The defense team has filed a memorandum of law in support of its motion to suppress the emails obtained by the government, pursuant to a warrant whose evidentiary basis was an affidavit, based in large part upon a Turkish police report, whose accuracy, and even authenticity, has been questioned. The defense contends that the report has been discredited, and that the government knew that, when it presented the affidavit to as Magistrate Judge, to apply for the search warrant.
To summarize the defense position:
(1) The Government knowingly, or recklessly, omitted critical information necessary to determine whether Probable Cause existed, to search Zarrab's emails.
(2) The FBI recklessly omitted information about the discredited nature of the purported police report.
(3) had the FBI not recklessly omitted information, about the discredited "report," there would have been no Probable Cause to search Zarrab's Hotmail account.
(4) Therefore, the contents of Zarrab's Hotmail account should be suppressed.
The memorandum also cites to the recent Second Circuit Microsoft decision, for the principle that US warrants cannot reach email in servers located outside the United States. It has been previously referred to as the controlling law on these facts.
In a letter, delivered to the Court, the defense attorneys advised that they desire to have the Court partially lift the existing Protective Order, so that they may show the unsigned "police report" to officials at the Turkish Ministry of Justice, for the purpose of determining whether the format of the report is consistent in format and content, with authentic Turkish police reports, and whether the information contained in the report is consistent in format and content, with genuine Turkish police reports, and whether it is authentic, and the information contained is accurate.
The Government, according to the letter, has gone on record as opposing this defense request.