United States v. Chhipa

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UNITED STATES OF AMERICA, v. MOHAMMED AZHARUDDIN CHHIPA, Defendant.

Criminal No. 1:23cr97 (DJN)

United States District Court, E.D. Virginia, Alexandria Division

November 5, 2024

MEMORANDUM ORDER (DENYING MOTION TO SUPPRESS)

DAVID J. NOVAK UNITED STATES DISTRICT JUDGE

This matter comes before the Court on Defendant Mohammed Azharuddin Chhipa's (“Defendant”) Motion to Suppress (ECF No. 156) (“Mot.”) and Supplement to his Motion to Suppress (ECF No. 164) (“Supp.”) (collectively, “Motion”), moving the Court to suppress all evidence obtained by the Government in response to two requests for voluntary disclosures from Facebook under the Stored Communications Act (SCA), 18 U.S.C. § 2702(b)(8), on March 19, 2019, and August 1, 2019 respectively, along with any evidence obtained by subsequent searches “built, in part” on these disclosures. (Mot. at 1.) Defendant alleges that the Government's § 2702 requests and Facebook's responses to those requests violated his Fourth Amendment rights. The Government responded in opposition (ECF No. 166) (“Resp.”) and Defendant replied (ECF No. 172) (“Reply”). This matter now stands ripe for the Court's consideration. For the reasons set forth below, the Court DENIES the Defendant's Motion (ECF No. 156) and Supplement (ECF No. 164).^[1]

I. BACKGROUND

During an interview with U.S. Customs and Border Protection (CBP) agents in October 2008, Defendant expressed the desire to travel to the Middle East and “fight with his brothers for his beliefs,” including for the purpose of killing Americans. (Gov't Ex. 3 at 18;^[2] Gov't Ex. 1 at 4.) The Federal Bureau of Investigations (FBI) subsequently opened a counterterrorism investigation into Defendant in March 2009. (Gov't Ex. 3 at 18.) The FBI closed that investigation in 2018. (Gov't Ex. 1 at 4.)

The FBI formally reopened its investigation into Defendant in March 2019. (Resp. at 4.) As part of its renewed investigation, the FBI filed at least five applications with Facebook for voluntary disclosures under 18 U.S.C. § 2702, requesting that Facebook voluntarily turn over information and content related to several Facebook accounts associated with Defendant. (Supp. at 4.) Defendant's Motion focuses on two of these applications: a March 19, 2019 request for information pertaining to Defendant's “Carl Johnson” account and an August 1, 2019 request pertaining to his “Numan Ibn Muqrin Al Muzanee” account.

Defendant was arrested and charged in May 2023. The grand jury returned a five-count indictment (the “Indictment”) against him on May 24, 2023. (ECF No. 22.) The Indictment charges Defendant with one count of Conspiracy to Provide Material Support or Resources to a Designated Foreign Terrorist Organization and four counts of Providing and Attempting to Provide Material Support or Resources to a Designated Foreign Terrorist Organization, in violation of 18 U.S.C. § 2339B. (Id.)

Defendant now moves to suppress the information that the FBI received from Facebook in response to its March 19, 2019 and August 1 2019 § 2702 requests, as well as any fruits thereof. (ECF No. 156 and ECF No. 164.) In support of his Motion, Defendant argues that the FBI's failure to secure search warrants in support of these requests rendered them unreasonable searches, and therefore impermissible, under the Fourth Amendment. Defendant claims that he possessed a reasonable expectation of privacy in his “personal online communications” (Mot. at 13), including those made from the two Facebook accounts in question, and that Facebook's responses to the FBI's requests constitute government action subject to the Fourth Amendment's protections. According to Defendant, to render these searches “reasonable” for Fourth Amendment purposes, the FBI would have needed to obtain search warrants prior to filing its requests, as there was no “imminent emergency” justifying an exception to the warrant requirement under the well-established exigent circumstances doctrine. Since the FBI failed to do so, Defendant argues that these § 2702 requests constituted unreasonable searches under the Fourth Amendment and that any information obtained from these searches must therefore be suppressed.

The Government opposes Defendant's Motion on three primary grounds. First, the Government argues that the FBI's warrantless § 2702 requests pass Fourth Amendment muster, because they were objectively reasonable under the exigent circumstances exception. In support, the Government points to an array of facts including Defendant's history of support for militant Islam, his then-recent resumption of Facebook activity (including posts that explicitly endorsed militant acts of Islamic martyrdom), several statements suggesting that he was planning to engage in a militant operation in the near future, the elevated threat environment in the wake of the March 2019 shootings targeting Muslims in Christchurch, New Zealand, and the recent arrest of Defendant's co-conspirator in the Philippines. In the alternative, the Government argues that, even if the FBI violated the Fourth Amendment by failing to obtain search warrants, it did so in good faith reliance on the SCA's emergency provisions, which require only a good faith belief “that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay,” and do not expressly require a search warrant. 18 U.S.C. § 2702(c)(4). Finally, the Government argues that it could have procured search warrants to obtain essentially the same information and eventually did so, rendering suppression inappropriate under the inevitable discovery doctrine.

II. LEGAL STANDARD

A. Fourth Amendment Protections Against Unreasonable Searches and Exceptions to the Warrant Requirement

The Fourth Amendment protects the “right of the people to be secure in their persons ... against unreasonable searches.” U.S. Const, amend. IV. Thus, “the underlying command of the Fourth Amendment is always that searches and seizures be reasonable.” Wilson v. Arkansas, 514 U.S. 927, 931 (1995).

Fourth Amendment protections govern only those searches where “the person who claims the protection ... has a legitimate expectation of privacy in the invaded place.” United States v. Castellanos, 716 F.3d 828, 833 (4th Cir. 2013) (quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)). If a search is performed by a private party, rather than the government, the Fourth Amendment still applies as long as the private party acts as an “instrument[] or agent[]” of the government, with “some degree of Government participation in the private search.” United States v. Jarrett, 338 F.3d 339, 344 (4th Cir. 2003) (citing Coolidge v. New Hampshire, 403 U.S. 443,487 (1971)).

Government searches generally require a warrant to qualify as “reasonable” under the Fourth Amendment. See Katz v. United States, 389 U.S. 347, 357 (1967) (describing warrantless searches as “per se unreasonable under the Fourth Amendment”). However, “[b]ecause the ultimate touchstone of the Fourth Amendment is reasonableness, the Supreme Court has recognized certain exceptions to the warrant requirement.” United States v. Hobbs, 24 F.4th 965, 969 (4th Cir. 2022) (cleaned up). Exigent circumstances can provide one such exception, which permits warrantless searches where the government demonstrates a “compelling need for official action and no time to secure a warrant.” Hobbs, 24 F.4th at 969 (citing Mitchell v. Wisconsin, 588 U.S. 840, 849 (2019)). Courts have long recognized that the need to “protect individuals who are threatened with imminent harm,” United States v. Curry, 965 F.3d313,321 (4th Cir. 2020) (en banc) (quoting Carpenter v. United States, 585 U.S. 296, 320 (2018)), constitutes one such “compelling need.” See United States v. Yengel, 711 F.3d 392, 396 (4th Cir. 2013) (When law enforcement faces “an immediate and credible threat or danger,” courts consider it “inherently reasonable ... to act without a warrant.”); Mora v. The City Of Gaithersburg, MD, 519 F.3d 216, 222 (4th Cir. 2008) (“If there is a grave public need for the police to take preventive action, the Constitution may impose limits, but it will not bar the way.”). Courts often refer to this as the “emergency-as-exigency” exception. Curry, 965 F.3d at 322.

In assessing whether an emergency is “enveloped by a sufficient level of urgency” to justify the emergency-as-exigency exception, Yengel, 711 F.3d at 397, courts in the Fourth Circuit must weigh several considerations. They must assess the nature of the threat or danger, including its immediacy, and whether the government held an objectively reasonable belief that an emergency existed. Id. The government must base such belief on “specific articulable facts and reasonable inferences that could have been drawn therefrom.” Id. Finally, in arriving at a decision, courts must consider the totality of the circumstances at hand. Hobbs, 24 F.4th at 970.

When moving for suppression on Fourth Amendment grounds, the initial burden to establish a legitimate expectation of privacy in the place being searched lies with the movant. Castellanos, 716 F.3d at 832 (citing Rawlings v. Kentucky, 448 U.S. 98,104 (1980)). Where the movant successfully establishes such an expectation of privacy, the burden shifts to the government, which must establish, by a preponderance of the evidence, that the challenged material is nonetheless admissible. United States v. Aigbekaen, 943 F.3d 713, 719 (4th Cir. 2019); United States v. Matlock, 415 U.S. 164, 177 n.14 (1974).

B. Reasonable Expectations of Privacy in Facebook Communications

To establish a reasonable expectation of privacy in his communications, a defendant must make two showings: that the defendant has “an actual (subjective) expectation of privacy”...