Professional Documents
Culture Documents
Document 1275
Filed 09/14/16
Page 1 of 31
3:16-cr-00051-BR
ORDER DENYING MOTION TO
SUPPRESS FACEBOOK
EVIDENCE
BROWN, Judge.
This matter comes before the Court on the reopened Motion
(#741) to Suppress Evidence (Facebook Accounts) filed by
Defendant David Lee Fry on behalf of all Defendants.
1 - ORDER DENYING MOTION TO SUPPRESS FACEBOOK EVIDENCE
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 2 of 31
PROCEDURAL BACKGROUND
On June 20, 2016, Fry filed on behalf of all Defendants a
Motion (#741) to Suppress Evidence (Facebook Accounts).
The
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 3 of 31
On August 19,
August 23, 2016, the Court withdrew that portion of its Order
(#915) that denied Defendants Motion (#741) to Suppress;
reopened Defendants Motion; struck the governments Response
(#827) to Defendants Motion to Suppress, the governments
Response (#1077) to Defendants Motion to Reopen the Motion to
Suppress, and the Declaration (#1079) of Geoffrey A. Barrow; and
directed the government to file the following no later than Noon,
August 29, 2016:
(a) a new, complete factual record, including
declarations by individuals with personal knowledge,
that fully identifies all representatives of the
government who had possession of or access to the
3 - ORDER DENYING MOTION TO SUPPRESS FACEBOOK EVIDENCE
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 4 of 31
Accordingly, the
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 5 of 31
FACTUAL BACKGROUND
Based on its assessment of the record, the Court finds the
following facts beyond a preponderance of the evidence:
On April 8, 2016, Magistrate Judge Paul Papak of the United
States District Court for the District of Oregon issued a searchand-seizure Warrant for Facebook accounts that were associated
with Defendants.
In
b.
c.
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 6 of 31
e.
f.
g.
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 7 of 31
This
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 8 of 31
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 9 of 31
account.
Also on May 16, 2016, AUSA Kerin provided to Ammon Bundys
counsel complete copies of the portions of the two Facebook
accounts associated with Ammon Bundy and Bundy Ranch seized
pursuant to the Warrant.
That same day SA Bonilla provided SA Hiemstra with a copy of
the Warrant Affidavit and the Warrant search procedures as well
as a list of search terms to be employed.
On May 19, 2016, SA Summers received from Facebook a fourth
response to the Warrant through the law-enforcement portal that
consisted of a single, comprehensive collection of all
information provided by Facebook pursuant to the Warrant.
SA Summers downloaded this response, which was 10.7 gigabytes in
size, to an external hard drive.
On May 19, 2016, SA Summers provided to SA Hiemstra a link
to the Facebook law-enforcement portal through which SA Hiemstra
could access the fourth response from Facebook.
Sometime between
May 16, 2016, and May 19, 2016, SA Hiemstra initiated the
software-based review of the information provided by Facebook,
which was a search separate and distinct from the search directed
by AUSA Kerin for privileged information.
SA Hiemstra and
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 10 of 31
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 11 of 31
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 12 of 31
The USAO
Angel intended
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 13 of 31
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 14 of 31
AUSA Gabriel
instructed Rallis to search the USAO network for those files and
to delete them immediately.
Rallis gave
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 15 of 31
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 16 of 31
Those
The seal
DISCUSSION
I.
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 17 of 31
2012).
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 18 of 31
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 19 of 31
802
Id. at
Id.
Id.
Although the Ninth Circuit expressed some concern over the lack
of any temporal limit on the warrant (i.e., the warrant permitted
seizure of relevant information created at any time during the
existence of the Facebook account), the court ultimately
concluded the warrant was not overbroad because the warrant here
specified a crime and a suspect, the seized data was not used for
19 - ORDER DENYING MOTION TO SUPPRESS FACEBOOK EVIDENCE
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 20 of 31
Id. at 1045-46.
lack of any temporal limit was moot because the only information
the government sought to introduce originated on the day of the
defendants arrest.
Id.
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 21 of 31
Case 3:16-cr-00051-BR
II.
Document 1275
Filed 09/14/16
Page 22 of 31
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 23 of 31
Wholesale suppression is an
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 24 of 31
Accordingly,
Case 3:16-cr-00051-BR
Document 1275
nonresponsive information.
Filed 09/14/16
Page 25 of 31
As noted, the Warrant did not expressly provide for the use
of a privilege filter team.
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 26 of 31
Moreover, it is clear
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 27 of 31
that Rallis and Angel made are of the type that otherwise careful
government agents can understandably make, especially during the
course of highly complex litigation such as this matter involving
voluminous discovery.
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 28 of 31
The
the search and the volume of information that the government was
required to review, the Court concludes it was reasonable for the
government to take until June 21, 2016, to finish the review.
On the other hand, it appears to have taken most of the
month of August for the government successfully to locate and to
destroy or to seal the nonresponsive information still in its
possession.
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 29 of 31
See id.
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 30 of 31
event, is particularly unacceptable in the context of this highprofile, complex prosecution with seemingly extraordinary
resources being expended at every turn.
The
CONCLUSION
For these reasons, the Court DENIES Defendants Motion, and,
pursuant to the Courts supervisory authority over the
government, the Court ADMONISHES the government for its lack of
Case 3:16-cr-00051-BR
Document 1275
Filed 09/14/16
Page 31 of 31