Justia Federal District Court Opinions

Rene Martin Verdugo-Urquidez is in custody awaiting trial on twenty counts of a forty-one-count indictment returned against him and thirty-eight other defendants. The indictment charges Verdugo-Urquidez with numerous narcotics and narcotics-related criminal violations, including conspiracy to import multi-ton quantities of marijuana into the United States, possession with intent to distribute multi-ton quantities of marijuana, and engaging in an on-going criminal enterprise. Verdugo-Urquidez's presence in the United States is the result of his arrest by Mexican police officers in Mexico and his delivery by them, across the border, into the waiting arms of the United States government. Verdugo-Urquidez challenged the district court's jurisdiction over him because of the manner in which the United States obtained his custody. The district court rejected this contention, and Verdugo-Urquidez has not sought to appeal that ruling. The government appeals from the district court's order suppressing certain evidence obtained by United States Drug Enforcement Agency ("DEA") agents during their search of Verdugo-Urquidez's residence in Mexicali, Mexico.

The government raises two major arguments on appeal. First, the government contends that Verdugo-Uriquidez, a Mexican national, may not invoke the fourth amendment to the Constitution to challenge the DEA's actions in searching his Mexicali home. In the alternative, the government argues that even if the fourth amendment extends to Verdugo-Uriquidez, the evidence seized nonetheless should have been admitted because the DEA agents reasonably relied on assurances of Mexican officials that the search was permissible under Mexican law, and the search was carried out in a reasonable manner. We have jurisdiction of this interlocutory appeal under 18 U.S.C. Sec. 3731. We conclude that Verdugo-Urquidez is entitled to the protections of the fourth amendment, and that the district court properly suppressed the evidence obtained in the search of his Mexicali residence.

* FACTS

Rene Martin Verdugo-Urquidez is reputed to be a drug smuggler and a killer. The DEA believes him to be one of the leaders of a large and violent organization based in Mexico, which smuggles large quantities of marijuana, cocaine and heroin into the United States. The DEA also believes Verdugo-Urquidez to have participated in the brutal and revolting kidnapping and torture-murder of DEA Special Agent Enrique Camarena Salazar. If these allegations are proved true at trial, there is little doubt that Verdugo-Urquidez's conduct has placed him beyond the pale of civilized society. But in this country, a person is presumed innocent until proven guilty. We would not permit a jury to discard this fundamental precept of criminal law simply because the accused is charged with a serious crime. Likewise, we will not allow ourselves to be swayed by the DEA's suspicions, no matter how well founded, or by the government's repeated assertions, that Verdugo-Urquidez is in some way responsible for the death of Special Agent Camarena.

Since the late 1970s, the DEA has kept abreast of Verdugo-Urquidez's alleged activities as a drug smuggler. Based on an informant's tip that Verdugo-Urquidez planned to transport several tons of marijuana into the United States, the DEA filed a sealed complaint against him on August 3, 1985, charging him with various violations of the criminal laws of the United States. Based on this complaint, the United States District Court for the Southern District of California issued a warrant for his arrest. Thereafter, the DEA stepped up its investigation efforts and attempted to apprehend Verdugo-Urquidez on one of his frequent trips to the United States. Unable to locate him in this country, the DEA confirmed that Verdugo-Urquidez resided in Mexicali, Mexico, and contacted the United States Marshals Service to determine whether it would be feasible for Mexican authorities to apprehend Verdugo-Urquidez in Mexico and deliver him to the United States for trial.

In January 1986, the United States Marshals Service contacted Mexican law enforcement officers, who advised the Service that Verdugo-Urquidez could be arrested by Mexican officers in Mexico, provided there was an outstanding United States warrant for his arrest. The Marshals showed the Mexican officers the warrant for Verdugo-Urquidez's arrest. The district court found that the following events then took place: On January 24, 1986, while driving his car in San Felipe, Baja California, Mexico, Verdugo-Urquidez was stopped by six Mexican police officers, at least one of whom showed him a badge. Verdugo-Urquidez was ordered from his car, arrested, handcuffed and placed in the back seat of the Mexican officers' unmarked car. With his hands still cuffed behind his back, the police forced Verdugo-Urquidez to lie face down on the car seat, with his head covered by his jacket. For most of the two-hour ride to the Mexican-American border, Verdugo-Urquidez either lay on the seat covered with his jacket or lay there blindfolded. At no time did the Mexican police officers explain to Verdugo-Urquidez where they were going or why he had been arrested. When the Mexican officers arrived at the border, they removed Verdugo-Urquidez from their car and walked him to where United States Marshals waited.¹ The Marshals placed Verdugo-Urquidez under arrest and drove him to the United States Border Patrol station in Calexico, California. The Marshals then phoned the DEA's resident agent in Calexico, Terry Bowen, who testified he had been waiting for the call informing him of Verdugo-Urquidez's arrest. The DEA took custody of Verdugo-Urquidez and delivered him to the Metropolitan Correctional Center in San Diego, California, where he remains incarcerated pending trial.

After the DEA took custody of Verdugo-Urquidez, Agent Bowen discussed with his fellow officers the prospect of searching Verdugo-Urquidez's house in Mexico. Agent Bowen believed that a search of Verdugo-Urquidez's Mexicali residence would disclose cash proceeds from his smuggling operations, as well as documentary evidence of those transactions, including drug ledgers and phone books listing the names and addresses of his associates. Agent Bowen also hoped that the search would disclose information relevant to the Camarena investigation. Agent Bowen contacted Walter White, the Assistant Special Agent in charge of DEA operations in Mexico. Agent Bowen and Special Agent White discussed the arrest of Verdugo-Urquidez and the possibility of a DEA search of Verdugo-Urquidez's Mexicali residence. Special Agent White told Agent Bowen that he would make some phone calls and would see what could be done.

Thereafter, Agent Bowen received Special Agent White's approval to search the Mexicali residence.² On January 25, 1988, a team of four DEA agents drove to Mexicali, Mexico, where they met with the local commandante of the Mexican Federal Judicial Police (MFJP). With the help of several MFJP officers, the DEA searched Verdugo-Urquidez's Mexicali residence, as well as a house owned by Verdugo-Urquidez located in San Felipe, Baja California, Mexico. The search of the Mexicali residence disclosed a tally sheet, which purportedly reflects the quantities of marijuana smuggled into the United States by Verdugo-Urquidez.

Verdugo-Urquidez moved to suppress the evidence seized from his Mexicali residence. After a hearing, the court concluded that the fourth amendment to the Constitution applied to the DEA's search because it was a "joint venture" of the American and Mexican police officers. Furthermore, the court held that a foreign national is entitled to seek the suppression of evidence seized by American officers during a search conducted in a foreign country on the ground that the search violates the norms established by the fourth amendment. The district court then suppressed the evidence seized by the DEA because it concluded the search was invalid for two reasons: First, the DEA failed to seek a warrant authorizing the search. Second, even if a warrant was not required to authorize the search, the DEA's conduct in carrying out that search was not reasonable because the search was unconstitutionally general, it occurred after midnight and the DEA failed to leave a contemporaneous inventory of the evidence seized. The government appeals.

II

ANALYSIS

Applicability of Fourth Amendment

The threshold issue we confront is whether a foreign national whose foreign residence has been searched by United States law enforcement officers may challenge that search under the fourth amendment. Strangely enough, this question has not yet been answered by the Supreme Court or definitively resolved by any circuit court of appeals. Indeed, until this case, we have been content simply to assume that the fourth amendment constrains the manner in which the federal government may pursue its extraterritorial law enforcement objectives. See, e.g., United States v. Peterson, 812 F.2d 486, 489 (9th Cir.1987).

1. The Fourth Amendment Limits Government Action Abroad

We begin our analysis with a proposition so reasonable and unremarkable that most people would find it bizarre indeed to learn that the rule has ever been otherwise:

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 country.

Reid v. Covert, 354 U.S. 1, 5-6, 77 S.Ct. 1222, 1225, 1 L.Ed.2d 1148 (1957) (plurality opinion) (footnotes omitted); see also id. at 56, 77 S.Ct. at 1251 (Frankfurter, J., concurring in the result) ("Governmental action abroad is performed under both the authority and the restrictions of the Constitution."); cf. id. at 66, 77 S.Ct. at 1256 (Harlan, J., concurring in the result) ("The powers of Congress ... are constitutionally circumscribed. Under the Constitution Congress has only such powers as are expressly granted or those that are implied as reasonably necessary and proper to carry out the granted powers."). And yet, for a time, it was settled law that the Constitution applied "only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners abroad." In re Ross, 140 U.S. 453, 464, 11 S.Ct. 897, 900, 35 L.Ed. 581 (1891) (emphasis added). This was said to be so because "[b]y the Constitution, a government is ordained and established 'for the United States of America,' and not for countries outside of their limits.... [Therefore, the] Constitution can have no operation in another country." Id. (citations omitted). The Supreme Court soon rejected this constrictive interpretation of the Constitution in favor of a more expansive vision of its reach. See, e.g., Balzac v. Porto Rico, 258 U.S. 298, 312-13, 42 S.Ct. 343, 348, 66 L.Ed. 627 (1922) ("The Constitution of the United States is in force in Porto Rico [sic] as it is wherever and whenever the sovereign power of that government is exerted."). In its Reid decision, the Court extended the Constitution's application to acts by the federal government in a foreign country. Reid, 354 U.S. at 7-9, 77 S.Ct. at 1225-26; see also Note, The Extraterritorial Application of the Constitution--Unalienable Rights?, 72 Va.L.Rev. 649, 659 (1986) ("[T]he Reid decision ... represents the abandonment of the nineteenth century concept of strict territoriality."). In so construing the reach of the Constitution, a plurality of the Court rejected the notion that "only those constitutional rights which are 'fundamental' protect Americans abroad." Reid, 354 U.S. at 9, 77 S.Ct. at 1226 (plurality opinion) (footnote omitted).

From these cases, a proposition of enormous vitality may be drawn: The Constitution imposes substantive constraints on the federal government, even when it operates abroad. See, e.g., Saltzburg, The Reach of the Bill of Rights Beyond the Terra Firma of the United States, 20 Va.J.Int'l L. 741, 745 (1980) ("Wherever and whenever the [federal government] acts it relies on the Constitution as the source of its powers. Whenever it acts, it must, therefore, accept the limits on its power imposed by the ... Constitution.... Thus, the Bill of Rights controls the activities of U.S. law enforcement officers wherever they occur."). In applying these substantive constitutional constraints, it is important to recall that

[t]he concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government.

Reid, 354 U.S. at 14, 77 S.Ct. at 1229 (plurality opinion). Thus, in the context of this case, which involves the aggressive and laudable pursuit by the federal government of a legitimate law enforcement objective--the apprehension and prosecution of a suspected drug dealer of the worst sort--we also must take great pains to ensure that the Constitution does not become the first casualty in the "War on Drugs." See Wisotsky, Crackdown: The Emerging "Drug Exception" to the Bill of Rights, 38 Hastings L.J. 889 (1987). See generally Kamisar, "ComparativeReprehensibility" and the Fourth Amendment Exclusionary Rule, 86 Mich.L.Rev. 1 (1987).

2. Aliens Brought to United States for Criminal Trials May Challenge Federal Government's Conduct under Fourth Amendment

Having concluded that the Constitution limits the government's authority when it acts abroad, we must address the key question in this case: May a nonresident alien challenge the reasonableness of the federal government's actions under the fourth amendment? Under the facts of the present case, we hold that such a challenge may be raised.

The government's position in this case derives from a vision of the Constitution as a compact between the people of the United States and the federal government. This theory espouses the view that the Constitution should be regarded as a reciprocal arrangement between "The People" and the federal government. See U.S. Const. preamble ("WE THE PEOPLE of the United States ... do ordain and establish this Constitution for the United States of America."). That is, "The People" cede to their government substantial authority over them in exchange for which the government agrees to abide by the limitations imposed on it by the Constitution. Verdugo-Urquidez is a nonresident alien. The compact theory tells us, then, that because Verdugo-Urquidez is not one of "The People" to whom the promise of the Constitution runs, he has no right to complain of governmental action in excess of that permitted by the Constitution.

This compact theory of the Constitution has deep roots in our nation's history. The interpretation of the Constitution as a contract also has found some expression in the courts. See, e.g., Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 471, 1 L.Ed. 440 (1793) (opinion of Jay, C.J.) ("[T]he constitution of the United States is likewise a compact made by the people of the United States, to govern themselves, as to general objects, in a certain manner."); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404, 4 L.Ed. 579 (1819) (Marshall, C.J.) ("The government of the Union ... is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit."); League v. De Young, 52 U.S. (11 How.) 185, 202, 13 L.Ed. 657 (1850) ("The Constitution of the United States was made by, and for the protection of, the people of the United States."); In re Ross, 140 U.S. 453, 464, 11 S.Ct. 897, 900, 35 L.Ed. 581 (1891) ("By the Constitution a government is ordained and established 'for the United States of America,' and not for countries outside of their limits.... The Constitution can have no operation in another country." (citation omitted)). The compact theory also has its adherents in the academic world. See, e.g., Stephan, Constitutional Limits on International Rendition of Criminal Suspects, 20 Va.J.Int'l L. 777, 782 (1980) (observing that there is a "long held understanding that, in general, foreign nationals abroad are neither parties to nor beneficiaries of the agreement between the federal government and its people embodied in the Constitution").

Notwithstanding these sources, we are not persuaded that the compact theory is a legitimate mode for applying the Constitution in this case. This is so for three reasons we discuss hereafter: First, the historical evidence is equivocal and many sources may be cited in support of a broader interpretation of the Constitution. Second, the Supreme Court cases discussed above address the distinct problem of the relationship between the states and the federal government, and therefore provide little help in deciding how the federal government may act when it pursues extraterritorial objectives. Finally, decisions of the Supreme Court extending certain constitutional protections to aliens in other contexts show that the compact theory has been severely limited in its scope.

a. The Historical Record

As we have noted, there are historical sources that support the compact theory of the Constitution. These sources, however, reflect only part of the philosophical concerns reflected in the Constitution and the Bill of Rights. There are many historical records and commentaries explaining that Americans of the Revolutionary Era held a deeply-felt belief in the "natural rights" of man. Indeed, one need look no further than the Declaration of Independence, with its references to "the laws of nature" and "inalienable rights." See Declaration of Independence (1776), reprinted in 1 B. Schwartz, The Bill of Rights: A Documentary History 251-52 (1971).

Further historical evidence of the "natural rights" theory abounds. For example, the various states' declarations of rights that served as the forerunners of our Bill of Rights again and again emphasize that the government is to respect the individual's natural rights. Thus, the preamble to the Vermont Declaration of Rights explains that "all government ought to be instituted and supported, for the security and protection of the community, as such, and to enable the individuals who compose it, to enjoy their natural rights, and the other blessings which the Author of existence has bestowed upon man." Vermont Declaration of Rights (1777), reprinted in 1 B. Schwartz, supra, at 319. And in enumerating the rights enjoyed by the inhabitants of Vermont, we find

That the people have a right to hold themselves, their houses, papers and possessions free from search or seizure; and therefore warrants, without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted.

Id. c.1, art. XI, reprinted in 1 B. Schwartz, supra, at 323.

A number of other sources, from the nineteenth century to the present, support an interpretation of the Constitution that emphasizes an intent to prevent arbitrary encroachment by government on these "natural rights." See, e.g., II J. Kent, Commentaries on American Law 1 (New York 1827) ("The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights have been justly considered, and frequently declared, by the people of this country, to be natural, inherent, and unalienable."). As Professor Schwartz also has explained:

The dominant conception when the Framers wrote was that stated in Blackstone: "By the absolute rights of individuals, we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it."

III B. Schwartz, A Commentary on the Constitution of the United States: Rights of the Person (Volume 1) 170 (1968) (emphasis in original; footnote omitted). See generally Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan.L.Rev. 843 (1978); Henkin, Rights: Here and There, 81 Colum.L.Rev. 1582, 1584-90 (1981); Note, supra, 72 Va.L.Rev. at 650 n. 8 (collecting sources). Thus, while the Framers may have used the phrase "compact" to explain the political theory by which the federal government was created, history also teaches that the Founders believed the Constitution would protect their inalienable rights.

Justice Story in his Commentaries on the Constitution of the United States cast considerable doubt on the validity of the compact theory. For instance, Justice Story found it peculiar to think of the Constitution as a contract because constitutions "are not only not founded upon the assent of all the people within the territorial jurisdiction, but that assent is expressly excluded by ... [restricting] ratification ... to those, who are qualified voters." 1 J. Story, Commentaries on the Constitution of the United States Sec. 327, at 296-97 (Boston 1833). Thus, the Constitution may not be treated as a contract because it purports to bind those who did not assent to it, were not permitted to assent to it and, as well, those born after its ratification. Id. Sec. 328, at 297-98. Justice Story concluded that if the Constitution protects all "The People" of the United States, as it surely does, the protection it gives them cannot derive solely from a contract theory.

It would, indeed, be an extraordinary use of language to consider a declaration of rights in a constitution, and especially of rights, which it proclaims to be "unalienable and indefeasible," to be a matter of contract, and resting on such a basis, rather than a solemn recognition and admission of those rights, arising from the law of nature, and the gift of Providence, and incapable of being transferred or surrendered.

Id. Sec. 340, at 309 (emphasis in original).

b. "Compact" Theory in the Supreme Court

Earlier in this opinion, we cited four Supreme Court cases which explained that the Constitution is a compact between the people and the federal government. These cases, however, provide scant guidance in deciding whether the fourth amendment permits Verdugo-Urquidez to challenge an unreasonable search of his Mexicali residence by the federal government. In three of these cases, the Court considered some aspect of the relationship between the states and the federal government. E.g., Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440 (1793) (considering whether a state may be sued in the Supreme Court by an individual citizen of another state); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819) (holding that a state may not tax an instrumentality of the federal government properly created by Congress in pursuit of an enumerated power); League v. De Young, 52 U.S. (11 How.) 185, 13 L.Ed. 657 (1850) (holding that a statute passed pursuant to the Constitution of the Republic of Texas could not be challenged as unconstitutional because, until Texas joined the Union, it was a sovereign power not bound by the United States Constitution). Each case involved problems of federalism. The Supreme Court used the compact theory to explain that by ratifying the Constitution, the states surrendered some of their authority to the federal government. Thus, these cases cannot be considered authoritative on the question whether the Constitution applies to the extraterritorial acts of the federal government. Neither do they explain who may assert the protections of the fourth amendment.

Unlike the three cases previously mentioned, In re Ross, 140 U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581 (1891), was one of a different line of cases in which the Court considered the extraterritorial application of the Constitution. The Court held in Ross that because the Constitution applies only within the United States, the trial of an American citizen in an American consular court neither required indictment by a grand jury nor a jury trial. See id. at 464, 11 S.Ct. at 900. But, as we explained supra in subpart II(A)(1), the Ross case is no longer good law in light of Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957). See Reid, 354 U.S. at 5-6, 77 S.Ct. at 1224-25 (plurality opinion); id. at 56, 77 S.Ct. at 1251 (Frankfurter, J., concurring in the result). Moreover, the Ross decision actually supports Verdugo-Urquidez's argument that the fourth amendment applies to him.

The guarantees [the Constitution] affords against accusation of capital or infamous crimes, except by indictment or presentment by grand jury, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners abroad.

Ross, 140 U.S. at 464, 11 S.Ct. at 900 (emphasis added).

c. Constitutional Protections for Aliens

A number of cases have extended constitutional protections to resident aliens. See, e.g., Yick Wo v. United States, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886) (extending fourteenth amendment to resident aliens because that amendment "is not confined to the protection of citizens"); Bridges v. Wixon, 326 U.S. 135, 161, 65 S.Ct. 1443, 1455, 89 L.Ed. 2103 (1945) (Murphy, J., concurring) (emphasizing that among the protections enjoyed by resident aliens are first, fifth and fourteenth amendment rights); Kwang Hai Chew v. Colding, 344 U.S. 590, 596, 601, 73 S.Ct. 472, 477, 479, 97 L.Ed. 576 (1953) (holding that a resident alien is a "person" within the meaning of the fifth amendment). True enough, these cases may be explained by the compact theory. That is, by becoming a resident, an alien "is bound to obey all the laws of the country, not immediately relating to citizenship, during [his or her] sojourn in it." Carlisle v. United States, 83 U.S. (16 Wall.) 147, 154, 21 L.Ed. 426 (1873); see also Radich v. Hutchins, 95 U.S. 210, 211, 24 L.Ed. 409 (1877) ("As a foreigner domiciled in the country, ... [the alien] owed allegiance to the government of the country so long as he resided within its limits."). By accepting the obligations of allegiance to the United States, the alien receives in exchange some measure of constitutional protection.

The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes a preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.

Johnson v. Eisentrager, 339 U.S. 763, 770, 70 S.Ct. 936, 939, 94 L.Ed. 1255 (1950); see also Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982) (discussing Johnson with approval).

On the other hand, the Court has stated that an alien seeking admission to the United States enjoys no constitutional rights. See, e.g., Landon, 459 U.S. at 32, 103 S.Ct. at 329; United States ex rel. Turner v. Williams, 194 U.S. 279, 292, 24 S.Ct. 719, 723, 48 L.Ed. 979 (1904) ("[An alien] does not become one of the people to whom [first amendment rights] are secured by our Constitution by an attempt to enter forbidden by law.... [T]hose who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise."). Just as it does in the resident alien cases, the compact theory adequately explains these "aliens seeking admission" decisions. The compact analysis fails, however, upon an examination of those cases in which constitutional protections have been extended to illegal aliens who are within the United States.

The Supreme Court has extended significant constitutional protections to aliens within the United States, without distinguishing between those who are here legally or illegally, or between residents and visitors. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886) ("The Fourteenth Amendment ... is not confined to the protection of citizens.... [Its] provisions are universal in their application, to all persons within the territorial jurisdiction [of the United States]."); In re Ross, 140 U.S. 453, 464, 11 S.Ct. 897, 900, 35 L.Ed. 581 (1891) (holding that although fifth and sixth amendments do not apply to trials conducted in consular courts, their guarantees apply to "citizens and others within the United States, or who are brought there for trial"); Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 981, 41 L.Ed. 140 (1896) (holding that "all persons within the territory of the United States are entitled to the protection guaranteed by [the fifth and sixth] amendments"); United States ex rel. Turner v. Williams, 194 U.S. 279, 291, 24 S.Ct. 719, 722, 48 L.Ed. 979 (1904) (observing that fifth and sixth amendments protect aliens once they are in this country); Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976) (explaining that all aliens within the jurisdiction of the United States enjoy the protections of the fifth and fourteenth amendments and may not be invidiously discriminated against by the federal government). In other cases, the Court has considered specifically the constitutional protections enjoyed by illegal aliens. See, e.g., Plyler v. Doe, 457 U.S. 202, 211, 102 S.Ct. 2382, 2391, 72 L.Ed.2d 786 (1982) (holding that under the Equal Protection Clause of the fourteenth amendment, states may not discriminate against illegal aliens by withholding free public education; rejecting argument that illegal aliens are not within the jurisdiction of the states or the federal government and therefore are not entitled to equal protection rights). From these cases, we learn that aliens within the United States enjoy the benefits of the first, fifth, sixth and fourteenth amendments. The question we consider today is whether an alien, Verdugo-Urquidez, can claim benefits under the fourth amendment.

One argument against the application of the fourth amendment to Verdugo-Urquidez is that the language of this amendment is different from the language of the amendments that already have been found to protect aliens. For example, the first amendment broadly proscribes certain governmental conduct, while the fifth, sixth and fourteenth amendments prohibit certain acts, or provide certain rights, with respect to "persons." In a number of cases, the Court has remarked of these amendments that their "provisions are universal in their application." See, e.g., Yick Wo, 118 U.S. at 369, 6 S.Ct. at 1070 (fourteenth amendment); Wong Wing, 163 U.S. at 238, 16 S.Ct. at 981 (fifth and sixth amendments). The fourth amendment, in contrast, protects "the people" against unreasonable searches. It provides:

The right of the people to be secure in their persons, houses, papers, and effects, and 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.

U.S. Const. amend. IV.

We do not read the phrase "The right of the people to be secure" as restricting the application of the fourth amendment to any special class of people. The language of the amendment does not so limit "people," and we will not insert qualifying language into the amendment to limit its application in such a fashion. In the present case, Verdugo-Urquidez, an alien in the custody of our government awaiting trial in our country, seeks to assert the protection of the fourth amendment. He is not in this country "illegally;" he's here because our government wants him here to face criminal charges. He is being prosecuted for alleged violations of Unites States laws in a United States court. We can discern no conceivable reason why he should be denied the protection of the fourth amendment in connection with this prosecution.

We find support for the proposition that illegal aliens have fourth amendment rights in statements which appear in Immigration & Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984). There, the Court held that deportation hearings are not criminal proceedings, id. at 1038, 104 S.Ct. at 3483, and they are not appropriate proceedings in which to apply the exclusionary rule. Id. at 1041-50, 104 S.Ct. at 3484-89. Significantly, in the final part of the Lopez-Mendoza decision, a plurality of the Court stated:

We do not condone any violations of the Fourth Amendment that may have occurred in the arrests of respondents Lopez-Mendoza and Sandoval Sanchez.... Our conclusions concerning the exclusionary rule's value might change, if there developed good reason to believe that Fourth Amendment violations by INS officers were widespread.

Id. at 1050, 104 S.Ct. at 3489. And in their dissenting opinions, four other justices expressed the view that illegal aliens have fourth amendment rights. See id. at 1051, 104 S.Ct. at 3490 (Brennan, J.) ("In this case, federal law enforcement officers arrested respondents ... in violation of their Fourth Amendment rights."); id. at 1055, 104 S.Ct. at 3491 (White, J., joined in pertinent part by Stevens, J.) (opining that fourth amendment violations often go unchallenged by illegal aliens because "once the Government has improperly obtained illegal evidence against an illegal alien, he is removed from the country"); id. at 1060, 104 S.Ct. at 3494 (Marshall, J.) (acknowledging fourth amendment rights of illegal aliens). Indeed, in the Lopez-Mendoza case, the Solicitor General of the United States conceded that illegal aliens have fourth amendment rights:

The determinative question, therefore, is not whether the protections of the Fourth Amendment extend to deportable aliens discovered in this country--a proposition we do not contest--but whether it is appropriate to permit illegal aliens to invoke the exclusionary rule in civil deportation proceedings in order to perpetuate their unlawful presence in the United States.

Brief for Petitioner at 10-11, I.N.S. v.Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984) (emphasis added).

Given that in Lopez-Mendoza eight of nine Supreme Court justices, as well as the Solicitor General, took the position that illegal aliens possess fourth amendment rights, it is difficult to conclude that Verdugo-Urquidez lacks these same protections. The Court has told us that all aliens, "[e]ven one whose presence in this country is unlawful, involuntary, or transitory," enjoy fifth and fourteenth amendment rights, see Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976) (emphasis added), as well as sixth amendment rights, see Wong Wing, 163 U.S. at 238, 16 S.Ct. at 981. Consequently, it seems absurd to grant the protection of the fourth amendment to one whose presence in the country is voluntary although illegal, and yet deny it to Verdugo-Urquidez, whose presence in the United States, although legal, is plainly involuntary. Verdugo-Urquidez was arrested by the United States government when he was delivered into its custody by the Mexican police, and then, with criminal charges pending against him in this country, the federal government searched his residence in Mexico solely to obtain evidence to be used against him in his criminal prosecution. It 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, both of which rights he is accorded under established constitutional jurisprudence, and deny him the protection from unreasonable searches and seizures afforded under the fourth amendment.³

We hold that Verdugo-Urquidez may challenge the government's search of his Mexicali residence under the fourth amendment. We now consider whether this search was a search by the federal government.

In Stonehill v. United States, 405 F.2d 738, 743 (9th Cir.1968), cert. denied, 395 U.S. 960, 89 S.Ct. 2102, 23 L.Ed.2d 747 (1969), we observed that "[n]either the Fourth Amendment to the United States Constitution nor the exclusionary rule of evidence, designed to deter Federal officers from violating the Fourth Amendment, is applicable to the acts of foreign officials." Id. at 743. Because the fourth amendment does not itself require exclusion of unlawfully obtained evidence, and because excluding reliable evidence will not force foreign officers to abide by the norms of the fourth amendment, the exclusionary rule has no application to searches conducted solely by a foreign government. Id. We explained, however, that "the Fourth Amendment could apply to raids by foreign officials ... if Federal agents so substantially participated in the raids so as to convert them into joint ventures between the United States and foreign officials." Id.⁴

Since our decision in Stonehill, other circuit courts of appeals have addressed the "joint venture" doctrine, although not all circuits have phrased the analysis in the way we have. See, e.g., United States v. Rosenthal, 793 F.2d 1214, 1231 (11th Cir.), modified, 801 F.2d 378 (1986), cert. denied, 480 U.S. 919, 107 S.Ct. 1377, 94 L.Ed.2d 692 (1987); United States v. Paternina-Vergara, 749 F.2d 993, 998 (2d Cir.1984), cert. denied, 469 U.S. 1217, 105 S.Ct. 1197, 84 L.Ed.2d 342 (1985); United States v. Hawkins, 661 F.2d 436, 455-56 (5th Cir. Unit B Nov. 1981); United States v. Heller, 625 F.2d 594 599-600 (5th Cir.1980); United States v. Marzano, 537 F.2d 257, 269-71 (7th Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 734, 50 L.Ed.2d 749 (1977). The "joint venture" analysis also has been applied repeatedly by this court. See, e.g., United States v. Peterson, 812 F.2d 486, 490 (9th Cir.1987); United States v. Benedict, 647 F.2d 928, 9 0-31 (9th Cir.), cert. denied, 454 U.S. 1087, 102 S.Ct. 648, 70 L.Ed.2d 624 (1981); United States v. Maher, 645 F.2d 780, 782-83 (9th Cir.1981); United States v. Rose, 570 F.2d 1358, 1361-62 (9th Cir.1978). Notwithstanding the extensive discussion of the doctrine in the courts, however, it remains as true now as it was in 1976 when the Fifth Circuit observed:

The few courts that have considered the question of how much American participation in a foreign search and seizure is required to mandate application of the exclusionary rule have not been unanimous in their choice of the precise test to be applied--though they have as a statistical matter been virtually unanimous in rejecting claims of undue participation.

United States v. Morrow, 537 F.2d 120, 140 (5th Cir.1976). Nevertheless, when we consider the facts of this case against the backdrop of prior cases, it is abundantly clear that the DEA's involvement in this search was so great that no court could logically conclude anything other than that the search was an American operation from start to finish.

a. The Mexicali Search

Based on DEA Agent Terry Bowen's own investigation and surveillance in Mexico, and relying on reports by other DEA agents or confidential informants, Agent Bowen concluded that Verdugo-Urquidez's Mexicali house was his principal residence in Mexico. Agent Bowen also concluded from reports of confidential informants that Verdugo-Urquidez owned another house in San Felipe, Baja California, Mexico. Agent Bowen believed that a search of these houses would disclose cash proceeds of Verdugo-Urquidez's alleged narcotics transactions, as well as relevant documentary evidence, including drug ledgers and address books identifying Verdugo-Urquidez's associates. Agent Bowen also hoped that the searches would disclose information pertaining to the Camarena murder investigation. The district court found that Agent Bowen's "express objective in conducting the ... searches was to obtain evidence for use against Verdugo in the pending United States prosecution." [CR 384, at 2-3]. The court also found that while Agent Bowen had participated in other searches in Mexico, in almost none of those cases had seized evidence subsequently been introduced against a defendant in a criminal trial. "Despite his inexperience with the use of such foreign seized evidence in a United States prosecution, Bowen did not discuss the searches with anyone prior to making his decisions. Bowen alone made the decision to conduct the searches." [CR 384, at 3].

On January 24, 1986, Agent Bowen telephoned Walter White, the Assistant Special Agent in charge of DEA operations in Mexico. Agent Bowen and Special Agent White discussed the arrest of Verdugo-Urquidez and Agent Bowen's interest in searching the Mexicali and San Felipe residences. Agent Bowen asked Special Agent White to contact Florentino Ventura, the Director General of the Mexican Federal Judicial Police (MFJP), and ask him to authorize the search and instruct the local MFJP commandante to cooperate with the DEA. Special Agent White did not ask Agent Bowen whether the approval of the Justice Department had been sought or obtained, although he agreed to contact Director Ventura.

After their conversation, Special Agent White unsuccessfully attempted to reach Ortega Padilla, the Second Deputy Attorney General for the Republic of Mexico, and Director Ventura. The next morning, Special Agent White reached Director Ventura and explained to him that DEA agents in Calexico believed Verdugo-Urquidez's Mexican residences contained evidence relevant to a pending criminal prosecution and wanted permission to search. Director Ventura agreed to authorize the search. He told Special Agent White that Agent Bowen should inform the local MFJP commandante in Mexicali that permission for the searches had been received and that the MFJP officers were to cooperate.

At approximately 1:00 p.m. on January 25, 1986, Special Agent White called Agent Bowen and gave him the go-ahead for the search. Agent Bowen already had assembled a team of three other DEA officers, all of whom knew that Verdugo-Urquidez had been arrested and that he also was a suspect in the Camarena case. Agent Bowen instructed his officers that they were to seize any documentary evidence relevant to Verdugo-Urquidez's alleged narcotics activities. After receiving Special Agent White's phone call, the four DEA officers drove to the MFJP office in Mexicali, Mexico. Agent Bowen then met with the local MFJP commandante, Enrique Salazar-Ramos, and informed him of Verdugo-Urquidez's arrest and that Director Ventura had authorized the searches "and stated that the local MFJP officers were to assist the DEA agents in conducting the searches." [CR 384, at 5]. Commandante Salazar verified Agent Bowen's statements by placing a phone call, apparently to one of the commandante's superior officers. After assuring the DEA agents that "everything was fine," Commandante Salazar said that he wanted to check with the "delegado," the official representative of the Mexican Attorney General in Mexicali. Shortly thereafter, the commandante returned and agreed to help in the search. Before leaving the MFJP office, Commandante Salazar told the DEA agents that they would be permitted to take back to the United States any documentary items they found.

With a team of between ten and fifteen MFJP officers, the DEA agents and Commandante Salazar drove to the Mexicali residence, arriving there after dark. Commandante Salazar stationed some of his officers around the perimeter of the house and, while the DEA agents waited in the street, an entry team composed entirely of MFJP officers entered the house. While the MFJP officers conducted a security sweep, the DEA agents entered the house but they did not search the house at this time.

Because it was already late and because San Felipe was two hours away, Commandante Salazar and Agent Bowen decided to drive there and search the San Felipe house first. The commandante left behind a force of four or five officers who were instructed to secure the Mexicali residence, but who were told not to search it until he and the DEA agents returned. The DEA and the remaining MFJP officers then drove to San Felipe, where they searched Verdugo-Urquidez's San Felipe residence. The district court found that most of the MFJP officers stood a perimeter watch while the DEA agents searched the house over a two-hour period. The court found that "the DEA agents actively participated in the search itself, both in terms of actually looking for relevant documentary items and identifying as relevant those documentary items discovered by MFJP officers." [CR 384, at 7]. During this search, the items were segregated depending upon which agency seized them. At the conclusion of the search, which occurred some time before midnight, seized items were turned over to the DEA agents. The MFJP officers seized several weapons, as well as a 1984 Grand Marquis and some other motor vehicles. Neither the MFJP nor the DEA left a receipt or inventory identifying the seized items.

The commandante and the DEA then returned to the Mexicali residence, arriving about two hours after leaving San Felipe. The district court found that Commandante Salazar, at least two or three MFJP officers, and three of the four DEA agents conducted a room-by-room search of the Mexicali house. The DEA agents seized evidence thought relevant, while the MFJP officers brought documents they found to Agent Bowen, who decided whether the DEA wanted them. Again, the seized items were segregated based on which agency found them, although all the seized documents were placed in the DEA agents' car. And, as in the San Felipe search, the MFJP kept all weapons they found.

At around 3:00 or 4:00 a.m., Commandante Salazar grew tired of the search, which at that time was being conducted by Agent Bowen, who was sorting through several files found in a cabinet kept in the back portion of the house. The commandante placed all the remaining documents in a briefcase and handed the briefcase to Agent Bowen. Commandante Salazar told Agent Bowen to take all the documents and sort through them later because it was late and he wanted the search to end. Agent Bowen placed the briefcase in the DEA's car, and the MFJP and DEA agents left the Mexicali house. The DEA agents then returned to the United States with the seized documents. Once back in the United States, the DEA agents prepared inventories and written reports identifying the seized documents. Of the seized evidence, the government sought only to introduce a tally sheet found during the search of the Mexicali residence. The tally sheet purportedly reflects the quantities of marijuana smuggled by Verdugo-Urquidez into the United States.

b. Analysis of Mexicali Search

Based on the facts found by the district court, which the government does not contend are clearly erroneous, we conclude the searches of the Mexicali and San Felipe residences were American searches to which the fourth amendment applies. Indeed, given the high degree of American involvement in the searches and the low degree of Mexican interest in Verdugo-Urquidez, we do not even find the question a close one.

This is not a case in which United States agents merely supplied a tip to a foreign law enforcement agency, which then conducted an investigation and made a search or arrest leading to an American prosecution. See, e.g., United States v. Hawkins, 661 F.2d 436, 455-56 (5th Cir. Unit B Nov. 1981); United States v. Heller, 625 F.2d 594, 600 (5th Cir.1980). Neither is this a case in which a foreign government invited American agents to observe an arrest or a search of interest to both countries. See, e.g., United States v. Rosenthal, 793 F.2d 1214, 1231 (11th Cir.), modified, 801 F.2d 378 (1986), cert. denied, 480 U.S. 919, 107 S.Ct. 1377, 94 L.Ed.2d 692 (1987); United States v. Benedict, 647 F.2d 928, 930-31 (9th Cir.), cert. denied, 454 U.S. 1087, 102 S.Ct. 648, 70 L.Ed.2d 624 (1981). This also is not a case illustrating legitimate international law enforcement cooperation in which American or foreign law enforcement officials contacted their counterparts in other countries to plan a joint operation in which the American involvement is minimal. See, e.g., United States v. Maher, 645 F.2d 780, 783 (9th Cir.1981); United States v. Morrow, 537 F.2d 120, 139-40 (5th Cir.1976). Finally, this is not a case in which we must decide whether American law enforcement officials induced their foreign counterparts to conduct a search in order for the American agents to circumvent the fourth amendment. See, e.g., United States v. Paternina-Vergara, 749 F.2d 993, 998 (2d Cir.1984), cert. denied, 469 U.S. 1217, 105 S.Ct. 1197, 84 L.Ed.2d 342 (1985); United States v. Hawkins, 661 F.2d 436, 456 (5th Cir. Unit B Nov. 1981).

The present case is similar to two other cases in which a "joint venture" has been found. In United States v. Emery, 591 F.2d 1266 (9th Cir.1978), a "joint venture" was found because the DEA tipped the Mexican authorities to a possible smuggling transaction to take place in Mexico. The DEA, however, also planted an undercover operative with the suspected narcotics trafficker. Moreover, the DEA coordinated the surveillance of the suspected site of the transaction, and gave the prearranged signal for the Mexican police to move in and make the arrest. Id. at 1267. Similarly, in United States v. Peterson, 812 F.2d 486 (9th Cir.1987), a "joint venture" between the DEA and Phillipine authorities was found because the DEA's role was not subordinate to that of the Phillipine police. Id. at 490.

The present case falls within the scope of this "joint venture" doctrine. Indeed, many of the facts in this case are precisely those found to be lacking in our seminal Stonehill decision, which explained the doctrine we are now applying. Here, it was the American authorities who planned and instigated the searches to secure evidence to be used in an American trial; there was no existing Mexican investigation of Verdugo-Urquidez then under way. But see Stonehill v. United States, 405 F.2d 738, 646 (9th Cir.1968); cert. denied, 395 U.S. 960, 89 S.Ct. 2102, 23 L.Ed.2d 747 (1969). Second, the activities of the DEA took place before, during and after the search. But see id. Third, before the search began the MFJP informed the DEA that they could keep all evidence seized during the search. But see id. Fourth, it was the DEA who took the initiative in ensuring the search took place soon afterVerdugo-Urquidez's arrest. But see id. Finally, when the DEA contacted the MFJP about the search, they were not only seeking assistance from the Mexican police, they were asking for permission to run their own operation. It was Agent Bowen who specified which documents were the objects of the search. The MFJP officers brought the documents they found to Agent Bowen for him to evaluate their relevance to his objectives. All the seized documents were kept by the DEA. Indeed, the MFJP's interest in the search was so minimal that when the commandante grew tired, he simply placed all unsorted documents into a single briefcase and gave the briefcase to Agent Bowen. In short, it is clear that the DEA controlled the operation.

Having determined that the fourth amendment applies to the DEA's search of the Mexicali residence, we must answer the question: "What does the fourth amendment require in this case?" The government invites us to hold that the DEA agents relied in good faith on the assurances of Mexican government officials that the search was permissible under Mexican law, and, therefore, under United States v. Peterson, 812 F.2d 486 (9th Cir.1987), the evidence obtained in the search should not be suppressed. We decline to do so.

In Peterson, DEA agents participated in a joint operation to tap a telephone at the defendant's apartment in the Philippines. Information obtained from the wiretap permitted the Coast Guard to locate a ship loaded with marijuana. The Coast Guard stopped the ship on the high seas, boarded it, searched it and seized the marijuana. We stated:

Assuming that this was a stop and a search for criminal violations at the outset, and that fourth amendment protections are fully applicable, a point that is far from settled, there was probable cause to search and seize the vessel, its cargo, and its crew. Searches of vessels on the high seas in such circumstances may be warrantless, as the location of the vessels and the practical difficulties of obtaining a warrant while at sea present exigent circumstances under well-accepted principles. We find, therefore, no constitutional or other invalidity in the stop, the board, the search, or the seizure of the evidence in this case.

Id. at 494 (internal citations omitted).

The warrantless search of the vessel in Peterson was permissible due to exigent circumstances inherent in a high seas search. See id. We assumed that the earlier telephone tap in the Philippines violated Philippine law "and was, as a result, not reasonable under the fourth amendment." Id. at 491. We determined, however, that the DEA officers could rely in good faith on the assurances given them by Philippine officials that the telephone tap was legal under Philippine law. This good faith reliance removed the taint from the violation of Philippine law so that the search of the vessel, valid in its own right, was not rendered illegal under the fourth amendment. See id. at 492.

In the present case, the parties dispute whether the search violated Mexican law. We do not decide this question. Nor do we assume that Mexican law was or was not violated, or what effect a violation of Mexican law would have on the question of the validity of the search under the fourth amendment. What we do decide is the question we are presented: Did the search of Verdugo-Urquidez's Mexicali residence violate the fourth amendment? If it did, whether it also may have violated Mexican law is irrelevant.

The fourth amendment does not prohibit all searches, only unreasonable searches. Two requirements typically follow from this proposition. First, "searches and seizures must be supported by probable cause" to be valid. See United States v. Winsor, 846 F.2d 1569, 1575 (9th Cir.1988) (en banc). Second, as the Supreme Court repeatedly has emphasized, "a cardinal principle [of the fourth amendment is] that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable.' " Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967)). Thus, in most cases, a search is per se unreasonable if the police do not obtain a warrant, which a magistrate or judge finds to be supported by probable cause.

In the context of the fourth amendment, the Court has carved out "a few specifically established and well-delineated exceptions" to the warrant requirement. Mincey, 437 U.S. at 390, 98 S.Ct. at 2412 (quoting Katz, 389 U.S. at 357, 88 S.Ct. at 514). In other cases, the Court has carved out exceptions to the "probable cause" requirement. See United States v. Winsor, 846 F.2d at 1576-77 (collecting and discussing cases). In the present case, the DEA searched Verdugo-Urquidez's residence. "[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Steagald v. United States, 451 U.S. 204, 212, 101 S.Ct. 1642, 1647, 68 L.Ed.2d 38 (1981) (internal quotation marks and citations omitted). Exigent circumstances were not present in this case. We must decide, therefore, whether the DEA should have obtained a warrant before conducting the search.

The warrant requirement serves to interpose a "neutral and detached magistrate" between the public and the police officer, who is "engaged in the often competitive enterprise of ferreting out crime." Coolidge v. New Hampshire, 403 U.S. 443, 449, 91 S.Ct. 2022, 2029, 29 L.Ed.2d 564 (1971) (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948)). The magistrate's independent evaluation of whether law enforcement officials have probable cause to search assures that constitutional freedoms are not infringed by zealous law enforcement efforts. See, e.g., id. at 450, 91 S.Ct. at 2029 ("[T]he whole point of the basic rule ... is that prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations."); see also Steagald, 451 U.S. at 213, 101 S.Ct. at 1648. In the present case, however, a warrant issued by an American magistrate would be a dead letter in Mexico. As the district court itself recognized, "a United States warrant, in itself, cannot give United States officers the authority to enter a foreign residence and conduct a search." [CR 384, at 16]. International law enforcement is a cooperative venture and it would be an affront to a foreign country's sovereignty if the DEA presented an American warrant and suggested that it gave the American agents all the authority they needed to search a foreign residence.

Notwithstanding this geographic limitation, we cannot relieve the government from its obligation to obtain a search warrant simply because the place to be searched by the government is outside this country. To do so would be to treat foreign searches differently from domestic searches just because they are foreign. If the constitutional protection of the fourth amendment applies to our government's search of the Mexicali residence, as we have held it does, there is no justification to amputate from the body of that protection the appendage that requires a detached magistrate's advance determination of probable cause and the issuance of a warrant. If the residence were located in the United States, we would conclude that the evidence sought to be introduced in this case would have to be suppressed because the government did not obtain a warrant and no exigent circumstances existed. We can discern no logical reason to formulate a different rule just because the residence to be searched happens to be in Mexico. True, an American search warrant would be of no legal validity in Mexico, but it would have substantial constitutional value in this country. And it is in this country that Verdugo-Urquidez is being prosecuted for alleged violations of United States law. A warrant issued by a detached magistrate here would reflect the magistrate's determination that probable cause to search existed. It also would define the scope of the search. These constitutional protections are afforded by the warrant requirement; they are not affected by whether or not a foreign government would give legal effect to the warrant.

We conclude that the protection of the fourth amendment extends to the government's search of the Mexicali residence. Since the DEA obtained no warrant to make that search, and because exigent circumstances were lacking, the search was unlawful under the fourth amendment. Accordingly, the evidence obtained in that search was properly suppressed.

AFFIRMED.

WALLACE, Circuit Judge, dissenting:

In holding that the fourth amendment applies to a foreign search of a foreign national's residence, the majority fails to mention, much less attempt to explain, the Supreme Court's seemingly unequivocal pronouncement 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." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 57 S.Ct. 216, 220, 81 L.Ed. 255 (1936) (Curtiss-Wright ).

Verdugo is not an American citizen. He does not reside in the United States. The search in this case occurred in a foreign country. Yet, the majority concludes that Verdugo, a Mexican citizen residing in Mexico, is entitled to invoke the fourth amendment to suppress evidence obtained in a search that occurred on Mexican soil. That a nonresident alien has any reasonable expectation of privacy in his foreign country with respect to our government is so startling a proposition to me that, even if the Supreme Court had not written Curtiss-Wright, it would be difficult for me to accept such an illogical proposition in the absence of compelling precedent or sound reasoning. The majority, however, provides us with neither.

The reasoning by which the majority reaches this result is severely flawed. From one line of Supreme Court cases establishing that American citizens have constitutional rights abroad and another line holding that aliens in the United States are entitled to constitutional safeguards against certain actions taken by our officials in this country, the majority, without explanation, arrives at the conclusion that a foreign national residing in a foreign country is entitled to fourth amendment rights against actions taken by our officials on foreign soil. The majority's leap in logic is not just a non sequitur; it also ignores the self-imposed limitations on the geographic reach of the Constitution--limitations that have been endorsed by the Supreme Court.

* Because there is no direct Supreme Court precedent, I agree with the majority that we must inform our judgment by the language of the Constitution, its history, and by Supreme Court cases dealing with the constitutional rights of aliens in analogous contexts. But upon examining the text and history of the Constitution and applying the guiding principles that I have deduced from the Supreme Court precedents, I am convinced that the fourth amendment does not apply to a search in Mexico of property belonging to a Mexican citizen whose permanent residence is in Mexico.

My inquiry begins with the language of the Constitution itself. By ratifying the Constitution, the people of the United States created a limited national government. The government was to possess only those powers that the people chose to confer upon it. This notion of governmental power derived from the people is evident in the Preamble to the Constitution: "We The People Of The United States ... do ordain and establish this Constitution for the United States of America." While many believed that this limited grant of power to the national government carried with it the implied reservation of certain fundamental rights of the individual, others demanded a Bill of Rights that would expressly forbid to the federal government the power to encroach upon these rights.

Among these basic rights is the right to be free from unreasonable searches and seizures by the government. To this end, the fourth amendment provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

By its express terms, the rights set forth in this amendment are secured to "the people." Who "the people" are must be found by reading the amendment in the context of the entire document. In doing so, it appears that "the people" referred to in the amendment are "The People" in the Preamble who endowed the federal government with certain limited, enumerated powers. Only an unduly strained reading of the fourth amendment's "the people" could lead to any other conclusion. Because "The People" in the fourth amendment are only "The People of the United States," it follows that the fourth amendment extends its protective blanket to Verdugo only if he may properly be considered one of the people of the United States.

My conclusion that the fourth amendment protects only the people of the United States is supported by an examination of our constitutional history, which indicates that the Constitution was conceived as a "compact" or "social contract" among the people of the United States. In our pre-constitutional era, the "compact" or "social contract" concept of government pervaded American political philosophy, both in theory and in practice. For example, in 1620 the Pilgrims entered into the Mayflower Compact, in which they proclaimed that "[w]e ... solemnly and mutually ... covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation." Mayflower Compact, November 11, 1620, reprinted in Sources of Our Liberties: Documentary Origins of Individual Liberties in the United States Constitution and Bill of Rights 60 (R. Perry ed. 1959) (hereinafter "Sources of Our Liberties "). Less than a score of years later, in 1639, the residents of Connecticut formally established by mutual agreement a government by ratifying the Fundamental Orders of Connecticut. Sources of Our Liberties at 115; A. Kelly & W. Harbison, The American Constitution: Its Origins and Development 94 (3d ed. 1963) (hereinafter A. Kelly & W. Harbison).

Prevalent during the period leading to the American Revolution was the recurrent notion that a government was created by a compact among those governed and that the government could not infringe certain rights of those empowering it. John Locke, one of the most influential political philosophers of the time, conceived of government as a social compact in which formerly free individuals voluntarily united to establish communities. In order to protect what he considered to be a person's most essential liberties, Locke believed it was necessary that each person surrender some part of his or her natural independence. See J. Kettner, The Development of American Citizenship, 1608-1870 44 (1978). Of particular relevance to the revolutionary sentiment that was mounting at the time was Locke's vision of revolution as an act that undid all existing political compacts, thereby leaving the people free to enter willingly into a new political compact. A. Kelly & W. Harbison at 94.

Angered by the treatment of the American Colonies by England, in 1774 the Continental Congress petitioned the Crown for redress of grievances. In its Declaration and Resolves, the Continental Congress proclaimed its belief that the colonists were entitled to basic civil liberties by virtue of natural law, English constitutional principles, and their "several charters or compacts." Continental Congress, Declaration and Resolves, October 14, 1774, reprinted in The Founders' Constitution 2 (P. Kurland & R. Lerner ed. 1987). As Alexander Hamilton stated:

[T]he origin of all civil government, justly established, must be a voluntary compact between the rulers and the ruled, and must be liable to such limitations as are necessary for the security of the absolute rights of the latter.

A. Hamilton, The Farmer Refuted, Feb. 23, 1775, in The Founders' Constitution at 91. When the leaders of the American colonies finally proclaimed their separation from English sovereignty in the Declaration of Independence, they declared that in order to secure certain inalienable rights, "governments are instituted among men, deriving their just powers from the consent of the governed." Declaration of Independence, July 4, 1776, in Sources of Our Liberties at 319.

After the American Revolution, the American people continued to envisage government as a voluntary compact between the people of each sovereign state. For example, in the Preamble to the Massachusetts Constitution of 1780, the people of that state expressly proclaimed their new government to be a compact among those governed:

The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.

Constitution of Massachusetts, October 29, 1780, in Sources of Our Liberties at 373.

Examining the Constitutional Convention against this background, it is not surprising that when the Framers set about the task of drafting the Constitution of the United States, they conceived of it as a "compact" or "social contract." See A. Kelly & W. Harbison at 165. Moreover, implicit in their understanding that the Constitution would be a compact was the realization that correlative rights and obligations would govern relations between the people and their newly-created national government. In return for certain guarantees restricting the scope of government, the people of the states ceded to a central authority limited powers of government. On this point, the cover letter transmitting the Constitution and signed by George Washington is telling:

It is obviously impracticable in the federal government of these states, to secure to all rights of independent sovereignty to each, and yet provide for the interest and safety of all: Individuals entering into society must give up a share of liberty to preserve the rest. ... [T]he Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession, which the peculiarity of our political situation rendered indispensable.

Sources of Our Liberties at 418. Hence, it appears that the Framers understood that the social compact embodied in the Constitution necessarily required that the people give up some degree of liberty in order for them to secure others in return.

Because the social compact theory of the Constitution contemplates that each individual will give up a share of liberty to preserve the rest, I believe that the majority errs in suggesting that the compact theory is undermined by the presence of the theory which emphasizes the "natural rights" of men. Maj. op. at 13-15. Viewing the compact and natural rights paradigms as mutually exclusive misperceives the interrelationship between these two. As can be seen from the majority's historical citations, the natural rights theory was usually espoused in documents declaring independence or rights. Taken in context, there is no conflict. While the Framers may have understood the liberties enumerated in the Bill of Rights to reflect man's "natural rights," they also recognized that the Constitution embodies a compact among the People of the United States to sacrifice some modicum of these "natural rights" in order to create a central government capable of preserving the rest. See Sources of Our Liberties at 418. Thus, rather than coexisting in tension with the compact theory, the "natural rights" theory fits comfortably into its central tenet.

A number of fundamental axioms can be deduced from the Constitution's regime of reciprocal rights and obligations. Chief among these is that one can make no claim of entitlement to rights without also assuming corresponding obligations. No one can seriously doubt that the compact applies only to the people who empowered the government of the United States for the benefit of themselves and their posterity, not to other peoples of the world who neither ceded authority to it in exchange for certain guarantees of liberty nor otherwise consented to its rule.

These axioms find support in an unbroken line of Supreme Court cases reflecting the understanding of the Constitution as a compact between the people of the United States and its government. In Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440 (1793), Chief Justice Jay observed that every state constitution "is a compact ... and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves." Id. at 471. Similarly, in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819), Chief Justice Marshall proclaimed that "[t]he government of the Union ... is, emphatically and truly, a government of the people. ... [i]t emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit." (Emphasis added.) In League v. De Young, 52 U.S. (11 How.) 184, 203, 13 L.Ed 657 (1850), the Supreme Court recognized that "[t]he Constitution of the United States was made by, and for the protection of, the people of the United States." (Emphasis added.) While the majority is correct in observing that these cases dealt with issues of federalism, rather than the extraterritorial reach of the Constitution, it is nonetheless true that in these cases the Supreme Court placed its imprimatur on the general notion that the Constitution is a compact made by The People of the United States for their own benefit and protection.

In later cases, the Court reasoned that because the government was "ordained and established for the United States of America, and not for countries outside of [its] limits, ... [t]he Constitution can have no operation in another country." In re Ross, 140 U.S. 453, 464, 11 S.Ct. 897, 900, 35 L.Ed. 581 (1891). Applying this rule, the Court rejected the claim that an American citizen being tried abroad in a consular court was entitled to the Constitution's grand jury and petit jury guarantees. According to this restrictive view of the Constitution's reach, not even American citizens could invoke its guarantees outside the territorial limits of the union. See also Downes v. Bidwell, 182 U.S. 244, 270-71, 21 S.Ct. 770, 780, 45 L.Ed. 1088 (1901) (the Constitution does not apply to foreign countries or to trials conducted therein).

The majority's insistence that Ross actually supports Verdugo's position evinces its failure to understand a critical distinction regarding the geographic limits of an alien's constitutional rights. Ross does not answer whether Verdugo was entitled to suppress on fourth amendment grounds the evidence seized from his Mexicali residence. As I will explain later in part II.B., just because a foreign national may be entitled to fifth and sixth amendment rights during the charging and trial process does not shed light on whether he is endowed with extraterritorial fourth amendment rights. Indeed, both reason and precedent justify extending fifth and sixth amendment trial-related rights to a nonresident alien while, at the same time, denying such an alien extraterritorial fourth amendment rights.

The foregoing cases reflect an understanding of the Constitution as a blanket of protections covering only the "people" who endowed their government with its powers and who remain physically present within the borders of the nation. Since these early decisions, however, both the Supreme Court and the circuit courts have expanded the territorial reach of the Constitution, including the protections of the Bill of Rights, to Americans abroad. Reid v. Covert, 354 U.S. 1, 5-14, 77 S.Ct. 1222, 1224-29, 1 L.Ed.2d 1148 (1957) (Reid ); see also United States v. Emery, 591 F.2d 1266, 1267-68 (9th Cir.1978) (Miranda rights); United States v. Rose, 570 F.2d 1358, 1362 (9th Cir.1978) (fourth amendment); United States v. Conroy, 589 F.2d 1258, 1264 (5th Cir.) (fourth amendment), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979). Reid rested upon the view that "[w]hen the government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights ... provide[s] to protect his life and property should not be stripped away just because he happens to be in another land." Reid, 354 U.S. at 6, 77 S.Ct. at 1225 (emphasis added). In addition, recent cases reveal that certain aliens within our borders can also be considered "people of the United States." See Kwong Hai Chew v. Colding, 344 U.S. 590, 596, 601, 73 S.Ct. 472, 479, 97 L.Ed. 576 (1953) (Kwong Hai Chew ) (holding that a resident alien is a "person" within the meaning and protection of the fifth amendment). Both resident and illegal aliens are entitled to a wide range of constitutional protections while in this country. See, e.g., Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 2391, 72 L.Ed.2d 786 (1982) (illegal aliens may claim equal protection rights because these pertain to "any person within [a state's] jurisdiction"); Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976); Au Yi Lau v. INS, 445 F.2d 217, 223 (D.C.Cir.) (aliens in this country are sheltered by the fourth amendment), cert. denied, 404 U.S. 864, 92 S.Ct. 64, 30 L.Ed.2d 108 (1971); Wong Wing v. United States, 163 U.S. 228, 237-38, 16 S.Ct. 977, 980-81, 41 L.Ed. 140 (1896) (Wong Wing ) (aliens may invoke fifth and sixth amendments); Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886) (fourth amendment is not confined to the protection of citizens).

These cases reveal that "the people of the United States" include American citizens at home and abroad and aliens within our country's borders who are victims of actions taken in the United States by American officials. The Supreme Court, however, has never held that the Bill of Rights protects foreign nationals residing abroad from actions taken abroad by our officials. Hence, the majority paints with too broad a brush when it deduces that "[t]he Constitution imposes substantive constraints on the federal government, even when it operates abroad." Maj. op. at 1218. This sweeping statement pretermits the crucial caveat that the extraterritorial effect of the Constitution has never been extended by the Supreme Court to persons other than American citizens. Predictably, the majority fails to cite a single Supreme Court case suggesting that the Constitution limits government action against foreign nationals in territory under foreign dominion. Neither Reid nor Balzac v. Puerto Rico, 258 U.S. 298, 312-13, 42 S.Ct. 343, 348, 66 L.Ed. 627 (1922) (Balzac ), the two cases relied upon by the majority, support such a strained reading of the Constitution's extraterritorial scope. Reid speaks only of the extraterritorial rights of American citizens. See 354 U.S. at 6, 77 S.Ct. at 1225. Balzac, contrary to the majority's assertion, does not adopt "a more expansive vision" of the Constitution's extraterritorial force. In that case, the Supreme Court simply recognized the elementary proposition that in territories where the United States is sovereign, the Constitution is in force. See Balzac, 258 U.S. at 312-13, 42 S.Ct. at 348. How Balzac is relevant to the instant case thus escapes me. The complained of search in this case did not occur in a territory under the sovereign power of the United States. Rather, it occurred in Mexico under the sovereign power of the Mexican government. Thus stripped of all its case support, the majority's broad reading of the Constitution's extraterritorial reach finds support only in citations to academic literature. Law review articles, however, are not the law.

Extending the protective veil of the Constitution to constrain the actions taken by our agents abroad against foreign nationals residing in foreign territory would be entirely inconsistent with the view that the Constitution embodies a contract between the people of the United States and its government. On the contrary, as I observed at the beginning of my dissent, the Supreme Court has explicitly declared 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." Curtiss-Wright, 299 U.S. at 318, 57 S.Ct. at 220. Consistent with this principle, the Supreme Court has long recognized that aliens who are beyond the territorial limits of the United States stand on a different constitutional footing than those residing either permanently or temporarily within our borders. For instance, while the Court has recognized in the immigration context that "an alien who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population" is entitled to due process under the fifth amendment, The Japanese Immigrant Case, 189 U.S. 86, 101, 23 S.Ct. 611, 614, 47 L.Ed. 721 (1903), aliens who have not yet entered our borders are accorded only that degree of process provided by "the decisions of executive or administrative officers, acting within powers expressly conferred by Congress." Nishimura Ekiu v. United States, 142 U.S. 651, 660, 12 S.Ct. 336, 339, 35 L.Ed. 1146 (1892). Congress may, in fact, "exclude [an alien] in the first instance for whatever reason it sees fit," because "an alien obviously brings with him no constitutional rights." Bridges v. Wixon, 326 U.S. 135, 161, 65 S.Ct. 1443, 1455, 89 L.Ed. 2103 (1945) (Murphy, J., concurring); see also United States ex rel. Turner v. Williams, 194 U.S. 279, 292, 24 S.Ct. 719, 723, 48 L.Ed. 979 (1904) (Turner ) (an alien attempting to enter this country illegally is not one of the people to whom first amendment rights are secured).

An uninterrupted line of cases reaffirms to the present day this distinction between the constitutional rights of excludable aliens, those seeking admission into the United States, and deportable aliens, those already within the United States. See, e.g., Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982) (Plasencia ); Leng May Ma v. Barber, 357 U.S. 185, 187, 78 S Ct. 1072, 1073, 2 L.Ed.2d 1246 (1958); Kwong Hai Chew, 344 U.S. at 600, 73 S.Ct. at 479 (" 'excludable' aliens ... are not within the protections of the Fifth Amendment" ). Moreover, the Court in Kwong Hai Chew, quoting an earlier decision, carefully reminded us that "in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act." 344 U.S. at 596-97 n. 5, 73 S.Ct. at 477 n. 5, quoting Johnson v. Eisentrager, 339 U.S. 763, 770-71, 70 S.Ct. 936, 940, 94 L.Ed. 1255 (1950) (Johnson ) (holding that nonresident enemy aliens who had never been in the United States were not entitled to constitutional protections). It is, therefore, clear that our Bill of Rights distinguishes between resident and nonresident aliens. See Kwong Hai Chew, 344 U.S. at 596, 73 S.Ct. at 477 (a permanent resident is a person within the meaning of the fifth amendment).

The significance of residency within the United States to the question of the constitutional rights of aliens crystallizes when considered in the context of the compact theory. In discussing the greater rights that attach as one progresses from the status of a nonresident alien to a permanent resident alien to a naturalized citizen, the Court in Johnson implicitly recognized that as the concomitant to assuming ever-increasing obligations to the United States, one receives correspondingly greater rights. 339 U.S. at 769-71, 70 S.Ct. at 939-40. By voluntarily establishing residency within the United States, whether temporarily or permane