Criminal Law / Civil Liberties and Noncitizens in the United States

The Fourth, Fifth, and Sixth Amendments to the U.S. Constitution ensure that defendants enjoy traditional due process rights in all domestic criminal law proceedings. Like their U.S. citizen counterparts, noncitizens are afforded basic rights to notice of the charges filed, to a lawyer to represent them, and to a speedy and public trial. The U.S. Supreme Court, however, has simultaneously recognized limits on certain noncitizens’ ability to invoke the Fourth Amendment’s protection against unreasonable governmental searches and seizures. Designed to deter unlawful governmental conduct, the Fourth Amendment ensures that law enforcement conduct proper investigations of alleged criminal conduct, otherwise risking that the evidence they obtain may be thrown out of court or that they may be subject to civil suit. That the Fourth Amendment’s scope may be limited when the suspect in a criminal investigation is a noncitizen raises concerns especially when certain immigration law violations trigger criminal sanctions—for instance, in cases of reentering the United States surreptitiously or smuggling noncitizens across the border.

Three limits on the Fourth Amendment’s applicability to noncitizens are worth noting. First, the government is permitted a wide berth in conducting investigative stops during roving patrols of the U.S. interior adjacent to the border in its search for undocumented migrants. While the Supreme Court held unconstitutional a roving patrol investigative stop made without either a warrant or probable cause in Almeida- Sanchez v. United States, two years later in United States v. Brignoni-Ponce, the Court held that during such operations, agents did not have to comply with the regular ‘‘probable cause’’ standard to justify an immigration stop leading to the discovery of an undocumented person; satisfying ‘‘reasonable suspicion’’ is sufficient and that may be based on a variety of factors including a suspect’s apparent Mexican ancestry.

Second, the government is held to a higher ‘‘probable cause’’ Fourth Amendment standard when it conducts searches at fixed immigration checkpoints than when it engages in roving border patrols; it need not, however, comply with this higher standard when simply stopping vehicles and questioning their occupants. In United States v. Ortiz, the Court held that government officers must have probable cause before they may search private vehicles at fixed checkpoints removed from the border. In United States v. Martinez-Fuerte, however, the Court allowed the government to stop vehicles to question their occupants about their immigration status at fixed checkpoints, reasoning that this was less of an intrusion than a full search.

Finally, when the government obtains evidence from abroad pursuant to an illegal search, it may use that evidence at the stateside criminal trial of a noncitizen defendant. In United States v. Verdugo-Urquidez, the Supreme Court refused to bar evidence illegally seized abroad for use in a domestic drug trial of a noncitizen. The Court reasoned that because the noncitizen defendant had insufficient connections with the United States, he was not part of ‘‘the People’’ the Fourth Amendment was intended to protect.

VICTOR C. ROMERO

References and Further Reading

  • Johnson, Kevin R., The Case Against Race Profiling in Immigration Enforcement, Washington University Law Quarterly 78 (2000): 675–736.
  • LaFave, Wayne R. et al. Criminal Procedure, Third Edition. St. Paul: West Group, 2000.
  • Neuman, Gerald L. Strangers to the Constitution: Immigrants, Borders, and Fundamental Law. Princeton: Princeton University Press, 1996.
  • Romero, Victor C., The Domestic Fourth Amendment Rights of Undocumented Immigrants: On Guitterez and the Tort Law-Immigration Law Parallel, Harvard Civil Rights- Civil Liberties Law Review 35 (2000): 57–101.

Cases and Statutes Cited

  • Almeida-Sanchez v. United States, 413 U.S. 266 (1973)
  • United States v. Brignoni-Ponce, 422 U.S. 873 (1975)
  • United States v. Ortiz, 422 U.S. 891 (1975)
  • United States v. Martinez-Fuerte, 428 U.S. 543 (1976)
  • United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)

See also Aliens, Civil Liberties of; Equal Protection of Law (XIV); Race and Criminal Justice

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