely independent fallacy of the court of appeals decision.
Antonin Scalia: It also eliminates the argument you just made that if we acknowledge that the Fourth Amendment applies abroad, we're letting ourselves into a lot of silly results. That obviously you have to take foreign manners and customs into effect. I'm saying you can read the Fourth Amendment to apply abroad and still take them into effect.
Lawrence S. Robbins: Well, I think you can. I guess our view is that that feature of the Fourth Amendment makes it seem inapplicable overseas. But we freely concede it also bears on how you would analyze it should you conclude that it does apply overseas. I mean, it seems to me these defects, the inapplicability and the inappropriateness of applying the doctrine, weigh in both at the threshold... does it apply +/? and at what Justice O'Connor referred to as our fallback position... how does it apply? Finally, the last factor that we think is relevant is what is the relationship of the claimant to the United States? This is a familiar inquiry, one raised in Johnson against Eisentrager, more recently in Landon against Plasencia and the basic notion is that, "aliens are accorded a generous and ascending scale of rights as he increases his identity with our society. " This is a point that comes up in a great many of the immigration cases. And the notion is, again, the closer the connection to the United States of citizenship or naturalization or permanent residence, the greater the claim for the protections of the social compact. Now, viewing these three factors as a whole in this case I suggest that the solution is not difficult to find because respondent is at the wrong end of each of the three spectrums that I've suggested. The Fourth Amendment, first of all, is, we think, peculiarly out of place in an overseas context and peculiarly unwarranted for overseas application. Second, this is a completely separate sovereignty. Mexico is independent of the United States. It's a wholly extraterritorial search unlike, say, searches on the high seas or in the Customs waters or in territories in which the United States exercises substantial sovereignty. And, finally, this is a claimant with little or no ongoing connection to the United States, little or no membership, if any, in the United States community. Those factors, we think, taken as a whole, confirm our view that the court of appeals' approach and its result in this case was wrong... that the Fourth Amendment simply doesn't apply. Now, let me hasten to add... I mentioned this... I adverted to it before, I believe, Justice Stevens, in answer to one of your questions. The fact that the Fourth Amendment doesn't provide the controlling restraints on conduct does not mean that all foreign nationals are out of luck when there is some kind of activity of American agents that is thought to be out of bounds. Congress has, and has in fact exercised the power to impose restraints on agents. I referred before to 22 U.S.C. 2291(c) which restricts law enforcement officers in U.S. persons abroad. As I said before, also there can be treaties that restrain the exercise of American power overseas and I suppose as a fallback position as well the Due Process Clause, which again regulates the admission of evidence internally... a domestic restraint... may also exercise a protection of last resort. But even if the Fourth Amendment generally applies, we believe that the court of appeals erred in--
John Paul Stevens: Mr. Robbins, may I just ask one other question? Isn't there also an intermediate position that even if it does not generally apply... you say this gentleman had no ongoign relationship with the United States, but if you're ultimately successful, he will have an ongoign relationship with the United States-- [Laughter]
Lawrence S. Robbins: --Well--
John Paul Stevens: --and he certainly has some relationship and was physically present in the United States at the time of the search.
Lawrence S. Robbins: --Well, for that matter, Justice Stevens, if the indictment is correct, he's also had... he's made periodic trips here for narcotics trafficking; he's sent shipments of marijuana to the United States. He may well, for all we know, have cash saved in bank accounts in the United States.
John Paul Stevens: No, but the point I really am making is that your argument perhaps is less strong in a case in which the search took place after the owner of the premises was physically in custody and under indictment in the United States.
Lawrence S. Robbins: It is undoubtedly the case that had he never been here our argument would be that much stronger.
Speaker: Yeah.
Lawrence S. Robbins: But his presence as an involuntary criminal defendant is not the kind of presence that Johnson against--
Speaker: No, but it's the kind of--
Lawrence S. Robbins: --It's not Johnson against Eisentrager presence.
John Paul Stevens: --No, but it's the kind of presence that gives rise to certain constitutional rights, such as the right to counsel.
Lawrence S. Robbins: No question about it. But those are domestic rights, rights that apply in the United States at trial or prior to trial. They are not restraints on the overseas application of American power.
John Paul Stevens: Well, the right to object to the introduction of illegally-seized evidence is a trial right, I suppose.
Lawrence S. Robbins: But it... but, again, the Fourth Amendment is not--
Speaker: I understand your point.
Lawrence S. Robbins: --separately violated in the United States. It is, again, an extraterritorial application. Let me quickly address the Warrant Clause issue because it's our submission that even if the Fourth Amendment applies, surely the Warrant Clause does not. The court of appeals reasoned that to relieve the government of the warrant requirement... quote... would be to treat foreign searches differently from domestic searches just because they are foreign. But, of course, foreign searches are different, and that's just the point. They call for different treatment under the Fourth Amendment. There are in this setting special needs beyond the normal need for law enforcement, and a warrant requirement is therefore inappropriate, and I say that for two reasons. First, as this Court suggested in its Skinner decision, a warrant would do little to further the aims of the Warrant Clause. It would not empower the agents to go forward. It would give them no authority in Mexico, or, to use the court of appeals', I think, elegant characterization, it would be a dead letter in Mexico. It would not provide meaningful protection on the scope of the search. And this case indicates just why that's so. Because the actual operation is apt to be in the control of the host country's officials. And just as the Mexican commander ordered the agents to gather up the remaining documents and look at them later, so too can it not be expected that a warrant would have that confining force. Apart from the fact that a warrant could not fulfill its traditional missions, in this setting the burden of obtaining a warrant is likely to frustrate the governmental purpose behind this search. There is no U.S. magistrate who is authorized to issue one. We've still not been told by anybody who the agents were supposed to go to see in order to get this warrant that they were supposedly supposed to execute. A warrant would certainly interfere with their ability to do their job which requires them to obey the restrictions imposed by the host officials and not follow the competing agenda set by the United States magistrate. In this case we believe the proper approach is one of reasonableness, the basic requirement of the Fourth Amendment. And here the agents' behavior was evidently reasonable. They sought approval at the highest levels of the Mexican government available. They secured that approval. They participated with the Mexicans in the conduct of the search, and they obeyed the dictates imposed by the host during the search. We believe, in short, that questions of extraterritoriality are not on/off switches, as the court of appeals supposed. There is and must be considerable room for judgment. It this a territory in which constitutional protections makes sense? Is this claimant within the constitutional zone of interest? Do the rights asserted lend themselves to overseas application and even if a right applies, must it apply in exactly the same way as it does domestically? These are complicated questions to be sure, but the court of appeals never asked them. It believed, instead, that the Constitution applies everywhere, to everyone, regardless of circumstance. Had the court of appeals asked the right questions, it would not have suppressed the tally sheets in this case. This judgment should be reversed. If I may reserve the balance of my time.
William H. Rehnquist: Very well, Mr. Robbins. Mr. Pancer, we'll hear now from you.
Michael Pancer: Mr. Chief Justice, may it please the Court: The exact question presented to this Court is whether or not a person who is incarcerated in the United States, facing charges in the United States, has a Fourth Amendment interest in their residence outside the United States when a decision to search that residence is made by a United States agent in the United States and he is hunting for evidence to be used for the very charges that the person incarcerated is facing in the United States. That is the specific question and we are mindful of the rule of this Court enunciated by Justice Frankfurter in Reid versus Covert that says that this Court will not formulate a rule of constitutional law broader than required by the precise facts to which it is to be applied.
William H. Rehnquist: Do you think the Ninth Circuit was mindful of that rule?
Michael Pancer: I think that the precise rule that we could draw from the case... yes, my answer would be yes, that the precise rule we could draw from that case is that since, in this case, there was no exigency to prevent the officers from getting a warrant, they should have got a warrant. That's how I understand the rule. I don't understand it to be as broad as counsel for the government.
Antonin Scalia: Who do you think they should have gotten that warrant from, in particular?
Michael Pancer: I don't think--
Antonin Scalia: Puerto Rico?
Michael Pancer: --I don't think it's a difficult question. The defendant, Mr. Verdugo, was in custody in the Southern District of California. The agent, when he made his decision to search, was present in the Southern District of California. There was a magistrate present. The Assistant United States Attorney assigned to prosecute Mr. Verdugo was also in the Southern District of California. I think--
William H. Rehnquist: It's the defendant's presence in the Southern District... you don't give notice to him of a motion to file a search warrant.
Michael Pancer: --No, but if you want to go to a magistrate... and that's how I understood the question... what magistrate would you logically go to or which judge... I would think that since the agent, the defendant, and the prosecuting authority were all in the Southern District of California, it would certainly make sense to go there. Now, there could be--
Antonin Scalia: Well, it's as good as any.
Michael Pancer: --Well, also, I think--
Antonin Scalia: You don't think the Mexican authorities would be a little bit annoyed with an American official issuing a document that authorizes an American law enforcement officer to search their territory? You don't think that Mexico might be annoyed at that?
Michael Pancer: --I think they would be very annoyed if that document was presented to them by the agents as something that said this gives us the right vis-a-vis the Government of the Republic of Mexico to take action in Mexico. They'd have every right to be outraged. No. All we're saying that the warrant does is create a relationship between the evidence and the court in the United States. It can't authorize the agents to search if the Mexican authorities don't want them to or don't give them permission. But it can say that this search is legal according to the laws of the United States. And that's all we're saying that the warrant accomplishes. Clearly, it can't force the Mexicans to let the agents search.
Antonin Scalia: Well, that's an unusual warrant then, isn't it? Because, I mean, a normal warrant is something that is presented to the person in control of the premises which shows the legal authority. And the person, if he resists the execution of that warrant, is subject to punishment. So you're talking about a very... I mean, you could call it a warrant if you like. But it's... it's a strange form of warrant, isn't it?
Michael Pancer: In that sense it is different, but requiring a warrant fulfills the same purposes--
Antonin Scalia: No, it--
Michael Pancer: --as having a warrant in the United States. Clearly because--
Antonin Scalia: --It may be but it's not a warrant as we have generally known warrants, what you're talking about.
Michael Pancer: --It certainly has the difference that the Justice has mentioned.
Anthony M. Kennedy: In fact, Counsel, it would be rather odd, wouldn't it, for this Court to require the issuance of a warrant that's not permitted by the rules?
Michael Pancer: No, I think it is permitted pursuant to Rule 41. Rule--
Anthony M. Kennedy: Is the... well let's look at that. Doesn't the property have to be located in the district where the magistrate or the state court sits?
Michael Pancer: --That would be true if we just looked at Rule 41(a). But that rule... I think in the New York Telephone case... has been held to have a broader application and the court has been deemed to have inherent powers to issue orders that will accomplish a rational aim of the court. For example, there was no specific provision, as I understand the New York Telephone Company case, that permitted the court to issue a warrant for a pen register and to require the phone company to help out and lend equipment so that a pen register could be affixed to pay telephones. But, yet, Rule 41 was read not to limit what the courts may do but to spell out some of the kinds of warrants that a magistrate could issue or a district court could issue, but not to limit it, and that the court certainly would have inherent power to issue such an order. The same I think was true in the Torres case, which was cited by the district court in this case, in which the law enforcement wished to have an order for indoor surveillance and there was just no specific provision but it was held to be encompassed by Rule 41 and by the inherent power of the court to issue orders to accomplish irrational aims.
Antonin Scalia: Do you have cases that say they have authority to issue it beyond their jurisdiction? That in that particular respect they can exceed what the rule says?
Michael Pancer: There is no case that says that they can or cannot. But the reading of the language, I think, in the New York Telephone Company case and the reading of the language in Torres seems... they didn't seem to be concerned with a problem of territorial in this because it didn't come up in those instances. But the language of the case seems to say that it wouldn't matter that the territorial limitation mentioned in Rule 41(a) wouldn't prevent the court, due to its inherent power, to issue an order outside of the territory.
Byron R. White: No, but, you know, if you want to... if you are trying a person in the Southern District of California and you want to search his house in Tucson, you don't get a warrant from... who do you get the warrant from?
Michael Pancer: It would be the magistrate in Tucson or the court in Tucson?
Byron R. White: Why?
Michael Pancer: I think because Rule 41(a) talks about specifically--
Byron R. White: Well, it is territorial then, isn't it?
Michael Pancer: --Pardon me?
Byron R. White: It is territorial.
Michael Pancer: Rule 41(a) is. I only mentioned the other case to say that I don't think it restricts the court... Rule 41(a) restricts the court in issuing orders or else--
Byron R. White: Well, it restricts it in the sense that a warrant issued in Southern California wouldn't authorize a search in Tucson.
Michael Pancer: --That's correct, but I don't think it would restrict a court from issuing a warrant to search or a finding of probable cause to search a residence in Mexicali in Mexico. And there is nothing in the rule that says that it would, and I think the holding of New York Telephone indicates that the court would have that power. But I think I should hasten to add, if this Court finds that the warrant requirement applies, the fact that the United States Congress has not set up a system whereby a warrant could be obtained, is certainly not a defense for the government in obtaining a warrant. If a warrant is required, then the government must get a warrant or they must not search. I am suggesting there is a way they could have done that.
Thurgood Marshall: Is a warrant in this record?
Michael Pancer: There is no warrant.
Thurgood Marshall: I mean, what... whatever papers that the United States officers used, are they... copies of them in this record?
Michael Pancer: Justice Marshall, there were no papers. They used no papers. Agent Bowen, the agent who decided to search, sat in his office and said, I'm--
Thurgood Marshall: What are we talking about a warrant for?
Michael Pancer: --Whether or not they should be required to get a warrant, and we're saying that they should have been required to obtain a warrant. But there was no warrant in this case.
Thurgood Marshall: They should have been required to obtain a warrant?
Michael Pancer: Yes.
Thurgood Marshall: And what would the warrant say?
Michael Pancer: That the... it would specifically identify the places to be searched, list specifically the items that could be seized, and specifically set--
Thurgood Marshall: Would that have any relation to the laws of Mexico?
Michael Pancer: --Well, in fact it would, because the Article 16 of the Constitution of the Republic of Mexico is very similar to our own warrant requirement and specifically requires that a search warrant be obtained. I disagree with counsel when they say that this search was authorized in Mexico. It was not because no warrant was obtained, and we submitted an affidavit that is part of the record in this case--
Thurgood Marshall: Well, I thought he said that they checked with some assistant attorney general or somebody.
Michael Pancer: --Well, they checked with another law enforcement official and they said we'd like to search and this fellow police officer said, sure, we'll help you out. That's basically what happened. But nobody told them that this was legal. It's just another police officer that says, sure, we'll help you out and we'll do the search. According to the Constitution of Mexico, the search was not legal and the agents were guilty of the crime of excess, according to the laws of Mexico.
Thurgood Marshall: Then I assume the agents are guilty of violating your client's rights.
Michael Pancer: That's correct.
Thurgood Marshall: And subject-- --Did you ever seek-- --to suit. Did he ever bring any suit against them in Mexico? That was my question.
Michael Pancer: No civil suit was ever filed in Mexico that I know about.
Thurgood Marshall: Or any place?
Michael Pancer: No... no... I know of no civil suit.
William H. Rehnquist: So he did not seek to vindicate the rights you say were denied under Mexican law?
Michael Pancer: He did not seek to sue U.S. agents. Of course, he was incar--
William H. Rehnquist: Did he seek to sue the Mexican agents whom you say violated his rights?
Michael Pancer: --I don't believe that he did. He has an attorney in Mexico. But I don't believe that he did. Of course, he was here incarcerated in the United States well before the search.
Sandra Day O'Connor: Suppose we think the warrant requirement does not extend to searches beyond our borders, would we then have to... if the Fourth Amendment applies... look to a reasonableness test?
Michael Pancer: Well--
Sandra Day O'Connor: And how would you measure that? It wouldn't necessarily be measured by the law of a foreign country.
Michael Pancer: --No. No, it... well, in the Peterson case that was... the Ninth Circuit case... that was one of the things looked at to determine whether or not the search complied with the Fourth Amendment. But if we're looking... and I'm clearly urging this Court to say that a warrant must be obtained when the sanctity of a home is being violated, that there has never been a broad rule from this Court saying that homes can be entered without a warrant.
Sandra Day O'Connor: Well, we understand your argument. Now, how about getting to my question.
Michael Pancer: Yes. Well, this search we are saying for many reasons was not a reasonable search if we are not going to apply the warrant requirement. It was not reasonable, we are saying, because of law enforcement official Agent Bowen made that decision on his own, without contacting anybody from the Department of Justice, without contacting the Assistant United States Attorney who was assigned to prosecute Mr. Verdugo in the Southern District. He even said that he didn't contact his own supervisor, but had he contacted his supervisor and his supervisor said no, he still might have conducted the search. He never contacted any--
Antonin Scalia: I don't understand that. There's a... do you have to consult with a certain number of people before the search can be reasonable? What difference does it make whether he contacted the supervisor or not?
Michael Pancer: --Well, it was considered by the district court in that had he contacted some official, he might have realized, one, that there was a warrant requirement in Mexico that he could have complied with; he might have learned that as far as the Department of Justice is concerned maybe a warrant or an order of probable cause should be obtained here. And it doesn't seem that we just want a law enforcement official to be able on his own to put together a raiding party and go into Mexico, ask for help and search. But that--
William H. Rehnquist: The traditional rule... an objective test... you know, if you're right objectively, I thought it didn't make any difference how many people you consulted. And if you're wrong objectively, consulting a number of people beforehand shouldn't validate the thing.
Michael Pancer: --Well, we are saying that he was wrong objectively in that he didn't comply at least with the warrant requirements--
William H. Rehnquist: But the failure to consult adds nothing to the objective.
Michael Pancer: --We urge that had he consulted, he might have learned that there was a warrant requirement in Mexico. So in that sense we think it's on point. He never contacted--
Antonin Scalia: --to know if his supervisors were smarter than he was. Maybe, you know, he may have been smarter than his supervisors, in which case the consulting would be counterproductive. We just don't have any such rule.
Michael Pancer: --Okay. He never contacted any judicial officer in the Republic of Mexico, only other law enforcement officials. These are all reasons why we think that the search was unreasonable. He enlisted the aid of a corrupt Mexican Federal Judicial Police officer to go on this raiding party that--
Speaker: How do you know that?
Michael Pancer: --We presented evidence at the district court from two other agents who were also there that this agent was corrupt, this MFJP commandante. We attempted to present more evidence--
Byron R. White: Is that what the district court found?
Michael Pancer: --No, it's what the agents testified to. The district court would not let us pursue that any further, saying that this went to an issue of good faith and good faith was not an issue in the case. On this raiding party that went to search in Mexico was a fugitive.
Byron R. White: Why... what do you mean good faith isn't an issue in the case?
Michael Pancer: I say the district court found that good faith was not an issue so we weren't--
Byron R. White: You mean there was good faith?
Michael Pancer: --No. The court found that, one, there was not good faith, but that good faith was not relevant because we don't have the situation as we do in Leon where the agents were relying on a neutral and detached magistrate. We have a far different situation. So the court found, one, that good faith was not relevant but if it were--
Byron R. White: Do you think Leon is limited to those situations where you have a warrant that was issued by a magistrate?
Michael Pancer: --No. Clearly it is not, but the court found that the reasoning in Leon would not apply when the officers, as they were in this case, relied on the word of this Mexican commandante. He felt that they did not have a good faith... the court found--
Byron R. White: You mean they found that... they thought that... the court thought that the agents knew this man was corrupt?
Michael Pancer: --Two of the agents testified that they knew that he was corrupt. We were getting into when they learned of his corruption when the court cut off that inquiry because the government objected to it.
Byron R. White: Did they know he didn't have any authority to do what he was doing?
Michael Pancer: No, just that he was corrupt.
William H. Rehnquist: What does the term corrupt mean when you use it?
Michael Pancer: A person who was willing to take, in this context, bribes to do illegal activities is the way it was presented.
William H. Rehnquist: Well, supposing a policeman serves a warrant... can the defendant defend against the search and claim it's illegal on the grounds that the policeman had taken a bribe in an unrelated situation?
Michael Pancer: No, no, this... no, we are only... this was only discussed in the district court in the context of a good faith argument by the agent.
William H. Rehnquist: Well, was it suggested that the American agents who participated in this particular search in Mexico had themselves tried to bribe this agent?
Michael Pancer: It was suggested that prior to the search that U.S. law enforcement officials who were involved in this search were involved with getting police officers in Mexico to engage in the illegal action of kidnapping Mr. Verdugo and sending him back to the United States from which--
William H. Rehnquist: Well, that's a lot different than being very directly tied into this particular search.
Michael Pancer: --It relates to the kinds of activities in which the U.S. law enforcement agents were engaged and when did those activities in connection with the search, i.e., the apprehension of Mr. Verdugo, was to get the law enforcement there to commit an act illegal in Mexico for which charges were issued in Mexico. Those officials then came to the United States... those Mexican police officials, where they're being protected. That's part of the record of the district court.
Speaker: What does it prove?
Michael Pancer: It proves that it is one thing to say that officers could rely in good faith on a neutral and detached magistrate, but it is far another thing to say that they have some good faith reliance on a person they know to be corrupt. In addition, as I say, on this raiding party that went to search was a fugitive from justice in the United States. And he was a fugitive from a companion case to the case in which the defendant in this case was charged.
Byron R. White: Of course, that wasn't the basis for the Ninth Circuit's holding.
Michael Pancer: No. I am trying to list all of the things that came out that we think made this search unreasonable, responding to Justice O'Connor's question. One of the houses searched in Mexico was the wrong house. It wasn't the home of Mr. Verdugo. Our agents went inside the residence of a family named Tofoya. In that home, Mrs. Tofoya was intimidated by Mexican officials when she first said she did not know who Mr. Verdugo was and that he didn't live here. And after a search of that residence, which was the wrong residence, and some intimidation, they found... Mr. Tofoya was able to lead the agents to where Mr. Verdugo's residence in San Felipe was. The--
Byron R. White: Do you think your rule would apply to an arrest or a detention in Mexico of an alien by United States police which would be illegal in the United States... would they have to have probable cause in United States terms to detain him?
Michael Pancer: --We would have no remedy if that were to happen.
Byron R. White: Well--
Michael Pancer: I think that's clear.
Byron R. White: --let's assume they detain him, not only detain him but they bring him to the United States. In the meanwhile, they get some admissions from him.
Michael Pancer: Well, I think we'd have some remedy as to the admissions. As to him being in the United States--
Byron R. White: As to the admissions obtained from him in Mexico?
Michael Pancer: --Yes, I think that there... and I don't have the case before me, but there are cases that say the Fifth Amendment would apply to the questioning of a person, whether it took place in this country or not. But there would be no remedy as to his being here in the United States.
William H. Rehnquist: Do you think the Fourth Amendment applied to American forces in Mexico during the Mexican War?
Michael Pancer: I think that there have been cases that distinguished times of war enemy alienage from a situation in which we--
William H. Rehnquist: To say that the Fourth Amendment didn't apply in those situations?
Michael Pancer: --I would not--
William H. Rehnquist: Well, but I thought you were talking about cases?
Michael Pancer: --No, I'm sorry... I would not say that. But I believe that the Johnson case, which was cited by counsel, turns on the issue of enemy alienage. And that we're not disputing that... those cases.
William H. Rehnquist: So you don't agree with the Ninth Circuit that the Constitution or the Bill of Rights applies equally everywhere in the world that the United States is acting?
Michael Pancer: Well, I... as a general proposition, I would agree with that... however, I will recognize there are cases that are to the contrary and I'm thankful that we need a much more limited rule to prevail in this case.
Antonin Scalia: Well, but when you say it's a Fourth Amendment it doesn't... you know, it can no longer be controlled by Congress. It's an absolute. Suppose the drug problem is so severe that with the full authorization of Congress the executive sends a battalion of troops to a foreign country that has been absolutely uncooperative in our efforts to prevent the exportation of drugs to this country? It's not a war. Just sends a battalion and the object is to search and destroy any heroin production facilities. And they have authority to go and search and destroy.
Michael Pancer: Well, to the extent they would try to come back with evidence from that raid and use it in the United States, I think Reid versus Covert in addition--
Antonin Scalia: Oh, no, but wait. They shouldn't be doing it at all. I mean, I'm advising the President... I'm counsel to the President. He says, you know, Congress has passed this statute, I think we should do it. But if you tell me it's a violation of the Fourth Amendment, I don't care whether I'm introducing evidence or not. I certainly shouldn't do it if it violates the Fourth Amendment.
Michael Pancer: --Well, I think it does violate the Fourth Amendment.
Antonin Scalia: Right. So it can't be done then?
Michael Pancer: I would say it certainly viola--
Antonin Scalia: Absolutely. There's no way, right?
Michael Pancer: --I would agree.
Byron R. White: But with a treaty... they make a treaty with Mexico and they agree that searches can be made of properties in Mexico pursuant to procedures that wouldn't even come close to complying with the Fourth Amendment. Do you think that treaty is valid?
Michael Pancer: No, I don't think the treaty would be valid if it contradicts the Fourth Amendment. But, again, I don't need to go that far to prevail here. There is... there is no such treaty. In fact, there is the Mexican Constitution, which is akin to our own in terms of what it requires from searching officers. This... for the first time during--
Anthony M. Kennedy: I take it that if foreign police officials ask American DEA agents to cooperate with them in a search, under your view the American agent has to get a warrant before he does that?
Michael Pancer: --A search in this country?
Anthony M. Kennedy: No. A search in a foreign country.
Michael Pancer: If he intends to use the evidence in the United States... we're talking about a situation--
Anthony M. Kennedy: Well, suppose they don't know. Again, would you advise that officer that he's acting illegally if he cooperated with foreign police in search of a foreign residence without... and he has no warrant?
Michael Pancer: --Not necessarily because I think the Fourth Amendment, by case law, and by its terms applies when officers... most specifically when officers are seeking to get evidence to introduce in the United States against a defendant in the United States. Many cases have mentioned that that is the specific protection that--
Anthony M. Kennedy: So the violation is the introduction of the evidence?
Michael Pancer: --No, the violation... well, the remedy for the violation is to prevent--
Anthony M. Kennedy: I'm asking whether there is a violation. If you are a law enforcement official who is conscientious about his constitutional obligations, you would not assist foreign police unless you had a warrant from a United States court?
Michael Pancer: --Or unless I did not intend to obtain evidence to bring back to the United States, I think that I would have to say--
Anthony M. Kennedy: So, in your view, the Fourth Amendment is limited to those instances where there is a search and the evidence is brought to a United States court... there is no violation?
Michael Pancer: --In a foreign--
Anthony M. Kennedy: There is-- --Well, what if a plaintiff--
Michael Pancer: --In a foreign country--
William H. Rehnquist: --What if a plaintiff brings a suit under 1983... the same hypothesis as Justice Kennedy's. No evidence was introduced to him but he's been the victim of a seizure of property that he says violates the Fourth Amendment because, as you say, the Fourth Amendment applies in that situation. How does the court rule?
Michael Pancer: --I would think that if there has been a violation of the defendant's rights, then he would have the right to sue. I hope I have properly answered Justice Kennedy's question. I think that the joint venture doctrine determines when there is sufficient involvement of U.S. officials to call the Fourth Amendment into play. And if it is a joint venture which is ordinarily the situation when U.S. agents are seeking evidence to bring back to the United States, then there is a violation if the search is unreasonable or if no warrant is obtained.
Byron R. White: Well, of course, you don't need to be seizing evidence to violate the Fourth Amendment by entering a house.
Michael Pancer: No.
Byron R. White: You enter a house illegally and you're there wrongfully and you tip over a television and break it and you get sued.
Michael Pancer: If I said to the contrary, then I misspoke myself. Clearly, there is a violation when the illegal search takes place or when the joint venture takes place without a warrant or without probable cause.
Anthony M. Kennedy: So the way we have the case now is that there can be no cooperation with foreign police officials by American police officials unless they have a warrant. That's your position?
Michael Pancer: No joint venture. That would be correct. Absent exigency. Now, if our agents are up in the mountains of Columbia and there's no telephone handy and they have to make a decision to search very quickly, then clearly it would be reasonable for them not to get a warrant. And that may be true in many situations.
Antonin Scalia: What court do they seek a warrant from?
Michael Pancer: I think that they could call--
Antonin Scalia: Having no prisoner back in any particular jurisdiction, who should they call?
Michael Pancer: --Well, as I say, in that situation if they could call, then I would think that they would call a magistrate in the jurisdiction in which they intend to bring the evidence, the reason for the joint venture, or in Washington, D.C. or contact some judge. I don't think it's key where. If they're required to get a warrant, they can get the... they must--
Antonin Scalia: It's called Warrant Central. [Laughter]
Michael Pancer: --I think that the government would concede that Mr. Verdugo, here in the United States at the time this search took place, had the benefit of every other one of the Bill of Rights. He had the First Amendment protection, he had the Fifth Amendment protection, the Sixth Amendment. But, Mr. Verdugo, they would say to him, you don't have the benefit of the Fourth Amendment. And yet, though the burden is on them to justify warrantless searches, they have presented no reason, no exigency to this Court as to why they should be permitted to go into a residence without a warrant.
Sandra Day O'Connor: Mr. Pancer, in your brief there is some argument to the effect that this evidence was taken after the respondent was in the United States and it was taken from a briefcase, something to that effect. Were those arguments raised below?
Michael Pancer: No, they were not.
Speaker: Okay.
Michael Pancer: And we would submit those arguments. When counsel argued previously, for the first time we were able to determine that the government held that if this were a U.S. citizen in custody, then the Fourth Amendment would apply and possibly the government would have to get a warrant. But many cases have held that this kind of discrimination between aliens and U.S. citizens is inherently suspect and clearly in this case there would be no reason under the government's reasoning for a different rule as to aliens versus U.S. citizens whose property is being searched outside of the country. In addition, there is no rational reason why the Fifth Amendment or the Due Process Clause would apply as opposed to the Fourth Amendment in these situations, and the government has presented no theory. Mr. Verdugo's connection to this country was that he was forced to be here. He was arrested and forced to be in this country. He has been tried and convicted in another case and is serving 240 years. He will be here for a long time. He has as strong a connection to this country and did at the time of the search as any United States citizen had, and we think that given no offer by the government as to why the warrant requirement shouldn't apply, where is the exigency that allows agents to just go into a person's home, that this Court should find a warrant was required. If there are no further questions, thank you.
William H. Rehnquist: Thank you, Mr. Pancer. Mr. Robbins, do you have rebuttal? You have three minutes remaining.
Lawrence S. Robbins: Very briefly. Thank you, Mr. Chief Justice. On the assumption for now that the Fourth Amendment does apply, let me just say a couple of words about reasonableness. The first thing I want to say about that is that it does not turn on whether the agents have complied with Article 16 of the Mexican Constitution. I have tried myself to read Article 16 of the Mexican Constitution several times. I've quoted it at pages 11 and 12 of our Reply Brief in footnote 10 and our office has not been able to get a definitive sense of whether it applies here. It is very different from the Warrant Clause of the United States Constitution. It does not, for example, require probable cause. It has, for example, an exception for searches for sanitary... to enforce the sanitary and police regulations, which under Mexican law, as we understand it, includes the narcotics laws. The fact is, it's a different constitutional provision and what that really tells you is not so much does it apply or doesn't it apply. But it's simply not plausible to suppose that agents executing law enforcement activities overseas should be conversant with the niceties of constitutional law of 150 different countries. What counts is whether their activities, as the Chief Justice suggested in one of his questions, are objectively reasonable. And under any test, the activities of these agents was. They sought out approval at the highest levels of the government. They secured approval. Let me just quickly say that these allegations of corruption are based on, for the most part, questions that didn't elicit the answers that counsel... defense counsel had hoped at the suppression hearing, and in any event are not the subject of any finding in the lower courts. They secured the authorization. They secured the cooperation and the participation, and they followed the dictates that were imposed.
John Paul Stevens: And didn't one of the officers secure an automobile?
Lawrence S. Robbins: I'm sorry?
John Paul Stevens: And didn't one of the officers secure an automobile?
Lawrence S. Robbins: Well, not one of the American officers.
John Paul Stevens: I mean one of the Mexican officers.
Lawrence S. Robbins: Well, but what that points out, among other things, is the... I think the zaniness of seeking a search warrant. I mean, the purpose of the search warrant is supposed to confine the scope of the search. You cannot in the host country tell the host country's officials how to behave. You're there at their sufferance. And it's precisely that kind of example that tells you how far off base the court of appeals was.
William H. Rehnquist: Thank you, Mr. Robbins. The case is submitted.