United States District Court, D. Kansas
MEMORANDUM AND ORDER
F. MELGREN UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Curtis Allen's
motion to exclude from trial all evidence obtained and any
information derived from the second search and seizure of his
Facebook account. Defendants Patrick Stein and Gavin Wright
joined this motion. On March 22, 2018, the Court held a
hearing on the motion. After reading the briefs, considering
the evidence, and questioning counsel during oral arguments,
the Court denied Allen's Motion to Suppress Second
Facebook Warrant (Doc. 296). As stated on the record, the
purpose of this memorandum is to further explain the ruling
made by the Court during that hearing.
Factual and Procedural Background
Federal Bureau of Investigation (“FBI”) began its
investigation in this case in February of 2016. The
investigation ended on October 14, 2016, when FBI agents
arrested Defendant Stein. Defendant Wright was arrested a
short time later, and Defendant Allen had been detained on
unrelated domestic violence charges three days earlier.
Defendants were all members of a militia group called
“the Crusaders.” According to the Government, the
FBI learned that each of the Defendants had a Facebook
account, and that they used their accounts to make
anti-Muslim and anti-government postings, as well as to
periodically communicate with each other. Defendants'
Facebook Username and Entity IDs were confirmed using
publicly-available internet searches. The FBI sent Facebook,
Inc. preservation letters for Defendants' Facebook
accounts at some point in October of 2016.
The First Facebook Warrant
November 22, 2016, FBI agent Tracey Jenkins submitted a
warrant application to a federal magistrate judge in the
District of Kansas seeking a warrant for records from
Defendants' Facebook accounts. The application included a
57-paragraph affidavit that identified the crime under
investigation as a conspiracy to use a weapon of mass
destruction, in violation of 18 U.S.C. § 2332a, and
provided a detailed account of the allegations against
33 of the affidavit generally described Defendants' usage
of Facebook in connection with the plot:
Multiple sources have indicated the primary methods the
Crusaders used to coordinate and communicate with members was
through Facebook, Facebook Messenger and the conference call
app. The Crusaders created closed (non-public) Facebook pages
for the group which could only be accessed by members. In
addition, Facebook Messenger was routinely used to
communicate between individual members and for group
conversations led by the Crusaders.
U.S. Magistrate Judge James O'Hara signed the warrant
(the “first Facebook warrant”) on November 22,
2016 and required its execution by December 6, 2016.
A to the first Facebook warrant listed three Facebook
accounts to be searched. These accounts were identified by
entity display name, entity username, and entity Id.
Target Account 1 was for the account with Facebook display
name Curtis Allen, username Curtis.allen.102. Target Account
2 was for the account with Facebook display name Gavin
Wright, username gavin.wright.792. And Target Account 3 was
for the account with Facebook display name Patrick Stein,
B to the first Facebook warrant on its face authorized a
search only for “fruits, evidence and instrumentalities
of violations of Possession of a Firearm by a person who has
previously been convicted of a crime of Domestic Violence in
violation of 18 U.S.C. § 922(g)(9).” Neither the
warrant nor its attachments referenced the crime listed in
the affidavit, conspiracy to use a weapon of mass
destruction, in violation of 18 U.S.C. § 2332a.
executing the warrant, the Government obtained approximately
28, 000 pages of Facebook records from Defendants'
The First Motion to Suppress and the Second Facebook
January 11, 2018, Defendants filed a motion to suppress the
first Facebook warrant. Defendants argued that all proceeds
of the first Facebook warrant must be suppressed because the
Government committed multiple Fourth Amendment violations.
Defendants' predominant argument was that the affidavit
failed to establish probable cause. Although the affidavit
focused on conspiracy to use a weapon of mass destruction, in
violation of 18 U.S.C. § 2332a, the warrant authorized
permission to search for evidence of a different
crime-illegal firearm possession, in violation of 18 U.S.C.
§ 922(g)(9). Thus, the affidavit did not establish a
“fair probability” that evidence of the crime
listed in the warrant would be found in the Facebook
accounts. Additionally, Defendants argued that the affidavit
accompanying the warrant lacked probable cause because it
failed to establish a sufficient nexus between the crime
under investigation and the defendants' use of Facebook.
Defendants further argued that the issuing magistrate did not
assess the “ ‘veracity' and ‘basis of
knowledge' of persons supplying hearsay
information” to determine probable cause.
addition to probable cause, Defendants argued that the
warrant was overbroad, that the seizure exceeded the scope of
the warrant, and that the magistrate judge lacked
jurisdiction to issue the warrant. Defendants claimed that
these defects rendered the warrant constitutionally invalid,
that no good-faith exception applied because it was so
lacking in indicia of probable cause as to render official
belief in its existence unreasonable, and that suppression of
the evidence was required.
reviewing Defendants' first motion to suppress, and
“acknowledging the validity of the questions raised by
it, on January 14, 2018 the FBI sent Facebook a new
preservation letter” for Defendants' Facebook
accounts. Three days later, the Government sought a new
search warrant for Defendants' Facebook accounts. FBI
Special Agent Amy Kuhn submitted the probable cause affidavit
in support of the new warrant.
Judge O'Hara signed the warrant on January 17, 2018 (the
“second Facebook warrant”). In Attachment A, the
“information to be seized” was limited to
“fruits, evidence, and instrumentalities” of
violations of 18 U.S.C. § 2332a (conspiracy to use a
weapon of mass destruction), thus fixing the error contained
in the first warrant. However, the second Facebook warrant
contained a new, and rather unfortunate error. It authorized
the Government to conduct the search on or before January 31,
2016-despite the fact that it was issued in January of 2018.
January 18, 2018, the day after the warrant was signed,
Special Agent Kuhn served the second Facebook warrant on
Facebook. After several follow-up attempts, Facebook finally
responded with the information sought by the warrant on
February 21, 2018.
same day, this Court granted Defendants' motion to
suppress the first Facebook warrant, reasoning that the
original warrant did not specify the correct statute for
which there was probable cause to conduct a search. The Court
specified that the proceeds of the first Facebook warrant
would be suppressed, and reserved the right for Defendants to
file a second motion to suppress once the proceeds of the
second warrant were obtained. Without ruling on the issue,
the Court also noted that Paragraph 33 in the first affidavit
was “thin, ” but “probably a sufficient
probable cause showing for the search.” Additionally,
the Court ordered the Government to produce to Defendants a
red-line copy of the first and second affidavit, because it
was not known at the time whether the second affidavit
contained proceeds obtained from the first search. And,
because of the unique nature of this search, the Court
deferred ruling on the other issues raised by Defendants, as
the Court would be better suited to rule on them in
conjunction with the second motion to suppress.
The Second Motion to Suppress
filed a motion to suppress the second Facebook warrant on
March 12, 2018 (Doc. 296). In the motion, Defendants argued
that all proceeds from the second Facebook warrant must also
be suppressed. The Court held a hearing on the motion on
March 22, 2018. At the hearing, the Government admitted it
did not produce a red-line affidavit to highlight the
discrepancies between the first and second affidavits.
However, the Government explained that the first and second
affidavits were made on two different forms. Thus, it was
impossible to highlight discrepancies line-by-line-every line
was different. To remedy this, the Government wrote a lengthy
email with an itemized list of the differences between the
two affidavits, and in what paragraphs these changes were
identified three substantive differences between the first
and second search warrants:
(1) While the first warrant included no temporal limitations
to the information that Facebook had to disclose, the second
warrant limited the required disclosures to “the time
period of January 1, 2016 through the present;”
(2) While the first warrant required the disclosure of
“[a]ll photos and videos uploaded by that User ID and
all photos and videos uploaded by any user that have that
user tagged in them, ” the second warrant added,
including Exchangeable Image File (“EXIF”) data
and any other metadata associated with those photos and
(3) The second warrant added an additional paragraph to the
original list of 16 paragraphs of information to be disclosed
by Facebook: “[a]ll information concerning material
that was deleted or removed from the account, including the
date of the removal/deletion, the information that was
removed/deleted, and the IP log, including the IP address,
for the user who removed/deleted that material.
Defendants pointed out that the second affidavit
“bolstered” the nexus between the crimes charged
and Defendants' use of Facebook. Because this was an
effort to “cure” potential probable cause
deficiencies, the Court specifically excised this portion of
the second affidavit in ruling on whether the Government had
probable cause to search the Facebook accounts.
hearing, the Court denied Defendants' motion for the
reasons explained in this Order.
Clarification of the Court's Rulings Made at the First
addressing the merits, the Court must clarify its prior
ruling. During the first suppression hearing, the Court
recognized that the search and seizure conducted pursuant to
the first Facebook warrant was not valid. In explaining this
conclusion, the Court definitively identified just one
error-the warrant identified the information to be seized by
the government as evidence of a firearms violation (18 U.S.C.
§ 922(g)(9)), rather than the crime identified in the
affidavit-conspiracy to use a weapon of mass destruction (18
U.S.C. § 2332a). The Government explained that the
erroneous reference to the firearms violation was simply due
to an inadvertent cutting-and-pasting or typographical error,
but conceded that it was an “actual deficiency”
in the first Facebook warrant.
Court agreed that the typographical error was a
“technical” deficiency in the warrant itself,
which also led to the seizure exceeding the scope of the
warrant. To clarify, this error does not amount to a Fourth
Amendment violation. At most, a warrant that lists the wrong
crime to be investigated, has technically violated Fed. R.
Crim. P. 41(c)(1), which provides that a warrant may be
issued for “evidence of a crime.” And because the
warrant identified the information to be seized by the
government as evidence of a firearms violation, instead of
conspiracy to use a weapon of mass destruction, the seizure
of those Facebook records exceeded the scope of the warrant.
But that does not necessarily implicate the Fourth Amendment,
so long as the Government would have been authorized to seize
such evidence but for the warrant's typographical error.