U.S. Supreme Court United States v. Verdugo-Urquidez, 494
U.S. 259 (1990) United States v.
Verdugo-Urquidez No. 88-1353 Argued Nov. 7, 1989 Decided Feb. 28, 1990 494
U.S. 259 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus After the Government obtained an arrest warrant for respondent
-- a Mexican citizen and resident believed to be a leader of an
organization that smuggles narcotics into this country -- he was
apprehended by Mexican police and transported here, where he was
arrested. Following his arrest, Drug Enforcement Administration
agents, working with Mexican officials, searched his Mexican
residences and seized certain documents. The District Court granted
his motion to suppress the evidence, concluding that the Fourth
Amendment -- which protects "the people" against unreasonable
searches and seizures -- applied to the searches, and that the DEA
agents had failed to justify searching the premises without a
warrant. The Court of Appeals affirmed. Citing Reid v.
Covert, 354 U. S. 1 -- which
held that American citizens tried abroad by United States military
officials were entitled to Fifth and Sixth Amendment protections --
the court concluded that the Constitution imposes substantive
constraints on the Federal Government, even when it operates
abroad. Relying on INS v. Lopez-Mendoza, 468 U.
S. 1032 -- where a majority assumed that illegal aliens
in the United States have Fourth Amendment rights -- the court
observed that it would be odd to acknowledge that respondent was
entitled to trial-related rights guaranteed by the Fifth and Sixth
Amendments, but not to Fourth Amendment protection. Held: The Fourth Amendment does not apply to the search
and seizure by United States agents of property owned by a
nonresident alien and located in a foreign country. Pp. 494 U. S.
264 -275.

															(a) If there were a constitutional violation in this case, it
occurred solely in Mexico, since a Fourth Amendment violation is
fully accomplished at the time of an unreasonable governmental
intrusion whether or not the evidence seized is sought for use in a
criminal trial. Thus, the Fourth Amendment functions differently
from the Fifth Amendment, whose privilege against selfincrimination
is a fundamental trial right of criminal defendants. P. 494 U. S.
264 .

															(b) The Fourth Amendment phrase "the people" seems to be a term
of art used in select parts of the Constitution, and contrasts with
the words "person" and "accused" used in Articles of the Fifth and
Sixth Amendments regulating criminal procedures. This suggests that
"the people" Page 494 U. S. 260 refers to a class of persons who are part of a national
community or who have otherwise developed sufficient connection
with this country to be considered part of that community. Pp. 494 U. S.
264 -266.

															(c) The Fourth Amendment's drafting history shows that its
purpose was to protect the people of the United States against
arbitrary action by their own Government, and not to restrain the
Federal Government's actions against aliens outside United States
territory. Nor is there any indication that the Amendment was
understood by the Framers' contemporaries to apply to United States
activities directed against aliens in foreign territory or in
international waters. Pp. 494 U. S.
266 -268.

															(d) The view that every constitutional provision applies
wherever the Government exercises its power is contrary to this
Court's decisions in the Insular Cases, which held that
not all constitutional provisions apply to governmental activity
even in territories where the United States has sovereign power. See, e.g., Balzac v. Porto Rico, 258 U.
S. 298 . Indeed, the claim that extraterritorial aliens
are entitled to rights under the Fifth Amendment -- which speaks in
the relatively universal term of "person" -- has been emphatically
rejected. Johnson v. Eisentrager, 339 U.
S. 763 , 339 U. S. 784 .
Pp. 494 U. S.
268 -269.

															(e) Respondent's reliance on Reid, supra, is misplaced,
since that case stands only for the proposition that United States citizens stationed abroad could invoke the protection of
the Fifth and Sixth Amendments. Similarly, those cases in which
aliens have been determined to enjoy certain constitutional rights
establish only that aliens receive such protections when they have
come within the territory of, and have developed substantial
connections with, this country. See, e.g., Plyler v. Doe, 457 U. S. 202 , 457 U. S. 212 .
Respondent, however, is an alien with no previous significant
voluntary connection with the United States, and his legal but
involuntary presence here does not indicate any substantial
connection with this country. The Court of Appeals' reliance on INS v. Lopez-Mendoza, supra, is also misplaced, since that
case assumed that, but did not expressly address the question
whether, the Fourth Amendment applies to illegal aliens in the
United States. Even assuming such aliens -- who are in this country
voluntarily and presumably have accepted some societal obligations
-- would be entitled to Fourth Amendment protections, their
situation differs from that of respondent, who had no voluntary
connection with this country that might place him among "the
people." This Court's decisions expressly according differing
protection to aliens than to citizens also undermine respondent's
claim that treating aliens differently under the Fourth Amendment
violates the equal protection component of the Fifth Amendment. Pp. 494 U. S.
269 -273.

															(f) The Court of Appeals' rule would have significant and
deleterious consequences for the United States in conducting
activities beyond its Page 494 U. S. 261 borders. The rule would apply not only to law enforcement
operations abroad, but also to other foreign operations -- such as
armed forces actions -- which might result in "searches and
seizures." Under the rule, aliens with no attachment to this
country might bring actions for damages to remedy claimed
violations of the Fourth Amendment in foreign countries or in
international waters, and Members of the Executive and Legislative
Branches would be plunged into a sea of uncertainty as to what
might be reasonable in the way of searches and seizures conducted
abroad. Any restrictions on searches and seizures incident to
American action abroad must be imposed by the political branches
through diplomatic understanding, treaty, or legislation. Pp. 494 U. S.
273 -275.

															856 F.2d 1214 (CA9 1988), reversed.

															REHNQUIST, C.J., delivered the opinion of the Court, in which
WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. KENNEDY, J.,
filed a concurring opinion, post, p. 494 U. S. 275 .
STEVENS, J., filed an opinion concurring in the judgment, post, p. 494 U. S. 279 .
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined, post, p. 494 U. S. 279 .
BLACKMUN, J., filed a dissenting opinion, post, p. 494 U. S.
297 .

															Chief Justice REHNQUIST delivered the opinion of the Court.

															The question presented by this case is whether the Fourth
Amendment applies to the search and seizure by United States agents
of property that is owned by a nonresident alien and located in a
foreign country. We hold that it does not. Page 494 U. S. 262 Respondent Rene Martin Verdugo-Urquidez is a citizen and
resident of Mexico. He is believed by the United States Drug
Enforcement Agency (DEA) to be one of the leaders of a large and
violent organization in Mexico that smuggles narcotics into the
United States. Based on a complaint charging respondent with
various narcotics-related offenses, the Government obtained a
warrant for his arrest on August 3, 1985. In January, 1986, Mexican
police officers, after discussions with United States Marshals,
apprehended Verdugo-Urquidez in Mexico and transported him to the
United States Border Patrol station in Calexico, California. There,
United States Marshals arrested respondent and eventually moved him
to a correctional center in San Diego, California, where he remains
incarcerated pending trial.

															Following respondent's arrest, Terry Bowen, a DEA agent assigned
to the Calexico DEA office, decided to arrange for searches of
Verdugo-Urquidez's Mexican residences located in Mexicali and San
Felipe. Bowen believed that the searches would reveal evidence
related to respondent's alleged narcotics trafficking activities
and his involvement in the kidnaping and torture-murder of DEA
Special Agent Enrique Camarena Salazar (for which respondent
subsequently has been convicted in a separate prosecution). Bowen
telephoned Walter White, the Assistant Special Agent in charge of
the DEA office in Mexico City, and asked him to seek authorization
for the search from the Director General of the Mexican Federal
Judicial Police (MFJP). After several attempts to reach
high-ranking Mexican officials, White eventually contacted the
Director General, who authorized the searches and promised the
cooperation of Mexican authorities. Thereafter, DEA agents working
in concert with officers of the MFJP searched respondent's
properties in Mexicali and San Felipe and seized certain documents.
In particular, the search of the Mexicali residence uncovered a
tally sheet, which the Government Page 494 U. S. 263 believes reflects the quantities of marijuana smuggled by
Verdugo-Urquidez into the United States.

															The District Court granted respondent's motion to suppress
evidence seized during the searches, concluding that the Fourth
Amendment applied to the searches and that the DEA agents had
failed to justify searching respondent's premises without a
warrant. A divided panel of the Court of Appeals for the Ninth
Circuit affirmed. 856 F.2d 1214 (1988). It cited this Court's
decision in Reid v. Covert, 354 U. S.
1 (1957), which held that American citizens tried by
United States military authorities in a foreign country were
entitled to the protections of the Fifth and Sixth Amendments, and
concluded that "[t]he Constitution imposes substantive constraints
on the federal government, even when it operates abroad." 856 F.2d
at 1218. Relying on our decision in INS v. Lopez-Mendoza, 468 U. S. 1032 ,
where a majority of Justices assumed that illegal aliens in the
United States have Fourth Amendment rights, the Ninth Circuit
majority found it "difficult to conclude that Verdugo-Urquidez
lacks these same protections." 856 F.2d at 1223. It also observed
that persons in respondent's position enjoy certain trial-related
rights, and reasoned that

															"[i]t would be odd indeed to acknowledge that Verdugo-Urquidez
is entitled to due process under the fifth amendment, and to a fair
trial under the sixth amendment, . . . and deny him the protection
from unreasonable searches and seizures afforded under the fourth
amendment." Id. at 1224. Having concluded that the Fourth Amendment
applied to the searches of respondent's properties, the court went
on to decide that the searches violated the Constitution because
the DEA agents failed to procure a search warrant. Although
recognizing that "an American search warrant would be of no legal
validity in Mexico," the majority deemed it sufficient that a
warrant would have "substantial constitutional value in this
country," because it would reflect a magistrate's determination Page 494 U. S. 264 that there existed probable cause to search and would define the
scope of the search. Id. at 1230.

															The dissenting judge argued that this Court's statement in United States v. Curtiss-Wright Export Corp., 299 U.
S. 304 , 299 U. S. 318 (1936), that "[n]either the Constitution nor the laws passed in
pursuance of it have any force in foreign territory unless in
respect of our own citizens," foreclosed any claim by respondent to
Fourth Amendment rights. More broadly, he viewed the Constitution
as a "compact" among the people of the United States, and the
protections of the Fourth Amendment were expressly limited to "the
people." We granted certiorari, 490 U.S. 1019 (1989).

															Before analyzing the scope of the Fourth Amendment, we think it
significant to note that it operates in a different manner than the
Fifth Amendment, which is not at issue in this case. The privilege
against self-incrimination guaranteed by the Fifth Amendment is a
fundamental trial right of criminal defendants. See Malloy v.
Hogan, 378 U. S. 1 (1964).
Although conduct by law enforcement officials prior to trial may
ultimately impair that right, a constitutional violation occurs
only at trial. Kastigar v. United States, 406 U.
S. 441 , 406 U. S. 453 (1972). The Fourth Amendment functions differently. It prohibits
"unreasonable searches and seizures" whether or not the evidence is
sought to be used in a criminal trial, and a violation of the
Amendment is "fully accomplished" at the time of an unreasonable
governmental intrusion. United States v. Calandra, 414 U. S. 338 , 414 U. S. 354 (1974); United States v. Leon, 468 U.
S. 897 , 468 U. S. 906 (1984). For purposes of this case, therefore, if there were a
constitutional violation, it occurred solely in Mexico. Whether
evidence obtained from respondent's Mexican residences should be
excluded at trial in the United States is a remedial question
separate from the existence vel non of the constitutional
violation. Calandra, supra, 414 U.S. at 414 U. S. 354 ; Leon, supra, 468 U.S. at 468 U. S.
906 .

															The Fourth Amendment provides: Page 494 U. S. 265 "[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized."

															That text, by contrast with the Fifth and Sixth Amendments,
extends its reach only to "the people." Contrary to the suggestion
of amici curiae that the Framers used this phrase "simply
to avoid [an] awkward rhetorical redundancy," Brief for American
Civil Liberties Union as Amici Curiae et al. 12, n. 4,
"the people" seems to have been a term of art employed in select
parts of the Constitution. The Preamble declares that the
Constitution is ordained and established by "the People of the
United States." The Second Amendment protects "the right of the
people to keep and bear Arms," and the Ninth and Tenth Amendments
provide that certain rights and powers are retained by and reserved
to "the people." See also U.S. Const., Amdt. 1, ("Congress
shall make no law . . . abridging . . . the right of the
people peaceably to assemble"); Art. I, § 2, cl. 1 ("The House
of Representatives shall be composed of Members chosen every second
Year by the People of the several States ") (emphasis
added). While this textual exegesis is by no means conclusive, it
suggests that "the people" protected by the Fourth Amendment, and
by the First and Second Amendments, and to whom rights and powers
are reserved in the Ninth and Tenth Amendments, refers to a class
of persons who are part of a national community or who have
otherwise developed sufficient connection with this country to be
considered part of that community. See United States ex rel.
Turner v. Williams, 194 U. S. 279 , 194 U. S. 292 (1904) (Excludable alien is not entitled to First Amendment rights,
because "[h]e does not become one of the people to whom these
things are secured by our Constitution by an attempt to enter
forbidden by law"). The language of these Amendments contrasts with
the words Page 494 U. S. 266 "person" and "accused" used in the Fifth and Sixth Amendments
regulating procedure in criminal cases.

															What we know of the history of the drafting of the Fourth
Amendment also suggests that its purpose was to restrict searches
and seizures which might be conducted by the United States in
domestic matters. The Framers originally decided not to include a
provision like the Fourth Amendment, because they believed the
National Government lacked power to conduct searches and seizures. See C. Warren, The Making of the Constitution 508-509
(1928); The Federalist No. 84, p. 513 (C. Rossiter ed. 1961) (A.
Hamilton); 1 Annals of Cong. 437 (1789) (statement of J. Madison).
Many disputed the original view that the Federal Government
possessed only narrow delegated powers over domestic affairs,
however, and ultimately felt an Amendment prohibiting unreasonable
searches and seizures was necessary. Madison, for example, argued
that

															"there is a clause granting to Congress the power to make all
laws which shall be necessary and proper for carrying into
execution all of the powers vested in the Government of the United
States,"

															and that general warrants might be considered "necessary" for
the purpose of collecting revenue. Id. at 438. The driving
force behind the adoption of the Amendment, as suggested by
Madison's advocacy, was widespread hostility among the former
Colonists to the issuance of writs of assistance empowering revenue
officers to search suspected places for smuggled goods, and general
search warrants permitting the search of private houses, often to
uncover papers that might be used to convict persons of libel. See Boyd v. United States, 116 U.
S. 616 , 116 U. S.
625 -626 (1886). The available historical data show,
therefore, that the purpose of the Fourth Amendment was to protect
the people of the United States against arbitrary action by their
own Government; it was never suggested that the provision was
intended to restrain the actions of the Federal Government against
aliens outside of the United States territory. Page 494 U. S. 267 There is likewise no indication that the Fourth Amendment was
understood by contemporaries of the Framers to apply to activities
of the United States directed against aliens in foreign territory
or in international waters. Only seven years after the ratification
of the Amendment, French interference with American commercial
vessels engaged in neutral trade triggered what came to be known as
the "undeclared war" with France. In an Act to "protect the
Commerce of the United States" in 1798, Congress authorized
President Adams to

															"instruct the commanders of the public armed vessels which are,
or which shall be employed in the service of the United States, to
subdue, seize and take any armed French vessel, which shall be
found within the jurisdictional limits of the United States, or
elsewhere, on the high seas."

															§ 1 of An Act Further to Protect the Commerce of the United
States, Ch. 68, 1 Stat. 578. This public naval force consisted of
only 45 vessels, so Congress also gave the President power to grant
to the owners of private armed ships and vessels of the United
States "special commissions," which would allow them

															"the same license and authority for the subduing, seizing and
capturing any armed French vessel, and for the recapture of the
vessels, goods and effects of the people of the United States, as
the public armed vessels of the United States may by law have."

															§ 2, 1 Stat. 579; see U.S. Const., Art. I, § 8, cl. 11
(Congress has power to grant letters of marque and reprisal). Under
the latter provision, 365 private armed vessels were commissioned
before March 1, 1799, see G. Allen, Our Naval War with
France 59 (1967); together, these enactments resulted in scores of
seizures of foreign vessels under congressional authority. See M. Palmer, Stoddert's War: Naval Operations during the
Quasi-War with France 1798-1801, p. 235 (1987). See also An Act further to suspend the Commercial Intercourse between the
United States and France, Ch. 2, 1 Stat. 613. Some commanders were
held liable by this Court for unlawful seizures because their
actions were beyond the scope of the congressional Page 494 U. S. 268 grant of authority, see, e.g., 6 U.
S. Barreme, 2 Cranch 170, 6 U. S. 177 -178
(1804); cf. 5 U. S. Seeman, 1
Cranch 1, 5 U. S. 31 , (1801)
(seizure of neutral ship lawful where American captain had probable
cause to believe vessel was French), but it was never suggested
that the Fourth Amendment restrained the authority of Congress or
of United States agents to conduct operations such as this.

															The global view taken by the Court of Appeals of the application
of the Constitution is also contrary to this Court's decisions in
the Insular Cases, which held that not every
constitutional provision applies to governmental activity even
where the United States has sovereign power. See, e.g., Balzac
v. Porto Rico, 258 U. S. 298 (1922) (Fifth Amendment right to jury trial inapplicable in Puerto
Rico); Ocampo v. United States, 234 U. S.
91 (1914) (Sixth Amendment grand jury provision
inapplicable in Philippines); Dorr v. United States, 195 U. S. 138 (1904) (jury trial provision inapplicable in Philippines); Hawaii v. Mankichi, 190 U. S. 197 (1903) (provisions on indictment by grand jury and jury trial
inapplicable in Hawaii); Downes v. Bidwell, 182 U.
S. 244 (1901) (revenue clauses of Constitution
inapplicable to Puerto Rico). In Dorr, we declared the
general rule that in an unincorporated territory -- one not clearly
destined for statehood -- Congress was not required to adopt

															"a system of laws which shall include the right of trial by
jury, and that the Constitution does not without legislation
and of its own force, carry such right to territory so
situated. "

															195 U.S. at 195 U. S. 149 (emphasis added). Only "fundamental" constitutional rights are
guaranteed to inhabitants of those territories. Id. at
148; Balzac, supra, 258 U.S. at 258 U. S.
312 -313; see Examining Board of Engineers,
Architects and Surveyors v. Flores de Otero, 426 U.
S. 572 , 426 U. S. 599 ,
n. 30 (1976). If that is true with respect to territories
ultimately governed by Congress, respondent's claim that the
protections of the Fourth Amendment extend to aliens in foreign
nations is even weaker. And certainly, it is not open to us in
light of the Insular Cases to endorse the Page 494 U. S. 269 view that every constitutional provision applies wherever the
United States Government exercises its power.

															Indeed, we have rejected the claim that aliens are entitled to
Fifth Amendment rights outside the sovereign territory of the
United States. In Johnson v. Eisentrager, 339 U.
S. 763 (1950), the Court held that enemy aliens arrested
in China and imprisoned in Germany after World War II could not
obtain writs of habeas corpus in our federal courts on the ground
that their convictions for war crimes had violated the Fifth
Amendment and other constitutional provisions. The Eisentrager opinion acknowledged that in some cases
constitutional provisions extend beyond the citizenry; "[t]he alien
. . . has been accorded a generous and ascending scale of rights as
he increases his identity with our society." Id. at 339 U. S. 770 .
But our rejection of extraterritorial application of the Fifth
Amendment was emphatic:

															"Such extraterritorial application of organic law would have
been so significant an innovation in the practice of governments
that, if intended or apprehended, it could scarcely have failed to
excite contemporary comment. Not one word can be cited. No decision
of this Court supports such a view. Cf. Downes v. Bidwell, 182 U. S.
244 (1901). None of the learned commentators on our
Constitution has even hinted at it. The practice of every modern
government is opposed to it." Id. at 339 U. S. 784 .
If such is true of the Fifth Amendment, which speaks in the
relatively universal term of "person," it would seem even more true
with respect to the Fourth Amendment, which applies only to "the
people."

															To support his all-encompassing view of the Fourth Amendment,
respondent points to language from a plurality opinion in Reid
v. Covert, 354 U. S. 1 (1957). Reid involved an attempt by Congress to subject the wives
of American servicemen to trial by military tribunals without the
protection of the Fifth and Sixth Amendments. The Court held that
it was unconstitutional to apply the Uniform Code of Military Page 494 U. S. 270 Justice to the trials of the American women for capital crimes.
Four Justices "reject[ed] the idea that when the United States acts against citizens abroad it can do so free of the Bill of
Rights." Id. at 354 U. S. 5 (emphasis added). The plurality went on to say:

															"The United States is entirely a creature of the Constitution.
Its power and authority have no other source. It can only act in
accordance with all the limitations imposed by the Constitution.
When the Government reaches out to punish a citizen who is
abroad, the shield which the Bill of Rights and other parts of the
Constitution provide to protect his life and liberty should not be
stripped away just because he happens to be in another land." Id. at 354 U. S. 5 -6
(emphasis added; footnote omitted). Respondent urges that we
interpret this discussion to mean that federal officials are
constrained by the Fourth Amendment wherever and against whomever
they act. But the holding of Reid stands for no such
sweeping proposition: it decided that United States citizens
stationed abroad could invoke the protection of the Fifth and Sixth
Amendments. The concurring opinions by Justices Frankfurter and
Harlan in Reid resolved the case on much narrower grounds than the
plurality and declined even to hold that United States citizens
were entitled to the full range of constitutional protections in
all overseas criminal prosecutions. See id. at 354 U. S. 75 (Harlan, J., concurring in result) ("I agree with my brother
FRANKFURTER that . . . we have before us a question analogous,
ultimately, to issues of due process; one can say, in fact, that
the question of which specific safeguards of the Constitution are
appropriately to be applied in a particular context overseas can be
reduced to the issue of what process is due' a defendant in the
particular circumstances of a particular case"). Since respondent
is not a United States citizen, he can derive no comfort from the Reid holding. Verdugo-Urquidez also relies on a series of cases in which we
have held that aliens enjoy certain constitutional rights. Page 494 U. S. 271 See, e.g., Plyler v. Doe, 457 U.
S. 202 , 457 U. S.
211 -212 (1982) (illegal aliens protected by Equal
Protection Clause); Kwong Hai Chew v. Colding, 344 U. S. 590 , 344 U. S. 596 (1953) (resident alien is a "person" within the meaning of the
Fifth Amendment); Bridges v. Wixon, 326 U.
S. 135 , 326 U. S. 148 (1945) (resident aliens have First Amendment rights); Russian
Volunteer Fleet v. United States, 282 U.
S. 481 (1931) (Just Compensation Clause of Fifth
Amendment); Wong Wing v. United States, 163 U.
S. 228 , 163 U. S. 238 (1896) (resident aliens entitled to Fifth and Sixth Amendment
rights); Yick Wo v. Hopkins, 118 U.
S. 356 , 118 U. S. 369 (1886) (Fourteenth Amendment protects resident aliens). These
cases, however, establish only that aliens receive constitutional
protections when they have come within the territory of the United
States and developed substantial connections with this country. See, e.g., Plyler, supra, 457 U.S. at 457 U. S. 212 (The provisions of the Fourteenth Amendment " are universal in
their application, to all persons within the territorial
jurisdiction. . . . '") (quoting Yick Wo, supra, 118
U.S. at 118 U. S.
369 ); Kwong Hai Chew, supra, 344 U.S. at 344 U. S. 596 ,
n. 5 ("The Bill of Rights is a futile authority for the alien
seeking admission for the first time to these shores. But once
an alien lawfully enters and resides in this country he
becomes invested with the rights guaranteed by the Constitution to
all people within our borders.") (quoting Bridges, supra, 326 U.S. at 326 U. S. 161 (concurring opinion) (emphasis added)). Respondent is an alien who
has had no previous significant voluntary connection with the
United States, so these cases avail him not. Justice STEVENS' concurrence in the judgment takes the view
that, even though the search took place in Mexico, it is
nonetheless governed by the requirements of the Fourth Amendment
because respondent was "lawfully present in the United States . . .
even though he was brought and held here against his will." Post at 494 U. S. 279 .
But this sort of presence -- lawful but involuntary -- is not of
the sort to indicate any substantial connection with our country.
The extent to which respondent might claim the protection of the
Fourth Amendment Page 494 U. S. 272 if the duration of his stay in the United States were to be
prolonged -- by a prison sentence, for example -- we need not
decide. When the search of his house in Mexico took place, he had
been present in the United States for only a matter of days. We do
not think the applicability of the Fourth Amendment to the search
of premises in Mexico should turn on the fortuitous circumstance of
whether the custodian of its nonresident alien owner had or had not
transported him to the United States at the time the search was
made.

															The Court of Appeals found some support for its holding in our
decision in INS v. Lopez-Mendoza, 468 U.
S. 1032 (1984), where a majority of Justices assumed
that the Fourth Amendment applied to illegal aliens in the United
States. We cannot fault the Court of Appeals for placing some
reliance on the case, but our decision did not expressly address
the proposition gleaned by the court below. The question presented
for decision in Lopez-Mendoza was limited to whether the
Fourth Amendment's exclusionary rule should be extended to civil
deportation proceedings; it did not encompass whether the
protections of the Fourth Amendment extend to illegal aliens in
this country. The Court often grants certiorari to decide
particular legal issues while assuming without deciding the
validity of antecedent propositions, compare, e.g., Maine v.
Thiboutot, 448 U. S. 1 (1980)
(assuming State is a "person" within the meaning of 42 U.S.C. §
1983) with Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989)
(State is not a "person"), and such assumptions -- even on
jurisdictional issues -- are not binding in future cases that
directly raise the questions. Id. at 491 U. S. 63 , n.
4; Hagans v. Levine, 415 U. S. 528 , 415 U. S. 535 ,
n. 5 (1974). Our statements in Lopez-Mendoza are therefore
not dispositive of how the Court would rule on a Fourth Amendment
claim by illegal aliens in the United States if such a claim were
squarely before us. Even assuming such aliens would be entitled to
Fourth Amendment protections, their situation is Page 494 U. S. 273 different from respondent's. The illegal aliens in Lopez-Mendoza were in the United States voluntarily and
presumably had accepted some societal obligations; but respondent
had no voluntary connection with this country that might place him
among "the people" of the United States.

															Respondent also contends that to treat aliens differently from
citizens with respect to the Fourth Amendment somehow violates the
equal protection component of the Fifth Amendment to the United
States Constitution. He relies on Graham v. Richardson, 403 U. S. 365 (1971), and Foley v. Connelie, 435 U.
S. 291 (1978), for this proposition. But the very cases
previously cited with respect to the protection extended by the
Constitution to aliens undermine this claim. They are
constitutional decisions of this Court expressly according
differing protection to aliens than to citizens, based on our
conclusion that the particular provisions in question were not
intended to extend to aliens in the same degree as to citizens. Cf. Mathews v. Diaz, 426 U. S. 67 , 426 U. S. 79 -80
(1976) ("In the exercise of its broad power over naturalization and
immigration, Congress regularly makes rules that would be
unacceptable if applied to citizens").

															Not only are history and case law against respondent, but as
pointed out in Johnson v. Eisentrager, supra, the result
of accepting his claim would have significant and deleterious
consequences for the United States in conducting activities beyond
its boundaries. The rule adopted by the Court of Appeals would
apply not only to law enforcement operations abroad, but also to
other foreign policy operations which might result in "searches or
seizures." The United States frequently employs armed forces
outside this country -- over 200 times in our history -- for the
protection of American citizens or national security. Congressional
Research Service, Instances of Use of United States Armed Forces
Abroad, 1798-1983 (E. Collier ed. 1983). Application of the Fourth
Amendment to those circumstances could significantly disrupt the
ability of the political Page 494 U. S. 274 branches to respond to foreign situations involving our national
interest. Were respondent to prevail, aliens with no attachment to
this country might well bring actions for damages to remedy claimed
violations of the Fourth Amendment in foreign countries or in
international waters. See Bivens v. Six Unknown Federal
Narcotics Agents, 403 U. S. 388 (1971); cf. Tennessee v. Garner, 471 U. S.
1 (1985); Graham v. Connor, 490 U.
S. 386 (1989). Perhaps a Bivens action might be
unavailable in some or all of these situations due to " special
factors counselling hesitation,'" see Chappell v. Wallace, 462 U. S. 296 , 462 U. S. 298 (1983) (quoting Bivens, supra, 403 U.S. at 403 U. S.
396 ), but the Government would still be faced with
case-by-case adjudications concerning the availability of such an
action. And even were Bivens deemed wholly inapplicable in
cases of foreign activity, that would not obviate the problems
attending the application of the Fourth Amendment abroad to aliens.
The Members of the Executive and Legislative Branches are sworn to
uphold the Constitution, and they presumably desire to follow its
commands. But the Court of Appeals' global view of its
applicability would plunge them into a sea of uncertainty as to
what might be reasonable in the way of searches and seizures
conducted abroad. Indeed, the Court of Appeals held that absent
exigent circumstances, United States agents could not effect a
"search or seizure" for law enforcement purposes in a foreign
country without first obtaining a warrant -- which would be a dead
letter outside the United States -- from a magistrate in this
country. Even if no warrant were required, American agents would
have to articulate specific facts giving them probable cause to
undertake a search or seizure if they wished to comply with the
Fourth Amendment as conceived by the Court of Appeals. We think that the text of the Fourth Amendment, its history, and
our cases discussing the application of the Constitution to aliens
and extraterritorially require rejection of respondent's claim. At
the time of the search, he was a citizen and resident of Mexico
with no voluntary attachment to the Page 494 U. S. 275 United States, and the place searched was located in Mexico.
Under these circumstances, the Fourth Amendment has no
application.

															For better or for worse, we live in a world of nation-states in
which our Government must be able to "functio[n] effectively in the
company of sovereign nations." Perez v. Brownell, 356 U. S. 44 , 356 U. S. 57 (1958). Some who violate our laws may live outside our borders
under a regime quite different from that which obtains in this
country. Situations threatening to important American interests may
arise half-way around the globe, situations which in the view of
the political branches of our Government require an American
response with armed force. If there are to be restrictions on
searches and seizures which occur incident to such American action,
they must be imposed by the political branches through diplomatic
understanding, treaty, or legislation.

															The judgment of the Court of Appeals is accordingly Reversed. Justice KENNEDY, concurring.

															I agree that no violation of the Fourth Amendment has occurred
and that we must reverse the judgment of the Court of Appeals.
Although some explanation of my views is appropriate given the
difficulties of this case, I do not believe they depart in
fundamental respects from the opinion of the Court, which I
join.

															In cases involving the extraterritorial application of the
Constitution, we have taken care to state whether the person
claiming its protection is a citizen, see, e.g., Reid v.
Covert, 354 U. S. 1 (1957),
or an alien, see, e.g., Johnson v. Eisentrager, 339 U. S. 763 (1950). The distinction between citizens and aliens follows from
the undoubted proposition that the Constitution does not create,
nor do general principles of law create, any juridical relation
between our country and some undefined, limitless class of
noncitizens who are beyond our territory. We should note, however,
that the absence of Page 494 U. S. 276 this relation does not depend on the idea that only a limited
class of persons ratified the instrument that formed our
Government. Though it must be beyond dispute that persons outside
the United States did not and could not assent to the Constitution,
that is quite irrelevant to any construction of the powers
conferred or the limitations imposed by it. As Justice Story
explained in his Commentaries:

															"A government may originate in the voluntary compact or assent
of the people of several states, or of a people never before
united, and yet when adopted and ratified by them, be no longer a
matter resting in compact; but become an executed government or
constitution, a fundamental law, and not a mere league. But the
difficulty in asserting it to be a compact between the people of
each state, and all the people of the other states is, that the
constitution itself contains no such expression, and no such
designation of parties."

															1 J. Story, Commentaries on the Constitution § 365, p. 335
(1833) (footnote omitted). The force of the Constitution is not
confined because it was brought into being by certain persons who
gave their immediate assent to its terms.

															For somewhat similar reasons, I cannot place any weight on the
reference to "the people" in the Fourth Amendment as a source of
restricting its protections. With respect, I submit these words do
not detract from its force or its reach. Given the history of our
Nation's concern over warrantless and unreasonable searches,
explicit recognition of "the right of the people" to Fourth
Amendment protection may be interpreted to underscore the
importance of the right, rather than to restrict the category of
persons who may assert it. The restrictions that the United States
must observe with reference to aliens beyond its territory or
jurisdiction depend, as a consequence, on general principles of
interpretation, not on an inquiry as to who formed the Constitution
or a construction that some rights are mentioned as being those of
"the people." Page 494 U. S. 277 I take it to be correct, as the plurality opinion in Reid v.
Covert sets forth, that the Government may act only as the
Constitution authorizes, whether the actions in question are
foreign or domestic. See 354 U.S. at 354 U. S. 6 . But
this principle is only a first step in resolving this case. The
question before us then becomes what constitutional standards apply
when the Government acts, in reference to an alien, within its
sphere of foreign operations. We have not overruled either In
re Ross, 140 U. S. 453 (1891), or the so-called Insular Cases ( i.e., Downes
v. Bidwell, 182 U. S. 244 (1901); Hawaii v. Mankichi, 190 U.
S. 197 (1903); Dorr v. United States, 195 U. S. 138 (1904); Balzac v. Porto Rico, 258 U.
S. 298 (1922)). These authorities, as well as United
States v. Curtiss-Wright Export Corp., 299 U.
S. 304 , 299 U. S. 318 (1936), stand for the proposition that we must interpret
constitutional protections in light of the undoubted power of the
United States to take actions to assert its legitimate power and
authority abroad. Justice Harlan made this observation in his
opinion concurring in the judgment in Reid v. Covert: "I cannot agree with the suggestion that every provision of the
Constitution must always be deemed automatically applicable to
American citizens in every part of the world. For Ross and
the Insular Cases do stand for an important proposition,
one which seems to me a wise and necessary gloss on our
Constitution. The proposition is, of course, not that the
Constitution 'does not apply' overseas, but that there are
provisions in the Constitution which do not necessarily apply in
all circumstances in every foreign place. In other words, it seems
to me that the basic teaching of Ross and the Insular
Cases is that there is no rigid and abstract rule that
Congress, as a condition precedent to exercising power over
Americans overseas, must exercise it subject to all the guarantees
of the Constitution, no matter what the conditions and
considerations are that would make adherence to a Page 494 U. S. 278 specific guarantee altogether impracticable and anomalous."

															354 U.S. at 354 U. S. 74 .

															The conditions and considerations of this case would.make
adherence to the Fourth Amendment's warrant requirement
impracticable and anomalous. Just as the Constitution in the Insular Cases did not require Congress to implement all
constitutional guarantees in its territories because of their
"wholly dissimilar traditions and institutions," the Constitution
does not require United States agents to obtain a warrant when
searching the foreign home of a nonresident alien. If the search
had occurred in a residence within the United States, I have little
doubt that the full protections of the Fourth Amendment would
apply. But that is not this case. The absence of local judges or
magistrates available to issue warrants, the differing and perhaps
unascertainable conceptions of reasonableness and privacy that
prevail abroad, and the need to cooperate with foreign officials
all indicate that the Fourth Amendment's warrant requirement should
not apply in Mexico as it does in this country. For this reason, in
addition to the other persuasive justifications stated by the
Court, I agree that no violation of the Fourth Amendment has
occurred in the case before us. The rights of a citizen, as to whom
the United States has continuing obligations, are not presented by
this case.

															I do not mean to imply, and the Court has not decided, that
persons in the position of the respondent have no constitutional
protection. The United States is prosecuting a foreign national in
a court established under Article III, and all of the trial
proceedings are governed by the Constitution. All would agree, for
instance, that the dictates of the Due Process Clause of the Fifth
Amendment protect the defendant. Indeed, as Justice Harlan put
it,

															"the question of which specific safeguards . . . are
appropriately to be applied in a particular context . . . can be
reduced to the issue of what process is 'due' a defendant in the
particular circumstances of a particular case." Reid, 354 U.S. at 354 U. S. 75 .
Nothing approaching a violation of due process has occurred in this
case. Page 494 U. S. 279 Justice STEVENS, concurring in judgment.

															In my opinion aliens who are lawfully present in the United
States are among those "people" who are entitled to the protection
of the Bill of Rights, including the Fourth Amendment. Respondent
is surely such a person even though he was brought and held here
against his will. I therefore cannot join the Court's sweeping
opinion.{*} I do agree, however, with the Government's submission
that the search conducted by the United States agents with the
approval and cooperation of the Mexican authorities was not
"unreasonable" as that term is used in the first clause of the
Amendment. I do not believe the Warrant Clause has any application
to searches of noncitizens' homes in foreign jurisdictions because
American magistrates have no power to authorize such searches. I
therefore concur in the Court's judgment.

															* The Court's interesting historical discussion is simply
irrelevant to the question whether an alien lawfully within the
sovereign territory of the United States is entitled to the
protection of our laws. Nor is comment on illegal aliens'
entitlement to the protections of the Fourth Amendment necessary to
resolve this case.

															Justice BRENNAN, with whom Justice MARSHALL joins,
dissenting.

															Today the Court holds that although foreign nationals must abide
by our laws even when in their own countries, our Government need
not abide by the Fourth Amendment when it investigates them for
violations of our laws. I respectfully dissent.

															Particularly in the past decade, our Government has sought,
successfully, to hold foreign nationals criminally liable under
federal laws for conduct committed entirely beyond the territorial
limits of the United States that nevertheless has effects Page 494 U. S. 280 in this country. Foreign nationals must now take care not to
violate our drug laws, [ Footnote
2/1 ] our antitrust laws, [ Footnote
2/2 ] our securities laws, [ Footnote
2/3 ] and a host of other federal criminal statutes. [ Footnote 2/4 ] The Page 494 U. S. 281 enormous expansion of federal criminal jurisdiction outside our
Nation's boundaries has led one commentator to suggest that our
country's three largest exports are now "rock music, blue jeans,
and United States law." Grundman, The New Imperialism: The
Extraterritorial Application of United States Law, 14 Int'l Law.
257, 257 (1980).

															The Constitution is the source of Congress' authority to
criminalize conduct, whether here or abroad, and of the Executive's
authority to investigate and prosecute such conduct. But the same
Constitution also prescribes limits on our Government's authority
to investigate, prosecute, and punish criminal conduct, whether
foreign or domestic. As a plurality of the Court noted in Reid
v. Covert, 354 U. S. 1 , 354 U. S. 5 -6
(1957):

															"The United States is entirely a creature of the Constitution.
Its power and authority have no other source. It can only act in
accordance with all the limitations imposed by the
Constitution."

															(Footnotes omitted.) See also ante at 494 U. S. 277 (KENNEDY, J., concurring) ("[T]he Government may act only as the
Constitution authorizes, whether the actions in question are
foreign or domestic"). In particular, the Fourth Amendment
provides:

															"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated; and no Warrants shall issue but upon
probable cause, supported by Page 494 U. S. 282 Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized."

															The Court today creates an antilogy: the Constitution authorizes
our Government to enforce our criminal laws abroad, but when
Government agents exercise this authority, the Fourth Amendment
does not travel with them. This cannot be. At the very least, the
Fourth Amendment is an unavoidable correlative of the Government's
power to enforce the criminal law. A The Fourth Amendment guarantees the right of "the people" to be
free from unreasonable searches and seizures and provides that a
warrant shall issue only upon presentation of an oath or
affirmation demonstrating probable cause and particularly
describing the place to be searched and the persons or things to be
seized. According to the majority, the term "the people" refers to
"a class of persons who are part of a national community or who
have otherwise developed sufficient connection with this country to
be considered part of that community." Ante at 494 U. S. 265 .
The Court admits that "the people" extends beyond the citizenry,
but leaves the precise contours of its "sufficient connection" test
unclear. At one point the majority hints that aliens are protected
by the Fourth Amendment only when they come within the United
States and develop "substantial connections" with our country. Ante at 494 U. S. 271 .
At other junctures, the Court suggests that an alien's presence in
the United States must be voluntary [ Footnote 2/5 ] and that the alien must have "accepted
some societal Page 494 U. S. 283 obligations." [ Footnote 2/6 ] Ante at 494 U. S. 273 .
At yet other points, the majority implies that respondent would be
protected by the Fourth Amendment if the place searched were in the
United States. [ Footnote 2/7 ] Ante at 494 U. S. 266 , 494 U. S.
274 -275.

															What the majority ignores, however, is the most obvious
connection between Verdugo-Urquidez and the United States: he was
investigated and is being prosecuted for violations of United
States law and may well spend the rest of his life in a United
States prison. The "sufficient connection" is supplied not by
Verdugo-Urquidez, but by the Government. Page 494 U. S. 284 Respondent is entitled to the protections of the Fourth
Amendment because our Government, by investigating him and
attempting to hold him accountable under United States criminal
laws, has treated him as a member of our community for purposes of
enforcing our laws. He has become, quite literally, one of the
governed. Fundamental fairness and the ideals underlying our Bill
of Rights compel the conclusion that when we impose "societal
obligations," ante at 494 U. S. 273 ,
such as the obligation to comply with our criminal laws, on foreign
nationals, we in turn are obliged to respect certain correlative
rights, among them the Fourth Amendment.

															By concluding that respondent is not one of "the people"
protected by the Fourth Amendment, the majority disregards basic
notions of mutuality. If we expect aliens to obey our laws, aliens
should be able to expect that we will obey our Constitution when we
investigate, prosecute, and punish them. We have recognized this
fundamental principle of mutuality since the time of the Framers.
James Madison, universally recognized as the primary architect of
the Bill of Rights, emphasized the importance of mutuality when he
spoke out against the Alien and Sedition Acts less than a decade
after the adoption of the Fourth Amendment:

															"[I]t does not follow, because aliens are not parties to the
Constitution, as citizens are parties to it, that, whilst they
actually conform to it, they have no right to its protection.
Aliens are no more parties to the laws than they are parties to the
Constitution; yet it will not be disputed that, as they owe, on one
hand, a temporary obedience, they are entitled, in return, to their
protection and advantage."

															Madison's Report on the Virginia Resolutions (1800), reprinted in 4 Elliot's Debates 556 (2d ed. 1836).

															Mutuality is essential to ensure the fundamental fairness that
underlies our Bill of Rights. Foreign nationals investigated and
prosecuted for alleged violations of United States criminal laws
are just as vulnerable to oppressive government Page 494 U. S. 285 behavior as are United States citizens investigated and
prosecuted for the same alleged violations. Indeed, in a case such
as this where the Government claims the existence of an
international criminal conspiracy, citizens and foreign nationals
may be codefendants, charged under the same statutes for the same
conduct and facing the same penalties if convicted. They may have
been investigated by the same agents pursuant to the same
enforcement authority. When our Government holds these
co-defendants to the same standards of conduct, the Fourth
Amendment, which protects the citizen from unreasonable searches
and seizures, should protect the foreign national as well.

															Mutuality also serves to inculcate the values of law and order.
By respecting the rights of foreign nationals, we encourage other
nations to respect the rights of our citizens. Moreover, as our
Nation becomes increasingly concerned about the domestic effects of
international crime, we cannot forget that the behavior of our law
enforcement agents abroad sends a powerful message about the rule
of law to individuals everywhere. As Justice Brandeis warned in Olmstead v. United States, 277 U.
S. 438 (1928):

															"If the Government becomes a lawbreaker, it breeds contempt for
law; it invites every man to become a law unto himself; it invites
anarchy. To declare that in the administration of the criminal law
the end justifies the means . . . would bring terrible retribution.
Against that pernicious doctrine, this Court should resolutely set
its face." Id. at 277 U. S. 485 (dissenting opinion). This principle is no different when the
United States applies its rules of conduct to foreign nationals. If
we seek respect for law and order, we must observe these principles
ourselves. Lawlessness breeds lawlessness.

															Finally, when United States agents conduct unreasonable
searches, whether at home or abroad, they disregard our Nation's
values. For over 200 years, our country has considered itself the
world's foremost protector of liberties. The Page 494 U. S. 286 privacy and sanctity of the home have been primary tenets of our
moral, philosophical, and judicial beliefs. [ Footnote 2/8 ] Our national interest is defined by those
values and by the need to preserve our own just institutions. We
take pride in our commitment to a government that cannot, on mere
whim, break down doors and invade the most personal of places. We
exhort other nations to follow our example. How can we explain to
others -- and to ourselves -- that these long cherished ideals are
suddenly of no consequence when the door being broken belongs to a
foreigner?

															The majority today brushes aside the principles of mutuality and
fundamental fairness that are central to our Nation's
constitutional conscience. The Court articulates a "sufficient
connection" test but then refuses to discuss the underlying
principles upon which any interpretation of that test must rest. I
believe that by placing respondent among those governed by federal
criminal laws and investigating him for violations of those laws,
the Government has made him a part of our community for purposes of
the Fourth Amendment. B In its effort to establish that respondent does not have
sufficient connection to the United States to be considered one of
"the people" protected by the Fourth Amendment, the Court relies on
the text of the Amendment, historical evidence, and cases refusing
to apply certain constitutional provisions outside the United
States. None of these, however, justifies the majority's cramped
interpretation of the Fourth Amendment's applicability. Page 494 U. S. 287 The majority looks to various constitutional provisions and
suggests that " the people' seems to have been a term of art." Ante at 494 U. S. 265 .
But the majority admits that its "textual exegesis is by no means
conclusive." Ante at 494 U. S. 265 .
[ Footnote 2/9 ] One Member of the
majority even states that he "cannot place any weight on the
reference to `the people' in the Fourth Amendment as a source of
restricting its protections." Ante at 494 U. S. 276 (KENNEDY, J., concurring). The majority suggests a restrictive
interpretation of those with "sufficient connection" to this
country to be considered among "the people," but the term "the
people" is better understood as a rhetorical counterpoint to "the
government," such that rights that were reserved to "the people"
were to protect all those subject to "the government." Cf. New
Jersey v. T.L.0., 469 U. S. 325 , 469 U. S. 335 (1985) ("[T]he Court has long spoken of the Fourth Amendment's
strictures as restraints imposed upon `governmental action'"). "The
people" are "the governed." In drafting both the Constitution and the Bill of Rights, the
Framers strove to create a form of government decidedly different
from their British heritage. Whereas the British Parliament was
unconstrained, the Framers intended to create a government of
limited powers. See B. Bailyn, The Ideological Origins of
the American Revolution 182 (1967); 1 The Complete Anti-Federalist
65 (H. Storing ed. 1981). The colonists considered the British
government dangerously omnipotent. After all, the British
declaration of rights in Page 494 U. S. 288 1688 had been enacted not by the people, but by Parliament. The
Federalist No. 84, p. 439 (M. Beloff ed. 1987). Americans
vehemently attacked the notion that rights were matters of
" favor and grace,'" given to the people from the government. B.
Bailyn, supra, at 187 (quoting John Dickinson). Thus, the Framers of the Bill of Rights did not purport to
"create" rights. Rather, they designed the Bill of Rights to
prohibit our Government from infringing rights and liberties
presumed to be preexisting. See, e.g., U.S. Const., Amdt.
9 ("The enumeration in the Constitution of certain rights, shall
not be construed to deny or disparage others retained by the
people"). The Fourth Amendment, for example, does not create a new
right of security against unreasonable searches and seizures. It
states that

															"[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated. . . ."

															The focus of the Fourth Amendment is on what the
Government can and cannot do, and how it may act, not on against whom these actions may be taken. Bestowing rights
and delineating protected groups would have been inconsistent with
the drafters' fundamental conception of a Bill of Rights as a
limitation on the Government's conduct with respect to all whom it
seeks to govern. It is thus extremely unlikely that the Framers
intended the narrow construction of the term "the people" presented
today. by the majority.

															The drafting history of the Fourth Amendment also does not
support the majority's interpretation of "the people." First, the
drafters chose not to limit the right against unreasonable searches
and seizures in more specific ways. They could have limited the
right to "citizens," "freemen," "residents," or "the American
people." The conventions called to ratify the Constitution in New
York and Virginia, for example, each recommended an amendment
stating, "That every freeman has a right to be secure from all
unreasonable searches and seizures. . . . " W. Cuddihy, Search and
Seizure Page 494 U. S. 289 in Great Britain and the American Colonies, pt. 2, p. 571, n.
129, 574, n. 134 (1974). But the drafters of the Fourth Amendment
rejected this limitation, and instead provided broadly for "[t]he
right of the people to be secure in their persons, houses, papers,
and effects." Second, historical materials contain no evidence that
the drafters intended to limit the availability of the right
expressed in the Fourth Amendment. [ Footnote 2/10 ] The Amendment was introduced on the
floor of Congress, considered by Committee, debated by the House of
Representatives and the Senate, and submitted to the 13 States for
approval. Throughout that entire process, no speaker or
commentator, pro or con, referred to the term "the people" as a
limitation. Page 494 U. S. 290 The Court also relies on a series of cases dealing with the
application of criminal procedural protections outside of the
United States to conclude that "not every constitutional provision
applies to governmental activity even where the United States has
sovereign power." Ante at 494 U. S. 268 .
None of these cases, however, purports to read the phrase "the
people" as limiting the protections of the Fourth Amendment to
those with "sufficient connection" to the United States, and thus
none gives content to the majority's analysis. The cases shed no
light on the question of whether respondent -- a citizen of a
nonenemy nation being tried in a United States federal court -- is
one of "the people" protected by the Fourth Amendment.

															The majority mischaracterizes Johnson v. Eisentrager, 339 U. S. 763 (1950), as having "rejected the claim that aliens are entitled to
Fifth Amendment rights outside the sovereign territory of the
United States." Ante at 494 U. S. 269 .
In Johnson, 21 German nationals were convicted of engaging
in continued military activity against the United States after the
surrender of Germany and before the surrender of Japan in World War
II. The Court held that

															"the Constitution does not confer a right of personal security
or an immunity from military trial and punishment upon an alien
enemy engaged in the hostile service of a government at war
with the United States." Johnson, 339 U.S. at 339 U. S. 785 (emphasis added). As the Court wrote:

															"It is war that exposes the relative vulnerability of the
alien's status. The security and protection enjoyed while the
nation of his allegiance remains in amity with the United States
are greatly impaired when his nation takes up arms against us. . .
. But disabilities this country lays upon the alien who becomes
also an enemy are imposed temporarily as an incident of war and not
as an incident of alienage." Id. at 339 U. S.
771 -772. Page 494 U. S. 291 The Court rejected the German nationals' efforts to obtain writs
of habeas corpus not because they were foreign nationals, but
because they were enemy soldiers.

															The Insular Cases, Balzac v. Porto Rico, 258 U.
S. 298 (1922), Ocampo v. United States, 234 U. S. 91 (1914), Dorr v. United States, 195 U.
S. 138 (1904), and Hawaii v. Mankichi, 190 U. S. 197 (1903), are likewise inapposite. The Insular Cases all
concerned whether accused persons enjoyed the protections of
certain rights in criminal prosecutions brought by territorial
authorities in territorial courts. These cases were limited to
their facts long ago, see Reid v. Covert, 354 U. S.
1 , 354 U. S. 14 (1957) (plurality opinion) ("[I]t is our judgment that neither the
cases nor their reasoning should be given any further expansion"),
and they are of no analytical value when a criminal defendant seeks
to invoke the Fourth Amendment in a prosecution by the Federal
Government in a federal court. [ Footnote 2/11 ] C The majority's rejection of respondent's claim to Fourth
Amendment protection is apparently motivated by its fear that
application of the Amendment to law enforcement searches against
foreign nationals overseas "could significantly disrupt the ability
of the political branches to respond to foreign situations
involving our national interest." Ante at 494 U. S.
273 -274. The majority's doomsday scenario -- that
American Armed Forces conducting a mission to protect our national
security with no law enforcement objective "would have to
articulate specific facts giving them probable cause to undertake a
search or seizure," ante at 494 U. S. 274 -- is fanciful. Verdugo-Urquidez is protected by the Fourth
Amendment Page 494 U. S. 292 because our Government, by investigating and prosecuting him,
has made him one of "the governed." See supra, at 494 U. S. 284 , 494 U. S. 287 .
Accepting respondent as one of "the governed," however, hardly
requires the Court to accept enemy aliens in wartime as among "the
governed" entitled to invoke the protection of the Fourth
Amendment. See Johnson v. Eisentrager, supra. Moreover, with respect to non-law enforcement activities not
directed against enemy aliens in wartime but nevertheless
implicating national security, doctrinal exceptions to the general
requirements of a warrant and probable cause likely would be
applicable more frequently abroad, thus lessening the purported
tension between the Fourth Amendment's strictures and the
Executive's foreign affairs power. Many situations involving
sensitive operations abroad likely would involve exigent
circumstances such that the warrant requirement would be excused. Cf. Warden v. Hayden, 387 U. S. 294 , 387 U. S. 298 (1967). Therefore, the Government's conduct would be assessed only
under the reasonableness standard, the application of which depends
on context. See United States v. Montoya de Hernandez, 473 U. S. 531 , 473 U. S. 537 (1985) ("What is reasonable depends upon all of the circumstances
surrounding the search or seizure and the nature of the search or
seizure itself").

															In addition, where the precise contours of a "reasonable" search
and seizure are unclear, the Executive Branch will not be
"plunge[d] . . . into a sea of uncertainty," ante at 494 U. S. 274 ,
that will impair materially its ability to conduct foreign affairs.
Doctrines such as official immunity have long protected Government
agents from any undue chill on the exercise of lawful discretion. See, e.g., Butz v. Economou, 438 U.
S. 478 (1978). Similarly, the Court has recognized that
there may be certain situations in which the offensive use of
constitutional rights should be limited. Cf. Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.
S. 388 , 403 U. S. 396 (1971) (precluding suits for damages for violations of the Fourth
Amendment where there are "special factors Page 494 U. S. 293 counseling hesitation"). In most cases implicating foreign
policy concerns in which the reasonableness of an overseas search
or seizure is unclear, application of the Fourth Amendment will not
interfere with the Executive's traditional prerogative in foreign
affairs because a court will have occasion to decide the
constitutionality of such a search only if the Executive decides to
bring a criminal prosecution and introduce evidence seized abroad.
When the Executive decides to conduct a search as part of an
ongoing criminal investigation, fails to get a warrant, and then
seeks to introduce the fruits of that search at trial, however, the
courts must enforce the Constitution. II Because the Fourth Amendment governs the search of respondent's
Mexican residences, the District Court properly suppressed the
evidence found in that search because the officers conducting the
search did not obtain a warrant. [ Footnote 2/12 ] I cannot agree with Justice BLACKMUN and
Justice STEVENS that the Warrant Clause has no application to
searches Page 494 U. S. 294 of noncitizens' homes in foreign jurisdictions because American
magistrates lack the power to authorize such searches. [ Footnote 2/13 ] See post at 494 U. S. 297 (BLACKMUN, J., dissenting); ante at 494 U. S. 279 (STEVENS, J., concurring in judgment). The Warrant Clause would
serve the same primary functions abroad as it does domestically,
and I see no reason to distinguish between foreign and domestic
searches.

															The primary purpose of the warrant requirement is its assurance
of neutrality. As Justice Jackson stated for Page 494 U. S. 295 the Court in Johnson v. United States, 333 U. S.
10 , 333 U. S. 13 -14
(1948) (footnotes omitted):

															"The point of the Fourth Amendment, which often is not grasped
by zealous officers, is not that it denies law enforcement the
support of the usual inferences which reasonable men draw from
evidence. Its protection consists in requiring that those
inferences be drawn by a neutral and detached magistrate instead of
being judged by the officer engaged in the often competitive
enterprise of ferreting out crime. Any assumption that evidence
sufficient to support a magistrate's disinterested determination to
issue a search warrant will justify the officers in making a search
without a warrant would reduce the Amendment to a nullity and leave
the people's homes secure only in the discretion of police
officers. . . . When the right of privacy must reasonably yield to
the right of search is, as a rule, to be decided by a judicial
officer, not by a policeman or government enforcement agent."

															See also Welsh v. Wisconsin, 466 U.
S. 740 , 466 U. S.
748 -749, and n. 10 (1984); Coolidge v. New
Hampshire, 403 U. S. 443 , 403 U. S. 449 (1971). A warrant also defines the scope of a search and limits the
discretion of the inspecting officers. See New York v.
Burger, 482 U. S. 691 , 482 U. S. 703 (1987); Marron v. United States, 275 U.
S. 192 , 275 U. S. 196 (1927). These purposes would be served no less in the foreign than
in the domestic context.

															The Warrant Clause cannot be ignored simply because Congress has
not given any United States magistrate authority to issue search
warrants for foreign searches. See Fed. Rule Crim.Proc.
41(a). Congress cannot define the contours of the Constitution. If
the Warrant Clause applies, Congress cannot excise the Clause from
the Constitution by failing to provide a means for United States
agents to obtain a warrant. See Best v. United States, 184
F.2d 131, 138 (CA1 1950) ("Obviously, Congress may not nullify the
guarantees of the Fourth Amendment by the simple expedient of Page 494 U. S. 296 not empowering any judicial officer to act on an application for
a warrant"), cert. denied, 340 U.S. 939 (1951).

															Nor is the Warrant Clause inapplicable merely because a warrant
from a United States magistrate could not "authorize" a search in a
foreign country. Although this may be true as a matter of
international law, it is irrelevant to our interpretation of the
Fourth Amendment. As a matter of United States constitutional law,
a warrant serves the same primary function overseas as it does
domestically: it assures that a neutral magistrate has authorized
the search and limited its scope. The need to protect those
suspected of criminal activity from the unbridled discretion of
investigating officers is no less important abroad than at home.
[ Footnote 2/14 ] III When our Government conducts a law enforcement search against a
foreign national outside of the United States and its territories,
it must comply with the Fourth Amendment. Absent exigent
circumstances or consent, it must obtain a Page 494 U. S. 297 search warrant from a United States court. When we tell the
world that we expect all people, wherever they may be, to abide by
our laws, we cannot in the same breath tell the world that our law
enforcement officers need not do the same. Because we cannot expect
others to respect our laws until we respect our Constitution, I
respectfully dissent.

															[ Footnote 2/1 ]

															Federal drug enforcement statutes written broadly enough to
permit extraterritorial application include laws proscribing the
manufacture, distribution, or possession with intent to manufacture
or distribute controlled substances on board vessels, see 46 U.S.C.App. § 1903(h) (1982 ed., Supp. V) ("This section is
intended to reach acts . . . committed outside the territorial
jurisdiction of the United States"), the possession, manufacture,
or distribution of a controlled substance for purposes of unlawful
importation, see 21 U.S.C. § 959(c) (same), and conspiracy
to violate federal narcotics laws, see Chua Han Mow v. United
States, 730 F.2d 1308,

															1311-1312 (CA9 1984) (applying 21 U.S.C. §§ 846 and 963 to
conduct by a Malaysian citizen in Malaysia), cert. denied, 470 U. S. 1031 (1985).

															[ Footnote 2/2 ]

															The Sherman Act defines "person" to include foreign
corporations, 15 U.S.C. § 7, and has been applied to certain
conduct beyond the territorial limits of the United States by
foreign corporations and nationals for at least 45 years. See
United States v. Aluminum Co. of America, 148 F.2d 416,
443-444 (CA2 1945).

															[ Footnote 2/3 ]

															Foreign corporations may be liable under section 10(b) of the
Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), for
transactions that occur outside the United States if the
transactions involve stock registered and listed on a national
securities exchange and the alleged conduct is "detrimental to the
interests of American investors." Schoenbaum v.
Firstbrook, 405 F.2d 200, 208 (CA2 1968), rev'd on
rehearing on other grounds, 405 F.2d 215 (CA2 1968) (en banc), cert. denied, sub nom. Manley v. Schoenbaum, 395
U.S. 906 (1969).

															[ Footnote 2/4 ] See e.g, 18 U.S.C. § 32(b) (violence against an
individual aboard or destruction of any "civil aircraft registered
in a country other than the United States while such aircraft is in
flight"); § 111 (assaulting, resisting, or impeding certain
officers or employees); § 115 (influencing, impeding, or
retaliating against a federal official by threatening or injuring a
family member); §§ 1114, 1117 (murder, attempted murder, and
conspiracy to murder certain federal officers and employees); §
1201(a)(5) (kidnaping of federal officers and employees listed in §
1114); § 1201(e) (kidnaping of "an internationally protected
person," if the alleged offender is found in the United States,
"irrespective of the place where the offense was committed or the
nationality of the victim or the alleged offender"); § 1203
(hostage taking outside the United States, if the offender or the
person seized is a United States national, if the offender is found
in the United States, or if "the governmental organization sought
to be compelled is the Government of the United States"); § 1546
(fraud and misuse of visas, permits, and other immigration
documents); § 2331 (terrorist acts abroad against United States
nationals); 49 U.S. C.App. § 1472(n) (1982 ed. and Supp. V)
(aircraft piracy outside the special aircraft jurisdiction of the
United States, if the offender is found in the United States).
Foreign nationals may also be criminally liable for numerous
federal crimes falling within the "special maritime and territorial
jurisdiction of the United States," which includes "[a]ny place
outside the jurisdiction of any nation with respect to an offense
by or against a national of the United States." 18 U.S.C. § 7(7).
Finally, broad construction of federal conspiracy statutes may
permit prosecution of foreign nationals who have had no direct
contact with anyone or anything in the United States. See Ford
v. United States, 273 U. S. 593 , 273 U. S.
619 -620 (1927).

															[ Footnote 2/5 ]

															None of the cases cited by the majority, ante at 494 U. S. 271 ,
require an alien's connections to the United States to be
"voluntary" before the alien can claim the benefits of the
Constitution. Indeed, Mathews v. Diaz, 426 U. S.
67 , 426 U. S. 77 (1976), explicitly rejects the notion that an individual's
connections to the United States must be voluntary or sustained to
qualify for constitutional protection. Furthermore, even if a
voluntariness requirement were sensible in cases guaranteeing
certain governmental benefits to illegal aliens, e.g., Plyler
v. Doe, 457 U. S. 202 (1982) (holding that States cannot deny to illegal aliens the free
public education they provide to citizens and legally documented
aliens), it is not a sensible requirement when our Government
chooses to impose our criminal laws on others.

															[ Footnote 2/6 ]

															In this discussion, the Court implicitly suggests that the
Fourth Amendment may not protect illegal aliens in the United
States. Ante at 494 U. S. 273 .
Numerous lower courts, however, have held that illegal aliens in
the United States are protected by the Fourth Amendment, and not a
single lower court has held to the contrary. See, e.g.,
Benitez-Mendez v. INS, 760 F.2d 907 (CA9 1985); United
States v. Rodriguez, 532 F.2d 834, 838 (CA2 1976); Au
YiLau v. INS, 144 U.S.App.D.C. 147, 156, 445 F.2d 217, 225, cert. denied, 404 U.S. 864 (1971); Yam Sang Kwai v.
INS, 133 U.S.App. D.C. 369, 372, 411 F.2d 683, 686, cert.
denied, 396 U.S. 877 (1969).

															[ Footnote 2/7 ]

															The Fourth Amendment contains no express or implied territorial
limitations, and the majority does not hold that the Fourth
Amendment is inapplicable to searches outside the United States and
its territories. It holds that respondent is not protected by the
Fourth Amendment because he is not one of "the people." Indeed, the
majority's analysis implies that a foreign national who had
"developed sufficient connection with this country to be considered
part of [our] community" would be protected by the Fourth Amendment
regardless of the location of the search. Certainly nothing in the
Court's opinion questions the validity of the rule, accepted by
every Court of Appeals to have considered the question, that the
Fourth Amendment applies to searches conducted by the United States
Government against United States citizens abroad. See, e.g.,
United States v. Conroy, 589 F.2d 1258, 1264 (CA5), cert.
denied, 444 U.S. 831 (1979); United States v. Rose, 570 F.2d 1358, 1362 (CA9 1978). A warrantless, unreasonable search
and seizure is no less a violation of the Fourth Amendment because
it occurs in Mexicali, Mexico, rather than Calexico,
California.

															[ Footnote 2/8 ]

															President John Adams traced the origins of our independence from
England to James Otis' impassioned argument in 1761 against the
British writs of assistance, which allowed revenue officers to
search American homes wherever and whenever they wanted. Otis
argued that "[a] man's house is his castle," 2 Works of John Adams
524 (C. Adams ed. 1850), and Adams declared that "[t]hen and there
the child Independence was born." 10 Works of John Adams 248 (C.
Adams ed. 1856).

															[ Footnote 2/9 ]

															The majority places an unsupportable reliance on the fact that
the drafters used "the people" in the Fourth Amendment while using
"person" and "accused" in the Fifth and Sixth Amendments
respectively, see ante at 494 U. S.
265 -266. The drafters purposely did not use the term
"accused." As the majority recognizes, ante at 494 U. S. 264 ,
the Fourth Amendment is violated at the time of an unreasonable
governmental intrusion, even if the victim of unreasonable
governmental action is never formally "accused" of any wrongdoing.
The majority's suggestion that the drafters could have used
"person" ignores the fact that the Fourth Amendment then would have
begun quite awkwardly: "The right of persons to be secure in their
persons. . . . "

															[ Footnote 2/10 ]

															The only historical evidence the majority sets forth in support
of its restrictive interpretation of the Fourth Amendment involves
the seizure of French vessels during an "undeclared war" with
France in 1798 and 1799. Because opinions in two Supreme Court
cases, Little v.
Barreme , 2 Cranch 170 (1804), and Talbot v.
Seeman , 1 Cranch 1 (1801), "never suggested that
the Fourth Amendment restrained the authority of Congress or of
United States agents to conduct operations such as this," ante at 494 U. S. 268 ,
the majority deduces that those alive when the Fourth Amendment was
adopted did not believe it protected foreign nationals. Relying on
the absence of any discussion of the Fourth Amendment in these
decisions, however, runs directly contrary to the majority's
admonition that the Court only truly decides that which it
"expressly address[es]." Ante at 494 U. S. 272 (discussing INS v. Lopez-Mendoza, 468 U.
S. 1032 (1984)). Moreover, the Court in Little found that the American commander had violated the statute
authorizing seizures, thus rendering any discussion of the
constitutional question superfluous. See, e.g., Ashwander v.
TVA, 297 U. S. 288 , 297 U. S. 347 (1936) (Brandeis, J., concurring). And in Talbot, the
vessel's owners opposed the seizure on purely factual grounds,
claiming the vessel was not French. Furthermore, although neither Little nor Talbot expressly mentions the Fourth
Amendment, both opinions adopt a "probable cause" standard,
suggesting that the Court may have either applied or been informed
by the Fourth Amendment's standards of conduct. Little,
supra, at 2 Cranch 6 U. S. 179 ; Talbot, supra, 1 Cranch at 5
U. S. 31 -32 (declaring that "where there is probable
cause to believe the Vessel met with at sea is in the condition of
one liable to capture, it is lawful to take her, and subject her to
the examination and adjudication of the courts").

															[ Footnote 2/11 ]

															The last of the Insular Cases cited by the majority, Downes v. Bidwell, 182 U. S. 244 (1901), is equally irrelevant. In Downes, the Court held
that Puerto Rico was not part of "the United States" with respect
to the constitutional provision that "all Duties, Imposts and
Excises shall be uniform throughout the United States," U.S.
Const., Art. 1, § 8, cl. 1. 182 U.S. at 182 U. S. 249 .
Unlike the uniform duties clause, the Fourth Amendment contains no
express territorial limitations. See 494
U.S. 259 fn2/7|>n. 7, supra. [ Footnote 2/12 ]

															The District Court found no exigent circumstances that would
justify a warrantless search. After respondent's arrest in Mexico,
he was transported to the United States and held in custody in
southern California. Only after respondent was in custody in the
United States did the Drug Enforcement Administration (DEA) begin
preparations for a search of his Mexican residences. On the night
respondent was arrested, DEA Agent Terry Bowen contacted DEA
Special Agent Walter White in Mexico to seek his assistance in
conducting the search. Special Agent White contacted Mexican
officials the next morning and at 1 p.m. authorized Agent Bowen to
conduct the search. A team of DEA agents then drove to Mexico, met
with Mexican officials, and arrived at the first of respondent's
two residences after dark. 856 F.2d 1214, 1226 (CA9 1988). The
search did not begin until approximately 10 p.m. the day after
respondent was taken into custody.App. to Pet. for Cert. 101a. In
all that time, particularly when respondent and Agent Bowen were
both in the United States and Agent Bowen was awaiting further
communications from Special Agent White, DEA agents could easily
have sought a warrant from a United States Magistrate.

															[ Footnote 2/13 ]

															Justice STEVENS concurs in the judgment because he believes that
the search in this case "was not unreasonable' as that term is
used in the first clause of the Amendment." Ante at 494 U. S. 279 .
I do not understand why Justice STEVENS reaches the reasonableness
question in the first instance rather than remanding that issue to
the Court of Appeals. The District Court found that, even if a
warrant were not required for this search, the search was
nevertheless unreasonable. The court found that the search was
unconstitutionally general in its scope, as the agents were not
limited by any precise written or oral descriptions of the type of
documentary evidence sought.App. to Pet. for Cert. 102a.
Furthermore, the Government demonstrated no specific exigent
circumstances that would justify the increased intrusiveness of
searching respondent's residences between 10 p.m. and 4 a.m.,
rather than during the day. Id. at 101a. Finally, the DEA
agents who conducted the search did not prepare contemporaneous
inventories of the items seized or leave receipts to inform the
residents of the search and the items seized. Id. at 102a.
Because the Court of Appeals found that the search violated the
Warrant Clause, it never reviewed the District Court's alternative
holding that the search was unreasonable even if no warrant were
required. Thus, even if I agreed with Justice STEVENS that the
Warrant Clause did not apply in this case, I would remand to the
Court of Appeals for consideration of whether the search was
unreasonable. Barring a detailed review of the record, I think it
is inappropriate to draw any conclusion about the reasonableness of
the Government's conduct, particularly when the conclusion reached
contradicts the specific findings of the District Court. Justice KENNEDY rejects application of the Warrant Clause not
because of the identity of the individual seeking protection, but
because of the location of the search. See ante at 494 U. S. 278 (KENNEDY, J., concurring) ("[T]he Fourth Amendment's warrant
requirement should not apply in Mexico as it does in this
country"). Justice KENNEDY, however, never explains why the
reasonableness clause, as opposed to the Warrant Clause, would not
apply to searches abroad.

															[ Footnote 2/14 ]

															The United States Government has already recognized the
importance of these constitutional requirements by adopting a
warrant requirement for certain foreign searches. Department of the
Army regulations state that the Army must seek a "judicial warrant"
from a United States court whenever the Army seeks to intercept the
wire or oral communications of a person not subject to the Uniform
Code of Military Justice outside of the United States and its
territories. Army Regulation 190-53 � 2-2(b) (1986). Any request
for a judicial warrant must be supported by sufficient facts to
meet the probable cause standard applied to interceptions of wire
or oral communications in the United States, 18 U.S.C. § 2518(3).
Army Regulation 190-53 � 2-2(b). If the foreign country in which
the interception will occur has certain requirements that must be
met before other nations can intercept wire or oral communications,
an American judicial warrant will not alone authorize the
interception under international law. Nevertheless, the Army has
recognized that an order from a United States court is necessary
under domestic law. By its own regulations, the United States
Government has conceded that although an American warrant might be
a "dead letter" in a foreign country, a warrant procedure in an
American court plays a vital and indispensable role in
circumscribing the discretion of agents of the Federal
Government.

															Justice BLACKMUN, dissenting.

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

															I am inclined to agree with Justice BRENNAN, however, that when
a foreign national is held accountable for purported violations of
United States criminal laws, he has effectively been treated as one
of "the governed" and therefore is entitled to Fourth Amendment
protections. Although the Government's exercise of power abroad
does not ordinarily implicate the Fourth Amendment, the enforcement
of domestic criminal law seems to me to be the paradigmatic
exercise of sovereignty over those who are compelled to obey. In
any event, as Justice STEVENS notes, ante at 494 U. S. 279 ,
respondent was lawfully (though involuntarily) within this country
at the time the search occurred. Under these circumstances I
believe that respondent is entitled to invoke protections of the
Fourth Amendment. I agree with the Government, however, that an
American magistrate's lack of power to authorize a search abroad
renders the Warrant Clause inapplicable to the search of a
noncitizen's residence outside this country.

															The Fourth Amendment nevertheless requires that the search be
"reasonable." And when the purpose of a search is Page 494 U. S. 298 the procurement of evidence for a criminal prosecution, we have
consistently held that the search, to be reasonable, must be based
upon probable cause. Neither the District Court nor the Court of
Appeals addressed the issue of probable cause, and I do not believe
that a reliable determination could be made on the basis of the
record before us. I therefore would vacate the judgment of the
Court of Appeals and remand the case for further proceedings.