The Fourth Amendment protects Americans within the borders of the United States, but its applicability outside American territory is less clear. This Note maintains that Fourth Amendment protections should cover wiretap evidence seized abroad, not just that gathered domestically. These protections should apply whenever a prosecutor seeks to admit such evidence in criminal prosecutions in the United States. Such protections are fundamental whenever the government acts to gather or use evidence, whether that evidence was obtained outside the territorial jurisdiction of the United States or not.
The practical application of these protections for evidence gathered abroad presents problems, however. For example, can the U.S. exercise any control over the methods used to gather evidence by foreign police agencies? Does the exclusionary rule, meant to inculcate a respect for the Fourth Amendment in domestic officials, have any positive role to play in impacting the behavior of non-U.S. agents? Should we judge admissibility based on another countries laws or should we insist our laws should apply abroad as well? Does it matter if the U.S. initiated the wiretap, or if the foreign country provided the information without direction from the United States? All of these are potentially difficult questions in the context of evidence gathered abroad for use in this country.
Kristopher A. Nelson,
Transnational Wiretaps and the Fourth Amendment,
36 Hastings Const. L.Q. 329
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol36/iss2/5