UNITED STATES OF AMERICA, PETITIONER V. RENE MARTIN VERDUGO-URQUIDEZ No. 88-1353 In the Supreme Court of the United States October Term, 1988 The Acting Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-80a) is reported at 856 F.2d 1214. The opinion of the district court (App., infra, 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 (App., infra, 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. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). 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 evidence. 1. Respondent is a citizen of Mexico. On January 24, 1986, federal officers arrested respondent near Calexico, California, pursuant to an arrest warrant charging him with various narcotics offenses. Following respondent's arrest, Terry Bowen, a DEA 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). App., infra, 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 agreed to make MFJP officers available to assist in the operation. App., infra, 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 left the office, returning a few minutes later to announce that the searches could proceed. App., infra, 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. App., infra, 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. App., infra, 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. 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. App., infra, 6a, 88a-89a. 2. The district court suppressed the evidence seized from both premises (App., infra, 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 retrict 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" (id. at 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. The court of appeals affirmed by a divided vote (App., infra, 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" (id. at 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). /4/ Having concluded that respondent could challenge the Mexicali search under the Fourth Amendment, the court next held (App., infra, 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 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 suppression of evidence seized from respondent's Mexicali home. /6/ Judge Wallace dissented (App., infra, 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 Constitution itself is 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/ REASONS FOR GRANTING THE PETITION 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 Mexican comandante 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" (App., infra, 35a-36a). The court of appeals' decision is both unprecedented and unwise. Its application of the Fourth Amendment, and the Warrant Clause in particular, is at odds with this Court's decisions and with the decisions of other courts of appeals. 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. 1. a. The court of appeals broadly held that foreign nationals enjoy the full protections of the Fourth Amendment with respect to overseas searches and seizures. That sweeping conclusion cannot be squared with the decisions of this Court. To the contrary, this Court has explained that "(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) ("our Constitution, laws and policies have no extraterritorial operation, unless in respect of our own citizens"). This Court's decision in Johnson v. Eisentrager, 339 U.S. 763 (1950), illustrates the point in a related setting. The plaintiffs in that 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." The text of the Fourth Amendment, moreover, supports the view that the right against unreasonable searches and seizures does not extend to all persons throughout the world. As Judge Wallace explained in dissent (App., infra, 38a-39a), the protections of the Fourth Amendment are limited, by their terms, to "the people," a term that strongly suggests that the rights extend only to those who may fairly be considered the people of the United States. Indeed, 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)). The court of appeals rejected that analysis. It reasoned that the United States government "'is entirely a creature of the Constitution'" and that "(t)he Constitution imposes substantive constraints on the federal government, even when it operates abroad" (App., infra, 8a). From that premise, the court concluded that the Constitution binds the government even when the government acts against foreign nationals. But that is exactly the argument which was accepted by the court of appeals in the Johnson case, and which this Court squarely rejected (see 339 U. S. at 781-782). This Court's decision in Reid v. Covert, 354 U.S. 1 (1957), on which the court of appeals relied, does not hold to the contrary. The Court in Reid 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. The plurality "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)). And it 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). In short, Reid is limited by its terms to governmental action against American citizens. It 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. To the contrary, the better reading of this Court's cases suggests that the protections of the Bill of Rights do not extend to aliens in connection with overseas transactions. b. The question whether, and to what extent, the Fourth Amendment binds the government in its overseas activities directed against foreign nationals is one of recurring importance, and it remains unsettled among the courts of appeals. In contrast to the court below, the D.C. Circuit, relying on Johnson v. Eisentrager, supra, has broadly held that "non-resident aliens * * * plainly cannot appeal to the protection of the Constitution or laws of the United States." Pauling v. McElroy, 278 F.2d 252, 254 n.3, cert. denied, 364 U.S. 835 (1960). Although the court has since suggested in dicta that the Pauling case stands for a more limited proposition (see Cardenas v. Smith, 733 F.2d 909, 915-917 (1984)), a more recent D.C. Circuit decision has cited the Pauling case and indicated that the issue remains an open one. Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (1985) (Scalia, J.). See also Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1516 (D.C. Cir. 1984), vacated on other grounds, 471 U.S. 1113 (1985) (not reaching the question whether a Honduran corporation has standing to sue for constitutional violations allegedly committed by the United States overseas); id. at 1556 (Scalia, J., dissenting) (Honduran corporation "has no rights under the United States Constitution with regard to activity taking place in Honduras and therefore cannot bring this lawsuit itself"). By contrast, the Second Circuit, like the court below, has held that non-resident aliens may challenge Fourth Amendment violations that occur overseas, "at least where the government seeks to exploit the fruits of its unlawful conduct in a criminal proceeding against the alien in the United States." United States v. Toscanino, 500 F.2d 267, 280 (1974). Applying that principle, the court held in Toscanino that a non-resident alien may raise a Fourth Amendment challenge to wiretaps conducted overseas by United States officials. We submit that, in holding that the Fourth Amendment applies to overseas searches directed at aliens, the decisions of the courts of appeals in this case and in Toscanino are contrary to the decision of the D.C. Circuit in Pauling and the decision of this Court in Johnson v. Eisentrager. Review by this Court is warranted to resolve this fundamental and recurring question regarding the scope of the Fourth Amendment as it applies to searches occurring outside the borders of the United States. 2. Even if the searches in this case were governed by the Fourth Amendment, the court of appeals erred in applying the Warrant Clause to the agents' extraterritorial conduct. The court of appeals' holding with respect to the Warrant Clause ignores settled principles articulated in this Court's cases, and is at odds with decisions of other courts of appeals. a. The court of appeals surmised that to "relieve the government" of the warrant requirement "would be to treat foreign searches differently from domestic searches just because they are foreign" (App., infra, 35a). That premise, however, overlooks the fact 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)). 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)). For three reasons, the fact that a search takes place overseas, and is directed against a foreign national, makes the warrant requirement inappropriate. First, it is impracticable for agents engaged in overseas investigations to seek out an American magistrate whenever they wish to conduct a search or seizure abroad. As the Court explained most recently in Griffin v. Wisconsin, No. 86-5324 (June 26, 1987), slip op. 4 (citation omitted), exceptions from the warrant requirement have been permitted "when 'special needs, beyond the normal need for law enforcement, make the warrant * * * requirement impracticable.'" See New Jersey v. T.L.O., 469 U.S. at 340 (quoting Almeida-Sanchez v. United States, 413 U.S. 266, 277 (1973) (Powell, J., concurring)). 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 held that a warrant is not required by the Fourth Amendment. /8/ Requiring agents overseas to secure a warrant in the United States before conducting a search or seizure "would interfere to an appreciable degree" (Griffin, slip op. 7) with their unusual responsibilities. Apart from the logistical difficulties, a warrant requirement, as Judge Wallace explained (App., infra, 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, and cannot be expected to follow the competing agenda set by an American warrant. In the present case, for example, Comandante Salazar directed Agent Bowen to seize all of the documents remaining in a certain cabinet and sort through them at a later time. An agent in that position should not be required to disobey such a request, simply because it may not comport with the particularities of a search warrant that a United States magistrate may have issued to the agent. Second, the fact that the search takes place abroad, and is directed against a foreign national, bears on whether, and to what extent, the individual's reasonable expectation of privacy has been invaded. "The permissibility of a particular law enforcement practice is judged by 'balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.'" United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985) (quoting United States v. Villamonte-Marquez, 462 U.S. 579, 588 (1983)). See also Delaware v. Prouse, 440 U.S. 648, 654 (1979); Camara v. Municipal Court, 387 U.S. 523 (1967). Thus, not every invasion of privacy is prohibited by the Fourth Amendment, but only "arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals." United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976). Plainly, the nature and strength of an individual's reasonable expectation of privacy depend upon a complex of cultural and political factors that can vary widely among different countries. To require a warrant and probable cause for foreign searches simply because a warrant would be required in similar settings in this country would ignore those differences. Rather than being guided by Fourth Amendment doctrine as it has developed in this country, agents conducting investigations overseas should be bound, at most, by the more flexible Fourth Amendment requirement of reasonableness. And in applying that requirement, the courts should give great weight to the fact that officials in the host country have lent their cooperation or extended permission to United States agents to conduct the search or seizure in question, as the Mexican officials did in this case. Finally, the fact that the search occurs overseas, and is conducted, as here, under the auspices and control of a foreign government, renders a search warrant largely irrelevant. A search warrant is issued in part to empower an agent to conduct the search and in part to confine the scope of his discretion. /9/ But a warrant issued for an overseas search -- which will ultimately be conducted under the supervision or with the permission of foreign officials -- serves neither function. It does 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" (App., infra, 35a). Nor does a warrant narrow the scope of the search; as Judge Wallace observed in dissent, "(t)he 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" (App., infra, 79a). Because a warrant in this context is almost purely advisory, it is not surprising that the Federal Rules of Criminal Procedure do not even authorize courts to issue one. See United States v. Williams, 617 F.2d 1063, 1072 (5th Cir. 1980) (en banc) (footnote omitted). Fed. R. Crim. P. Rule 41(a) 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." Rule 41(a) plainly does not contemplate the issuance of warrants to search premises overseas. b. The court of appeals' insistence on a search warrant is also at odds with decisions of other circuits that have relaxed the warrant requirement in deference to the impracticalities presented by extraterritorial searches. In United States v. Williams, 617 F.2d 1063, for example, the Fifth Circuit held that the Coast Guard does not need a warrant to search the hold of a vessel in international waters. The court explained, in part, that "the practical problems that would be created by requiring the Coast Guard to obtain a warrant to conduct a search on the high seas * * * (would) likely eviscerate the Coast Guard's ability to combat drug smuggling" (id. at 1087-1088). The court also found that "there is substantial doubt that the federal district courts have the authority to issue * * * a warrant" to search a vessel on the high seas (id. at 1072 (footnote omitted)). The First Circuit, in United States v. Arra, 63- F.2d 836 (1980), took a similar view, holding that the Coast Guard does not need a warrant to conduct an administrative document and safety inspection on the high seas. That conclusion, the court explained, "was consistent with the Supreme Court's excusal of administrative warrants in situations where 'the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search'" (id. at 842, quoting Camara v. Municipal Court, 387 U.S. at 533). Citing with apparent approval the Fifth Circuit's decision in Williams, the court also noted that "there exists no statute that provides authority for the issuance of warrants covering activities on the high seas" (630 F. 2d at 842 n.7). 3. Finally, the court's application of the Fourth Amendment in this setting, and its rigid insistence on a warrant, present substantial obstacles to United States law enforcement efforts 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. 579 (1983). For that reason, the Drug Enforcement Administration is presently represented by 65 offices in 45 countries, and 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, moreover, American law enforcement agencies engage in 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 Fourth Amendment does not require law enforcement to absorb such costs. Neither the text of the Amendment, nor this Court's cases, extend the protection against unreasonable searches and seizures to foreign nationals, in respect to overseas transactions. And even if the Fourth Amendment applies to such searches, it should require only reasonableness, not the additional burden of obtaining and complying with a warrant issued by an American court. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General LAWRENCE S. ROBBINS Assistant to the Solicitor General FEBRUARY 1989 /1/ At the suppression hearing, a DEA agent, who is also a licensed attorney in Mexico, explained that a "delegado" 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. App., infra, 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." App., infra, 97a. /3/ The district court also rejected (App., infra, 100a-101a) the government's contention that the good-faith exception to the exclusionary rule was applicable, under this Court's decision in United States v. Leon, 468 U.S. 897 (1984). Finally, the court found that the execution of the searches was unreasonable under the Fourth Amendment for these reasons: (1) because the searches were conducted primarily at night (App., infra, 101a-102a); (2) because the agents did not prepare contemporaneous inventories of the seized items (id. at 102a); and (3) because the searches were excessively general in scope (ibid.). /4/ In reaching that result, the court of appeals found no need to "consider() in (its) analysis" this Court's decisions in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), and Johnson v. Eisentrager, 339 U.S. 763 (1950). App., infra, 22a-23a n.3. /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. App., infra, 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. In so holding, the court distinguished its prior decision in United States v. Peterson, 812 F.2d 486 (9th Cir. 1987). App., infra, 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. App., infra, 65a-79a. /8/ In Griffin v. Wisconsin, supra, 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" (slip op. 7). Similarly, in New Jersey v. T.L.O., supra, holding that school officials did not need a warrant or probable cause to search a child suspected of an infraction of school disciplinary rules, the Court found that 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). See also 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 cabinet for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome"). /9/ The warrant requirement is intended to "make() general searches * * * impossible and prevent() the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Marron v. United States, 275 U.S. 192, 196 (1927). Accord Andresen v. Appendix