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Fourth Amendment via the Joint Venture Doctrine For Foreigners?

Prior to the incorporation of the Fourth Amendment into the Fourteenth Amendment, it was important to determine whether Federal officials substantially participated in raids conducted by State officials. This was because a “joint venture” would subject state actors to the requirements of the Fourth Amendment. Incorporation of the Fourth into the Fourteenth Amendment diminished the importance of the joint venture doctrine. However, the doctrine remained alive following incorporation in order to determine whether Fourth Amendment protections applied with respect to foreign law enforcement.

As a general rule neither the Fourth Amendment nor the judicially created exclusionary rule applies to acts of foreign officials. However, an exception to the inapplicability of the exclusionary rule applied when United States agents’ participation in the investigation is so substantial that the actions constitute a joint venture between United States and foreign officials.

However, in 1990 the Supreme Court’s decision in United States v. Verdugo-Urquidez appears to have dealt another great blow to the joint venture doctrine’s applicability.

In Verdugo-Urquidez, the Supreme Court held that the Fourth Amendment does not apply to searches and seizures conducted by United States agents of property of property that is owned by nonresident aliens and located in foreign countries.
The Court reasoned that the term “the people” as used in the Fourth Amendment refers to a class of persons who are part of a national community or who have otherwise developed sufficient connections with the United States to be considered part of a community. This is unlike the Fifth Amendment which has been deemed more of a fundamental right having broader applicability–even foreigners who are located outside of the United States may enjoy rights under the Fifth Amendment (e.g. Miranda).

However, it is arguably unclear whether Verdugo-Urquidez was an absolute death knell for the application of the Fourth Amendment (and its prophylactic exclusionary rule) with respect to foreign citizens outside of the United States.

First, the Supreme Court’s opinion in Verdugo-Urquidez makes no reference to the joint venture doctrine (even though the Ninth Circuit‘s Verdugo-Urquidez opinion concerned the joint venture doctrine) [link to http://www.ca9.uscourts.gov/]. The facts in Verdugo-Urquidez concern a search initiatd by and conducted primarily by an actual United States agency. Many modern cases where the joint venture doctrine is discussed as an issue usually concern searches and seizures actually carried out by foreign authorities as opposed to United States law enforcement.

Second, the Supreme Court, when deciding Verdugo-Urquidez, did not concern itself with the application of foreign law. The joint venture doctrine, when applied to the actions of foreign officials, oftentimes requires courts to look to foreign law when determining whether a search or seizure is reasonable.

Finally, the actual holding of the case is arguably limited. In Verdugo-Urquidez, the Supreme Court held that the Fourth Amendment does not apply to search and seizures conducted by United States agents of property that is owned by a nonresidential alien and located in a foreign country. Does “United States agents” mean any actor with actual or apparent authority? Or does this mean an actual United States agency?

Ultimately, Verdugo-Urquidez leaves some questions unanswered with respect to the applicability of the Fourth Amendment to Foreign citizens when foreign citizens are subject to a search or seizure actually carried out by foreign officials at the direction of U.S. law enforcement. A good argument exists that the joint venture doctrine still applies under such circumstances notwithstanding the Verdugo-Urquidez opinion.