<p> SUPREME COURT OF THE UNITED STATES</p><p>In the Supreme Court of the United States</p><p>UNITED STATES OF AMERICA</p><p>Plaintiffs -v.-</p><p>TIFFANY K. ABBAS</p><p>Defendants</p><p>On Petition for a Writ of Certiorari from the United States Court of Appeals for the Ninth Circuit</p><p>PETITION FOR A WRIT OF CERTIORARI</p><p>ANDREW TAW</p><p>NAOKI ORII</p><p>Attorneys for Defendants</p><p>October 13, 2005 PETITION FOR A WRIT OF CERTIORARI</p><p>Tiffany K. Abbas respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.</p><p>CONSTITUTIONAL AND STATUTORY PROVISIONS INVOVLED -The Fourth Amendment of the United States Constitution provides: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”</p><p>-Section 213 of the USA PATRIOT Act of 2001 provides: Section 3103a of title 18, United States Code, is amended-- (1) by inserting `(a) IN GENERAL- ' before `In addition'; and (2) by adding at the end the following: `(b) DELAY- With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if-- `(1) the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result (as defined in section 2705); `(2) the warrant prohibits the seizure of any tangible property, any wire or electronic communication (as defined in section 2510), or, except as expressly provided in chapter 121, any stored wire or electronic information, except where the court finds reasonable necessity for the seizure; and `(3) the warrant provides for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown.'.</p><p>-Section 215 of the USA PATRIOT Act of 2001 provides: `(a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution. `(2) An investigation conducted under this section shall-- `(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and `(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States. `(b) Each application under this section-- `(1) shall be made to-- `(A) a judge of the court established by section 103(a); or `(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and `(2) shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities. `(c)(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section. `(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a). `(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section. `(e) A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.</p><p>CASE BACKGROUND</p><p>“On November 14, 2004, Tiffany K. Abbas was arrested for Conspiracy to</p><p>Commit a Terrorist Act. Officials stated that on September 11th, ‘she used the Saratoga</p><p>Writing and Research Lab computers to scour the internet for information on building a bomb.’ Later that evening, officials conducted a ‘sneak-and-peek’ search of Abbas’ house while nobody was there. Officials found only trace elements of phosphorous material and wire-tapped the house and traced all of her cell-phone activity.” </p><p>SUMMARY</p><p>We, the defendants, challenge the constitutionality of Sections 213 and 215 of the USA PATRIOT Act, which greatly expands the power of the Federal Bureau of</p><p>Investigation to obtain records of people suspected of no criminal activity. The FBI is now capable of using Section 215 of the PATRIOT Act to acquire personal possessions, including “books, records, papers, documents, and other items” directly from a person’s residence. It can also order libraries, charity organizations, political organizations,</p><p>Internet Service Providers, or in fact any person or party to surrender the records or personal possessions of others. The FBI is able to use Section 215 against any person, including United States citizens and permanent residents. Section 213 extends the FBI’s authority over their investigations; it allows for secret searches of residence and property without prior notice. Before the issuing of Section 213, sneak-and-peek warrants were authorized only in cases where “foreign power or their agents” were suspected of terrorism. However, under Section 213, these warrants are not only limited to terrorism investigations but are expanded to any criminal investigation. In addition, the targets of Section 213 are notified of their searches “within a reasonable period of its execution,” which means that it could be extended for an indefinite period.</p><p>The Fourth Amendment prohibits the Government from conducting</p><p>“unreasonable searches and seizures,” which by and large implies that any search or seizure must be performed after the issuance of a valid warrant based upon probable cause. As declared in ACLU vs. John Ashcroft, “it is fundamental that governmental searches and seizures without warrant or probable cause are per se unreasonable under the Fourth Amendment unless they fall within on one of the Amendment’s few established and well-delineated exceptions.”</p><p>In order to obtain a Section 215 order, the FBI is only required to assert the records or personal belongings are “sought for” an ongoing foreign intelligence, counterintelligence, or international terrorism investigation. The FBI is not required to show any probable cause or reason to believe that the target is a criminal suspect or a foreign agent. No warrant is required to initiate a search under the section, although the</p><p>Fourth Amendment clearly prohibits such an act. With Section 215, the FBI is authorized to search on people who are known to be in general unconnected to criminal activity or espionage. </p><p>The FBI is able of obtaining and executing Section 215 orders in absolute confidentiality. The targets of Section 215 orders are never informed that their privacy has been jeopardized. This is another clear violation of the Fourth Amendment of the</p><p>United States Constitution, which secures the rights of privacy. The gag provision in</p><p>Section 215 provides, “No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal</p><p>Bureau of Investigation has sought or obtained tangible things under this section.”</p><p>These orders are quite vague, and do not require the FBI to make a showing that confidentiality is necessary in any particular case.</p><p>By seriously compromising the rights to privacy and security, Sections 213 and</p><p>215 of the USA PATRIOT Act violate Tiffany K. Abbas’ right to the Fourth Amendment of the United States Constitution. Therefore, by the exclusionary rule, the evidence presented in the United States Court of Appeals for the Ninth Circuit in this case must be excluded from the trial. For the above reasons, the defendants respectfully seek the granting of the petition for writ of certiorari.</p>