N.D.Iowa: Referring to social media posts as “open source” when friending is required isn’t materially false

It was not a Franks violation to refer to defendant’s social media posts as “open source” when defendant limited it to only “friends.” United States v. Smith, 2021 U.S. Dist. LEXIS 230826 (N.D.Iowa Dec. 2, 2021), adopting 2021 U.S. Dist. LEXIS 231442 (N.D.Iowa Nov. 3, 2021):

The Court does not find that the officer’s use of the description “open source social media” was intentionally or recklessly false. Rather, the Court finds it was at most a negligent description of the posts. The fact that a person had to ask permission to view a post that defendant was posting for others to see has seemingly little import when the affiant, a police officer, merely got online and asked defendant permission to view his locked posts, which defendant likely granted without knowing who the officer was. (Doc. 27, at 48). Further, whether defendant’s posts were viewable by the public at large or viewable to those he permitted to view them is immaterial. Defendant’s posts were intended to communicate to others the availability of marijuana for sale. Whether defendant used broadcast advertising or more targeted advertising of his wares does not add or detract from the evidentiary value his advertising contributed to establishing probable cause.