UNITED STATES OF AMERICA, PETITIONER V. RENE MARTIN
   VERDUGO-URQUIDEZ

   No. 88-1353

   In the Supreme Court of the United States

   October Term, 1988

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Constitutional provision involved
   Statement
   Introduction and summary of argument
   Argument:
      A. The Fourth Amendment does not govern the extraterritorial
         search of a foreign national's property
         1. Whether a constitutional right applies overseas depends
            on the nature of the right and the context in which it is
            asserted
         2. Under those principles, the Fourth Amendment does not
            extend to the extraterritorial search of a foreign
            national's property
      B. Even if the Fourth Amendment applies, it does not require
         United States officers to secure a warrant to search an
         overseas residence
      C. The application of the Fourth Amendment and the Warrant
         Clause in this context would significantly impair American
         law enforcement and intelligence gathering efforts
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-80a) is reported
at 856 F.2d 1214.  The opinion of the district court (Pet. App.
81a-103a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on August 29,
1988.  A petition for rehearing was denied on November 14, 1988 (Pet.
App. 104a).  On January 4, 1989, Justice O'Connor extended the time
within which to file a petition for a writ of certiorari to and
including February 12, 1989 (a Sunday).  The petition was filed on
February 13, 1989, and was granted on April 17, 1989.  The
jurisdiction of this Court rests on 28 U.S.C. 1254(1).

                   CONSTITUTIONAL PROVISION INVOLVED

   The Fourth Amendment to the Constitution provides:

         The right of the people to be secure in their persons,
      houses, papers, and effects, against unreasonable searches and
      seizures, shall not be violated, and no Warrants shall issue,
      but upon probable cause, supported by Oath or affirmation, and
      particularly describing the place to be searched, and the
      persons or things to be seized.

                          QUESTION PRESENTED

   Whether evidence seized from the overseas residence of a foreign
national must be suppressed under the Fourth Amendment because the
United States law enforcement officers who conducted the seizure -- in
conjunction with, and with the approval of, foreign officials -- did
not have a search warrant.

                               STATEMENT

   The district court in this case suppressed evidence seized by
agents of the Drug Enforcement Administration (DEA) from the overseas
residence of respondent, a Mexican national.  The court of appeals
affirmed that judgment by a divided vote, holding that the Fourth
Amendment, and its Warrant Clause in particular, apply to overseas
searches and seizures of property owned by foreign nationals.  Because
the seizure in this case was effected without a search warrant, the
court of appeals upheld the suppression of the seized evidence.

   1. Respondent is a citizen and resident of Mexico.  On January 24,
1986, federal officers arrested respondent near Clexico, California,
pursuant to an arrest warrant charging him with various narcotics
offenses.  Following respondent's arrest, Terry Bowen, a Drug
Enforcement Administration agent assigned to the Calexico DEA office,
decided to arrange for searches of respondent's residences in the
Mexican cities of Mexicali and San Felipe.  Agent Bowen believed that
respondent's residences would contain cash proceeds and documents
reflecting his participation in narcotics trafficking, as well as
evidence of respondent's involvement in the kidnapping and
assassination of a DEA agent (for which respondent has since been
convicted in a separate prosecution).  Pet. App. 81a-82a, 91a.

   Bowen first telephoned Walter White, Assistant Special Agent in
Charge of the DEA office in Mexico City, and advised him of the
proposed searches.  Agent Bowen asked White to contact Florentino
Ventura, the Director General of the Mexican Federal Judicial Police
(MFJP), to secure authorization to conduct the searches and to obtain
the assistance of MFJP officers.  White twice attempted, without
success, to contact Ortega Padilla, the Second Deputy Attorney General
for the Republic of Mexico.  White then contacted Ventura, advised him
of respondent's arrest, stated DEA's belief that respondent's
residences would contain relevant evidence, and asked Ventura for
permission to search the residences.  Ventura authorized the searches
and stated that MFJP officers would assist in the operation.  Pet.
App. 83a-84a.

   While awaiting White's return call, Agent Bowen instructed the
other DEA agents who would be conducting the searches that they were
to seize all documentary evidence relevant to respondent's narcotics
activities.  The agents also understood that they were to seize
evidence relating to the assassination of the DEA agent.  After
receiving the go-ahead from Agent White, Bowen and the other agents
drove to Mexicali.  There, they informed MFJP Comandante Enrique
Salazar-Ramos that they had been authorized by Director General
Ventura to conduct the searches.  Salazar explained that he would have
to verify that Ventura had indeed authorized the searches.  After
placing a telephone call, Salazar reported that "everything was fine,"
but he stated that he wanted to speak with the "delegado" before
conducting the searches.  /1/ Salazar then left the office;  he
returned a few minutes later to announce that the searches could
proceed.  Pet. App. 84a-85a.

   Salazar and a group of MFJP officers accompanied the DEA agents to
the Mexicali residence.  Once there, Salazar and several of the MFJP
officers entered the premises.  Salazar then instructed the DEA agents
to enter as well.  The MFJP officers performed a security sweep of the
premises.  Because it was already late in the day, Salazar decided to
leave several MFJP officers at the Mexicali premises, directing them
not to search it further at that time.  He and several other MFJP
officers then left with the DEA agents for the San Felipe residence.
Pet. App. 85a-86a.

   Once in San Felipe, the agents located respondent's beach house
residence.  One of the MFJP officers entered the premises through a
window and unlocked the front door.  A group of MFJP and DEA officers
then searched the premises for about two hours.  The DEA agents seized
certain documents, while the MFJP officers seized a number of firearms
and vehicles.  Pet. App. 87a-88a.

   The agents and officers then returned to the Mexicali residence,
entered the premises, and conducted a search.  The DEA agents again
seized certain documents, while the MFJP officers seized weapons.
Among the documents seized by the DEA agents was a tally sheet, which
the government believes reflects quantities of marijuana smuggled by
respondent into the United States.  Pet. App. 6a, 88a-89a.

   At about 3:30 a.m., while Agent Bowen was searching a cabinet
containing several briefcases of documents, Comandante Salazar decided
that it was time to conclude the search.  He directed Bowen to take
the remaining documents and sort through them later.  Bowen complied.
After the search was completed, the DEA agents returned to the United
States and prepared inventories describing the seized documents.  Pet.
App. 89a.

   2. The district court suppressed the evidence seized from both
premises (Pet. App. 81a-103a).  The court found at the outset (id. at
90a-91a) that the DEA agents had sufficiently participated in the
searches to make those searches "a joint venture" between the American
and Mexican agents (id. at 90a).  The court acknowledged, however,
that it could find no precedent addressing the question "whether the
Fourth Amendment applies to a foreign search of a foreign national
conducted as a joint venture by United States and foreign officials"
(id. at 92a).  Nevertheless, the court found it "unlikely that the
Fourth Amendment was not intended to protect an alien, already in the
custody of the United States and charged in a criminal complaint, from
searches of his foreign residences conducted by United States agents
for the express purpose of obtaining evidence relevant to the pending
prosecution" (id. at 93a).  Under the Fourth Amendment, the court held
(id. at 93a-100a), the agents were required to secure a warrant before
conducting the searches.  The court explained that the Mexican
Constitution "seems to require * * * a warrant similar to that
required by the Fourth Amendment" (id. at 93a-94a);  and because the
agents had not sought to obtain a Mexican warrant, the court stated
that it was "disinclined to restrict application of the warrant clause
of the Fourth Amendment" (id. at 94a).  The court also held that
although Fed. R. Crim. P. 41(a) "does not empower a federal magistrate
or a state judge within the Southern District of California to issue a
warrant authorizing searches of residences located in Mexico" (Pet.
App. 95a), a federal court has the "inherent power" (id. at 97a) to do
so.  /2/ Because the agents had not secured a warrant from a United
States district court, the court held that the searches of
respondent's residences were unconstitutional (id. at 98a).  /3/

   3. The government appealed from the district court's order
suppressing the evidence obtained from respondent's Mexicali
residence.  /4/ The court of appeals affirmed by a divided vote (Pet.
App. 1a-80a).  Quoting from the plurality opinion in Reid v. Covert,
354 U.S. 1, 5-6 (1957), the court observed at the outset that the
United States "'is entirely a creature of the Constitution'" and
therefore "'can only act in accordance with all the limitations
imposed by the Constitution.'" From that premise, the court of appeals
surmised that "a proposition of enormous vitality may be drawn:  The
Constitution imposes substantive constraints on the federal
government, even when it operates abroad" (Pet. App. 8a).  Applying
that principle, the court held that a nonresident alien may invoke the
Fourth Amendment to challenge the reasonableness of a foreign search.
It rejected the contention that because the Fourth Amendment is
limited, by its terms, to "the people" of the United States, it does
not embrace foreign nationals in connection with overseas searches and
seizures (id. at 19a-20a).  The court also found it "odd indeed" that
aliens in this country would be entitled to a fair trial under the
Sixth Amendment, and to due process under the Fifth Amendment, but
would not be extended the protections of the Fourth Amendment against
unreasonable searches and seizures of their property abroad (id. at
22a).

   Having concluded that respondent could challenge the Mexicali
search under the Fourth Amendment, the court next held (Pet. App.
32a-36a) that the search was constitutionally unreasonable for want of
a warrant.  /5/ The court recognized that "a warrant issued by an
American magistrate would be a dead letter in Mexico" and that "it
would be an affront to a foreign country's sovereignty if the DEA
presented an American warrant and suggested that it gave the American
agents all the authority they needed to search a foreign residence"
(id. at 35a).  But the court nonetheless refused to "relieve the
government" of the warrant requirement (ibid.).  "To do so," the court
stated, "would be to treat foreign searches differently from domestic
searches just because they are foreign" (ibid.).  The court saw no
basis "to amputate from the body of th(e) (Fourth Amendment)
protection the appendage that requires a detached magistrate's advance
determination of probable cause and the issuance of a warrant," even
with respect to a foreign search (id. at 35a-36a).  And although the
court acknowledged that an American warrant "would be of no legal
validity in Mexico," the court concluded that it would still "have
substantial constitutional value in this country" because it would
"reflect the magistrate's determination that probable cause to search
existed" and would "define the scope of the search" (id. at 36a).  The
court therefore affirmed the order suppressing the evidence that had
been seized from respondent's Mexicali home.  /6/

   Judge Wallace dissented (Pet. App. 36a-80a).  In his view, the
Fourth Amendment does not apply to the search of foreign property
belonging to a foreign national.  Judge Wallace explained that the
protections of the Fourth Amendment are limited, by their terms, to
"the people" -- a class, he stated, that does not include foreign
nationals with respect to overseas searches (id. at 38a-39a).  More
generally, Judge Wallace found (id. at 39a-45a) that the Constituion
is itself designed as a "social compact" between the government and
"'the people of the United States.'" The latter group, he explained,
includes only "American citizens at home and abroad and aliens within
our country's borders who are victims of actions taken in the United
States by American officials" (id. at 46a (emphasis in the original)).
 By contrast, he noted, there is no support for the proposition that
"the Bill of Rights protects foreign nationals residing abroad from
actions taken abroad by the officials" (ibid. (emphasis in the
original)).  Finally, Judge Wallace found "very troubling" the
majority's insistence on a warrant to conduct the searches (id. at
77a).  In addition to other "constitutional and pragmatic"
difficulties, he observed, "the majority's ruling ignores the
practical realities that when our agents conduct searches abroad, they
are at the mercy of foreign officials.  The foreign officials are the
ones who decide the scope and reasonableness of any proposed search,
whether the search will occur at all, and under what conditions it
will be conducted.  Even if, in a given case, these foreign officials
defer considerably to the requests of our own agents, the fact remains
that our agents are conducting the search at the pleasure and under
the terms imposed by our foreign hosts." Id. at 79a.  /7/

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   In conducting the search of respondent's Mexicali residence, the
DEA agents followed every requirement imposed by their Mexican hosts.
They secured the advance authorization of responsible Mexican
officials.  They enlisted the active participation of the Mexican
police.  And they obeyed the orders of the supervising Mexican
official in executing the search and in securing the seized items.
The court of appeals suppressed the seized evidence, however, because
the agents did not take the additional precaution of obtaining an
American search warrant -- a warrant which no American official is
empowered to issue, and which, as the court of appeals acknowledged,
"would be a dead letter in Mexico" (Pet. App. 35a-36a).

   The court of appeals' decision is both unprecedented and unwise.
Its application of the Fourth Amendment, and the Warrant Clause in
particular, cannot be squared with this Court's decisions.  The
decision also threatens to impair law enforcement efforts overseas --
efforts that cannot be effectively pursued if they must depend upon a
magistrate's case-by-case authorization.

   A. We do not believe that the Fourth Amendment protected respondent
against the search of his Mexicali residence.  As Justice Harlan
explained in his concurring opinion in Reid v. Covert, 354 U.S. 1, 75
(1957), the question whether, and to what extent, the Constitution
applies overseas "is one of judgment, not of compulsion." In making
such judgments, courts must consider the nature of the underlying
right, the territory in which the claim arises, and the relationship
of the claimant to the American community.  Applying Justice Harlan's
analysis, we conclude that respondent, a foreign national, enjoyed no
Fourth Amendment protection against the search of his overseas
residence.

   B. Even if the Fourth Amendment applies, the court of appeals erred
in requiring the agents to comply with the Warrant Clause.  This Court
has made clear that a search warrant is not required by the Fourth
Amendment where "the burden of obtaining a warrant is likely to
frustrate the governmental purpose behind the search," Camara v.
Municipal Court, 387 U.S. 523, 533 (1967), or where, in light of the
nature of the search, a warrant would do little to further the
purposes of the Warrant Clause, Skinner v. Railway Labor Executives'
Ass'n, 109 S. Ct. 1402, 1415 (1989).  For several reasons, an overseas
search -- which must be conducted, if at all, with the permission and
under the supervision of foreign officials -- falls within both
exceptions.  An overseas search should be governed not by the warrant
requirement that was imposed by the court below but, at most, by the
more basic and flexible Fourth Amendment requirement of
reasonableness.  Under that standard, the search of respondent's
Mexicali residence was entirely lawful.

   C. The court of appeals' application of the Fourth Amendment in
this setting, and its application of the Warrant Clause in particular,
significantly threaten American law enforcement and intelligence
gathering activities abroad.  Criminal activity has become an
increasingly international enterprise, and American law enforcement
has therefore assumed an increasingly international presence.  In that
capacity, United States officers, in conjunction with their foreign
counterparts, frequently participate in physical searches and seizures
and assist in electronic surveillance.  The imposition of a warrant
requirement in that context is severely impracticable, threatening not
only our law enforcement efforts, but also our ongoing relations with
our hosts.

                               ARGUMENT

   UNITED STATES LAW ENFORCEMENT OFFICERS ARE NOT REQUIRED TO SECURE A
WARRANT BEFORE THEY MAY SEARCH THE OVERSEAS RESIDENCE OF A FOREIGN
NATIONAL

   A. The Fourth Amendment Does Not Govern The Extraterritorial Search
Of A Foreign National's Property

   The court of appeals rested its decision on a simple, beguiling
syllogism.  It began with the premise, drawn from this Court's
decision in Reid v. Covert, 354 U.S. 1 (1957), that "'(t)he United
States is entirely a creature of the Constitution'" and "'can only act
in accordance with all the limitations imposed by the Constitution'"
(Pet. App. 7a (citation omitted)).  From that premise, the court
continued, "a proposition of enormous vitality may be drawn:  The
Constitution imposes substantive constraints on the federal
government, even when it operates abroad" (id. at 8a).  With the first
two propositions in mind, the court proceeded easily to its conclusion
-- that respondent, a foreign national, must be granted the full
protections of the Fourth Amendment against the search and seizure of
his Mexicali residence.

   We accept the court's premises but not its conclusion.  While the
Constitution no doubt imposes some "substantive constraints on the
federal government, even when it operates abroad" (Pet. App. 8a), it
does not apply in full measure to every corner of the globe
(regardless of the territorial connection to the United States), and
it does not protect all persons (regardless of their connection to the
United States).

   This Court has stated that, as a general matter, "(n)either the
Constitution nor the laws passed in pursuance of it have any force in
foreign territory unless in respect of our own citizens." United
States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936).  See
also United States v. Belmont, 301 U.S. 324, 332 (1937);  United
States v. Pink, 315 U.S. 203, 226 (1942).  That formulation is an
accurate, shorthand description of the results reached by this Court
in cases involving the extraterritorial application of constitutional
protections.  /8/ Yet the decision whether to give extraterritorial
application to particular constitutional provisions in particular
contexts is not one that admits of categorical answers.  Instead, it
requires a careful assessment of several factors, including the nature
of the underlying right, the character of the territory in which the
constitutional claim arose, and the relationship of the claimant to
the United States.  That is the approach to questions of
extraterritoriality articulated by Justice Harlan in his concurring
opinion in Reid v. Covert, 354 U.S. 1 (1957).  That approach is also
faithful to the analysis the Court has employed, and the results the
Court has reached, in cases involving the extraterritorial application
of constitutional guarantees.  We urge that approach here.  Under it,
we submit that respondent, a foreign national, may not challenge the
search of his overseas residence on Fourth Amendment grounds.

   1. Whether a constitutional right applies overseas depends on the
nature of the right and the context in which it is asserted

   a. The court of appeals concluded that the Constitution applies
wherever and whenever the United States acts abroad.  That expansive
view of the Constitution cannot be squared with this Court's
decisions.  Indeed, for much of this Nation's history, the common
understanding was that the Constitution had no extraterritorial force
at all.  As Justice Johnson explained in his opinion at circuit in
American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511 (1828), "(a)t
the time the Constitution was formed, the limits of the territory over
which it was to operate were generally defined and recognised.  These
limits consisted in part, of organized states, and in part of
territories, the absolute property and dependencies of the United
States.  These states, this territory, and future states to be
admitted into the Union, are the sole objects of the Constitution"
(id. at 517).

   The Court's view of the matter had not changed by the end of the
19th century.  In 1883, the Court characterized it as "an axiom of
international jurisprudence" that "the laws of a country have no
extra-territorial force." Canadian Southern Ry. v. Gebhard, 109 U.S.
527, 536.  And in 1895, the Court stated, without qualification, that
"(n)o law has any effect, of its own force, beyond the limits of the
sovereignty from which its authority is derived." Hilton v. Guyot, 159
U.S. 113, 163 (1895).

   Indeed, in In re Ross, 140 U.S. 453 (1891), this Court held that
not even American citizens enjoy constitutional protection outside the
confines of the United States.  The petitioner in the Ross case, an
American seaman stationed in Yokohama harbor, was convicted of murder
and sentenced to death, although his sentence was later commuted to
life imprisonment by President Hayes (see id. at 454-455).  Nearly ten
years later, the petitioner brought a habeas corpus action, contending
that his trial before the American consular tribunal in Japan violated
his constitutional rights to an indictment by a grand jury and to a
trial by a petit jury.  This Court unanimously rejected the claim that
"the same protection(s) and guarantee(s) * * * secured by the
Constitution to citizens of the United States at home, should be
enjoyed by them abroad." Id. at 463.  "By the Constitution a
government is ordained and established 'for the United States of
America,'" the Court explained, id. at 464, "and not for countries
outside of their limits." Accordingly, the Court concluded, the
Constitution "can have no operation in another country." Ibid.
Moreover, the Court noted, petitioner's claim -- that the protections
of the Constitution extend to all Americans abroad -- ignored the
constraints that necessarily apply whenever the United States acts
within the territory of a separate sovereign.  As the Court put it,
"(w)hen * * * the representatives or officers of our government are
permitted to exercise authority of any kind in another country, it
must be on such conditions as the two countries may agree, the laws of
neither one being obligatory upon the other." Ibid.  The Court
therefore looked to the treaties between the United States and Japan
and concluded that, under the governing provisions, petitioner had
received a fair trial.  Id. at 465-470.  /9/

   Although a plurality of this Court in Reid v. Covert, 354 U.S. 1
(1957), rejected the strict territorial limitations articulated in
Ross (see 354 U.S. at 12), the Court has consistently rejected the
proposition -- endorsed by the court below -- that all of the
protections of the Constitution apply wherever, whenever, and against
whomever the United States acts abroad.  Thus, the Court has explained
that "(i)n the case of the territories, as in every other instance,
when a provision of the Constitution is invoked, the question which
arises is, not whether the Constitution is operative, * * * but
whether the provision relied on is applicable." Downes v. Bidwell, 182
U.S. 244, 292 (1901).  As the Court later put the same point, "(t)he
Constitution * * * contains grants of power and limitations which in
the nature of things are not always and everywhere applicable, and the
real issue (is) * * * which of its provisions were applicable by way
of limitation upon the exercise of executive and legislative power in
dealing with new conditions and requirements." Balzac v. Porto Rico,
258 U.S. 298, 312 (1922).

   The Reid case, on which the court of appeals prominently relied
(Pet. App. 7a-9a, 15a), does not support a more expansive
extraterritorial view of the Constitution.  There, the Court held that
an American living overseas was entitled to a civil jury trial, rather
than a trial by court-martial, in a prosecution for the murder of her
husband, a military officer.  A plurality of the Court "reject(ed) the
idea that when the United States acts against citizens abroad it can
do so free of the Bill of Rights." 354 U.S. at 5 (emphasis added).
The plurality explained that "(w)hen the Government reaches out to
punish a citizen who is abroad, the shield which the Bill of Rights
and other parts of the Constitution provide to protect his life and
liberty should not be stripped away just because he happens to be in
another land." Id. at 6.  As the plurality put it, "(t)he mere fact
that (the defendant) had gone overseas with (her) husband() should not
reduce the protection the Constitution gives (her)." Id. at 33.

   By its terms, Reid is limited to governmental action against
American citizens overseas.  Nor is it altogether clear that Reid
applies to every constitutional provision, regardless of its nature or
the ease with which it can be accommodated to a foreign setting.  See
Haig v. Agee, 453 U.S. 280, 308 (1981) (stating that the Court would
assume, "arguendo, that First Amendment protections reach beyond our
national boundaries").  As a technical matter, moreover, Reid was not
an "extraterritorial" case at all.  Mrs. Covert's claim arose during
the exercise of court-martial jurisdiction on an Air Force base in
England, which was "a manifestation of the 'sovereign power' of this
nation," rather than an act "in derogation (of) the superior authority
of a host country." Stephan, Constitutional Limits on International
Rendition of Criminal Suspects, 20 Va. J. Int'l L. 777, 790 (1980).
In any event, Reid does not stand for the "proposition of enormous
vitality" derived by the court of appeals -- that the Constitution
binds the government wherever, and against whomever, it acts.  /10/
Indeed, Justice Black, who authored the plurality opinion, had
previously rejected the proposition "that this nation either must or
should attempt to apply every constitutional provision of the Bill of
Rights in controlling temporarily occupied countries." Johnson v.
Eisentrager, 339 U.S. 763, 796-797 (1950) (Black, J., dissenting).
/11/

   b. We therefore reject the court of appeals' categorical approach
to questions of extraterritoriality under the Constitution.  The
Constitution does not apply across the board, to every person and in
every setting overseas.  Rather, as Justice Harlan explained in his
concurring opinion in Reid, the question whether to apply a particular
constitutional provision abroad is "one of judgment, not of
compulsion." 354 U.S. at 75 (Harlan, J., concurring).  The Court's
prior cases, Justice Harlan observed, "stand for an important
proposition * * * not that the Constitution 'does not apply' overseas,
but that there are provisions in the Constitution which do not
necessarily apply in all circumstances in every foreign place." Id. at
74 (emphasis in original).  The question, he concluded, "is which
guarantees of the Constitution should apply in view of the particular
circumstances, the practical necessities, and the possible
alternatives." Id. at 75 (emphasis in original).

   In making the kinds of case-by-case judgments suggested by Justice
Harlan, the Court has considered three general factors:  (1) "the
relation of the particular territory to the United States" (Dorr v.
United States, 195 U.S. 138, 142 (1904)), i.e., whether the asserted
constitutional claim arose in a territory in which the United States
exercises significant sovereignty;  (2) the nature of the underlying
right, i.e., whether the right can readily be applied in the foreign
setting, or whether its application in that setting would be
"impractical and anomalous" (Reid, 354 U.S. at 75 (Harlan, J.,
concurring));  and (3) the relationship of the claimant to the United
States, i.e., whether the claimant has some basis for asserting
ongoing membership in the American community (see Johnson v.
Eisentrager, 339 U.S. 763, 770 (1950)).

   First among those factors is the relationship between the United
States and the place in which the constitutional claim arose.  The
Insular Cases -- involving constitutional claims relating to
territories obtained by the United States either by purchase or
conquest -- illustrate that inquiry.  /12/ In those cases, the Court
distinguished between "incorporated" and "unincorporated" territories,
and it conferred different degrees of constitutional protection upon
each of them.  "Incorporated territories" were "those Territories
destined for statehood from the time of acquisition, and the
Constitution was applied to them with full force.  Examining Board of
Engineers, Architects & Surveyors v. Flores del Otero, 426 U.S. 572,
599 n.30 (1976).  By contrast, "unincorporated territories" were those
territories "not possessing that anticipation of statehood";  and even
though the United States exercised substantial sovereignty in those
territories, the Court held that "only 'fundamental' constitutional
rights were guaranteed to the inhabitants." Ibid.

   For example, in Downes v. Bidwell, supra, the Court held that
Article I, Sec. 8 of the Constitution, which provides that "all
Duties, Imposts and Excises shall be uniform throughout the United
States," was not applicable to Puerto Rico.  /13/ In a concurring
opinion that later became the governing doctrine in the area (see
Torres v. Puerto Rico, 442 U.S. 465, 469 (1979);  Examining Board, 426
U.S. at 599-600 n.30), Justice White explained that in determining
whether to apply a particular constitutional provision abroad, "the
status of a particular territory" (182 U.S. at 294 (emphasis in the
original)) must generally be considered.  Because Puerto Rico "had not
been incorporated into the United States, but was merely appurtenant
thereto as a possession" (id. at 341-342), Justice White concluded
that the Uniform Duties Clause did not apply there.

   If Puerto Rico -- a territory in which the United States is
sovereign -- is governed only by "fundamental" constitutional
provisions, there is even less basis for applying the Constitution in
a country in which the United States exercises no sovereignty at all.
Independent sovereigns "lie() outside the structure of the Union."
Monaco v. Mississippi, 292 U.S. 313, 330 (1934).  Thus, when the
United States acts in a territory controlled by a separate sovereign,
it does so only "on such conditions as the two countries may agree."
In re Ross, 140 U.S. at 464.  /14/ The essence of sovereignty is the
power to set the governing rules of law, "generally to the exclusion
of other states." 1 Restatement (Third) of The Foreign Relations Law
of the United States, Section 206 comment b, at 94 (1987).  It follows
that the Constitution should be presumptively inapplicable in places
in which other nations, and not the United States, are sovereign.

   Second, the Court has carefully considered the nature of the
constitutional right asserted and the extent to which it can sensibly
be applied in a foreign setting.  In Balzac v. Porto Rico, supra, for
example, the Court held that the right to a trial by jury under the
Sixth Amendment does not extend to Puerto Rico.  In reaching that
conclusion, the Court observed that political and cultural differences
between the United States and overseas territories may preclude the
extraterritorial application of the Constitution.  "The jury system,"
for example, "needs citizens trained to the exercise of the
responsibilities of jurors" and "(i)n common law countries centuries
of tradition have prepared a conception of the impartial attitude
jurors must assume" (258 U.S. at 310).  Conversely, "Congress has
thought that a people like the * * * Porto Ricans, trained to a
complete judicial system which knows no juries, living in compact
customs and political conceptions, should be permitted themselves to
determine how far they wish to adopt this institution of Anglo-Saxon
origin, and when" (ibid.).

   When the Court has applied a particular constitutional provision
overseas, it has done so not because the Constitution always governs
United States activities abroad, but because the provision in question
could be extended without compromising American national interests or
disrupting local traditions.  In Torres v. Puerto Rico, 442 U.S. 465
(1979), for example, the Court held that the Fourth Amendment's
restrictions on searches and seizures apply to Puerto Rico.  The Court
relied on "Congress' implicit determinations * * * and long experience
(which) establish that the Fourth Amendment's restrictions on searches
and seizures may be applied to Puerto Rico without danger to national
interests or risk of unfairness." Id. at 470.  See also Calero-Toledo
v. Pearson Yacht Leasing Co., 416 U.S. 663, 668-669 n.5 (1974).

   Third, the Court has considered the extent to which the claimant
maintains ongoing membership in the American community -- whether by
citizenship, naturalization, or continuous presence.  The Court's
decision in Johnson v. Eisentrager, 339 U.S. 763 (1950), illustrates
that consideration.  The plaintiffs in the Johnson case, German
nationals who had been convicted by an American military commission
and imprisoned overseas for engaging in military activity against the
United States, brought a habeas corpus action in a United States
federal court, alleging that they had been denied various rights
arising under the United States Constitution.  The court of appeals
held in plaintiffs' favor, reasoning, like the court of appeals in the
present case, that "any person, including an enemy alien, deprived of
his liberty anywhere under any purported authority of the United
States is entitled to the writ if he can show that extension to his
case of any constitutional rights or limitations would show his
imprisonment illegal." Id. at 767.  This Court reversed, expressly
rejecting the proposition that constitutional rights extend to all
"persons," regardless of their connection to this country.  "Such
extraterritorial application of organic law," the Court explained (id.
at 784-785), "would have been so significant an innovation in the
practice of governments that, if intended or apprehended, it could
scarcely have failed to excite contemporary comment.  Not one word can
be cited.  No decision of this Court supports such a view.  * * * None
of the learned commentators on our Constitution has even hinted at it.
 The practice of every modern government is opposed to it."

   This third factor -- whether the claimant has a close connection to
the American community -- reflects the broader principle that the
Constitution represents "a 'compact' or 'social contract' among the
people of the United States" (Pet. App. 39a).  Accord Chisholm v.
Georgia, 2 U.S. (2 Dall.) 419, 471 (1793) (emphasis in the original)
("the Constitution of the United States is * * * a compact made by the
people of the United States to govern themselves as to general
objects, in a certain manner");  The Federalist No. 39 (J. Madison).
Persons, whether citizens or not, who have made the commitment of
ongoing residence in the United States necessarily assume the duties
that membership in the American community entails.  "As a foreigner
domiciled in the country," an alien "owe(s) allegiance to the
government of the country so long as he reside(s) within its limits *
* * ." Radich v. Hutchins, 95 U.S. 210, 211 (1877).  Accord Carlisle
v. United States, 83 U.S. (16 Wall.) 147, 154 (1873).  With those
assumed duties, however, come corresponding protections.  As the court
below acknowledged, "(b)y accepting the obligations of allegiance to
the United States, the alien receives in exchange some measure of
constitutional protection" (Pet. App. 17a).  For that reason, as the
Court stated in Johnson, "(t)he alien * * * has been accorded a
generous and ascending scale of rights as he increases his identity
with our society." 339 U.S. at 770.  "Mere lawful presence in the
country creates an implied assurance of safe conduct and gives him
certain rights;  they become more extensive and secure when he makes
preliminary declaration of intention to become a citizen, and they
expand to those of full citizenship upon naturalization." Ibid.;
accord Landon v. Plasencia, 459 U.S. 21, 32 (1982).

   2. Under those principles, the Fourth Amendment does not extend to
the extraterritorial search of a foreign national's property

   Because the court of appeals assumed that every provision of the
Constitution extends abroad whenever the United States asserts its
authority, the court did not examine the nature of the right at issue
-- the right against unreasonable searches and seizures -- or the
context in which it has been asserted in this case.  In our view, the
text and purposes of the Fourth Amendment suggest that the underlying
right has little, if any, extraterritorial force, particularly when
urged on behalf of a foreign national.  In light of the factors
discussed above, we believe that respondent enjoyed no Fourth
Amendment protection against the search of his Mexicali residence.
/15/

   a. The text of the Fourth Amendment strongly suggests that its
protections do not extend to foreign nationals with respect to
overseas searches.  The Amendment provides in pertinent part that
"(t)he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated." U.S. Const. Amend. IV (emphasis added).  Unlike the
Fifth Amendment, which protects all "persons," or the Sixth Amendment,
which protects all those who are "accused," Fourth Amendment rights
are limited to "the people" -- a term that does not easily encompass
persons living beyond our shores.  As Judge Wallace explained in
dissent, "it appears that 'the people' referred to in the amendment
are 'The People' in the Preamble who endowed the federal government
with certain limited, enumerated powers" (Pet. App. 39a);  and,
consistent with the Preamble, Fourth Amendment protection would seem
to extend only to those persons who "may properly be considered one of
the people of the United States" (ibid. (emphasis in the original)).
/16/ Additional "(s)upport for such a meaning may be found in the
provisions of article I concerning election of representatives by 'the
People,' * * * and in the ninth and tenth amendments, by which 'the
people' retain and reserve rights not enumerated in the Constitution
and powers not delegated to the United States." Damrosch, Foreign
States and the Constitution, 73 Va. L. Rev. 483, 488 n.13 (1987).  And
construing parallel language in the First Amendment, this Court has
held that an alien who has not been permitted to enter this country
cannot assert free speech or free press claims, since he is not "one
of the people to whom these things are secured by our Constitution"
(United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904)).
/17/

   b. A broad extraterritorial application of the Fourth Amendment is
also difficult to square with the nature of the protections afforded
by the Amendment -- "expectation(s) of privacy that society is
prepared to consider reasonable." United States v. Jacobsen, 466 U.S.
109, 122 (1984);  see also Katz v. United States, 389 U.S. 347,
360-362 (1967) (harlan, J., concurring).  By their nature, "reasonable
expectations of privacy" are not free-floating concepts, capable of
universal application.  To the contrary, because "expectations of
privacy by law must have a source outside of the Fourth Amendment,
either by reference to concepts of real or personal property law or to
understandings that are recognized and permitted by society" (Rakas v.
Illinois, 439 U.S. 128, 143-144 n.12 (1978)), the interests that are
conventionally protected by the Fourth Amendment will vary from
culture to culture, and from one society to another.  /18/ It is,
moreover, "obvious that the political system in each society will be a
fundamental force in shaping its balance of privacy, since certain
patterns of privacy, disclosure, and surveillance are functional
necessities for particular kinds of political regime." A. Westin,
Privacy and Freedom 23 (1967).  As a result, there is no reason to
believe that the American privacy values protected by the Fourth
Amendment resemble the privacy values enjoyed by foreign nationals
abroad.  /19/ To the contrary, as one commentator has noted, "American
patterns of privacy are, in the main, the end products of a long
period of cultural development" and "it is very clear that our view of
privacy as a set of rules against intrusion and surveillance focused
on the household occupied by a nuclear family is a conception which is
not to be found universally in all societies." J. Roberts & T. Gregor,
Privacy:  A Cultural View, reprinted in Privacy 199, 224-225 (J.
Pennock & J. Chapman ed. 1971);  see generally B. Moore, Jr., Privacy:
 Studies in Social and Cultural History (1984).

   To accommodate the Fourth Amendment to a foreign setting, courts
would therefore be required to assess the complex of rules, customs,
and practices that give rise to reasonable expectations of privacy
overseas.  /20/ That is a task that courts in this country are
ill-suited to perform.  See generally Stephan, Constitutional Limits
on International Rendition of Criminal Suspects, 20 Va. J. Int'l L.
777, 788 (1980) ("Where the rights of citizens abroad are involved,
courts at least possess a frame of reference in the form of rights
enjoyed by a citizen domestically.  The rights enjoyed by an overseas
alien against his government, by contrast, vary dramatically
throughout the world").  Still less can American courts "balance the
nature and quality of the intrusion on (a foreign) individual's Fourth
Amendment interests against the importance of the governmental
interests alleged to justify the intrusion" -- which is the means of
assessing the reasonableness of the search or seizure at issue (United
States v. Place, 462 U.S. 696, 703 (1983)).  The impracticability of
any such inquiry powerfully suggests that the Fourth Amendment was not
designed to protect foreign nationals against searches and seizures
abroad.

   Quite apart from its impracticability, judicial inquiry into
expectations of privacy abroad may cause considerable embarrassment to
the foreign State and thereby hinder the executive branch in its
conduct of foreign relations.  Cf. Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 430-432 (1964).  Whether, and to what extent,
a foreign sovereign protects the privacy of its citizens is doubtless
a matter of some delicacy.  It ought not be the subject of adversarial
litigation in an American courtroom, particularly since such
litigation "implicitly passes judgment on the legal system of the
foreign country and thereby threatens comity values." Note, supra, 102
Harv. L. Rev. at 1688;  see generally Note, Constitutional Problems in
the Execution of Foreign Penal Sentences:  The Mexican-American
Prisoner Transfer Treaty, 90 Harv. L. Rev. 1500, 1518-1522 (1977).
What is more, a judgment by an American court that an overseas search
is unreasonable -- and that the evidence obtained must therefore be
suppressed -- frustrates the decision of the foreign sovereign to
authorize and participate in the search, and thereby undermines the
Executive's ability to enlist foreign cooperation in the future.  As
one commentator has recently observed, "(a) foreign country
cooperating with United States law enforcement efforts may refuse
future cooperation if the fruits of these efforts ultimately prove
useless." Note, supra, 102 Harv. L. Rev. at 1688.  /21/

   c. In short, the Fourth Amendment by its nature cannot readily be
applied beyond the territorial limits of the United States.  In the
context of this case, moreover, extraterritorial protections are
particularly unwarranted.  Mexico, of course, is a separate sovereign,
with its own traditions and institutions.  Respondent is a foreign
national, with no ties to the American community other than his
presence in this country for trial.  These factors, taken in
combination, afford respondent no Fourth Amendment protection against
the search of his overseas premises.

   Of course, to hold that the Fourth Amendment does not apply to
overseas searches of the property of a foreign national is not to
suggest that there are or should be no controls whatever over the
investigative activities of American agents overseas.  Besides the
obligations imposed by the host countries themselves, Congress can
restrict American agents' overseas activities as it sees fit.  /22/
And the Due Process Clause can be invoked to bar the admission of
evidence in American courts where that evidence was obtained by a
method that "shocks the conscience" or fails to "respect certain
decencies of civilized conduct." Rochin v. California, 342 U.S. 165,
172, 173 (1952).  Deciding that the Fourth Amendment is inapplicable
in the present context would therefore not condone, or abandon control
over, serious misconduct by American officers abroad.  It would simply
recognize that the balance between privacy and law enforcement
interests that the Fourth Amendment strikes for this country cannot
easily be exported.

   B. Even If The Fourth Amendment Applies, It Does Not Require United
States Officers To Secure A Warrant To Search An Overseas Residence

   Once the court of appeals determined that the Fourth Amendment
applied extraterritorially, it unflinchingly applied the Warrant
Clause as well.  To relieve the government of the warrant requirement,
the court reasoned, "would be to treat foreign searches differently
from domestic searches just because they are foreign" (Pet. App. 35a).
 Although it acknowledged that an American warrant "would be of no
legal validity in Mexico," the court concluded that a warrant would
still "have substantial constitutional value in this country" because
it would "reflect the magistrate's determination that probable cause
to search existed" and would "define the scope of the search" (id. at
36a).  Because the agents had not secured an American search warrant,
the court upheld the suppression of evidence from respondent's
Mexicali residence.

   We disagree.  In the context of overseas searches and seizures,
"'special needs beyond the normal need for law enforcement, make the
warrant * * * requirement impracticable.'" Griffin v. Wisconsin, 107
S. Ct. 3164, 3167 (1987) (citation omitted).  If the Fourth Amendment
applies at all in this setting, all it requires is reasonableness.  In
making that judgment, moreover, courts must afford substantial
deference to the requirements imposed by the host country.

   1. "The fundamental command of the Fourth Amendment is that
searches and seizures be reasonable * * * ." New Jersey v. T.L.O., 469
U.S. 325, 340 (1985).  See United States v. Montoya de Hernandez, 473
U.S. 531, 537 (1985);  United States v. Villamonte-Marquez, 462 U.S.
579, 588 (1983).  Thus, "the Fourth Amendment does not proscribe all
searches and seizures, but only those that are unreasonable." Skinner
v. Railway Labor Executives' Ass'n, 109 S. Ct. 1402, 1414 (1989).  See
Carroll v. United States, 267 U.S. 132, 147 (1925).  The test of
reasonableness, moreover, "is not capable of precise definition or
mechanical application." Bell v. Wolfish, 441 U.S. 520, 559 (1979).
See Graham v. Connor, No. 87-6571 (May 15, 1989), slip op. 9.  Rather,
in defining the contours of the right to be free from unreasonable
searches and seizures, this Court has repeatedly said that "'the
specific content and incidents of this right must be shaped by the
context in which it is asserted.'" Wyman v. James, 400 U.S. 309, 318
(1971) (quoting Terry v. Ohio, 392 U.S. 1, 9 (1968)).

   In the context of an ordinary criminal investigation, the Court has
held that both probable cause and a warrant are generally necessary to
render a search reasonable.  See United States v. Karo, 468 U.S. 705,
717 (1984);  United States v. United States District Court, 407 U.S.
297, 317 (1972).  But as the Court explained recently in Skinner v.
Railway Labor Executives' Ass'n, 109 S. Ct. 1402, 1414 (1989)
(citation omitted), exceptions from those requirements have been
permitted "when 'special needs, beyond the normal need for law
enforcement, make the warrant and probable-cause requirement
impracticable.'"

   Where, for example, "the burden of obtaining a warrant is likely to
frustrate the governmental purpose behind the search" (Camara v.
Municipal Court, 387 U.S. 523, 533 (1967)), the Court has routinely
held that a warrant is not required by the Fourth Amendment.  In
Griffin v. Wisconsin, 107 S. Ct. 3164 (1987), the Court held that a
probation officer need not obtain a warrant before conducting a search
of a probationer's residence.  The Court explained that "(a) warrant
requirement would interfere to an appreciable degree with the
probation system, setting up a magistrate rather than the probation
officer as the judge of how close a supervision the probationer
requires" (107 S. Ct. at 3169).  Similarly, in New Jersey v. T.L.O.
the Court held that school officials did not need a warrant or
probable cause to search a child suspected of an infraction of school
disciplinary rules, because a warrant requirement "would unduly
interfere with the maintenance of the swift and informal disciplinary
procedures needed in the schools" (469 U.S. at 340).  /23/

   The Court has also found the warrant requirement inapplicable
where, in light of the nature of the search or seizure, "a warrant
would do little to further" the traditional purposes of the Warrant
Clause -- to "assure() the citizen that the intrusion is authorized by
law, and that it is narrowly limited in its objectives and scope" and
to "provide() the detached scrutiny of a neutral magistrate, and thus
ensure() an objective determination whether an intrusion is justified
in any given case." Skinner v. Railway Labor Executives' Ass'n, 109 S.
Ct. at 1415.  In the Skinner case, for example, the Court held that
the government need not secure a warrant in order to require the blood
and urine testing of railroad employees who have been involved in
major train accidents.  The Court explained that "in light of the
standardized nature of the tests and the minimal discretion vested in
those charged with administering the program, there are virtually no
facts for a neutral magistrate to evaluate." Id. at 1415-1416.  See
also New York v. Burger, 482 U.S. 691, 703 (1987) (search of premises
of pervasively regulated business permissible where statute
"perform(ed) the * * * basic functions of a warrant" and thus provided
a constitutionally adequate substitute for a warrant).

   2. The court of appeals misapplied those principles in requiring
United States agents to secure a search warrant before they may search
a foreign national's overseas residence.  Indeed, the court stumbled
at the outset, refusing "to treat foreign searches differently from
domestic searches just because they are foreign" (Pet. App. 35a).  By
insisting on treating foreign and domestic searches in the same
manner, the court of appeals ignored this Court's reminder that "what
is reasonable depends on the context within which a search takes
place." New Jersey v. T.L.O., 469 U.S. 325, 337 (1985).  Because it
refused to consider the context of the search in this case, the court
of appeals never addressed those aspects of foreign searches that
render application of the Warrant Clause wholly inappropriate.

   a. As in the Skinner case, a warrant in this context "would do
little to further the() aims" of the Warrant Clause (109 S. Ct. at
1415).  A warrant is issued to empower an agent to conduct the search
(Fed. R. Crim. P. 41(b);  cf. Coolidge v. New Hampshire, 403 U.S. 443,
467 (1971));  to "provide() the detached scrutiny of a neutral
magistrate, and thus (to) ensure() an objective determination whether
the intrusion is justified in any given case" (Skinner, 109 S. Ct. at
1415;  and to "assure() the citizen that the intrusion * * * is
narrowly limited in its objectives and scope" (ibid.).  But a warrant
issued for an overseas search serves none of those functions.

   First, an American warrant would not empower the agents to go
forward;  as the court of appeals itself recognized, "it would be an
affront to a foreign country's sovereignty if the DEA presented an
American warrant and suggested that it gave the American agents all
the authority they needed to search a foreign residence" (Pet. App.
35a).  Mexico, in particular, takes special precautions to safeguard
its sovereignty with respect to law enforcement activities within its
borders.  For example, the Mutual Legal Assistance Treaty recently
negotiated between the United States and Mexico contains a provision
stating that nothing in the treaty "empower(s) one Party's authorities
to undertake, in the territorial jurisdiction of the other, the
exercise and performance of the functions or authority exclusively
entrusted to the authorities of that other Party by its national laws
or regulations." Mutual Legal Assistance Cooperation Treaty With
Mexico, art. 1, sec. 2, S. Treaty Doc. No. 100-13, 100th Cong., 2d
Sess. (1988).  The accompanying Senate Report explains that although
the same principle has been "implicit in other mutual assistance
treaties," the draftsmen "specifically articulated (it) in this Treaty
because of special sensitivity to these issues on the part of Mexican
authorities." /24/ Moreover, the Report continues, "both countries,
because of our shared border, have been concerned about making clear
the limits on the authority of law enforcement agents of each country
in the territory of the other." S. Exec. Rep. No. 27, 100th Cong., 2d
Sess. 11 (1988).

   Nor would a warrant provide meaningful protection by narrowing the
scope of the search.  In the typical case in which American agents
work in cooperation with their foreign counterparts, "(t)he foreign
officials are the ones who decide the scope of and reasonableness of
any proposed search, whether the search will occur at all, and under
what conditions it will be conducted." Pet. App. 79a (Wallace, J.,
dissenting).  /25/ In the present case, for example, the Mexican
official who was supervising the search directed Agent Bowen to seize
all of the documents contained in a certain cabinet and to sort
through them at a later time.  See id. at 89a.  Even if a warrant
could limit the activities of the American agents in the course of the
search, it would not restrict the activities of the host country's
agents;  restrictions on the activities of the American agents would
therefore not be likely to reduce the intrusiveness of the search, but
would only ensure that the foreign agents would conduct the portion of
the search for which authority was denied to the American agents.

   Finally, there is less need in the case of a foreign search than in
the case of a domestic search for a magistrate's intervention to
"ensure() an objective determination whether an intrusion is justified
in any given case." Skinner, 109 S. Ct. at 1415.  As one commentator
has noted, "(w)hen United States law enforcement officers act abroad,
* * * their conduct already undergoes a series of checks that serve as
the functional equivalent of a magistrate.  Such activity not only
receives the scrutiny of other members of the executive branch more
familiar with the diplomatic and other ramifications of the action,
but, in the context of a cooperative search, requires the approval of
the foreign country." Note, The Extraterritorial Applicability of the
Fourth Amendment, 102 Harv. L. Rev. 1672, 1690 (1989).  In the present
case, for example, the DEA agents were required to secure approval
from the highest levels of the Mexican police, including from an
attorney who served as the local representative of the Mexican
Attorney General, and whose duties included supervising the local MFJP
officers (see Pet. App. 85a).  Foreign searches typically present
sufficient difficulties and are sufficiently sensitive that they are
given close review by officials of both countries and are not
attempted except when the prospects of success are high.  A
magistrate's judgment as to the justification for the search is
therefore not as necessary as it might be in the case of domestic law
enforcement activities, where an officer may be more tempted to search
on impulse or whim.

   b. In addition, "the burden of obtaining a warrant is likely to
frustrate the governmental purpose behind the search." Camara v.
Municipal Court, 387 U.S. at 533.  The logistics alone are daunting.
In the first place, no United States magistrate is authorized to issue
a warrant to search overseas.  The Federal Rules of Criminal Procedure
certainly provide no such authority.  See United States v. Williams,
617 F.2d 1063, 1072 (5th Cir. 1980) (en banc.  Rule 41(a) (Fed. R.
Crim. P.) provides for the issuance of search warrants, but only from
"a federal magistrate or a judge of a state court of record within the
district wherein the property is located." For agents working
overseas, a host of practical difficulties would arise, including the
frequent unavailability or inefficiency of intercontinental
communications, and the inevitable delays in securing a warrant from
an American magistrate.  /26/

   Even if a warrant to search overseas could lawfully be issued, its
enforcement "would interfere to an appreciable degree" (Griffin v.
Wisconsin, 107 S. Ct. at 3169) with the unusual responsibilities of
our agents overseas.  A warrant requirement, as Judge Wallace
explained (Pet. App. 79a), "ignores the practical realities that when
our agents conduct searches abroad, they are at the mercy of foreign
officials." The agents must comply with the demands of their hosts;
they cannot be expected to follow the competing agenda set by an
American search warrant.  /27/ What is more, host countries typically
do not wish it to be known publicly that American agents have
participated in domestic law enforcement and therefore insist on
strict confidentiality.  See Hearings Before a Subcomm. of the Comm.
on Government Operations on H.R. Reorganization Plan No. 1 of 1968 and
H.R. Res. 1101, 90th Cong., 2d Sess 132 (1968) (remarks of James P.
Hendrik, Special Assistant Secretary of the Treasury).  A warrant
requirement, which may expose those confidences, may thereby impair
relations with host countries that are currently willing to cooperate
with American authorities.  /28/

   3. Because of the unusual practical constraints, as well as
difficult questions of sovereignty and authority, agents conducting
investigations overseas should at most be bound by the more flexible
Fourth Amendment requirement of reasonableness.  See New Jersey v.
T.L.O., 469 U.S. 325, 340 (1985);  United States v. Montoya de
Hernandez, 473 U.S. 531, 537 (1985);  United States v.
Villamonte-Marquez, 462 U.S. 579, 588 (1983).  In applying that
requirement, the courts should give great weight to the fact that
officials of the host country have lent their cooperation or extended
permission to United States agents to conduct the search or seizure in
question.

   The search of respondent's Mexicali residence easily satisfied that
standard.  After first attempting, without success, to contact the
Second Deputy Attorney General for the Republic of Mexico, the agents
secured authorization to search from Florentino Ventura, the Director
General of the Mexican Federal Judicial Police.  /29/ Ventura also
made available to DEA the assistance of MFJP officers in conducting
the search.  During the search itself, the American agents were
accompanied by the Mexican officers, and they obeyed all of the
commands given by the MFJP supervising officer who directed the
operation.  Moreover, the DEA agents acted prudently in making the
seizures, taking care to ensure that what they seized was reasonably
related to the purpose of the search.  If the search was in any
respect overbroad -- perhaps because Agent Bowen, at the Mexican
officer's direction, removed a remaining file of documents, or because
the MFJP officers seized certain weapons and automobiles -- that
overbreadth cannot be charged to the American agents.  Their actions
were entirely reasonable, start to finish.

   C. The Application Of The Fourth Amendment And The Warrant Clause
In This Context Would Significantly Impair American Law Enforcement
And Intelligence Gathering Efforts

   The court of appeals' application of the Fourth Amendment in this
setting, and its rigid insistence on a warrant, present substantial
obstacles to United States law enforcement overseas.  In recent years
crime, and narcotics trafficking in particular, has become an
increasingly international enterprise.  See, e.g., United States v.
Montoya de Hernandez, 473 U.S. 531 (1985);  United States v.
Villamonte-Marquez, 462 U.S. $79 (1983).  For that reason, the Drug
Enforcement Administration is presently represented by 65 offices in
45 countries.  In 1988 alone, DEA agents participated in overseas
investigations that culminated in more than 1200 arrests of narcotics
traffickers abroad.  See Drug Enforcement Administration, 1990
Authorization and Budget Request to the U.S. Congress 28 (1989).  In
that connection, American law enforcement agencies assist their
foreign counterparts in making numerous searches and seizures abroad,
including the frequent use of wiretaps.  See, e.g., United States v.
Peterson, 812 F.2d 486 (9th Cir. 1987);  United States v. Toscanino,
500 F.2d 267 (2d Cir. 1974).  Requiring agents overseas to secure a
warrant in the United States -- even where, as here, they are
otherwise authorized by the officials of the host country to conduct
the search -- will inordinately impair the agents' ability to do their
jobs.

   The court of appeals' application of the Warrant Clause threatens
our intelligence gathering capabilities as well.  Although the courts
of appeals have generally recognized an exception to the Warrant
Clause for foreign intelligence searches, see, e.g., United States v.
Truong Dinh Hung, 629 F.2d 908, 914 (4th Cir. 1980);  United States v.
Butenko, 494 F.2d 593, 605 (3d Cir.), cert. denied, 419 U.S. 881
(1974);  United States v. Brown, 484 F.2d 418, 426 (5th Cir. 1973),
cert. denied, 415 U.S. 960 (1974), they have suggested that, where a
warrant would otherwise be required, the government must secure, at a
minimum, the authorization of the Attorney General to conduct the
foreign intelligence search.  See United States v. Ehrlichman, 546
F.2d 910, 923-928 (D.C. Cir. 1976), cert. denied, 429 U.S. 1120
(1977).  If, as the court below supposed, a warrant is routinely
required for the overseas search of a foreign national's property, the
implications for foreign intelligence gathering are stark:  in each
instance -- and there will be countless numbers of them -- the
Attorney General will be required to issue formal approval before the
intelligence mission can proceed.  That is not only impossibly
cumbersome and inordinately time-consuming, but, by increasing the
layers of required review, it may also compromise the security of
day-to-day intelligence operations.  The Fourth Amendment does not
require society to absorb such costs.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   LAWRENCE S. ROBBINS

      Assistant to the Solicitor General

   JUNE 1989

   /1/ At the suppression hearing, a DEA agent, who is also a licensed
attorney in Mexico, explained that a "delgado" is a Mexican attorney
who functions as the local representative of the Mexican Attorney
General, and that his duties include supervising the local MFJP
officers.  Pet. App. 85a.

   /2/ The district court acknowledged that the issuance of such a
warrant might "infringe() upon the sovereignty of the nation where the
search is to occur." It explained, however, that "(t)he Fourth
Amendment's general requirement of reasonableness * * * would
certainly require, prior to the execution of any overseas warrant,
that the search authorized by the warrant be approved by the
appropriate foreign official." Pet. App. 97a.

   /3/ The district court also rejected (Pet. App. 100a-101a) the
government's contention that the evidence could be admitted under the
good-faith exception to the exclusionary rule.  In addition, the court
found that the execution of the searches was unreasonable under the
Fourth Amendment because (1) the searches were conducted principally
at night (Pet. App. 101a-102a);  (2) the agents did not prepare
contemporaneous inventories of the seized items (id. at 102a);  and
(3) the searches were excessively general in scope (ibid.).

   /4/ The government appealed only from that portion of the
suppression order, because it believed that only the evidence seized
from the Mexicali residence was critical to the prosecution.

   /5/ The court of appeals also upheld the district court's finding
that the DEA agents' participation in the Mexicali search was
sufficient to make it a "joint venture" with the Mexican officials.
Pet. App. 23a-32a.

   /6/ The court of appeals also rejected the government's contention
that a suppression remedy was unwarranted because the agents had
relied in good faith on assurances by the Mexican officials that the
search was lawful.  Pet. App. 32a-33a.

   /7/ Judge Wallace also found no basis for suppressing the evidence
either on the ground that the Mexicali search violated due process, or
because suppression was appropriate under the district court's
"inherent power" to ensure compliance with the Fourth Amendment.  Pet.
App. 65a-79a.

   /8/ The statement in Curtiss-Wright is not entirely accurate to the
extent that it suggests that federal statutes are inapplicable to the
activities of foreign citizens beyond this country's borders.  Some
statutes have been given extraterritorial effect even with regard to
noncitizens.  See, e.g., United States v. Alomia-Riascos, 825 F.2d
769, 771 (4th Cir. 1987), cert. denied, 108 S. Ct. 715 (1988) (21
U.S.C. 955a(c) applies to foreign nationals with respect to narcotics
activities on the high seas);  United States v. Benitez, 741 F.2d
1312, 1316-1317 (11th Cir. 1984), cert. denied, 471 U.S. 1137 (1985)
(18 U.S.C. 1114 and 1117, proscribing, respectively, the murder and
conspiracy to murder certain public officials, and 18 U.S.C. 111,
proscribing assaults on certain public officials, apply to foreign
nationals with respect to overseas activity);  Chua Han Mow v. United
States, 730 F.2d 1308, 1311-1312 (9th Cir. 1984), cert. denied, 470
U.S. 1031 (1985) (21 U.S.C. 959 and 963 apply to foreign nationals
with respect to narcotics activities overseas);  United States v.
Yunis, 681 F. Supp. 896 (D.D.C. 1988) (18 U.S.C. 1203, proscribing the
taking hostage of American nationals, and 18 U.S.C. 32(a), proscribing
the willful destruction of an aircraft, apply to a foreign national
charged with hijacking a civilian aircraft in the Middle East).

   /9/ Cf. United States v. Dawson, 56 U.S. (15 How.) 467, 487-488
(1854) (Sixth Amendment does not apply in trials of offenses committed
in Indian country).

   /10/ Accord Stephan, supra, 20 Va. J. Int'l L. at 782 ("Nothing in
(Reid) can be taken as altering the long held understanding that, in
general, foreign nationals abroad are neither parties to nor
beneficiaries of the agreement between the federal government and its
people embodied in the Constitution");  Note, The Extraterritorial
Applicability of the Fourth Amendment, 102 Harv. L. Rev. 1672, 1676
n.21 (1989).

   /11/ See Stephan, Constitutional Limits on the Struggle Against
International Terrorism:  Revisiting the Rights of Overseas Aliens, 19
Conn. L. Rev. 831, 838 & n.28 (1987).

   /12/ See, e.g., Balzac v. Porto Rico, 258 U.S. 298 (1922) (jury
trial provision inapplicable in Puerto Rico);  Ocampo v. United
States, 234 U.S. 91 (1914) (grand jury provision inapplicable in
Philippines);  Rassmussen v. United States, 197 U.S. 516 (1905) (jury
trial provision applicable in Alaska);  Dorr v. United States, 195
U.S. 138 (1904) (jury trial provision inapplicable in Philippines);
Hawaii v. Mankichi, 190 U.S. 197 (1903) (grand and petit jury
requirements inapplicable in Hawaii);  Downes v. Bidwell, 182 U.S. 244
(1901) (revenue clauses of Constitution inapplicable to Puerto Rico).
See generally Coudert, The Evolution of the Doctrine of Territorial
Incorporation, 26 Colum. L. Rev. 823 (1926);  Langdell, The Status of
Our New Territories, 12 Harv. L. Rev. 365 (1899);  Thayer, Our New
Possessions, 12 Harv. L. Rev. 464 (1899).

   /13/ See generally Helfeld, How Much of the United States
Constitution and Statutes are Applicable to the Commonwealth of Puerto
Rico, 110 F.R.D. 452 (1986).

   /14/ Cf. Neely v. Henkel, 180 U.S. 109, 122-123 (1901)
(Constitution does not protect American citizen who violates the
criminal law of a foreign country);  Fleming v. Page, 50 U.S. (9 How.)
602, 616 (1850) ("every place which was out of the limits of the
United States, as previously established by the political authorities
of the government, was still foreign;  nor did our laws extend over
it").

   /15/ There is no question that respondent seeks an extraterritorial
application of the Fourth Amendment in this case.  Simply because
respondent was present in the United States at the time of the search,
and is present now when the government seeks to offer the tally sheets
into evidence, does not change the fact that the alleged violation of
the Fourth Amendment occurred overseas.  See United States v. Leon,
468 U.S. 897, 906 (1984) (Fourth Amendment violation fully
accomplished at time of unlawful search or seizure);  United States v.
Janis, 428 U.S. 433, 443 (1976) ("the issue of admissibility of
evidence * * * is determined after, and apart from, the violation");
United States v. Calandra, 414 U.S. 338, 354 (1974).  Thus, we need
not dispute the proposition, relied on by the court of appeals (Pet.
App. 20a-22a), that a foreign national enjoys Fourth Amendment rights
with respect to searches and seizures conducted in this country.  See
INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984);  see also id. at
1051 (Brennan, J., dissenting);  Almeida-Sanchez v. United States, 413
U.S. 266 (1973);  Abel v. United States, 362 U.S. 217 (1960).  Unlike
in those cases, respondent's claim requires this Court to apply the
Fourth Amendment to conduct by United States officials that took place
overseas.

   /16/ The Preamble also states (emphasis added) that "the People of
the United States * * * ordain and establish this Constitution" in
part to "secure the Blessings of Liberty to ourselves and our
Posterity." As Professor Langdell explained in 1899 (The Status of Our
New Territories, 12 Harv. L. Rev. 365, 372-373):

         (T)here is a very strong presumption that when a constitution
      is made by a sovereign people, it is made exclusively for the
      country inhabited by that people, and exclusively for that
      people regarded as a body politic, and so having perpetual
      succession * * * .  The preamble, however, does not leave it to
      presumption to determine for what regions of country and for
      what people the Constitution of the United States was made;  for
      it expressly declares that its purposes and objects, are, first,
      to form a more perfect union (i.e., among the thirteen States,
      or as many of them as shall adopt it).  Then follow four other
      objects which, though in terms indefinite as to their
      territorial scope, are by clear implication limited to the same
      States;  and lastly its purposes and object are declared to be
      to secure the blessings of liberty to the people by whom it is
      ordained and established, and their successors * * * .

   /17/ Former Attorney General Levi, in testimony before Congress,
summarized the point (5 Intelligence Activities:  The National
Security Agency and Fourth Amendment Rights:  Hearings on S. Res. 21
Before the Senate Select Comm. to Study Governmental Operations With
Respect to Intelligence Activities, 94th Cong., 1st Sess. 66, 74
(1975)):

         Who are "the people" to whom the Amendment refers?  The
      Constitution begins with the phrase, "We the People of the
      United States." That phrase has the character of words of art,
      denoting the power from which the Constitution comes.  It does
      suggest a special concern for the American citizen and for those
      who share the responsibilities of citizens.  The Fourth
      Amendment guards the right of "the people" and it can be urged
      that it was not meant to apply to foreign nations, their agents
      and collaborators.  Its application may at least take account of
      that difference.

   /18/ See, e.g., Tennessee v. Garner, 471 U.S. 1, 15-16 (1985)
("look(ing) to prevailing rules in individual jurisdictions" in
assessing the reasonableness of police procedures);  California v.
Greenwood, 108 S. Ct. 1625, 1631 (1988) (concluding that "American
society as a whole possesses" no reasonable expectation of privacy in
trash left for collection).

   /19/ The differences between the Fourth Amendment Warrant Clause
and the comparable provision in the Mexican Constitution of 1917, art.
16, illustrate the point.  For example, although Article 16 seems to
require the police to establish probable cause before they may obtain
an arrest warrant, there is no indication in that provision that
probable cause is required in order to secure a search warrant.
Moreover, Article 16 contains an explicit exception from the Warrant
Clause for "administrative" searches designed to "ascertain() whether
the sanitary and police regulations have been complied with * * * ."
See also Murray, Criminal Procedure in the Federal District and
Federal Territories of Mexico, 19 Miami L. Rev. 251, 253 (1964-1965).

   /20/ As one commentator has recently put it, "(n)otions of privacy
central to American society may be utterly alien to other societies.
To judge the legitimacy of expectations of privacy in a foreign
country, therefore, American courts must refer to the understandings
prevailing in that country." Note, The Extraterritorial Applicability
of the Fourth Amendment, 102 Harv. L. Rev. 1672, 1687 (1989).

   /21/ Ordinarily, when the United States exercises its law
enforcement authority overseas, it does so in cooperation with the
host country.  For that reason, comity interests counsel against the
application of the Fourth Amendment abroad.  The United States,
however, may occasionally be obliged to conduct unilateral law
enforcement efforts in an uncooperative country, for example to
apprehend a terrorist.  The Fourth Amendment is equally inappropriate
in that context.  As Professor Stephan has noted, "(j)udicial barriers
would impede and perhaps inhibit these efforts.  Especially where the
government acts in a country that is hostile to its endeavors,
irregular conduct may be the only way of protecting U.S. interests.
The judiciary should not take it upon itself to rule out such action
in all cases." Stephan, Constitutional Limits on International
Rendition of Criminal Suspects, 20 Va. J. Int'l L. 777, 784 (1980).

   /22/ Indeed, Congress has done so in the narcotics area, albeit
only with respect to "direct police arrest action(s) in a foreign
country" and "interrogation(s) of any United States person arrested in
any foreign country" (22 U.S.C. 2291(c)).  Congress's failure to
restrict the overseas activities of narcotics agents more extensively
suggests that it did not find it necessary or desirable to impose the
kinds of constraints required by the court of appeals.

   /23/ See also Skinner v. Railway Labor Executives' Ass'n, 109 S.
Ct. at 1416 ("the delay necessary to procure a warrant * * * may
result in the destruction of valuable evidence");  National Treasury
Employees Union v. von Raab, 109 S. Ct. 1384, 1391 (1989) (the mission
of the Customs Service "would be compromised if it were required to
seek search warrants in connection with routine, yet sensitive,
employment decisions");  O'Connor v. Ortega, 480 U.S. 709, 722 (1987)
(plurality opinion) ("requiring an employer to obtain a warrant
whenever the employer wished to enter an employee's office, desk, or
file cabinets for a work-related purpose would seriously disrupt the
routine conduct of business and would be unduly burdensome").

   /24/ Compare, e.g., Treaty With Belgium on Mutual Legal Assistance
in Criminal Matters, S. Treaty Doc. No. 100-16, 100th Cong., 2d Sess.
(1988);  Treaty With Thailand on Mutual Assistance in Criminal
Matters, S. Treaty Doc. No. 100-18, 100th Cong., 2d Sess. (1988);
Treaty With The Bahamas on Mutual Assistance in Criminal Matters, S.
Treaty Doc. No. 100-17, 100th Cong., 2d Sess. (1988);  Treaty With
Canada on Mutual Legal Assistance in Criminal Matters, S. Treaty Doc.
No. 100-14, 100th Cong., 2d Sess. (1988);  Treaty With The United
Kingdom Concerning The Cayman Islands Relating to Mutual Legal
Assistance in Criminal Matters, S. Treaty Doc. No. 100-8, 100th Cong.,
1st Sess. (1987).  Cf. Ramirez de Arellano v. Weinberger, 745 F.2d
1500, 1561-1563 (D.C. Cir. 1984) (en banc) (Scalia, J., dissenting),
vacated on other grounds, 471 U.S. 1113 (1985).

   /25/ Agency guidelines provide that in general "DEA representatives
will not engage or participate in unilateral investigative operations
or other activities outside the scope of the formal or informal
agreement developed between the United States and the host government
unless these activities have the express and explicit approval of a
responsible host government official * * * ." DEA, DEA Agents Manual,
subch. 651, at 181 (1988).

   /26/ See Saltzburg, The Reach of the Bill of Rights Beyond the
Terra Firma of the United States, 20 Va. J. Int'l L. 741, 762-763
(1980);  Note, The Extraterritorial Applicability of the Fourth
Amendment, 102 Harv. L. Rev. 1672, 1690-1691 & n.81 (1989).

   /27/ "To hold otherwise would be novel and would make unreasonable
demands on our foreign agents, whether in law enforcement or national
security, who by following the law of the country in which they are
staying, could at the same time find themselves in defiance of the
United States constitutional standards." United States v. Toscanino,
500 F.2d 267, 281 (2d Cir. 1974) (Anderson, J., concurring).

   /28/ Consistent with those constraints, agency guidelines provide
that "DEA involvement in Mexico will be limited to a role which
results in the least possible notoriety and maximum effectiveness.
This 'low profile' encompasses all matters ranging from minimum
investigational staffing and limiting unnecessary use of equipment,
vehicles, firearms and radios to the judicious release of information
to the domestic media regarding DEA activity in Mexico." DEA, supra,
subch. 652, at 191.

   /29/ Agency guidelines expressly require DEA investigative activity
in Mexico to "be conducted in cooperation with the MFJP, and only
after prior approval by its Director General in Mexico City." In the
event that "the MFJP is unwilling to participate, DEA will not render
the assistance requested." DEA, supra, subch. 652, at 192.