42
UNITED STATES V. MOHAMUD
increase the importance of minimization procedures once the
communications are collected.24
Additionally, Mohamud and Amici contend that prior
cases upholding incidental collection involved prior judicial
review or a “narrowly drawn exception to the warrant
requirement,” as opposed to the collection here. See, e.g.,
United States v. Kahn, 415 U.S. 143, 156–57 (1974)
(upholding interception of communications of a woman that
were incidentally collected under a wiretap order targeting
her husband); United States v. Figueroa, 757 F.2d 466,
473–75 (2d Cir. 1985) (holding that wiretap order was not
made unconstitutional by permitting interception of
conversations of “others as yet unknown”); see also United
States v. Martin, 599 F.2d 880, 884–85 (9th Cir. 1979)
(holding that the Fourth Amendment does not require wiretap
application to show probable cause that non-targeted
individual named as a “probable converser” committed a
crime), overruled on other grounds by United States v. De
Bright, 730 F.2d 1255 (9th Cir. 1984) (en banc). However,
the searches in those cases targeted United States citizens and
took place within the United States, so a warrant was required
for the initial search to be constitutionally permissible. But
“the guiding principle behind them applies with equal force
here: when surveillance is lawful in the first place—whether
it is the domestic surveillance of U.S. persons pursuant to a
warrant, or the warrantless surveillance of non-U.S. persons
who are abroad—the incidental interception of non-targeted
U.S. persons’ communications with the targeted persons is
also lawful.” Hasbajrami, 2016 WL 1029500, at *9.
24
To the extent that Amici argue that the incidental overhear doctrine
permits the unconstitutional and widespread retention and querying of the
incidentally collected information, that issue is not before us.
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