UNITED STATES OF AMERICA, PETITIONER V. RENE MARTIN VERDUGO-URQUIDEZ No. 88-1353 In the Supreme Court of the United States October Term, 1989 On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Reply Brief For The United States 1. At the outset, respondent defends the court of appeals' decision in this case, but not on its own terms. He notes (Br. 12-14) that at the conclusion of the Mexicali search Comandante Salazar placed the remaining documents in a briefcase and directed the DEA agents to complete their examination of those documents elsewhere. Respondent asserts that when, after returning to the United States, the agents opened the briefcase to complete their examination, without first securing a search warrant, they committed an independent violation of the Fourth Amendment, wholly apart from the initial seizure in Mexicali. On that alternative basis, respondent urges the Court to "affirm the decision of the lower court" (Br. 12). That contention is meritless for three reasons. First, respondent did not advance that alternative theory in the lower courts, and neither court addressed it. Respondent is not entitled to raise the issue for the first time in this Court. See Granfinanciera, S.A. v. Nordberg, 109 S. Ct. 2782, 2788-2789 (1989). Second, respondent does not and cannot show that the tally sheet -- which is the only document seized from respondent's residence that the government seeks to offer at trial (see Pet. App. 29a) -- was one of the documents that Salazar placed in the briefcase. The lower courts made no such finding, and there is no evidence in the record to support such a finding. /1/ Although respondent now claims, without citation to the record, that the tally sheet was contained in the briefcase (Br. 40), we note that in his court of appeals brief respondent contended that "it is not clear where the documents in question were seized" (C.A. Br. 11). Finally, even if the tally sheet came from the briefcase, the Fourth Amendment would not prohibit the agents from opening the briefcase upon their return to the United States. As the trial court found (Pet. App. 89a), Agent Bowen was already in the process of examining the remaining documents when Comandante Salazar placed them in the briefcase. And as this Court explained in United States v. Jacobsen, 466 U.S. 109, 117 (1984), "(t)he Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated." Merely inspecting documents that come into view during an earlier search does not constitute an independent search, "because it * * * produce(s) no additional invasion of respondent's privacy interest." Arizona v. Hicks, 480 U.S. 321, 325 (1987). Because the DEA agents had already seized the documents and had begun to examine them when Comandante Salazar placed them in the briefcase, the Fourth Amendment did not bar the agents from reopening the briefcase and completing the examination. Accordingly, if the initial seizure in Mexicali was lawful -- and that is the question presented in this case -- then the continued examination of the documents in the United States was lawful as well. See also United States v. Felton, 753 F.2d 256, 260-261 (3d Cir. 1985); United States v. Morgan, 744 F.2d 1215, 1219-1221 (6th Cir. 1984). /2/ 2. On the merits, respondent disputes our contention that the applicability of a particular provision of the Constitution overseas depends upon the nature of the right, the territory in which the claim arises, and the relationship of the claimant to the American community. /3/ See Reid v. Covert, 354 U.S. 1, 75 (1957) (Harlan, J., concurring). /4/ Like the court of appeals (see Pet. App. 8a), respondent asserts that "(t)he Framers intended the Constitution's protection to apply to all individuals" (Br. 15). The sources on which respondent relies offer no support for that view of the Constitution. Although the Declaration of Independence embraced the philosophy of natural rights, it sheds no light on the identity of those individuals who may invoke particular rights in American judicial proceedings. The preamble quoted from the Vermont Declaration of Rights (Resp. Br. 17) is not instructive at all, while Article XI of the Vermont Declaration, also relied on by respondent (Br. 17), simply employs the phrase "the people" without elaboration. Although respondent asserts that the Constitution "was drafted in universal language" (Br. 16), he does not explain why protections that were intended to "secure the Blessings of Liberty to ourselves and our Posterity" (U.S. Coast Const. Preamble) should be construted as a world-wide declaration of rights. /5/ More fundamentally, if the Constitution "appl(ies) to all individuals" (Resp. Br. 15), it follows that constitutional rights must be accorded to persons everywhere -- including to persons who have no connection whatever to the United States. There is no basis for such a "universal" (id. at 16) approach to constitutional rights. To the contrary, "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." Johnson v. Eisentrager, 339 U.S. 763, 771 (1950). /6/ Quoting the Reid case, respondent contends that "'(t)he U.S. is entirely a creature of the Constitution'" and therefore "'can only act in accordance with all the limitations imposed by the Constitution'" (Br. 36, quoting Reid, 354 U.S. at 5). Respondent asserts that pursuant to this "enumerated powers doctrine," federal officials must "act within the proscriptions of the Constitution regardless of whether they act at home or abroad" (Br. 35). See also Amici Br. 8, 25. But that merely reformulates the question presented. Simply to say that federal officials may not ignore the Constitution when they act abroad does not answer the question whether the Fourth Amendment places substantive limitations on the officials' authority to execute the laws overseas. The amici (Br. 30-34) challenge our reliance on the Insular Cases, which held that the applicability of the Constitution depends on the territory in which the constitutional claim arises. The amici contend, first, that Reid rejected the Insular Cases. To be sure, the plurality in Reid refused to "expan(d)" (354 U.S. at 14) the reasoning in the Insular Cases, and it therefore rejected the contention that the Constitution is inapplicable to Americans overseas. The Court had no occasion, however, to consider the more limited proposition we have asserted -- that the scope of extraterritorial protections depends, in part, on the relationship of the overseas territory to the United States. /7/ Moreover, this Court has more recently cited the Insular Cases with apparent approval, in holding that the Fourth Amendment applies in Puerto Rico. Torres v. Puerto Rico, 442 U.S. 465, 468-469 (1979). The amici also argue (Br. 31) that the Insular Cases have no bearing where the constitutional claim is made against "United States agents," rather than against "local territorial authorities." The cases do not, however, turn on, or even highlight, that factor. Indeed, one of the leading Insular Cases, Downes v. Bidwell, 182 U.S. 244 (1901), involved a claim that United States officials had unconstitutionally exacted an import tax on goods shipped from Puerto Rico. Finally, the amici contend (Br. 32-34) that the reasoning in the Insular Cases applies only to territories in which the United States exercises a degree of sovereignty. They assert that the Insular Cases therefore do not apply where, as here, United States officials act within the territory of an independent sovereign. Paradoxically, under the amici's construction, the Constitution would afford greater protection in places in which the United States exercises no sovereignty at all. That cannot be so. The essence of sovereignty is the power to set the governing rules of law, "generally to the exclusion of other states." 1 Restatement (Third) of the Foreign Relations Law of the United States Section 206 comment b, at 94 (1987). When the United States can act, if at all, only at the sufferance of the foreign state, it is hard to justify the extraterritorial application of American constitutional law. 3. When respondent and his amici turn from the Constitution in general to the Fourth Amendment in particular, they remain unable to justify their theory of wholesale extraterritorial application. Neither respondent nor his amici deal adequately with the text of the Fourth Amendment. The amici first equate the phrase "the people" to "all persons" (Br. 10), but the Constitution does not use those phrases interchangeably, as is clear from a comparison of the text of the Fourth and Fifth Amendments. The amici characterize "the people" as nothing more than a grammatical solution to the otherwise "awkward rhetorical redundancy" (Br. 12 n.4) of using the word "person" twice in the same sentence. That account is unpersuasive, however, because there were many other ways of avoiding the same "redundancy" without abandoning the reference to "the people." See, e.g., Pennsylvania Declaration of Rights, Art. X (1776) ("That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure"); Vermont Const. (1777) (same). And even if, as respondent claims, the Constitution creates "inalienable rights" (Br. 19), that does not mean that all persons, regardless of their connection to the United States, enjoy the rights created. /8/ The amici next contend that because the Fourth Amendment applies to searches designed "to obtain evidence for a criminal prosecution," the Fourth Amendment protections must extend "to all people whom the United States has subjected to criminal prosecution" (Br. 13). That, however, has never been the rule under Fourth Amendment law. For example, although a search or seizure may lead to the prosecution of the occupant of an automobile, the occupant will not have a Fourth Amendment claim if he lacks an expectation of privacy in the vehicle. See Rakas v. Illinois, 439 U.S. 128 (1978). The protections of the Fourth Amendment thus do not extend to each and every person against whom a search or seizure "is directed" (Amici Br. 13). /9/ Respondent suggests (Br. 19-23) that the Equal Protection Clause of the Fourteenth Amendment requires that Fourth Amendment protections be extended to all persons, whoever and wherever they may be. The Fourteenth Amendment, of course, applies only to the States, and it therefore has no bearing here. See Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246 & n.11 (1960). Although the equal protection component of the Fifth Amendment's Due Process Clause applies to the federal government, see Wayte v. United States, 470 U.S. 598, 608 n.9 (1985); Weinberger v. Weisenfeld, 420 U.S. 636, 638 n.2 (1975); Bolling v. Sharpe, 347 U.S. 497, 499 (1954), that provision is equally irrelevant. The Fourth and Fifth Amendments were adopted the same year, and we know of no evidence that the Fifth Amendment in general, or its Due Process Clause in particular, was intended to prescribe the scope of the Fourth Amendment. 4. Finally, respondent and his amici contend that if the Fourth Amendment applies in this case, the search of respondent's Mexicali premises was constitutionally unreasonable. a. Respondent advances an argument (Br. 37-41) that the court below did not address -- that the warrantless search violated Article 16 of the Mexican Constitution and was therefore unreasonable under the Fourth Amendment. /10/ Respondent does not explain, however, why the standard of reasonableness under the Fourth Amendment should incorporate the constitutional law of the host country. To the contrary, as respondent's amici correctly note (Br. 47 n.17), "it is the Fourth Amendment's substantive standards, and not foreign law, which should give content to that restriction." This Court made much the same point, in an analogous context, in Cooper v. California, 386 U.S. 58 (1967). In Cooper, the lower court had suppressed the evidence seized by police officers from a defendant's car after they had impounded the car following the defendant's arrest; the court reasoned that the officers had no authority under the state forfeiture statute to conduct the search. This Court rejected that conclusion, in language equally dispositive of respondent's reliance on the substantive law of Mexico (386 U.S. at 61): (T)he question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one. More generally, it is inconsistent with the purposes of the Fourth Amendment to base the content of reasonableness on the substantive law of a foreign state. The Fourth Amendment's command of reasonableness is, in large part, a command to police officers and other officials -- who must conduct their searches and seizures within appropriate guidelines. Requiring agents to know of, and comply with, the niceties of foreign constitutional law would impose a standard that would often be inaccessible to agents and thus would not be responsive to the policies underlying the Fourth Amendment. /11/ To be sure, the agents cannot ignore the dictates of the host country. Whether, and to what extent, the agents have comported themselves in a reasonable manner will depend, in the first instance, on the demands imposed by the host country's officials. In the present case, for example, the DEA agents conformed to all of the requirements imposed by their foreign host, and conducted themselves in an entirely professional manner. /12/ To go beyond that and require strict compliance with foreign constitutional law, would displace the Fourth Amendment's reasonableness standard in favor of a rule of exclusion that would depend on post hoc resolution of often obscure issues of foreign law. Finally, and in any event, it is by no means certain that Article 16 of the Mexican Constitution would require a search warrant in this context. The district court made no such finding, /13/ and the court of appeals did not address the issue at all. While respondent asserts that the Mexicali search was "plain(ly)" unlawful under Mexican law (Br. 38), we are unable confidently to draw any such conclusion. Although Article 16 requires the "written order of the competent authority" before a person's domicile may be searched, it also permits "administrative officials" to enter a private home in order to determine whether the "sanitary regulations" have been complied with. Narcotics trafficking in Mexico is proscribed not only by the Mexican penal laws, but also by the Mexican health code, pursuant to articles 234-243 of the General Health Law. It appears that Article 16 therefore authorizes officials to enter a home to uncover narcotics violations. If that reading is correct, the search of respondent's Mexicali home might have been entirely lawful under Mexican law. At a minimum, however, this issue of Mexican law is not at all obvious, even with an opportunity for subsequent research and reflection. The agents plainly could not be expected to reach a confident and correct resolution of the issue before engaging in a search on Mexican territory. b. The amici dispute our contention that "'special needs, beyond the normal need for law enforcement, make the warrant * * * requirement impracticable.'" Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). In their view, Agent Bowen "could easily have applied for a warrant before his departure" (Br. 48). See also Resp. Br. 40. Amici do not identify, however, which magistrate the agents were expected to contact, nor do they cite any statute that vests magistrates (or any other public official) with the power to authorize an extraterritorial search. It is no answer to suggest, as the amici do, that the government has an "obligation to provide a statutory mechanism" (Amici Br. 49 n.18). The fact that there is no such "mechanism" is not simply a congressional oversight; it is evidence that the Warrant Clause of the Fourth Amendment has never been regarded as applicable in this setting. And the amici's further complaint that "the government made no attempt even to obtain an order that probable cause existed" (ibid.) simply restates the question: if no magistrate had the authority to issue such an order and the Constitution did not require the agents to secure one, they can hardly be faulted for having failed to seek such an order. The amici also insist that "a warrant in these circumstances would serve all the purposes of the Warrant Clause." Br. 51. For example, they contend, a search warrant would "define the scope of the search" because, in the amici's estimation, "foreign officials would have no interest in going beyond the dictates set forth in the warrant." Br. 52-53. In the present case, however, the Mexican officials seized several items that the DEA was not seeking; and it was Comandante Salazar, not Agent Bowen, who directed the search, including issuing the final order to seize the balance of the documents and to sort through them later. Pet. App. 87a-89a. Moreover, in a great many cases the host country's officials will have a separate basis for conducting the search or seizure; their agenda may not dovetail with that of the American agents. In such circumstances, as the amici appear to concede (Br. 52), an American warrant would not limit the scope of the search. For the foregoing reasons, and for the reasons stated in our opening brief, the judgment of the court of appeals should be reversed. /14/ Respectfully submitted. KENNETH W. STARR Solicitor General SEPTEMBER 1989 /1/ The evidence suggests just the opposite. The documents placed inside the briefcase at Salazar's direction were seized from "the back area of the house where there (were) some large cabinets with shelves" (10/23/86 Tr. 346). In a related prosecution of one of respondent's confederates, the government has adduced evidence showing that the tally sheet was found inside a briefcase in a closet just off the master bedroom in the Mexicali residence. See United States v. Jones, No. 86-0961, 6/11/87 Tr. 1239-1241. /2/ It is difficult, moreover, to understand how respondent could have a reasonable expectation of privacy in the briefcase sufficient to assert a Fourth Amendment interest. See Rawlings v. Kentucky, 448 U.S. 98 (1980); Rakas v. Illinois, 439 U.S. 128 (1978). The agents used the briefcase to secure certain of the evidence seized from respondent's home. Respondent has no greater privacy interest in the briefcase than he would in any other container selected by the government to secure seized evidence -- for example, a vault in the United States Attorney's Office in which such evidence is ultimately stored. /3/ To shore up his connection to the United States, respondent asserts (Br. 3 n.2) that at the time of the searches in this case he was "a legal resident of the United States, Alien Registration Number A19-978-670." As far as we can tell, this is the first time that respondent has made any such claim; the lower courts made no such finding, and the dissent in the court below understood respondent to be a non-resident at all times pertinent to this case (Pet. App. 37a, 51a). Moreover, although respondent apparently received a green card in 1970 (see Resp. Br. App. A), there is nothing in the record to suggest that he has remained a resident alien since that time. Indeed, if the question is deemed material, we are prepared to prove on remand that at the time of his arrest respondent advised immigration officials that he had resided and worked in Mexico continuously since 1980. Contrary to the amici's suggestion (Br. 12), we have no argued that Fourth Amendment protections apply only to citizens. See, e.g., U.S. Br. 21-23, 24 n.15. Rather, we believe that in deciding whether to apply the Fourth Amendment, or any other constitutional provision, overseas, a court must consider, among other factors, "the extent to which the claimant maintains ongoing membership in the American community -- whether by citizenship, naturalization, or continuous presence" (U.S. Br. 21). As we have noted (id. at 21-22), this Court made a similar point in Johnson v. Eisentrager, 339 U.S. 763 (1950) -- a case that the amici do not address. /4/ The amici contend (Br. 9 n.2) that this Court in Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960), "rejected Justice Harlan's approach" to extraterritoriality questions. That is not so. In the Singleton case, the Court held that civilians accompanying military personnel overseas may not be subjected to court-martial trials for non-capital offenses. The Court thus extended the holding in Reid v. Covert, 354 U.S. 1 (1957), which involved a capital charge, to cases involving non-capital charges. The Court did not, however, "reject" Justice Harlan's approach to resolving whether, and to what extent, the Constitution applies abroad. To the contrary, the Court emphasized that the nature of the underlying right is central to the inquiry. As the Court explained, the Fifth and Sixth Amendments were applied overseas in Reid because those provisions "were 'all inclusive with their sweeping references to "no person" and to "all criminal prosecutions."'" 361 U.S. at 241 (quoting Reid, 354 U.S. at 7-8). /5/ The passage respondent quotes (Br. 15-16) from Yick Wo v. Hopkins, 118 U.S. 356 (1886), states simply that the enforcement of rights conferred by the Fourteenth Amendment cannot be left to the unfettered discretion of government officials. The language does not reflect a "natural rights theme," and the case itself involved the application of Fourteenth Amendment principles to a purely domestic dispute. /6/ We do not dispute respondent's assertion (Br. 27) that "aliens within the United States enjoy a broad panoply of rights." But the cases cited by respondent for that proposition (Br. 27-30), and by the amici for a similar point (Br. 18-19), all involve domestic transactions. Respondent and his amici offer no support for the extraterritorial protection that they seek in this case. /7/ The Reid plurality appeared to acknowledge that distinction, explaining that the Insular Cases "involved territories which had only recently been conquered or acquired by the United States" and which had "entirely different cultures and customs from those of this country." 354 U.S. at 13. /8/ The amici note (Br. 12 n.4) that freedom of speech under the First Amendment has been extended to resident aliens, even though that Amendment likewise refers to "the people." But in the First Amendment that term is used only in connection with the rights of assembly and petition. More importantly, the rights protected by the First Amendment are purely domestic. We know of no case in which the First Amendment has been accorded extraterritorial application. Cf. Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). /9/ The amici base their Fourth Amendment argument in part on their apparent belief that respondent "was indicted when the search took place" (Br. 14-15 n.5). Even if that consideration were relevant, it does not apply here, since respondent was indicted for the first time on January 29, 1986 (C.A. Excerpt of Record, at 69) -- four days after the search. See Pet. App. 84a-85a. The amici cite (Br. 37-39) a line of court of appeals' decisions that have applied the Fourth Amendment to overseas searches and seizures under the so-called "joint venture" doctrine. That doctrine recognizes that "fourth amendment principles do not apply to searches by foreign authorities in their own countries" unless "United States agents' participation in the investigation is so substantial that the action is a joint venture between United States and foreign officials" (United States v. Peterson, 812 F.2d 486, 490 (9th Cir. 1987). The cited cases provide only modest support for the amici's position here. Most of the cases rejected Fourth Amendment claims because United States officials were not significantly involved in the particular search or seizure. See, e.g., United States v. Rosenthal, 793 F.2d 1214 (11th Cir. 1986), cert. denied, 480 U.S. 919 (1987); United States v. Hawkins, 661 F.2d 436 (5th Cir. 1981), cert. denied, 456 U.S. 991 (1982); United States v. Rose, 570 F.2d 1358 (9th Cir. 1978); United States v. Marzano, 537 F.2d 257 (7th Cir. 1976), cert. denied, 429 U.S. 1038 (1977); United States v. Morrow, 537 F.2d 120 (5th Cir. 1976); Stonehill v. United States, 405 F.2d 738 (9th Cir. 1968), cert. denied, 395 U.S. 960 (1969). We have no quarrel with that view; plainly, if a search is conducted principally by foreign officials, the Constitution cannot be implicated, even if the evidence obtained is later introduced at trial in the United States. The few cases that actually addressed the broader Fourth Amendment issue did so only in passing, and it is not clear whether the issue was contested in the litigation. See, e.g., United States v. Cadena, 585 F.2d 1252, 1262 (5th Cir. 1978); United States v. Toscanino, 500 F.2d 267, 280-281 (2d Cir. 1974). /10/ Article 16 of the Mexican Constitution provides, in pertinent part: No one shall be molested in his person, family, domicile, papers, or possessions except by virtue of a written order of the competent authority stating the legal grounds and justification for the action taken. * * * Every search warrant, which can be issued only by judicial authority and which must be in writing, shall specify the place to be searched, the person or persons to be arrested, and the objects sought, the proceedings to be limited thereto, at the conclusion of which a detailed statement shall be drawn up in the presence of two witnesses proposed by the occupant of the place searched, or by the official making the search in his absence or should he refuse to do so. Administrative officials may enter private homes for the sole purpose of ascertaining whether the sanitary and police regulations have been complied with, and may demand to be shown the books and documents required to prove compliance with fiscal rulings, in which latter cases they must abide by the provisions of the respective laws and be subject to the formalities prescribed for cases of search. /11/ The court of appeals in United States v. Peterson, 812 F.2d 486 (9th Cir. 1987), reached a similar conclusion, although it did so as a matter of exclusionary rule policy rather than as a matter of substantive Fourth Amendment law. See 812 F.2d at 491-492. /12/ Respondent challenges the reasonableness of the agents' efforts, suggesting (Br. 7-8) that Agent Bowen knew that Comandante Salazar was "corrupt." Respondent acknowledges (id. at 7) that Bowen denied knowing any such thing, but he contends that Bowen's testimony "was contradicted" by the testimony of Agents Maher and Martinez (id. at 7-8). The record does not bear out that contention. Agent Maher stated that, subsequent to the searches, he had "heard" that Salazar may have been involved in unlawful activity, but he testified that he had no first-hand knowledge of any such activity. 11/26/86 Tr. 678-679. He also stated that he could not recall with whom he had discussed the matter, although he thought it was "probably" one or more of the "agents in Calexico" (id. at 679). Agent Martinez likewise had heard that Salazar might be involved in corrupt activity, but he, too, could not recall with whom he had discussed the matter. Contrary to respondent's assertion (Br. 7-8), Martinez did not identify Agent Bowen as a participant in any such discussion; he simply included him as one of several agents with whom such a discussion might have taken place. 11/26/86 Tr. 713-714. /13/ The district court stated, simply, that "Article 16 of the Mexican Constitution seems to require, on its face, a warrant similar to that required by the Fourth Amendment before search of a residence is permissible" (Pet. App. 93a-94a). The court did not hold that, in the circumstances of this case, a warrant would in fact have been required under Mexican law. /14/ Respondent argues at length (Br. 41-50) that, in this context, there should be no good-faith exception to the exclusionary rule. Because we believe that there was no underlying violation of the Fourth Amendment, we have not addressed the appropriateness of an exclusionary remedy.