D.Minn.: Particularity in social media SWs is still evolving, and reliance on SW here was reasonable

Here, a Facebook warrant that allegedly lacked particularity was still close enough for the good faith exception. The law of particularity in social media warrants is still evolving, and it was reasonable for the officer to rely on the issuing judge’s finding of probable cause. United States v. Harris, 2021 U.S. Dist. LEXIS 166945 (D.Minn. Sept. 2, 2021):

Here, lacking any evidence of deliberate misconduct or gross negligence in the record, Harris points to the failure of the Facebook warrant to recite or expressly incorporate the same gun-related scope as found in the application. Suppressing the results of the Facebook search would not further the purpose of the exclusionary rule. Id. at 238-39. It would only serve to punish a police officer for relying on a neutral judge’s conclusion that the warrant was sufficiently particular. See Leon, 468 U.S. at 921 (“In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient.”). Under these facts, the warrant here is “distinguishable from the type of warrant that was so clearly overbroad that officers should have known it themselves and that they could not rely on the judge’s assessment.” United States v. Burkhow, No. 19-CR-59-CJW-MAR, 2020 WL 589536, at *12 (N.D. Iowa Feb. 6, 2020).

In addition, searches of social media accounts are a relatively new development in Fourth Amendment law, as courts have observed: “The extent to which social media profiles can be searched is an evolving issue, particularly now that many people have retained such profiles for years … [and] courts have differed on the limitations required by such warrants and what limitations are appropriate under the circumstances.” Id.; see also United States v. Chavez, 423 F. Supp. 3d 194, 208 (W.D.N.C. 2019) (“[A]pplying the Fourth Amendment to social media accounts is a relatively unexplored area of law with nuances that have yet to be discovered.”); United States v. Westley, No. 3:17-CR-171 (MPS), 2018 WL 3448161, at *17 (D. Conn. July 17, 2018) (“[T]he application of search warrants to Facebook accounts is a relatively new area of the law.”). In this context, our sister court in the Northern District of Iowa stated in Burkhow, 2020 U.S. Dist. LEXIS 20319, 2020 WL 589536, at *11, that “[g]ood faith is often present despite the overbreadth of a warrant to search a social media profile.” See also United States v. Mize, No. 1:18-cr-74, 2020 WL 5505793, at *5 (S.D. Ohio Sept. 11, 2020) (“[C]ourts across the nation have analyzed the constitutionality of nearly identical Facebook search warrants. Based on this case law, an apparent pattern has emerged: search warrants that ask for an entire copy of a Facebook account, such as the one at issue here, are likely overbroad, but evidence obtained therefrom is still admissible under the Leon good-faith exception.”) (citing United States v. Hamilton, No. 6:18-CR-57-REW-10, 2019 U.S. Dist. LEXIS 159077, 2019 WL 4455997, at *4-6 (E.D. Ky. Aug. 30, 2019) (applying good-faith exception to search warrant for ten months of activity on entire Facebook account); Blake, 868 F.3d at 974 (finding that good-faith exception applied to Facebook warrant that was likely overbroad); United States v. Flores, 802 F.3d 1028 (9th Cir. 2015) (same); United States v. Shipp, 392 F. Supp. 3d 300, 307 (E.D.N.Y. 2019) (same); Chavez, 423 F. Supp. 3d at 207-08 (finding that Facebook warrant violated Fourth Amendment, but good-faith exception applied)); but see United States v. Irving, 347 F. Supp. 3d 615, 624-26 (D. Kan. 2018) (finding good-faith exception inapplicable where Facebook search warrant affidavit did not limit the scope of the search and reflected “the broad view that the officer took of the search warrant.”).

Because the degree of particularity required under the Fourth Amendment is dependent upon the facts of the case and the type of items involved, a warrant identifying only a general class of items may be sufficiently particular if the individual items to be seized cannot be identified at the time the warrant is issued. United States v. Jones, No. 19-cr-341 (NEB/LIB), 2021 WL 960910, at *4 (D. Minn. Mar. 15, 2021) (citing United States v. Horn, 187 F.3d 781, 788 (8th Cir. 1999)). In the R&R, Judge Leung noted the specific structure and manner in which Facebook warrants are executed, with some courts finding them to be a “hybrid of a traditional warrant and a subpoena,” that can “render[] the specification of the suspected offense, while constitutionally indispensable, functionally unnecessary.” (R&R at 18) (citing Purcell, 967 F.3d at 183). …