In the Fort Dix jihadist case, the use of FISA-derived evidence in a domestic case was not a violation of the Fourth Amendment. The Patriot Act amendments did not make the statute unconstitutional. But, even if it did, use of the evidence was not barred by the exclusionary rule under Krull. United States v. Duka, 671 F.3d 329 (3d Cir. 2011):
Defendants maintain that we must reverse their convictions because the government used unlawful FISA-derived evidence throughout the trial; the FISA-derived evidence resulted in their convictions; and, without that evidence, the government cannot prove the charges against them.
Aligning with all of the other courts of appeals that have considered this issue, however, we reject defendants’ constitutional challenge. We conclude that FISA’s amended “significant purpose” requirement is reasonable under the Fourth Amendment, and, therefore, that the government’s use of FISA-derived evidence in its case against defendants was lawful. We also observe that, even if we were to hold the statute unconstitutional, defendants still would not be entitled to have their convictions reversed. Defendants’ argument for reversal depends on the assumption that, if FISA is declared unconstitutional, then the exclusionary rule would preclude the use of FISA-derived evidence in their case. Not so. Where, as here, the challenged search was conducted in objectively reasonable reliance on a duly authorized statute, the Supreme Court has held that the exclusionary rule does not preclude the admission of the fruits of the search.
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e. The “Significant Purpose” Test Is Reasonable
We agree with our sister courts of appeals and the Foreign Intelligence Surveillance Court of Review that amended FISA’s “significant purpose” standard is reasonable under the Fourth Amendment, for three reasons.
First, the “significant purpose” standard reflects a balance struck by Congress between “the legitimate need of Government for intelligence information” and “the protected rights of our citizens.” United States, 407 U.S. at 323. The legislative history reveals that “Congress was keenly aware that [the Patriot Act’s amendment to what is now § 1804(a)(6)(B)] relaxed a requirement that the government show that its primary purpose was other than criminal prosecution.” Sealed Case, 310 F.3d at 732. By adopting the amendment, Congress signaled its determination that the new standard was needed to promote coordination between intelligence and law enforcement officials in combating terrorism, acknowledging that, as a practical matter, these functions inevitably overlap. While Congress’s conclusion in that regard of course is not dispositive, nonetheless, the Supreme Court in Keith suggested that “congressional judgment” has an important role to play in weighing government interests and determining reasonable “protective standards” related to intelligence. United States, 407 U.S. at 322-23. We therefore view Congress’s actions in this area with some additional measure of deference.
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Finally, and importantly, FISA contains significant procedural safeguards against abuse. As amended, FISA requires a senior government official (typically the Director of the FBI, see Sealed Case, 310 F.3d at 736) to certify that “obtaining foreign intelligence information … is a bona fide purpose of the surveillance” and the Attorney General (or a senior-level designee, see 50 U.S.C. § 1801(g)) to approve each FISA application. Abu-Jihaad, 630 F.3d at 127. That senior Justice Department officials must approve every FISA application gives us additional comfort that this process does not provide an end run around the more stringent Fourth Amendment standards that apply in ordinary criminal cases.
The statute also provides for appropriate, albeit limited, judicial review. An Article III judge sitting on the FISA court reviews every application, makes particularized findings concerning the application’s compliance with the statute’s requirements, and issues an order specifying the parameters of the government’s surveillance authority. See 50 U.S.C. § 1805(a), (c). The FISA judge may demand “further inquiry into the certifying officer’s purpose — or perhaps even the Attorney General’s or Deputy Attorney General’s reasons for approval” of the application, and should deny the application if he or she “conclude[s] that the government’s sole objective [is] merely to gain evidence of past criminal conduct — even foreign intelligence crimes — to punish the agent rather than halt ongoing espionage or terrorist activity.” Sealed Case, 310 F.3d at 735-36. These safeguards confirm that FISA’s “significant purpose” standard is reasonable under the Fourth Amendment.
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Here, we have concluded that searches in the form of surveillance conducted pursuant to FISA’s “significant purpose” requirement are reasonable under the Fourth Amendment. Accordingly, we join other courts of appeals in holding that evidence derived from duly authorized FISA surveillance is admissible in a criminal case. See Wen, 477 F.3d at 898 (holding that if, in the course of conducting FISA-authorized surveillance, “agents discover evidence of a domestic crime, they may use it to prosecute for that offense,” even if the agents knew or “may have known” when they applied for the FISA order “that they were likely to hear evidence of domestic crime”); see also Duggan, 743 F.2d at 78 (noting that “otherwise valid FISA surveillance is not tainted simply because the government can anticipate that the fruits of such surveillance may later be used, as allowed by [50 U.S.C.] § 1806(b), as evidence in a criminal trial” and holding that “the fact that domestic law enforcement concerns may also have been implicated” in government’s decision to seek a FISA order “did not eliminate the government’s ability to obtain a valid FISA order”).
2. Defendants Are Not Entitled to Relief Because the FISA Searches Were Conducted in Reasonable Reliance on a Statute
We are confident that FISA’s “significant purpose” test satisfies the Fourth Amendment. But even if we were not, we still would not overturn defendant’ convictions based on the government’s use of FISA-derived evidence at trial. Supreme Court precedent makes abundantly clear that, even if we were to conclude that amended FISA is unconstitutional, evidence derived from it would nevertheless have been admissible in the government’s case.
Defendant’ argument for reversal depends in part on the theory that, if FISA violates the Fourth Amendment, FISA-derived evidence automatically must have been excluded. See, e.g., Appellant’ Joint Opening Br. 53 (“By holding FISA as amended by the Patriot Act unconstitutional the evidence used will be illegally obtained and prohibited to be used in trial against the Appellants.”). But that is not necessarily so. See United States v. Tracey, 597 F.3d 140, 151 (3d Cir. 2010) (“[A] determination that the Fourth Amendment has been violated does not necessarily require application of the exclusionary rule.”). The exclusionary rule precludes the admission of evidence tainted by a Fourth Amendment violation “only in those unusual cases in which exclusion will further the purposes of the … rule.” United States v. Leon, 468 U.S. 897, 918, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). Because the rule “is designed to deter police misconduct,” id. at 916, it applies only where it will “alter the behavior of individual law enforcement officers or the policies of their departments,” id. at 918.
The Supreme Court has ruled categorically that “suppress[ing] evidence obtained by an officer acting in objectively reasonable reliance on a statute” would not further the purposes of the exclusionary rule, even if that statute is later declared unconstitutional. Illinois v. Krull, 480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987). Therefore, even a defendant who can establish that evidence against him or her was procured under a statute that violates the Fourth Amendment is not entitled to have such evidence excluded from his or her criminal trial unless he or she can establish that the officer’s reliance on the statute was not objectively reasonable. Cf. Krull, 480 U.S. at 368 (O’Connor, J., dissenting) (observing that, “under [the Court’s] decision today, no effective remedy is to be provided in the very case in which the statute at issue was held unconstitutional”).
The FISA amendment defendants challenge was duly enacted by Congress through the Patriot Act, and defendants have not argued on appeal that government officials did not reasonably rely on amended FISA in seeking the surveillance orders at issue in this case. Thus, under Krull, the exclusionary rule plainly does not apply, and, even if we agreed with defendants that the “significant purpose” test is unconstitutional, we would be powerless to overturn their convictions on that ground.
