The Fourth Amendment’s Warrant Requirement and The Warrant Clause Have No Extraterritorial Application

United States v. Stokes, No. 11-2734. On appeal from a conviction for traveling in foreign commerce for the purpose of engaging in a sex act with a minor, 18 U.S.C. § 2423(b), the defendant argued that a procedural mistake was made in his extradition from Thailand and the legality of a search. The extradition error involved the Rule of Specialty, which holds that a nation securing the return of a person pursuant to an extradition treaty may prosecute the extradited person only for the crime or crimes named in the surrendering country’s extradition grant. Thailand surrendered Stokes to face a charge under 18 U.S.C. § 2423(c), which makes it a crime for U.S. citizens and lawful permanent residents to engage in illicit sexual conduct in a foreign place. Prosecutors later shifted gears and prosecuted him for violating 18 U.S.C. § 2423(b), a similar crime but not the one on which Thailand granted extradition. On a request from the American Embassy, however, the Thai foreign ministry waived the Rule of Specialty. This diplomatic action cleared the way for the government to proceed on the substitute charge, which doomed the defendant’s appeal on this issue. The challenge to the search raised two questions: (1) whether an extraterritorial search of an American citizen by U.S. agents issubject to the Fourth Amendment’s implicit warrant requirement and the explicit requirements of the Warrant Clause; and (2) whether the search by ICE agents was reasonable. Following the Second Circuit, the Seventh Circuit held that the Fourth Amendment’s warrant requirement and the Warrant Clause have no extraterritorial application. However, the defendant was still protected by the Amendment’s touchstone requirement of reasonableness. The court concluded the search was reasonable, as the joint investigation by ICE and the Thai police produced information that certainly would have been sufficient to establish probably cause that the defendant had committed a crime and evidence of it would be found in his home.