The Facebook warrant was not overbroad, and it was consistent and less intrusive than a Facebook warrant previously approved by the Ninth Circuit in Flores. That which was nonresponsive to the warrant was previously ordered segregated and sealed, and the government agents accidentally disclosed part of it in the discovery disclosures. The court declines to order suppression of all for that mistake. In addition, taking more than 180 days for review violated the court’s order, but it did not prejudice any of the accused because it didn’t enhance the government’s review. United States v. Bundy, 2016 U.S. Dist. LEXIS 188523 (D. Ore. Sept. 14, 2016):
E. Failure to Destroy or to Seal Nonresponsive Facebook Data in a Timely Manner
The Court, nevertheless, is troubled by the failures of the various agents, collectively and individually, to destroy or to seal information in their possession that was determined to be nonresponsive to the Warrant. It is clear that the segregation of responsive and nonresponsive information was accomplished by June 21, 2016, when the Ammon Bundy and Bundy Ranch accounts were reviewed by SA Yeager and SA Bonilla. It was not until more than six weeks later on August 4, 2016, and then only at Defendants’ collective insistence, that there was any concerted effort by the government to destroy or to seal nonresponsive information that remained in the possession of government agents.
The government contends this delay did not violate the terms of the Warrant because the Warrant allowed the government up to 180 days to complete the search, which the government points out will not elapse until early October. The Court disagrees.
The Court notes the Warrant required the government to complete its review “within a reasonable amount of time not to exceed 180 days from the date of execution of the warrant.” The 180-day limitation, therefore, was the outer limit of the time that the government had to complete the search. Even with that 180-day limit, the government was required to perform the search in a “reasonable amount of time.” In light of the complexity of 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. While it is not per se unreasonable to take that much time to complete the “seal or destroy” process, the Court finds the six-week delay between the government’s completion of the review under the Warrant and the beginning of the government’s concerted effort to locate and to destroy or to seal nonresponsive information was unreasonable, especially when it appears the initiation of that effort was prompted by defense counsel rather than the government.
Nevertheless, there is not any evidence in the record from which the Court could conclude that the government agents’ unreasonable delay expanded the scope of the search or otherwise exposed the government to more information than that which they were entitled to under the Warrant. The agents’ actions, therefore, did not “‘transform the search into an impermissible general search by ignoring the terms of the warrant and engaging in indiscriminate fishing.’” See Sears, 411 F.3d at 1131 (quoting Chen, 979 F.2d at 717). Accordingly, the Court concludes even though the government’s efforts to complete this final step of the Warrant procedures were late and seemingly nonchalant, the “extraordinary remedy” of wholesale suppression is not warranted in the circumstances. See id.
Nonetheless, Defendants contend the Court should exercise its inherent supervisory authority over government agents by suppressing all of the Facebook evidence on this ground. Although the Court is frustrated by the government agents’ delay in sealing and/or destroying the information that was nonresponsive to the Warrant, the Court concludes suppression of evidence that was otherwise properly obtained pursuant to the Warrant is not an appropriate remedy for the government’s timing error. Whether pursuant to the Fourth Amendment or to the Court’s supervisory authority, wholesale suppression is an extraordinary remedy only to be applied to flagrant abuses of government authority. Although the government’s delay in sealing and/or destroying nonresponsive Facebook information was unreasonable, it was not sufficiently egregious to justify the suppression of a significant amount of evidence that was otherwise lawfully obtained under the totality of the circumstances.
The Court, nevertheless, admonishes the government for its obvious lack of diligence, attention to detail, and failure to destroy or to seal information pursuant to the Warrant that the government identified as nonresponsive to the Warrant in a timely manner. This should not have happened in any case, and, in any event, is particularly unacceptable in the context of this high-profile, complex prosecution with seemingly extraordinary resources being expended at every turn. In the future the Court expects the government to provide high-level leadership to ensure issues such as these are identified and resolved proactively and well before, as in this case, three rounds of evidentiary presentations and arguments that could have been avoided. The Court trusts the USAO and the investigators on whom it relies will take appropriate actions to address the oversights in this case to ensure they are not repeated in the future.