Monday, November 24, 2008
A three-judge panel of the Second Circuit upheld the district court's denial of one defendant-appellant El-Hage's motion to suppress evidence obtained overseas in the criminal case arising out of the 1998 embassy bombings in Nairobi and Dar es Salaam. El-Hage was a naturalized U.S. citizen. The NYT reports here.
The panel upheld the denial of El-Hage's motion to suppress evidence collected in a search of his Nairobi home and through surveillance of his telephone lines, holding that "the Fourth Amendment's requirement of reasonableness--and not the Warrant Clause--governs extraterritorial searches of U.S. citizens" and that these searches were reasonable.
This was the Second Circuit's first crack--indeed, any circuit's first crack--at the extraterritorial application of the Fourth Amendment's warrant requirement. (The court held that the extraterritorial application of the Fourth Amendment's reasonableness requirement was "well settled.")
In ruling that the warrant requirement did not apply extraterritorially, the court relied heavily on U.S. v. Verdugo-Urquidez: "[In that case], seven justice of the Supreme Court endorsed the view that U.S. courts are not empowered to issue warrants for foreign searches."
First, there is nothing in our history or our precedents suggesting that U.S. officials must first obtain a warrant before conducting an overseas search. . . .
Second, nothing in the history of the foreign relations of the United States would require that U.S. officials obtain warrants from foreign magistrates before conducting searches overseas or, indeed, to suppose that all other states have search and investigation rules akin to our own. . . .
Third, if U.S. judicial officers were to issue search warrants intended to have extraterritorial effect, such warrants would have dubious legal significance, if any, in a foreign nation. . . .
Fourth and finally, it is by no means clear that U.S. judicial officers could be authorized to issue warrants for overseas searches . . . .