U.S. v. Marzook, 03 CR 0978.

Citation435 F.Supp.2d 778
Decision Date22 June 2006
Docket NumberNo. 03 CR 0978.,03 CR 0978.
PartiesUNITED STATES of America, Plaintiff, v. Mousa Mohammed Abu MARZOOK, Muhammad Hamid Khalil Salah, and Abdelhaleem Hasan Abdelraziq Ashqar, Defendants.
CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)

Joseph M. Ferguson, United States Attorney's Office, Chicago, IL, Pretrial Services, Probation Department, for Plaintiff.

Thomas Anthony Durkin, Durkin & Roberts, Janis D. Roberts, Attorney at Law, Chicago, IL, Michael Kennedy, Michael Kennedy, P.C., New York City, for Defendants.

MEMORANDUM OPINION AND ORDER

ST. EVE, District Judge.

On August 19, 2004, a Grand Jury returned a multiple-count, Second Superseding Indictment (the "Indictment") against Defendant Abdelhaleem Hasan Abdelraziq Ashqar ("Ashqar" or "Defendant") and his co-defendants, Mousa Mohammed Abu Marzook ("Marzook") and Muhammad Hamid Khalil Salah ("Salah"). Currently before the Court is Ashqar's Motion to Suppress (the "Motion") wherein Ashqar urges the Court to suppress certain materials and documents that the government obtained during a physical search — conducted pursuant to the Attorney General's finding that the search was aimed at obtaining foreign intelligence — of his home in December 1993. For the reasons stated below, the Court denies Ashqar's motion because the current facts do not warrant application of the exclusionary rule. In light of the current FISA statutory scheme, which now specifically outlines the procedures for conducting physical searches against agents of a foreign power, no deterrent value would be gained by excluding the materials at issue here. Even assuming that the exclusionary rule applies on the present facts, the Court concludes that the search at issue nonetheless satisfies the Fourth Amendment's reasonableness requirement and falls within the "foreign intelligence" exception to the Fourth Amendment's general warrant requirement.1

BACKGROUND

The following facts are not contested by the parties2 and are relevant to the Court's ruling on the Motion.3 In August 2004, at his detention hearing following his arrest on the Second Superseding Indictment, Ashqar learned for the first time that, in December 1993, the Federal Bureau of Investigation ("FBI") had physically searched his personal residence at 7 Rubin Drive, Oxford, Mississippi. (R. 196-1, Def.'s Motion at ¶ 1.) The government did not obtain a warrant before searching Ashqar's residence and neither Defendant nor any one else consented to the search. (Id. at ¶ 3.) Prior to this search, in September 1993, the FBI submitted a classified in camera ex parte application to the Foreign Intelligence Surveillance Act ("FISA") court, which thereafter authorized the FBI to conduct electronic surveillance on the telephone and facsimile lines in Ashqar's residence pursuant to FISA, codified at 50 U.S.C. §§ 1801, et seq. (R. 277-1, Gov't's R esp. at 1, 5.) Specifically, the FISA court found: (1) probable cause to believe that Ashqar, who was not a United States person, was an agent of a foreign power, llamas; (2) that the targeted telephone and facsimile lines at his home were being, or about to be used, by an agent of a foreign power; and (3) that the Attorney General had certified that the purpose of the requested electronic surveillance was to obtain foreign intelligence pertaining to Ashqar and Hamas. (Id. at 5.) In late November 1993, the FISA court, pursuant to a second FISA application, extended the electronic surveillance on the telephone and facsimile lines in Ashqar's residence. (Id.) Defendant appealed the FISA court's findings, and the Seventh Circuit, after "conduct[ing] a careful in camera and ex parte review of the entire record in this matter," "conclude[d] that the FISA court properly granted the applications." In re Grand Jury Proceedings of Special April 2002 Grand Jury, 347 F.3d 197, 205 (7th Cir. 2003) ("All of the requisite certifications are in order. The Appellant's remaining objections to the legality of the FISA surveillance (specifically, his claims of wrongdoing or illegal intent by the Attorney General) are wholly without basis in the record.... [T]he FISA surveillance was not illegal ..." (parentheses in original)).

Shortly after receiving approval of the second FISA application, the Attorney General, pursuant to Section 2.5 of Executive Order 12,333, approved a request from the FBI to execute a physical search of Ashqar's residence. (R. 277-1; Gov't's Resp. at 6.) At that time, FISA did not provide for a method to obtain authorization to conduct physical searches, only electronic surveillance. On December 26, 1993, pursuant to the Attorney General's approval, the FBI executed that search when Ashqar's residence was unoccupied and photographed approximately 1600 pages of documents and copied computer files. (Id.) In 2002, as part of a grand jury investigation, government prosecutors were permitted to review the materials obtained during the physical search and thereafter received permission to use these materials as part of the investigation and prosecution of this case. (Id.) In the course of discovery in this case, the government has tendered this material to Ashqar, and the government intends to introduce some or all of these documents into evidence at trial. (R. 196-1, Def.'s Motion at ¶ 2.) Ashqar moves to suppress the items obtained from the 1993 physical search of his residence, arguing that the FBI's warrantless search violated his rights under the Fourth Amendment. (Id. at ¶ 5.)

LEGAL STANDARD
I. Motions To Suppress

Federal Rule of Criminal Procedure 41(h) provides that "[a] defendant may move to suppress evidence in the court where trial will occur, as Rule 12 provides," Fed. R.Crim. Pro. 41(h), and Rule 12, in turn, provides that suppression motions must be made before trial. See Fed. R.Crim.P. 12(b)(3)(C). When a defendant's motion to suppress raises a Fourth Amendment challenge to a warrantless search, the government bears the burden of establishing legality. See United States v. Rosselli, 506 F.2d 627, 629 (7th Cir.1974) ("The burden of justifying a warrantless, forcible entry into a private home is, of course, upon the government."); see also United States v. Longmire, 761 F.2d 411, 417 (7th Cir.1985) ("[t]hose seeking to invoke an exception to the warrant requirement bear the burden of establishing that the circumstances required dispensing with that requirement").

II. The Fourth Amendment

The Fourth Amendment guarantees that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." U.S. CONST. amend. IV. "The touchstone of Fourth Amendment inquiry is reasonableness, a standard measured in light of the totality of the circumstances and determined by balancing the degree to which a challenged action intrudes on an individual's privacy and the degree to which the action promotes a legitimate government interest." Green v. Butler, 420 F.3d 689, 694 (7th Cir.2005); see also New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 740, 83 L.Ed.2d 720 (1985) ("[a]lthough the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place"). Indeed, "[t]he fourth amendment does not of its own force require a warrant for any search. Its text is a limitation on warrants." United States v. Limares, 269 F.3d 794, 799 (7th Cir.2001) ("warrants are not the only way to justify entries as reasonable") (emphasis original). Put differently, "[t]he Fourth Amendment does not require that a search be based on probable cause to believe that the search will yield contraband or evidence of crime. The amendment requires that warrants be based on probable cause, but forbids only unreasonable searches." United States v. Burton, 441 F.3d 509, 511 (7th Cir.2006) (emphasis original); see also United States v. Sutton, 336 F.3d 550, 553 (7th Cir.2003) ("[T]he reasonableness of any given search will depend on a multiplicity of factors, precluding any generalizations as to whether a certain type or class of search would pass muster under the Fourth Amendment.").

Although law enforcement may generally undertake a physical search of a home only pursuant to a warrant, the Supreme Court has recognized certain exceptions to that rule. See Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987) (citing authorities); see also Illinois v. Rodriguez, 497 U.S. 177, 183, 110 S.Ct. 2793, 2799, 111 L.Ed.2d 148 (1990) ("[w]hat [a person] is assured by the Fourth Amendment ... is not that no government search of his house will occur unless he consents; but that no such search will occur that is `unreasonable.'"); cf. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980) ("[i]t is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable" (internal quotation omitted)). For example, "several cases have permitted home entries, without warrants, where a special need of the government is shown." United States v. Bin Laden, 126 F.Supp.2d 264, 274-76 (S.D.N.Y.2000) (holding that the foreign intelligence exception allows warrantless physical searches conducted abroad in part because "there is presently no statutory basis for the issuance of a warrant to conduct searches abroad"). In addition, several cases have held that FISA's statutory procedures (discussed more fully below) satisfy the Fourth Amendment's reasonableness requirement, United States v. Pelton, 835 F2d 1067, 1075 (4th Cir.1987) ("FISA's numerous safeguards provide sufficient protection for the rights guaranteed by the Fourth Amendment within the context of foreign intelligence activities."); United States v. Cavanagh, 807 F.2d 787, 790 (9th Cir.1987) ...

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