United States 7th Circuit Court of Appeals Reports

U.S. v. WEN, 06-1385 (7th Cir. 12-14-2006) UNITED STATES OF
AMERICA, Plaintiff-Appellee, v. NING WEN,
Defendant-Appellant. No. 06-1385. United States Court of
Appeals, Seventh Circuit. Argued October 20,2006. Decided
December 14, 2006.

Appeal from the United States District Court for the
Eastern District of Wisconsin. No. 04-CR-241 —
William C. Griesbach, Judge.

Before EASTERBROOK,Chief Judge, and BAUER and
EVANS,Circuit Judges.


A jury found Ning Wen guilty of violating the
export-control laws by providing militarily useful
technology to the People’s Republic of China without the
required license. See 50 U.S.C. § 1705(b). He has
been sentenced to 60 months’ imprisonment. His only
argument on appeal is that the district court should have
suppressed evidence derived from a wiretap approved under
the Foreign Intelligence Surveillance Act. After reviewing
the materials in camera, the judge concluded that the
intercept order was amply justified and denied this motion.

As enacted in 1978, FISA applied to interceptions
the”primary purpose” of which was foreign intelligence; as
amended in 2001 by the USA PATRIOT Act, the statute applies
to interceptions that have international intelligence as a
“significant purpose”. 50 U.S.C. § 1804(a)(7)(B).The
Foreign Intelligence Surveillance Court of Review has
concluded that the amended statute allows domestic use of
intercepted evidence as long as a “significant”
international objective is in view at the intercept’s
inception. Sealed Case, 310 F.3d 717 (F.I.S. Ct. Rev. 2002).
Wen asks us to disagree with that decision and hold that
evidence gathered under FISA cannot be used in domestic
criminal investigations or prosecutions, even when the
“domestic”crime is linked to international espionage, once
that international investigation has “fizzled out” (Wen’s

The principal problem with Wen’s argument is that the
exclusionary rule is used to enforce the Constitution, not
statutes or regulations. See United States v. Caceres, 440
U.S. 741 (1979). So even if Wen is right about the meaning
of FISA, there is no basis for a district court to reject
evidence that was properly gathered. (Like the district
court, we have reviewed the affidavits in camera and
conclude that the statutory standards for an intercept
order are satisfied.) Legislation may provide for
enforcement via exclusion; Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, the principal statute
regulating domestic wiretaps, does just that. See 18 U.S.C.
§ 2518(10)(a); United States v. Donovan, 429 U.S.
413 (1977). FISA lacks any comparable provision. So unless
there is a constitutional problem in domestic use of
evidence seized as part of an international investigation,
there is no basis for suppression.

As it happens, moreover, there is scant support for
suppression even when a particular intercept is
unreasonable under the fourth amendment. For each intercept
must be authorized by a warrant from a federal district
judge. See 50 U.S.C. § 1803(a). This brings into play
the rule of United States v. Leon, 468 U.S. 897 (1984),
that the exclusionary rule must not be applied to evidence
seized on the authority of a warrant, even if the warrant
turns out to be defective (say, because not supported by
probable cause), unless the affidavit supporting the warrant
was false or misleading, or probable cause was so
transparently missing that “no reasonably well trained
officer[would] rely on the warrant.” Id. at 923.

At one time it was seriously questioned whether an
intercept order is a “warrant” for constitutional purposes,
see Telford Taylor, Two Studies in Constitutional
Interpretation 79-88 (1969), but characterization was
settled in favor of “warrant” status by Dalia v. United
States, 441 U.S. 238, 256 n. 18 (1979). And our in camera
review reveals that well-trained officers were entitled to
rely on this warrant. The Executive Branch did the right
thing in asking for a warrant. Suppose that FISA was the
wrong source of authority and the judge had turned the
request down because the investigation’s domestic component
overshadowed its international aspect. Then the Executive
Branch could have obtained a domestic intercept order under
Title III. The evidence narrated in the affidavit
establishes probable cause to believe that phone lines were
being used to discuss or plan violations of 50 U.S.C.
§ 1705(b). A statutory error about which court
should have issued a warrant, and under which statute, does
not support exclusion.

The only plausible constitutional objection to the warrant
actually issued is that FISA uses a definition of “probable
cause” that does not depend on whether a domestic crime has
been committed. Under 50 U.S.C. § 1805(a)(3), an
order may be based on probable cause to believe that the
target is an agent of a foreign power and that the
conversations to be intercepted concern the No. 06-1385
agent’s dealings with that foreign power; the judge need
not find probable cause to believe that the foreign agent
probably is violating the law of this nation (although this
may be implied by the findings that FISA does require).

Yet we know from the administrative-search cases that the
“probable cause” of which the fourth amendment speaks is
not necessarily probable cause to believe that any law is
being violated. The Court held in Camara v. Municipal
Court, 387 U.S. 523 (1967), and See v. Seattle, 387 U.S.
541 (1967), that municipal officials may not barge into
homes or businesses to look for violations of the housing
code; they must have warrants, which may issue on probable
cause to believe that the city has adopted a reasonable
system of inspections and is not targeting citizens for
irregular or malicious reasons.Similarly, Marshall v.
Barlow’s, Inc., 436 U.S. 307 (1978), holds that, although
federal inspectors need warrants to inspect business
premises for violations of the Occupational Safety and
Health Act, these warrants may issue on probable cause to
believe that the agency is implementing a reasonable system
of inspections that includes the business in question.
Inspectors lawfully on the premises under such warrants may
report any violations of law that they find; evidence in
plain view need not be overlooked, even if that evidence
concerns a different statute.

These principles carry over to FISA. Probable cause to
believe that a foreign agent is communicating with his
controllers outside our borders makes an interception
reasonable. If, while conducting this surveillance, agents
discover evidence of a domestic crime, they may use it to
prosecute for that offense. That the agents may have known
that they were likely to hear evidence of domestic crime
does not make the interception less reasonable than if they
were ignorant of this possibility. Justice Stewart’s
position that the plain view doctrine is limited to
“inadvertent” discoveries, see Coolidge v. New Hampshire,
403 U.S. 443, 469-71 (1971), has not carried the day. In
Horton v. California, 496 U.S. 128 (1990), the Court held
that evidence in plain view may be seized without a warrant
even though the police expected to find it. Likewise
evidence of a domestic crime, acquired during an intercept
that is reasonable because it concerns traffic between a
foreign state and one of its agents in the United States,
may be used in a domestic prosecution whether or not the
agents expected to learn about the domestic offense.It is
enough that the intercept be adequately justified without
regard to the possibility that evidence of domestic
offenses will turn up. Interception of Wen’s conversations
was adequately justified under FISA’s terms, so there is no
constitutional obstacle to using evidence of any domestic
crimes he committed.