New American: Mich. State Agents Raid Pig Farms to Kill So-called “Invasive Species” by Raven Clabough:

Michigan’s Department of Natural Resources (MDNR) has reportedly violated the Fourth Amendment by conducting two armed raids on pig farms in the state’s Kalkaska and Cheboygan Counties. The incursions, which included six vehicles and 10 armed men, were apparently for the purpose of shooting all the farmers’ pigs under the new “Invasive Species Order” (ISO) that has much of declared traditional livestock to be an invasive species.

In 2010, the Michigan DNR outlawed feral swine — pigs classified as non-native, invasive, and said to be carriers of disease and overall harmful to the environment. Though groups fought adamantly to overturn the ban, it went into effect April 1.

Exigency to stop a pig pandemic?

News and Insight: Judge allows expert witness in ‘stop and frisk’ case against NYPD:

NEW YORK, April 16 (Reuters) – The New York Police Department has lost a bid to prevent an expert witness from testifying at a trial about the controversial crime-fighting tactic known as “stop and frisk.”

Manhattan federal court Judge Shira Scheindlin on Monday said Columbia University professor Jeffrey Fagan, a criminology expert, would be allowed to testify about his “stop and frisk” research showing that police were more likely to stop blacks and Hispanics than whites.

“Even if an individual is found to have validly consented, he can still challenge a search on the basis that it exceeded the scope of his consent. See United States v. Canipe, 569 F.3d 597, 604 (6th Cir. 2009).” Quoting United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004), also on consent in general: “‘Fundamentally, Carter asks us to hold as a matter of law that consent must be given verbally, perhaps by some ‘magic words’ formula. This we decline to do. Although a man’s home is his castle, trumpets need not herald an invitation. The police may be kept out or invited in as informally as any other guest. Carter invited the police in and cannot undo his act in court.’ Id. at 589.” Defendant was actually showing the police he wanted to cooperate, so the consent was voluntary. Since the object of the search was a stolen firearm, the search could be anywhere the gun might be found. United States v. Murphy, 2012 U.S. Dist. LEXIS 52246 (E.D. Tenn. March 26, 2012), R&R 2012 U.S. Dist. LEXIS 52245 (E.D. Tenn. January 10, 2012).*

The officer applying for the telephonic search warrant was not the officer with the most information, but that did not make his hearsay application void. The Franks issue fails: “None of the claimed omissions, if included in the affidavit, would have negated the probable cause determination.” Some of the claimed omissions were actually incriminating. United States v. Salisbury, 2012 U.S. Dist. LEXIS 51998 (D. Nev. February 3, 2012).*

Defendant who had been staying in a mobile home with the owner for six months had a reasonable expectation of privacy in it. The officer’s observation of defendant inside doing something through the window from the driveway was not an illegal search. State v. Lowe, 2012 Iowa Sup. LEXIS 8 (January 20, 2012).*

A church parking lot was often littered with beer bottles and sometimes used condoms, so the pastor would call the police to roust those who would be parking there at night. He called the police on a car found there. The officer walked up to the vehicle and could smell marijuana smoke, and that was reasonable suspicion or more. Webb v. State, 313 Ga. App. 620, 722 S.E.2d 360 (2012).*

The drug dog’s positive alert on money, despite false alerts on money, still was probable cause to believe there were drugs in the vehicle. United States v. Giuffrida, 2011 U.S. Dist. LEXIS 151875 (D. Me. January 19, 2012).*

“[T]he existence of an outstanding arrest warrant is ‘independent authority’ for an ‘otherwise unjustified stop of an individual * * * and the resulting intrusion upon the individual’s liberty.’” State v. Samuels, 2011 Ohio 2567, 2011 Ohio App. LEXIS 2161 (2d Dist. May 27, 2011).*

The trial court credited the officer’s testimony defendant was speeding, and that supported the stop. State v. Fisher, 2011 Ohio 2488, 2011 Ohio App. LEXIS 2120 (10th Dist. May 24, 2011).*

Defendant’s Fourth Amendment claim was decided in his direct appeal, so he could not raise it in a post-conviction petition. State v. Roberts, 2011 Ohio 2534, 2011 Ohio App. LEXIS 2192 (8th Dist. May 26, 2011).*

Defendant overturned his tractor in a ditch and was hospitalized. At the hospital, he consented to a blood draw. It could have been taken without a warrant, too, because of exigency. State v. Capehart, 2011 Ohio 2602, 2011 Ohio App. LEXIS 2228 (12th Dist. May 31, 2011).*

Officers found defendant’s conduct suspicious, so they stopped him with guns drawn for an “interview stop.” He fled. His flight alone was not reasonable suspicion, and there wasn’t reasonable suspicion otherwise, so the motion to suppress should have been granted. State v. Shoulders, 2011 Ohio 2659, 196 Ohio App. 3d 178, 962 N.E.2d 847 (8th Dist. 2011).*

Drug dog already at the scene does not unconstitutionally extend a traffic stop. “Deputy Smythe added about two minutes to this stop when he brought Marko from his car for the walkaround. That conduct didn’t convert the stop into one of unconstitutional duration.” United States v. Richardson, 700 F. Supp. 2d 1040 (N.D. Ind. 2010).*

Defendant could not show standing in a laptop computer seized from a codefendant’s car because she showed no interest in it. The fact it may have emails from her did not create standing. United States v. Tragas, 2010 U.S. Dist. LEXIS 25884 (E.D. Mich. March 16, 2010).*

Highway patrol officer’s slowing to 60-65 on I-10 in Arizona caused other cars to slow. That did not create a traffic offense by the other drivers. His stop of defendant for going too slow was pretextual and without probable cause. United States v. Nieblas-Cordova, 2008 U.S. Dist. LEXIS 112480 (D. Ariz. September 5, 2008).*

A search warrant for a house does not have to include the name of the owners or occupants; a particular description is required with probable cause to believe evidence will be found, and the officers had it here. State v. Lenard, 2012 Ohio 1636, 2012 Ohio App. LEXIS 1433 (8th Dist. April 12, 2012).

Defense counsel was not ineffective for not investigating whether the window tint of his car was legal or not when that was the basis for a stop in a bank robbery case. He didn’t even claim that his windows were overtinted. United States v. Coleman, 2012 U.S. Dist. LEXIS 51481 (E.D. Pa. April 11, 2012)*:

Petitioner cannot show the existence of a colorable Fourth Amendment claim. Notably, Petitioner does not claim that his windows were not darkly tinted. He does not argue that Hartman should have been able to see inside the vehicle. Although he faults counsel for failing to investigate the level of tint, he does not claim that the windows were not in violation of Pennsylvania’s Motor Vehicle Code. [¶] It is undisputed that the windows on Petitioner’s vehicle were tinted. It is also undisputed that Trooper Hartman detained the vehicle because of the tinted windows. The suggestion that Counsel was ineffective because he did not investigate the extent of the tint is without merit. Sanders, 165 F.2d at 253. Petitioner’s sixth claim lacks merit and is denied.

The government argued exigency justified the initial entry into the hotel room, and the later issued search warrant was valid. The court finds that it does not even need to decide exigency because the warrant was clearly valid. Also, several defendants had no standing in the hotel room. United States v. Johnson, 2012 U.S. Dist. LEXIS 51482 (E.D. Mich. April 12, 2012):

The Government argues that exigent circumstances—specifically, concern that individuals inside the hotel room would destroy evidence of criminality—justified the fast and warrantless entry into the room. To launch an inquiry designed to definitively determine the constitutionality of such an entry is to invite a journey into discrete factual findings and a weighing and balancing of societal and law enforcement interests. In some cases that journey will be mandatory, or at least advisable. Here, it is neither. The court may avoid determining whether the initial entry into the hotel room was justified by exigent circumstances and simply assume that it was not, because suppression of the evidence discovered during the execution of the search warrant is not required where the warrant was valid and supported by probable cause.

Defendant had no standing to contest seizure of his girlfriend’s cell phone records. State v. Young, 2012 Ohio 1669, 2012 Ohio App. LEXIS 1456 (6th Dist. April 13, 2012).*

The USMJ concluded that the computer search was excessive, but the Sixth Circuit spoke in a case on point right after that, so the R&R is adopted as modified. United States v. Labuda, 2012 U.S. Dist. LEXIS 51084 (W.D. Tenn. April 11, 2012)*:

The Government objects to the Magistrate Judge’s conclusion that Campbell’s search exceeded the boundaries of the Search Warrant. (Gov.’s Objection 4.) The Government argues that United States v. Richards, 659 F.3d 527 (6th Cir. 2011), which was decided two weeks after the Magistrate Judge’s Report, established clearer parameters for electronic database and file searches. (Gov.’s Objections 2.) The Government contends that “the Richards court determined that seizure of images of child pornography other than those specifically sought in the warrant was not a violation of the Fourth Amendment, even though the server was set up with neatly compartmentalized segments and files.” (Id.)

A 16 year old runaway was riding with defendant and she told the police that she had oral sex with defendant which he recorded on his telephone. A search warrant for the phone was obtained, but the officer exceeded the scope of the warrant by looking for picture files and not just the video. Significantly, the court also held that the government’s preferred justification for obtaining 404(b) evidence was rejected under the terms of this warrant. United States v. Labuda, 2011 U.S. Dist. LEXIS 154700 (W.D. Tenn. October 13, 2011):

Finally, while the United States argues that the scope may have been justified to locate material “evidence of intent, plan, motive or common scheme” in accordance with Rule 404(b) of the Federal Rules of Evidence, the fact remains that the scope of the authority to search Defendant’s cellular phone was based upon the authority granted in the Search Warrant. The Affidavit recited the victim’s account that the alleged sexual assault occurred during a brief time period and did not indicate that there was any lengthy span of time during which investigators believed that Defendant corresponded, schemed, or planned the sexual assault. It was the substance of the Affidavit that the issuing judge relied upon to grant the authority to execute the search. Thus, the Court finds that any attempt of investigators to search for evidence not reasonably related to the time frame provided by the victim, no matter whether it may or may not be admissible under the Federal Rules of Evidence, was beyond the scope of the Search Warrant.

Ultimately, although Detective Campbell did prudently narrow his search in ways that were not required by the warrant, specifically by not viewing any files other than videos, that does not negate the fact that he also improperly broadened his search to include dates and times that the record reflects he had no reasonable basis to believe that Defendant may have been engaged in or recording sexual offenses relating to the sixteen-year-old victim about whom the Search Warrant was issued. Accordingly, the Court finds that Detective Campbell exceeded the scope of the Search Warrant in his seizure of evidence that had no temporal proximity to the sexual assault of the sixteen-year-old victim.

Positive alerts by “sophisticated” dogs that can discriminate currency from drugs have more value that “unsophisticated” dogs. United States v. Approximately $77,000.00 in United States Currency, 2012 U.S. Dist. LEXIS 50404 (E.D. Cal. April 10, 2012):

The Ninth Circuit has given probative weight to positive alerts by “sophisticated” dogs – dogs that react only to ephemeral by-product of narcotics and not to commonly circulated currency – to show that currency is substantially connected to illegal drug activity. See United States v. $42,500 in U.S. Currency, 283 F.3d [977,] at 982; United States v. $22,474 in U.S. Currency, 246 F.3d at 1216.

More specifically, the Ninth Circuit has explained its jurisprudence on unsophisticated versus sophisticated dog alerts to currency:

In addition, Sutter alerted to the money found in Hysell’s luggage. Sutter’s handler submitted a declaration stating that Sutter does not alert to cocaine residue found on currency in general circulation. Rather, Sutter alerts to a by-product of cocaine which does not linger on currency. We recently held that a sophisticated dog alert, where the dog reacts only to ephemeral by-products of narcotics and not to commonly circulated currency, is an important factor in determining probable cause. See United States v. $22,474 in U.S. Currency, 246 F.3d 1212, 1216 (9th Cir. 2001) (explaining that because of more sophisticated training a narcotics canine would not alert to money unless it had recently been in the proximity of cocaine). The evidence of Sutter’s sophisticated training is undisputed, and therefore, Sutter’s alert is relevant in determining probable cause. …

United States v. $42,500 in U.S. Currency, 283 F.3d at 982-983. Here, Claimant relies on the two cases relied upon by claimant Hysell in the aforementioned excerpt. As explained above however, where a canine is trained not to alert to currency in general circulation, but instead the canine alerts only to the by product of illegal narcotics, that evidence is to be afforded greater weight in a determination of this kind.

It thus appears that Cody’s training lends itself to a finding that Cody is in fact a “sophisticated” dog. Therefore, Cody’s alert to the presence of illegal drugs on the currency found in Claimant’s vehicle is strong evidence going to the determination of whether the Government had met its burden.

A forced blood draw in a DUI case was barred by statute. The state’s reliance on State v. Krause, 484 N.W.2d 347 (Wis. Ct. App. 1992) (permitting blood draw from hogtied suspect) and Schmerber is inapposite. People v. Farris, 2012 Ill. App. LEXIS 265, 2012 IL App (3d) 100199 (April 10, 2012):

[**P21] In addition to Krause and Schmerber, the State cites to several cases which stand for the proposition that forced blood draws are objectively reasonable and can pass constitutional muster under the fourth amendment. See State v. Clary, 2 P.3d 1255, 1256 (Ariz. App. Ct. 2000); Carleton v. Superior Court, 216 Cal. Rptr. 890 (Cal. Ct. App. 1985); State v. Worthington, 65 P.3d 211 (Idaho Ct. App. 2002); State v. Lanier, 452 N.W.2d 144 (S.D. 1990). However, we find each of these cases to be irrelevant to the question before us, which is whether the trial court correctly held that a forced blood draw was not permitted under the Vehicle Code. The trial court, relying upon our supreme court’s holding in Jones, held that force is not permitted under the statute. Specifically, the trial court relied upon the Jones court’s “clarification” that it was “not suggest[ing] that a DUI arrestee’s lack of a right to refuse chemical testing under section 11-501.2(c)(2) permits law enforcement officers to use physical force in obtaining blood, urine, and breath samples.” Jones, 214 Ill. 2d at 201.

EFF: Radical Library/Publisher and Prison Support Group Settle Lawsuit with FBI and UC-Berkeley Police over Improper Raid
:

Berkeley, CA – Two radical groups have settled their lawsuits over an armed, over-broad police raid after the law enforcement agencies agreed to delete improperly seized computer data and pay $100,000 in damages and attorney’s fees. Moreover, the University of California-Berkeley Police Department (UCBPD) acknowledged that at the time of the raid one of the groups qualified for federal protections designed to protect journalists, publishers, and other distributors of information from police searches, despite the police’s persistent denial of that status throughout the lawsuit.

Law.com: Can the Government Force the Surrender of Encryption Keys? by Joshua A. Engel:

Encrypted data is accessible only through the use of a password or encryption key, and this encryption raises several questions. What happens when the government wants to read encrypted documents? Can the government make you turn over your password or encryption key? Does the right to remain silent or the privilege against self-incrimination provide any protection? Some believe that the answer to this question may be one of the most important technology-related legal questions of the next decade.

In a number of cases starting to wind through state and federal courts, the government has sought to compel suspects to provide passwords and encryption keys despite claims of Fifth Amendment privilege by witnesses and suspects. This issue has appeared infrequently in courts. However, a decision last month by the U.S. Court of Appeals for the Eleventh Circuit, United States v. John Doe, has started to provide some guidance. The court concluded that the Fifth Amendment privilege applied because the provision of this information is essentially an admission that the person had possession and control over, and access to, the computer, files, or data.

Under Michigan v. Summers and Maryland cases, defendant approaching a house being searched under a warrant could be detained. An explicit threat is not required. Fields v. State, 203 Md. App. 132, 36 A.3d 1026 (2012):

Michigan v. Summers and other cases have established that, when executing a search warrant, police officers may reasonably detain persons found in and about the premises for reasons of safety and to secure the premises being searched. While the particular issue presented by this case, viz., that the person detained was walking towards the premises being searched, is a matter of first impression in this State, our conclusion that the police acted reasonably in detaining appellant is fully consistent with Maryland law and supported by persuasive decisions from other jurisdictions.

. . .

We now return to the case before us. In his brief, Fields emphasizes that his initial interaction with the officers was cordial, so he could not reasonably have been perceived as a threat. He also points out that the officers left the house to meet him before he entered the premises, and implies that their action virtually eliminated him as a threat to the integrity of the ongoing search because he was stopped before actually reaching the house itself.

We are not persuaded that an apparently benign interaction removes the initial encounter in this case from the justifications set forth in Summers and Cotton. First, it is not at all clear that the officers “perceived” no threat. For example, Sergeant Thayer stated on cross-examination that “[t]here’s a possibility” that Fields might have “potentially” had a weapon. Additionally, Fields’s argument that he could not reasonably be perceived as a threat by the officers because he was in the yard, as opposed to at the house itself, is undermined by Williamson’s rejection of the argument that the defendant in that case could not have been a threat to the officers because he was departing the house.

More importantly, a person who is subjected to a limited detention pursuant to Summers may not dictate the contours of the police response simply on the basis of good behavior. Indeed, a “perceived” threat is not a prerequisite for the detention authorized by Summers; instead, “[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Summers, 452 U.S. at 702-03. Hence, the limited detention that is sanctioned by Summers does not depend on the presence of a threat, actual or perceived, to the officers executing the warrant.

The Fourth Amendment is not a basis for liability for false arrest civil claims; the due process clause is. His “two day jail stint” on arrest was with probable cause and reasonable under County of Riverside. Nelson v. Village of Lisle, 437 Fed. Appx. 490 (7th Cir. 2011).*

An alleged mistake of fact in the trial court’s findings of fact on the suppression issue would not have changed the outcome, so defense counsel was not ineffective for not trying to correct it. Anderson v. Trombley, 451 Fed. Appx. 469 (6th Cir. 2011).*

Co-defendant’s consent to search home for drugs and money was voluntary. While he was illiterate, it was explained to him in Spanish and he was told of his right to refuse consent. United States v. Hernandez, 443 Fed. Appx. 34 (6th Cir. 2011).*

Defendant changed his argument on appeal to a failure to get a Miranda warning before asking him where he hid a camera with child pornography on it. This was a waiver of the issue. State v. Stoffer, 2011 Ohio 5133, 2011 Ohio App. LEXIS 4234 (7th Dist. September 30, 2011).*

Defendant was being followed because of a report of impaired driving, but there were no signs of impaired driving. So, the officer stopped defendant because of his muffler as a pretext, and that made the stop invalid. State v. Arreola, 163 Wn. App. 787, 260 P.3d 985 (2011).*

Summary judgment on consent to search issue against pro se plaintiff was affirmed. Feaster v. Las Vegas Metro. Police Dep’t, 451 Fed. Appx. 663 (9th Cir. 2011).*

The USMJ’s credibility determinations are upheld. Because the officer did not have a crystal clear memory about what happened with another person at the scene did not undermine his testimony about the defendant. United States v. Ragland, 2011 U.S. Dist. LEXIS 114148 (D. Md. October 3, 2011).*

The person in possession of a car with the keys who was a regular user of the car had apparent authority to consent to search. United States v. Scott, 2011 U.S. Dist. LEXIS 131244 (W.D. Mo. October 3, 2011)*:

In this case, the record supports a finding that Ms. Starnes had actual authority to consent to a search of the Jaguar. Defendant let Ms. Starnes use the car when she needed it and it was not unusual for her to do so. Ms. Starnes sometimes even drove when she and Defendant were together. When Ms. Starnes used the car, she could use it as she wished without restriction. Ms. Starnes was using the Jaguar on September 2, 2008 and, accordingly, had possession of the sole set of keys.

The record supports the finding of consent to enter. Defendant first gave a false name to the police and then permitted them to enter to talk about it. United States v. Hynson, 451 Fed. Appx. 91 (3d Cir. 2011).*

The officer smelled marijuana when he stopped the defendant’s car. The record supports the conclusion that defendant consented to a search of the car. There was no claim of intimidation or coercion. United States v. Johnson, 2011 U.S. Dist. LEXIS 131483 (E.D. Mo. October 14, 2011);* United States v. Flymn, 2011 U.S. Dist. LEXIS 131494 (E.D. Mo. October 14, 2011).*

When the government says a suppression motion is moot because it will not offer evidence, it is still precluded from using it, but the motion is denied as moot. United States v. Armstead, 2011 U.S. Dist. LEXIS 143200 (N.D. Iowa December 13, 2011):

As a practical matter, it is unclear whether there is a significant difference between granting the motion to suppress or denying the motion as moot (based on the Government’s promise not to offer the evidence during its case in chief). Under either alternative, the Government is precluded from offering into evidence during its case in chief the items seized during the warrantless search. When the Government agrees not to offer evidence which is the subject of the motion to suppress, however, it would appear that the common practice is to deny the motion as moot. Accordingly, the Court recommends that outcome here.

[Note: When the government says the motion is moot, it is agreeing not to offer the evidence. If the government later wants to use the evidence, a suppression motion would still be required.]

The district court found two alternative grounds to sustain the search and seizure, but defendant appealed only one, and that was a waiver of the other, so that is affirmed. United States v. Sosa-Almontes, 451 Fed. Appx. 441 (5th Cir. 2011).

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.

. . .

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.

. . .

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.

. . .

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.