United States v. Muhtorov
Not available in provided text (2021)
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Rule of Law:
The warrantless, incidental collection of a U.S. person's communications during a lawful surveillance of a non-U.S. person abroad under Section 702 of the Foreign Intelligence Surveillance Act (FISA) does not violate the Fourth Amendment. Such collection is reasonable because it is analogous to the plain view and incidental overhear doctrines and satisfies a balancing test weighing the government's compelling national security interest against the individual's privacy interest, which is protected by Section 702's statutory safeguards.
Facts:
- Jamshid Muhtorov, a political refugee from Uzbekistan, became a legal permanent resident of the United States in 2007.
- Muhtorov developed a shared interest with a friend in the Islamic Jihad Union (IJU), a U.S. State Department-designated foreign terrorist organization.
- The U.S. government, while conducting warrantless surveillance on a non-U.S. person located abroad under Section 702, incidentally collected communications between Muhtorov and the foreign target.
- Beginning in 2011, Muhtorov used email to communicate with an IJU website administrator, expressing his support, pledging allegiance, and offering to provide whatever support he could, including to the point of death.
- In these communications, Muhtorov discussed purchasing portable satellite equipment and sending $300 in cash to the IJU.
- In other intercepted communications, Muhtorov and a friend used code words like 'wedding' to refer to jihadist activities and expressed a desire to martyr themselves.
- In December 2011, Muhtorov told an FBI informant, whom he believed to be an IJU sympathizer, that he planned to travel to Turkey to join the IJU.
- On January 21, 2012, authorities encountered Muhtorov at a Chicago airport as he prepared to fly to Turkey on a one-way ticket, carrying cash, new iPhones, and an iPad; his phone contained videos related to combat and making explosive devices.
Procedural Posture:
- Jamshid Muhtorov was charged in the U.S. District Court for the District of Colorado with providing material support to a foreign terrorist organization.
- The government provided notice that it intended to use evidence derived from traditional FISA surveillance and, subsequently, from Section 702 surveillance.
- Muhtorov filed a motion to suppress the traditional FISA evidence, which the district court denied after an in camera review of the application materials.
- Muhtorov filed a separate motion to suppress the Section 702-derived evidence, arguing it was the fruit of an unconstitutional warrantless search and that Section 702 itself was unconstitutional.
- The district court denied the motion to suppress Section 702 evidence, finding the surveillance did not violate the Fourth Amendment.
- Following a jury trial, Muhtorov was convicted on three counts of providing material support to a terrorist organization.
- Muhtorov appealed his conviction to the U.S. Court of Appeals for the Tenth Circuit, challenging the denial of his suppression motions.
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Issue:
Does the warrantless, incidental collection of a U.S. person's communications during a lawful foreign intelligence surveillance of a non-U.S. person abroad under Section 702 of FISA violate the Fourth Amendment?
Opinions:
Majority - Matheson, J.
No, the warrantless, incidental collection of a U.S. person's communications under these circumstances does not violate the Fourth Amendment. The collection was not per se unreasonable because no warrant was required, and it satisfied the Fourth Amendment's reasonableness test. The government did not need a warrant to surveil the foreign target, a non-U.S. person abroad who lacks Fourth Amendment protections under United States v. Verdugo-Urquidez. The incidental collection of Muhtorov's communications was justified under doctrines analogous to 'plain view' and 'incidental overhear,' as the government was lawfully conducting surveillance of the foreign target's communications, which necessarily included Muhtorov's side of the conversation. Furthermore, the surveillance passes the reasonableness balancing test by weighing the government's compelling, 'highest order' interest in national security and combating terrorism against Muhtorov's privacy interest. This balance favors the government, especially given that Section 702 includes statutory privacy safeguards, such as FISC-approved targeting and minimization procedures, designed to limit the surveillance to foreign intelligence purposes and protect U.S. persons. The court's independent review of the classified record also confirmed that the evidence was not derived from unconstitutional 'backdoor searches' or querying of databases using Muhtorov's identifiers.
Dissenting - Lucero, J.
Yes, the process by which the evidence was approved for use against Muhtorov violates constitutional norms because the record is insufficient to determine whether the Fourth Amendment was violated. The majority improperly avoids difficult constitutional questions by accepting the government's unsupported factual assertion that no unconstitutional querying of Section 702 databases occurred before it sought a traditional FISA warrant. The classified record is devoid of evidence to support this claim and is contradicted by standard FBI procedures outlined in public reports, which indicate that such querying is routine when opening a national security investigation. Because the record is silent on the total information agents relied upon to seek the FISA warrant, it is impossible to conduct the required derivative evidence inquiry to determine if the decision was tainted by an unconstitutional search. By accepting the government's bare assertion, the majority abdicates its duty to act as 'standby counsel' for the defense, which lacks access to the classified information needed to challenge the government's claims.
Analysis:
This decision solidifies the Tenth Circuit's alignment with the Second and Ninth Circuits, establishing a consistent view among federal appellate courts that Section 702's incidental collection mechanism is constitutional. It reinforces the principle that surveillance targeting foreigners abroad operates under a different constitutional framework than domestic law enforcement, extending doctrines like plain view into the realm of modern digital surveillance. The ruling grants significant deference to the government's national security interests, while affirming that Section 702's statutory safeguards are sufficient to render the intrusion on U.S. persons' privacy reasonable. This precedent makes it more difficult for defendants to challenge evidence derived from Section 702, placing a heavy burden on them to overcome the court's acceptance of the program's general lawfulness.
