Constitutions -- Social Contract or Natural Rights Compact?
United States v. Verdugo-Urquidez

As mentioned earlier, there is no probable cause required in border searches. Constitutional protections, although natural and fundamental, may also be territorial. Within the boundaries of the United States those rights have meaning, outside the boundaries they do not. The case of the United States v. Verdugo-Urquidez, 110 S.Ct. 1056 (1990), provides a bright-line example of the Court's position of the Constitution as a contract rather than a natural-rights compact.. Before the Verdugo-Urquidez case it was unclear if constitutional protections applied to non-resident aliens. The Court decided that the Fourth Amendment does not protect non-resident aliens located in a different country from searches and seizures by United States officials (ibid. 1057)

After the 1985 killing of DEA agent Enrique Camerena Salazar in Mexico, the DEA obtained an arrest warrant for Rene Martin Verdugo-Urquidez after suspecting his involvement in the agent's death and because he was a known major drug smuggler. The DEA requested help from the U.S. Marshall Service, which contacted the Mexican Federal Judicial Police (MFJP). On January 24, 1986, the MFJP arrested Verdugo-Urquidez and brought him to the United States - Mexican border. At the border, waiting U.S. officials arrested Verdugo-Urquidez then transported him to the U.S. Border Patrol station at Calexico, California.

After Verdugo's arrest, DEA agents arranged searches of his residences in Mexico without obtaining a warrant from United States officials. DEA agents requested the MFJP to grant permission to search Verdugo-Urquidez's homes in Mexacali and San Felipe, Baja Norte. Permission to search was granted by the Mexican Federal Judicial Police.

In the Ninth Circuit District Court, Verdugo moved to suppress the evidence resulting from the search of his Mexican homes. The court granted the motion because the DEA had failed to obtain a warrant. The Ninth Circuit Court of Appeals upheld the ruling. The court of appeals, citing Reid v. Covert, 354 U.S. 1 (1957), stated that "the Constitution imposes substantive constraints on the federal government, even when it operates abroad ( U.S. v. Verdugo-Urquidiez, 856 F.2d. at 1218. See also Strong at 1165). The appellate court's opinion cited previous Supreme Court recognition of some rights retained by citizens abroad, by resident aliens and even by immigrants in the United States illegally. The court wrote: ã...it would be absurd to grant the protection of the Fourth Amendment to one whose presence in the country is voluntary and illegal, and yet deny it to Verdugo-Urquidez whose presence in the United States, although legal, is plainly involuntary.ä (Strong 1165).

In her article, "The selective Application of the Fourth Amendment: United States V. Verdugo-Urquidez," Janet E. Mitchell gives the history of the case before it reached the Supreme Court of the United States:

"Verdugo-Urquidez challenged the admissibility of the evidence seized in the search, arguing that, without a warrant, any evidence found in either of his residences should be suppressed. The United States District Court for the Southern District of California held that the Fourth Amendment controlled in a search conducted as a "joint venture" (United States v. Verdugo-Urquidez, 856 F.2d 1214, 1215 (9th Cir. 1988), rev'd 110 S. Ct. 1056 (1990) by United States and Mexican agents. Accordingly, the court concluded that the exclusionary rule barred the admission of the seized drugs. (Id. at 1230). The Court of Appeals for the Ninth Circuit affirmed, reasoning that the Constitution extended to an official extra territorial government action and guaranteed protections to individuals directly "governed" by the United States. (Id.) (Mitchell 13)

The Court of Appeals first noted that Verdugo-Urquidez was a target of a United States investigation. Second, they pointed out that Verdugo-Urquidez was in custody in the United States at the time of the search and that he was subject to full adversarial proceedings. The appellate court determined, therefore, that Verdugo-Urquidez was effectively under the domain of the United States government, one of the "governed," and entitled to constitutional protection. ((United States v. Verdugo-Urquidez, 856 F.2d 1214. 1988). The case was appealed to the United States Supreme Court in 1989.

The plurality opinion in Verdugo-Urquidez written by Chief Justice William Rehnquist, joined by Justices White, O'Connor and Scalia, reversed the decision of the Ninth Circuit Court of Appeals. The decision focused on three factors: first, the location of the constitutional violation, secondly, the historical significance of the words "the people" used in the Fourth Amendment and thirdly, the plurality-established requirement that a defendant must have a voluntary, sufficient connection with the United States to enjoy Fourth Amendment protections. (Nicholas at 283.)

In reversing the lower court, the Supreme Court ruled that Fourth Amendment did not apply to a search and seizure by United States agents of property owned by a non-resident alien and located in a foreign country. The Court noted that while other parts of the Constitution referred to the "accused" or "persons,ä the Fourth Amendment refers to "the people.ä Professor Strong points out in his article on United States v. Verdugo-Urquidez, "Application of the Fourth Amendment Beyond American's Borders,ä that:

The Court included in its discussion other parts of the Constitution which referred to "The people,â such as amendments, one, two, nine and ten. Id, at 1059-60. Thus it would appear that non-resident aliens have no right to rely on these provisions any more than they can now rely on the fourth amendment. (494 U.S. 259 (1990) 1164)

For the Court, the difference of nouns between "the people" and the "accused" was essential. The Fourth Amendment means that "the people" was "A class of persons who are part of the national community or have otherwise developed sufficient connection with this country to be considered part of the community.ä (Strong 1167).This distinction defines the border as the demarcation line of constitutional history and philosophy.
In making the distinction between the words the Court said,

(b) The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. (494 U.S. 259 . 264-266 (1990))

Justice Rehnquist did include a limited natural-rights approach to the Verdugo plurality opinion. In recognition of the fundamental rights approach, Rehnquist stated that some of the Fifth Amendment protections were "fundamental" in nature and thus would apply to any defendant. (Verdugo-Urquidez 1060). For Rehnquist, constitutional provisions which are written in a more specific manner than for "people,ä such as those that refer to the "persons" or the "accused" could be fundamental in nature and thus fall within the natural rights theory. (Strong at 1175).

The most powerful statements of the Verdugo case as a violation of the Fourth Amendment came from the dissent of Justice Brennan, joined by Justice Marshall. In his view the Fourth Amendment should be applied "in its entirety" to non-resident aliens (Verdugo 1075-77). He did not go so far as to propose that constitutional rights be accorded to person everywhere, he did support the idea that Verdugo-Urquidez have some connection to the United States; Brennan would find that connection in any person who had the power of the government applied on them, legal or illegal, citizen or not. (ibid 1072) Brennan acknowledged the existence the rights inherent in each person (Id. at 1073) He concluded that the Bill of Rights, rather than establishing new rights applicable only to citizens, prohibited the US government from infringing on these pre-existing rights and liberties (Id. 1073).

Justice Brennan filed a dissenting opinion, in which Justice Marshall joined. Justice Blackmun, filed a separate dissenting opinion. In his dissent Justice Brennan said,

In my opinion aliens who are lawfully present in the United States are among those "people" who are entitled to the protection of the Bill of Rights, including the Fourth Amendment. Respondent is surely such a person even though he was brought and held here against his will. I therefore cannot join the Court's sweeping opinion·Today the Court holds that although foreign nationals must abide by our laws even when in their own countries, our Government need not abide by the Fourth Amendment when it investigates them for violations of our laws. I respectfully dissent. (Verdugo-Urquidez 110 S.Ct. 1066, 1990 at 279)

The conduct of the government toward Verdugo ignored the principle of fundamental fairness. Noting that fundamental fairness is an underlying ideal of the Constitution, Brennan said that the Bill of Rights "compels a conclusion that the Fourth Amendment protects those subject to U.S. criminal laws.ä (Id., at 1070). The contradiction is obvious; the police were able to ignore fundamental rights and the rule of law at will when arresting and searching Verdugo-Urquidez out of the territory of the United States. Allowing these actions diminishes the fundamental maxim of our government, that the rule of law applies to all actions of the government. Brennan noted that, "if we seek respect for law and order, we must observe these principles ourselves. Lawlessness breeds lawlessness.ä (ibid., 1071). Brennan concluded that the Warrant Clause must be applied to both domestic and foreign searches to assure determination by a neutral, detached magistrate. (ibid 1076).

In response to the "sufficient connection test" of the plurality, Brennan pointed out the unfairness of capturing Verdugo-Urquidez then bringing him into the United States against his will, saying "the sufficient connection is supplied not by Verdugo-Urquidez, but by the government.ä (Id., at 1070). Since Verdugo was treated as a member of our national community and forced to comply with our laws, Verdugo became one of "the people" protected by the Fourth Amendment. For Brennan the sufficient connection test and the natural rights theory were not mutually exclusive.

The relevance of the natural rights compact vs. social contract interpretations is that in the natural rights approach if individual rights are antecedent to the constitution, they should apply regardless of the physical location of the sovereignty. The question of who are "the accused" and who are "the people" becomes a central issue in the Verdugo-Urquidez case. There are two competing theories at play in Verdugo-Urquidez. Whichever is applied determines the extent of constitutional protection.

Two theories about the fundamental coverage of the Constitution apply. The first theory portrays the Constitution as a social contract, an agreement between the citizens and the government. To enjoy the protections of government, one must be a party to the contract. The second theory portrays the Constitution as a compact between the government and all people. Along this line of thought, rights came before government arose, so that government then bears the responsibility to recognize the existence of fundamental rights. Whichever approach the Court accepts defines the degree to which the Fourth Amendment becomes a restriction on the power of government agents at the border.

In Verdugo-Urquidez, the Court applied the social contract approach to determine whether Verdugo should have been afforded any Fourth Amendment rights. The social contract or compact theory envisions the United States Constitution as an agreement or compact between the people and the government created by the Constitution. Strong calls this agreement a "reciprocal relationship where, in exchange for a person becoming part of and obliging oneself to the national community, certain protections for the a person are guaranteed by the federal government.ä (Strong 1169, citing Verdugo-Urquidez). Strong points out that: "It stands to reason that since non-resident aliens have no obligations in our society, they are not parties to the constitutional compact and thus are not entitled to its provisions.ä (1170)

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