United States District Court, D. Columbia.
[Copyrighted Material Omitted]
For SHANTIA HASSANSHAHI, also known as SHANTIA HASSAN SHAHI, also known as SHAHI, also known as SHANTIA HAAS, also known as SEAN HAAS, Defendant: Mir Saied Kashani, LEAD ATTORNEY, PRO HAC VICE, Los Angeles, CA; John Patrick Pierce, THEMIS PLLC, Washington, DC.
For HASSTON, INC., Defendant: Mir Saied Kashani, LEAD ATTORNEY, PRO HAC VICE, Los Angeles, CA.
For USA, Plaintiff: Frederick Walton Yette, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Criminal Division, Washington, DC; Jeffrey Michael Smith, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.
Re Document No.: 28
RUDOLPH CONTRERAS, United States District Judge.
Denying Defendant's Motion to Suppress
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. Now before the Court is Hassanshahi's motion to suppress evidence uncovered during a forensic examination of his laptop following an international border stop at Los Angeles International Airport on the basis that the laptop examination violated the Fourth Amendment. Upon consideration of Hassanshahi's motion and the opposition thereto, the Court reaches two conclusions: first, the exclusionary rule does not require suppressing the laptop evidence as fruit of the poisonous tree because discovery of that evidence was sufficiently attenuated from the initial unlawful telephone database search; and second, reasonable suspicion existed for conducting the forensic examination after Hassanshahi landed at the airport. Accordingly, the Court will deny Hassanshahi's motion to suppress.
II. FACTUAL BACKGROUND
On August 16, 2011, Homeland Security Investigations (" HSI" ) received an unsolicited e-mail from a source indicating that the source had received an e-mail from an Iranian known as M. Sheikhi who, on behalf of his Iranian company, sought the source's assistance in procuring protection relays for an Iranian power project. See Akronowitz Aff., ECF No. 37-1 (" 2d Akronowitz Aff." ) at ¶ 2. The e-mail from Sheikhi to the source contained an Iranian business telephone number and the address for Sheikhi's company in Tehran, Iran. See id. An HSI agent used the telephone number associated with Sheikhi to search an " HSI-accessible law enforcement database" in the hope of identifying potential U.S.-based targets engaged in the sale or export of protection relays for use in Iran. See id. ¶ 3. The HSI agent's search returned a single telephone record indicating one call between Sheikhi's telephone number and a telephone number with an " 818" area code (the " 818 number" ), which is the area code for Los Angeles, California. See id. ¶ 4.
After discovering that the 818 number was assigned to Google/Google Voice, see id. ¶ 13, HSI prepared and served on Google an Administrative Export Enforcement Control Subpoena (" AEEC Subpoena" ). See id. ¶ 14. In response, Google provided information that identified Hassanshahi as the person to whom the 818 number was registered, and Google also provided an e-mail address registered to Hassanshahi. See id. ¶ 15. In addition, Google provided call log information for the period between September 6, 2011, and October 6, 2011, which showed that the 818 number had received one telephone call from an unknown Iranian phone number on October 5, 2011. See id.; Revised Akronowitz Aff., ECF No. 42-1 (" 3d Akronowitz Aff." ) at ¶ 15. The Google call log information also revealed one missed call between Hassanshahi's 818 number and an unknown Iranian cell phone number on September 19, 2011. See 2d Akronowitz Aff. ¶ 15.
On October 18, 2011, the HSI agent searched the Department of Homeland Security's (" DHS" ) TECS database for additional information about Hassanshahi. See id. ¶ 16. TECS led the agent to discover that Hassanshahi was involved in a prior federal law enforcement investigation into potential violations of the Iran trade embargo. See id. ¶ 16a. Specifically, the
investigation occurred in 2003 through an HSI office in California, and the investigation uncovered that Hassanshahi and two partners had established an American company for the purpose of entering into an agreement with a Chinese company to build a computer production facility in Iran. See id. Hassanshahi's American company later filed a breach-of-contract claim against the Chinese company in California state court, and that lawsuit was dismissed in part because the contract was unenforceable as against public policy since it involved doing business in Iran, a clear violation of U.S. law. See id. The Department of Justice did not file criminal charges against Hassanshahi for his role in this venture. See id.
The TECS search also revealed a number of earlier instances in which Hassanshahi reentered the U.S. after traveling to the Middle East, including: an incident in 2005 when Hassanshahi was questioned by U.S. Customs and Border Protection (" CBP" ) agents after returning from Dubai with $15,000 in cash; an incident in 2006 when Hassanshahi returned from Tehran with a travel companion; and four other returns from Tehran--two in 2008, one in 2010, and one in May 2011. See id. ¶ ¶ 16c-e. In addition, HSI learned through TECS that Hassanshahi presently was outside the U.S., so HSI supplemented the existing TECS information by entering instructions that HSI should be alerted and Hassanshahi should be referred for secondary screening the next time he returned to the U.S. See id. ¶ 17.
Around December 20, 2011, HSI served Google with a second AEEC Subpoena, this time seeking subscriber information and recent Internet protocol (" IP" ) logs for Hassanshahi's Google e-mail account. See id. ¶ 18. In response, Google provided information indicating that Hassanshahi's e-mail account was accessed from an Iran IP address twenty-four times between December 8, 2011, and December 15, 2011. See id. The information provided by Google also showed, however, that Hassanshahi's e-mail account was accessed from a U.S. IP address on the same day it apparently was accessed from an Iran IP address, including sometimes within just a few minutes of each other. See Def.'s Reply Supp. Mot. Dismiss Ex. 1 at 27 (Google Subscriber Information). And on another occasion, Hassanshahi's e-mail account apparently was accessed on the same day from an Iran IP address, a Germany IP address, and a U.S. IP address, occasionally alternating between the countries within minutes. See id. at 30.
On January 11, 2012, HSI was alerted that Hassanshahi would be returning to the U.S. the next day through Los Angeles International Airport (" LAX" ). See 2d Akronowitz Aff. ¶ 19. When Hassanshahi
arrived at LAX on January 12, he was referred for secondary screening, at which time CBP agents seized several electronic devices in Hassanshahi's possession--including a laptop computer, multimedia cards, thumb drives, a camcorder, SIM cards, and a cell phone--and sent those devices to the HSI agent in Sterling, Virginia, for further analysis. See id. ¶ 20; Arkonowitz Aff., ECF No. 1-1 (" 1st Arkonowitz Aff." ) at ¶ 19. When the devices arrived in Virginia a few days later, HSI conducted a forensic examination of the laptop and discovered numerous documents relating to Hassanshahi's apparent business activities in Iran, see 2d Arkonowitz Aff. ¶ 21, including documents showing that in 2009, Hassanshahi, through his company, purchased approximately $6,000,000 in goods that were exported to Armenia and then transshipped to Iran, see 1st Arkonowitz Aff. ¶ 22, as well as a September 5, 2011, letter from Hassanshahi to the Iranian Minister of Energy in which Hassanshahi asked the Iranian government for payment for " protective relays for transmission lines." See id.
Now before the Court is Hassanshahi's motion to suppress the evidence discovered during the forensic examination of his laptop. Hassanshahi asserts two arguments in support of his motion. First, he argues that the law enforcement database through which HSI initially obtained his 818 number constituted an unconstitutional search, and under the fruit of the poisonous tree doctrine, the forensic laptop examination was the direct result of that unlawful search such that the laptop evidence was tainted and must be suppressed. Second and alternatively, Hassanshahi argues that this Court should follow two recent court decisions from other federal jurisdictions that concluded that the Fourth Amendment required reasonable suspicion to conduct a forensic examination of an electronic device after an international border stop. Hassanshahi then argues that the laptop evidence must be suppressed here because the Government lacked reasonable suspicion for the search. The Court addresses these arguments below.
Hassanshahi's motion to suppress requires the Court to analyze two important areas of Fourth Amendment jurisprudence: the fruit of the poisonous tree doctrine and international border searches. As to the first issue, it is well settled that evidence secured as the result of an illegal search or seizure is tainted fruit of a poisonous tree that must be suppressed, unless intervening events or other attenuating circumstances sufficiently dissipated the taint of the initial illegality. The Court ultimately finds that such attenuating circumstances existed here, and the exclusionary rule therefore does not require suppression of the evidence found on Hassanshahi's laptop. Second, the Court finds that reasonable suspicion existed for the forensic examination of Hassanshahi's laptop after it was seized during the international border stop at LAX. Finally, because the Court reaches this conclusion as to reasonable suspicion, it need not--and
does not--take a position regarding whether, as a matter of law, the Fourth Amendment required the Government to possess reasonable suspicion before conducting the forensic examination.
A. Legal Standard For Motion To Suppress
Generally, " [t]he proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." Rakas v. Illinois, 439 U.S. 128, 130 n.1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (citations omitted). However, when, like here, " 'a defendant produces evidence that he was arrested or subjected to a search without a warrant, the burden shifts to the government to justify the warrantless arrest or search.'" United States v. Jones, 374 F.Supp.2d 143, 147 (D.D.C. 2005) (quoting United States v. de la Fuente, 548 F.2d 528, 533 (5th Cir. 1977)); see also United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951) (" [T]he burden is on those seeking the exemption to show the need for it[.]" (citation omitted)); United States v. Mangum, 100 F.3d 164, 169, 321 U.S.App.D.C. 348 (D.C. Cir. 1996) (" The government carries the burden of showing that the measures employed during the stop were justified." ).
B. Fruit Of The Poisonous Tree And Attenuation
The Fourth Amendment protects " [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. By its text, the Amendment " 'contains no provision expressly precluding the use of evidence obtained in violation of its commands.'" Herring v. United States, 555 U.S. 135, 139, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (quoting Arizona v. Evans, 514 U.S. 1, 10, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995)). Supreme Court decisions, however, have " establish[ed] an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial," see id., in order " to 'compel respect for the constitutional guaranty.'" Davis v. United States, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011) (quoting Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)). Furthermore, though the Supreme Court " has applied the exclusionary rule to certain Fourth Amendment violations[,]" it " 'has never ... interpreted'" that 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, 382 U.S.App.D.C. 90 (D.C. Cir. 2008) (quoting United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). Rather, the exclusionary rule is designed to safeguard Fourth Amendment rights through its deterrent effect, and the rule therefore only applies when it results in " appreciable deterrence." See Herring, 555 U.S. at 139-41.
The fruit of the poisonous tree doctrine was developed within the context of the Supreme Court's exclusionary rule jurisprudence. Under the 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, 408 U.S.App.D.C. 326 (D.C. Cir. 2014) (quoting Hudson v. Michigan, 547 U.S. 586, 592, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006)), " 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)). In the motion to suppress, Hassanshahi argues that the evidence on his laptop should be excluded as tainted fruit because its discovery resulted directly from the initial law enforcement database search that uncovered the 818 number.
1. Existence Of An Initial Unlawful Search Or. Seizure
The Court's preliminary inquiry is whether an unlawful search or seizure occurred. Hassanshahi argues that the law enforcement database in which the HSI agent ran a search using Sheikhi's business telephone number must be either the National Security Agency's (" NSA" ) bulk telephony metadata program or an equivalent telephony database. See Def.'s Mem. Supp. Mot. Suppress 18-30. Hassanshahi then relies on Judge Leon's opinion in Klayman v. Obama, 957 F.Supp.2d 1 (D.D.C. 2013), appeal pending, No. 14-5004 (D.C. Cir.), to establish the facial unconstitutionality of the NSA telephony program or, by implication, the unconstitutionality of the unknown equivalent database allegedly used by HSI here.
In response, the Government sidesteps Hassanshahi's argument by taking the position that although the NSA telephony database was not used, the Court nevertheless should assume arguendo that the law enforcement database HSI did use was unconstitutional. See Gov't's Mem. Opp'n Mot. Suppress 12. Consistent with this position, the Government refuses to provide details about its law enforcement database on the basis that such information is irrelevant once the Court accepts the facial illegality of the database. See id. at 11-12. Regrettably, the Court therefore starts its analysis from the posture that HSI's initial search of the mysterious law enforcement database, which uncovered one call between Sheikhi's business telephone number and the 818 number linked to Hassanshahi, was unconstitutional.
2. But-For Causation
Next, the Court finds that the existence of but-for causation between the law enforcement database search and the forensic laptop examination is quite plain. See Brodie, 742 F.3d at 1062-63 (explaining that " but-for" causation is a " necessary condition" in the fruit of the poisonous tree analysis); see also Owens v. Republic of Sudan, 412 F.Supp.2d 99, 111 (D.D.C. 2006) (but-for causation asks: " were the act removed from the sequence of events leading up to the injury, would the injury have occurred as it did?" ). Here, the law enforcement database search revealed the 818 number, which led HSI to subpoena Google, through which HSI learned that the 818 number was registered to Hassanshahi. HSI then investigated Hassanshahi through TECS and by issuing a second subpoena to Google, which together led HSI to place an alert in TECS requiring CBP officers to refer Hassanshahi for secondary screening the next time he returned to the U.S. Finally, when Hassanshahi arrived at LAX, CBP officers followed the TECS instruction by referring Hassanshahi to secondary screening, and ...