United States v. Hasston, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. :
: Criminal Action No.: 13-0274 (RC)
SHANTIA HASSANSHAHI, :
also known as Shantia Hassan Shahi, : Re Document No.: 28
also known as Shahi, :
also known as Shantia Haas, :
also known as Sean Haas, :
:
and :
:
HASSTON, INC., :
:
Defendants. :
MEMORANDUM OPINION
DENYING DEFENDANT’S MOTION TO SUPPRESS
I. INTRODUCTION
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 1
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.
1
The United States of America (the “Government”) provides the following facts
through affidavits submitted by HSI Special Agent Akronowitz. At oral argument, Hassanshahi
objected to the Government’s provision of the Akronowitz affidavits by arguing that the
affidavits were internally inconsistent and, by implication, unreliable or simply untruthful. The
Court is satisfied, however, by the Government’s explanation that the first Akronowitz affidavit
was prepared to support the criminal complaint and the second, more detailed Akronowitz
affidavit was prepared to support the Government’s opposition to the motion to suppress.
Hassanshahi has provided no legal basis for why the Government was not entitled to submit a
supplemental affidavit in response to the motion to suppress, and the Court finds that there is
nothing internally inconsistent between the affidavits — the second affidavit merely provides
more information about the HSI investigation than the first affidavit, which is not surprising
given the different purposes. Finally, the fact that the Government later provided a third,
corrected Akronowitz affidavit does not render the earlier affidavits defective or unreliable in
their entirety.
2
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. 2 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. 3 See id. ¶ 16a. Specifically, the
2
TECS is a database that serves as a data repository to support law enforcement
“lookouts,” border screening, and reporting for DHS’s primary and secondary border inspection
processes. See http://www.dhs.gov/xlibrary/assets/privacy/privacy-pia-cbp-tecs-sar-update.pdf.
3
The HSI agent’s affidavit does not state that this information about the 2003
investigation actually was written in TECS. Instead, the affidavit merely provides that after
“conduct[ing] research on Hassanshahi in TECS,” the HSI agent “discovered” the information
about the 2003 investigation. See 2d Akronowitz Aff. ¶ 16. At oral argument on the motion to
suppress, counsel for the Government suggested that the HSI agent discovered the information
about the investigation through a telephone call with another agent, a call that is not referenced
anywhere in the affidavit. The affidavit also does not specify if or when the HSI agent reviewed
HSI’s investigative file from the 2003 investigation. In fact, counsel for the Government stated
at oral argument that the 2003 HSI investigative file had not yet been produced to Hassanshahi as
part of discovery in this criminal case. As such, it remains somewhat ambiguous and open for
further clarification how the HSI agent learned the information about the 2003 investigation that
he put in his affidavit, as well as how much the HSI agent actually knew about this investigation
3
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
before ordering the forensic examination in January 2012. Nonetheless, for the purposes of the
motion to suppress, the Court accepts that the HSI agent knew the details about the 2003
investigation that he provides in the affidavit.
4
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. 4 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.
4
Hassanshahi also possessed “approximately” $7,000 in cash when he arrived at
LAX on January 12, 2012. See Def.’s Reply Supp. Mot. Suppress Ex. 1 at 48.
5
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. 5 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.
III. ANALYSIS
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
5
See generally United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013), cert.
denied, 134 S. Ct. 899 (2014), reh’g denied, 134 S. Ct. 1512 (2014); United States v. Saboonchi,
990 F. Supp. 2d 536 (D. Md. 2014), reconsideration denied, No. CRIM. PWG-13-100, 2014 WL
3741141 (D. Md. July 28, 2014).
6
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 (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 (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 (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 (2009)
(quoting Arizona v. Evans, 514 U.S. 1, 10 (1995)). Supreme Court decisions, however, have
7
“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 (2011) (quoting Elkins v. United States, 364 U.S. 206, 217
(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 (D.C. Cir. 2008) (quoting United States v. Leon, 468 U.S.
897, 906 (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 (D.C. Cir.
2014) (quoting Hudson v. Michigan, 547 U.S. 586, 592 (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 (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.
8
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-
9
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 Hassanshahi’s laptop then was seized and sent
to Virginia for the forensic examination. As such, the Court easily concludes that “but for” the
initial law enforcement database search, the forensic laptop examination would not have
occurred.
3. Attenuation And The Exclusionary Rule
“[N]ot … all evidence is ‘fruit of the poisonous tree’ simply because it would not have
come to light but for the illegal actions of the police.” Wong Sun, 371 U.S. at 487-88. Instead,
exclusion is not required when “the government proves … that the evidence would have been
discovered inevitably, was discovered through independent means, or that its discovery was so
attenuated from the illegal search or seizure that the taint of the unlawful government conduct
was dissipated.” United States v. Holmes, 505 F.3d 1288, 1293 (D.C. Cir. 2007) (citations
omitted). Here, the Government argues that attenuation existed, and the Supreme Court has
identified three factors for courts to consider when determining attenuation: (1) the amount of
time between the illegality and the discovery of the evidence, i.e., temporal proximity; (2) the
presence of intervening circumstances; and (3) the purpose and flagrancy of the illegal conduct.
See Brodie, 742 F.3d at 1063 (citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)). The
10
Government bears the burden of proving attenuation by a preponderance of the evidence. See
Holmes, 505 F.3d at 1293; United States v. Wood, 981 F.2d 536, 541 (D.C. Cir. 1992).
a. Temporal Proximity
The Court first considers the temporal proximity between the illegality and the discovery
of the evidence. See Brodie, 742 F.3d at 1063. The Government’s affidavit shows that more
than four months passed between the unconstitutional law enforcement database search on
August 24, 2011, and the forensic laptop examination on January 17, 2012. See 2d Akronowitz
Aff. ¶¶ 3, 21. Though “there is no ‘bright-line’ test for temporal proximity” within the
attenuation analysis, see United States v. Reed, 349 F.3d 457, 463 (7th Cir. 2003), the Court
finds that this several month gap — during which the Government continued to investigate
Hassanshahi through unrelated sources, including the use of preexisting evidence in TECS and
the issuance of lawful subpoenas to Google — weighs in favor of not suppressing the laptop
evidence. Compare United States v. Gross, 662 F.3d 393, 402 (6th Cir. 2011) (finding that two
month gap between the unlawful seizure and defendant’s voluntary confession suggests
attenuation as to the confession), United States v. Roberts, No. 11-CR-0018, 2012 WL 1033515,
at *7 (E.D. Pa. Mar. 28, 2012) (finding that the “temporal proximity” factor weighed against
suppression when over two months elapsed between the initial unlawful search and defendant’s
consent to a second search that revealed incriminating evidence), and United States v. Lawrence,
No. CRIM.05-333, 2006 WL 752920, at *6 (D. Minn. Mar. 23, 2006) (finding attenuation in part
because four months passed between the illegal search and arrest and the later incriminating
statements made by defendant), with United States v. Miller, 146 F.3d 274, 280 (5th Cir. 1998)
(finding that the ninety second time period between the illegal stop and the search did not
support the government’s attenuation claim), United States v. Green, 111 F.3d 515, 521 (7th Cir.
11
1997) (explaining that the fact that only five minutes elapsed between the illegal stop and the
search of the car weighed against attenuation), and United States v. Ceballos, 812 F.2d 42, 50
(2d Cir. 1987) (finding that “the [consent] to search and the statements given were too closely
connected in context and time … to break the chain of illegality” when only a few minutes had
elapsed).
b. Intervening Circumstances
The Court next considers whether there were intervening circumstances sufficient to
break the causal chain and lessen the taint of the initial illegality. See Brodie, 742 F.3d at 1062-
63. Often, the intervening circumstance that most strongly dissipates the evidentiary taint is a
“voluntary act by the defendant.” Green, 111 F.3d at 522; see also United States v. Jackson, No.
A04-141 CR, 2005 WL 1115466, at *17 (D. Alaska May 10, 2005) (“A defendant may himself
commit an intervening independent act that will be sufficient in relation to other events for
attenuation purposes.” (citing United States v. Sprinkle, 106 F.3d 613, 619 (4th Cir. 1997)). In
opposition to Hassanshahi’s motion to suppress, the Government offers two intervening events:
HSI’s investigative steps following discovery of the 818 number, which itself was just a minor
lead in the case; and Hassanshahi’s voluntary appearance at LAX after arriving on an
international flight. See Gov’t’s Mem. Opp’n Mot. Suppress 13.
i. Hassanshahi’s Arrival At LAX
Starting with the latter event, the Court finds that Hassanshahi’s voluntary arrival at LAX
was a relevant intervening circumstance, but at the same time, the Court is uncertain how much
weight to give this event. Because Hassanshahi’s arrival at LAX on an inbound international
flight provided the Government with justification to conduct a border search, this situation is
somewhat analogous to the more common instance in which a defendant, through new conduct
12
following an unlawful search or seizure, gives the police a fresh basis for conducting a legal
search or seizure. For example, in United States v. Sprinkle, 106 F.3d 613 (4th Cir. 1997), the
Fourth Circuit held that when the defendant fled from and fired a gun at an officer while resisting
an unjustified investigative stop, the defendant committed a new crime that “purged the taint of
the prior illegal stop” and provided the officer with probable cause to arrest the defendant and
then seize a gun that was in plain view at the scene of the new crime. Id. at 619.
Similarly, in United States v. Jackson, No. A04-141 CR, 2005 WL 1115466 (D. Alaska
May 10, 2005), the district court held that when the defendant disobeyed an order by a uniformed
officer during an unlawful stop and fled down the street, the officer acquired new and sufficient
justification to pursue the fleeing defendant, seize the defendant, and then conduct a pat-down
search of the defendant, which revealed contraband in the defendant’s possession. Id. at *14-16;
see also United States v. Allen, 619 F.3d 518, 526 (6th Cir. 2010) (“Here, there was an initial
attempt at a traffic stop, which [the defendant] claims to have been illegal, followed by an
attempt to escape from the police by leading the officers on a high-speed chase…. [T]he act of
fleeing from police officers constituted a new, distinct crime that rendered evidence subsequently
seized admissible.”); United States v. Hooker, No. 94-5863, 54 F.3d 774, *2 (4th Cir. 1995)
(finding that defendant’s “voluntary action” of coming out of her home, approaching the officers,
and stating that her “conscience” was bothering her and the officers thus could enter and search
her home were adequate intervening circumstances to purge taint of the earlier unlawful seizure
and search of defendant’s car).
As these cases illustrate, a voluntary act by a person following initial unlawful law
enforcement conduct can provide an officer with new grounds for conducting a lawful search or
seizure such that the exclusionary rule does not apply to any newly recovered evidence. This
13
concept, however, may get the Government only so far: though Hassanshahi’s arrival at LAX
provided justification to conduct a border search, Hassanshahi argues that the forensic laptop
examination went beyond a routine suspicionless border search and therefore required reasonable
suspicion. Accepting arguendo that reasonable suspicion in fact was required, Hassanshahi’s
arrival at LAX would be one factor in the reasonable suspicion calculus, but landing at LAX, by
itself, would not have created reasonable suspicion for the forensic examination. As such, the
circumstances here would be distinguishable from the typical case in which the intervening
voluntary conduct provided all the cause or suspicion that was required for the second search or
seizure. On the other hand, if the Court rejects Hassanshahi’s argument that reasonable
suspicion was required, his arrival at LAX alone would have justified the forensic examination,
thus making the arrival a more significant, and perhaps even dispositive, attenuating
circumstance. The Court ultimately need not resolve this issue, however, because the
Government’s other intervening circumstance argument unambiguously weighs heavily in favor
of not suppressing the laptop evidence.
ii. The 818 Number “Lead” And The Need For Further Investigation
Federal courts consistently have held that the exclusionary rule does not apply to
subsequently discovered evidence when an initial limited piece of information — typically the
name of a potential target for investigation — is obtained through an illegal search or seizure
because substantial intervening investigative steps still are required to uncover the necessary
incriminating evidence. The seminal case on this “unlawful lead” principle came from Judge
Friendly in United States v. Friedland, 441 F.2d 855 (2d Cir. 1971). There, federal officers
illegally bugged the offices of the defendant’s acquaintance, and those officers then informed
other agents that the defendant should be investigated based on conversations the officers illicitly
14
overheard. See id. at 854-57. In refusing to suppress inculpatory evidence about the defendant
that was discovered through further lawful investigation, the court held that it “would stretch the
exclusionary rule beyond tolerable bounds” to “grant life-long immunity from investigation and
prosecution simply because a violation of the Fourth Amendment first indicated to the police that
a man was not the law-abiding citizen he purported to be.” Id. at 861.
Other courts have taken a similar approach since Friedland by refusing to apply the
exclusionary rule to suppress evidence that was discovered during a later investigation following
the initial unlawful discovery of evidence that merely pointed law enforcement in the
defendant’s direction. For instance, in United States v. Carter, 573 F.3d 418 (7th Cir. 2009), the
court explained that “[f]ew cases, if any, applying the attenuation exception hold that evidence
separately uncovered through completely lawful means is inadmissible because an illegal search
first made a particular person a suspect in a criminal investigation.” Id. at 423. The court then
concluded that an out-of-court identification was admissible under the attenuation exception
even though law enforcement’s original interest in the defendant arose through the discovery of
an “Inmate ID Card” bearing the defendant’s name during a prior unlawful search. Id. at 420,
423.
Similarly, in United States v. Watson, 950 F.2d 505 (8th Cir. 1991), the court held that
when “a law enforcement officer merely recommends investigation of a particular individual
based on suspicions arising serendipitously from an illegal search, the causal connection is
sufficiently attenuated so as to purge the later investigation of any taint from the original
illegality.” Id. at 508. The court then concluded that the grand jury’s use of the defendant’s
name and alias did not taint a later investigation, despite the court assuming arguendo the
illegality of the prior search that uncovered records containing the defendant’s identifying
15
information. See id.; see also Hoonsilapa v. INS, 575 F.2d 735, 738 (9th Cir. 1978) (“[T]he mere
fact that [a] Fourth Amendment illegality directs attention to a particular suspect does not require
exclusion of evidence subsequently unearthed from independent sources.” (citation omitted).
The circumstances here even more strongly compel finding attenuation than in the above
cases because the law enforcement database search revealed only the slimmest of leads: the 818
number. HSI thus was required to take an additional investigative step just to find a name
associated with the 818 number, as compared to the typical “unlawful lead” case in which the
defendant’s full identify is discovered through the illegal search or seizure. In addition, HSI
acted lawfully by subpoenaing Google for information about the owner of the 818 number, and
HSI’s four month investigation between obtaining the 818 number and conducting the forensic
laptop examination primarily involved the use of information in TECS that existed before the
initial database search, which further shows that the 818 number, at most, “tipped off the
[G]overnment … to the probable identity of the perpetrator.” United States v. Smith, 155 F.3d
1051, 1063 (9th Cir. 1998); cf. United States v. Crews, 445 U.S. 463, 475 (1980) (“The
exclusionary rule … does not reach backward to taint information that was in official hands prior
to any illegality.”). Accordingly, the Court concludes that the discovery of the laptop evidence
occurred only through substantial and essential intervening events following the “unlawful lead”
that was the 818 number, and this factor therefore weighs strongly in favor of not excluding that
evidence.
c. Purpose And Flagrancy Of The Illegal Conduct
Lastly, the Court considers the “purpose” and “flagrancy” of the illegal law enforcement
conduct. See Brodie, 742 F.3d at 1063. As a rule, courts generally “favor suppression” only “if
law enforcement officials conducted the illegal search with the purpose of extracting evidence
16
against the defendant, or if they flagrantly broke the law in conducting the search.” United
States v. Washington, 387 F.3d 1060, 1075 (9th Cir. 2004) (citation omitted); see also Davis v.
United States, 131 S. Ct. 2419, 2427 (2011) (“When the police exhibit ‘deliberate,’ ‘reckless, or
‘grossly negligent’ disregard for Fourth Amendment rights, the benefits of exclusion tend to
outweigh the costs.” (citation omitted)). In contrast, when law enforcement officials acted with
an “objectively reasonable good-faith belief that their conduct is lawful, or when their conduct
involves only simple, isolated negligence, the deterrent value of suppression is diminished, and
exclusion cannot ‘pay its way.’” Davis, 131 S. Ct. at 2427 (citations omitted); see also, e.g.,
United States v. Boone, 62 F.3d 323, 325 (10th Cir. 1995) (noting that “a mistaken belief” that
the defendant “had consented to the search … rises to the level of a Fourth Amendment
violation, [but] it does not qualify as flagrant misconduct that would tilt the scales against
attenuation”); United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994) (holding that
attenuation existed when, among other considerations, the “officer’s conduct was in good faith”
and “not flagrant”); United States v. Richard, 994 F.2d 244, 252 (5th Cir. 1993) (holding that
attenuation existed when, among other considerations, “both agents reasonably believed that they
had consent to search” defendant’s motel room).
The Court, however, is left slightly in the dark regarding the flagrancy element because
the Government has strategically refused to provide details about the law enforcement database it
used. Based on the Government’s affidavits and briefing on the motion to suppress, the Court
knows only that the database was accessible to HSI and that this database was not the NSA
program discussed in Klayman. The Court may surmise, though, that the law enforcement
database operates fairly similarly to the NSA program, at least insofar as the database also
appears to include a repository of aggregated telephone records for calls made into the U.S. from
17
abroad. Cf. Klayman, 957 F. Supp. 2d at *14-19 (describing the NSA’s bulk telephony
program). The Court can reach this conclusion because HSI used the database to search
retrospectively for telephone calls between Sheikhi’s Iranian telephone number and any U.S.
number, which suggests that the database includes, at a minimum, a collection of past telephone
calls from foreign numbers into the U.S.
Such ambiguity, however, leaves the Court in a difficult position. For example, if the
Court treats the HSI law enforcement database as functionally equivalent to the NSA telephony
program, the Court likely would conclude that HSI acted in good faith because federal courts
generally have approved of the NSA program, with the exception being Judge Leon’s opinion in
Klayman, which itself is on appeal before the D.C. Circuit. See Gov’t’s Mem. Opp’n Mot.
Suppress 19 n.5 (citing cases upholding the NSA program). Further, even if the Court accepts
Klayman as the authoritative statement on the NSA program’s legality, Klayman was not decided
until 2013, while the HSI database search occurred in 2011, at which time it appears that no
federal court had deemed the program unconstitutional. See Davis, 131 S. Ct. at 2429
(“Evidence obtained during a search conducted in reasonable reliance on binding precedent is
not subject to the exclusionary rule.”).
But, at the same time, the Court does not know with certainty whether the HSI database
actually involves the same public interests, characteristics, and limitations as the NSA program
such that both databases should be regarded similarly under the Fourth Amendment. In
particular, the NSA program was specifically limited to being used for counterterrorism
purposes, see Klayman, 957 F. Supp. 2d at 15-16, and it remains unclear if the database that HSI
searched imposed a similar counterterrorism requirement. If the HSI database did have such a
limitation, that might suggest some level of flagrancy by HSI because it was clear that neither
18
Sheikhi nor Hassanshahi was involved in terrorism activities. With so many caveats, the
Government’s litigation posture leaves the Court in a difficult, and frustrating, situation. Yet,
even assuming that the HSI database was misused to develop the lead into Hassanshahi, HSI’s
conduct appears no more flagrant than law enforcement conduct in other “unlawful lead” cases,
which still held that the attenuation exception applied nonetheless. 6 Cf. Carter, 573 F.3d at 421
(admitting evidence after illegal search of defendant’s residence); Smith, 155 F.3d at 1059
(admitting evidence resulting from an “illegally intercepted wire communication”); Friedland,
441 F.2d at 856 (admitting evidence after the “FBI unlawfully installed electronic ‘bugs’” in an
office).
The Court is more certain, though, that HSI did not search the law enforcement database
for the purpose of “extracting evidence against the defendant.” Washington, 387 F.3d at 1075
(citation omitted). When it executed the database search using Sheikhi’s business telephone
number, HSI had no inclination that Hassanshahi was involved with Sheikhi or his company;
indeed, the agency used the law enforcement database to cast a wide net for potential U.S.-based
suspects for the very reason that it had no leads into U.S. suspects at the time. Thus, although
that net eventually ensnared Hassanshahi, the lack of initial targeting compels the Court to
conclude that HSI did not act purposefully or in bad faith to violate Hassanshahi’s constitutional
rights.
6
The Government’s silence regarding the nature of the law enforcement database
has made the Court’s analysis more complex than it should be. Although the Court still
concludes that the attenuation exception applies in large part based on the “unlawful lead” line of
cases, the Court will order that the Government provide the Court with an ex parte declaration
summarizing the contours of the mysterious law enforcement database used by HSI, including
any limitations on how and when the database may be used.
19
4. United States v. Scios and United States v. Najjar Do Not Compel A Different Result
Finally, the Court must address two arguments raised through Hassanshahi’s reply
memorandum. First, Hassanshahi argues that the D.C. Circuit’s en banc decision in United
States v. Scios, 590 F.2d 956 (D.C. Cir. 1978), is directly on point and compels against finding
attenuation. See Def.’s Reply Supp. Mot. Suppress 20-19. In Scios, law enforcement agents
illegally searched sixty file folders located in the defendant’s home after the defendant had been
arrested. See id. at 958. One of the folders contained various papers, including a credit card
receipt for a motel bearing the defendant’s name and an itemized bill from the same motel
indicating that “Mr. Massa” had registered for the room. See id. The agents issued a subpoena
to require Massa to appear before a grand jury regarding the defendant’s possible unlawful
activity, namely wiretapping. See id. Massa initially refused to testify, but he later agreed after
the prosecutor granted him immunity and threatened contempt for any further refusal. See id. at
958-59. After the defendant was indicted, he moved to suppress Massa’s testimony as fruit of
the illegal seizure of the credit card receipt. See id. at 959. The en banc court held that Massa’s
testimony was inadmissible because his decision to testify was “made solely to avoid being jailed
for contempt.” Id. at 961. The court also noted that the taint from the illegal search had not
dissipated because the agents were unaware of Massa’s existence prior to the search, and because
Massa agreed to testify only in response to official pressure, not through his own volition. Id. at
963-64.
The Court finds that Scios is inapplicable to the instant case. Scios involved applying the
fruit of the poisonous tree doctrine to testimony from a witness whose identity was uncovered
through a search that violated the defendant’s Fourth Amendment rights. Thus, in Scios, and in
other cases relying on Scios since then, the question was whether a witness voluntarily had
20
chosen to testify such that the testimony may be considered attenuated from the prior unlawful
search. See Scios, 590 F.2d at 960 (“In certain circumstances, the attenuation doctrine has been
applied where the witness who has been located as the result of an illegal search or seizure has
voluntarily decided to testify.” (citations omitted)); id. (“Turning to the case before us, we
examine first the claim that the taint of the illegal seizure was attenuated by a voluntary decision
to testify.”); see also United States v. Stevens, 612 F.2d 1226, 1230 (10th Cir. 1979) (comparing
Scios and affirming the district court’s decision to admit witness testimony when the witness
“offered to testify” in part due to “a desire ‘to change his life-style and stay out of trouble,’” not
due to the threat of contempt or other penalties like in Scios); United States v. Davis, No. CRIM.
10-339, 2011 WL 1655549, at *5-6 (D. Or. May 2, 2011) (comparing Scios and admitting
witness testimony when the witness “made an independent and voluntary decision to speak with
the officers several months after she was identified as a result of an illegal search,” such that
attenuation existed).
Here, there is no witness testimony against Hassanshahi, and even stretching Scios to its
plausible limits, Hassanshahi has not, and cannot, demonstrate how any relevant physical
evidence against him might be considered “coerced” like the witness in Scios. Cf. Scios, 590
F.2d at 961 (“[I]t is plain that Massa’s giving of testimony before the grand jury, and presumably
at the trial is purely and simply a product of coercion.”). Instead, the unlawful law enforcement
database search allowed HSI to uncover the identity of Hassanshahi — the defendant, not a
witness and not evidence in and of itself — by linking him to the 818 number through the
Google subpoena; the 818 number then led HSI to other physical evidence, such as that in TECS,
not any witness testimony. Accordingly, the scenario here is both factually and legally distinct
from Scios. The correct analysis, in fact, involves the “wrongful lead” cases, discussed above, in
21
which a limited piece of illegally obtained evidence directs law enforcement to focus its
subsequent lawful investigation on the defendant, not on involuntary witness testimony cases
like Scios. 7
Second, Hassanshahi suggests through his reply memorandum that United States v.
Najjar, 300 F.3d 466 (4th Cir. 2002), requires the Court to find a lack of attenuation here. See
Def.’s Reply Supp. Mot. Suppress 23-25. Not so. In Najjar, the defendant argued that the
district court erred by admitting evidence obtained through two search warrants when much of
the evidence used to obtain those two warrants came from the execution of an earlier warrant in
1995 that later was invalidated. See id. at 475. In affirming the district court’s decision, the
Fourth Circuit explained that the officer’s “investigation was not a simple matter of looking at
salvage certificates obtained in the 1995 search and obtaining new evidence from their use,
rather it was a substantial investigative effort unconnected to the seized documents
themselves[.]” Id. at 479. The court then relied on a theory similar to the “wrongful lead”
doctrine by explaining that “it is not enough that the original certificates may have triggered [the
officer’s] suspicion or gave impetus or direction toward what is to be focused on by the
government.” Id. (internal citation and quotation omitted). Thus, the court concluded that
“[e]ven if the original illegal search in some slight way was a but-for cause of the later searches,
7
Even ignoring this fundamental difference, Scios still does not compel a different
result here. There is no doubt that in the case of both Messa’s testimony in Scios and the
forensic examination of Hassanshahi’s laptop, “but for” the initial unlawful search, law
enforcement would not have uncovered the relevant evidence, thus making both pieces of
evidence “fruit” of the poisonous tree. Cf. Def.’s Reply Supp. Mot. Suppress 22 (arguing that
“[j]ust like Massa’s testimony in Scios, the computer search in this case is fruit of the poisonous
tree and should be suppressed”). But unlike in Scios, where the D.C. Circuit found no
attenuation primarily due to a lack of voluntariness by Messa, all three attenuation factors in this
case suggest that the illegal taint from the database search was purged by the time of the forensic
examination. Hassanshahi fails to appreciate that merely having “but-for” causation does not
require suppression when other attenuating factors are at play.
22
[the officer’s] two-year investigation and the intervening circumstances were sufficient to break
the causal link between any primary illegality and later obtained evidence.” Id.
Though HSI’s investigation into Hassanshahi lasted several months rather than two years,
the conclusion in Najjar in consistent with the Court’s decision here because of the significant
investigative steps HSI took between the database search and the forensic examination, as well
as the limited probative value of the unlawfully discovered 818 number. To distinguish the
cases, Hassanshahi asserts that “no time at all passed between the illegal search (accessing the
telephony database) and when the agent ordered the computer search when and if Hassanshahi
returned to the U[.]S.” Def.’s Reply Supp. Mot. Suppress 25. But Hassanshahi’s argument
misstates the facts of the case and therefore focuses on the wrong timeframe. In reality, the HSI
agent did not order the forensic examination “when and if Hassanshahi returned to the U[.]S.”
Id. Instead, on November 29, 2011, the agent “augmented the existing TECS records regarding
Hassanshahi by entering instructions that [the agent] should be alerted if and when [Hassanshahi]
returned to the United States, and that [Hassanshahi] should be referred for secondary screening
by [CBP] officers when he returned to the U.S.” 2d Akronowitz Aff. ¶ 17. There is no support
in the record for Hassanshahi’s claim that the forensic examination also was ordered on
November 29 or, for that matter, at any other time prior to Hassanshahi’s arrival at LAX on
January 12, 2012. Indeed, the record does not reflect any evidence that law enforcement had any
way of knowing which devices, if any, Hassanshahi would possess when he eventually crossed
the border at a then-unknown date.
Alternatively, even if the Court used November 29, 2011, as the relevant date, most of
the key investigative steps leading to the forensic examination already had occurred between
then and the August 24, 2011, database search such that the same temporal proximity analysis
23
should apply. Thus, Hassanshahi’s suggestion that “[t]here was no time for any independent
investigation” during this two month period, see Def.’s Reply Supp. Mot. Suppress 25, is not
supported by the undisputed facts in the record, which show that HSI did conduct an independent
investigation in this period by using, for example, TECS and a Google subpoena. 8 Lastly,
Hassanshahi asserts that Najjar is distinguishable because the circuit court there agreed with the
district court’s finding that the original violation was not purposeful or flagrant. See id. As this
Court has explained, however, it reaches the same conclusion as Najjar about the lack of
purposefulness or flagrancy with regard to the database search. Simply put, then, nothing in
Najjar requires a different conclusion here. 9
* * *
In sum, the Court finds that all three attenuation factors compel in favor of finding that
the initial taint of illegality from the law enforcement database search was purged. Accordingly,
the Court concludes that the “causal chain” leading to the discovery of laptop evidence was “too
attenuated to justify exclusion.” Brodie, 742 F.3d at 1063 (citation and quotation omitted). The
Court therefore refuses to suppress the laptop evidence on this basis.
8
Hassanshahi also argues that “there was no independent source of information”
linking Hassanshahi to Sheikhi. See Def.’s Reply Supp. Mot. Suppress 25. Though true that the
database search provided the only link between Hassanshahi and Sheikhi, Hassanshahi does not
explain why this fact is relevant to the attenuation analysis.
9
It appears to the Court that Hassanshahi actually may be arguing about the
independent discovery exception to the fruit of the poisonous tree doctrine, not attenuation. Cf.
United States v. Holmes, 505 F.3d 1288, 1293 (D.C. Cir. 2007) (explaining that inevitable
discovery, discovery through independent means, and attenuation are alternative methods for
dissipating the taint from an unlawful search or seizure). If that is the case, Hassanshahi presents
a straw man argument because the Government never suggested that it discovered the laptop
evidence through independent means.
24
C. Reasonable Suspicion Existed For The Forensic Laptop Examination
The broad power of the Government to conduct searches at the international borders is
rooted in “the long-standing right of the sovereign to protect itself by stopping and examining
persons and property crossing into this country.” 10 United States v. Ramsey, 431 U.S. 606, 621
(1977). The Supreme Court therefore has explained that “[t]he Government’s interest in
preventing the entry of unwanted persons and effects is at its zenith at the international border.”
United States v. Flores-Montano, 541 U.S. 149, 152 (2004). Given the strong interests at stake,
the Supreme Court has “[t]ime and again … stated that ‘searches made at the border … are
reasonable simply by virtue of the fact that they occur at the border.’” Id. at 152-53 (quoting
Ramsey, 431 U.S. at 616).
Notwithstanding this sweeping language about the Government’s expansive border
search power, the Supreme Court has suggested over the years that the Fourth Amendment may
impose some limits even at the nation’s borders, though the Court has not always spoken
definitively on that subject, nor has it clearly defined such limits, if any. Cf. Flores-Montano,
541 U.S. at 152-53, 155-56 (noting that there are “reasons that might support a requirement of
some level of suspicion in the case of highly intrusive searches of the person-dignity and privacy
interests of the person being searched,” as well as in the case of searches of property that are
“destructive”); United States v. Montoya de Hernandez, 473 U.S. 531, 541 & n.4 (1985) (noting
that the Court has “not previously decided what level of suspicion would justify a seizure of an
incoming traveler for purposes other than a routine border search”); Ramsey, 431 U.S. at 618
n.13 (leaving open the question of “whether, and under what circumstances, a border search
10
As a threshold issue, it is well settled that searches of passengers on incoming
international flights at a U.S. airport are considered the “functional equivalent of a border
search” for Fourth Amendment purposes. Almeida-Sanchez v. United States, 413 U.S. 266, 273
(1973).
25
might be deemed ‘unreasonable’ because of the particularly offensive manner in which it is
carried out”). Indeed, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’”
Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006), so it appears only logical that some
circumstance might arise at the border when the Government’s conduct nudges into
unreasonableness territory.
Hassanshahi now argues that this Court should recognize one such limit to the border
search power by following two recent federal court decisions — United States v. Cotterman, 709
F.3d 952 (9th Cir. 2013), and United States v. Saboonchi, 990 F. Supp. 2d 536 (D. Md. 2014) —
and holding that the Fourth Amendment required reasonable suspicion to conduct the forensic
examination of Hassanshahi’s laptop following the border stop. Before reaching the legal merits
of this position, however, the Court first must determine whether reasonable suspicion did in fact
exist. And because the Court ultimately concludes that there was reasonable suspicion for the
forensic examination of Hassanshahi’s laptop, the constitutional question of whether that
examination required reasonable suspicion becomes moot. 11
11
Interestingly, both Cotterman, 709 F.3d at 970 (“[W]e conclude that the
examination of Cotterman’s electronic devices was supported by reasonable suspicion and that
the scope and manner of the search were reasonable under the Fourth Amendment.”), and
Saboonchi, 990 F. Supp. 2d at 571 (“All of this is more than sufficient to give rise to reasonable,
particularized suspicion — if not probable cause — that Saboonchi was involved in violations of
export restrictions on Iran.”), found reasonable suspicion for the respective forensic computer
examinations, yet both courts spent considerable space addressing a constitutional question that
had no practical effect on the final disposition of the case. By contrast, this Court finds that
engaging in such an exercise would be imprudent unless reasonable suspicion was found not to
exist. See Stillman v. CIA, 319 F.3d 546, 548 (D.C. Cir. 2003) (holding that the district court
abused its discretion by “unnecessarily” deciding a First Amendment question and explaining
that “‘[a] fundamental and longstanding principle of judicial restraint requires that courts avoid
reaching constitutional questions in advance of the necessity of deciding them.’” (quoting Lyng
v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988)).
26
1. Reasonable Suspicion Standard
Reasonable suspicion exists when a law enforcement officer has “specific and articulable
facts,” which, considered together with rational inferences from those facts, indicate that
criminal activity “may be afoot.” Terry v. Ohio, 392 U.S. 1, 21, 30 (1968). When making the
reasonable suspicion determination, courts are instructed to view the “totality of the
circumstances” and not engage in a “divide-and-conquer analysis” in which courts consider
whether each fact is “susceptible to an innocent explanation.” United States v. Arvizu, 534 U.S.
266, 274 (2002). Thus, “[a] determination that reasonable suspicion exists … need not rule out
the possibility of innocent conduct.” Id. at 274 (citation omitted).
In addition, officers may “draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information available to them that ‘might
well elude an untrained person.’” Id. at 273 (quoting United States v. Cortez, 449 U.S. 411, 418
(1981)); see also Ornelas v. United States, 517 U.S. 690, 699 (1996) (reviewing court must give
“due weight” to factual inferences drawn by law enforcement officers). Though an officer’s
reliance on a mere “inchoate and unparticularized suspicion or ‘hunch’” is insufficient to
establish reasonable suspicion, see Terry, 392 U.S. at 27, the likelihood of criminal activity need
not rise to the level required for probable cause, nor even to the preponderance of the evidence
standard. See United States v. Sokolow, 490 U.S. 1, 7 (1989).
Before turning to the reasonable suspicion analysis, the Court notes that it must exclude
from the calculus evidence of the one telephone call between Sheikhi’s business phone number
and Hassanshahi’s 818 number because this evidence was the clear and direct result of an
unconstitutional search, as conceded by the Government. See, e.g., United States v. Karo, 468
U.S. 705, 719 (1984) (explaining that “if sufficient untainted evidence was presented in the
27
warrant affidavit to establish probable cause, the warrant was nevertheless valid” (citation
omitted)); United States v. Pina-Aboite, 109 F. App’x 227, 234 (10th Cir. 2004) (explaining that
because the officer violated the Fourth Amendment by extending the scope of a traffic stop after
finding no traffic violation, incriminating statements made later during the stop were tainted and
could not contribute retrospectively to establishing reasonable suspicion for the prolonged stop);
United States v. Eustaquio, 198 F.3d 1068, 1071-72 (8th Cir. 1999) (“As the touching of the
defendant’s midriff area was violative of the Fourth Amendment, any evidence resulting
therefrom is inadmissible and cannot be used to determine whether there was a reasonable
suspicion to detain or search her.”). The Court next turns to the remaining evidence known
about Hassanshahi prior to the forensic examination.
2. Hassanshahi’s Criminal History And Frequent Travel To Iran
Prior to conducting the forensic examination, HSI conducted research on Hassanshahi in
TECS, which led HSI to discover details about a 2003 federal investigation into Hassanshahi’s
participation in a conspiracy to establish an American company for the purpose of entering into
an agreement with a Chinese company to build a computer production facility in Iran. 12 Federal
12
In his reply memorandum, Hassanshahi suggests that the probative value of the
2003 HSI investigation is significantly lessened because he was “cleared” of any criminal
misconduct. The decision not to file criminal charges, however, does not automatically equate to
him having been cleared of all wrongdoing, and anyway, it is the facts uncovered about
Hassanshahi’s role in the scheme to violate the Iran export embargo that are probative of a
potential new scheme to violate the same laws in 2011, not the ultimate decision not to file
charges. Indeed, according to the California state court decision dismissing Hassanshahi’s
breach of contract claim as against public policy, Hassanshahi and his co-plaintiffs specifically
alleged that “they and defendants [Chinese companies] agreed to establish an Iranian corporation
to manufacture notebook computers in [Iran’s] free trade zone and to sell that product in Iran and
in neighboring countries.” Kashani v. Tsann Kuen China Enter. Co., 118 Cal. App. 4th 531,
537-38 (Cal. App. 2d Dist. 2004). Plaintiffs also alleged that as part of this agreement, they
“traveled to Iran to begin setting up the plant,” “secured the necessary governmental
cooperation,” and “invested considerable funds, time and resources into the project to find the
land, plan the facility, and other expensive preparations … [and to] make certain commitments,
28
circuit courts have consistently held, however, that a person’s criminal history is insufficient to
create reasonable suspicion by itself. See, e.g., United States v. Johnson, 482 F. App’x 137, 148
(6th Cir. 2012) (“The fact that [defendant] had committed crimes in the past, while it has a place
in the reasonable-suspicion analysis, is not, without more, strong evidence of criminal activity in
the present.”); United States v. Walden, 146 F.3d 487, 490 (7th Cir. 1998) (“Reasonable
suspicion of criminal activity cannot be based solely on a person’s prior criminal record.”). But,
at the same time, “criminal history contributes powerfully to the reasonable suspicion calculus,”
United States v. Santos, 403 F.3d 1120, 1132 (10th Cir. 2005), and an officer’s “knowledge of
the individual’s criminal history help[s] to dispel any likelihood that the observed conduct
actually was innocent.” United States v. Monteiro, 447 F.3d 39, 47 (1st Cir. 2006).
Here, HSI’s 2003 investigation into Hassanshahi’s scheme to violate the Iran trade
embargo was relevant for more than just establishing Hassanshahi’s general history with law
enforcement, as his past activity in Iran also negatively colored the perception of any future
travel by him to that specific country. Thus, Hassanshahi’s travel to Iran after 2003 should not
be measured as general travel abroad to a foreign country like another person’s travel might, but
rather as him returning to the specific “scene of the crime,” for lack of a better term. Travel to
Iran, then, becomes a particularized and objective fact potentially indicative of ongoing criminal
activity by Hassanshahi because one quite reasonable explanation for his ongoing presence in
Iran was that he continued to conduct business involving that country, similar to what he did in
2003. Cf. Reid v. Georgia, 448 U.S. 438, 440-41 (1980) (finding no reasonable suspicion in
large part because defendant’s arrival “from Fort Lauderdale, which the agent testified is a
including [with] the government [of Iran].” Id. at 548 (internal citations and quotation marks
omitted). Given Hassanshahi’s own admissions in the civil lawsuit, the assertion that no criminal
charges were filed may be true, but that does not negate the reality of the underlying events.
29
principal place of origin of cocaine sold elsewhere in the country[,] … describe[d] a very large
category of presumably innocent travelers, who would be subject to virtually random seizures
were the Court to conclude that as little foundation as there was in this case could justify a
seizure.”); Cotterman, 709 F.3d at 992 (Smith, J., dissenting) (criticizing the majority for finding
reasonable suspicion based in large part on defendant recently traveling to Mexico, a country
broadly associated with “sex tourism,” because using such a generic fact to support reasonable
suspicion potentially means that “thousands of individuals — many with decades-old convictions
— will now be forced to reconsider traveling to entire countries or even continents, or will need
to leave all their electronic equipment behind, to avoid arousing a ‘reasonable’ suspicion.”).
In addition, TECS revealed not only that Hassanshahi was in Iran for some period of time
between late 2011 and early 2012, but also that he had returned from Iran in 2006, twice in 2008,
once in 2010, and once again in May 2011. Given Hassanshahi’s history in acting to violate the
Iran trade embargo, these frequent trips potentially were suggestive of a continuous illegal
business relationship with someone in Iran, or with the country’s government itself. Cf. United
States v. Glover, 353 F. App’x 314, 317 (11th Cir. 2009) (finding that defendant’s multiple “trips
to Trinidad, which was known to be a high drug trafficking location,” were indicative of drug
smuggling and helped support reasonable suspicion); Hurn v. United States, 221 F. Supp. 2d
493, 503 (D.N.J. 2002) (finding that defendant’s “repeated, prior trips to Jamaica,” a “known
drug source country,” were indicative of drug smuggling and helped support reasonable
suspicion); United States v. Clymore, 515 F. Supp. 1361, 1367 (E.D.N.Y. 1981) (evidence that
defendant was returning from a trip to Pakistan, a country known as a source of narcotics; that
defendant had made a number of other trips to the Middle East; and that defendant previously
30
had been arrested for attempted smuggling supported finding reasonable suspicion to conduct
invasive strip search at airport).
This possibility was reinforced by the fact that in 2005, Hassanshahi was stopped,
questioned, and then released by CBP officers after he returned from Dubai with $15,000 in
cash, an act that also might suggest continued business activity in the Middle East following the
2003 investigation. Further, when Hassanshahi landed at LAX on January 12, 2012, he had
approximately $7,000 in cash in his possession. Cf. United States v. Chandler, 437 F. App’x
420, 428 (6th Cir. 2011) (noting that “while the mere possession of currency is innocent
behavior, the large amount of currency possessed by [defendant] was unusual” and indicative of
a recent narcotics transaction) (emphasis in original); United States v. Green, 599 F.3d 360, 376
(4th Cir. 2010) (holding that the incriminating nature of a large sum of money could be
“immediately inferred” when defendant was suspected of drug-related activities); United States
v. Whitney, 391 F. App’x 277, 279, 282 (4th Cir. 2010) (discovery of roughly $3,000 in cash in
defendant’s pockets during a traffic stop was an important fact for justifying reasonable
suspicion); United States v. Chhien, 266 F.3d 1, 8-9 (1st Cir. 2001) (discovery of $2,000 in cash
during a traffic stop helped support determination of reasonable suspicion and justified a brief
period of further detention); Conrod v. Davis, 120 F.3d 92, 97-98 (8th Cir. 1997) (discovery of
$6,000 in cash in individual’s pocket and $4,000 in suitcase helped establish reasonable
suspicion). Together, these events further add to the pile of evidence known to HSI which
suggested that Hassanshahi had maintained ongoing business dealings in the Middle East, and
Iran in particular.
31
3. Accessing E-Mail Account In Iran And Telephone Calls From Iran
HSI also understood that Hassanshahi’s e-mail account was accessed twenty-four times
from an Iran IP address between December 8, 2011, and December 15, 2011. At the same time,
however, this account was accessed from IP addresses in multiple other countries within minutes
of apparently being accessed in Iran, which may suggest that other users had access to the
account. Nonetheless, a “determination that reasonable suspicion exists … need not rule out the
possibility of innocent conduct,” Arvizu, 534 U.S. at 277, and Hassanshahi’s seemingly frequent
use of e-mail while in Iran suggests that he may have been conducting business while traveling
to that country, especially in light of the 2003 investigation.
In addition, HSI possessed evidence that around the same time Hassanshahi traveled to
Iran, he also made contact with one Iranian telephone number and received a missed call from
another Iranian number. Though it certainly is possible that these two telephone calls were
nothing more than innocent conduct by Hassanshahi, it also is plausible that the calls further
indicated Hassanshahi’s continued involvement in prohibited activities inside Iran. Again, as the
Supreme Court and the D.C. Circuit have explained, “that an individual’s conduct is ‘ambiguous
and susceptible of an innocent explanation’ does not mean that it may not be grounds for
suspicion: ‘Terry recognized that … officers could detain [such] individuals to resolve the
ambiguity.’” United States v. Brown, 334 F.3d 1161, 1168 (D.C. Cir. 2003) (quoting Illinois v.
Wardlow, 528 U.S. 119, 125-26 (2000)) (alteration in Brown).
4. Possession Of Multiple Electronic Devices At LAX
Finally, one additional fact weighs in favor of reasonable suspicion existing before the
forensic laptop examination. When Hassanshahi landed at LAX, he possessed multiple
electronic devices and data storage accessories, including a laptop computer, multimedia cards,
32
thumb drives, a camcorder, SIM cards, and a cell phone. See 1st Arkonowitz Aff. ¶ 19. Though
it generally is unremarkable nowadays for a person traveling abroad to bring a computer,
camcorder, or cell phone with them, Hassanshahi’s possession of multiple data storage devices
appears to be inconsistent with just personal use while traveling. Instead, one reasonable
inference was that these data storage devices, and thus perhaps the corresponding electronic
devices as well, were necessary for conducting business while Hassanshahi was in Iran. This
inference then further supports the possibility that Hassanshahi traveled to Iran to engage in the
same type of business activity for which he was investigated in 2003.
5. Totality Of The Circumstances And Reasonable Suspicion
Judicial review of the Government’s argument for reasonable suspicion is “not a rubber
stamp.” United States v. Freeman, 735 F.3d 92, 103 (2d Cir. 2013). At the same time, however,
the Court is mindful that reasonable suspicion sets a “low threshold,” United States v. Rivera,
353 F.App’x 535, 537 (2d Cir. 2009), and requires only a “‘minimal level of objective
justification.’” United States v. Edmonds, 240 F.3d 55, 59 (D.C. Cir. 2001) (quoting INS v.
Delgado, 466 U.S. 210, 217 (1984)). Further, though the contemporaneous evidence against
Hassanshahi was, in a vacuum, innocent — travel to Iran; telephone calls from and e-mail
activity in Iran; possession of legal electronic and data storage devices while traveling abroad —
“the question of whether reasonable suspicion existed can only be answered by considering the
totality of the circumstances as the officer on the scene experienced them.” Id. at 59-60
(citations omitted). Indeed, “[a]n officer’s training and experiences enable him to ‘draw[]
inferences and make[] deductions’ from seemingly innocuous facts — ‘inferences and
deductions that might well elude an untrained person.’” Id. at 60 (quoting Cortez, 449 U.S. at
418) (alteration in Edmonds).
33
Here, HSI Special Agent Arkonowitz, who was in communication with the CBP officers
who detained Hassanshahi at LAX, had several years of experience working for HSI, including
specific experience with criminal investigations into the illegal exportation of goods from the
U.S to Iran. See 1st Arkonowitz Aff. ¶ 1; 2d Arkonowitz Aff. ¶ 1. The Court also must consider
the innocuous facts known about Hassanshahi not only for what they suggest taken together, but
also for what they suggest in the context of the 2003 HSI criminal investigation. This
investigation established a clear precedent of Hassanshahi attempting to violate the Iran trade
embargo, and such evidence “contributes powerfully to the reasonable suspicion calculus.”
Santos, 403 F.3d at 1132. Indeed, as one circuit court has explained, law enforcement’s
“knowledge of the individual’s criminal history” can “help[] to dispel any likelihood that the
observed conduct actually was innocent.” Monteiro, 447 F.3d at 47.
Ultimately, based on Hassanshahi’s recent contacts with Iran — including the latest trip
to Iran following a series of other visits to Iran in the past few years and the recent telephone
calls from Iran — the large quantity of electronic devices and cash in Hassanshahi’s possession
when he returned from Iran in January 2012, and the 2003 criminal investigation into what may
have been similar illegal conduct, the Court finds that law enforcement possessed “specific and
articulable facts,” which, considered together with rational inferences from those facts, indicated
that Hassanshahi may have been up to his old tricks by again conducting business in violation of
the Iran trade embargo. See Terry, 392 U.S. at 21; see also Wayne R. LeFave et al., Criminal
Procedure § 3.8 (5th ed. 2009) (“The Terry reference to when ‘criminal activity may be afoot’
strongly suggests that though the arrest standard may sometimes require that guilt be more
probable than not, this is never the case as to a stopping for investigation, where the very purpose
is to clarify an ambiguous situation.” (footnote omitted; emphasis in original)).
34
Other cases in which federal courts have found reasonable suspicion based on similar or
lesser evidence are instructive. For example, in United States v. Massi, 761 F.3d 512 (5th Cir.
2014), the circuit court affirmed the district court’s finding of reasonable suspicion to justify an
investigatory inspection of an airplane based on the following: the plane’s “suspicious” flight
path and frequent refueling stops between Orlando and Las Vegas; the registered owner of the
plane having been convicted of drug trafficking approximately twenty years prior; and a
passenger on the plane having recently crossed from Tijuana, Mexico, “a known hub of the
illegal drug trade,” into the U.S. See id. at 518, 522-23. Similarly here, Hassanshahi had a
history of illegal conduct directly relevant to the crime for which he now was suspected. In
addition, Hassanshahi had recently traveled to Iran, a suspicious country that might be
considered the “hub” of his illegal activity given the 2003 investigation, and he also had made
multiple trips to Iran in recent years, which together could be considered a suspicious travel
history given that Iran is not a common destination for U.S. citizens.
As another example, the district court in United States v. Bunty, 617 F. Supp. 2d 359
(E.D. Pa. 2008), considered the defendant’s motion to suppress evidence that was found on his
computer equipment during a search after he arrived at a Philadelphia airport on a flight from
London. See id. at 363-64. After concluding that reasonable suspicion was not required for the
search, the district court went on to consider whether such suspicion existed anyway. See id. at
365. In doing so, the court found that reasonable suspicion did exist for the computer search
based on the following: the defendant had been arrested for the sexual abuse of a child and
recently had pled guilty to corrupting the morals of a minor in that case; the defendant possessed
a letter from his probation officer giving him permission to travel to England; the defendant
possessed two laptop computers, a digital camera, a cell phone, and a variety of electronic
35
storage devices, including several compact discs, movie DVDs, flash drives, and floppy disks
that could not be used with his computers; and the defendant had a history of “extensive
international travel.” 13 See id.
Similarly here, Hassanshahi had a criminal history relevant to the crime for which he now
was suspected — there, possession of child pornography; here, violating the Iran trade embargo.
In addition, Hassanshahi had recently traveled abroad, and he also had entered the U.S. with a
variety of electronic devices and data storage accessories that could have been used in
furtherance of the suspected illegal activity. Indeed, unlike the defendant in Bunty, who had just
returned from London, which itself was not especially associated with criminal activity as to the
defendant or in general, Hassanshahi had traveled to Iran, which was exactly where his prior
relevant bad conduct had occurred.
Finally, in United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013), a case on which
Hassanshahi heavily relies, the Ninth Circuit’s en banc majority found reasonable suspicion to
conduct a forensic examination of the defendant’s computer following a border stop at LAX
based on the following: the defendant’s 1992 conviction for child molestation; the defendant’s
recent travel to Mexico, a “country associated with sex tourism,” as well as other unspecified
recent travel outside the U.S.; the defendant’s collection of electronic equipment at the border,
which included the defendant and his wife each having a laptop and digital camera, as well as
one video camera between them; and the existence of password-protected files on the
defendant’s computer. See id. at 968-70.
The Court finds that for several reasons, the facts supporting reasonable suspicion here
are significantly more probative of ongoing criminal activity than the facts in Cotterman. First,
13
It is unclear from the district court’s opinion whether this travel referred to
defendant’s recent trip to England or other unknown international trips.
36
Hassanshahi’s criminal history was only eight years-old at the time of the forensic examination,
whereas Cotterman’s conviction was fifteen-years old when the examination of his devices
occurred. See id. at 957. Second, Cotterman’s recent travel to Mexico, a “country associated
with sex tourism,” falls very close to the category of evidence that the Supreme Court has
cautioned against using for reasonable suspicion because it “describe[s] a very large category of
presumably innocent travelers,” Reid v. Georgia, 448 U.S. 438, 441 (1980), while Hassanshahi
traveled on multiple occasions to the specific country at issue in the 2003 criminal investigation,
thus making his travel far more probative of criminal conduct. 14 Third, Cotterman and his wife
each carried a laptop and digital camera when traveling to Mexico, as well as one video camera
between them, which altogether does not appear particularly remarkable for international
tourists. Cf. Cotterman, 709 F.3d at 992 (Smith, J., dissenting) (“In today’s world, the fact that
Cotterman and his wife each carried a laptop and digital camera when traveling internationally,
as well as one video camera between them, is no more evidence of ‘sex tourism’ than of any
other kind of tourism.”). Hassanshahi, on the other hand, possessed a laptop computer,
multimedia cards, thumb drives, a camcorder, SIM cards, and a cell phone, which together
suggest a person engaged in business while traveling to Iran, not tourism. Finally, while the
Ninth Circuit majority relied on Cotterman having password-protected files on his computer as
the last fact supporting reasonable suspicion, several much more probative facts were known
14
A more analogous situation would have been, for example, if Cotterman’s 1992
conviction specifically involved child pornography that he had obtained from, or that perhaps
had been made in, Mexico, which would have made his travel to Mexico more relevant and
specific than just a visit to a country generically associated with certain criminal activity. Cf.
Cotterman, 709 F.3d at 992 (Smith, J., dissenting) (“[T]he fact that Cotterman was returning
from Mexico fails to support a finding of reasonable suspicion. Mexico is a popular travel
destination for Californians, including those who travel to Mexico for its beaches, culture and
weather, and not for its sex tourism. Travel to Mexico simply does not support reasonable
suspicion without more specific evidence that Cotterman traveled to a particular establishment,
city, or even region, associated with sex tourism.”).
37
about Hassanshahi, such as the two recent telephone calls from Iran, the 2005 questioning by
CBP officers after Hassanshahi returned from Dubai with $15,000 in cash, Hassanshahi’s
multiple other trips to Iran in recent years, and Hassanshahi’s possession of $7,000 in cash when
he arrived at LAX in January 2012. 15
* * *
The D.C. Circuit has held that “even though a single factor might not itself be sufficiently
probative of wrongdoing to give rise to a reasonable suspicion, the combination of several
factors — especially when viewed through the eyes of an experienced officer — may.”
Edmonds, 240 F.3d at 60. That is exactly the case here. Through the combination of multiple
factors, none of which individually constituted direct evidence of criminal activity but all of
which were consistent with the scheme uncovered during the 2003 HSI investigation, the Court
finds that reasonable suspicion existed to conduct the forensic examination of Hassanshahi’s
laptop. Having reached this conclusion, the Court need not address whether reasonable
suspicion was required as a matter of law because that question is rendered moot.
IV. CONCLUSION
For the foregoing reasons, the motion to suppress is denied. An order consistent with
this Memorandum Opinion is separately and contemporaneously issued.
15
In his reply memorandum, Hassanshahi compares the facts known about him to
the facts on which the district court found reasonable suspicion for a forensic examination in
Saboonchi, 990 F. Supp. 2d 536 (D. Md. 2014). Without doubt, more information was known
about Saboonchi than was known about Hassanshahi at the time of the respective forensic
examinations. Saboonchi, however, does not set the floor of what evidence is required for
reasonable suspicion, and in fact, the district court there indicated that the evidence may even
have met the much higher probable cause threshold. See id. at 571 (“All of this is more than
sufficient to give rise to reasonable, particularized suspicion — if not probable cause — that
Saboonchi was involved in violations of export restrictions on Iran.”).
38
Dated: December 1, 2014 RUDOLPH CONTRERAS
United States District Judge
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