On April 4, 2014, the defense filed an alternative motion for suppression of evidence or a new trial based on the government’s introduction of evidence obtained through unlawful electronic surveillance.
On May 3, 2014, the government filed an unclassified memorandum, from which classified information was redacted, that contained virtually identical arguments to those in its May 9, 2014 brief in Muhtorov for the constitutionality of Section 702.
On May 19, 2014, the defense filed a reply brief. Interestingly, the brief portrayed the impact on Americans of Section 702 surveillance as the principal problem with the government’s reliance on Verdugo-Urquidez for the proposition that “because Section 702 aims at foreigners abroad, the Fourth Amendment is inapplicable.” “[T]he government’s premise ignores that the sweep of the programs operated under Sec. 702 inevitably and inexorably results in the search and seizure of massive amounts of Americans’ private communications. Because Americans retain an undiminished expectation of privacy in their electronic communications, the Fourth Amendment’s warrant requirement applies.” At 4-5. The defense properly rejected the government’s view that whether a search takes place in the United States or abroad is irrelevant under Verdugo-Urquidez. At the same time, the defense emphasized that Mr. Mohamud was entitled to Fourth Amendment protections because, by contrast to Mr. Verdugo-Urquidez, he was an American citizen living in the United States. At 11-12. (See the discussion of the government’s use of Verdugo-Urquidez in our post on the government’s oppostion to the Muhtorov challenge to warrantless surveillance).