## Facts

- Federal prosecutors charged Eldar Hasbajrami in the Eastern District of New York with terrorism-related offenses, including attempting to provide material support to a foreign terrorist organization.
- The government’s investigation relied in part on foreign-intelligence surveillance conducted under the Foreign Intelligence Surveillance Act (FISA), including collection authorized under FISA’s 2008 amendments (commonly associated with Section 702).
- Investigators obtained information from intelligence collection and later used it in a criminal case, including through additional investigative steps such as database queries, analysis, and follow-on collection.
- Hasbajrami moved to suppress evidence, arguing that the surveillance and the government’s use of the resulting information violated the Fourth Amendment and applicable statutes.
- The defense also challenged the adequacy of the government’s notice that FISA-derived or FISA-acquired information would be used in the prosecution and sought broader disclosure and adversarial testing of classified materials.
- The government opposed suppression, asserting that the surveillance was lawfully authorized for foreign-intelligence purposes, that minimization and targeting procedures constrained collection and use, and that the court could review sensitive materials ex parte and in camera as permitted by FISA.
- The court reviewed classified submissions and the legality of the challenged surveillance under the statutory framework governing foreign-intelligence collection and use in criminal proceedings.

## Issues

1. Whether evidence derived from foreign-intelligence surveillance conducted under FISA and its 2008 amendments should be suppressed as violating the Fourth Amendment.
2. Whether the surveillance complied with statutory requirements, including targeting and minimization procedures, and whether any statutory defect required suppression.
3. Whether the government’s notice and litigation procedures under FISA—particularly ex parte, in camera judicial review of classified materials—satisfied due process in a criminal prosecution.
4. Whether subsequent investigative use of intelligence information (including querying, analysis, and follow-on steps) constituted an unlawful search or otherwise required suppression.

## Decision

- The court denied Hasbajrami’s motion to suppress.
- The court held that the challenged foreign-intelligence surveillance, as reviewed under FISA’s procedures, did not require suppression on Fourth Amendment grounds.
- The court concluded that the surveillance and related handling of information complied with applicable statutory requirements, including the use of targeting and minimization procedures.
- The court determined that FISA’s mechanism for ex parte, in camera review of classified materials was appropriate in the circumstances and did not require broader disclosure to the defense.
- The court rejected arguments that the government’s use of intelligence-derived information in the criminal case, including downstream investigative steps, warranted suppression.

## Legal Principles

- Evidence obtained or derived from FISA-authorized foreign-intelligence surveillance may be used in a criminal prosecution if the surveillance and use comply with statutory prerequisites and constitutional limits.
- Courts may review classified FISA applications, certifications, and compliance materials ex parte and in camera when necessary to protect national security, and such review can satisfy the court’s duty to assess legality.
- Suppression is an exceptional remedy in the FISA context and generally requires a showing that the surveillance was unlawful or not conducted in conformity with an order or statutory authorization.
- Fourth Amendment review of foreign-intelligence collection considers the government’s national-security interests and the procedural safeguards imposed by targeting and minimization regimes.
- Downstream investigative use of intelligence information does not automatically render later evidence inadmissible; suppression depends on whether the underlying collection or subsequent conduct was unlawful in a way that taints the evidence.

## Conclusion

The court refused to suppress evidence linked to foreign-intelligence surveillance, finding that the collection and subsequent use satisfied FISA’s statutory framework and did not violate the Fourth Amendment, and that ex parte, in camera judicial review of classified materials was an appropriate method to resolve the legality of the surveillance in the criminal case.


United States v. Hasbajrami, No. 11-CR-623, 2016 WL 1029500 (E.D.N.Y. Mar. 15, 2016)