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United States v. Arnold

United States District Court, E.D. Michigan, Southern Division

September 13, 2017




         This matter is before the court on defendants Billy Arnold's and Jeffery Adams' motions to suppress Facebook evidence (docs. 581 & 582). Arnold's motion was joined in by defendants Robert Brown, Michael Rogers, and Devon Patterson. Adams' motion was joined in by defendants Robert Brown, Jerome Gooch, Michael Rogers and Devon Patterson.

         The court held oral argument on the motion on August 31, 2017. For the reasons stated in this order, as well as those stated on the record, defendant's motion to suppress is DENIED.

         I. Facts

         On November 12, 2015, Magistrate Judge Majzoub issued a search and seizure warrant for the records of 42 Facebook accounts based upon the Affidavit of Border Agent Shawn Horvath. The warrant authorized the government's seizure of Facebook account information “that constitutes fruits, evidence, and instrumentalities of violations of” the RICO Act, Violent Crimes in Aid of Racketeering, Felon in Possession of Firearm, Use of Firearm in Furtherance of a Crime of Violence and distribution, possession and conspiracy to distribute controlled substances. Agent Horvath served the warrant and Facebook produced the evidence requested. According to the government, the production contained pictures of defendants involved in SMB activity and evidence relevant to the prosecution of the RICO conspiracy.

         Agent Horvath's Affidavit outlines his experience in investigating gangs in general and his experience in observing their use of social media in furtherance of their organizations. Horvath describes the SMB's use of Facebook to post photographs and videos of gang colors, hand signs, memorials to dead friends, their organization and firearms and narcotics. (Affidavit ¶ 20).

         Paragraph 51 of Horvath's Affidavit refers to Account 23 which belongs to Jeffery Adams. The Account accessible to the public is said to contain 2 pictures of former SMB members, 1 picture of a current member, pictures of codeine bottles, “55” and “Blood Day, ” and a posting that someone is a federal informant. The Account is averred to have “social media correlations” with other accounts for which the warrant was being sought. The affiant states that “The Seven Mile Bloods use liquid codeine and alcohol combined to create a drink they refer to as ‘SIZZRUP.'”

         Paragraph 57 of Horvath's Affidavit refers to Account 29, which belongs to Billy Arnold. The portion of the Account assessable to the public contains pictures of Billy Arnold, including Arnold wearing a red and black shirt with “55” on the front, which is consistent with the SMB/Hob Squad. The Account is averred to have “social media correlations” with other accounts for which the warrant was being sought. Horvath states that “a federal search warrant in October of 2015 was issued on four cell phones recovered during the arrest of ARNOLD. It was found through data extraction that these phones were being used to upload pictures of weapons and post gang related material to Facebook.”

         II. Analysis

         A. Search Warrant Affidavit Must Establish Probable Cause

         Defendants correctly argue that an affidavit in support of a search warrant must contain facts establishing that evidence of illegal activity will likely be found in the place to be searched. Defendants also emphasize that membership in a gang is not illegal. Despite this well-established law, defendants complain that Agent Horvath combined 42 Facebook accounts into a single search warrant and Affidavit, and failed to allege facts that were sufficient to establish that Accounts 23 and 29 would contain evidence of the specified criminal activity. Defendants argue that, other than alleging that the Accounts were associated with or belonged to members of SMB, there is nothing to indicate that evidence of a crime would be found on these particular Facebook pages.

         A search warrant is valid if probable cause exists to support its issuance. To evaluate probable cause, courts are instructed “simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [it] . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). The facts and circumstances taken as a whole must give the magistrate probable cause to believe the items sought would be found during the search. See, id., Zurcher v. Stanford Daily, 436 U.S. 547, 566 (1978). “[R]eviewing courts are to accord the magistrate's [probable cause] determination great deference.” United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000). Once a magistrate has determined the existence of probable cause, that decision should only be reversed if it was arbitrarily made. United States v. Coffee, 434 F.3d 887, 892 (6th Cir. 2006).

         The government maintains that the facts set forth in Horvath's Affidavit establish that there was a “fair probability” that a search of the defendants' private Facebook records would, at the very least, provide evidence of the defendant's membership and willing participation in SMB as well as evidence of conspirators' predicate offenses. After setting forth his education, training and experience in gang investigations, Horvath detailed his involvement in the investigation into the SMB enterprise. He then explained why there was a fair probability that evidence of criminality would be found. He averred that evidence gathered from interviews, police reports, and other sources reveal that SMB is a criminal enterprise engaged in conspiracies to commit federal and state criminal offenses, including violent ones. Horvath explained that SMB derives its income from the sale of illegal narcotics, robberies, and a variety of other criminal methods.

         Horvath stated that certain Facebook accounts, including Accounts 23 and 29, had been identified to belong to members or associates of SMB. Based on his experience and investigation, “[s]ocial media outlets are used as a means by some gang members to take credit for violent incidents, communicate with one another about their criminal behavior, and promote the gang”; that “gang members will post on social media sites to inform others about their criminal activities”; that “most members are known by street names or monikers to their fellow gang members” and “these monikers are often used as, or incorporated into, the ...

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