565 F.3d 103 (4th Cir. 2009), 07-2191, Unus v. Kane

Docket Nº:07-2191.
Citation:565 F.3d 103
Party Name:Aysha Nudrat UNUS; Hanaa Unus, Plaintiffs-Appellants, v. David KANE, Special Agent, U.S. Immigration and Customs Enforcement; Rita Katz; Roger Aarons, Special Agent, DHS-ICE; Camille Barnett, Special Agent, DHS-ICE; Byron Braggs, Senior Special Agent, ICE; Jennifer Crandall, Special Agent, DHS-ICE; Francisco Gerardo, Special Agent, ICE; Antonio Gom
Case Date:May 06, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 103

565 F.3d 103 (4th Cir. 2009)

Aysha Nudrat UNUS; Hanaa Unus, Plaintiffs-Appellants,

and

Iqbal Unus, Plaintiff,

v.

David KANE, Special Agent, U.S. Immigration and Customs Enforcement; Rita Katz; Roger Aarons, Special Agent, DHS-ICE; Camille Barnett, Special Agent, DHS-ICE; Byron Braggs, Senior Special Agent, ICE; Jennifer Crandall, Special Agent, DHS-ICE; Francisco Gerardo, Special Agent, ICE; Antonio Gomez, Special Agent, IRS; Stasia A. McMahon, Special Agent, IRS; Elmer R. Mooring, Sr., Postal Inspector; Michael R. O'Hanlon, Special Agent, IRS; Kenneth W. Oland, Special Agent, IRS; United States of America; Michael J. Zens, Special Agent, United States Secret Service, Defendants-Appellees,

and

All Unknown Named Federal Agents of the United States Customs Service, now known as U.S. Immigration and Customs Enforcement, Internal Revenue Service, Bureau of Alcohol, Tobacco and Firearms, Immigration and Naturalization Service, United States Secret Service, Defendant.

No. 07-2191.

United States Court of Appeals, Fourth Circuit.

May 6, 2009

         Argued: Dec. 3, 2008.

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         ARGUED:

         Steven Karl Barentzen, Washington, D.C., for Appellants.

         R. Joseph Sher, Office of the United States Attorney, Alexandria, Virginia; Laura Rose Handman, Davis, Wright & Tremaine, L.L.P., Washington, D.C., for Appellees.

         ON BRIEF:

         Nancy A. Luque, Mitka T. Baker, DLA Piper US, L.L.P., Washington, D.C., for Appellants.

         Chuck Rosenberg, United States Attorney, Dennis C. Barghaan, Jr., Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for the Federal Appellees. Brigham J. Bowen, Davis, Wright & Tremaine, L.L.P., Washington, D.C., for Appellee Rita Katz.

          Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit Judges.

          Affirmed in part and reversed in part by published opinion. Judge KING wrote the majority opinion, in which Judge TRAXLER joined. Chief Judge WILLIAMS wrote a separate opinion concurring in part and dissenting in part.

         OPINION

          KING, Circuit Judge:

          Plaintiffs Aysha and Hanaa Unus appeal from the judgment entered against them in the Eastern District of Virginia on constitutional and common law tort claims arising from an allegedly unlawful search of their northern Virginia home. They assert that a federal agent, David Kane, and another individual, Rita Katz, contravened

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the Fourth Amendment by conspiring to make misrepresentations of fact in order to obtain a search warrant for the Unus home. The plaintiffs also maintain that other federal agents violated the First and Fourth Amendments and committed multiple common law torts in carrying out the search.1 The plaintiffs challenge the dismissal of the claims against Kane and Katz; the dismissal of their constitutional claims against the federal agents who carried out the search; the summary judgment award to the United States on the tort claims; and the award of attorney's fees to Katz. As explained below, we reverse the fee award and affirm the balance of the judgment.

         I.

         A.

         In March 2002, Iqbal Unus, Ph.D. (" Dr.Unus" ), was employed by the Islamic Institute of Islamic Thought (the " IIIT" ), a tax-exempt organization located in Herndon, Virginia. Dr. Unus, his wife, Aysha, and their two teenage daughters (including plaintiff Hanaa), lived in a two-story, single-family residence, also in Herndon.2 All four members of the Unus household were United States citizens, and none had a criminal record.

         On March 12, 2002, as part of an extensive federal investigation of a group of entities (including the IIIT) and persons suspected of supporting international terrorism, Agent Kane submitted an affidavit (the " Affidavit" ) to a federal magistrate judge in support of applications to obtain search warrants for multiple locations, including a search warrant for the Unus residence (the " Warrant" ).3 On March 13, 2002, the magistrate judge issued the Warrant and, on March 20, 2002, eleven federal agents and three local police officers executed it. The factual recitation made herein is predicated primarily upon the Affidavit, as well as allegations made by the plaintiffs in their initial complaint, filed on March 23, 2004 (the " Initial Complaint" ), and a series of amended complaints filed on November 9, 2004 (the " First Amended Complaint" ), August 29, 2005 (the " Second Amended Complaint" ), and February 5, 2007 (the " Third Amended Complaint" ).4 The predicate facts are also derived from discovery proceedings, including depositions of the plaintiffs and the federal agents involved in the search of the Unus residence. In the context of this appeal, the facts are spelled out in the light most favorable to the plaintiffs.

         1.

          After the September 11, 2001 terrorist attacks in New York, Washington, D.C., and Pennsylvania, the Treasury Department

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established " Operation Green Quest," a federal multi-agency task force assigned with investigating domestic financial support of international terrorism (" Green Quest" ). In 2001, Green Quest began investigating " a group of individuals that [were] suspected of providing material support to terrorists, money laundering, and tax evasion through the use of a variety of related for-profit companies and ostensible charities under their control, most of which [were] located at 555 Grove Street, Herndon, Virginia." Affidavit 2. Green Quest suspected that a " web of companies and charities controlled by these individuals," led by " Middle Eastern nationals living in Northern Virginia," were conspiring to conduct terrorist-related activities in the United States. Id. at 2, 6. Although several of these organizations claimed to be educational and charitable in nature, Green Quest suspected that they were in fact merely " paper" organizations of an international terrorist network. Id. at 7.

         The plaintiffs allege that Green Quest's investigation was informed by the research of Rita Katz, a self-professed expert on the tracking of terrorist organizations and the author of a book detailing her experiences as a researcher of terrorism-related activities in the United States. See Anonymous, Terrorist Hunter (2003).5 Although Katz has never been a federal agent, she has consulted with the federal government, providing several federal agencies with information about Islamic organizations operating in the United States.6 The plaintiffs assert that Katz " espouses a belief that if one is a Muslim, one is a terrorist by virtue of religion," and that she imparted this belief on the federal agents that she trained. First Amended Complaint 5. Green Quest, according to the plaintiffs, latched on to Katz's theory that a widespread terrorist network was operating out of an office building at 555 Grove Street in Herndon, Virginia, and her belief that " all roads of terrorist funding and ideology in America lead to 555." Id. at 4 (internal quotation marks omitted). Thus, Katz persuaded Agent Kane, a Green Quest member, to seek search warrants of 555 Grove Street and several related locations, despite having been advised by federal prosecutors that there was no probable cause to search. The plaintiffs observe that Katz referred to herself in her book as Green Quest's " stealthy guiding beam," and that the Safa Group investigation was " [her] investigation, [her] baby, [her] project." Id. at 18 (internal quotation marks omitted).

         2.

         On March 12, 2002-at Katz's urging-Agent Kane submitted the Affidavit to a magistrate judge in support of search warrant applications for several businesses and residences. Through ninety-nine pages and fifty-two exhibits (after redactions), the Affidavit explained that the federal government had been investigating several suspect entities and individuals, and " [f]or ease of reference," the Affidavit labeled this " web of companies and charities ... as the ‘ Safa Group.’ " Affidavit 2 (emphasis omitted). The Affidavit further explained that a federal investigation into the Safa Group that had been started in the late-1990s had revealed

a convoluted web of multiple transactions between related corporations and charities that made it virtually impossible

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for federal investigators to ascertain where the money that finally left the web of the Safa Group ultimately went. Indeed, the current investigation has traced millions of dollars through layers of related companies and to charities in the Isle of Man-from which point the trail cannot be practically followed.

Id. at 7-8 (emphasis omitted). By the Affidavit, Kane asserted that " individuals associated with the Safa Group [were] using the various affiliated charities and companies under their control to transfer money in convoluted transactions through a network of inter-related organizations designed to prevent the United States from tracking the ultimate recipients." Id. at 8 (emphasis omitted).

         After describing terrorist-financing techniques and federal financial-reporting and tax laws, the Affidavit listed several individuals and entities suspected of being involved with international terrorism, explaining their connection to the Safa Group. " Although the Safa Group consists of over 100 interwoven organizations," Agent Kane stated, " the investigation has focused on approximately 20 core organizations, and their associated corporate officers and directors." Affidavit 41 (emphasis omitted). Moreover, the Affidavit specified that

IRS tax files and corporation documents disclose that 555 Grove Street, 500 Grove Street, and associated addresses in Herndon are the corporate...

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