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Search and Seizure — search warrants — foreign countries

By: WISCONSIN LAW JOURNAL STAFF//August 5, 2013//

Search and Seizure — search warrants — foreign countries

By: WISCONSIN LAW JOURNAL STAFF//August 5, 2013//

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United States Court of Appeals For the Seventh Circuit

Criminal

Search and Seizure — search warrants — foreign countries

A search warrant is not required to conduct a search in a foreign country.

“The Supreme Court’s reasoning in United States v. Verdugo- Urquidez, 494 U.S. 259 (1990), sheds some light on the question. In Verdugo-Urquidez the Court held that the Fourth Amendment has no application to a warrantless search by U.S. agents of a nonresident alien’s property located in a foreign country— there, Mexico. Id. at 261. The Court based its holding on ‘the text of the Fourth Amendment, its history, and [the Court’s] cases discussing the application of the Constitution to aliens and extraterritorially.’ Id. at 274. Because the Amendment did not apply at all, the Court had no need to separately address whether the warrant requirement and the Warrant Clause applied to foreign searches by American agents. But the Court noted in passing that any warrant issued by a judicial officer in this country ‘would be a dead letter outside the United States.’ Id. Justice Kennedy’s concurring opinion was more direct: The absence of local judges or magistrates available to issue warrants, the differing and perhaps unascertainable conceptions of reasonableness and privacy that prevail abroad, and the need to cooperate with foreign officials all indicate that the Fourth Amendment’s warrant requirement should not apply in Mexico as it does in this country. Id. at 278 (Kennedy, J., concurring). Justice Stevens echoed the point in his concurrence, as did Justice Blackmun in dissent. See id. at 279 (Stevens, J., concurring in the judgment) (‘I do not believe the Warrant Clause has any application to searches of noncitizens’ homes in foreign jurisdictions because American magistrates have no power to authorize such searches.’); id. at 297 (Blackmun, J., dissenting) (‘[A]n American magistrate’s lack of power to authorize a search abroad renders the Warrant Clause inapplicable to the search of a noncitizen’s residence outside this country.’).”

Affirmed.

11-2734 U.S. v. Stokes

Appeal from the United States District Court for the Northern District of Illinois, Pallmeyer, J., Sykes, J.

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