United States District Court, D. Arizona
V. Wake Senior United States District Judge.
the Court is Defendant's Motion to Suppress E-Mail
Content and Derivative Evidence (Doc. 196).
seeks the suppression of “all e-mail content
(including, but not limited to, all e-mails, attachments,
‘buddy lists, ' and private messages) produced by
all third party Internet Service Providers (‘ISPs')
to the Government pursuant to a search warrant or based upon
an order pursuant to 18 U.S.C. § 2703(d), and all
evidence derived therefrom.” (Id. at 1.)
Defendant contends that ten court orders and two search
warrantsused to obtain email evidence in this case
did not comply with requirements of the Stored Communication
Act (“SCA”), 18 U.S.C. 2701 et seq., and
therefore were invalid, rendering the search and seizure a
violation of Defendant's Fourth Amendment rights.
Defendant seeks suppression as a remedy for the
explained below, suppression as a remedy for a Fourth
Amendment violation is not available to Defendant. Even if it
were, the challenged orders and warrants would not be
suppressed for any of the reasons raised by Defendant.
is a Syrian national charged with committing multiple crimes
while residing in Iraq and China related to the death of
United States soldiers and destruction of United States
property in Iraq. Defendant had not been in the United States
before he was arrested in Turkey for extradition and brought
to Arizona in 2014.
alleged criminal conduct began in about January 2005 and
continued to about July 2010. Investigators learned that some
component parts related to the alleged crimes were
manufactured by a company headquartered in Arizona. In
December 2009, the Phoenix FBI opened an investigation, and a
federal grand jury in Arizona commenced an investigation.
December 2009 and June 2011, the Government applied for and
obtained from the United States District Court for the
District of Arizona ten orders for email records and content
pursuant to 18 U.S.C. § 2703(b)(1)(B) and (d)
(“§ 2703(d) Orders”) and two email search
warrants pursuant to 18 U.S.C. § 2703(b)(1)(A)
(“Warrants”). When the Government obtained each
of the § 2703(d) Orders, the court authorized delayed
notification pursuant to § 2705(a). Through
investigation, the Government determined that Defendant was
not a subscriber or a customer to many of the target email
accounts. On September 24, 2014, the Government notified
Defendant via letter to his counsel of the § 2703(d)
Orders for the email accounts for which Defendant is the
subscriber or customer. On September 18, 2014, the Government
provided the content obtained from the accounts to Defendant.
Copies of the Warrants and content obtained from the Warrants
were provided to Defendant through discovery.
THE FOURTH AMENDMENT DOES NOT APPLY TO THE EVIDENCE OBTAINED
UNDER THE § 2703(d) ORDERS AND WARRANTS.
seeks suppression of email evidence obtained pursuant to the
§ 2703(d) Orders and Warrants as a remedy for violation
of the Fourth Amendment. The parties have not cited, and the
Court has not found, authority deciding whether the Fourth
Amendment protects a nonresident alien, who has had no
previous significant voluntary connection with the United
States, from an unreasonable search and seizure of property
located in the United States. Relevant binding authority,
however, indicates that it does not.
United States v. Verdugo-Urquidez, the Supreme Court
held that the Fourth Amendment does not apply to the search
and seizure by United States agents of property that is owned
by a nonresident alien and located in a foreign country. 494
U.S. 259, 261 (1990). The case involved the search of the
Mexican residences of a citizen and resident of Mexico who
had no previous significant voluntary connection with the
United States. The Court explained that, unlike amendments
that protect a “person” or an “accused,
” the Fourth Amendment protects only “the people,
” a term of art used in select parts of the
Constitution and related to the Preamble's use of
“the People of the United States.” Id.
at 265. It is a term of art that “refers to a class of
persons who are part of a national community or who have
otherwise developed sufficient connection with this country
to be considered part of that community.” Id.
Reviewing the history of the drafting of the Fourth
Amendment, the Court concluded “its purpose was to
restrict searches and seizures which might be conducted by
the United States in domestic matters.” Id. at
266. The Court summarized its review:
The available historical data show, therefore, that the
purpose of the Fourth Amendment was to protect the people of
the United States against arbitrary action by their own
Government; it was never suggested that the provision was
intended to restrain the actions of the Federal Government
against aliens outside of the United States territory.
Id. Therefore, although aliens receive certain
constitutional protections when they have come within the
territory of the United States and developed substantial
connections with the United States, they may be denied
protection outside the sovereign territory of the United
States. Id. at 269-71. However, the issue presented
in Verdugo-Urquidez involved only a search and
seizure conducted outside the United States.
United States v. Barona, the Ninth Circuit
summarized Verdugo-Urquidez as holding the Fourth
Amendment is inapplicable to “foreign searches
involving aliens with ‘no voluntary connection' to
the United States.” 56 F.3d 1087, 1093 (9th Cir. 1995).
At issue was whether wiretap evidence obtained in Denmark and
Italy should have been suppressed. The Ninth Circuit declined
to reach the question of whether the resident alien
defendants had undertaken sufficient obligations of
citizenship or had otherwise developed sufficient connection
with the United States to be considered one of “the
People of the United States” entitled to receive Fourth
Amendment protection in the context of an extraterritorial
search. Id. at 1094.
United States v. Zakharov, after the United States
Coast Guard seized a foreign fishing vessel smuggling cocaine
in international waters and took its crew members into
custody, one of the crew members confessed in San Diego,
California, during an interview with an agent of the United
States Drug Enforcement Administration. 468 F.3d 1171 (9th
Cir. 2006). The crew member argued that failure to obtain a
probable cause determination before he was physically present
in the United States constituted undue delay under the Fourth
Amendment and justified suppressing his confession made in
the United States. The Ninth Circuit stated, “[T]he
district court properly determined that Zakharov's
confession should not be suppressed because the Fourth
Amendment does not apply to non-resident aliens outside of
the United States.” Id. at 1174. Relying on
Verdugo-Urquidez and Barona, the Ninth
Circuit noted that the Fourth Amendment does not apply to
searches and seizures by the United States against a
non-resident alien in a foreign country, the alleged
unconstitutional delay occurred outside of the United States
in international waters, and there was no suggestion that the
defendant had any substantial connection to the United
States. Id. at 1179. The opinion did not address the
fact that the evidence to be suppressed was obtained in the
United States v. Mohamud, the Ninth Circuit decided
multiple issues involving the government's use of
evidence against a United States resident that was
incidentally obtained from electronic surveillance targeting
a foreign national pursuant to the Foreign Intelligence
Surveillance Act. 843 F.3d 420 (9th Cir. 2016). The searches
took place in the United States, but no evidence showed the
targeted foreign national had sufficient voluntary connection
with the United States for the Fourth Amendment to apply.
Id. at 439 & n. 22. The Ninth Circuit concluded
the search did not require a warrant because it was not
directed at a United States person's communications and
because “the search was targeted at a non-U.S. person
with no Fourth Amendment right.” Id. at 439.
The Ninth Circuit explained that “what matters here is
the location of the target, and not where the
government literally obtained the electronic data.”
Id. (internal quotation marks and citation omitted).
The Ninth Circuit held the incidental interception of a
non-targeted United States person's email communications
was lawful because the warrantless search of the email
communications of a non-United States person located outside
of the United States at the time of the surveillance was
lawful. Id. at 441.
it is undisputed that Defendant is a nonresident alien who
had no previous significant voluntary connection with the
United States. When the § 2703(d) Orders and Warrants
were obtained and implemented, Defendant was located and
resided outside of the United States. When the electronic
communications were allegedly made by Defendant, he was
located and resided outside of the United States. No physical
property located in the United States was seized. The storage
of the content of electronic communications on servers
located in the United States-without more-cannot justify
extending Fourth Amendment protection to a person who does
not have substantial connections to the United States.
EVEN IF SUPPRESSION UNDER THE FOURTH AMENDMENT WERE AVAILABLE
TO DEFENDANT, HE HAS NOT RAISED A BASIS FOR DOING
The § 2703(d) Orders and Warrants Were Issued by a
“Court of Competent Jurisdiction” Under the
Stored Communications Act.
contends the § 2703(d) Orders and Warrants are invalid
because the United States District Court for the District of
Arizona was not a “court of ...