D.Minn.: FISA standard of review undetermined

FISA probable cause determinations are subject to a split on what the standard of review is for issuance of a warrant. Also, defendant doesn’t get to see the affidavit for the FISA warrant where the Attorney General certifies disclosure is contrary to national security. United States v. Mahamud, 838 F. Supp. 2d 881 (D. Minn. 2012):

There is no agreement among the federal courts as to whether the probable cause determination is made de novo or if a deferential standard is applied. See Abu-Jihaad, 630 F.3d at 130; Warsame, 547 F. Supp.2d at 990 (court reviewed probable cause determination de novo, given that the Court’s review is ex parte). Even applying a de novo review, however, the Court finds that there was sufficient probable cause set forth in the applications and related materials that Defendant was an agent of a foreign power, al-Shabaab, and that the places to be searched or to be surveilled were being used by Defendant.

Defendant’s objection to a search after the jury heard about the evidence was a waiver of the issue. Black v. State, 358 S.W.3d 823 (Tex. App. – Ft. Worth 2012).