In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1385

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NING WEN,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 04-CR-241—William C. Griesbach, Judge.

____________

ARGUED OCTOBER 20, 2006—DECIDED DECEMBER 14, 2006

____________

Before EASTERBROOK, Chief Judge, and BAUER and

EVANS, Circuit Judges.

EASTERBROOK, Chief Judge. A jury found Ning Wen

guilty of violating the export-control laws by providing

militarily useful technology to the People’s Republic of

China without the required license. See 50 U.S.C.

§1705(b). He has been sentenced to 60 months’ imprisonment. His only argument on appeal is that the district

court should have suppressed evidence derived from a

wiretap approved under the Foreign Intelligence Surveillance Act. After reviewing the materials in camera,

the judge concluded that the intercept order was amply

justified and denied this motion.
2 No. 06-1385

As enacted in 1978, FISA applied to interceptions the

“primary purpose” of which was foreign intelligence; as

amended in 2001 by the USA PATRIOT Act, the statute

applies to interceptions that have international intelligence as a “significant purpose”. 50 U.S.C. §1804(a)(7)(B).

The Foreign Intelligence Surveillance Court of Review has

concluded that the amended statute allows domestic use

of intercepted evidence as long as a “significant” international objective is in view at the intercept’s inception.

Sealed Case, 310 F.3d 717 (F.I.S. Ct. Rev. 2002). Wen asks

us to disagree with that decision and hold that evidence

gathered under FISA cannot be used in domestic criminal

investigations or prosecutions, even when the “domestic”

crime is linked to international espionage, once that

international investigation has “fizzled out” (Wen’s

phrase).

The principal problem with Wen’s argument is that the

exclusionary rule is used to enforce the Constitution, not

statutes or regulations. See United States v. Caceres, 440

U.S. 741 (1979). So even if Wen is right about the meaning of FISA, there is no basis for a district court to reject

evidence that was properly gathered. (Like the district

court, we have reviewed the affidavits in camera and

conclude that the statutory standards for an intercept

order are satisfied.) Legislation may provide for enforcement via exclusion; Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the principal statute

regulating domestic wiretaps, does just that. See 18

U.S.C. §2518(10)(a); United States v. Donovan, 429 U.S.

413 (1977). FISA lacks any comparable provision. So unless

there is a constitutional problem in domestic use of

evidence seized as part of an international investigation,

there is no basis for suppression.

As it happens, moreover, there is scant support for

suppression even when a particular intercept is unreasonable under the fourth amendment. For each intercept
No. 06-1385 3

must be authorized by a warrant from a federal district

judge. See 50 U.S.C. §1803(a). This brings into play the

rule of United States v. Leon, 468 U.S. 897 (1984), that the

exclusionary rule must not be applied to evidence seized

on the authority of a warrant, even if the warrant turns

out to be defective (say, because not supported by probable cause), unless the affidavit supporting the warrant

was false or misleading, or probable cause was so transparently missing that “no reasonably well trained officer

[would] rely on the warrant.” Id. at 923.

At one time it was seriously questioned whether an

intercept order is a “warrant” for constitutional purposes,

see Telford Taylor, Two Studies in Constitutional Interpretation 79-88 (1969), but characterization was settled in

favor of “warrant” status by Dalia v. United States, 441

U.S. 238, 256 n.18 (1979). And our in camera review

reveals that well-trained officers were entitled to rely on

this warrant. The Executive Branch did the right thing

in asking for a warrant. Suppose that FISA was the wrong

source of authority and the judge had turned the request

down because the investigation’s domestic component

overshadowed its international aspect. Then the Executive

Branch could have obtained a domestic intercept order

under Title III. The evidence narrated in the affidavit

establishes probable cause to believe that phone lines

were being used to discuss or plan violations of 50 U.S.C.

§1705(b). A statutory error about which court should have

issued a warrant, and under which statute, does not

support exclusion.

The only plausible constitutional objection to the warrant actually issued is that FISA uses a definition of

“probable cause” that does not depend on whether a

domestic crime has been committed. Under 50 U.S.C.

§1805(a)(3), an order may be based on probable cause

to believe that the target is an agent of a foreign power

and that the conversations to be intercepted concern the
4 No. 06-1385

agent’s dealings with that foreign power; the judge need

not find probable cause to believe that the foreign agent

probably is violating the law of this nation (although this

may be implied by the findings that FISA does require).

Yet we know from the administrative-search cases that

the “probable cause” of which the fourth amendment

speaks is not necessarily probable cause to believe that

any law is being violated. The Court held in Camara v.

Municipal Court, 387 U.S. 523 (1967), and See v. Seattle,

387 U.S. 541 (1967), that municipal officials may not

barge into homes or businesses to look for violations of

the housing code; they must have warrants, which may

issue on probable cause to believe that the city has

adopted a reasonable system of inspections and is not

targeting citizens for irregular or malicious reasons.

Similarly, Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978),

holds that, although federal inspectors need warrants to

inspect business premises for violations of the Occupational Safety and Health Act, these warrants may issue on

probable cause to believe that the agency is implementing a reasonable system of inspections that includes the

business in question. Inspectors lawfully on the premises

under such warrants may report any violations of law

that they find; evidence in plain view need not be overlooked, even if that evidence concerns a different statute.

These principles carry over to FISA. Probable cause to

believe that a foreign agent is communicating with his

controllers outside our borders makes an interception

reasonable. If, while conducting this surveillance, agents

discover evidence of a domestic crime, they may use it to

prosecute for that offense. That the agents may have

known that they were likely to hear evidence of domestic

crime does not make the interception less reasonable than

if they were ignorant of this possibility. Justice Stewart’s

position that the plain-view doctrine is limited to “inadvertent” discoveries, see Coolidge v. New Hampshire, 403 U.S.
No. 06-1385 5

443, 469-71 (1971), has not carried the day. In Horton v.

California, 496 U.S. 128 (1990), the Court held that

evidence in plain view may be seized without a warrant

even though the police expected to find it. Likewise

evidence of a domestic crime, acquired during an intercept that is reasonable because it concerns traffic between

a foreign state and one of its agents in the United States,

may be used in a domestic prosecution whether or not

the agents expected to learn about the domestic offense.

It is enough that the intercept be adequately justified

without regard to the possibility that evidence of domestic

offenses will turn up. Interception of Wen’s conversations was adequately justified under FISA’s terms, so there

is no constitutional obstacle to using evidence of any

domestic crimes he committed.

AFFIRMED

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-14-06