United States v. Ali , 870 F. Supp. 2d 10 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Criminal No. 11-0106
ALI MOHAMED ALI,
Defendant.
REDACTED MEMORANDUM OPINION*
Defendant Ali Mohamed Ali is charged with conspiracy, aiding and abetting, piracy, and
hostage taking as a result of the hijacking of the M/V CEC Future, a Bahamian-flagged cargo
ship owned by Clipper Group A/S, a Danish company.1 On November 7, 2008, the CEC Future
was sailing in the Gulf of Aden, off the coast of Yemen, when it was seized by Somali pirates.
The pirates forced the crew to navigate the ship to Point Raas Binna, near the Somali coast.
There, sometime on November 9 or 10, Ali boarded the ship before it sailed to waters near Eyl,
Somalia. The government alleges that while the ship was under the pirates’ control, Ali
communicated ransom demands from the pirates to Clipper. Initially, Ali communicated with
“Steven,” a negotiator hired by Clipper, but as the incident wore on, Ali began communicating
directly with Per Gullestrup, Clipper’s CEO. The government further alleges that, as Ali
negotiated a ransom of $1.7 million for the release of the ship, he also negotiated a separate
*
The Court filed this Memorandum Opinion under seal on May 25, 2012 [Dkt. No. 183] because
many of the pleadings it addressed were sealed. Based on input from the parties, the Opinion is
now being made public in redacted form. It will be released in full once trial in this matter is
underway.
1
See Second Superseding Indictment, May 8, 2012 [Dkt. No. 172] (“Ind.”).
1
Among his purported anti-piracy efforts, Ali includes his role in the CEC Future incident,
as well as in a number of other piracy incidents. In June 2008, before the CEC Future was
hijacked, Somali pirates attacked the Rockall, and took its owners, a German couple, to shore in
Somalia and held them there. (Defendant’s Motion for a Deposition Under Federal Rule of
Criminal Procedure 15, March 6, 2012 [Dkt. No. 128] (under seal), Ex. 2 at 1.) Ali was asked by
4
Conspiracy and aiding and abetting are inchoate crimes. United States v. Bailey, 444
U.S. 394, 405 (1980) (conspiracy is an “inchoate offense[]”); United States v. Seals, 130 F.3d
451, 463 (D.C. Cir. 1997) (aiding and abetting is an “inchoate offense[]”).
This is to say, that, although the law generally makes criminal only antisocial
conduct, at some point in the continuum between preparation and consummation,
the likelihood of a commission of an act is sufficiently great and the criminal
intent sufficiently well formed to justify the intervention of the criminal law.
United States v. Feola, 420 U.S. 671, 694 (1975) (citation omitted). Because of their focus on an
“agreement to engage in a criminal venture,” id.,9 “laws against conspiracy . . . criminalize
speech . . . that is intended to . . . commence illegal activities.” United States v. Williams, 553
U.S. 285, 298 (2008) (emphasis added). Where a particular kind of criminal intent is absent, so,
too, is criminal liability. The same can be said of aiding and abetting.10 Thus, under “the law of
inchoate offenses . . . a heightened mental state separates criminality itself from otherwise
innocuous behavior.” Bailey, 444 U.S. at 405.11
9
See United States v. Jimenez Recio, 537 U.S. 270, 274 (2003) (“The Court has repeatedly said
that the essence of a conspiracy is ‘an agreement to commit an unlawful act.’” (emphasis added)
(collecting cases) (quoting Iannelli v. United States, 420 U.S. 770, 777 (1975))).
10
See Ethan Preston & John Lofton, Computer Security Publications: Information Economics,
Shifting Liability and the First Amendment, 24 Whittier L. Rev. 71, 101 (2002) (“Many cases of
inchoate crimes are often or always effected through speech acts. Such crimes include
conspiracy . . . and aiding and abetting.” (internal quotation marks, alterations, citation, and
footnote omitted)); Jeremy J. Ofseyer, Taking Liberties with John Stuart Mill, 1999 Ann. Surv.
Am. L. 395, 411 (1999) (“Speech crimes include perjury and several inchoate crimes, such as
incitement, solicitation, conspiracy, and aiding and abetting.”).
11
See Ira P. Robbins, Double Inchoate Crimes, 26 Harv. J. on Legis. 1, 6–7 (1989) (Inchoate
crimes “allow the judicial system to impose criminal liability on conduct designed to culminate
in the commission of a substantive offense” and “permit[] intervention once an individual’s
actions, though not criminal in themselves, have sufficiently manifested an intent to commit a
criminal act.” (emphasis added, footnotes omitted)); David B. Filvaroff, Conspiracy and the
First Amendment, 121 U. Pa. L. Rev. 189, 194–95 (1972) (Inchoate crimes “reach[] back in time,
prior to the completion of the substantive offense, and seek[] to punish for something less than
9
Courts sometimes refer to this “heightened mental state” as one of “specific intent.” See
United States v. Moore, 651 F.3d 30, 92 (D.C. Cir. 2011) (“An aiding and abetting conviction
require[s] proof that [the defendant] had . . . the specific intent to facilitate the commission of a
crime by another.” (internal quotation marks and citation omitted)); United States v. Childress,
58 F.3d 693, 707 (D.C. Cir. 1995) (“[C]onspiracy is a ‘specific intent’ crime.”).12 Specific
intent, in turn, is described as encompassing notions of purpose. See Bailey, 444 U.S. at 405 (“In
a general sense, ‘purpose’ corresponds loosely with the common-law concept of specific
intent.”).
“‘[T]he specific intent required for the crime of conspiracy is . . . the intent to advance or
further the unlawful object of the conspiracy.’” Childress, 58 F.3d at 708 (alterations in the
original) (quoting United States v. Haldeman, 559 F.2d 31, 112 (D.C. Cir. 1976)). Accordingly,
in order to convict Ali of conspiracy, the government must prove beyond a reasonable doubt that
Ali acted with the “specific intent to further the conspiracy’s objective.” Id.The second superseding indictment alleges that the “purpose and object” of the
conspiracy to commit piracy (Count One) was “to profit and make money by detaining the ship,
crew and cargo of the M/V CEC Future and depriving the lawful owners of control over and the
value of the ship and the cargo until ransom was paid.” (Ind. at 2.) The indictment does not
effectuation of the ultimate harm. . . . Among [these], conspiracy is most distant from the
completed harm. . . . [C]onspiracy prescribes punishment for little more than state of mind.”).
12
The term “specific intent” is not without its detractors. The Supreme Court has acknowledged
that the distinction between specific intent and general intent, while “venerable,” “has been the
source of a good deal of confusion.” Bailey, 444 U.S. at 403. Other courts and treatises have
noted that the term “‘specific intent’ [is] particularly susceptible to a wide variety of meanings.”
United States v. Starnes, 583 F.3d 196, 210 (3d Cir. 2009); see generally Wayne R. LaFave, 1
Substantive Criminal Law § 5.2(e) (2d ed. 2003). In Starnes, after examining the “‘traditional
dichotomy of general versus specific intent,’” the Third Circuit rejected it as “more perplexing
than helpful.” 583 F.3d at 209 (quoting Dixon v. United States, 548 U.S. 1, 7 (2006)).
10
specifically define the objective of the conspiracy to commit hostage taking (Count Three), but
alleges that Ali and others
did conspire and agree with one another, to seize, detain and threaten to kill, to
injure, and to continue to detain the crew of the M/V CEC Future, in order to
compel . . . Clipper Group . . . to pay a ransom, consisting of 1.7 million U.S.
dollars delivered to the ship, and a separate payment of 75,000 U.S. dollars
delivered via a wire transfer to a bank account, as an explicit condition for the
release of the M/V CEC Future, its crew and cargo.
(Ind. at 6.)
Therefore, in order to convict Ali of conspiracy, the government must establish that Ali
acted with the specific intent, or the “purposeful intent,” Childress, 58 F.3d at 707 (emphasis in
the original), to a) profit and make money by detaining the CEC Future, its crew, and its cargo,
and by depriving Clipper of control over the ship, and of the ship’s value, until ransom was paid
(Count One); and to b) compel Clipper to pay a ransom by seizing, detaining, and threatening to
kill, injure, and continue to detain the CEC Future’s crew (Count Three). (Ind. at 2, 6.) The
government bears the burden of proving beyond a reasonable doubt that Ali “consciously
desire[d] [these] result[s].” Bailey, 444 U.S. at 404 (internal quotation marks and citation
omitted); see Childress, 58 F.3d at 707–08.
Similarly, “[i]n order to aid and abet another to commit a crime it is necessary that a
defendant ‘in some sort associate himself with the venture, that he participate in it as in
something that he wishes to bring about, that he seek by his action to make it succeed.’” Nye &
Nissen v. United States, 336 U.S. 613, 619 (1949) (quoting United States v. Peoni, 100 F.2d 401,
402 (2d Cir. 1938) (Hand, J.)) (cited in Moore, 651 F.3d at 92). “All the words used” in this
definition—“even the most colorless, ‘abet’—carry an implication of purposive attitude.” Peoni,
100 F.2d at 402 (emphasis added). Therefore, in order to convict Ali of aiding and abetting
11
piracy under the law of nations (Count Two) and hostage taking (Count Four), the government
must prove that Ali acted with “the specific intent to facilitate the commission of [these] crime[s]
by []other[s].” Moore, 651 F.3d at 92 (internal quotation marks and citation omitted).
Ali argues that the evidence which the government seeks to prevent him from introducing
is directly relevant to whether he acted with these intentions onboard the CEC Future.
Specifically, he claims that evidence and of his role
in other piracy incidents both before and after the CEC Future hijacking would undercut the
government’s case as to his mens rea and further would, as to post-CEC Future events, show a
lack of consciousness of guilt.13 The government, on the other hand, characterizes such evidence
as purporting to show Ali’s “good motive,” and argues that it is irrelevant to his defense. (Gov’t
Omnibus Mot. at 4.)
Court decisions, treatises, and law reviews are rife with debates about the relationship
between specific intent and motive, and the relevance (if any) of the latter in a criminal case.14
13
The government arguably opened the door to this argument by seeking to introduce evidence
that Ali “conducted negotiations” during the piracy of the Karag l. (Gov’t Karag l Mot. at 3.)
Ali not only urged the Court to admit the Karag l evidence under Rule 404(b) (Def. Omnibus
Opp’n at 2 & n.2), but also moved to introduce evidence of his role in additional incidents of
piracy, all to negate the government’s mens rea showing. (See Def. 404(b) Mot.) This Court has
granted the government’s motion regarding the Karag l as unopposed. (See Order, April 12,
2012 [Dkt. No. 164] (under seal).) The Court addresses Ali’s Rule 404(b) motion below.
14
Compare United States v. Poindexter, 727 F. Supp. 1470, 1475 (D.D.C. 1989) (agreeing with
defendant that “absence of . . . motive would . . . refute the claim that [defendant] intentionally
entered into” the conspiracy charged in the indictment, and holding that “[e]vidence regarding
the absence of motive is usually admitted to negate specific intent”) (collecting cases), and
United States v. Richmond, 700 F.2d 1183, 1196 (8th Cir. 1983) (“good motive, by itself, is not a
defense to a crime” but “evidence relating to motive can be considered in relationship to [a
defendant’s] intent or state of mind”), abrogated on other grounds, United States v. Raether, 82
F.3d 192 (8th Cir. 1996), and United States v. Wilson, 2 F. Supp. 2d 1170, 1171 (E.D. Wis.
1998) (“‘[t]he motive of the defendant is . . . immaterial except insofar as evidence of motive
may aid in the determination of state of mind or the intent of the defendant’” (alterations in the
12
The Court need not wade into this debate, however, because on these facts, Ali has the better
argument. This is not the typical case where the criminal law finds it irrelevant that a robber
original) (quoting 1 Devitt, Blackmar, Wolff, & O’Malley, Federal Jury Practice and
Instructions § 17.06 (14th ed.))), and Elaine M. Chiu, The Challenge of Motive in the Criminal
Law, 8 Buff. Crim. L. Rev. 658, 663 (2005) (“As Jerome Hall so pithily stated in 1960, ‘[h]ardly
any part of penal law is more definitely settled than that motive is irrelevant.’ . . . Earnest
defenders of the maxim,” however, “qualify the pithy phrase: ‘The orthodox doctrine holds that
motive is irrelevant to criminal liability unless it is specifically made relevant as part of the
definition of a crime . . . .’ Although stated for the purpose of defending the irrelevance maxim,
such qualifications are basically a concession that specific intent crimes, inchoate crimes, and
[certain defenses] have long regarded the motives of a defendant in determining criminal
liability.” (footnotes omitted) (quoting Jerome Hall, General Principles of Criminal Law 88 (2d
ed. 1960)), and Guyora Binder, The Rhetoric of Motive and Intent, 6 Buff. Crim. L. Rev. 1, 48–
49 (2002) (“inchoate offenses such as attempt and conspiracy . . . criminal[ize an act] only if [it
is] committed with the . . . purpose of causing some harm” (citing Walter H. Hitchler, Motive as
an Essential Element of Crime, 35 Dick. L. Rev. 105, 111, 113–14 (1931)), with United States v.
Romano, 849 F.2d 812, 816 n.7 (3d Cir. 1988) (affirming the irrelevance of any defense based on
an intent to save lives in a case charging a defendant with conspiring to damage government
property), and United States v. Kabat, 797 F.2d 580, 588–89 (8th Cir. 1986) (evidence of motive
is irrelevant even with regard to a specific intent crime), and United States v. Martin, 740 F.2d
1352, 1360 (6th Cir. 1984) (same), and United States v. Rosado, 728 F.2d 89, 93 (2d Cir. 1984)
(describing as “erroneous” the “assumption that good motive for committing a crime is
inconsistent with criminal intent”), and United States v. Badolato, 701 F.2d 915, 921–22 (11th
Cir. 1983) (“The Government does not deny that [the defendant] is an investigative journalist
and film-maker by profession, and we are not unsympathetic to this position; however, his
argument on appeal confuses the intent to enter into an agreement to violate federal drug laws
with the purpose or goal which motivates one to enter into such an agreement. . . . What [the
defendant] hoped to achieve by entering into this agreement is of little consequence. . . .
Regardless of what the conspirator hopes to get out of it, conspiracy is a criminal act, and the
issue properly phrased is whether [defendant] knowingly and intentionally entered into it.”), and
United States v. Huet-Vaughn, 43 M.J. 105, 113–14 (C.A.A.F. 1995) (“‘A person often acts with
two or more intentions. These intentions may consist of an immediate intention (intent) and an
ulterior one (motive), as where the actor takes another’s money intending to steal it and intending
then to use it to buy food for his needy family. . . . It may be said that, so long as the defendant
has the intention required by the definition of the crime, it is immaterial that he may also have
had some other intention.’” (quoting W. LaFave & A. Scott, 1 Substantive Criminal Law § 3.5(d)
at 313 (1986))), and Michael T. Rosenberg, Note, The Continued Relevance of the Irrelevance-
of-Motive Maxim, 57 Duke L. J. 1143, 1169–70 (2008) (“Once motive is understood as
something altogether distinct from intentions, it is clear that motive is irrelevant to specific intent
crimes and inchoate crimes.” (citing Hall, General Principles, supra, at 86)).
13
stole to stave off starvation. Rather, to “prove” the “particular offense[s]” with which Ali is
“charged[,] . . . an analysis of [his] purpose . . . . is necessary.” United States v. Cullen, 454 F.2d
386, 391–92 (7th Cir. 1971) (Stevens, J.) (footnote omitted).15 Specific intent is unquestionably
“an element of” the crimes of conspiracy and aiding and abetting. Id. at 391; see Childress, 58
F.3d at 707–08 (“purposeful intent—or ‘conscious desire’ to achieve a ‘result[]’ . . . is the
essence of conspiracy” (emphasis in the original, citation omitted) (quoting Bailey, 444 U.S. at
404)); Moore, 651 F.3d at 92 (aiding and abetting is a specific intent crime); see also Peoni, 100
F.2d at 403 (aiding and abetting and “conspiracy [both] import[] a concert of purpose”). With
regard to the conspiracy charges, evidence that Ali acted “to shorten the crew’s ordeal, protect
their lives, and collect intelligence on pirates for the benefit of the United States and the
seafaring community” (Def. Omnibus Opp’n at 3) may make it more or less likely that he acted
15
In Cullen, the defendant had been convicted of burning draft records. 454 F.2d at 387. On
appeal, his principal contention was that the trial judge should have instructed the jury “that
religious compulsion might negate the requisite criminal intent and thereby warrant acquittal.”
Id. Cullen claimed that he was “compelled by his religious beliefs to act as he did and, therefore,
did not have the requisite intent to commit the offenses charged.” Id. at 390.
The Seventh Circuit affirmed Cullen’s conviction. Id. at 392. Writing for the court,
then-Judge Stevens responded to Cullen’s contention “that his evidence of ‘compulsion’ [was]
relevant to the issue of intent” by first “recogniz[ing] that the term ‘intent’ may be used in at
least three different senses: First, that the prohibited act was performed deliberately; second, that
defendant knew it was wrong; and third, that it was designed to further some ultimate goal.” Id.
at 390. Judge Stevens concluded that the crimes with which Cullen was charged only required a
showing of intent as contemplated by the first and second meanings of the term, such that any
religious compulsion he may have felt was irrelevant. Id. at 392. As to the third type of intent,
however, Judge Stevens recognized that, “[i]n some situations the defendant’s ultimate objective
may be an element of the particular offense charged.” Id. at 391. As an example, Judge Stevens
stated that “to prove a criminal attempt an analysis of the defendant’s purpose beyond the overt
act actually completed is necessary.” Id. at 391–92 (footnote omitted). Conspiracy and aiding
and abetting, as other inchoate offenses, require the same. As noted above, under “‘the law of
inchoate offenses,’” with regard to crimes “‘such as attempt[,] . . . conspiracy,’” and aiding and
abetting, “‘a heightened mental state separates criminality itself from otherwise innocuous
behavior.’” Childress, 58 F.3d at 707 (quoting Bailey, 444 U.S. at 405); see Seals, 130 F.3d at
463 (aiding and abetting is an inchoate offense).
14
purposefully, Childress, 58 F.3d at 707–08, to profit and make money by taking and holding the
CEC Future for ransom, and to compel Clipper to pay a ransom by seizing, detaining, and
threatening to kill, injure, and continue to detain the CEC Future’s crew. And with regard to
aiding and abetting piracy and hostage taking, such evidence may make it more or less likely that
Ali acted with the specific intent to facilitate the commission of those crimes by the pirates.
Moore, 651 F.3d at 92. The Court therefore concludes that the evidence at issue is relevant, and
it will deny the government’s motions in limine.16
The Court further concludes that although this evidence pertains to Ali’s “other act[s],” it
is nonetheless “admissible” for the “purpose” of negating the government’s showing of Ali’s
“intent.” Fed. R. Evid. 404(b)(2). Evidence of a defendant’s other acts is admissible under Rule
404(b) if it
1) . . . is relevant in that it has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence,” Fed. R. Evid. 401; 2) the fact of
consequence to which the evidence is directed relates to a matter in issue other
than the defendant’s character or propensity to commit crime; and 3) the evidence
is sufficient to support a jury finding that the defendant committed the other . . .
act.
16
The Supreme Court’s decision in United States v. Pomponio, 429 U.S. 10 (1976) (per curiam),
is not to the contrary. In Pomponio, the court approved a district court’s jury instruction that
“‘[g]ood motive alone is never a defense where the act done or omitted is a crime,’ and that
consequently motive [is] irrelevant except as it [bears] on intent.” 429 U.S. at 11 (emphasis
added, first alteration in the original, internal quotation marks omitted); see id. at 13. This
instruction, the court held, accurately reflected the government’s burden of proving that
defendants acted with “the specific intent to violate the law.” Id. at 11. Here, “the act done or
omitted”—Ali’s agreement with the pirates in the conspiracy charges, for example—is only “a
crime,” id., if Ali acted with “purposeful intent—or ‘conscious desire’ to achieve . . . the
conspiracy’s objective.” Childress, 58 F.3d at 707–08 (emphasis in the original, citation
omitted) (quoting Bailey, 444 U.S. at 404). Therefore, this Court’s decision is entirely consistent
with Pomponio, as the evidence that the Court is admitting, however it is characterized, bears on
Ali’s intent. 429 U.S. at 11.
15
United States v. Bowie, 232 F.3d 923, 930 (D.C. Cir. 2000) (some citations omitted). The
evidence at issue qualifies in all regards, in that it 1) is relevant to 2) Ali’s intent, and 3) is
sufficient to show that Ali committed the other acts in question. Id. Notwithstanding the
government’s arguments to the contrary (see Gov’t Omnibus Mot. at 6–7), the fact that the
evidence may negate the government’s showing as to Ali’s mens rea is precisely what makes it
admissible under Rule 404(b). “Whether the [other act] is laudable or unlawful should not make
much difference; the question in each case is whether [the act] makes more or less likely the
existence of some fact that matters.” United States v. Burke, 781 F.2d 1234, 1243 (7th Cir.
1985); see United States v. Hayes, 219 F. App’x 114, 116 (3d Cir. 2007) (unpublished) (“As is
true with bad act evidence, evidence of good acts is also admissible for a proper purpose such as
motive, intent, absence of mistake, etc.”).
However, the Federal Rules of Evidence require the Court, in its discretion, to “exclude
relevant evidence if its probative value is substantially outweighed by a danger of,” inter alia,
“confusing the issues, misleading the jury, undue delay, wasting time, or needless presenting
cumulative evidence.” Fed. R. Evid. 403; see United States v. Brown, 597 F.3d 399, 406 (D.C.
Cir. 2010) (“‘[T]he Rule 403 inquiry in each case involving Rule 404(b) evidence will be case-
specific. There can be no ‘mechanical solution,’ no per se rule.’ United States v. Crowder, 141
F.3d 1202, 1210 (D.C. Cir. 1998) (en banc). . . . [T]he decision on exclusion rests in the sound
discretion of the district court.” (some alterations in the original)).
For the reasons stated above and discussed at hearings on April 11, 2012, and May 17,
2012, the Court will grant Ali’s 404(b) motion. Specifically, the Court will admit evidence
pertaining to Ali’s role in incidents of piracy involving the ships Rockall, Karag l, Stolt
Strength, Maersk Alabama, Lynn Rival, and De Xin Hai under Rule 404(b). (See also Order,
16
II. DEFENDANT’S MOTION TO SUPPRESS
Ali challenges six search warrants and the searches and seizures conducted pursuant to
them.19 He argues that the Fourth Amendment demands the exclusion of the evidence obtained.
A. Legal principles
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,” and provides that “no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.” 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 (2009)
(quoting Arizona v. Evans, 514 U.S. 1, 10 (1995)). However, Supreme Court “decisions
establish an exclusionary rule that, when applicable, forbids the use of improperly obtained
evidence at trial,” id., in order “to ‘compel respect for the constitutional guaranty.’” Davis v.
United States, 131 S. Ct. 2419, 2426 (2011) (quoting Elkins v. United States, 364 U.S. 206, 217
(1960)).
Although the Supreme Court “has applied the exclusionary rule to certain Fourth
Amendment violations,” it “‘has never . . . interpreted’” that provision 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 (1984)). To the contrary, the Court has “repeatedly rejected the argument that
19
See Def. Mot. to Suppress, Ex. 1 (May 25, 2010 warrant for Ali’s email), Ex. 3 (April 21, 2011
warrant for Ali’s suitcase and computer bag), Ex. 4 (April 21, 2011 warrant for Ali’s cell phone),
Ex. 5 (April 21, 2011 warrant for Ali’s laptop computer), Ex. 6 (May 4, 2011 warrant for Ali’s
external hard drive).
18
exclusion is a necessary consequence of a Fourth Amendment violation.” Herring, 555 U.S. at
141 (collecting cases). Rather, the judicially created exclusionary rule is designed to safeguard
Fourth Amendment rights generally through its deterrent effect, and therefore applies only where
it results in appreciable deterrence. Id. at 139, 141.
Furthermore, “[r]eal deterrent value is a necessary condition for exclusion, but it is not a
sufficient one,” because “[t]he analysis must also account for the substantial social costs
generated” by the rule. Davis, 131 S. Ct. at 2427 (internal quotation marks and citations
omitted). The rule “almost always requires courts to ignore reliable, trustworthy evidence
bearing on guilt or innocence.” Id. Therefore, the Supreme Court has emphasized that “[f]or
exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy
costs.” Id.“In a line of cases beginning with” Leon, the Supreme Court has calibrated its “cost-
benefit analysis” according to “the flagrancy of the police misconduct at issue” and has
instructed that “the deterrence benefits of exclusion vary with the culpability of the law
enforcement conduct.” Id. (internal quotation marks and alterations omitted); see Leon, 468 U.S.
at 909. When the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth
Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting
costs. Davis, 131 S. Ct. at 2427 (citing Herring, 555 U.S. at 144). But when the police act with
an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct
involves only simple, isolated negligence, the deterrence rationale loses much of its force, and
“exclusion cannot ‘pay its way.’” Id. at 2427–28 (quoting Leon, 468 U.S. at 908 n.6).
In Davis, the Supreme Court listed cases where it had “applied [Leon’s] ‘good-faith’
exception” to the exclusionary rule. Id. at 2428 (collecting cases). The Court stated the well-
19
established “theme” linking these cases, and the rationale behind it: “The error in [such cases]
rests with the issuing magistrate, not the police officer, and ‘punish[ing] the errors of judges’ is
not the office of the exclusionary rule.” Id. (second alteration in the original) (quoting Leon, 468
U.S. at 916). Thus, in “Leon itself,” the Supreme Court held that “the exclusionary rule does not
apply when the police conduct a search in ‘objectively reasonable reliance’ on a warrant later
held invalid.” Id. (quoting Leon, 468 U.S. at 922).
Pursuant to Leon, courts determine the objective reasonableness of the police’s reliance
on a warrant by considering “‘whether a reasonably well trained officer would have known that
the search was illegal’ in light of ‘all of the circumstances.’” Herring, 555 U.S. at 145 (quoting
Leon, 468 U.S. at 922 n.23).20 If such an officer would have discerned the search’s illegality
because “the affidavit supporting the warrant was ‘so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable,’” then suppression remains
appropriate. Spencer, 530 F.3d at 1007 (quoting Leon, 468 U.S. at 923). Supreme Court
“precedents make clear, however, that [this] threshold . . . is a high one.” Messerschmidt v.
Millender, 132 S. Ct. 1235, 1245 (2012).
Probable cause is “a fluid concept—turning on the assessment of probabilities in
particular factual contexts—not readily, or even usefully, reduced to a net set of legal rules.”
Illinois v. Gates, 462 U.S. 213, 232 (1983). In determining whether probable cause exists,
[t]he task of the issuing magistrate is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit before him
. . . there is a fair probability that contraband or evidence of a crime will be found
in a particular place. And the duty of a reviewing court is simply to ensure that
20
Courts consider the executing “officer’s knowledge and experience” but the test remains an
objective one, Herring, 555 U.S. at 145, and asks, given what he knew, whether it was
reasonable for the officer to rely on the magistrate’s finding of probable cause.
20
the magistrate had a “substantial basis for . . . conclud[ing]” that probable cause
existed.
Id. at 238–39 (some alterations in the original) (quoting Jones v. United States, 362 U.S. 257,
271 (1960), overruled on other grounds by United States v. Salvucci, 448 U.S. 83, 85 (1980)).
Thus, the Supreme Court has “described . . . probable cause to search as existing where the
known facts and circumstances are sufficient to warrant a man of reasonable prudence in the
belief that contraband or evidence of a crime will be found.” Ornelas v. United States, 517 U.S.
690, 696 (1996).
In this “totality-of-the-circumstances analysis,” Gates, 462 U.S. at 238, courts consider,
inter alia, whether the facts in the underlying affidavit are “so closely related to the time of the
issue of the warrant as to justify a finding of probable cause at that time.” Sgro v. United States,
287 U.S. 206, 210 (1932). Yet, pursuant to Leon, an affidavit’s facts are only “too stale,” and the
exclusionary rule only applies, if the officers executing the warrant “‘could not have harbored an
objectively reasonable belief in the existence of probable cause.’” United States v. Webb, 255
F.3d 890, 905 (D.C. Cir. 2001) (quoting Leon, 468 U.S. at 926). Courts “give ‘great deference’
to the issuing judge’s probable-cause determination . . . [a]nd a police officer is ordinarily
entitled to rely on the magistrate’s conclusion.” Spencer, 530 F.3d at 1006 (quoting Gates, 462
U.S. at 236).
Objectively reasonable reliance by the executing officers does not, however, bar
application of the exclusionary rule in all instances. Suppression remains appropriate under Leon
“‘if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the
affiant knew was false or would have known was false except for his reckless disregard of the
truth.’” Id. at 1007 (quoting Leon, 468 U.S. at 923); see Franks v. Delaware, 438 U.S. 15421
(1978).21 Yet, “[a]n affidavit offered in support of a search warrant enjoys a ‘presumption of
validity.’” United States v. Maynard, 615 F.3d 544, 550 (D.C. Cir. 2010) (quoting Franks, 438
U.S. at 171). In order to invoke Franks, a defendant must
make[] a substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the affiant
in the warrant affidavit, and [that] the allegedly false statement [was] necessary to
the finding of probable cause.
438 U.S. at 155–56. Upon making this substantial showing, which must be “more than
conclusory” and “accompanied by an offer of proof,” id. at 171, “the Fourth Amendment
requires that a hearing be held.” Id. at 156. If the defendant proves his allegations “by a
preponderance of the evidence, and, with the affidavit’s false material set to one side, the
affidavit’s remaining content is insufficient to establish probable cause, the search warrant must
be voided and the fruits of the search excluded.” Id.“[U]nder certain circumstances,” a defendant may establish that he is entitled to a Franks
hearing on the basis of “material omissions.” Spencer, 530 F.3d at 1007 (citing United States v.
Johnson, 696 F.2d 115, 118 n.21 (D.C. Cir. 1982)); see Burke, 405 F.3d at 81 (“the intentional or
reckless omission of material exculpatory facts from information presented to a magistrate may
21
Whereas Leon emphasizes the deference courts owe magistrates’ probable cause
determinations, in the situations contemplated in Franks,
[a]llegations of intentional or reckless misstatements or omissions implicate the
very truthfulness, not just the sufficiency, of a warrant application. If such
allegations prove to be true, a court owes no deference to a magistrate’s decision
to issue an arrest warrant because, “where officers procuring a warrant have
deliberately misled the magistrate about relevant information, no magistrate will
have made a prior probable cause determination” based on the correct version of
the material facts.
Burke v. Town of Walpole, 405 F.3d 66, 82 (1st Cir. 2005) (quoting Velardi v. Walsh, 40 F.3d
569, 574 n.1 (2d Cir. 1994)).
22
. . . amount to a Fourth Amendment violation” (citing DeLoach v. Bevers, 922 F.2d 618, 622
(10th Cir. 1990))). Indeed, “[b]y reporting less than the total story, an affiant can manipulate the
inference a magistrate will draw. To allow a magistrate to be misled in such a manner could
denude the probable cause requirement of all real meaning.” United States v. Stanert, 762 F.2d
775, 781 (9th Cir. 1985) (citing Franks, 438 U.S. at 168).22
Therefore, a defendant seeking to obtain a Franks hearing must show that (1) the
affidavit contained false statements or omitted certain facts; (2) the false statements or omitted
facts were material to the finding of probable cause; and (3) the false statements or omissions
were made knowingly and intentionally, or with reckless disregard for the truth. United States v.
Becton, 601 F.3d 588, 594 (D.C. Cir. 2010); Spencer, 530 F.3d at 1007.
22
The Sixth Circuit has observed that “an affidavit which omits potentially exculpatory
information is less likely to present a question of impermissible official conduct than one which
affirmatively includes false information.” United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir.
1997) (citing United States v. Martin, 920 F.3d 393, 398 (6th Cir. 1990)); see also Mays v. City
of Dayton, 134 F.3d 809, 816 (6th Cir. 1998). The Sixth Circuit’s reasoning, however, has
nothing to do with the likelihood that an officer’s conduct was impermissible, but rather with the
unrelated concern that an allegation of an omission “‘potentially opens officers to endless
conjecture about investigative leads, fragments of information, or other matter that might, if
included, have redounded to defendant’s benefit.’” Martin, 920 F.2d at 398 (quoting United
States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990)). The Court recognizes that this concern
may be compelling, but because it has no bearing on the question that motivates Franks—
namely, “whether there ha[s] been official misconduct in the drafting of the affidavit,” 438 U.S.
at 167—the Court will not treat the Sixth Circuit’s empirical observation as though it were a
substantive factor to be applied in assessing whether a defendant has made out the preliminary
showing that Franks requires. In so doing, the Court follows the example of the Fourth Circuit,
on which the Sixth Circuit has relied. The Fourth Circuit has observed that “the Franks
threshold is even higher for defendants making claims of omissions rather [than] affirmative
false statements,” but in defining that threshold, it has stated the same, standard formulation on
which this Court relies: “the defendant must show that the omissions were ‘designed to mislead,
or . . . made in reckless disregard of whether they would mislead’ and that the omissions were
material, meaning that their ‘inclusion in the affidavit would defeat probable cause.’” United
States v. Clenney, 631 F.3d 658, 664 (4th Cir. 2011) (emphasis and alterations in the original)
(quoting Colkley, 899 F.2d at 301).
23
With regard to the second factor, allegedly false information in an affidavit is material
only if, when it is “set to one side, the affidavit’s remaining content is insufficient to establish
probable cause.” Franks, 438 U.S. at 156. By corollary, omitted facts are only material if “their
‘inclusion in the affidavit would defeat probable cause.’” Spencer, 530 F.3d at 1007 (quoting
Colkley, 899 F.2d at 301); see United States v. Davis, 617 F.2d 677, 694 (D.C. Cir. 1979)
(omitted facts are only material if their “recitation would have tipped the balance against a
finding of probable cause”). Accordingly, for a defendant to be entitled to a Franks hearing, “[a]
substantial preliminary showing that the affidavit contained reckless or deliberate falsities and
omissions must be followed by a substantial showing that the affidavit purged of those falsities
and supplemented by the omissions would not be sufficient to support a finding of probable
cause.” United States v. McNeese, 901 F.2d 585, 596 (7th Cir. 1990), overruled on other
grounds by United States v. Nance, 236 F.3d 820 (7th Cir. 2000).
With regard to the third factor, “Franks protects against” false statements and “omissions
that are designed to mislead, or that are made in reckless disregard of whether they would
mislead, the magistrate.” Colkley, 899 F.2d at 301 (emphasis omitted). “Under Franks,
negligent police miscommunications in the course of acquiring a warrant do not provide a basis
to rescind a warrant and render a search . . . invalid.” Herring, 555 U.S. at 145. Courts are well-
equipped to judge allegations that false statements and omissions are intentionally misleading.
However, “as the Court of Appeals for the District of Columbia Circuit has lamented,
‘unfortunately, the Supreme Court in Franks gave no guidance concerning what constitutes a
reckless disregard for the truth in fourth amendment cases, except to state that negligence or
innocent mistake is insufficient.’” Wilson v. Russo, 212 F.3d 781, 787 (3d Cir. 2000) (alterations
and some internal quotation marks omitted) (quoting Davis, 617 F.2d at 694).
24
In Davis, the D.C. Circuit defined recklessness as it pertains to alleged false statements
with recourse to “precedents in the area of libel and the [F]irst [A]mendment,” where “reckless
disregard for the truth requires a showing that” the speaker “‘in fact entertained serious doubts as
to the truth of his publication.’” 617 F.2d at 694 (quoting St. Amant v. Thompson, 390 U.S. 727,
7231 (1968)). At issue in Davis was whether the defendant was entitled to a Franks hearing
where the affidavit included statements made by an informant whom the affiant knew to have
been “under coercion” when he made them. Id. Importing the “subjective test” for reckless
disregard from the libel area, the court held that a defendant could succeed “by showing actual
deliberation” on behalf of the affiant or “by demonstrating that there existed ‘obvious reasons to
doubt the veracity of the informant or the accuracy of his reports.’” Id. (quoting St. Amant, 390
U.S. at 732)). Since the D.C. Circuit decided Davis, “most Circuits that have had occasion to
address the issue have adopted a” similar test, which asks whether the affiant “in fact entertained
serious doubts as to the truth of the . . . statements” which the defendant alleges to be false.
United States v. Kunen, 323 F. Supp. 2d 390, 395 (E.D.N.Y. 2004) (internal quotation marks,
alterations, and citation omitted).
Determining whether an omission was made recklessly presents particular difficulties.
On the one hand, “[a]ll storytelling involves an element of selectivity,” and courts “cannot
demand that police officers relate the entire history of events leading up to a warrant application
with every potentially evocative detail that would interest a novelist or gossip.” Wilson, 212
F.3d at 787. To do so “would make the process of applying for a search warrant a cumbersome
procedure inimical to effective law enforcement” and therefore “might encourage rather than
discourage improper police behavior: facing ever more stringent requirements for obtaining
warrants, police might forego applying for one whenever they think they might have a tenable
25
case for proceeding without one.” Davis, 617 F.2d at 694 (citing United States v. Ventresca, 380
U.S. 102, 108 (1965)).
“On the other hand, one of the reasons for requiring a neutral magistrate to evaluate
probable cause is that an uninterested party is presumably better suited to review and evaluate
the facts than an officer pursuing a lead.” Wilson, 212 F.3d at 787. As the Supreme Court has
emphasized,
“The point of the Fourth Amendment, which often is not grasped by zealous
officers, is not that it denies law enforcement the support of the usual inferences
which reasonable men draw from evidence. Its protection consists in requiring
that those inferences be drawn by a neutral and detached magistrate instead of
being judged by the officer engaged in the often competitive enterprise of
ferreting out crime. . . . When the right of privacy must reasonably yield to the
right of search is, as a rule, to be decided by a judicial officer, not by a policeman
or Government enforcement agent.”
Payton v. New York, 445 U.S. 573, 586 n.24 (1980) (quoting Johnson v. United States, 333 U.S.
10, 13–14 (1948)). Thus, consistent with the Fourth Amendment, “a police officer cannot make
unilateral decisions about the materiality of information, or, after satisfying him or herself that
probable cause exists, merely inform the magistrate or judge of inculpatory evidence.” Wilson,
212 F.3d at 787.
Balancing these competing concerns, the Third Circuit chose to “follow the common
sense approach” of the Eighth Circuit, id., and held that “omissions are made with reckless
disregard for the truth when an officer recklessly omits facts that any reasonable person would
know that a judge would want to know.” Id. at 783; see United States v. Jacobs, 986 F.2d 1231,
1235 (8th Cir. 1993) (inferring reckless disregard based on the “highly relevant” nature of the
omitted information); United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986) (noting
inference permissible when omission would have been “‘clearly critical’” to the issuing judge’s
26
probable cause determination (quoting United States v. Martin, 615 F.2d 318, 329 (5th Cir.
1980)). It is clear that courts cannot “infer recklessness solely from [an affiant’s] alleged
awareness” of exculpatory material. Davis, 617 F.2d at 694. Yet, the weight of legal authority
permits the inference “‘where the omitted information was critical to the probable cause
determination.’” Burke, 405 F.3d at 81 (quoting Golino v. City of New Haven, 950 F.2d 864, 871
(2d Cir. 1991); citing Wilson, 212 F.3d at 783); accord Madiwale v. Savaiko, 117 F.3d 1321,
1327 (11th Cir. 1997); DeLoach v. Bevers, 922 F.2d 618, 622 (10th Cir. 1990).23
With these principles in mind, the Court proceeds to address Ali’s specific arguments for
suppression. To begin, the Court will consider two issues that concern many of the underlying
23
As noted, the First, Second, Third, Fifth, Eighth, Tenth, and Eleventh circuits instruct courts
assessing a defendant’s request for a Franks hearing to infer that an affiant’s omission was
reckless if the omitted material was “clearly critical” to the finding of probable cause. The Ninth
Circuit has also adopted this approach, albeit in an unpublished opinion. See United States v.
Hayes, Nos. 87-5164, 87-5166, and 87-5168, 1993 WL 515508, at *2 (9th Cir. Dec. 10, 1993)
(“recklessness may be inferred ‘where the omitted information was clearly critical to the
probable cause determination’” (some internal quotation marks omitted) (quoting Rivera v.
United States, 928 F.2d 592, 604 (2d Cir. 1991))). The Fourth Circuit, however, has criticized
the “clearly critical” approach on the grounds that it “collapses into a single inquiry the two
elements—‘intentionality’ and ‘materiality’—which Franks states are independently necessary.”
Colkley, 899 F.2d at 301.
“The D.C. Circuit has not yet weighed in on whether a court can make an inference of
recklessness if an affiant omits material that is ‘clearly critical’ to the finding of probable cause.”
United States v. Lindsey, 596 F. Supp. 2d 55, 60 n.4 (D.D.C. 2009). However, in the context of
false statements, the Circuit in Davis held that an affiant acts with reckless disregard for the truth
where “there exist[] ‘obvious reasons to doubt [the statement’s] veracity.’” 617 F.2d at 694
(quoting St. Amant, 390 U.S. at 732). By extension, it seems that reckless disregard can be
inferred in the context of omissions where “any reasonable person would know that a judge
would want to know” the omitted facts in making a determination of probable cause. Wilson,
212 F.3d at 783; see, e.g., United States v. Robinson, 546 F.3d 884, 889 (7th Cir. 2008) (To be
entitled to a Franks hearing, “a defendant has the burden to ‘offer direct evidence of the affiant’s
state of mind or inferential evidence that the affiant had obvious reasons for omitting facts in
order to prove deliberate falsehood or reckless disregard.’” (emphasis added) (quoting McNeese,
901 F.2d at 594)).
27
probable cause to believe that . . . evidence of a crime will be found.”).25 On these facts, Ali’s
intent was not relevant to the magistrates’ determinations of probable cause.
The Fourth Circuit’s recent decision in Sennett v. United States, 667 F.3d 531 (4th Cir.
2012), is illustrative. Laura Sennett was “a photojournalist who claim[ed] a special interest in
covering protests, political demonstrations, and grassroots activism.” Id. at 532 (internal
quotation marks omitted). In April 2008, she “received a phone tip that there would be a
demonstration during the International Monetary Fund’s (‘IMF’) annual spring meeting at the
Four Seasons Hotel in Washington, D.C.” Id. at 533. She “arrived at the Four Seasons at
approximately 2:30 a.m. on April 12, 2008, in order to photograph the protest,” allegedly
“unaware that the purported protesters planned to destroy property or commit other criminal
acts.” Id. Nonetheless, the protest turned violent. “[I]ndividuals entered the hotel lobby and
threw firecrackers and smoke-generating pyrotechnic devices, along with paint-filled balloons, at
various targets,” and “shattered a large glass window by the entrance” before fleeing the scene.
Id.The hotel’s security camera footage revealed a woman “using a small handheld camera to
videotape or photograph the protest.” Id. The photographer was dressed similarly to the
25
Therefore, Ali is incorrect when he argues that “the government could not rummage through
Mr. Gullestrup’s email account, mobile phone records, and laptop files—without any indication
of impropriety by Mr. Gullestrup—simply because he discussed the CEC Future incident with
journalists, law enforcement officers, and maritime security experts.” (Def. Suppression Reply
at 10 (emphasis in the original).) To the contrary, if there was probable cause to believe that
Gullestrup possessed evidence pertaining to crimes committed aboard the CEC Future, and if
Gullestrup refused to disclose that evidence to the government, there would be nothing improper
about a search warrant executed against him notwithstanding that he is not suspected of criminal
activity. See Mays, 134 F.3d at 814 (“Property owned by a person absolutely innocent of any
wrongdoing may nevertheless be searched under a valid warrant.”); accord United States v.
Adjani, 452 F.3d 1140, 1147 (9th Cir. 2006) (same); United States v. Tehfe, 722 F.2d 1114, 1118
(3d Cir. 1983) (same).
30
protestors. Id. “Like several others present, the photographer . . . remained outside during the
incident in the lobby. And, after the people who damaged the lobby exited the hotel, the
unidentified female fled from the hotel with or in the same general direction as the protesters.”
Id.Eventually, Sennett was identified as the female photographer, id., and a warrant was
issued for a search of her residence for evidence of suspected criminal activity that occurred
during the protest. Id. at 534. When the warrant was executed, the agents “seized dozens of
items, including an external hard drive allegedly containing more than 7,000 photographs, two
computers, several cameras, and several camera memory cards.” Id. “Sennett was never
arrested or charged with any crimes relating to” the protest. Id.
Sennett sued under the Privacy Protection Act, 42 U.S.C. §§ 2000aa et seq., arguing that
the search of her residence was unlawful for lack of probable cause. Id.26 The district court
granted summary judgment in favor of the government. Id. at 534–35. On appeal, Sennett
argued that there was no probable cause because there were “innocent explanation[s] for her
actions”:
For instance, Sennett argue[d] that she believed there was a noncriminal purpose
for protesting at night—such as waking up the IMF delegates—rather than
concealing criminal acts under cover of darkness. Moreover, Sennett argue[d]
that she fled not out of a consciousness of guilt, but because she was frightened
for her safety.
26
The Privacy Protection Act “prohibits government searches for documents and materials that
are intended for publication,” but does not apply “when the person possessing the materials is a
criminal suspect, rather than an innocent third party.” Sennett, 667 F.3d at 535 (emphasis,
internal quotation marks, and citations omitted). To take advantage of this exception, the
government must have “‘probable cause to believe that the person possessing such materials has
committed or is committing the criminal offense to which the materials relate.’” Id. (quoting 42
U.S.C. §§ 2000aa(a)(1) & (b)(1)). The question in Sennett was whether this so-called “suspect
exception,” under which the police claimed authority to search Sennett’s residence, applied. Id.
31
Id at 536. The Fourth Circuit, however, upheld the grant of summary judgment in favor of the
government:
Such plausible explanations, based on Sennett’s subjective mindset, . . . do not
factor into the probable cause calculus. “[I]n considering the totality of the
circumstances, [a defendant’s] innocent explanations for his odd behavior cannot
eliminate the suspicious facts from the probable cause calculus. The test is not
whether the conduct under question is consistent with innocent behavior; law
enforcement officers do not have to rule out the possibility of innocent behavior.”
Ramirez v. City of Buena Park, 560 F.3d 1012, 1024 (9th Cir. 2009) (internal
quotation marks omitted). . . . [Furthermore,] [a]lthough Sennett’s occupation
provides an innocent explanation for her appearance in the security camera
footage, the other facts nevertheless permitted [the affiant] to reasonably conclude
that Sennett was involved in the acts of vandalism. See United States v. Booker,
612 F.3d 596, 601 (7th Cir. 2010) (“The possibility of an innocent explanation
does not vitiate properly established probable cause.”).
Sennett, 667 F.3d at 536 (emphasis added, some alterations in the original);27 cf. Pennsylvania v.
Dunlap, 129 S. Ct. 448, 448 (2008) (Roberts, C.J., dissenting from the denial of a cert. petition)
(“an officer is not required to eliminate all innocent explanations for a suspicious set of facts to
have probable cause to make an arrest” (citing Gates, 462 U.S. at 244 n.13)). Here, any innocent
explanations for Ali’s actions were irrelevant to the question of probable cause. The issuing
magistrates were not required to make a determination of Ali’s guilt or innocence, or to assess
his intent.
27
In his reply in support of his motion to suppress, Ali posits that,
if an affidavit stated that criminal informant observed a kilo of marijuana inside a
particular building, a search warrant would likely be issued. But that search
warrant would have been illegal based upon that fact alone if the building was a
research laboratory authorized to possess marijuana, and the affiant had
deliberately failed to disclose that fact.
(Def. Suppression Reply at 3 n.1 (emphasis added).) Sennett demonstrates why Ali is incorrect:
the omission of such an “innocent explanation” would not be determinative where the affidavit
stated “other facts” that would “permit[ the affiant] to reasonably conclude that” the building
would contain evidence of a crime. 667 F.3d at 536.
32
Under Franks, “the intentional or reckless omission of material exculpatory facts from
information presented to a magistrate may . . . amount to a Fourth Amendment violation,” Burke
405 F.3d at 81 (emphasis added), and omitted facts are “material” only if “their inclusion in the
affidavit would defeat probable cause.” Spencer, 530 F.3d at 1007 (internal quotation marks
omitted). The exculpatory facts that Ali claims were omitted from the affidavits (see supra n.24)
speak to his intent and nothing more.28 Because Ali’s intent was not at issue, those facts were
not material to the magistrates’ findings of probable cause and Ali is not entitled to a Franks
hearing on the basis of their omission. 438 U.S. at 156.
C. Staleness
Ali also argues that the affidavits were based on such stale information that the executing
officers “‘could not have harbored an objectively reasonable belief in the existence of probable
cause.’” Webb, 255 F.3d at 905 (quoting Leon, 468 U.S. at 926). Specifically, Ali protests that
the piracy of the CEC Future concluded more than fifteen months before the first warrant
application was submitted on May 25, 2010, and more than two years before the majority of the
warrant applications were submitted in April and May 2011.
It is true that in cases that pre-date Leon, the D.C. Circuit concluded that probable cause
expired in far shorter periods. See, e.g., Schoeneman v. United States, 317 F.2d 173, 177–78
(D.C. Cir. 1963) (no probable cause to believe that classified documents were in defendant’s
house when they were last seen 107 days before the application for the warrant was made). Yet,
“[i]n determining probable cause for the issuance of a search warrant, time alone, of course, is
not controlling.” Id.; see United States v. Harris, 369 F.3d 1157, 1165 (10th Cir. 2004) (“The
28
Other omitted facts revealed more than Ali’s intent. The Court will addresses these facts
below.
33
determination of timeliness . . . does not depend on simply the number of days that have elapsed
between the facts relied on and the issuance of the warrant.” (internal quotation marks and
citation omitted)). Rather, “the probable-cause requirement looks to whether evidence will be
found when the search is conducted.” United States v. Grubbs, 547 U.S. 90, 95 (2006)
(emphasis in the original). Accordingly, the critical question is whether, at the time an affidavit
is presented to a magistrate, it establishes probable cause that evidence will be found at the
location of the search. United States v. Abboud, 438 F.3d 554, 572 (6th Cir. 2006). In answering
this question, courts consider, inter alia, “the nature of the criminal activity, the length of the
activity, and the nature of the property to be seized.” Harris, 369 F.3d at 1165 (internal
quotation marks and citation omitted).
As relevant here, “courts have determined that when the evidence sought is of a type that
would be maintained after the criminal activity ceased, then older information can still be
considered reliable when used to obtain a search warrant.” United States v. Edelin, 128 F. Supp.
2d 23, 46 (D.D.C. 2001) (collecting cases). Where a warrant targets documentary materials such
as business records, for example, staleness presents less of a concern because these “are the type
of records typically found to be maintained over long periods of time.” United States v. Dozier,
844 F.2d 701, 707 (9th Cir. 1988) (citing Andresen v. Maryland, 427 U.S. 463, 478 n.9 (1976));
see United States v. Procopio, 88 F.3d 21, 26 (1st Cir. 1996) (noting that although “the crime had
taken place 14 months before” the affidavit was sworn, this span of time “did not eliminate the
likelihood that the paper trail of financial records could be found in [the defendant’s]
residence”). Where the records or documents in question are digital, staleness is even less of a
problem. “[D]igital files remain on computers for extensive periods of time,” such that “the
passage of time does not necessarily render the evidence stale.” United States v. Coon, No. 10-
34
CR-110A, 2011 WL 1871165, at *3 (W.D.N.Y. May 16, 2011) (collecting cases). Thus, “‘the
nature of digital evidence . . . weighs against a finding of staleness.’” United States v. Payne,
394 F. App’x 891, 894 (3d Cir. 2010) (unpublished) (quoting United States v. Payne, 519 F.
Supp. 2d 466, 477 (D.N.J. 2007)).
In addition, “[c]ourts have been considerably more lenient in assessing the currency of
information supporting probable cause in the context of extended conspiracies than in the context
of single-incident crimes.” Webb, 255 F.3d at 905. Accordingly, staleness is also less likely to
defeat the existence of probable cause where the affidavit alleges ongoing criminal activity.
Abboud, 438 F.3d at 573; see United States v. Greene, 250 F.3d 471, 481 (6th Cir. 2001); accord
United States v. McElroy, 587 F.3d 73, 77–78 (1st Cir. 2009); United States v. Kennedy, 427
F.3d 1136, 1142 (8th Cir. 2005); United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998);
United States v. Harris, 20 F.3d 445, 450 (11th Cir. 1994) (collecting cases). Furthermore, “acts
which are not inherently criminal may become criminal and support a finding of probable cause
if committed to further an ongoing conspiracy.” Id. at 451 n.7.
All of the above factors weigh in the government’s favor. The magistrates were entitled
to conclude that the evidence targeted by the warrants (documents, computer files, emails, call
records, text messages, photos, and address book entries pertaining to piracy) was of the “type
that would be maintained after” the pirates released the CEC Future. Edelin, 128 F. Supp. 2d at
46. Furthermore, the affidavits allege that Ali continued to use his email account, cell phone,
and computer to communicate about piracy well after the CEC Future incident,29 which in itself
29
See Def. Mot to Suppress, Ex. 1 at 1393 (alleging that Ali continued to use his email address to
communicate about the CEC Future, and piracy more generally, after he disembarked from the
boat); id., Ex. 4 at 1367–68 (same, cell phone); id., Ex. 5 at 1442–43 (same, laptop computer);
id., Ex. 6 at 1458–59 (same, external hard drive); id., Ex. 7 at 1418 (same, email).
35
may be enough to “defeat [Ali’s] claim of staleness.” Abboud, 438 F.3d at 573. The fact that Ali
conceivably could have deleted his email, wiped his phone, cleared his computer, or destroyed
his business records is of no consequence to the Court’s inquiry, for probable cause requires only
a “fair probability that contraband or evidence of a crime will be found.” Gates, 462 U.S. at 238(emphasis added). At the very least, the Court concludes that the warrants were not so lacking in
fresh information so as to make the executing officers’ reliance on them objectively
unreasonable. Webb, 255 F.3d at 905.
Having rejected Ali’s general challenges to the affidavits’ omissions of certain allegedly
exculpatory facts and to their purported staleness, the Court will now assess Ali’s remaining
arguments for suppression.30
D. May 25, 2010 and October 11, 2011 search warrants for Ali’s email
1. May 25, 2010 warrant
On May 25, 2010, a magistrate issued a warrant authorizing the police to search Ali’s
email account. (Def. Mot. to Suppress, Ex. 1) Ali alleges that he is entitled to a Franks hearing
because the affidavit underlying the warrant contains misrepresentations and omissions.
Certain of Ali’s allegations can be summarily dismissed. First, Ali protests that the
affidavit described him as “very knowledgeable about pirate operations, procedures and ransom
negotiations” (id., Ex. 1 at 1386), notwithstanding that Gullestrup had told the affiant that, after
Ali boarded the CEC Future, Ali “realized he was in over his head and remained in his own
30
As to the April 21, 2011 warrant for Ali’s cell phone, Ali only argued that the underlying
affidavit was stale. (Id. at 28.) Because the Court has rejected that argument, it need not further
address that particular warrant.
36
cabin away from the pirates.” (Id., Ex. 1431 at 2010.) But the Court does not agree that these
statements are “in considerable tension.” (Id. at 22.) Ali may have known a great deal about
piracy generally but still have been overwhelmed by the specific occurrences aboard the CEC
Future. This rather nuanced dispute over the proper inference does not rise to the level of a
falsity.
Second, Ali challenges the fact that the affidavit describes as a “ruse” his alleged
statement to Clipper that “his was life in danger.” (Id., Ex. 1 at 1391.) Ali alleges that the
characterization was false because Gullestrup had told the affiant that, “[a]round day 60 of the
hijacking, the pirates were thinking about getting another negotiator” and “confined Ali to his
cabin.” (Id., Ex. 14 at 2013.) However, Gullestrup’s source for this information was Ali
himself. The fact that Gullestrup relayed Ali’s statements to the affiant does not undercut the
affiant’s belief that the whole story was pretextual.32
31
Exhibit 14 to Ali’s motion to suppress is an April 13, 2010 summary, written by the affiant
who sought the May 25, 2010 warrant, of the affiant’s interview with Gullestrup. The words
quoted above are the affiant’s own.
32
In his reply, Ali argues that an affiant’s beliefs and inferences have no place in an application
for a warrant. (Def. Suppression Reply at 4–6.) As noted, the Fourth Amendment requires “the
usual inferences which reasonable men draw from evidence . . . [to] be drawn by a neutral and
detached magistrate instead of being judged by the officer engaged in the often competitive
enterprise of ferreting out crime.” Johnson, 333 U.S. at 14. Yet, this statement merely stands for
the proposition that the ultimate question of whether probable cause exists, i.e., whether “the
right of privacy must reasonably yield to the right of a search,” is “to be decided by a judicial
officer, not by a policeman.” Id. Thus, were an affidavit to consist solely of a policeman’s
beliefs, it would not support the issuance of a warrant. See Ventresca, 380 U.S. at 108–09
(Probable cause cannot “be made out by affidavits which are purely conclusory, stating only the
affiant’s or an informer’s belief that probable cause exists without detailing any of the underlying
circumstances upon which that belief is based.” (internal quotation marks omitted)). But, in
alleging facts and arguing why probable cause exists, the Fourth Amendment does not prohibit
an affiant from stating his beliefs. Cf. Jones, 362 U.S. at 269 (“an affidavit does not establish
probable cause which merely states the affiant’s belief that there is cause to search, without
stating facts upon which that belief is based” (emphasis added) (citing Nathanson v. United
37
Ali’s remaining challenges to the sufficiency of the affidavit underlying the May 25,
2010 warrant are more troubling. First, the affiant knew that “[t]here was no email contact with
the [p]irates” or with Ali while they were onboard the CEC Future (id., Ex. 14 at 2010), but
immediately after describing the piracy negotiations and ransom payment (see id., Ex. 1 at 1390–
91), the affiant implied that Ali used email during negotiations by stating, “[s]ometime during
discussions between Mr. Ali and Clipper Shipping, Mr. Ali provided a Clipper Shipping
representative his email address.” (Id., Ex. 1 at 1391.) The Court agrees that a fair reading of
the above, in combination with other passages in the affidavit,33 could create the impression that
States, 290 U.S. 41 (1933)); Virgin Islands v. John, 654 F.3d 412, 420 (3d Cir. 2011) (“[A]n
individual’s Fourth Amendment right cannot be vitiated based on fallacious inferences drawn
from facts not supported by the affidavit.” (alteration in the original, emphasis added) (quoting
United States v. Falso, 544 F.3d 110, 122 (2d Cir. 2008) (Sotomayor, J.))). Rather, the Fourth
Amendment ensures that it is a magistrate who decides whether those beliefs are reasonable in
light of the facts alleged, and whether the affidavit as a whole demonstrates the existence of
probable cause. See id. (a “bedrock principle of the Fourth Amendment” requires “that a warrant
applicant state explicitly her belief . . . as well as reasons justifying such a belief”).
33
For example, the affidavit states:
During [the piracy of the CEC Future], Mr. Ali and Clipper Shipping were in
constant contact to discuss ransom amounts, the welfare of the crew and terms of
release. Mr. Ali requested that Clipper Shipping activate communications
systems, specifically email and fax, in order to expedite the ransom negotiations.
Mr. Ali utilized the ship’s satellite telephone, a Somali based mobile telephone,
and the ship’s fax machine during these negotiations.
(Def. Mot. to Suppress, Ex. 1 at 1387 (emphasis added).) Later, the affidavit stated that, “[a]s
noted above, the investigation has revealed that Mr. Ali utilized the ali_ali692@hotmail.com
account to communicate with Clipper Shipping.” (Id., Ex. 1 at 1392.) The implication is that Ali
was able to access his email via the ship’s satellite phone and used his email to conduct
negotiations.
38
Ali used his email account to negotiate with Clipper during the piracy, when the affiant knew
that he did not.34
Second, the affiant’s statement that Ali “expressed concern that would have
his email address,” and the affiant’s corresponding “belie[f] that this indicates that Mr. Ali still
utilizes this email address for communications and is concerned that may be
able to access the account,” are also troublesome. (Id., Ex. 1 at 1392.) In fact, as the affiant
knew,
That the affiant knew this,
, belies his characterization in the affidavit.
34
As Ali argues, “[i]ndeed, even the FBI agents who [authored affidavits after the May 25, 2010
warrant was issued] appear to have been misled by [the] language” in the affidavit underlying the
May 25, 2010 warrant. (Def. Suppression Reply at 12 (emphasis in the original); see Def. Mot.
to Suppress, Ex. 3 at 1490 (“During the negotiations, Ali communicated with Clipper Group A/S
via email and fax.”); id., Ex. 5 at 1442 (same); id., Ex. 6 at 1458 (same); id., Ex 7 at 1416
(“Based on identification of [ali_ali692@hotmail.com] as being used by Mr. Ali during the time
of the piracy of the CEC Future, a search warrant . . . was issued by the United States District
Court for the District of Columbia.” (emphasis added) (referencing the May 25, 2010 warrant)).
39
Yet, although these misstatements and omissions may well have misled the magistrate,
Ali is only entitled to a Franks hearing if they are material, i.e. if, when the misstatements are
“set to one side” and the omitted facts are included, the corrected affidavit does not “support a
finding of probable cause.” 438 U.S. at 171–72; see Spencer, 530 F.3d at 1007. Here, Ali
argues that the misstatements and omissions are material because the corrected affidavit does not
demonstrate the required “nexus between the place to be searched, the things to be seized, and
the underlying criminal activity.” United States v. Glay, No. 08-cr-213, 2009 WL 1921405, at
*2 (D.D.C. June 30, 2009).35 With regard to the May 25, 2010 warrant, the place to be searched
is Ali’s email account, the things to be seized are emails within a certain timeframe pertaining to
specified subjects, and the underlying criminal activity is the piracy of the CEC Future. (See
Def. Mot. to Suppress, Ex. 1 at 1381, 1386, 1391.)
Ali is surely correct that it would not be enough if the corrected affidavit amounted to
nothing more than, for example, “crimes were committed aboard the CEC Future, Ali was
aboard the CEC Future and may have participated in those crimes, and Ali has an email
account.” In concluding that warrants to search suspects’ email accounts adequately establish a
nexus, courts insist on a direct connection between the alleged criminal activity and the specific
email account at issue,36 and that connection typically arises because the affidavit asserts that the
35
See United States v. Hammons, 411 F. App’x 837, 842 (6th Cir. 2011) (unpublished)
(“Affidavits supporting a search warrant have to establish a nexus between the place to be
searched and probable evidence of criminal activity . . . .”); United States v. Peterson, 145 F.
App’x 820, 821 (4th Cir. 2005) (unpublished) (“For a search warrant to be supported by probable
cause, a nexus must be established between the place searched and the alleged criminal activity.”
(citing United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993)).
36
In this circuit, the requisite connection can be established by either “an independent
evidentiary basis” or “an affiant’s statement that her training and experience provides probable
cause to believe that there is a nexus between criminal activity and the place to be searched.”
40
account was used in the commission of the crime.37 To require anything less would be to
authorize “‘a general, exploratory rummaging in a person’s belongings’” contrary to the Fourth
Amendment’s prohibition against general warrants. Andresen, 427 U.S. at 479 (quoting
Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)). As Ali notes, however, he is “accused
of committing piracy on the high seas, not software piracy.” (Def. Suppression Reply at 16 n.9.)
The corrected affidavit would state that Ali did not have email access while he was aboard the
CEC Future, so his account would not contain any communications made during the piracy.
Furthermore, it would neither state nor imply that Ali had been guarded about revealing his email
address to .
Nonetheless, especially given that Ali’s intent is the central issue in this case, the
evidence sought need not be contemporaneous with the piracy to support a finding of probable
cause. What happened after the pirates released the CEC Future is also relevant to that inquiry.
Even when the statements which Ali alleges to be false are left out and the facts which Ali argues
were omitted are included, the affidavit shows a sufficient nexus because it posits that Ali may
Glay, 2009 WL 1921405, at *3 (citing United States v. Johnson, 437 F.3d 69, 71–72 (D.C. Cir.
2006); United States v. Thomas, 989 F.2d 1252, 1254 (D.C. Cir. 1993)).
37
See, e.g., United States v. Bansal, 663 F.3d 634, 662 (3d Cir. 2011) (“The affidavit more than
sufficiently establishes probable cause to believe Bansal’s email accounts contained evidence of
his internet-based illegal controlled substance distribution operation.” (emphasis added)); United
States v. Wagers, 452 F.3d 534, 541 (6th Cir. 2006) (“the nexus between an AOL email account
and Internet-accessed child pornography, especially where some of that access has been through
AOL IP addresses, is . . . obvious” (emphasis added)); United States v. Yousef, No. S308cr1213,
2011 WL 2899244, at *11 (S.D.N.Y. June 30, 2011) (“The affidavit supporting the warrant”
specified that the defendant’s co-conspirator “used the [target] email account to conduct a
fraudulent, large-scale weapons deal” with the defendant.); United States v. Noyes, No. 1:08-cr-
55, 2010 WL 5139859, at *9 (W.D. Pa. Dec. 8, 2010) (“the exhibits that were attached and
incorporated into [the affidavit] clearly showed that Noyes was using the specified Yahoo and
Google email accounts to communicate with others in furtherance of his alleged criminal
activities”).
41
2. October 11, 2011 warrant
Ali alleges that the second warrant for his email, issued on October 11, 2011 (Def. Mot.
to Suppress, Ex. 7), contains similar misstatements and omissions. The Court concludes that
Ali’s arguments fail for similar reasons.
First, Ali protests that the affiant for this warrant repeated the statement, made in the May
25, 2010 affidavit, “that Ali’s knowledge about piracy indicates that ‘he was a key participant in
the conspiracy.’” (Id. at 28 (quoting id., Ex. 7 at 1416).) There is nothing misleading here.
Ali’s actions aboard the CEC Future, which the affiant described in some detail (see id., Ex. 7 at
1416), justify the affiant’s characterization of Ali as a “key participant.” Whether Ali was a
conspirator is a separate issue, and one that is not relevant to the probable cause analysis. (See
supra Section II(B).)
Second, Ali argues that this affiant, like the affiant of the May 25, 2010 affidavit, sought
“to conjure a nexus by misleading the magistrate into believing that Ali used his personal email
account during the CEC Future crisis” (id. at 29) when the affiant stated that Ali “provided a
Clipper Shipping representative with his email address . . . [d]uring the ransom negotiations.”
(Id., Ex. 7 at 1417.) Yet, as previously decided, this misstatement does not entitle Ali to a
Franks hearing. Had the fact that Ali had no email access while he was aboard the CEC Future
been included in the affidavit, the affidavit nonetheless still would have supported a finding of
probable cause to search Ali’s email account because it stated that Ali continued to use the
account after he disembarked from the boat to communicate about his experiences on the boat
and about his involvement in other piracies. (See id., Ex. 7 at 1418–19 (describing how Ali
communicated about his involvement in the piracy of the Lynn Rival via email with reference to
evidence obtained via prior warrants, all of which the Court concludes were valid).)
43
3. Scope of the warrants as executed
In addition to challenging the validity of the May 25, 2010 and October 11, 2011
warrants, Ali challenges their execution, claiming that the officers exceeded the scope of the
warrants when they searched his email. Specifically, Ali claims that the government seized
emails that were outside the date ranges and not pertinent to the subject matters specified in those
warrants. (Def. Mot. to Suppress at 27–28, 30–31.)
Here, Ali’s claims go to the behavior of the police, and they therefore implicate the
precise concerns that motivate the exclusionary rule. Davis, 131 S. Ct. at 2427–28.
Furthermore, challenges to the scope of searches for digital evidence raise unique Fourth
Amendment issues, in part because computers and email accounts “‘often contain significant
intermingling of relevant documents with documents that the government has no probable cause
to seize.’” United States v. Cioffi, 668 F. Supp. 2d 385, 391 (E.D.N.Y. 2009) (quoting United
States v. Vilar, No. S305CR621, 2007 WL 1075041, at *35 (S.D.N.Y. April 4, 2007)).39 Thus,
the “acute constitutional hazards” of document searches, United States v. Heldt, 668 F.2d 1238,
1260 (D.C. Cir. 1981) (per curiam), are amplified in the information age. Cioffi, 668 F. Supp. 2d
39As the Sixth Circuit has observed:
[C]omputers hold [a great deal of] personal and sensitive information touching on
many private aspects of life. We recognize individuals have a reasonable
expectation of privacy in the content of emails stored, sent, or received through a
commercial internet service provider. United States v. Warshak, 631 F.3d 266,
288 (6th Cir. 2010). And we know there is a far greater potential “for the
‘intermingling’ of documents and a consequent invasion of privacy when police
execute a search for evidence on a computer.” United States v. Walser, 275 F.3d
981, 986 (10th Cir. 2001).
United States v. Lucas, 640 F.3d 168, 178 (6th Cir. 2011).
44
at 391 (citing Andresen, 427 U.S. at 482 n.11).40 Yet, “‘it is precisely because computer files can
be intermingled and encrypted that the computer is a useful criminal tool.’” Id. (quoting Vilar,
2007 WL 107041, at *35). Therefore, “‘responsible officials, including judicial officials, must
take care to assure that’” searches of computers and email accounts “‘are conducted in a manner
that minimizes unwarranted intrusions upon privacy.’” Heldt, 668 F.2d at 1260 (quoting
Andresen, 427 U.S. at 482 n.11).
However, absent a showing that an executing officer exhibited “a flagrant disregard for
the limitations in a warrant [that] might transform an otherwise valid search into a general one,
thereby requiring the entire fruits of the search to be suppressed,” where “officers seize some
items outside the scope of a valid warrant, this by itself will not affect the admissibility of other
contemporaneously seized items which do fall within the warrant.” Id. at 1259 (collecting
cases). In Ali’s motion to suppress, he does not allege that the officers executing the May 25,
40
The Heldt court stated:
In the context of document searches, the need to prevent general, exploratory
rummaging in a person’s belongings is particularly acute. Unlike searches for
other tangibles, document searches—like eavesdropping and bugging searches—
tend to involve broad disclosures of the intimacies of private lives, thoughts and
transactions.
668 F.2d at 1260 (internal quotation marks, citations, and footnotes omitted). The court went on
to quote at length from the Supreme Court’s decision in Andresen, “which involved a search and
seizure of a criminal defendant’s office files”:
“[T]here are grave dangers inherent in executing a warrant authorizing a search
and seizure of a person’s papers that are not necessarily present in executing a
warrant to search for physical objects whose relevance is more easily
ascertainable. In searches for papers, it is certain that some innocuous documents
will be examined, at least cursorily, in order to determine whether they are, in
fact, among those papers authorized to be seized.”
Heldt, 668 F.2d at 1260 (quoting Andresen, 427 U.S. at 482 n.11).
45
2010 and October 11, 2011 warrants exhibited such a flagrant disregard. Indeed, in protesting
the scope of the email searches he only moved for the suppression of “all seized information not
specifically identified by the warrant[s].” (Def. Mot. to Suppress at 27–28, 31 (emphasis
added).) For its part, the government has represented that it will not “use any emails outside the
scope of the warrant[s] in its case-in-chief at trial.” (Gov’t Suppression Opp’n at 16–17.) Given
this representation, and in the absence of any argument or evidence by Ali to support a claim of
flagrant disregard, Heldt compels this Court to deny Ali’s unsubstantiated request (see Def.
Suppression Reply at 24) for a hearing on the issue.
E. April 21, 2011 and May 4, 2011 warrants for materials in Ali’s possession
when he was arrested at Dulles International Airport
1. April 21, 2011 search warrant for Ali’s suitcase and computer bag
While Ali states, without elaboration, that the affidavit underlying the April 21, 2011
warrant for his suitcase and computer bag “is materially misleading,” the only argument he puts
forward is that the affidavit so lacked in indicia of probable cause as to make official reliance on
it unreasonable because “[t]here is no reason to believe that probable cause existed that Ali
would be carrying . . . incriminating documents relating to piracy on his person” when he landed
at Dulles purportedly en route to attend a conference in North Carolina. (Def. Mot to Suppress at
31 (emphasis in the original).) Without more, this claim cannot justify exclusion of the evidence
obtained. When the customs agents opened Ali’s suitcase, the affiant “observed . . . that it
contained documents,” and in the affidavit she stated her belief that Ali’s luggage might “contain
records or documents related to Ali’s participation in the piracy of the CEC Future and may
identify individuals or associates who were also involved in the piracy.” (Id., Ex. 3 at 1490–91.)
In combination with the other facts relayed, including that Ali communicated with Clipper
46
during the piracy via fax (id., Ex. 3 at 1490), these statements were enough to establish probable
cause, or at the very least to make it objectively reasonable for the executing officers to rely on
the magistrate’s determination thereof. Leon, 468 U.S. at 922.
2. April 21, 2011 search warrant for Ali’s laptop computer and May 4,
2011 search warrant for Ali’s external hard drive
The affidavits underlying the April 21, 2011 warrant for Ali’s laptop and the May 4, 2011
warrant for Ali’s external hard drive are nearly identical. After briefly describing the piracy of
the CEC Future and Ali’s alleged role, the affidavit underlying the April 21, 2011 warrant
indicates that:
During the negotiations, Ali communicated with Clipper Group A/S via
email and fax. Witnesses observed Ali in possession of a laptop computer
when he boarded the ship. Witnesses observed him using the laptop
computer when he boarded the ship. Investigation revealed that Ali used
[the] email address, ali_ali692@hotmail.com. Ali has communicated with
numerous people via email regarding piracy after the CEC Future was
released. In some of those communications, Ali marketed himself as an
expert in piracy. It is reasonable to believe that communications regarding
piracy would be contained on the laptop computer.
Upon arrest, Ali was found to be in possession of a laptop computer . . . .
It is believed that this device and any associated media may contain
records or documents related to Ali’s participation in the piracy of the
CEC Future and may identify individuals or associates who were also
involved in the piracy. If the device was used to connect to the internet, it
may contain records of email communications and their content.
(Def. Mot. to Suppress, Ex. 5 at 1442–43 (emphasis added).) The affidavit underlying the May
4, 2011 warrant omitted the two italicized sentences, each beginning “Witnesses observed . . .,”
and swapped the italicized references to Ali’s “laptop computer” with references to the “external
hard drive” that Ali also had with him when he was arrested. (Id., Ex. 6 at 1458–59.) Otherwise,
the affidavits established how the government had come to possess the devices, described their
47
government knew that the laptop Ali had with him when he arrived in the United States could
not have been the laptop witnesses had seen him use when he was onboard the CEC Future.
This omission was misleading and goes directly to the nexus question.
Again, however, the Court concludes that these misstatements and omissions were not
material to the establishment of probable cause. Even the corrected affidavits would establish a
sufficient nexus. The affiants placed Ali onboard the CEC Future using a laptop, and landing at
Dulles with a laptop and external hard drive. Even if the affidavits omitted any mention of email
and stated that two different laptops were at issue, the possibility that Ali might have transferred
his files from one to the other, or from his original laptop to the external drive, would establish a
“fair probability” that Ali’s laptop and external hard drive would contain evidence of a crime.
Gates, 462 U.S. at 238. Therefore, the alleged omissions and misstatements do not provide a
basis for a Franks hearing.41
CONCLUSION
For the reasons stated, the Court will deny the government’s motions in limine pertaining
to evidence of Ali’s mental state, grant Ali’s motion for the admission of evidence under Rule
41
In the alternative, the government argues that all of the searches authorized by the April 21,
2011 and May 4, 2011 warrants could have been executed without warrants pursuant to the
government’s authority to conduct searches incident to arrest and border searches without
warrants. (See Gov’t Suppression Opp’n at 11; Gov’t Supp. Suppression Mem. at 1–4.) The
government appeals to the “inevitable discovery” doctrine on the theory that any inadequacies in
its April 21, 2011 and May 4, 2011 warrants are irrelevant where the evidence “could [have
been] lawfully . . . obtained through another” lawful process. Cioffi, 668 F. Supp. 2d at 397.
Because the Court concludes that the warrants were valid, however, it need not address the
government’s alternative argument.
49
404(b), and deny Ali’s motion to suppress. A separate Order accompanies this Memorandum
Opinion.42
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: May 25, 2012
42
Because many of the underlying motions, oppositions, and replies are sealed, the Court is
issuing this Memorandum Opinion under seal. The accompanying Order directs the parties to
notify the Court by June 8, 2012, of whatever redactions are necessary in order for this
Memorandum Opinion to be unsealed.
50