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The 2001 Patriot Act revised a provision of Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. Sec 1804 to require a law enforcement agent to confirm “a significant purpose” rather than “the purpose” of conducting the investigation in obtaining foreign surveillance data.
Shnewer, Tatar, and the Duka brothers lived in New Jersey, though the Duka brothers were illegally in the United States. The defendants showed interest in violent jihad, especially attacks against the American military personnel. The FBI conducted a sixteen-month investigation of the defendants’ activities, from January 2006 to May 2007.
The procedural history
The respondent government charged the appellants in the District Court for plotting to attack American military bases in Pennsylvania, New Jersey, and Delaware, especially the Fort Dix base. The prosecution submitted a wide range of evidence including recordings of conversations among the appellants and their informants, testimony from state confidential informants and law enforcement agents who had conducted a sixteen-month investigation, videos of the training trips by the appellants in Poconos, propaganda videos, and videos showing the appellants purchase of automatic and semi-automatic weapons to be used in the attack.
The court ruled that the defendants were guilty of conspiracy to murder the American soldiers. The court also convicted four of the defendants of firearm offenses. The defendants filed a timely appeal against their convictions and sentences under 28 U.S.C. Sec 1291 and 18 U.S.C. Sec 3742 respectively. Issue is the evidence obtained by law enforcement officers under the revised FISA unlawful?
No. The information that the law enforcement agents acquired under the statute is lawful because the significant purpose requirement is reasonable. The court held that the 4th Amendment does not require a strict standard of “the primary purpose”. What matters most is whether the “significant purpose” standard is reasonable.
The court reasoned in line with other appeal courts that have considered the matter. The cases of Berger v. New York, 388 U.S. 41, 55 (1967), Camara v. Mun. Ct., 387 U.S. 523, 534 (1967), and United States v. Abu Jihaad, 630 F.3d 102, 122 (2d Cir. 2010) held that probable cause under the Fourth Amendment involves the “reasonableness test”.
The court concluded that the 4th Amendment is flexible with regard to searches carried out for law enforcement purposes. Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 674-75 (1989) held that searches done in good faith by law enforcement officers are reasonable. United States v. Truong Dinh Hung, 629 F.2d 908, 914 (4th Cir. 1980) and United States v. Butenko, 494 F.3d 593, 605 (3d Cir. 1974) held that there are circumstances where the executive branch may not require a warrant to conduct the investigation.
The court mentioned the Sealed Case, 310 F. 3d at 732 while deciding that the Congress intended to promote cooperation between law enforcement and intelligence agents in fighting terrorism. Illinois v. Krull, 480 U.S. 340, 349-50 (1987) held that the exclusionary rule that suppresses illegally obtained evidence does not apply to an officer who obtains evidence while reasonably relying on a statute.
The court did not grant any relief to the appellants because if found the evidence obtained under FISA lawful. However, the court quashed Shnewer’s conviction on attempted possession of weapons due to ambiguity of jury instructions.
The court affirmed the judgments of the District Court with regard to conspiracy to attack the United States military against all the four defendants. This case provides a perfect illustration of how national security can at times override civil liberties provided under the Constitution.
Berger v. New York, 388 U.S. 41, 55 (1967).
Camara v. Mun. Ct., 387 U.S. 523, 534 (1967).
Illinois v. Krull, 480 U.S. 340, 349-50 (1987).
Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 674-75 (1989).
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Sealed Case, 310 F. 3d at 732.
United States v. Abu Jihaad, 630 F.3d 102, 122 (2d Cir. 2010).
United States v. Butenko, 494 F.3d 593, 605 (3d Cir. 1974).
United States v. Truong Dinh Hung, 629 F.2d 908, 914 (4th Cir. 1980).