The opinion this post examines comes from a U.S. District Court Judge who sits in the U.S. District Court for the District of Columbia: U.S. v. Hassanshahi, 2015 WL 7303515 (2015). The judge begins the
opinion by explaining that
Shantia
Hassanshahi is charged with one count of conspiracy to violate the
International Economic Emergency Powers Act, 50 U.S. Code § 1705, and the
Iranian Transactions and Sanctions Regulations, 31 C.F.R. §§ 560.203 - 204,
commonly referred to as the United States' trade embargo against Iran.
In
December 2014, the Court denied a motion by Hassanshahi to suppress certain
evidence discovered during a forensic examination of his laptop computer,
holding, in relevant part, that discovery of the evidence was sufficiently
attenuated from a search of a mysterious telephony database that the Court
assumed, for purposes of its analysis and at the Government's suggestion, was
unconstitutional. See U.S. v. Hassanshahi, 75 F.Supp.3d 101. . . .
Following
the Court's decision, Hassanshahi has argued, both orally before the Court and
in rounds of supplemental briefing . . ., that suppression of the evidence is
warranted in light of both additional information concerning the database that
the Government provided after the Court's ruling and the Second Circuit's
recent decision concerning a different government database in ACLU v. Clapper, 785 F.3d 787 (U.S. Court of Appeals for the 2d Circuit 2015).
U.S. v. Hassanshahi, supra. The news story you can find here provides some additional information
about this case and what had happened prior to the issuance of this opinion.
The judge also
noted, in a later paragraph in his opinion, that he was “constru[ing] these
arguments as a motion for reconsideration of the Court's denial of
Hassanshahi's motion to suppress.” U.S. v. Hassanshahi, supra. He went on to reconsider his earlier
ruling, as is outlined below.
The judge began by
outlining the background of the litigation, and the presumed motion:
The
Indictment against Hassanshahi alleges that, beginning in or around March 2009,
Hassanshahi engaged in a conspiracy to export or cause the exportation of goods
and technology from Canada to Iran, as well as related services from the United
States to Iran, without first having obtained a license from the Office ofForeign Assets Control, in violation of federal law. See Indictment
¶ 1, ECF No. 7.
At
trial, the Government seeks to introduce evidence discovered during a forensic
examination of Hassanshahi's laptop computer, which the Government seized from Hassanshahi in January 2012 upon his arrival
from the United States at the Los Angeles International Airport (`LAX’). The
Government's search and seizure of that evidence was the result of an
investigation that began at least as early as August 2011. . . .
In August 2011, Homeland Security Investigations (`HSI’) received an
unsolicited e-mail from a source concerning an Iranian individual named
`Sheikhi’ who was seeking to procure protection relays for an Iranian power
project. . . . Later the same month, HSI requested a search of a
law enforcement database using a telephone number it knew to be associated with
Sheikhi. That search returned a single telephone record of one call between the
searched telephone number and a California telephone number with an 818 area
code that HSI later determined, through its subsequent investigation, was
registered to Hassanshahi. . . . Over the course of the next several
months, HSI investigated Hassanshahi, which ultimately led to the search and
seizure of his laptop computer at LAX.
U.S. v. Hassanshahi, supra. He went on to explain that Hassanshahi moved to
suppress
the evidence discovered through the forensic examination of his laptop,
asserting, in relevant part, that HSI's search of the law enforcement database
constituted an unconstitutional search and that the evidence should be excluded
under the fruit of the poisonous tree doctrine. . . . The Court denied Hassanshahi's motion,
holding, in relevant part, that the exclusionary rule did not require
suppressing the evidence as `fruit of the poisonous tree,’ because discovery of
the evidence was sufficiently attenuated from the purportedly unlawful search
of the database. . . . The Court reached this holding based on limited
information concerning the database at issue, because . . . the Government
refused to provide details concerning the database and instead asked the Court
to assume arguendo that the database was
unconstitutional. . . .
In
its analysis, the Court therefore proceeded on the assumption that the database
and HSI's search of the database were unconstitutional and nevertheless
concluded that the exclusionary rule did not require suppression. . . .
Although the Court was unequivocal in its holding, it also ordered the
Government to provide the Court with more information concerning the
database. . . .
U.S. v. Hassanshahi, supra.
The District Court
Judge then pointed out that the
Government
complied with the Court's order by providing a declaration from Robert
Patterson, an Assistant Special Agent in Charge at the United States Drug Enforcement Administration (`DEA’), which the Government initially filed ex
parte and under seal and later filed publicly in redacted form. See Decl.
Robert Patterson, ECF No. 49-1 (publicly-filed redacted version). In this
declaration, Patterson explained that the database at issue `consisted of
telecommunications metadata obtained from United States telecommunications
providers pursuant to administrative subpoenas served upon the service
providers under the provisions of 21 U.S. Code § 876.’ Id. ¶
4. The referenced statutory provision authorizes the Attorney General to issue
administrative subpoenas in `any investigation’ relating to his drug
enforcement function. See 21 U.S.C. § 876. Patterson provided
further detail concerning the metadata stored in the database:
`This
metadata related to international telephone calls originating in the United
States and calling [REDACTED] designated foreign countries, one of which was
Iran, that were determined to have a demonstrated nexus to international drug
trafficking and related criminal activities. This metadata consisted
exclusively of the initiating telephone number; the receiving telephone number;
the date, time, and duration of the call; and the method by which the call was
billed. No subscriber information or other personal identifying information was
included in this database. No communication content was included in this
database.’
Patterson
Decl. ¶ 4. Patterson further stated that the DEA database `could be used to
query a telephone number where federal law enforcement officials had a
reasonable articulable suspicion that the telephone number at issue was related
to an ongoing federal criminal investigation’ and that the standard had
been met with respect to the search that returned Hassanshahi's telephone
number. . . . Patterson also stated that use of this particular
database was suspended in September 2013 and that `information is no longer
being collected in bulk pursuant to 21 U.S. Code § 876’. Id. ¶
6.
U.S. v. Hassanshahi, supra.
The opinion goes on
to explain that a
status conference before the Court on January 29, 2015 following the filing of
Patterson's redacted declaration, counsel for Hassanshahi sought permission to
renew his motion to suppress based on the new information concerning the DEA
database. The Court directed the Government to provide briefing concerning two
issues: first, whether information obtained by one law enforcement agency for
one purpose may lawfully be shared with another law enforcement agency for
another purpose; and second, whether a remedy of suppression existed for a
non-constitutional violation of law. The Government submitted a brief on these
issues, and Hassanshahi filed a brief in response, to which the Government
filed a reply brief. . . .
In
May 2015, the Second Circuit decided ACLU v. Clapper, supra, holding that a counterterrorism
telephony metadata program maintained by the National Security Agency (`NSA’),
which this Court discussed in its denial of the motion to suppress, exceeded
the program's statutory authorization. See ACLU v. Clapper, supra. . . . The parties have also submitted briefs
concerning the effect, if any, that the Second Circuit's decision might have on
the issues presented in this case. . . .
U.S. v. Hassanshahi, supra.
The
judge then began his analysis of the issues in the case, noting, first, that
both Hassanshahi and the government advanced arguments that could be `grouped’
into two major issues for the Court to consider: first, whether Hassanshahi may
seek suppression of the laptop evidence by challenging the statutory validity
of the DEA database, as opposed to its constitutionality; and second, whether
the new information disclosed by the Government concerning the database and the
Second Circuit's decision in Clapper require the Court to reverse its
prior decision and suppress the evidence on constitutional grounds.
U.S. v. Hassanshahi, supra.
He began his
analysis with Hassanshahi’s statutory argument, explaining that the
Government argues that Hassanshahi
cannot challenge the statutory validity of the DEA database for two reasons.
First, the Government argues that [he] cannot challenge the DEA's collection of
the metadata contained in the database from telecommunications service
providers, because he lacks `standing’ to challenge administrative subpoenas
directed to third parties. Second, the Government argues that Mr.
Hassanshahi cannot challenge the DEA's dissemination of that information to
HSI, because it is a longstanding rule that one law enforcement agency may
share information it has collected for one purpose with another law enforcement
agency for a different purpose.
U.S. v. Hassanshahi, supra.
The judge went on to
point out that, with regard to the
DEA's collection of the metadata, the
Court observes that Hassanshahi is not the first criminal defendant to
challenge an administrative subpoena issued to a third party under Section
876. In U.S. v. Moffett, a case somewhat similar to this one, a
criminal defendant challenged the Attorney General's authority to issue a
subpoena to a third party under Section 876 purely on statutory
grounds and sought to suppress the evidence gained through its use. See
U.S. v. Moffett, 84 F.3d 1291 (U.S. Court of Appeals for the 10th Circuit 1996).
U.S. v. Moffett, supra.
The Tenth Circuit denied the
defendant's attempted challenge, because it found the defendant did not come
within `the zone of interest the statute is meant to protect.’ In its
reasoning, the court observed that Section 876 `is written to give the DEA
broad powers to investigate violations of federal drug laws’ and `provides no
express right to challenge the Attorney General's subpoenas issued under it.’ U.S.
v. Moffett, supra. . . .
In his limited response, Hassanshahi
points to Clapper, in which the Second Circuit held . . . that
targets of orders issued pursuant to Section 215 of the PATRIOT Act could bring
suit against the Government challenging the orders under the Administrative
Procedure Act even though they were not the recipients of the orders. See ACLU v. Clapper, supra. Hassanshahi,
however, neither references the Administrative Procedure Act nor explains how
the Second Circuit's reasoning would apply in this case, in which, as a
criminal defendant, he seeks to challenge the validity of a different program
under an administrative subpoena statute.
U.S. v. Hassanshahi, supra.
The judge then
pointed out that, with
respect to the DEA's dissemination of
the metadata to HSI, the Government argues that the DEA `acted consistently
with the longstanding legal rule that “[e]vidence legally obtained by one
police agency may be made available to other such agencies without a warrant,
even for a use different from that for which it was originally taken.”’ Gov't's
February 25 Brief at 4 (quoting Jabara v. Webster, 691 F.2d
272 (U.S. Court of Appeals for the 6th Circuit 1982)). This rule, however,
concerns only the constitutionality of HSI's query of the DEA database and does
not squarely address the issue of whether the query violated Section 876.
The Government observes that Hassanshahi `has not identified any statutory or
regulatory provision that would proscribe the sharing of information between
law enforcement agencies as part of a legitimate law enforcement investigation.’
Gov't's Feb. 25 Brief at 4–5.
Hassanshahi argues in response that the
Government's actions violated Section 876 because the Government `must
have known of the unrestricted use of the database while serving the subpoenae
(at some point it became obvious that the database was being used for non-drug
investigations, but government continued gathering the telephony records).’ Def.'s
Apr. 13 Brief at 6.
Ultimately, the Court need not
determine here who may or may not challenge the statutory validity of the DEA's
collection of the metadata or whether Section 876 imposes any
limitations on the DEA's ability to share data, because . . . the Court finds
that, even if Hassanshahi could challenge the statutory validity of the DEA
database, suppression of the evidence would not be an available remedy.
U.S. v. Hassanshahi, supra.
He then began his analysis of Hassahshahi’s appeal of his
earlier ruling “denying Hassanshahi's
motion to suppress the evidence on constitutional grounds.” U.S.
v. Hassanshahi, supra. The judge explained that in the earlier
ruling, he noted that
under
the fruit of the poisonous tree doctrine, an illegal search or seizure requires
the exclusion at trial of not only the evidence seized in violation of the
Fourth Amendment, but also any evidence obtained as a result of that seizure if
the `seizure is a but-for cause of the discovery of the evidence (a necessary
condition), and if the causal chain has not become “too attenuated to justify
exclusion,”’ U.S. v. Brodie, 742 F.3d 1058 (U.S. Court of Appeals forthe D.C. Circuit 2014) (quoting Hudson v. Michigan, 547 U.S. 586 (2006)), `or, to put the same point with another metaphor, if circumstances
have not “purged [the evidence] of the primary taint.”’ U.S. v. Brodie, supra. . . . (quoting Wong Sun v. U.S.,371 U.S. 471 (1963)).
The
Court found that the exclusionary rule did not require suppression, because `the
causal chain leading to the discovery of the laptop evidence was too attenuated
to justify exclusion.’ U.S. v. Hassanshahi (2014), supra. . . .
U.S. v. Hassanshahi, supra.
The judge therefore
held that “[s]ince the interests that were
violated in this case have nothing to do with the seizure of the evidence, the
exclusionary rule is inapplicable.” U.S. v. Hassanshahi, supra (emphasis in
the original). So he denied Hassanshahi’s motion for
reconsideration. U.S. v. Hassanshahi, supra.
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