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United States v. Whitt

United States District Court, S.D. Ohio, Western Division

January 17, 2018

United States of America, Plaintiff,
Samuel Whitt, Defendant.



         This matter is before the Court on Defendant's Motion to Suppress Evidence Based on Invalid Search Warrant. The Motion (Doc. 24) is fully briefed and ripe for disposition.

         I. BACKGROUND

         In this case, Defendant allegedly defaced real property in a manner that violates 42 U.S.C. § 3631, a section of the Fair Housing Act that illegalizes injury or intimidation to a person based on, inter alia, color or race.

         In August 2016, the Defendant moved into an apartment in the Price Hill neighborhood of Cincinnati. The apartment is owned by a married couple. The wife is white, and the husband is black. On November 22, 2016, the Defendant and his girlfriend were evicted for failing to pay their rent. The following day, the owners of the apartment traveled out of town. Upon their return on November 28, 2016, the owners found the apartment had been destroyed. In addition to the substantial damage done to the apartment, spray paint had also been used, leaving swastikas and messages including “white power” and “die nigger” on the walls.

         During the course of their investigation, the FBI obtained a search warrant for the Defendant's Facebook account. Ultimately, the government's search of Defendant's Facebook account yielded racist statements, such as “If u ain't white u ain't right” and the word “nigger.”

         II. ANALYSIS

         Defendant argues that the evidence seized from his Facebook account must be suppressed because: (1) the affidavit in support of the application or search warrant failed to establish a nexus between the alleged crime and the evidence sought; (2) the warrant was overbroad; and (3) the good faith exception fails to save the fruits of the search from exclusion.

         a. Nexus

         The Parties do not appear to dispute that Defendant has a certain expectation of privacy in the non-public portions of his Facebook account, such that the seizure of evidence at issue triggers the Fourth Amendment. The question is whether the affidavit in support of the search warrant establishes the requisite nexus between the place to be searched and the items to be seized.

         The Fourth Amendment requires that, where an affidavit is submitted as the basis for probable cause in support of a search warrant, the affidavit "must provide the magistrate with a substantial basis for determining the existence of probable cause." United States v. Helton, 314 F.3d 812, 819 (6th Cir. 2003) (quoting Gates, 462 U.S. at 239). The affidavit must also "establish a nexus between the place to be searched and things to be seized, such that there is a substantial basis to believe that the things to be seized will be found in the place searched." Ellison v. Balinski, 625 F.3d 953, 958 (6th Cir. 2010). “The connection between the [location to be searched] and the evidence of criminal activity must be specific and concrete, not ‘vague' or ‘generalized.'" United States v. Brown, 828 F.3d 375, 382 (6th Cir. 2016). “If the affidavit does not present sufficient facts demonstrating why the [agent] expects to find evidence in the [location to be searched] rather than in some other place, a judge may not find probable cause to issue a search warrant.” Id. “In other words, the affidavit must suggest ‘that there is reasonable cause to believe that the specific 'things' to be searched for and seized are located [in the location to be searched] and not merely ‘that the owner of property is suspected of crime.'" United States v. McPhearson, 469 F.3d 518, 524 (6th Cir. 2006).

         Defendant argues that the government's search of his Facebook data was improper because “nothing about the manner in which the offense was committed indicates that the perpetrator used social media.” (Doc. 24; PAGEID# 62). Defendant further argues that the government tacitly admitted in the affidavit to engaging in a “fishing expedition, ” when the agent stated that a search of the Facebook account will allow it to determine the “‘who, what, why, when, where, and how' of the criminal conduct under investigation.” (Id. at 62). According to Defendant, the government has thus engaged in “general rummaging” that is clearly prohibited by the Fourth Amendment. (Id.) (citing Arizona v. Gant, 556 U.S. 443, 467 (1971)). Defendant asserts that, “[i]f this Court upholds that warrant, it is essentially ruling that any suspect's social media can be searched, regardless of whether the crime itself has a connection to the electronic data.” (Doc. 24: PAGEID# 62-63).

         The government counters that “evidence of racial animus is an element of the offense” for which Defendant has been charged. (Doc. 26; PAGEID# 110). According to the government, the search of Facebook is “akin to searching . . . cellphones or rolodexes . . . to look for associates, text messages, and evidence of [Defendant's] whereabouts” at the time of the crime. (Doc. 26; PAGEID# 110). It further argues that “[g]iven the different type of information collected by Facebook and the crime under investigation, it was certainly reasonable for the Magistrate Judge to infer that Facebook could at the very least identify Whitt's associates, ideological interests, and his past whereabouts just like a rolodex or daily planner could.” (Id.)

         At the outset, the Court disagrees with Defendant to the extent that he argues that the crime itself must involve the use of social media for there to be probable cause to search Facebook. At the same time, the Court also disagrees with the government to the extent that it suggests that probable cause to search the social media of a suspect automatically exists, simply because Facebook stores ample information that might help identify the suspect's associates, ideology/past statements, or past whereabouts. For the requisite nexus to exist - regardless of whether the underlying crime requires the use of social media or an electronic device - the affidavit in support of the search warrant must establish why the government believes that relevant evidence may reside on the particular suspect's Facebook account. See, e.g., United States v. Arnold, No. 15-20652, 2017 U.S. Dist. LEXIS 148120, at *7 (E.D. Mich. Sept. 13, 2017) (denying motion to suppress Facebook evidence in drug conspiracy case, where affidavit cited information from defendants' publicly available profile including a post accusing another individual of being a “federal informant”); United States v. Yelizarov, 2017 U.S. Dist. LEXIS 110174, at *4-5 (D. Md. July 17, 2017) (denying motion to suppress Facebook evidence where the affidavit cited information from suspect's publicly available Facebook profile, and a statement that “Defendant has a history of boasting about his crimes to others”); United States v. Ortiz-Salazar, No. 4:13CR67, 2015 U.S. Dist. LEXIS 57913, at *8 (E.D. Tex. May 4, 2015) (recommending denial of motion to suppress Facebook evidence, where detective cited information gleaned from defendant's publicly available Facebook ...

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