Probable Cause Affidavit Leads to Suspects’ Facebook Face Plant

United States v. Westley, (D. Conn. 2018)

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) was investigating 40 shootings that occurred in the New Haven, Conn., area throughout 2016. Agents suspected the Goodrich Street Boys, or “GSB,” gang was involved in the shootings. The gang used Facebook to communicate about gang membership and chat about guns and drugs.

ATF agents obtained a warrant to search several Facebook accounts allegedly used by Dejuan Ward, Clifford Brodie, and Michael Belle. The probable cause affidavit for the warrant cited public Facebook posts showing fights, gang signs, and photos of gang members holding illegal drugs. The probable cause affidavit also stated the alleged gang leader admitted he used Facebook to keep in contact with his marijuana customers.

Ward, Brodie, and Belle were charged with murder, racketeering, narcotics, and federal gun crimes. They asked the court to suppress any evidence obtained through the search warrant, alleging the ATF agents unlawfully obtained information from their Facebook accounts. The court disagreed: “Defendants have not submitted any information regarding steps they took to keep their Facebook content private, they have not met their burden to demonstrate that they had a reasonable expectation of privacy in any of the information searched.” The court cited another decision ruling that an individual “surrendered any reasonable expectation of privacy when she posted a picture to her Facebook profile, which she chose to share with the broadest audience available to her,” i.e., by choosing the privacy setting of “friends and friends of friends” (Chaney v. Fayette Cnty. Pub. Sch. Dist., 977 F. Supp. 2d 1308, (N.D. Ga. 2013)).

Relying heavily on the lack of evidence that Ward, Brodie, or Belle configured privacy settings on their Facebook accounts, the court dismissed their motions to suppress.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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