Should the Fourth Amendment reach abroad to protect noncitizens when United States law enforcement agents conduct searches and seizures in a foreign state? The courts have assumed this to be a closed question since 1990, when the Supreme Court, in a broadly worded plurality opinion by Chief Justice Rehnquist, asserted that the Amendment protects only citizens and other members of the "national community." However, as this Article points out, the Chief Justice's plurality opinion in United States v. Verdugo-Urquidez did not represent the judgment of a majority of the Court and therefore does not foreclose continued consideration of the scope of the Fourth Amendment abroad.
This Article addresses the principal questions that the Verdugo decision and subsequent scholarship have left unresolved: Does the Fourth Amendment's command that searches and seizures be "reasonable" apply to searches of noncitizens abroad? And if so, what does it mean for a search to be "reasonable" in a foreign state? The author argues that the alternatives proposed by the Supreme Court in Verdugo--either confining the Amendment to the water's edge or applying it in full force whenever the United States acts abroad--do not take proper account of the transnational nature of extraterritorial searches. The author proposes instead that any determination of the "reasonableness" of foreign searches take into account their transnational nature by reconciling United States search-and-seizure standards with either international law or the laws of the states with which the United States acts jointly abroad.
Eric Bentley, Jr.,
Toward an International Fourth Amendment: Rethinking Searches and Seizures Abroad After Verdugo-Urquidez,
27 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol27/iss2/2