S.D.Ohio: Facebook SW failed to show nexus to alleged hate crime, but GFE applies

Defendant is charged with a hate crime, and the government believed that he was involved with a group. The search warrant for his Facebook account failed to show nexus to get access to the non-public pages just because the group communicated by Facebook. In any event, the good faith exception made evidence admissible because it was not so devoid of nexus to be unreasonably relied upon. United States v. Whitt, 2018 U.S. Dist. LEXIS 7420 (S.D. Ohio Jan. 17, 2018) [note that this case deals with a Facebook search warrant and not a subpoena for third party information]:

Regarding the latter, the affidavit details – in approximately 19 paragraphs–Facebook’s general ability to capture any user’s personal identifiers, groups, instant messages, photographs, videos, invitations to social “events,” “check ins” at particular locations, etc. Again, the affidavit states that a search of the Facebook profile may allow the government to determine the “who, what, why, when, where, and how” of Defendant’s suspected crime. However, if the Court accepts the government’s argument regarding the existence of probable cause, the 19 Facebook-related paragraphs in the affidavit could be dropped into virtually any affidavit in support of a search warrant where an individual is suspected of a crime, in order to search a suspect’s Facebook account. If it were this easy to obtain such a warrant for Facebook information, the Court is hard-pressed to determine why the courts in Arnold [United States v. Arnold, 2017 U.S. Dist. LEXIS 148120 (E.D. Mich. Sept. 13, 2017)], Yelizarov, and Ortiz-Salazar even bothered performing an analysis of the nexus requirement.

Ultimately, the government would have this Court hold that establishing a nexus between the place to be searched (i.e., a particular suspect’s Facebook account) and the items to be seized has become superfluous, simply by virtue of Facebook’s tremendous capability to capture and store information relating to any suspect’s means, motive, and opportunity. While there is relatively little from the Sixth Circuit regarding Facebook, its other jurisprudence reveals that the nexus requirement is alive and well. For example, the Sixth Circuit in Bass cited the agent’s specific averments regarding the particular cell phone at issue before affirming the district court’s denial of the motion to suppress. Why would such an analysis be required for cell phones, but not Facebook accounts? The government’s argument obviates any constitutional protection for social media. This Court declines to so hold. While the affidavit in this case sets forth the broad capabilities of Facebook, it (unlike the affidavit in Arnold) fails to take the additional step of establishing information known to the agent making it likely that “specific” evidence is likely to reside in Whitt’s particular Facebook account.