N.D.Ga.: No nexus shown for Facebook SW, but GFE applied

The District Court disagrees with the USMJ that there was probable cause and nexus for a search warrant for defendant’s Facebook page. But, reasonable judges disagree, and that is enough for the court to conclude that the good faith exception should apply because the officer’s reliance on the search warrant wasn’t unreasonable. United States v. Propps, 2019 U.S. Dist. LEXIS 25789 (N.D. Ga. Feb. 19, 2019):

Here, the Court disagrees with the Magistrate Judge’s conclusion that the affidavit established probable cause to conclude that law enforcement would find evidence of a crime on Defendant Propps’s Facebook page. To establish probable cause, the affidavit must have linked Defendant Propps’s Facebook account to the illegal conspiracy. See United States v. Blake, 868 F.3d 960 (11th Cir. 2017) (probable cause to search Facebook account found where account listed defendant’s occupation as “Boss Lady” at “Tricks R [U]s” thereby linking account to sex-trafficking conspiracy). It does not do so. To be sure, the affidavit alleges that Ghostface Gangster members used their Facebook accounts to further the goals of the gang, posting photos or communications that might evidence criminal activity. The affidavit, however, does not allege that all gang members do this or that Defendant Propps used his Facebook account for such purposes. Similarly, the affidavit alleges that gang members often use street names in their Facebook accounts, but it does not allege that either “Joey Propps” or “JP Propps” are street names that Defendant Propps uses or used when associating with Ghostface Gangsters members. (Johnson Aff. at ¶ 4). Finally, the affidavit alleges that the gang has a public Facebook account, Ghost767face family, and that many gang members are also part of that Facebook page. (Id. at 19(a).) But, the affidavit does not link Defendant Propps’s Facebook page to the gang’s page.

The affidavit simply provides no substantial basis for concluding that this individual — like other gang members — used his Facebook account in this way. Put differently, it fails to establish a nexus between the locations law enforcement intended to search and the objects it wanted to seize. United States v. Tate, 586 F.3d 936, 943 (11th Cir. 2009) (holding probable cause requires nexus between contraband and particular place law enforcement seeks to search).

. . .

While this Court disagrees, the difference of opinion between reviewing judges bolsters the conclusion that whether the affidavit is lacking is not an open-and-shut matter. It may be lacking; but its flaws are not so obvious that Special Agent Johnson was unreasonable in relying on it. And finally, no one claims the warrant itself was so facially deficient that the executing officers could not have presumed it to be valid. Even if probable cause did not exist to support the issuance of the warrant, suppression is inappropriate. The Court denies Defendant Propps’s motion to suppress.