United States District Court, D. Arizona
DAVID CAMPBELL, District Judge.
Defendants are charged with conspiracy to commit aggravated sexual abuse, sexual abuse, and abusive sexual contact in violation of 18 U.S.C. §§ 371, 2241(b)(1), 2242(2)(B), 2244(a)(2), and 3261(a)(1); sexual abuse in violation of 18 U.S.C. §§ 2242(2)(B), 2246(2), 3261(a)(1), and 2; and abusive sexual contact in violation of 18 U.S.C. §§ 2244(a)(2), 2246(3), 3261(a)(1), and 2. Doc. 3. The charges arise from the alleged sexual assault of a female minor on October 19, 2013, in Germany.
Defendant Martin has filed a motion to suppress electronic messages obtained by search warrants from Facebook and Twitter. Doc. 69. Defendant Heikkila has joined the motion. Doc. 88. The government has filed a response. Doc. 95. At an evidentiary hearing held on other motions on July 17, 2015, the parties agreed that the Court could rule on the motion without further briefing or argument.
I. Staleness of the Search Warrant Affidavits.
Shortly after the alleged assault in October of 2013, Army criminal investigators spoke with the victim and obtained Twitter information from her telephone. Defendants were interviewed by investigators on November 6, 2013, and admitted their involvement in the events of October 19th, including their sexual conduct with the victim. Defendant Martin was interviewed again briefly on November 8, 2015, and Defendant Heikkila on November 17, 2013.
On November 25, 2013, investigators submitted a preservation request pursuant to 18 U.S.C. § 2703(f) to Facebook for Martin's account. Facebook confirmed that it would preserve communications in the account for 90 days. Doc. 95-1. On December 4, 2013, investigators submitted a preservation request to Twitter for Martin's and Heikkila's accounts. Twitter confirmed that it would preserve the account data for 90 days. Doc. 95-3. On February 6, 2014, within the 90-day preservation period, Magistrate Judge Alan Kay of the United States District Court for the District of Columbia issued search warrants for the contents of Martin's Facebook account and both Defendants' Twitter accounts.
Upon reviewing the content of Martin's Facebook account and finding many communications with Heikkila regarding the alleged assault, agents sent a preservation request to Facebook for Heikkila's account on March 4, 2014. Facebook confirmed that it would preserve data in the account for 90 days. Doc. 95-7 at 46. On May 6, 2014, within the 90-day preservation period, Magistrate Judge Michelle Burns of this Court issued a search warrant for the contents of Heikkila's Facebook account.
Defendants argue that the information contained in the search warrant affidavits was stale by the time warrants were sought. They note that the assault is alleged to have occurred on October 19, 2013, and yet warrants were not sought until February 6 and May 6, 2014. Defendants' motion essentially argues that the magistrate judges could not reasonably have found probable cause to believe that relevant evidence would remain in the accounts so long after the event at issue.
A. Legal Standards.
To be valid under the Fourth Amendment, search warrants must be supported by probable cause. In assessing the existence of probable cause, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit... 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). "[T]he duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding' that probable cause existed." Id. at 238-39 (quoting Jones v. United States, 362 U.S. 257, 271 (1960) (ellipses and brackets omitted)). The Court must remember that a "fair probability" does not amount to "certainty or even a preponderance of the evidence, " and the Court must not "flyspeck" the warrant affidavit through de novo review. United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006) (en banc). The magistrate judge's determination "should be paid great deference[.]" Gates, 462 U.S. at 236.
The affidavits provided in support of the search warrants supplied an ample basis for the magistrate judges to believe that Defendants had committed the alleged sexual assault. Defendants do not argue otherwise. The affidavits also described in detail some of the Facebook and Twitter communications from Defendants concerning the assault. Defendants do not dispute this fact either. The only question is whether there was probable cause to believe on February 6 and May 6, 2014, that relevant communications would still be found in the Facebook and Twitter accounts. That question is easily answered.
Expert opinion may be presented in search warrant affidavits and may provide valuable context for conducting the "fair probability" inquiry. United States v. Weber, 923 F.2d 1338, 1345 (9th Cir. 1990) ("It is well established that expert opinion may be presented in a search warrant affidavit."). The affidavits in this case each stated that the signing agents had received training in computer crime investigations, and each affidavit explained how Facebook and Twitter accounts work. Docs. 95-4 at 4-5; 95-5 at 4-5; 95-7 at 17-18. The affidavits explained that electronic communications on Facebook and Twitter are stored on servers and can remain there indefinitely. Docs. 95-4 at 22-24; 95-5 at 22-24; 95-7 at 46-49. Each affidavit also noted that the government had served preservation requests on Facebook and Twitter and had received confirmations that the accounts would be preserved for 90 days. Docs. 95-4 at 22; 95-5 at 22; 95-7 at 46.
Given this information, the magistrate judges clearly had a substantial basis for concluding that evidence sought in the search warrants was likely still located on the Facebook and Twitter computers. The government served preservation requests for Martin's Facebook account and both Defendants' Twitter accounts within weeks of the alleged assault, and served search warrants within the ensuing 90-day preservation periods. Although the preservation request for Heikkila's Facebook account was not sent until March 4, 2014, some four and one-half months after the alleged assault, his communications with Martin concerning the assault were not known until the Facebook account for Martin (the principal actor identified by the victim) was obtained. The government served the preservation request for Heikkila's Facebook account within a few weeks of receiving the Martin Facebook information, and served the search warrant within the ensuing 90-day preservation period. Given the affidavit's explanation that information could ...