Search and Seizure Protections for Undocumented Aliens: The Territoriality and Voluntary Presence Principles in Fourth Amendment Law

By Connell, James G.,, III; Valladares, Rene L. | American Criminal Law Review, Summer 1997 | Go to article overview

Search and Seizure Protections for Undocumented Aliens: The Territoriality and Voluntary Presence Principles in Fourth Amendment Law


Connell, James G.,, III, Valladares, Rene L., American Criminal Law Review


I. Introduction

"It is precisely in times like these -- when the constitutional rights of individuals are most threatened -- that the courts should be vigilant in protecting them."(1)

As the political climate across the country has turned increasingly hostile toward aliens,(2) Courts have been willing to turn a blind eye. Some courts have not only stood idle in the wake of anti-alien sentiment, but also have nurtured this attitude. Nowhere is the ebbing tide of constitutional rights accorded to aliens more noticeable than in search and seizure law.

Since 1990, federal and state courts across the country have begun questioning whether the Fourth Amendment applies to undocumented aliens in criminal cases.(3) Recently, the Ninth Circuit suggested that it was "not clear ... that ... non-citizen defendants ... are entitled to receive any Fourth Amendment protection whatsoever."(4) At least one other court has gone so far as to hold that even if law enforcement agents conduct a search within United States territory, the Fourth Amendment does not shield an undocumented alien unless she has "sufficient connections" to this country.(5) This development is a dramatic change from what courts and commentators had previously considered settled Fourth Amendment jurisprudence.(6)

The confusion about the Fourth Amendment's scope of application to aliens stems in great part from United States v. Verdugo-Urquidez.(7) The question in this case was whether the Fourth Amendment protected a Mexican national whose houses in Mexico were searched by Mexican and American law enforcement agents. The opinion authored by Chief Justice Rehnquist framed the issue in Verdugo-Urquidez narrowly: "whether the Fourth Amendment applies to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country."(8)

A majority of the Justices held that under the circumstances the defendant was not protected by the Fourth Amendment.(9) Although clearly not necessary for the purposes of deciding the narrow issue before the Court, Rehnquist questioned in dicta whether the Fourth Amendment protected undocumented aliens in the United States.(10) Since then, courts have cited Verdugo-Urquidez for the proposition that the Fourth Amendment does not automatically protect undocumented aliens even if the challenged search and seizure took place in this country.(11)

In response to this expansive construction of Verdugo-Urquidez by the courts, commentators have properly criticized Rehnquist's opinion because it exposes non-citizens to unreasonable searches and seizures.(12) Commentators have also censured Rehnquist's opinion because it fails to devise a comprehensive scheme of the scope of the applicability of the Fourth Amendment to undocumented aliens.(13) Maintaining that Verdugo-Urquidez fails to provide guidance to the lower courts, commentators have offered alternative schemes.(14) Many of these proposals, however legally and morally justified, call for a fundamental departure from the approach taken by a majority of the justices in Verdugo-Urquidez, and therefore do not appear to offer a realistic basis for the protection of the rights of undocumented aliens. This article concludes that a workable framework of principles guiding the scope of applicability of the Fourth Amendment to undocumented aliens, and protecting their rights, can be extracted from Verdugo-Urquidez and other decisions.

Rehnquist's "Opinion of the Court," read with the opinions of the concurring justices, yields a pair of principles that govern the application of the Fourth Amendment to searches of undocumented aliens or their property in which United States agents have participated. Under the first principle, the "territoriality" principle, the Fourth Amendment applies to any person aggrieved by a search conducted in United States territory. Under the second, "voluntary presence" principle, any person who is voluntarily in the United States when a search takes place is protected by the Fourth Amendment, regardless of whether the search occurred in the United States or extraterritorially.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Search and Seizure Protections for Undocumented Aliens: The Territoriality and Voluntary Presence Principles in Fourth Amendment Law
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.