W.D.Wis.: No REP in one’s Facebook posts, even when accessed by a “ghost” account

A law enforcement officer’s creation of a ghost Facebook account to access defendant’s private pages violated no reasonable expectation of privacy. United States v. Randall, 2022 U.S. Dist. LEXIS 122615 (W.D. Wis. July 12, 2022), and more elaborate than I would have given:

… Randall claims that like the defendant in Serlin, he can show that the JPD officers: (1) affirmatively misled the defendant as to the nature of their investigation; and (2) this misinformation was material in the decision to speak with the agent. However, as Judge Crocker explained, Randall’s circumstances are readily distinguishable because the officers in Serlin were not undercover as they were here. Therefore, the validity of Randall’s consent is governed by the principle articulated in United States v. Thompson, 811 F.3d 944 (7th Cir. 2016), finding “it is firmly established that the government may use informants and that an informant’s failure to disclose his true identity does not render consent to his presence invalid.” Id. at 948. Judge Crocker further rejected Randall’s attempt to distinguish Thompson on the ground that inviting a flesh-and-blood informant into a physical space is different from accepting a Facebook user’s request for access, since the law does not recognize that distinction.3Link to the text of the note If anything, most would view the act of granting an unknown individual access to your Facebook page based on a false identification far less intrusive than admission into one’s home, especially since, unlike one’s physical home, multiple avenues allow virtual hacking, and once in, even an invited visitor can readily appropriate and share content with others.

Regardless, Randall has again failed to even acknowledge Judge Crocker’s reasoning, much less provide contrary authority or develop some argument suggesting that the court should find a heightened privacy interest with respect to his Facebook accounts. Instead, Randall’s objection consists in large part of a cut-and-paste from his reply brief to Judge Crocker, which is no more persuasive to this court than it was to Judge Crocker. See United States v. Wescott, 576 F.3d 347, 356 (7th Cir. 2009) (unsupported and undeveloped arguments are waived).

Finally, as Judge Crocker also observed, even assuming JDP officers underlying motivation for infiltrating his Facebook accounts was to retaliate for his political activism, such retaliation may be grounds for a civil suit, but not suppression. (R&R (dkt. #58) 9-10 (citing Archer v. Chisholm, 870 F.3d 603, 618-19 (7th Cir. 2017); United States v. Soybel, 13 F.4th 584, 594 (7th Cir. 2021)). Accordingly, the court overrules Randall’s objections, accepts Judge Crocker’s R&R, and must deny Randall’s motion to suppress.

I see this about once a month: The client or his friends post the stupidest, most incriminating stuff on social media because they are proud of their crime: Look at all my cash, my guns, my drugs. I’m cool. Later, I’ll be defendant 3 in a multidefendant conspiracy.

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