RUDOLPH CONTRERAS, United States District Judge
Defendant Shantia Hassanshahi is charged with one count of conspiracy to violate the International Economic Emergency Powers Act, 50 U.S.C. § 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 Mr. 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 United States v. Hassanshahi, 75 F.Supp.3d 101 (D.D.C.2014). Following the Court's decision, Mr. Hassanshahi has argued, both orally before the Court and in rounds of supplemental briefing in response to orders of the Court, 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
The Court construes these arguments as a motion for reconsideration of the Court's denial of Mr. Hassanshahi's motion to suppress. For the reasons that follow, and upon consideration of the briefs submitted by both Mr. Hassanshahi and the Government, the Court denies that motion and affirms its ruling on the motion to suppress.
The Indictment against Mr. Hassanshahi alleges that, beginning in or around March 2009, Mr. 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 of Foreign 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 Mr. Hassanshahi's laptop computer, which the Government seized from Mr. 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.
Mr. 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. See Def.'s Mot. Suppress at 18-30, ECF No. 28. The Court denied Mr. 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 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 ("Patterson Decl."), ECF No. 49-1 (publicly-filed redacted version). In this declaration, Mr. 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.C. § 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. Mr. Patterson provided further detail concerning the metadata stored in the database:
Patterson Decl. ¶ 4. Mr. 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 Mr. Hassanshahi's telephone number. Id. ¶ 5. Mr. 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.C. § 876." Id. ¶ 6.
At a status conference before the Court on January 29, 2015 following the filing of Mr. Patterson's redacted declaration, counsel for Mr. 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 Mr. Hassanshahi filed a brief in response, to which the Government filed a reply brief. See Gov't's Response to the Court's Directive from the Jan. 29, 2015 Status Conference ("Gov't's Feb. 25 Brief"), ECF No. 51; Def.'s Response to Gov't's Filing ("Def.'s Apr. 13 Brief"), ECF No. 53; Gov't's Reply to Def.'s Response ("Gov't's Apr. 29 Brief"), ECF No. 58.
"Although the Federal Rules do not specifically provide for motions for reconsideration in criminal cases, the Supreme Court has recognized, in dicta, the utility of such motions." United States v. Ferguson, 574 F.Supp.2d 111, 113 (D.D.C.2008); see also United States v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976) (per curiam) (noting "the wisdom of giving district courts the opportunity to promptly correct their own alleged errors"). Courts in this District have, therefore, entertained motions for reconsideration in criminal cases by importing the standards of review applicable in motions for reconsideration in civil cases. See, e.g., United States v. Trabelsi, Crim. No. 06-89 (RWR), 2015 WL 5175882 at *2 (D.D.C. Sept. 3, 2015); United States v. Slough, 61 F.Supp.3d 103, 107 (D.D.C.2014); United States v. Cabrera, 699 F.Supp.2d 35, 39 (D.D.C.2010); United States v. Sunia, 643 F.Supp.2d 51, 60-61 (D.D.C.2009); United States v. Libby, 429 F.Supp.2d 46, 46-47 (D.D.C.2006). With respect to motions for reconsideration of final judgments, courts have adopted the standard of review for motions filed under Rule 59(e) of the Federal Rules of Civil Procedure. See Slough, 61 F.Supp.3d at 107 n. 1 (citing cases). With respect to interlocutory decisions, courts in this District have also adopted the standard from civil cases that reconsideration of an interlocutory decision is available "as justice requires." See Trabelsi, 2015 WL 5175882 at *2; Slough, 61 F.Supp.3d at 107; Sunia, 643 F.Supp.2d at 60-61.
The Court's denial of Mr. Hassanshahi's motion to suppress was an interlocutory decision, and, therefore, the Court follows the lead of other courts in this District and applies the "as justice requires" standard. "[A]sking `what justice requires' amounts to determining, within the Court's discretion, whether reconsideration is necessary under the relevant circumstances." Cobell v. Norton, 355 F.Supp.2d 531, 539 (D.D.C.2005). In making this determination, the Court considers whether it "patently misunderstood a party, has made a decision outside the adversarial issues presented to the Court by the parties, has made an error not of reasoning but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the Court." Singh v. George Washington Univ., 383 F.Supp.2d 99, 101 (D.D.C.2005) (internal quotation and citation omitted).
The Court is also guided by several generally applicable principles. "`Motions for reconsideration are committed to the sound discretion of the trial court.'" Trabelsi, 2015 WL 5175882 at *2 (quoting Judicial Watch, Inc. v. U.S. Dep't of Energy, 319 F.Supp.2d 32, 34 (D.D.C.2004)). Also, "[t]he moving party bears the burden `to show that reconsideration is appropriate and that harm or injustice would result if reconsideration were denied.'" Id. (quoting United States v. Hemingway, 930 F.Supp.2d 11, 13 (D.D.C.2013)). Moreover, a motion for reconsideration is "not simply
Mr. Hassanshahi and the Government advance a variety of arguments in connection with Mr. Hassanshahi's motion for reconsideration. These arguments can be grouped in two major issues for the Court to consider: first, whether Mr. 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. The Court addresses these issues below.
In his original motion to suppress the laptop evidence, Mr. Hassanshahi argued that the evidence should be suppressed on constitutional grounds. See Def.'s Mot. Suppress at 18-30. After the Court rejected that argument and denied the motion, the Government disclosed that the DEA obtained the information contained in the database from U.S. telecommunications service providers pursuant to administrative subpoenas that the Government asserts were authorized by 21 U.S.C. § 876. See Patterson Decl. ¶ 4. In light of this disclosure, Mr. Hassanshahi takes the position that the evidence should be suppressed not only on constitutional grounds, but also on statutory grounds, arguing that the DEA's collection and dissemination of the data violated 21 U.S.C. § 876. The Government takes the position, through several distinct arguments, that Mr. Hassanshahi is unable, as a matter of law, to challenge the statutory validity of the database and seek suppression of the evidence as a remedy. The Court addresses the Government's arguments in turn.
The Government argues that Mr. Hassanshahi cannot challenge the statutory validity of the DEA database for two reasons. First, the Government argues that Mr. Hassanshahi 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.
With respect to the DEA's collection of the metadata, the Court observes that Mr. Hassanshahi is not the first criminal defendant to challenge an administrative subpoena issued to a third party under Section 876.
In his limited response, Mr. Hassanshahi points to Clapper, in which the Second Circuit held, in relevant part, 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.
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 Feb. 25 Brief at 4 (quoting Jabara v. Webster, 691 F.2d 272, 277 (6th Cir.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 Mr. 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. Mr. 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, as discussed, infra, the Court finds that, even if Mr. Hassanshahi could challenge the statutory validity of the DEA database, suppression of the evidence would not be an available remedy.
The Court next turns to the issue of whether, assuming that Mr. Hassanshahi could successfully challenge the statutory validity of the DEA database, the Court could suppress evidence discovered as a result of the database, even if suppression would not be appropriate on constitutional grounds.
The suppression of evidence in a criminal trial is a serious remedy that is ordinarily reserved for certain circumstances involving violations of the Constitution. The Supreme Court has stated that the exclusionary rule "is a prudential doctrine created by this Court to compel respect for the constitutional guaranty." Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011) (internal quotations omitted). On occasion, however, Congress has separately provided a remedy for suppression for statutory violations. See, e.g., United States v. Donovan, 429 U.S. 413, 432, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977) (discussing the statutory suppression remedy provided by 18 U.S.C. § 2515 for violations of 18 U.S.C. § 2518 concerning requirements for wiretaps). Here, Mr. Hassanshahi does not dispute that Congress did not provide a suppression remedy for evidence collected in violation of Section 876. Instead, he argues that the Court should create a suppression
In considering this issue, the Court is guided by longstanding principles established by the Supreme Court and followed by the lower courts regarding the exclusionary rule and the suppression of evidence. In Hudson v. Michigan, the Supreme Court stated that "[s]uppression of evidence ... has always been our last resort, not our first impulse." Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). The Court explained that the rule "generates substantial social costs, which sometimes include setting the guilty free and the dangerous at large," and that the Court has therefore "been cautious about expanding it and [has] repeatedly emphasized that the rule's costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging its application." Id. (internal quotations omitted). The D.C. Circuit has observed that though the Supreme Court "has applied the exclusionary rule to certain Fourth Amendment violations," it "`has never ... interpreted'" the rule as "`proscrib[ing] the introduction of illegally seized evidence in all proceedings or against all persons.'" United States v. Spencer, 530 F.3d 1003, 1006 (D.C.Cir.2008) (quoting United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)).
This is not to say, however, that the Supreme Court has never suppressed evidence for statutory violations. In Sanchez-Llamas v. Oregon, a case decided in the same month as Hudson, the Court rejected a petitioner's argument that suppression was required for a violation of the Vienna Convention on Consular Relations, which provides that "when a national of one country is detained by authorities in another, the authorities must notify the consular offices of the detainee's home country if the detainee so requests." Sanchez-Llamas v. Oregon, 548 U.S. 331, 338-39, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006) (citation omitted). In reaching its holding, the Court first observed that it had "applied the exclusionary rule primarily to deter constitutional violations." Id. at 348, 126 S.Ct. 2669. The Court also noted that in "[t]he few cases in which we have suppressed evidence for statutory violations... the excluded evidence arose directly out of statutory violations that implicated important Fourth and Fifth Amendment concerns." Id. In its opinion, the Court discussed three such cases. See id. at 345, 126 S.Ct. 2669 (citing McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958)).
The Court agrees with the Government's observation that each of these cases, decided in the 1940s and 1950s, "concerned a statute that prophylactically protected Fourth Amendment or Due Process rights at a time when the judiciary had not fully fleshed out those constitutional protections." Gov't's Feb. 25, 2015 Brief at 7. The Court stated that McNabb, for example, "involved the suppression of incriminating statements obtained during a prolonged detention of the defendants, in violation of a statute requiring persons arrested without a warrant to be promptly presented to a judicial officer."
The Court is also guided by decisions of other Circuits holding that suppression is unavailable as a remedy for violations of other statutes. See, e.g., United States v. Forrester, 512 F.3d 500, 511-13 (9th Cir. 2008) (holding that suppression is not an available remedy for evidence collected in violation of a pen register statute, in part because "[a]s both the Supreme Court and this court have emphasized, suppression is a disfavored remedy, imposed only where its deterrence benefits outweigh its substantial social costs or (outside the constitutional context) where it is clearly contemplated by the relevant statute); United States v. Thompson, 936 F.2d 1249, 1251-52 (11th Cir.1991) (holding that suppression is not an available remedy for violation of the pen register statute based upon the observation that "several cases indicate that statutory violations by themselves are insufficient to justify the exclusion of any evidence obtained in that manner"), cert. denied 502 U.S. 1075, 112 S.Ct. 975, 117 L.Ed.2d 139 (1992). To the Court's knowledge, no court has ever suppressed evidence because it was collected in violation of Section 876 or, for that matter, in violation of any other administrative subpoena statute that did not explicitly provide for such a remedy.
Mr. Hassanshahi asserts that, in this case, the statutory violation was "intentional and systematic" and argues that this case therefore "presents a case of first impression not governed by Sanchez-Llamas or any other government cases." Def.'s Apr. 13 Brief at 8. Following Clapper, he argues that it is now clear that the statutory violation implicates the Fourth Amendment and that those implications, together with the statutory violation, require suppression of the evidence. See Def.'s June 22 Brief at 12-13. As his sole support for this position, he cites the Second Circuit's discussion of "some of the Fourth Amendment concerns that [the NSA program] implicates" and its statement that "[t]he seriousness of the constitutional concerns ... has some bearing on" its holding. Clapper, 785 F.3d at 821 n. 12, 824. He acknowledges, however, that the Second Circuit explicitly declined to reach the "weighty constitutional issues" that it found to be implicated. Id. at 824.
The Court disagrees with Mr. Hassanshahi's position that this is a case of first impression not governed by any precedent and regards the extensive precedent concerning the application of the exclusionary rule as instructive. Guided by the Supreme Court's repeated warnings against the expansion of the exclusionary rule even with respect to constitutional violations and the deep aversion of other Circuits to suppress evidence for statutory violations absent a clear indication of congressional intent, the Court declines to create a suppression remedy for evidence collected in violation of Section 876. The Court is not persuaded by Mr. Hassanshahi's argument that the claimed systematic and intentional statutory violations, together with their Fourth Amendment implications, require suppression. The Court finds that it is unnecessary to expand the exclusionary rule to address these issues and that the Fourth Amendment's well-established exclusionary
The Court also notes that even if it were proper to create a suppression remedy for evidence collected through a "systematic and intentional" statutory violation with Fourth Amendment implications, it would be inappropriate to effect such an unprecedented expansion in this case. First, Mr. Hassanshahi seeks to challenge administrative subpoenas directed at third parties. As discussed, supra, it is far from clear that he even has the ability to do so, let alone the ability to seek suppression of evidence obtained through a subsequent, separate and constitutional search as a result of those subpoenas. Cf. Moffett, 84 F.3d 1294 (rejecting the defendant's attempt to suppress evidence that he claimed was collected from third parties in violation of Section 876, stating that the court's "supervisory power does not authorize us to order suppression of `otherwise admissible evidence on the ground that it was seized unlawfully from a third party not before the court.'") (quoting United States v. Payner, 447 U.S. 727, 735, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980)). Moreover, the Fourth Amendment implications of the DEA database are also unclear. The Second Circuit observed in Clapper that the question of whether individuals have any privacy rights in records held by third parties that contain metadata relating to their telecommunications "touches an issue on which the Supreme Court's jurisprudence is in some turmoil." Clapper, 785 F.3d at 821-25. The "turmoil," however, is somewhat theoretical. As the Foreign Intelligence Surveillance Court explained following Clapper, the Supreme Court's decision in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), which held that individuals have no legitimate expectation of privacy in information that they voluntarily convey to a telecommunications provider when placing a telephone call, remains controlling precedent. See In re Application of the F.B.I., Misc. No. 15-01, 2015 WL 5637562 at **9-13 (FISA Ct. June 29, 2015). The Second Circuit declined to reach "these weighty constitutional issues" in Clapper, 785 F.3d at 824, and it would be even less appropriate for the Court to do so here, given that the Court has already assumed the unconstitutionality of the DEA database for purposes of its constitutional analysis and that it is unclear how the suppression analysis for a statutory violation would be any different, as even Mr. Hassanshahi appears to concede at one point. See Def.'s Apr. 13 Brief at 9 (arguing that "the Court need not reach the novel issue" in light of the assumption of unconstitutionality).
In conclusion, the Court finds that even if Mr. Hassanshahi had the ability to challenge the statutory validity of the DEA database and could demonstrate that evidence was collected in violation of Section 876 — issues the Court does not decide here
The Court next considers whether the newly disclosed details concerning the DEA database and the Second Circuit's decision in Clapper require the Court to reverse its prior decision denying Mr. Hassanshahi's motion to suppress the evidence on constitutional grounds.
In its prior decision, the Court explained 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,'" United States v. Brodie, 742 F.3d 1058, 1062-63 (D.C.Cir.2014) (quoting Hudson, 547 U.S. at 592, 126 S.Ct. 2159), "or, to put the same point with another metaphor, if circumstances have not `purged [the evidence] of the primary taint.'" Id. at 1063 (alteration in original) (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). The Court held 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." Hassanshahi, 75 F.Supp.3d at 118 (internal quotation omitted).
In order to determine whether reversal of the Court's decision is required, the Court reviews each stage of its analysis and assesses whether and to what extent the newly disclosed facts and Clapper might alter that analysis.
The Court's preliminary inquiry was whether an unlawful search or seizure occurred. See Hassanshahi, 75 F.Supp.3d at 109. As discussed, the Court assumed that the law enforcement database and HSI's search of the database were unconstitutional. See id. This assumption was, of course, favorable to Mr. Hassanshahi, and the Court maintains that assumption for purposes of its analysis here. The Court need not determine whether the DEA database, as the Court now understands it, was unconstitutional.
The Court also found that the existence of but-for causation was "quite plain." Hassanshahi, 75 F.Supp.3d at 109. The Court need not revisit that finding here, as it was also favorable to Mr. Hassanshahi and remains unchallenged.
As the Court explained in its prior opinion, the Supreme Court has identified three factors for courts to consider when determining attenuation: (1) the amount of time between the illegality and the discovery of the evidence (i.e., temporal proximity); (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the illegal conduct. See Brodie, 742 F.3d at 1063 (citing Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)). The Government bears the burden of proving attenuation by a preponderance of the evidence. See United States v. Holmes, 505 F.3d 1288, 1293 (D.C.Cir.2007); United States v.
The first factor is the temporal proximity between the illegality and the discovery of the evidence. See Hassanshahi, 75 F.Supp.3d at 110 (citing Brodie, 742 F.3d at 1063).
The Court observed that the Government's affidavit showed that "more than four months passed between the unconstitutional law enforcement database search on August 24, 2011, and the forensic laptop examination on January 17, 2012." Id. (citing Akronowitz Aff. ¶¶ 3, 21, ECF No. 37-1). The Court found that "this several month gap — during which the Government continued to investigate Hassanshahi through unrelated sources, including the use of preexisting evidence in TECS [a database that the Department of Homeland Security uses in connection with its border inspection processes] and the issuance of lawful subpoenas to Google — weighs in favor of not suppressing the laptop evidence." Id.
Neither the new factual details concerning the database nor the Second Circuit's decision in Clapper change the Court's factual or legal analysis in any way, nor does Mr. Hassanshahi offer any argument to the contrary. Accordingly, this factor continues to weigh against suppressing the evidence.
The second factor in the attenuation analysis is "whether there were intervening circumstances sufficient to break the causal chain and lessen the taint of the initial illegality." Hassanshahi, 75 F.Supp.3d at 110 (citing Brodie, 742 F.3d at 1062-63).
The Court considered two intervening circumstances in its denial of the motion to suppress. First, the Court found that Mr. Hassanshahi's voluntary arrival at LAX in January 2012 was a relevant intervening circumstance, but the Court held that it was "uncertain how much weight to give this event," given the open constitutional question as to whether reasonable suspicion was required for the Government's forensic examination of the laptop. Id. at 111-12. The Court held that it did not need to resolve the issue, because a second intervening circumstance, HSI's investigative steps following its discovery of the California telephone number, "unambiguously weighs in favor of not suppressing the laptop evidence." Id. at 112.
In making this determination, the Court looked to the "unlawful lead" principle, stating:
Id. The Court acknowledged a long line of cases that have "refus[ed] to apply the exclusionary rule to suppress evidence that was discovered during a later investigation following the initial unlawful discovery of evidence that merely pointed law enforcement in the defendant's direction." Id. The Court found that "[t]he circumstances here even more strongly compel finding attenuation than in [those] cases because the law enforcement database revealed only the slimmest of leads: the 818 number." Id. at 113.
The Court also observed that, unlike typical "unlawful lead" cases in which the defendant's identity is discovered through the unlawful search, in this case, HSI had to take additional steps to even identify
The newly disclosed details concerning the database do not alter the Court's conclusion in any way; they only bolster it. The Patterson Declaration states that "[n]o subscriber information or other personal identifying information was included in the database" and that it consisted exclusively of the initiating telephone number, the receiving telephone number, the date, time and location of the call, and the method by which the call was billed. Patterson Decl. ¶ 4. This confirms that, as the Court found in its prior opinion, the DEA database provided HSI with only "the slimmest of leads" and that HSI had to conduct a further investigation to even identify Mr. Hassanshahi.
Mr. Hassanshahi challenges the Court's conclusion, claiming that the Government has not "come clean even at this stage." Def.'s Apr. 13 Brief at 6. He relies upon a news report published by Reuters on August 5, 2013 concerning "[a] secretive U.S. Drug Enforcement Administration unit" called the Special Operations Division ("SOD") that the report states "is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans." Id. (quoting Def.'s Apr. 13 Brief Ex. at 1, ECF No. 53-1). The news report purports to rely on a secret Government document that instructs agents to "omit the SOD's involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony" and to "use normal investigative techniques to recreate the information provided by SOD." Id. at 6-7 (quoting Def.'s Apr. 13 Brief Ex. at 2). Mr. Hassanshahi suggests that the Government's disclosure of its subsequent search of TECS in a supplemental affidavit submitted in opposition to his motion to suppress may have been "an attempt to `recreate' an investigative trail that originated with SOD[.]" On this issue, the Government states that "[w]hile it would not be improper for a law enforcement agency to take steps to protect the confidentiality of a law enforcement sensitive investigative technique, this case raises no such issue." Gov't's Feb. 25 Brief at 3, n.2.
Though the Court does not necessarily share the Government's view regarding the propriety of the "recreation" technique, particularly if doing so involves providing false or misleading information to a criminal defendant or the Court, the Court finds no basis for concluding that the Government employed that technique here. Most significantly, Mr. Hassanshahi's theory is belied by the fact that the Government disclosed the existence of the database at issue here, albeit with limited detail, from the very beginning of its prosecution. See Aff. In Support Of Criminal Compl. ¶ 15, ECF No. 1-1 ("Using the business telephone number associated with `Sheikhi', I searched HSI-accessible law enforcement databases...."). Had the Government recreated its investigative steps to conceal potentially
The Court is thus satisfied that the newly disclosed information concerning the database does not alter its conclusion that the Government's investigative steps following the discovery of the California telephone number, a minor lead in the case, constitute an intervening circumstance that weighs heavily and unambiguously against suppressing the laptop evidence.
The final factor in the attenuation analysis is the "purpose" and "flagrancy" of the illegal law enforcement conduct. See Hassanshahi, 75 F.Supp.3d at 101 (citing Brodie, 742 F.3d at 1063). "As a rule, courts generally `favor suppression' only `if law enforcement officials conducted the illegal search with the purpose of extracting evidence against the defendant, or if they flagrantly broke the law in conducting the search.'" Id. (quoting United States v. Washington, 387 F.3d 1060, 1075 (9th Cir. 2004)). Though the Court acknowledged that it was "left slightly in the dark regarding the flagrancy element" given the lack of detail provided by the Government at the time, the Court nevertheless unequivocally concluded that "HSI did not act purposefully or in bad faith to violate Hassanshahi's constitutional rights." Id. at 114-15. In making this determination, the Court took several factors into account.
First, the Court "surmise[d] ... that the law enforcement database operates fairly similarly to the NSA program, at least insofar as the database appears to include a repository of aggregated telephone records for calls made into the U.S. from abroad." Id. at 114. The Court stated, however, that the "ambiguity" regarding the nature of the database complicated its analysis. Id. The Court explained that if, for example, it treated the database as "functionally equivalent to the NSA telephony program," then the Court would "likely conclude that HSI acted in good faith," because courts had generally approved of the program and, at the time of HSI's search of the database, no court had deemed the program unconstitutional. Id.
The Court stated, however, that it did not "know with certainty whether the HSI database actually involves the same public interests, characteristics, and limitations as the NSA program such that both databases should be regarded similarly under the Fourth Amendment." Id. In particular, the Court noted that the NSA database "was specifically limited to being used for counterterrorism purposes, and it remains unclear if the database that HSI searched imposed a similar counterterrorism requirement." Id. The Court speculated broadly that "[i]f the HSI database did have such a limitation, that might suggest some level of flagrancy by HSI because it was clear that neither Sheikhi nor Hassanshahi was involved in counterterrorism activities." Id. The Court nevertheless concluded that "even assuming that the HSI database was misused to develop the lead into Hassanshahi, HSI's conduct appears no more flagrant than law enforcement conduct in other `unlawful lead' cases, which still held that the attenuation exception applied nonetheless." Id. at 114-15
The Court stated that it was "more certain, though, that HSI did not search the law enforcement database for the purpose of `extracting evidence against the defendant.'" Id. at 115 (quoting Washington, 387 F.3d at 1075). The Court based this determination on the fact that, when it searched the database, "HSI had no inclination that Hassanshahi was involved" and that "the agency used the law enforcement database to cast a wide net for potential U.S.-based suspects." Id. Based largely on this determination, the Court found that the "purpose" and "flagrancy" factor weighed against suppressing the evidence.
Mr. Hassanshahi argues that the newly disclosed information concerning the database should materially alter the Court's analysis of this factor. He argues that the newly disclosed information demonstrates that the Government's actions were "nothing but purposeful," because: the Government "essentially subpoenaed 100% of Americans' telephony data and metadata for decades, without any specific investigation pending, all in deliberate violation of the statute"; the Government made the database "available to any and all comers, in deliberate violation" of the statute; the Government took steps to conceal the true source of the information; and the Government "did all this deliberately, purposefully and systematically, all while knowing for certain of the statutory violations and with strong knowledge of the Fourth Amendment implications if not outright violations." Def.'s July 29 Brief at 3-4. He principally relies on the Seventh Circuit's opinion in United States v. Reed, 349 F.3d 457, 464-65 (7th Cir.2003) regarding the importance of the purpose and flagrancy factor and argues that the flagrancy and purposefulness of the Government's conduct in this case "far exceeds, in depth and scope, any one-time violation such as was found flagrant in cases like Reed." Def.'s July 29 Brief at 3-4.
The Court is not persuaded. As a preliminary matter, nearly all of Mr. Hassanshahi's points concern whether the Government purposefully violated Section 876, not the relevant inquiry of whether it purposefully violated the Constitution. Moreover, Mr. Hassanshahi's factual assertions have little, if any, basis in the record. For example, the record does not indicate that the Government "essentially subpoenaed 100% of Americans' telephony data and metadata for decades." On the contrary, the Patterson Declaration states that the metadata concerned only calls originating from the United States and calling foreign countries. See Patterson Decl. ¶ 4. Also, as discussed, supra, there is no indication here that the Government has taken any steps to conceal the true source of the information, and Mr. Hassanshahi offers no support for his assertion that the Government "[knew] for certain" that it was violating a statute, which no court has ever decided. Mr. Hassanshahi's reliance on Reed is also misplaced. First, contrary to Mr. Hassanshahi's assertions, the Seventh Circuit did not hold that the misconduct in that case required suppression; it remanded the case to the district court to consider whether the unlawful actions were taken to advance the investigation or "embark on a fishing expedition" as "relevant" to the suppression analysis. Reed, 349 F.3d at 465-66. Second, in Reed, unlike this case, the Seventh Circuit upheld the district court's determination
Perhaps the most glaring flaw in Mr. Hassanshahi's briefing on this issue is his failure to engage with the Court's prior analysis of the purpose and flagrancy factor and demonstrate what exactly about the new information should alter the Court's analysis. For the sake of clarity, however, the Court will revisit its analysis in light of the new information and Clapper.
Most significantly, the newly disclosed information does not in any way change the Court's critical conclusion that HSI did not search the law enforcement database in order to target Mr. Hassanshahi. Regardless of any other factual developments since the Court's prior opinion, it remains clear that when HSI searched the DEA database, it had no indication that Mr. Hassanshahi had any involvement in the matters it was investigating and that HSI was unable to even identify Mr. Hassanshahi until after it lawfully obtained information from Google. Given that the Court concluded on this basis that the purpose and flagrancy factor counseled against suppression, this is sufficient for the Court to determine that reconsideration of this factor is unjustified.
Nevertheless, the Court observes that the newly disclosed information resolves some of the ambiguity described in the Court's prior opinion concerning whether the Court could treat the database at issue here as "functionally equivalent" to the NSA's database and whether HSI "misused" the database to develop the lead into Mr. Hassanshahi. It is now clearer that the DEA database was similar in many important respects to the NSA's database. For instance, the Patterson Declaration largely confirms the Court's hypothesis that the DEA database contained records of international telephone calls, except the Court now understands that the records concerned calls originating in the United States, rather than abroad. See Patterson Decl. ¶ 4. The Court also now understands that the records were limited to specific types of metadata that did not include any personal identifying information. These records appear to have actually been narrower in scope than the records stored in the NSA's telephony database. See Clapper, 785 F.3d at 793-97 (describing orders under the NSA program calling for "all call-detail records or `telephony metadata'" of all domestic and international calls).
The DEA database also appears to have differed in some other ways. Most notably, the Court now understands that the DEA originally collected the information contained in the database and that HSI accessed it for a different purpose.
In its prior opinion, the Court stated that if it treated the database at issue as "functionally equivalent" to the NSA's program, then it would likely conclude that HSI acted in good faith, because courts have generally approved of the NSA's program and because no court at the time of the search had disapproved of it. Cases decided since the Court's opinion do not require any alteration to that analysis. The Court noted that the one exception at the time of its decision was Judge Leon's opinion in Klayman v. Obama, 957 F.Supp.2d 1 (D.D.C.2013). The D.C. Circuit has since vacated that decision on standing grounds. See Obama v. Klayman, 800 F.3d 559 (D.C.Cir.2015). Nor does the Second Circuit's decision in Clapper affect the Court's prior analysis, as the Second Circuit declined to reach the constitutional issues in that case. Though there are differences between the two, the Court is now more comfortable viewing the DEA database and the NSA's program as "functionally equivalent" for purposes of the Court's analysis here, which only bolsters the Court's earlier conclusion regarding the purpose and flagrancy factor of the attenuation analysis.
In sum, while the newly disclosed information concerning the DEA database provides helpful clarity, the Court finds that none of the new information, nor Clapper or any other developments in the legal landscape, alter the Court's prior conclusion that all three attenuation factors weigh against suppression and that the new information only confirms the Court's prior holding that the exclusionary rule does not require suppressing the laptop evidence in this case as fruit of the poisonous tree.
For the foregoing reasons, Defendant Shantia Hassanshahi's motion for reconsideration is
