W.D.N.C.: Facebook post of def with backpack full of cash a year earlier wasn’t stale

Reference in a search warrant application to a Facebook post showing defendant buying expensive jewelry with a backpack full of cash at a time when he claimed no taxable income since 2017 was not stale. United States v. Grandy, 2022 U.S. Dist. LEXIS 189588 (W.D.N.C. Oct. 18, 2022):

Additionally, law enforcement witnessed on Facebook a photograph of a Texas hotel bill that cost $1,900 a night and a video of Grandy and his son buying custom jewelry with a backpack full of cash. Agents confirmed that Grandy had not reported taxable wages since 2017 and his son had never reported any taxable wages.

Grandy argues that the material from Facebook, as well as the information from the confidential sources, were stale. Time is a “crucial element of probable cause.” United States v. McCall, 740 F.2d 1331, 1335, 1337 (4th Cir. 1984). “A valid search warrant may issue only upon allegations [*16] of ‘facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.'” Id. at 1335-36 (quoting Sgro v. United States, 287 U.S. 206, 210-11, 53 S. Ct. 138, 77 L. Ed. 260 (1932) (further citations omitted)). “[E]vidence seized pursuant to a warrant supported by ‘stale’ probable cause is not admissible in a criminal trial to establish the defendant’s guilt.” Id. at 1136. Grandy correctly notes the applications for the tracking orders state that law enforcement learned the information from the confidential sources on January 7, 2020, and January 8, 2020, which was more than a year before the order was signed on January 11, 2021, and that the statements from the confidential sources do not state when the alleged criminal activity took place. If this information was over a year old, then it may have been too remote in time to establish probable cause. Yet this argument fails because the information was not over a year old. Rather, Agent Reynolds simply made a typographical error related to the year of the interviews and the Facebook observation. The affidavits mistakenly state each event was conducted in January 2020, when, in fact, they were conducted in January 2021. See Doc. No. 38-1, p. 4. Additionally, the fact that the confidential sources did not state when their interactions with Grandy took place is not fatal to the probable cause analysis. Even assuming the confidential sources’ underlying information was stale, K.K.’s recent corroborative information refreshed the confidential source’s information. See United States v. Rubio, 535 F. App’x 251, 255 (4th Cir. 2013) (“Where recent information corroborates otherwise stale information, probable cause may be found.”) (quoting Emery v. Holmes, 824 F.2d 143, 149 (1st Cir. 1987)); see e.g., United States v. Lemont Jerrone Webb, No. 5:15-CR-172-BO-1, 2017 U.S. Dist. LEXIS 52704, at *32 (E.D.N.C. Apr. 6, 2017).

As a criminal defense lawyer, I see social media posts as potential evidence all the time. Incredibly dumb.