34
UNITED STATES V. MOHAMUD
In answering this question, we must keep two principles
in mind. First, “[s]uppression of evidence . . . has always
been our last resort, not our first impulse.” Hudson v.
Michigan, 547 U.S. 586, 591 (2006); see also Davis v. United
States, 564 U.S. 229, 237 (2011) (“For exclusion to be
appropriate, the deterrence benefits of suppression must
outweigh its heavy costs.”); Sanchez-Llamas v. Oregon,
548 U.S. 331, 347 (2006) (“[T]he exclusionary rule is not a
remedy we apply lightly.”). Second, Congress has the power
to authorize suppression for statutory violations, as it has
done elsewhere in FISA. See 50 U.S.C. §§ 1806(g), 1825(h),
1845(g) (FISA); see also 18 U.S.C. § 2518(10)(a) (Title III
wiretap). However, Congress has not mandated suppression
as a remedy for late disclosure of a FISA notice, and, indeed,
it apparently anticipated the possibility of post-trial
notification. See 50 U.S.C. § 1806(e) (providing that a
motion to suppress “unlawfully acquired” or nonconforming
information “shall be made before the trial . . . unless . . . the
person was not aware of the grounds of the motion”). These
two principles strongly suggest that automatic suppression is
not a required remedy for delayed FISA disclosure.
And in any case, Mohamud cannot demonstrate how the
late disclosure prejudiced him. As the district court
explained, it fully evaluated the § 702-derived evidence as if
the motion had been brought before trial. This put Mohamud
in the same position he would have been in if the government
had provided timely notice.
Moreover, the district court found that the late disclosure
was not due to “prosecutorial misconduct.” Rather, the
government had changed its legal opinion about when
evidence could be considered “derived from” § 702
surveillance, performed another review of this case, and
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