# United States v. Barona

> Court of Appeals for the Ninth Circuit · June 5, 1995 · 56 F.3d 1087

URL: https://www.frixlaw.com/law-library/cases/6935032

## Case

- **Full name:** United States v. Maria Cecilia BARONA, Defendant-Appellant UNITED STATES of America v. Janet MARTINEZ, aka: Luz Janet Martinez & Luz Janeth Martinez, Defendant-Appellant UNITED STATES of America v. Brian BENNETT, Defendant-Appellant UNITED STATES of America v. Mario ERNESTO Villabona-Alvarado, a/k/a Tico, Defendant-Appellant UNITED STATES of America v. Michael Dubarry McCARVER, a/k/a Mike Bald, Defendant-Appellant UNITED STATES of America v. Michael HARRIS, a/k/a Tall Make
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** June 5, 1995
- **Citations:** 56 F.3d 1087; 1995 WL 329267
- **Precedential status:** Published
- **Opinion:** Dissent by Reinhardt
- **Judges:** Reinhardt, Tanner, Wallace
- **Cited by:** 58 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6935032

## How later opinions describe it (automated extraction)

- holding that Fourth Amendment protection 18612 UNITED STATES v. ZAKHAROV does not apply to an alien until he “has assumed the complete range of obligations that we impose on the citizenry” (quota- tion and citation omitted)
- finding error in failing to instruct that certain individuals who were on list of potential supervisees given to jury were incapable, as a legal matter, of counting as supervisees
- explaining that “with regard to foreign searches involving aliens with ‘no voluntary connection’ to the United States, [ ] the Fourth Amendment is simply inapplicable”
- holding that the good faith exception to the exclusionary doctrine applies when United States authorities reasonably rely on representations concerning foreign law
- finding that the United States requesting that Italian police put a “watch” on two suspects did not create a joint venture

## Opinion text

REINHARDT, Circuit Judge,
dissenting.
At a time when other branches of our government are more and more willing to eliminate the constitutional protections provided by the Fourth Amendment, courts should be especially zealous in their efforts to protect individuals from unlawful searches and seizures. See Murdock v. Stout, 54 F.3d *1099 1437, 1444 (Noonan, J., dissenting). This precious constitutional guarantee has increasingly come under attack in recent years. Three months ago, the House of Representatives voted 303 to 121 to reject an amendment to the Crime Bill that consisted solely of the precise language of the Fourth Amendment. 1 Certain members of the legal academy are also joining the hue and cry to eliminate the exclusionary rule and to eviscerate the warrant requirement, see Akhil R. Amar, “Fourth Amendment First Principles,” 107 Harv.L.Rev. 757 (1994), protections that its members once fought to establish and that are so necessary to the effective operation of the Fourth Amendment. It is precisely in times like these — when the constitutional rights of individuals are most threatened — that the courts should be vigilant in protecting them.
Instead, this court once again refuses to stand fast against the tide of public opinion and once again fails to act on behalf of the individuals whose rights we are sworn to protect. Once again in our zeal to conduct a war on drugs, the Constitution is the principal victim. Once again, we simply follow the pack instead of standing for constitutional principles. 2 Here, in a few, short, deceptively simple paragraphs, the majority has taken another substantial step toward the elimination of what was once a firmly established constitutional right — the right of American citizens to be free from unreasonable searches conducted by their own government.
This time, the majority holds that for all practical purposes the Fourth Amendment’s protections do not extend beyond our borders, and that the only limitations on searches of Americans abroad are those imposed by foreign governments, even when our government initiates and participates in the search. Oddly, the majority reaches this erroneous and unfortunate result by first acknowledging what it must — that the Fourth Amendment is applicable to such searches. Opinion at 1094,1095-1096. However, it then strips this important principle of all significance by holding that we must look exclusively to foreign law when determining whether the search violates the Fourth Amendment. According to the majority, our government’s decision to initiate the search of an American citizen satisfies the requirements of that once powerful Amendment so long as the foreign officials who conduct the search comply with their own laws. 3 Thus, the majority opinion stands for the paradoxical rule that the Fourth Amendment applies to searches of American citizens in which United States agents play a substantial role but that probable cause, the most basic requirement of the Fourth Amendment, does not — except in the unlikely circumstance that the foreign land in which the search is conducted happens to have the identical requirements that our Constitution imposes.
The practical consequences of the majority’s opinion can be simply stated. Without the probable cause requirement, the Fourth Amendment is without any real force. Searches of American citizens abroad can be instigated at the will of government agents. Any American traveling outside our nation’s boundaries on vacation, business, or just visiting his family, is now fair game for wiretapping, surreptitious searches, and other invasions of privacy whenever members of the CIA, the DEA, the FBI, or who knows how many other alphabet law enforcement agencies, so desire.
Moreover, the majority’s new rule is contrary to fundamental constitutional principles. The common-sense conclusion that a search of an American citizen cannot be instigated by the United States unless it has probable cause to do so is well-supported by existing caselaw, and there is no decision to the contrary. In fact, we need go no further *1100 than Reid v. Covert, 354 U.S. 1 , 77 S.Ct. 1222 , 1 L.Ed.2d 1148 (1957), and Stonehill v. United States, 405 F.2d 738 (9th Cir.1968), cert. denied, 395 U.S. 960 , 89 S.Ct. 2102 , 23 L.Ed.2d 747 (1969), to understand what is wrong with majority’s opinion.
* * * * * 'M
It is clear, as the majority purports to recognize, that the Fourth Amendment applies to the search at issue. However, while acknowledging that the Fourth Amendment’s protections extend to United States citizens abroad, the majority applies the Bill of Rights to foreign searches in a manner that leaves the search and seizure provision without force or effect. In doing so, the majority expressly rejects the noble vision of the Constitution articulated in Reid v. Covert, 354 U.S. 1, 5-6 , 77 S.Ct. 1222, 1224-25 , 1 L.Ed.2d 1148 (1957). In the words of the Reid plurality:
At the beginning we reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When 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. This is not a novel concept. To the contrary, it is as old as government.
Reid, 354 U.S. at 5-6 , 77 S.Ct. at 1224-25 (plurality opinion).
Indeed, until today, the only circumstance in which we have held that the Fourth Amendment does not apply to a search of a United States citizen conducted abroad is when the United States is not involved in the search. Stonehill v. United States, 405 F.2d 738, 753 (9th Cir.1968), cert. denied, 395 U.S. 960 , 89 S.Ct. 2102 , 23 L.Ed.2d 747 (1969). Stonehill explicitly held that the Fourth Amendment applies to a search by foreign officials when the participation of the United States government is sufficiently substantial to render a search or seizure a joint venture between the United States and the foreign government. Stonehill, 405 F.2d at 743 . That is, as the majority correctly rules, the type of search involved here.
Recognizing that existing precedent compels the conclusion that the Fourth Amendment is applicable, the majority addresses the question whether the search at issue violated the requirements of the Amendment. Here it commits a fundamental error. It holds that in all cases involving joint-venture searches of Americans abroad the lawfulness of the search, for Fourth Amendment purposes, depends entirely upon the vagaries of foreign law. 4 Put simply, what the majority holds is that the only Fourth Amendment protections United States citizens who travel abroad enjoy vis-a-vis the United States government are those safeguards, if any, afforded by the laws of the foreign nations they visit. Under the majority’s holding, the Fourth Amendment’s requirements are wholly redundant since they provide nothing *1101 more than is already provided by foreign law. In fact, under the majority’s rule, the Fourth Amendment provides even less protection than foreign law since, according to the principal case on which the majority relies, the Constitution does not even require foreign officials to comply with their own law; all that is required is that American officials have a good faith belief that they did so. See Peterson, 812 F.2d at 492. Thus, even though the majority concedes that the Fourth Amendment applies to joint-venture searches like the one before us, it holds that when Americans enter Iraq, Iran, Singapore, Kuwait, China, or other similarly inclined foreign lands, they can be treated by the United States government exactly the way those foreign nations treat their own citizens — at least for Fourth Amendment purposes.
The facts of this case exemplify the disastrous consequences of the majority’s holding and the extent to which the opinion strips our citizens of fundamental safeguards against arbitrary invasions of their privacy by their own government. Here, the government does not contend that it had probable cause to obtain a court order permitting the interception of the phone calls of the defendants. Thus, had the defendants remained in this country, the government could not have tapped their telephones. 5 What the government did was to wait until they crossed the border. It then requested officials of another country, Denmark, which had at best an attenuated interest in the matter, 6 to act as agents for the United States and to tap the telephones of American citizens. By doing so, the government arbitrarily exercised its power over the defendants free of the constitutional constraints that the Bill of Rights imposes. 7 The majority’s failure to require our government to have probable cause to initiate this search makes clear that its “application” of the Fourth Amendment to this case serves only to perpetuate a myth, if not a fraud, upon the public when it represents that the Fourth Amendment applies to Americans abroad and that it provides Americans with meaningful protection outside our borders. Certainly, that will no longer be the ease if the majority opinion is allowed to stand.
# i{C ‡ ‡ 5{i *
Probable cause is the fundamental requirement 8 that must be satisfied before our government can initiate searches in criminal in *1102 vestigations. See Camara v. Municipal Court, 387 U.S. 523, 535 , 87 S.Ct. 1727, 1734 , 18 L.Ed.2d 930 (1967) (“in a criminal investigation ... a search for [contraband] goods, even with a warrant, is ‘reasonable’ only when there is ‘probable canse’” to conduct it). The majority has provided no reasonable explanation for its ruling that that requirement need not be met here, despite the Supreme Court’s clear indication that it must do so in order to depart from the general rule that probable cause must exist for a search to be conducted. See, e.g., T.L.O., 469 U.S. at 341, 105 S.Ct. at 742; see also supra note 8. There is, of course, an obvious explanation for the majority’s failure even to attempt to explain its departure in this case: there is simply no convincing justification that can be offered for abandoning the probable cause requirement with regard to foreign searches. While there may be good reason to abandon the warrant requirement abroad, there is no reason that, in a criminal ease conducted in the United States, a federal judge cannot require a United States agent to explain after the fact why he initiated a search of one of our own citizens. Because judicial scrutiny of the search will always take place after it has been conducted, there is no conceivable way that imposing such a requirement would hinder law enforcement efforts abroad — except to the extent that those efforts violate our own Constitution.
*1103 One of the reasons that the majority errs so egregiously in this case is that it fails to recognize the difference between the questions whether there is enough reason to justify a search and what procedures must be followed thereafter. The difference is critical, and entirely different rules apply to the two inquiries. The reason for applying different rules is evident: the probable cause inquiry determines whether the United States has the right to request the search in the first place; that inquiry relates solely to a covenant between the United States and its people which has nothing to do with the foreign government involved. The foreign law inquiry, in contrast, determines essentially whether the foreign officials acted lawfully after they received a request to conduct a search — that is, whether they adhered to their own standards and practices in implementing the request of the United States. 9 The latter inquiry directly implicates the interests and concerns of the foreign nation involved. 10 Thus, the former inquiry, quite naturally, depends upon our law, while the latter is appropriately governed primarily by foreign law.
In place of reasoned analysis and a persuasive explanation for its decision, the majority relies wholly upon our decision in United States v. Peterson, 812 F.2d 486 (9th Cir.1987). Peterson , however, does not support the majority’s conclusions. To the contrary, Peterson is entirely consistent with the view that the majority rejects — that the Fourth Amendment has independent force abroad and affords American citizens at least some substantial protections against intrusions by their own government. Peterson concerned the question whether the search was carried out properly by foreign officials, including the question whether a warrant should have been obtained, not the question of what standards should apply in determining whether the United States government lawfully requested the search in the first place. 11 Peterson never discusses the critical question of whether American officials must have probable cause for inducing a foreign government to carry out a search. In fact, there is no indication in the opinion that any such issue was ever raised before the court. Moreover, Peterson makes clear that when foreign law is relevant, it represents only one part of our inquiry into the constitutionality of the search. In the words of the court, when the United States undertakes a joint venture search with foreign officials, “the law of the *1104 foreign country must be consulted at the outset as part of the determination whether or not the search was reasonable.” Peterson, 812 F.2d at 490 (emphasis added). In fact, the Peterson court repeatedly emphasized that the law of the foreign country represented only “part of the analysis.” Id. at 492 (emphasis added); see also id. at 490 (“The law of the foreign country must be consulted ... as part of the determination.”). Thus, the ease upon which the majority so heavily relies in adopting its novel rule neither considers nor addresses the issue before us— whether probable cause is required for foreign searches; it does not, contrary to what the majority holds, state that we must look exclusively to foreign law; and, ironically, it is a case that the author of the majority opinion has previously conceded providés, at best, “implicit” support for his views. See United States v. Verdugo-Urquidez, 856 F.2d 1214, 1249 (9th Cir.1988) (Wallace, J., dissenting). 12
* * * * * *
Next, I must express my strong disagreement with the method of legal analysis employed by the majority in this case. The majority, relying on Peterson , a ease that does not even involve the question of probable cause, 13 reaches its decision as if the law in this area were well established and as if there were no arguments to be made in favor of the defendants’ position. However, as the majority is well aware, in an earlier opinion authored by Judge Thompson, United States v. Verdugo-Urquidez, 856 F.2d 1214 (9th Cir.1988), the court held that the Fourth Amendment applies to searches conducted by a foreign government acting in conjunction with the United States and that when the United States participates in a foreign search probable cause must exist.
By contrast with the majority’s opinion here, the Verdugo majority provided a well-reasoned and well-researched justification for its decision. It explored extensively the historical and legal basis for applying the Fourth Amendment to actions that our government undertakes in foreign lands. Although the Supreme Court reversed Judge Thompson’s opinion on the ground that citizens of foreign nations are not entitled to Fourth Amendment protections during foreign searches, it left the part of the Verdugo analysis relevant to this case undisturbed. United States v. Verdugo-Urquidez, 494 U.S. 259 , 110 S.Ct. 1056 , 108 L.Ed.2d 222 (1990). Specifically, the Court did not conclude that American citizens forfeit Fourth Amendment protections by going abroad; nor did it state that they are entitled only to the privileges afforded them by foreign law. There would in fact have been no reason for it to consider those questions. 14
*1105 We have recognized that, even though a ease has been vacated, as Verdugo subsequently was, United States v. Verdugo-Urquidez, 902 F.2d 773, 774 (9th Cir.1990), it still provides persuasive authority within the circuit if its reasoning is unaffected by the decision to vacate. See Orhorhaghe v. I.N.S., 38 F.3d 488 , 493 n. 4 (9th Cir.1994). Such is, of course, the case with respect to the reasoning in Verdugo that is relevant here.
The majority deliberately ignores the reasoning in Verdugo that demonstrates the fallacy of its position. It offers no justification for concluding, contrary to Verdugo, that the probable cause requirement becomes “inoperative” when the government acts abroad, nor can it point to any development in the law that would require us to alter our Verdu-go analysis. The majority’s cavalier treatment of a well-reasoned explication by this court concerning the question before us suggests that panel composition, not persuasive legal analysis, has determined the result in this case. The government here was simply fortunate enough to draw a panel led by the dissenter in Verdugo and including another judge who agreed with his position. 15
The government’s good fortune is the nation’s misfortune. The majority has improperly and severely limited one of the most important protections provided by our Constitution and has undermined one of its fundamental tenets. My colleagues’ failure to address the persuasive authority of Verdugo only highlights the fact that they lack any reasonable or reasoned justification for their decision today.
í¡:
Early in this century, the Supreme Court warned that courts “must be vigilant to scrutinize the attendant facts [surrounding a search] with an eye to detect and a hand to prevent violations of the Constitution by circuitous and indirect methods.” Byars v. United States, 273 U.S. 28, 33 , 47 S.Ct. 248, 250 , 71 L.Ed. 520 (1927). In our leading case involving foreign searches initiated by the United States government, this court warned that “[a] federal agent must not be permitted to do indirectly that which he cannot do directly, and thus circumvent the provisions of the Fourth Amendment against unreasonable search and seizure.” Stonehill, 405 F.2d at 746 . The majority’s failure to heed these warnings ensures that when, as here, the *1106 United States government is unable to obtain a search warrant because it lacks probable cause, it can simply wait until a suspect goes abroad and then instruct a friendly or submissive foreign government to conduct the search on its behalf. Thus, the government is now free to conduct foreign searches in a manner that circumvents the requirements of the Constitution and to achieve indirectly what it cannot achieve directly. Even more important, the majority’s decision drives one more nail in the coffin of the Fourth Amendment, and leaves all Americans with less protection against arbitrary governmental actions than they enjoyed before the majority spoke.
For these reasons, although I fully concur in Parts I and III of the opinion, I dissent from Part II.
. See Katherine Q. Seelye, "House Backs Bill to Require Restitution from Criminals,” N.Y. Times, Feb. 8, 1995, at A16.
. Cf. Chew v. Gates, 27 F.3d 1432, 1450-51 (9th Cir.1994).
.In fact, under the majority’s view, even that is not necessary, since all that is required to uphold a search is a finding that our law enforcement officials believed in good faith that the foreign officials complied with their own law. See United States v. Peterson, 812 F.2d 486, 492 (9th Cir.1987).
. The majority’s effort to respond to this point, Opinion at 1091-1092 n. 1, is wholly unavailing. Rather than pointing to any Fourth Amendment protection its decision affords to American citizens abroad, the majority can only point to a protection afforded by the Fifth Amendment. See United States v. Verdugo-Urquidez, 856 F.2d 1214, 1245 (Wallace, J., dissenting) (an individual "may invoke the fifth amendment to challenge the admission of evidence that was obtained through means that 'shock the conscience'....”). In fact, by explaining that the courts can exercise their supervisory powers to prevent the United States from initiating a search that "shocks the conscience,” the majority implicitly acknowledges that, under its view, the Fourth Amendment provides absolutely no protection to United States citizens traveling in foreign lands. Until this decision, the Fourth Amendment protected all citizens from intrusive searches and seizures initiated by our government without probable cause even when they did not shock the conscience. However, under the majority's view, American citizens traveling abroad no longer enjoy this important guarantee; the state can needlessly and arbitrarily subject American citizens to intrusive searches and seizures of every type without providing any justification for doing so as long as they do not rise to such an extreme as to shock the conscience. I note that the majority has not cited a single case in which a court has held that a search or seizure "shocks the conscience.” But cf. Rochin v. California, 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952). This is hardly surprising. See Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961).
. Actually, what is needed to obtain a court order for a domestic wiretap is far more than the probable cause mandated by the Fourth Amendment. See 18 U.S.C. § 2518 . However, for purposes of this dissent, it is necessary to consider only the government's failure to meet the probable cause standard.
. The search was conducted entirely at the behest of the United States government and entirely for the benefit of American agents. Denmark had no direct or substantial interest in tapping the defendants’ telephones. To the contrary, the only information provided to its officials by the United States government made clear that the drug transactions in question were occurring thousands of miles away. Although in determining whether the telephones could be tapped the Danish court found that the defendants’ conduct was punishable by up to six years in prison, there is no evidence that the Danish government ever intended to investigate the defendants for violations of Danish law, to prosecute the defendants for any violation of law, or to use the fruits of the wiretaps for either of those purposes.
. Denmark only requires that the government have "weighty reasons” to conclude that a search will produce evidence that those under investigation have engaged in a particular offense. Although we have no way of giving content to what is a meaningless phrase in our own legal system, it is clear from the facts of this case that the Danish standard falls far short of our own probable cause requirement.
.I had mistakenly believed that it was unnecessary to provide a citation for a contention as fundamental as that set forth in the text. However, the majority suggests that my failure to cite a case indicates that I alone subscribe to the belief that probable cause is a basic requirement of the Fourth Amendment. To the contrary, I merely follow the lead of the Supreme Court, which has repeatedly stated:
In enforcing the Fourth Amendment's prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.
Chambers v. Maroney, 399 U.S. 42, 51 , 90 S.Ct. 1975, 1981 , 26 L.Ed.2d 419 (1970) (emphasis added); see also Almeida-Sanchez v. United States, 413 U.S. 266 , 93 S.Ct. 2535 , 37 L.Ed.2d 596 (1973) (same). Similarly, in New Jersey v. T.L.O., 469 U.S. 325, 340 , 105 S.Ct. 733, 742 , 83 L.Ed.2d 720 (1985), the case upon which the majority so heavily relies, the Court emphasized that "[ojrdinarily, a search ... must be based upon 'probable cause’ to believe that a violation of the law has occurred.” T.L.O., 469 U.S. at 340 , 105 S.Ct. at 742 .
*1102 The majority is, of course, correct that in certain limited, narrowly defined cases, the Court has not required the government to have probable cause to conduct a search. In each of these cases, however, the Court both acknowledged that the Fourth Amendment generally requires probable cause to conduct a search and found unusual or exceptional circumstances which justified a departure from the general rule. See, e.g., T.L.O., 469 U.S. at 341 , 105 S.Ct. at 742 .
Here, in contrast, as I have repeatedly pointed out in the text of my dissent, the majority has provided absolutely no justification for abandoning this basic requirement. It does not explain, for example, why the nature of a foreign search precludes us from applying the probable cause standard to such a search. While there may be good reason to dispense with the warrant requirement abroad, there appears to be no plausible justification — and the majority certainly has not provided one — for concluding that an American agent who requests that a search be conducted cannot be asked to explain the basis for his request at the time of the subsequent criminal proceeding in federal court. See infra text accompanying notes 8-9 (discussing this issue in greater detail). The obligation imposed on the government would be precisely the same as is imposed in the case of domestic searches.
More important, the majority does not carve out a narrow exception to the general rule that the government must have probable cause to initiate a search of one of its own citizens. All of the cases cited by the majority concern narrow, carefully defined exceptions to the general probable cause requirement. For example, Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), on which the majority so heavily relies, merely allows the police to conduct short, nonin-trusive investigations without probable cause so long as they have a reasonable suspicion that the stop is necessary. Here, in sharp contrast, the majority has held that every foreign search, regardless of its level of intrusiveness or the circumstances surrounding the decision to initiate it, may be conducted without probable cause under the Fourth Amendment. Elementary respect for the dictates of the Fourth Amendment should preclude such an unwarranted extension.
Finally, I must vigorously disagree with the majority’s attempt to assert that the probable cause standard is part of the warrant requirement only and that the standard therefore need not be met whenever a warrant is not required. See Opinion at 1091-1092 n. 1. Both the Supreme Court and our circuit have often conditioned the admission of evidence obtained through a warrantless search upon the existence of probable cause for that search. See, e.g., California v. Acevedo, 500 U.S. 565 , 111 S.Ct. 1982 , 114 L.Ed.2d 619 (1991); United States v. Ross, 456 U.S. 798 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982); Hopkins v. City of Sierra Vista, 931 F.2d 524 (9th Cir.1991); United States v. Sarkissian, 841 F.2d 959 (9th Cir.1988). Indeed, the case upon which the majority relies, T.L.O., makes clear how revisionary and unprecedented is the majority's attempt to jettison the probable cause requirement with regard to ajl warrantless searches; "[ojrdinarily, a search — even one that may permissibly be carried out without a warrant — must be based upon 'probable cause'...." T.L.O., 469 U.S. at 340 , 105 S.Ct. at 742 (emphasis added); see also id. (" 'the concept of probable cause ... bear[s] on the reasonableness of a search'"). I am in fact simply unable to comprehend how the majority can purport to separate the reasonableness requirement and the probable cause requirement in this case in light of the Supreme Court's explicit holding that “in a criminal investigation ... a search for [contraband] goods, even with a warrant, is 'reasonable' only when there is 'probable cause' to believe that they will be uncovered in a particular dwelling.” Camara v. Municipal Court, 387 U.S. 523, 535 , 87 S.Ct. 1727, 1734 , 18 L.Ed.2d 930 (1967) (emphasis added); see also infra note 9 (quoting Justice Blackmun, who reaches the same conclusion).
.The question of whether a warrant is required to conduct a joint-venture foreign search is determined by foreign law standards since it is intimately connected with the manner in which the search is carried out. As Justice Kennedy, the author of the Peterson opinion, observed:
The absence of local judges or magistrates available to issue warrants, the differing and perhaps unascertainable conceptions of reasonableness and privacy that prevail abroad, and the need to cooperate with foreign officials all indicate that the Fourth Amendment’s warrant requirement should not apply [abroad] as it does in this country.
United States v. Verdugo, 494 U.S. 259, 278 , 110 S.Ct. 1056, 1068 , 108 L.Ed.2d 222 (Kennedy, J., concurring); see also id. at 279 , 110 S.Ct. at 1068 (Stevens, J., concurring) (explaining that the warrant requirement is inapplicable abroad). Similarly, Justice Blackmun has observed:
I agree with the Government ... that an American magistrate's lack of power to authorize a search abroad renders the Warrant Clause inapplicable to the search of a noncitizen’s residence outside this country.
The Fourth Amendment nevertheless requires that the search be "reasonable.” And when the purpose of a search is the procurement of evidence for a criminal prosecution, we have consistently held that the search, to be reasonable, must be based upon probable cause.
Id. at 297-98 , 110 S.Ct. at 1078 (Blackmun, J., dissenting) (emphasis added). The use of the term "noncitizen1' by Justice Blackmun was descriptive rather than limiting and is solely a consequence of the fact that the petitioner in that case was in fact a noncitizen. The four justices, other than Justice Kennedy, who formed the majority agreed that the warrant requirement is inapplicable for a somewhat different reason. They said that a warrant obtained in the United States would be a "dead letter” overseas. Verdugo, 494 U.S. at 275 , 110 S.Ct. at 1066 .
. Moreover, from a practical standpoint, it would be most difficult to ensure that foreign police officials understood and followed our Fourth Amendment rules and procedure, and since we cannot in any event expect them to conduct searches involving our citizens in a different manner than they conduct searches of all other persons.
. As described in note 10, the Peterson author, Justice Kennedy, after joining the Court's decision in Verdugo , explained why the question of whether a warrant must be obtained falls in the first category of questions.
. The majority's continued adherence to its claim that Peterson compels the result in this case is quite surprising. The majority has apparently conceded, as it must, that Peterson does not address whether probable cause must exist for the United States to initiate a search of American citizens abroad. See Opinion at 1091-1092 n. 1. The majority cannot point to anything in Peterson that directly contradicts my interpretation of the decision, and the author of the majority opinion has already conceded that Peterson provides only indirect support for his contentions. See text supra. At best, the majority has suggested that there are at least two plausible readings of Peterson which support two entirely different results. In such a case, I believe that it is incumbent upon a court to acknowledge the lack of precedent for its holding and to provide cogent, devel- ' oped reasoning for its conclusion; the parties deserve more than a few conclusory paragraphs accompanied by citations to a case that does not compel the result reached by the court.
. Indeed, Peterson's only mention of the phrase “probable cause” takes place later in the opinion, when it discusses the defendants' arguments regarding an entirely separate search, one that took place on the high seas. Peterson, 812 F.2d at 493-94 .
.The majority is plainly wrong when it contends that the Court "expressly rejected” the view that probable cause is necessary for a search of American citizens initiated by the United States. The sole support that the majority provides for this wholly unwarranted conclusion is a short passage in Verdugo that does nothing more than describe our own court’s erroneous conclusion that the United States must obtain a warrant to conduct a search of a noncitizen in a foreign country. As is made clear from the Court's statement a few sentences earlier, this passage is only included to demonstrate that this circuit erred in ignoring "the problems attending the application of the Fourth Amendment to aliens." Verdugo, 494 U.S. at 274 , 110 S.Ct. at 1066 (emphasis added). The passage solely concerns the Court’s holding that the Fourth Amendment does not protect noncitizens from searches and seizures conducted by the United States abroad. The paragraph makes no mention of *1105 whether probable cause is required for searches of citizens. Thus, I simply cannot comprehend why the majority chooses to imply that, after devoting many pages to a detailed analysis of the Fourth Amendment's application to searches and seizures of noncitizens abroad, the Court would address the issue of the rights of American citizens in such an offhanded manner. Surely the majority does not believe that the Supreme Court would decide so important an issue without even acknowledging that it was doing so — particularly when that issue was entirely unnecessary to the resolution of the case before it.
More important, Justice Kennedy’s concurring opinion in Verdugo makes it clear that the majority's contention that the Supreme Court rejected my approach and adopted Chief Judge Wallace’s is simply wrong. In casting the fifth and decisive vote for the Verdugo opinion, Justice Kennedy explicitly observed that "[t]he rights of a citizen, as to whom the United States has continuing obligations, are not presented by this case." Verdugo, 494 U.S. at 278 , 110 S.Ct. at 1068 (emphasis added); see also Verdugo, 494 U.S. at 279 , 110 S.Ct. at 1068 (Stevens, J., concurring in the judgment) (concluding that the warrant requirement does not apply “to searches of noncitizens’ homes in foreign jurisdictions” (emphasis added)). Given that the Court clearly never addressed the appropriate treatment of a Fourth Amendment claim by a citizen travelling abroad, I must most forcefully disagree with the majority's contention that the Verdugo decision forecloses the analysis I have afforded in my dissent.
. By referring to panel composition, I do not of course question in any way the method used for selecting the panel. See Opinion at 1091-1092 n. 1 (citing the Rules of the United States Court of Appeals for the Ninth Circuit). Nor do I question the abilify or legitimacy of either of my two esteemed colleagues. My reference to panel composition is plainly and simply a statement of an obvious fact. The result we reach here would indeed have been different if the panel that previously considered the question of foreign searches had been drawn to hear this case. Judges with different views or understandings of the Constitution regularly reach different results in cases presenting constitutional questions. That, however, is no excuse for failing to consider or discuss our earlier well-reasoned analysis. The explanation that the majority offers in its footnote replying to this dissent, see Opinion at 1091-1092 n. 1, is wholly unpersuasive. See supra note 14. In fact, the explanation serves only to confirm that there is no sound basis in law for the majority’s failure to analyze the relevant legal authorities properly.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6935032. Public record. Not legal advice.