United States District Court, S.D. Ohio, Western Division
MICHAEL R. BARRETT, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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.
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.
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).
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#
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
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 ...