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.
"If it was easy, everybody would be doing it. It isn't, and they don't."
“I am still learning.”
—Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
v. United States, 333 U.S. 10, 13-14 (1948)