textfiles/law/feb07.law

FEBRUARY 1990                                                     

                                                                  
         FOREIGN SEARCHES AND THE FOURTH AMENDMENT                         
                                                                  
                           By

                   Austin A. Andersen, LL.B.
                       Special Agent
                    Legal Instruction Unit
                        FBI Academy       
                                                                  
     In a recent international, multimillion dollar heroin 
conspiracy and money laundering prosecution, in which local 
police officers in Bermuda arrested and searched a fugitive 
charged in New York for Federal violations, a U.S. District Court 
observed that since modern day narcotics trafficking is conducted 
on a global scale, law enforcement agencies will have to enlist 
the cooperation of their counterparts in other parts of the 
world.  The court went on to note, ``This international 
cooperation does not mandate the conclusion that the assistance 
rendered by foreign officials thereby makes them agents of the 
United States and thus subject to our Constitution and 
jurisprudence.'' (1)
                                              
     Because the tide of drugs flowing into the United States 
cannot be stemmed unilaterally, it is becoming increasingly more 
obvious that the war against drugs requires teamwork by law 
enforcement agencies of the world.  As various nations share 
information, coordinate cases of mutual interest, locate each 
other's fugitives, and participate in transcontinental undercover 
operations, American courts are being asked to delineate 
standards governing the admissibility of evidence collected in 
foreign countries.                                                

     The purpose of this article is to identify the different 
circumstances under which evidence can be located in a foreign 
search and to determine when that evidence will be admissible in 
American courts.  The salient legal issues to be addressed are: 
1) Whether the fourth amendment is applicable to a foreign 
search; and 2) if so, what procedures must police use to meet the 
reasonableness standard of the fourth amendment. (2)
              
     The resolution of the first issue depends on the degree of 
involvement or participation by U.S. officials in the foreign 
search; in general, the greater the involvement, the more likely 
fourth amendment standards will apply.  The extent of involvement 
by U.S. officials can range from none to exclusive control; the 
former situation will not implicate the fourth amendment while 
the latter will. More difficult to categorize are those   
foreign searches in which there is some degree of involvement by 
both U.S. and foreign officials.  This article discusses specific 
cases where courts have attempted to define the standards for 
determining exactly how much involvement by U.S. authorities is 
needed to trigger the extraterritorial application of the fourth 
amendment and its reasonableness requirement.
                     
FOREIGN SEARCHES WITH NO U.S. INVOLVEMENT
                         
     It is clear that evidence independently acquired by foreign 
police for their own purposes is admissible in U.S. courts 
despite the fact that such evidence, if seized in the same manner 
by American police, would be excluded under the fourth 
amendment.(3)  This rule applies even when those from whom the 
evidence is seized are American citizens. (4)  Such evidence is not 
suppressed for two reasons.  First, the Supreme Court decided 
more than 60 years ago that the framers of the U.S. Constitution 
did not intend the fourth amendment to apply to private parties, 
i.e., individuals who are not officials of the U.S. Government. (5)  
Second, the exclusionary rule is not a constitutional right but 
is instead a judicially created device intended to deter 
misconduct by U.S. officials. (6)  Because the suppression in 
American courts of evidence seized by foreign officials would 
have no deterrent effect on police tactics in the United States, 
no purpose is served by such punitive exclusion.                  

     American police, however, are often the beneficiaries of 
such evidence.  For example, Canadian authorities recently used a 
wiretap that did not meet U.S. standards and then provided the 
contents of that intercept to DEA agents.  The U.S. Court of 
Appeals for the Ninth Circuit held that because the DEA was not 
involved in the initiation or monitoring of the wiretap, the 
fourth amendment was not a bar to the use of evidence from the 
wiretap in an American court. (7)
                                    
     A rarely applied exception to this rule occurs when a 
foreign sovereign's actions during the search are so extreme as 
to shock the judicial conscience, even though no American 
involvement is present. (8)  Because of the small number of cases in 
which evidence has been suppressed for shocking conduct, it is 
not clear just how outrageous the conduct must be before a court 
will exercise its supervisory authority to enforce the 
exclusionary rule.  One case illustrating such shocking conduct 
is United States v. Toscanino, (9) in which a Federal appellate 
court held that the fourth amendment was violated when the 
defendant, an Italian national, was forcibly abducted by 
Uruguayan agents, tortured, interrogated for 17 days, drugged, 
and returned to the United States for trial.                      

FOREIGN SEARCHES CONDUCTED EXCLUSIVELY BY U.S. AUTHORITIES
        
     It is clear that a search controlled exclusively by American 
authorities either inside or outside the territorial boundaries 
of the United States must be conducted in a manner consistent 
with the fourth amendment.  The U.S. Government, whether it acts 
at home or abroad, is subject to the limitations placed on its 
power by the Bill of Rights, at least as far as its relationship 
with U.S. citizens is concerned. (10)  Although the ability of a 
sovereign state to assert its authority is generally limited to 
acts occurring within its territorial boundaries, certain 
situations motivate nations to assert subject matter jurisdiction 
for their courts to entertain criminal matters which take place 
in other countries. (11)
                                             
     In an ever-shrinking world, criminalization of 
extraterritorial acts by one nation is usually respected by other 
nations, as long as the statutes conform to generally recognized 
principles of international law. (12)  For example, Congress has 
extended Federal jurisdiction to vessels at sea, overseas 
government reservations, and U.S. aircraft. (13)  Similarly, 
Congress has enacted legislation protecting U.S. nationals from 
terrorist acts in other countries. (14)  In addition, courts often 
construe ordinary statutes designed to protect the government as 
having extraterritorial effect, as long as the elements of the 
statute do not specifically exclude such an intent by the 
legislature. (15)
                                                    
     While Congress has the power to make certain types of   
extraterritorial activity illegal, the ability of U.S. agents to 
investigate such violations on foreign soil cannot be granted 
without contravening customary international law, which accords 
each of the nations of the world exclusive peace-keeping 
jurisdiction within its borders. (16)  Generally, American law 
enforcement officers who conduct investigations abroad rely on 
the foreign country's invitation, treaty, or permission;(17) more 
often, the investigation is performed by the foreign officials 
themselves at the request of U.S. authorities. However, in cases 
where Congress has created extraterritorial investigative 
jurisdiction and where the host country grants permission to 
investigate, American authorities must then conduct their inquiry 
in a manner consistent with the U.S. Constitution.                

FOREIGN SEARCHES BY FOREIGN AUTHORITIES WITH INVOLVEMENT OF U.S. 
OFFICIALS
                                                         
     Since U.S. officials do not normally conduct investigations 
in foreign countries, most foreign  searches which produce 
evidence of interest to U.S. law enforcement officers are 
conducted by foreign police.  The most important exception to the 
general rule of admissibility of evidence located by foreign 
police occurs when there is substantial involvement in the search 
by U.S. authorities.  Two types of involvement, often found 
together in the same case, are more likely to transform a foreign 
search into one subject to the protections of the fourth 
amendment: 1) American officials make foreign police their agents 
by causing them to conduct searches solely in the interest of the 
U.S. law enforcement agency; (18) or 2) American officials, through 
their substantial participation, convert the search into a joint 
venture. (19)
                                                        
     Providing intelligence concerning criminal activity to a 
foreign police department does not necessarily convert the 
foreign police officer who conducts a search based on this 
information into an agent of the U.S. official.  For example, 
when FBI Agents in New York notified the Royal Canadian Mounted 
Police (RCMP) that an American citizen living in Toronto had 
information about stolen securities that would soon be 
transported from the United States into Canada for sale and 
distribution, RCMP officers debriefed the informant and conducted 
a warrantless search of the defendant's hotel room.  A Federal 
court refused to suppress evidence received from the RCMP search, 
which would have been invalid under the fourth amendment.  The 
court held that the transmittal of the name, telephone number, 
and general information concerning a crime of potential interest 
to both countries amounts to routine interagency cooperation and 
does not rise to the level of American involvement necessary to 
invoke the fourth amendment. (20)
                                    
     Another Federal court condoned a higher degree of 
involvement in a case in which FBI Agents notified Mexican police 
of the identities of two individuals in possession of vehicles 
stolen in the United States for importation and sale in Mexico, a 
violation of both U.S. and Mexican statutes. (21)  After the 
Mexican police conducted a warrantless search of the defendant's 
premises, a second search was conducted in the presence of an FBI 
Agent.  Neither search met fourth amendment requirements.  Noting 
that the Mexican police had a legitimate investigative interest 
in the defendant's activity, the court held the fourth amendment 
inapplicable to evidence located in a search by Mexican police, 
even though the defendants were American citizens, the American 
police provided the information leading to the search, and an 
American agent was present at the scene of the search.            

     These cases imply that a foreign officer who has no 
independent motivation for a search conducted solely at the 
behest of a U.S. officer may be considered an agent of that U.S. 
officer; if so, evidence produced by that search will be tested 
for admissibility in the U.S. court system under the fourth 
amendment. (22)  Generally, it is unusual for a foreign police 
officer to have absolutely no interest in the outcome of a search 
executed in his country, and an independent motive to search can 
often be found.
                                                   
     In United States v. Molina-Chacon, (23) the defendant objected 
to the introduction of evidence seized from his attache case by 
Bermudian police during an arrest conducted at the request of DEA 
agents who had a warrant charging him with conspiracy to import 
heroin into the United States.  Avoiding the issue of whether the 
search of the attache case was constitutional, the court held 
that the Bermudian police were not mere agents of the United 
States when they cooperated in the apprehension of a criminal for 
whom process was outstanding in New York. (24)  The court's 
decision was based on the following factors: 1) Molina-Chacon 
suffered no mistreatment at the hands of the foreign officers; 2) 
his rights under the laws of Bermuda were honored; 3) DEA agents, 
although they possessed an arrest warrant, lacked the power to 
execute it in a foreign country; 4) at least part of the 
conspiracy charged occurred on Bermudian soil; and 5) routinely 
complying with official requests to locate fugitives of other 
nations is part of the broad responsibility of the police 
agencies of the world to cooperate with each other. (25)
             
     In most foreign searches with U.S. involvement, there is 
some common interest in the subject matter of the investigation. 
In these cases, courts must decide whether the participation by 
American officials rises to the level necessary to convert the 
search into a joint venture, thereby invoking the protections of 
the fourth amendment. One court has described the necessary level 
as ``substantial participation,'' (26) based on a case-by-case 
factual analysis.                     
                            
     The following examples of involvement by U.S. officials 
reflect the range of activity that courts have held did not 
convert searches into joint ventures:                             
		
	*  Presence of an American agent to observe a search 
	   not under his control; (27)                                       

	*  Providing information predicating the foreign 
	   investigation and limited assistance at the search 
	   scene when there is a substantial foreign interest 
	   in the case; (28)
		                       
	*  A request for international cooperation by police 
	   agencies contacted by the United States for assistance 
	   in the arrest of a fugitive. (29)
		                                                       
     However, a joint venture was found in a recent case in 
which DEA agents notified authorities in Thailand of a marijuana 
smuggling ring in that country, participated in monitoring a 
wiretap installed by the Thai police on the defendant's 
telephone, and reviewed all information received from the 
wiretap. (30)
                                                        
     The above cases show that courts will conduct factual 
analyses of foreign searches to determine if involvement by U.S. 
officials is so marginal as not to implicate the fourth amendment 
or so substantial that the action must be characterized as an 
exercise of American authority subject to the limitations of the 
U.S. Constitution.  For American law enforcement officers, 
however, the determination of exactly how much involvement will 
transform a foreign search into a joint venture is not easily 
predictable.                                                      

APPLICATION OF THE FOURTH AMENDMENT TO A JOINTLY CONDUCTED 
SEARCH
                                                            
     Once the decision has been made that a search is a joint 
venture between the U.S. and foreign authorities, evidence 
resulting from the search must be measured against the fourth 
amendment in order to determine its admissibility in an American 
court.  The Supreme Court has ruled that all warrantless searches 
are unreasonable per se unless a recognized exception to the 
warrant requirement exists. (31)  Warrantless joint venture 
searches which fall within such exceptions (such as consent, 
incident to arrest, or emergency) will, therefore, produce 
admissible evidence as long as the legal requirements for the 
exception are met.  The emergency exception, in particular, seems 
appropriate to the U.S. official in a foreign land where time, 
language, and distance create formidable barriers to the issuance 
of a warrant by a magistrate in the United States.  Courts 
generally excuse the need for a search warrant where probable 
cause exists and clearly articulated exigent circumstances make 
consultation with a judicial officer impractical. (32)  In fact, 
Congress has facilitated the need for practical extraterritorial 
action when time is of the essence by authorizing certain 
warrantless intrusions without probable cause, such as the 
ability of the U.S. Coast Guard to search ships sailing under the 
American flag on the high seas (33) and U.S. Customs officers to 
board any vessel entering waters under Customs jurisdiction. (34)
    
     In the event that an American officer participates in a 
joint search that does not fall within a recognized exception to 
the warrant requirement, there is still a chance that evidence 
located may be salvaged through an exception to the exclusionary 
rule.  In United States v. Peterson, (35) Philippine authorities, at 
the request of DEA agents, conducted a wiretap which the court 
considered a joint venture.  When information from the wiretap 
was used as a basis for a search, the court reasoned that the law 
of the foreign country must be consulted as a factor to  
determine whether the wire-tap was reasonably conducted.  In this 
case, although the wiretap and resulting search were invalid 
under Philippine law, the Ninth Circuit Court of Appeals found 
that a reasonable reliance on the foreign law enforcement 
officers' representations that there had been compliance within 
their own law triggered the good faith exception to the 
exclusionary rule. (36)
                                              
     Courts differ on how they resolve the reasonableness issue 
in joint searches for which there is no apparent exception to the 
warrant requirement or the exclusionary rule.  One solution is to 
adopt the foreign constitutional norm when it is a reasonable 
substitute for U.S. procedure. (37)  This approach eliminates the 
practical difficulty of attempting to superimpose American 
regulations on the cooperating foreign host.
                      
     Recently, however, in United States v. Verdugo-Urquidez, (38) 
the Ninth Circuit Court of Appeals, in a case hinging on the 
question of whether the fourth amendment applies to joint 
searches of nonresident aliens in foreign countries, held that 
the fourth amendment is the proper standard for U.S. governmental 
searches of citizens or aliens, at home or abroad. 
Verdugo-Urquidez, a Mexican national suspected of the 
torture-murder of an undercover DEA agent, became a fugitive 
after being charged by the DEA with numerous drug violations in 
the United States.                                                

     Based on the outstanding American warrant, Verdugo-Urquidez 
was arrested in Mexico by the Mexican Federal Judicial Police 
(MFJP) and remanded to U.S. Marshals at the California border. 
The next day, the Director of the MFJP, at the request of DEA 
agents, authorized a warrantless search of Verdugo's two 
residences in Mexico.  During the searches, conducted by MFJP 
officers and DEA agents, one of the DEA agents found and seized 
documents allegedly reflecting the volume of marijuana smuggled 
into the United States by Verdugo's organization.  Because the 
searches which were unrelated to any contemplated Mexican 
prosecution were initiated and participated in by DEA agents 
(who took custody of the evidence), both the U.S. District Court 
and the Ninth Circuit Court of Appeals found the participation of 
the DEA agents so substantial as to convert the searches into 
joint ventures.                                                   

     Since the searches were of questionable validity under 
Mexican law, the government argued that the good faith exception 
to the exclusionary rule should apply to the evidence because it 
was reasonable for the U.S. officials to rely on representations 
of the Mexican police that the searches were legal.  The court 
disagreed, stating that the fourth amendment, and not Mexican 
law, governs the procedures for joint searches in foreign 
countries.  Most significant, however, was the finding that in 
the absence of any exception to the warrant requirement, the 
fourth amendment required the DEA agents to obtain a U.S. search 
warrant in order to search the residence of a foreign national. 
The Supreme Court has agreed to review this lower court decision 
during its 1989-1990 term.                                        

CONCLUSION

     Evidence located in foreign countries by foreign police 
acting independently is not subject to fourth amendment standards 
and is admissible in American courts, unless there is conduct 
during the search so outrageous and bizarre as to shock the 
judicial conscience.  Evidence located by U.S. officials acting 
independently in a search abroad is subject to fourth amendment 
scrutiny.  Often, however, there is involvement by both American 
and foreign police in searches outside the United States.  In 
these cases, the following factors are among those considered in 
determining the degree of involvement by U.S. officials: 1) How 
the search or investigation was initiated; 2) whether the search 
related to any contemplated investigation or a violation of the 
laws of the foreign country; 3) whether U.S. authorities merely 
observe, participate in a passive or supportive role, or control 
the execution of the search; 4) which agency seized the evidence; 
and 5) which agency maintained custody of the evidence.  Because 
courts may differ in the weight they give to the above factors in 
the context of varying factual situations, it is difficult to 
anticipate the precise degree of involvement which will convert a 
foreign search into a joint venture.  If it becomes apparent that 
an American official will be involved in a foreign search that 
might be considered a joint venture, that official should then 
consider seeking legal advice to be certain that any action will 
be deemed reasonable by fourth amendment standards.               


FOOTNOTES

(1) United States v. Molina-Chacon, 627 F.Supp. 1253, 1260 
(E.D.N.Y. 1986).                                                  

(2) U.S. Const. amend. IV reads:  ``The right of the people to 
be secure in their persons, houses, papers and effects, against 
unreasonable searches and seizures, shall not be violated, and no 
Warrant shall issue, but upon probable cause, supported by Oath 
or affirmation, and particularly describing the place to be 
searched, and the person or things to be seized.''                

(3) See, e.g., United States v. Mount, 757 F.2d 1315, 1317 
(D.C. Cir. 1985); United States v. Rose, 570 F.2d 1358, 1361-2 
(9th Cir. 1978); Government of Canal Zone v. Sierra, 594 F.2d 60 
(5th Cir. 1979).  See also Saltzburg, ``The Reach of the Bill of 
Rights Beyond the Terra Firma of the United States,'' 20 Va. 
Journal of Int. Law 741 (1980).                                   

(4) See, e.g., Birdsell v. United States, 346 F.2d 775, 782 
(5th Cir. 1965), cert. denied, 382 U.S. 963 (1965).               

(5) Burdeau v. McDowell, 256 U.S. 465 (1921).  See Andersen, 
``The Admissibility of Evidence Located in Searches by Private 
Persons,'' FBI Law Enforcement Bulletin, April 1989, pp. 25-29.   

(6) The exclusionary rule should be used only in those 
situations where this remedial objective will be achieved.  See 
United States v. Janis, 428 U.S. 433, 446-7 (1976).               

(7) United States v. LaChapelle, 869 F.2d 488 (9th Cir. 1989); 
see also, United States v. Delaplane, 778 F.2d 570 (10th Cir. 
1985).
                                                            
(8) Supra note 4.                                               

(9) 500 F.2d 267 (2d Cir. 1974).  Toscanino is a seizure rather 
than a search case; it nevertheless illustrates an example of 
appalling behavior by foreign officials which shocked the 
judicial conscience in a fourth amendment case.  In Rochin v. 
California, 342 U.S. 165 (1952), the Supreme Court found that 
U.S. officials committed shocking and outrageous conduct when 
they forced an emetic solution into the defendant's mouth to 
recover two morphine tablets which had been swallowed.  See 
also, U.S. ex rel. Lujan v. Gengler, 510 F.2d 62, 65 (2d Cir. 
1974), another abduction case, in which the court, noting the 
absence of torture or brutality, held that a defendant forcibly 
brought from a foreign country into a domestic court's 
jurisdiction was without a judicial remedy absent ``conduct of 
the most outrageous and reprehensible kind....''  The authority 
to try defendants who have been abducted for the purpose of 
bringing them within a court's jurisdiction is based on two U.S. 
Supreme Court cases Ker v. Illinois, 119 U.S. 436 (1886) and 
Frisbie v. Collins, 342 U.S. 519 (1952).                          

(10) See Reid v. Covert, 354 U.S. 1, 5-6 (1957), in which 
Justice Black writes for the majority:  ``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.''  See also, note, 
``The Extraterritorial Application of the Constitution - 
Unalienable Rights?'' 72 Va. L. Rev. 649 (1986); and Ragosta, 
``Aliens Abroad:  Principles for the Application of 
Constitutional Limitations to Federal Action,'' 17 N.Y.U.J. 
Intern. L. & P. 287 (1985).                                       

(11) See, e.g., United States v. Bowman, 67 L.Ed. 2d 145, 151 
(1922) in which the Court finds authority to criminalize certain 
extraterritorial acts ``because of the right of the government to 
defend itself against obstruction or fraud, wherever 
perpetrated.''                                                    

(12) The source of recognition under international law for 
criminal statutes that affect the world community has 
traditionally been the following five principles of 
jurisdiction: 1) Location of the offense; 2) nationality of the 
victim; 3) nationality of the offender; 4) protection of 
governmental functions; and 5) universally repugnant crimes, such 
as piracy. For discussion, see Empson, ``The Application of 
Criminal Law to Acts Committed Outside the Jurisdiction,'' 6 
American Criminal Law Quarterly 32 (1967); and Petersen, ``The 
Extraterritorial Effect of Federal Criminal Statutes:  Offenses 
Directed at Members of Congress,'' 6 Hastings International and 
Comparative Law Review 773 (1983).                                

(13) 18 U.S.C. 7 (Special maritime and territorial 
jurisdiction of the United States).                               

(14) 18 U.S.C. 2331 (Terrorist acts abroad against U.S. 
nationals).
                                                       
(15) See, e.g., United States v. Layton, 509 F.Supp. 212, 220 
(N.D. Cal. 1981), in which the defendant was charged with the 
homicide of Congressman Leo J. Ryan in Guyana on 11/18/78.  The 
court denied Layton's motion for dismissal for lack of subject 
matter jurisdiction, stating that the Federal statute (18 U.S.C. 
351) protecting U.S. officials has extraterritorial reach ``at 
least when the attack is by a U.S. citizen and when the 
Congressman is acting in his or her official capacity.''          

(16) See, e.g., 1 Restatement (Third) of the Foreign Relations 
Law of the United States 206.                                     

(17) See Lujan, supra note 9, at 66-8 for a discussion of the 
ability of police officers to engage in official conduct in 
another country without the permission or in defiance of 
representatives of that country.                                  

(18) See, e.g., United States v. Rosenthal, 793 F.2d 1214, 
1230-31 (11th Cir. 1986), cert. denied, 107 S.Ct. 1377 (1987).   

(19) See, e.g., United States v. Paternina-Vergara, 749 F.2d 
993, 998 (2d Cir. 1984), cert. denied, 469 U.S. 1217 (1985); 
United States v. Hawkins, 661 F.2d 436, 455-6 (5th Cir. 1981); 
United States v. Marzano, 537 F.2d 257, 269-71 (7th Cir. 1976), 
cert. denied, 429 U.S. 1038 (1977).                               

(20) United States v. Morrow, 537 F.2d 120 (5th Cir. 1976).     

(21) Supra note 4.                                              

(22) See United States v. Hensel, 699 F.2d 18 (1st Cir. 1983), 
in which the appellate court upheld a lower court finding that 
the exclusionary rule applied in a case where an American DEA 
agent urged Canadian authorities to seize and search a ship 
entering Canadian waters because the foreign officers acted as 
agents for their American counterparts.                           

(23) Supra note 1.                                              

(24) Id. at 1260.                                               

(25) Id. at 1259-60.                                            

(26) Supra note 18, at 1231.                                    

(27) Id. at 1223-26.                                            

(28) Id.                                                        

(29) Supra note 1.                                              

(30) United States v. Peterson, 812 F.2d 486 (9th Cir. 1987).   

(31) Katz v. United States, 389 U.S. 347 (1967).                

(32) See, e.g., Mincey v. Arizona, 437 U.S. 385 (1978).         

(33) 4 U.S.C. 89(a).                                              

(34) 19 U.S.C. 1581(a).                                           

(35) Supra note 30.                                               

(36) For discussion of good faith exception, see United States 
v. Leon, 468 U.S. 897 (1989), and Fiatal, ``Judicial Preference 
for the Search Warrant:  The Good Faith Warrant Exception to the 
Exclusionary Rule,'' FBI Law Enforcement Bulletin, July 1986, pp. 
21-29.
                                                            
(37) See, e.g., Jordan, 24 C.M.A. 156, 51 C.M.R. 375 (1976); 
Peterson, supra note 30.                                          

(38) 856 F.2d 1214 (9th Cir. 1988), cert. granted, 109 S.Ct. 
1741 (1989).                                                      



ABOUT THE ARTICLE:

     Law enforcement officers of other than Federal jurisdiction 
who are interested in any legal issue discussed in this article 
should consult their legal adviser.  Some police procedures ruled 
permissible under Federal constitutional law are of questionable 
legality under State law or are not permitted at all.