D.D.C.: Even if NSA captured def’s calls, search of laptop at LAX was attenuated and with RS

Defendant was charged with violating the trade embargo with Iran. The government refused to provide details of how it accessed telephone call information, the defendant asserting that the NSA must have captured his call information. Assuming, then, that the search that acquired the telephone information was unconstitutional, the search of his laptop at LAX was attenuated and not in bad faith. United States v. Hassanshahi, 2014 U.S. Dist. LEXIS 166156 (D.D.C. December 1, 2014):

2. But-For Causation

Next, the Court finds that the existence of but-for causation between the law enforcement database search and the forensic laptop examination is quite plain. See Brodie, 742 F.3d at 1062-63 (explaining that “but-for” causation is a “necessary condition” in the fruit of the poisonous tree analysis); see also Owens v. Republic of Sudan, 412 F. Supp. 2d 99, 111 (D.D.C. 2006) (but-for causation asks: “were the act removed from the sequence of events leading up to the injury, would the injury have occurred as it did?”). Here, the law enforcement database search revealed the 818 number, which led HSI to subpoena Google, through which HSI learned that the 818 number was registered to Hassanshahi. HSI then investigated Hassanshahi through TECS and by issuing a second subpoena to Google, which together led HSI to place an alert in TECS requiring CBP officers to refer Hassanshahi for secondary screening the next time he returned to the U.S. Finally, when Hassanshahi arrived at LAX, CBP officers followed the TECS instruction by referring Hassanshahi to secondary screening, and Hassanshahi’s laptop then was seized and sent to Virginia for the forensic examination. As such, the Court easily concludes that “but for” the initial law enforcement database search, the forensic laptop examination would not have occurred.

3. Attenuation And The Exclusionary Rule

“[N]ot … all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.” Wong Sun, 371 U.S. at 487-88. Instead, exclusion is not required when “the government proves … that the evidence would have been discovered inevitably, was discovered through independent means, or that its discovery was so attenuated from the illegal search or seizure that the taint of the unlawful government conduct was dissipated.” United States v. Holmes, 505 F.3d 1288, 1293, 378 U.S. App. D.C. 277 (D.C. Cir. 2007) (citations omitted). Here, the Government argues that attenuation existed, and the Supreme Court has identified three factors for courts to consider when determining attenuation: (1) the amount of time between the illegality and the discovery of the evidence, i.e., temporal proximity; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the illegal conduct. See Brodie, 742 F.3d at 1063 (citing Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975)). The Government bears the burden of proving attenuation by a preponderance of the evidence. See Holmes, 505 F.3d at 1293; United States v. Wood, 981 F.2d 536, 541, 299 U.S. App. D.C. 47 (D.C. Cir. 1992).

. . .

The Court next considers whether there were intervening circumstances sufficient to break the causal chain and lessen the taint of the initial illegality. See Brodie, 742 F.3d at 1062-63. Often, the intervening circumstance that most strongly dissipates the evidentiary taint is a “voluntary act by the defendant.” Green, 111 F.3d at 522; see also United States v. Jackson, No. A04-141 CR, 2005 WL 1115466, at *17 (D. Alaska May 10, 2005) (“A defendant may himself commit an intervening independent act that will be sufficient in relation to other events for attenuation purposes.” (citing United States v. Sprinkle, 106 F.3d 613, 619 (4th Cir. 1997)). In opposition to Hassanshahi’s motion to suppress, the Government offers two intervening events: HSI’s investigative steps following discovery of the 818 number, which itself was just a minor lead in the case; and Hassanshahi’s voluntary appearance at LAX after arriving on an international flight. See Gov’t’s Mem. Opp’n Mot. Suppress 13.

. . .

c. Purpose And Flagrancy Of The Illegal Conduct

Lastly, the Court considers the “purpose” and “flagrancy” of the illegal law enforcement conduct. …

. . .

The Court is more certain, though, that HSI did not search the law enforcement database for the purpose of “extracting evidence against the defendant.” Washington, 387 F.3d at 1075 (citation omitted). When it executed the database search using Sheikhi’s business telephone number, HSI had no inclination that Hassanshahi was involved with Sheikhi or his company; indeed, the agency used the law enforcement database to cast a wide net for potential U.S.-based suspects for the very reason that it had no leads into U.S. suspects at the time. Thus, although that net eventually ensnared Hassanshahi, the lack of initial targeting compels the Court to conclude that HSI did not act purposefully or in bad faith to violate Hassanshahi’s constitutional rights.