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United States v. Johnson

United States District Court, D. Oregon

February 16, 2018



          Michael J. McShane United States District Judge

         Defendant Daniel Johnson moves to suppress all Facebook evidence obtained by the government and requests a Franks hearing. He argues that the search warrant violated the Fourth Amendment's particularity requirement; that the warrant was issued by a magistrate judge in violation of Fed. R. Crim. P. 41 and 28 U.S.C. Sec. 636(a); and that the Affidavit filed in support of the Application For a Search Warrant was marred by material misstatements of fact and reckless material omissions.

         The government responds that Johnson lacks standing to assert any reasonable expectation of privacy in the three accounts that belong to others. As to his own Facebook accounts, the government contends that the statements in the affidavit were neither reckless or untruthful, and the alleged omissions have no relevance to a finding of probable cause.

         Because the warrant, when stripped of the alleged misrepresentations and omissions, retains sufficient facts to support probable cause, and because Special Agent Schoening, who submitted the Affidavit, did not show a reckless disregard for the truth, a Franks hearing is not necessary. Defendant's motion to suppress (Dkt. 61) is DENIED.


         Before a defendant is entitled to a Franks hearing, they must satisfy five requirements identified by the Ninth Circuit. They must allege with specificity those portions of the affidavit are believed to be false; allege that the false statements or omissions were deliberately or recklessly made; submit a detailed offer of proof to support the allegations; challenge the veracity of the affiant; and make a showing that the challenged statements are necessary for a finding of probable cause. United States v. Dicesare, 765 F.2d 890, 895 (9th Cir. 1985), amended, 777 F.2d 543 (1985) (citation omitted); see also United States v. Craighead, 539 F.3d 1073, 1080 (9th Cir. 2008). When a search warrant affidavit contains false or misleading statements, the court should delete the falsities and insert the omitted truths to see if the reformed affidavit establishes probable cause. United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992).


         On March 18, 2016, Magistrate Judge Coffin approved the search warrant at issue based upon an affidavit provided by Special Agent Shoening. The Warrant directed Facebook to produce information from five Facebook accounts. Two accounts belonged to Defendant and the other three accounts belonged to Defendant's brothers and their wives.

         The Warrant targeted evidence related to allegations of illicit sexual conduct in foreign places, travel with intent to engage in illicit sexual conduct, and witness tampering. The Warrant directed Facebook to provide the Government with: all records of communications made or received by the user (including messages, chat history, video calling history, pending friend requests), information on security questions and answers, passwords, who accessed any Facebook content, and how and when it was accessed. The warrant required law enforcement to segregate the information into two groups: (1) information responsive to the Warrant that the Government could seize, and (2) information not responsive to the Warrant. The Warrant authorized the FBI to seize all information associated with Defendant's Facebook accounts from the date of creation to the execution of the Warrant, and included any data that was deleted but still available.


         I. Standing to challenge under the Fourth Amendment

         Standing to challenge a search under the Fourth Amendment is a “threshold question” that a defendant must answer before this Court may consider whether the search itself was reasonable. United States v. Ziegler, 474 F.3d 1184, 1189 (9th Cir. 2007). The defendant bears the burden of establishing his Fourth Amendment rights were violated by the search. United States v. Caymen, 404 F.3d 1196, 1199-1200 (9th Cir. 2005) (internal citation omitted). To do so, a defendant must show that he had either a property interest or a reasonable expectation of privacy in the Facebook accounts searched. United States v. Lopez-Cruz, 730 F.3d 803, 807 (9th Cir. 2013); United States v. Padilla, 508 U.S. 77, 82 (1993).

         Three of the five Facebook accounts targeted by the Warrant belonged to third parties; namely, Johnson's family members. Because Johnson did not possess or maintain any of those accounts, he cannot establish that he has a possessory or privacy interest in their contents. As a result, Johnson lacks standing to challenge the search of the three accounts belonging to third parties.

         II.Particularity ...

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