FL4: REP in Facebook private messages

(1) Florida’s 4th DCA finds a reasonable expectation of privacy in Facebook private messages as analogous to cell phone text messages. (2) When the records were seized under a warrant for a theft, they couldn’t be searched for evidence of this crime, a shooting. Therefore, the good faith exception is not applied. Young v. State, 2024 Fla. App. LEXIS 7466 (Fla. 4th DCA Sep. 25, 2024):

Although the search at issue was of a Facebook account, the same privacy concerns apply because the detective garnered the evidence at issue through appellant’s private messages, which are analogous to a cell phone’s text messages. Several federal courts have recognized a reasonable expectation of privacy in a person’s private social media content. See United States v. Zelaya-Veliz, 94 F.4th 321, 333 (4th Cir. 2024) (“Most federal courts to rule on the issue have agreed that Facebook and other social media users have a reasonable expectation of privacy in content that they exclude from public access, such as private messages.”); United States v. Chavez, 423 F. Supp. 3d 194, 205 (W.D.N.C. 2019) (“Defendant manifested a subjective expectation of privacy in his non-public Facebook content that society is prepared to recognize as reasonable.”); United States v. Bledsoe, 630 F. Supp. 3d 1, 18 (D.D.C. 2022) (finding the “weight of persuasive authority hold[s] that non-public content held on social media accounts is protected under the Fourth Amendment” and citing cases).

In this case, the detective found the evidence at issue by reviewing appellant’s private messages and his private subscriber information, which we find carry an objectively reasonable expectation of privacy. The trial court correctly concluded that the detective’s warrantless search of appellant’s Facebook records was in violation of the Fourth Amendment.

. . .

Appellant’s Facebook records were seized and retained pursuant to the Theft Warrant, and the detective’s subsequent search through those records for homicide evidence therefore violated the Fourth Amendment. We hold that these circumstances do not fit the good-faith exception to the exclusionary rule, as it was not objectively reasonable for the detective to believe that the Theft Warrant, which authorized a search of appellant’s Facebook records for evidence of theft and organized fraud, authorized him to search the same records for evidence of an unrelated homicide.