Post details: Office of Foreign Asset Control seizures of assets for alleged terrorism support were valid

05/04/07

Permalink 07:14:37 am, by fourth, 1134 words, 786 views   English (US)
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Office of Foreign Asset Control seizures of assets for alleged terrorism support were valid

The Holy Land Foundation was subject to seizure of assets and a search by the government in Decemer 2001 as a terrorist supporting organization, and the search of property and the seizure of assets were valid under the Fourth Amendment. United States v. Holy Land Found., 2007 U.S. Dist. LEXIS 32293 (N.D. Tex. May 2, 2007):

On December 4, 2001, in accordance with this terrorist designation and the International Emergency Economic Powers Act ("IEEPA"), 50 U.S.C. § 1701, et seq., the Office of Foreign Asset Control ("OFAC"), a division of the Department of Treasury, blocked HLF's assets. Id. The same day OFAC searched HLF's offices in California, Illinois, New Jersey, and Texas and seized physical property and assets in those locations. Id.; Government's Response to Defendants' Joint Motion and Memorandum to Suppress Evidence ("Government's Response") at 2.

OFAC based its seizures entirely on its authority derived from the IEEPA, relevant executive orders, and the blocking notices pertaining to HLF's assets; it did not obtain a search warrant or other judicial approval before engaging in the searches and seizures. Defendant's Motion at 5. In April 2002, the FBI obtained warrants from Magistrate Judge Stickney of this court to search HLF property that had been previously seized by OFAC.

. . .

As an initial matter, the government argues that the Fourth Amendment was not implicated by OFAC's conduct because no investigative action was undertaken until the FBI obtained a warrant in April 2002. Id. at 2-3. The government offers no authority for this contention, and the court finds it unpersuasive. The Fourth Amendment not only prohibits the unauthorized search of property; it also prohibits unauthorized seizure--an action clearly taken by OFAC.

Whether an action violates the Fourth Amendment, however, is a different question from whether the action simply implicates the amendment's protections. In this case, the government contends that OFAC did not violate the Fourth Amendment because no warrant was required for OFAC to seize the HLF's property. This argument is premised on the fact that OFAC derives its authority to seize assets from executive orders and the IEEPA. Id. at 7-9.

. . .

The defendants have admitted that the IEEPA applies to them. See Defendant's Motion at 7-8. They argue, however, that a "nonprofit humanitarian organization is not a 'closely regulated' industry" as would be required to support a warrantless search. Id. at 10, citing New York v. Burger, 482 U.S. 691, 715 (1987). In Burger, the Supreme Court found that an administrative scheme allowing inspectors to review the records and inventory of vehicle junkyard operators to ensure that stolen vehicles are not being improperly dismantled did not violate the Fourth Amendment. Burger, 482 U.S. at 715-16. The court found that the statute satisfied an important administrative purpose and that it was not unconstitutional simply because inspectors regularly discovered other criminal behavior when conducting statutorily authorized inspections. Id.

While the court agrees with the defendants that nonprofit humanitarian organizations are not a closely regulated industry like automotive junkyards or arms dealers, the court believes a more relevant categorization applied to the HLF at the time OFAC executed the blocking order and seized property belonging to the defendants--it was a specially designated global terrorist. See Defendant's Motion at 3. Moreover, the IEEPA clearly gave the defendants notice that the government could use any means specified by the President to "investigate, block ... regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property" in which the HLF had an interest. 50 U.S.C. § 1702(a)(1)(B). The court cannot agree with the defendants' assertion, see Defendant's Motion at 10, that OFAC's seizure was not based on the government's regulation of the HLF's activities. Indeed, the court finds that OFAC's seizure was based entirely on the government's regulation of specially designated terrorist organizations in accordance with Executive Orders 12947 and 13224 and the IEEPA. See id. at 7.

Furthermore, even if the court were to conclude that OFAC's actions violated the Fourth Amendment--which they do not--the defendants have not shown that the exclusionary rule should apply to the evidence obtained from OFAC's seizure. In Arizona v. Evans, 514 U.S. 1, 12-14 (1995), the Supreme Court noted that the exclusionary rule does not apply to every violation of the Fourth Amendment. The court held, "exclusion is appropriate only if the remedial objectives of the [exclusionary] rule are thought most efficaciously served." Id. at 13-14.

The standard for qualified immunity is "arguable probable cause," not probable cause. Taking the facts most favorably to the officer, there was neither in this case. Skop v. City of Atlanta, 485 F.3d 1130 (11th Cir. 2007):

While an officer who arrests an individual without probable cause violates the Fourth Amendment, this does not inevitably remove the shield of qualified immunity. We do not automatically hold an officer liable for making an arrest that, when seen with the benefit of hindsight, turns out not to have been supported by probable cause. As the Supreme Court observed in Anderson v. Creighton, 483 U.S. 635, 641 (1987), "it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials ... should not be held personally liable." Thus, even if we determine that the officer did not in fact have probable cause, we apply the standard of "arguable probable cause," that is, whether "reasonable officers in the same circumstances and possessing the same knowledge as the Defendant[] could have believed that probable cause existed to arrest." Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002) (emphasis added, quotation marks omitted). Indeed, this is "all that is required for qualified immunity to be applicable to an arresting officer." Scarbrough v. Myles, 245 F.3d 1299, 1302 (11th Cir. 2001) (per curiam). This standard recognizes that law enforcement officers may make reasonable but mistaken judgments regarding probable cause but does not shield officers who unreasonably conclude that probable cause exists.

Whether an arresting officer possesses probable cause or arguable probable cause naturally depends on the elements of the alleged crime, Crosby v. Monroe County, 394 F.3d 1328, 1333 (11th Cir. 2004), and the operative fact pattern. Here, the officer suggests that there are two possible crimes for which Skop could be arrested: obstructing a police officer in the lawful discharge of his official duties, and refusing to obey an order from an officer directing traffic. If Officer Brown possessed probable cause or arguable probable cause to arrest Skop for either, he is entitled to qualified immunity. We take each in turn.

Where no finding was made on part of plaintiff's motion to suppress in his state court conviction or no evidence was derived from the search that was used as evidence, collateral estoppel did not bar his federal action. Shales v. General Chauffeurs, Salesdrivers & Helpers Local Union No. 330, 2007 U.S. Dist. LEXIS 32268 (N.D. Ill. May 2, 2007).*

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