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order authorizing the surveillance in this case was lawfully obtained pursuant to FISA. See p. 1316. Accordingly, all
the relevant evidence derived therefrom will be admissible
at trial. [Footnote omitted.]
540 F. Supp. at 1814. In United States v. Megahey, 553 F. Supp.
1180 (E.D.N.Y. 1982), on the other hand, Judge Sifton implied (but
did not specifically hold) that the Truong test for warrantless foreign intelligence surveillance still applies to surveillances under
FISA. 553 F. Supp. at 1189. While we
believe that the Falvey decision on the inapplicability of the Truong primary purpose test to
FISA surveillances is the correct one, we have invited the district
courts, which subsequent to the Megahey decision, were considering
the legality of FISA surveillances, to make the same analysis of the
FISA surveillance as was done by Judge Sifton in Megahey.
Accordingly, it is our view that even where the government may
be considering prosecuting the target for criminal violations discovered in the counterintelligence investigation, the government may
continue to employ FISA rather than Title III where significant
foreign intelligence information is still being sought. Where no significant intelligence interest remains in an investigation, FISA
should no longer be used. The determination of whether a significant intelligence interest remains in a given case would continue to
be made by the Department of Justice in close consultation with
the intelligence agency. |
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