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

Article excerpt

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. …


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