United States District Court, D. Oregon
ORDER RE: MOTION TO SUPPRESS FACEBOOK
Michael J. McShane United States District Judge
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.
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.
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.
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).
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.
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.
Standing to challenge under the Fourth
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).
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.