D.Colo.: Defs’ calls captured on FISA application were reasonable

Defendants were charged with providing material support to a terrorist organization, and their conversations were captured in a FISA application. This motion to suppress was based on disclosure two years into the case of other acquisitions of information about him. After an in camera review of the materials, the court finds the FISA capture of their calls reasonable. United States v. Muhtorov, 2015 U.S. Dist. LEXIS 184312 (D.Colo. Nov. 19, 2015)*:

Jamshid Muhtorov, together with his co-defendant Bakhtiyor Jumaev, is charged with providing material support to a designated terrorist organization, and attempt and conspiracy to do the same. His arrest on a one-way flight to Turkey was originally believed to be solely the result of warrantless surveillance and physical searches authorized under Title I and III of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1801-1811, 1821-1829. Mr. Muhtorov moved to suppress that FISA-acquired evidence earlier in these proceedings, which motion I denied based on a determination, after an extensive in camera review of the classified materials submitted to the FISA Court, that there was probable cause to believe the target was an agent as described and therefore lawfully subject to those searches.

The matter is before me on a renewed Motion to Suppress, precipitated by the government’s supplemental disclosure, nearly two years after Mr. Muhtorov’s arrest, that some of the FISA-acquired evidence it intends to use against him in this case was derived from surveillance conducted under § 702 of the FISA Amendments Act of 2008 (“FAA”). Section 702, codified at 50 U.S.C. § 1881a, establishes procedures for the warrantless surveillance of targeted persons overseas “to acquire foreign intelligence information.” Because communications to and from a target under § 702 are swept up without reference to who is sending them and without any determination of probable cause, the FAA results in the “incidental” interception, collection, and retention of communications from unconsenting U.S. persons including, in this case, Mr. Muhtorov.

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As has already been disclosed, the FISA application at issue in this case was based in part on FAA surveillance and collection. Mr. Muhtorov contends the “incidental” acquisition of his communications and their subsequent retention, querying, and use in criminal proceedings brought against him, was unreasonable under the Fourth Amendment. I have already reviewed the FISA Court’s Title I and Title III approvals and concluded the searches and surveillance conducted under those approvals was lawfully authorized and conducted. I have since performed an exhaustive in camera and ex parte review of all relevant additional classified materials provided to me by the government, including supplemental classified materials prepared at my request. I conclude on the record before me that a proper and supported application was filed, and that the targeting and minimization procedures forwarded were tailored to the government’s legitimate foreign intelligence purposes and took into account the privacy interests of individuals whose communications would be incidently acquired. Mr. Muhtorov’s Motion to Suppress Evidence Obtained or Derived under § 702 (Doc. 520) is DENIED. Because I find all legal criteria were met by the government to establish that the searches and surveillance at issue were lawfully authorized and conducted, there is no need to consider the “good faith” alternative basis for denying the Motion to Suppress.