Therefore, any fruits of the electronic surveillance conducted pursuant to the Order issued based upon this Affidavit must be suppressed. F. The Fruits of the Electronic Surveillance should also be suppressed based on the Failure to Minimize the Intrusion of the Electronic Surveillance Upon information and belief, Defendant Alseddrick West believes that the government failed to reasonably minimize the intrusion into conversations in violation of the Wiretap Order and 18 U.S.C. 2518 (5). But the government has failed to provide in discovery with respect to Case 2:06-cr-20185-VAR-VMM Document 143 Filed 07/18/2008 Page 24 of 26 19 Tracking Order No.04 US00096-P the records, such as Title III Line Sheets and Progress Reports, showing any efforts to minimize the intrusion of the electronic surveillance of 313-215- 5940, as required by Title III . Mr. Alseddrick West is therefore moving separately for discovery of such records.

. The Government also appears to have disregarded altogether the Title III requirement that electronic surveillance be “conducted in such a way as to minimize the interception of communications” unrelated to the crime under investigation. 18 U.S.C. § 2518(5). To the contrary, the Government appears to have tried to capture nearly everything that happened at the courthouse on at least 31 occasions.

FISA also specifically provides the FISC with authority to oversee the government’s minimization on an individualized basis during the course of the actual surveillance. See 50 U.S.C. § 1805(d)(3); see also 18 U.S.C. § 2518(6). Thus, under FISA, minimization is required with respect to every individual surveillance target, and, equally important, minimization s judicially supervised during the course of the surveillance.

Case 1:05-cr-10304-GAO Document 154 Filed 08/30/2006 Page 20 of 26 21 B. The Fruits Of The Federal Title III Wiretap Orders Should Be Suppressed Because The Affidavit By SA Drouin Contained Material False Statements And Omitted Material Information Which, If Corrected Or Included in the Affidavit, Would Have Barred a Finding of Necessity. The information and evidence derived from the Federal wiretap also should be suppressed because the affidavit filed by SA Drouin in support of authorization to intercept the wire communications to and from Mr. Cartagena’s cellular telephone was not a “full and complete statement” as required by 18 U.S.C. § 2518(1)(c). Although SA Drouin swore that normal investigative procedures had been tried and failed or appeared unlikely to succeed in the future, the Drouin Affidavit omitted critical information which indicated that normal investigative techniques had not failed, but to the contrary already had resulted in information valuable to the investigation.

The relevant wiretaps were the subject of extensive briefing in Raj’s trial, see United States v. Raj Rajaratnam, S1 09 Cr. 1184 (ECF Nos. 88, 120, 139), and his appeal, United States v. Rajaratnam, No. 11-4416 (2d Cir.) (ECF Nos. 75, 148, 189). As described at length in the cited briefs, the government’s violation of the statutory requirements of “full and complete statement[s]” of necessity and probable cause, 18 U.S.C. § 2518(1), mandate suppression. See United States v. Giordano, 416 U.S. 505, 527 (1974) (“Congress intended to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.”)

To obtain a court order for electronic surveillance under Title III, the Executive must demonstrate “probable cause for belief that an individual is committing, has committed, or is about to commit” one of the enumerated criminal offenses. 18 U.S.C. § 2518(3)(a). The Executive must also demonstrate, among other things, “probable cause for belief that particular communications concerning [the enumerated] offense will be obtained through [the] interception,” id.

From the start of its surveillance, the government was investigating SPC Millay for crimes related to espionage, for which Title III surveillance is more appropriate. See 18 U.S.C. § 2518(3)(a) (authorizing electronic surveillance for law enforcement purposes if “there is probable cause for belief that an individual is committing, has committed, or is about to commit” certain offenses, including those related to espionage). The government should not be allowed to circumvent the more stringent requirements of Title III electronic surveillance simply by asserting – without basis – that a significant purpose of its investigation is to collect foreign intelligence.

Indeed, the preemption clause by its terms makes Section 2520 the exclusive vehicle for obtaining redress “with respect to the interception of electronic communications.” 18 U.S.C. § 2518(10)(c). There is no textual or logical reason for that preemption to apply to state- law suppression hearings, but not to state-law civil claims.

Title III authorizes the interception of wire, oral or electronic communications for a period up to, but not to exceed thirty (30) days. See 18 U.S.C. § 2518(5). The authorizing court may grant extensions of the original interception order but such extensions may not exceed thirty (30) days in duration.

See, e.g., U.S. v. Crouch, 666 F. Supp. 1414, 1416-17 (N.D. Cal. 1987) (citing Capra and holding that reliable information that suspects with violent records were planning a bank robbery sometime in the next 60 days did not suffice to establish an emergency). In sum, no 9 18 U.S.C. § 2518(7) authorizes the government to conduct interceptions without a warrant when it “reasonably determines that . . . an emergency situation exists that involves . . . immediate danger of death or serious injury to any person,” so long as it seeks court approval within 48 hours. Id.