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United States v. Allen

United States District Court, D. Kansas

April 10, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CURTIS WAYNE ALLEN, PATRICK EUGENE STEIN, GAVIN WAYNE WRIGHT, Defendants.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         This 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.

         I. Factual and Procedural Background

         The 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.

         A. The First Facebook Warrant

         On 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 Defendants.

         Paragraph 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.

         Chief 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.

         Attachment 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, username Pstein69.

         Attachment 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.

         After executing the warrant, the Government obtained approximately 28, 000 pages of Facebook records from Defendants' Facebook accounts.

         B. The First Motion to Suppress and the Second Facebook Warrant

         On 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.[1]

         In 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.

         After 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.

         Magistrate 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.

         On 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.

         On that 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.

         C. The Second Motion to Suppress

         Defendants 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 made.

         Defendants 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 videos;
(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.

         Additionally, 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.

         At the hearing, the Court denied Defendants' motion for the reasons explained in this Order.

         D. Clarification of the Court's Rulings Made at the First Suppression Hearing

         Before 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).[2] 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.[3]

         The 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.[4] 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.

         II. ...


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