{"id":6480,"date":"2012-04-11T10:41:02","date_gmt":"2011-12-30T08:17:56","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-12-30T08:17:56","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6480","title":{"rendered":"CA3: FISA surveillance led to domestic prosecution, and Patriot Act amendments not unconstitutional; even if they were, Krull<\/em> wouldn’t require exclusion"},"content":{"rendered":"

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<\/a>. United States v. Duka<\/a>, 671 F.3d 329 (3d Cir. 2011):<\/p>\n

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.<\/p>\n

Aligning with all of the other courts of appeals that have considered this issue, however, we reject defendants\u2019 constitutional challenge. We conclude that FISA\u2019s amended \u201csignificant purpose\u201d requirement is reasonable under the Fourth Amendment, and, therefore, that the government\u2019s 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\u2019 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.<\/p>\n

. . .<\/p>\n

e. The \u201cSignificant Purpose\u201d Test Is Reasonable<\/p>\n

We agree with our sister courts of appeals and the Foreign Intelligence Surveillance Court of Review that amended FISA\u2019s \u201csignificant purpose\u201d standard is reasonable under the Fourth Amendment, for three reasons.<\/p>\n

First, the \u201csignificant purpose\u201d standard reflects a balance struck by Congress between \u201cthe legitimate need of Government for intelligence information\u201d and \u201cthe protected rights of our citizens.\u201d United States<\/a>, 407 U.S. at 323. The legislative history reveals that \u201cCongress was keenly aware that [the Patriot Act\u2019s amendment to what is now \u00a7 1804(a)(6)(B)] relaxed a requirement that the government show that its primary purpose was other than criminal prosecution.\u201d 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\u2019s conclusion in that regard of course is not dispositive, nonetheless, the Supreme Court in Keith suggested that \u201ccongressional judgment\u201d has an important role to play in weighing government interests and determining reasonable \u201cprotective standards\u201d related to intelligence. United States<\/a>, 407 U.S. at 322-23. We therefore view Congress\u2019s actions in this area with some additional measure of deference.<\/p>\n

. . .<\/p>\n

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 \u201cobtaining foreign intelligence information … is a bona fide purpose of the surveillance\u201d and the Attorney General (or a senior-level designee, see 50 U.S.C. \u00a7 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.<\/p>\n

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\u2019s compliance with the statute\u2019s requirements, and issues an order specifying the parameters of the government\u2019s surveillance authority. See 50 U.S.C. \u00a7 1805(a), (c). The FISA judge may demand \u201cfurther inquiry into the certifying officer\u2019s purpose \u2014 or perhaps even the Attorney General\u2019s or Deputy Attorney General\u2019s reasons for approval\u201d of the application, and should deny the application if he or she \u201cconclude[s] that the government\u2019s sole objective [is] merely to gain evidence of past criminal conduct \u2014 even foreign intelligence crimes \u2014 to punish the agent rather than halt ongoing espionage or terrorist activity.\u201d Sealed Case, 310 F.3d at 735-36. These safeguards confirm that FISA\u2019s \u201csignificant purpose\u201d standard is reasonable under the Fourth Amendment.<\/p>\n

. . .<\/p>\n

Here, we have concluded that searches in the form of surveillance conducted pursuant to FISA\u2019s \u201csignificant purpose\u201d 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, \u201cagents discover evidence of a domestic crime, they may use it to prosecute for that offense,\u201d even if the agents knew or \u201cmay have known\u201d when they applied for the FISA order \u201cthat they were likely to hear evidence of domestic crime\u201d); see also Duggan, 743 F.2d at 78 (noting that \u201cotherwise 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.] \u00a7 1806(b), as evidence in a criminal trial\u201d and holding that \u201cthe fact that domestic law enforcement concerns may also have been implicated\u201d in government\u2019s decision to seek a FISA order \u201cdid not eliminate the government\u2019s ability to obtain a valid FISA order\u201d).<\/p>\n

2. Defendants Are Not Entitled to Relief Because the FISA Searches Were Conducted in Reasonable Reliance on a Statute<\/p>\n

We are confident that FISA\u2019s \u201csignificant purpose\u201d test satisfies the Fourth Amendment. But even if we were not, we still would not overturn defendant\u2019 convictions based on the government\u2019s 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\u2019s case.<\/p>\n

Defendant\u2019 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\u2019 Joint Opening Br. 53 (\u201cBy 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.\u201d). But that is not necessarily so. See United States v. Tracey, 597 F.3d 140, 151 (3d Cir. 2010) (\u201c[A] determination that the Fourth Amendment has been violated does not necessarily require application of the exclusionary rule.\u201d). The exclusionary rule precludes the admission of evidence tainted by a Fourth Amendment violation \u201conly in those unusual cases in which exclusion will further the purposes of the … rule.\u201d United States v. Leon, 468 U.S. 897, 918, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). Because the rule \u201cis designed to deter police misconduct,\u201d id. at 916, it applies only where it will \u201calter the behavior of individual law enforcement officers or the policies of their departments,\u201d id. at 918.<\/p>\n

The Supreme Court has ruled categorically that \u201csuppress[ing] evidence obtained by an officer acting in objectively reasonable reliance on a statute\u201d would not further the purposes of the exclusionary rule, even if that statute is later declared unconstitutional. Illinois v. Krull<\/a>, 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\u2019s reliance on the statute was not objectively reasonable. Cf. Krull<\/a>, 480 U.S. at 368 (O\u2019Connor, J., dissenting) (observing that, \u201cunder [the Court\u2019s] decision today, no effective remedy is to be provided in the very case in which the statute at issue was held unconstitutional\u201d).<\/p>\n

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<\/a>, the exclusionary rule plainly does not apply, and, even if we agreed with defendants that the \u201csignificant purpose\u201d test is unconstitutional, we would be powerless to overturn their convictions on that ground.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-6480","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/6480","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=6480"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/6480\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=6480"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=6480"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=6480"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}