Hastings Constitutional Law Quarterly


After the terrorist acts of September 11, 2001, Congress passed the USA Patriot Act, which amended, among other things, the Foreign Intelligence Surveillance Act (FISA). The FISA amendments permit the government to conduct electronic surveillance even when gathering foreign intelligence is merely a "significant purpose" of the surveillance, eliminating the requirement that the government demonstrate that foreign intelligence surveillance is the "primary purpose" of the surveillance. As a result, the Patriot Act's amendments to FISA allow the government to conduct FISA surveillance even when ordinary domestic criminal prosecution-and not foreign intelligence gathering-is its primary objective. The information that is gathered through electronic surveillance could then be used against criminal defendants charged with a crime that is unrelated to foreign intelligence.

This Note argues that the use of evidence procured through FISA surveillance against defendants charged with crimes unrelated to the purpose of the FISA authorization-i.e., foreign intelligence gathering-violates the Fourth Amendment because the seizure and subsequent use of the evidence goes beyond the scope of a constitutionally permitted search. Under the amended FISA, the executive is required to certify that foreign intelligence is a "significant purpose" of the surveillance. Thus, the use of evidence gathered during the surveillance in prosecutions ordinary criminal prosecutions, which are unrelated to this "significant purpose," demonstrates that the scope of such a warrant is unreasonably broad.

This Note then proposes a solution: the return of the mere evidence rule as a limit on the use of FISA evidence in ordinary criminal prosecutions. The mere evidence rule, articulated by the Supreme Court in Gouled v. United States in 1921, once defined the constitutional scope of a search and seizure. Under this rule, law enforcement officials were not permitted to search and seize items solely for the purpose of acquiring evidence---"mere evidence"--to be used against a defendant in a criminal proceeding. Rather, law enforcement officials could only legally search and seize contraband or instrumentalities or fruits of a crime. Under this rule, any evidence unrelated to foreign intelligence purpose of the FISA warrant would constitute "mere evidence" and would be suppressed. By suppressing such evidence, the rule would deter government overreaching and compensate the individual for the violation of his or her constitutional rights.