The government at worst violated a statute in gathering information used to get access to defendant’s computer, and the court finds that a statutory violation is not sufficient for suppression. Also, a motion to reconsider denial of a motion to suppress is generally permitted as “justice requires” and in the discretion of the trial court because the order necessarily is interlocutory. United States v. Hassanshahi, 2015 U.S. Dist. LEXIS 156287 (D.D.C. Nov. 19, 2015), prior opinion 75 F. Supp. 3d 101 (D.D.C. 2014):
Defendant Shantia Hassanshahi is charged with one count of conspiracy to violate the International Economic Emergency Powers Act, 50 U.S.C. § 1705, and the Iranian Transactions and Sanctions Regulations, 31 C.F.R. §§ 560.203-204, commonly referred to as the United States’ trade embargo against Iran.
In December 2014, the Court denied a motion by Mr. Hassanshahi to suppress certain evidence discovered during a forensic examination of his laptop computer, holding, in relevant part, that discovery of the evidence was sufficiently attenuated from a search of a mysterious telephony database that the Court assumed, for purposes of its analysis and at the Government’s suggestion, was unconstitutional. See United States v. Hassanshahi, 75 F. Supp. 3d 101 (D.D.C. 2014). Following the Court’s decision, Mr. Hassanshahi has argued, both orally before the Court and in rounds of supplemental briefing in response to orders of the Court, that suppression of the evidence is warranted in light of both additional information concerning the database that the Government provided after the Court’s ruling and the Second Circuit’s recent decision concerning a different government database in ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015).
The Court construes these arguments as a motion for reconsideration of the Court’s denial of Mr. Hassanshahi’s motion to suppress. For the reasons that follow, and upon consideration of the briefs submitted by both Mr. Hassanshahi and the Government, the Court denies that motion and affirms its ruling on the motion to suppress.
. . .
The Court disagrees with Mr. Hassanshahi’s position that this is a case of first impression not governed by any precedent and regards the extensive precedent concerning the application of the exclusionary rule as instructive. Guided by the Supreme Court’s repeated warnings against the expansion of the exclusionary rule even with respect to constitutional violations and the deep aversion of other Circuits to suppress evidence for statutory violations absent a clear indication of congressional intent, the Court declines to create a suppression remedy for evidence collected in violation of Section 876. The Court is not persuaded by Mr. Hassanshahi’s argument that the claimed systematic and intentional statutory violations, together with their Fourth Amendment implications, require suppression. The Court finds that it is unnecessary to expand the exclusionary rule to address these issues and that the Fourth Amendment’s well-established exclusionary rule is more than adequate to do so. Cf. Sanchez-Llamas, 548 U.S. at 350 (“[W]e think it unnecessary to apply the exclusionary rule where other constitutional and statutory protections—many of them already enforced by the exclusionary rule—safeguard the same interests Sanchez-Llamas claims are advanced by Article 36.”). Clapper, a decision in a civil case that concerned a different statute and made no mention of the exclusionary rule, does not alter the Court’s conclusion.
The Court also notes that even if it were proper to create a suppression remedy for evidence collected through a “systematic and intentional” statutory violation with Fourth Amendment implications, it would be inappropriate to effect such an unprecedented expansion in this case. First, Mr. Hassanshahi seeks to challenge administrative subpoenas directed at third parties. As discussed, supra, it is far from clear that he even has the ability to do so, let alone the ability to seek suppression of evidence obtained through a subsequent, separate and constitutional search as a result of those subpoenas. Cf. Moffett, 84 F.3d 1294 (rejecting the defendant’s attempt to suppress evidence that he claimed was collected from third parties in violation of Section 876, stating that the court’s “supervisory power does not authorize us to order suppression of ‘otherwise admissible evidence on the ground that it was seized unlawfully from a third party not before the court.'”) (quoting United States v. Payner, 447 U.S. 727, 735, 100 S. Ct. 2439, 65 L. Ed. 2d 468 (1980)). Moreover, the Fourth Amendment implications of the DEA database are also unclear. The Second Circuit observed in Clapper that the question of whether individuals have any privacy rights in records held by third parties that contain metadata relating to their telecommunications “touches an issue on which the Supreme Court’s jurisprudence is in some turmoil.” Clapper, 785 F.3d at 821-25. The “turmoil,” however, is somewhat theoretical. As the Foreign Intelligence Surveillance Court explained following Clapper, the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979), which held that individuals have no legitimate expectation of privacy in information that they voluntarily convey to a telecommunications provider when placing a telephone call, remains controlling precedent. See In re Application of the F.B.I., Misc. No. 15-01, 2015 WL 5637562 at **9-13 (FISA Ct. June 29, 2015). The Second Circuit declined to reach “these weighty constitutional issues” in Clapper, 785 F.3d at 824, and it would be even less appropriate for the Court to do so here, given that the Court has already assumed the unconstitutionality of the DEA database for purposes of its constitutional analysis and that it is unclear how the suppression analysis for a statutory violation would be any different, as even Mr. Hassanshahi appears to concede at one point. See Def.’s Apr. 13 Brief at 9 (arguing that “the Court need not reach the novel issue” in light of the assumption of unconstitutionality).
In conclusion, the Court finds that even if Mr. Hassanshahi had the ability to challenge the statutory validity of the DEA database and could demonstrate that evidence was collected in violation of Section 876—issues the Court does not decide here —suppression of the evidence would not be an available remedy. Therefore, Mr. Hassanshahi is left with his constitutional challenge to the database as his only avenue for suppressing the evidence recovered from his laptop computer.
