U.S. v. Marzook
Decision Date | 22 June 2006 |
Docket Number | No. 03 CR 0978.,03 CR 0978. |
Citation | 435 F.Supp.2d 778 |
Parties | UNITED STATES of America, Plaintiff, v. Mousa Mohammed Abu MARZOOK, Muhammad Hamid Khalil Salah, and Abdelhaleem Hasan Abdelraziq Ashqar, Defendants. |
Court | U.S. 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.
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
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) ( .
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.)
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) (); see also United States v. Longmire, 761 F.2d 411, 417 (7th Cir.1985) ().
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) (). Indeed, United States v. Limares, 269 F.3d 794, 799 (7th Cir.2001) () (emphasis original). Put differently, 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) ().
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) (); cf. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980) ( ). 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) ( ). 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) (); United States v. Cavanagh, 807 F.2d 787, 790 (9th Cir.1987) ...
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