United States v. Meregildo

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 11 Cr. 576(WHP).

Motions

Motion for suppression : Denied Defendant

Attorney(S)

Nola B. Heller, Esq., Adam Fee, Esq., Santosh S. Aravind, Esq., United States Attorney SDNY, New York, NY, for the Government. Mitchell Dinnerstein, Esq., New York, NY, for Melvin Colon.

Judges

William H. Pauley

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Smart Summary

Factual and Procedural Background

Defendant Melvin Colon moved to suppress evidence seized from his Facebook account pursuant to a search warrant issued as part of a grand jury investigation in the Southern District of New York. The Government obtained the warrant after Magistrate Judge Frank Maas found probable cause based in part on information accessed through Colon's Facebook profile by a cooperating witness who was one of Colon's Facebook “friends.” Colon did not contest the magistrate judge's probable cause determination but challenged the Government's method of evidence collection, arguing that it violated his Fourth Amendment rights.

Legal Issues Presented

Whether the Government's use of a cooperating witness who was a Facebook “friend” of the defendant to access the defendant's Facebook profile violated the Fourth Amendment.
Whether the Government's minimization procedures in searching and seizing information from the Facebook account were constitutionally adequate.

Arguments of the Parties

Defendant Melvin Colon's Arguments

The Government's method of collecting evidence through a cooperating Facebook “friend” violated his Fourth Amendment right to privacy.
The Government failed to employ adequate minimization procedures in handling the evidence obtained from his Facebook account.

Government's Arguments

The magistrate judge properly found probable cause to issue the search warrant based on information obtained from Colon's Facebook profile.
Accessing Colon's Facebook profile through a cooperating “friend” did not violate the Fourth Amendment because Colon had no reasonable expectation of privacy in information shared with his “friends.”
The Government implemented sufficient minimization procedures, as detailed in Attachment B to the Facebook affidavit, to limit the scope of the search and seizure.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Katz v. United States, 389 U.S. 347 (1967)	Establishes the reasonable expectation of privacy test under the Fourth Amendment.	Used to analyze whether Colon had a constitutionally protected privacy interest in his Facebook profile depending on his privacy settings and sharing with “friends.”
United States v. Lifshitz, 369 F.3d 173 (2d Cir. 2004)	Addresses privacy expectations in contents of home computers and transmissions over the Internet.	Referenced to explain that privacy expectations in electronic communications may be diminished upon transmission over the internet.
Guest v. Leis, 255 F.3d 325 (6th Cir. 2001)	Clarifies that an individual loses Fourth Amendment privacy expectation upon delivery of electronic communications to a third party.	Applied by analogy to Colon’s Facebook postings shared with “friends,” showing diminished privacy expectations.
United States v. Barone, 913 F.2d 46 (2d Cir. 1990)	Consent of one party to a communication negates a reasonable expectation of privacy.	Used to support the conclusion that Colon had no justifiable expectation that his Facebook “friends” would keep his profile private from the Government.
United States v. Riley, 906 F.2d 841 (2d Cir. 1990)	Warrants authorizing examination of large amounts of documents do not violate the Fourth Amendment if sufficiently particular.	Supported the sufficiency of the Government’s minimization procedures in limiting the scope of the Facebook search warrant.

Court's Reasoning and Analysis

The court began by reaffirming the Fourth Amendment’s guarantee against unreasonable searches and seizures, focusing on the reasonable expectation of privacy test established in Katz v. United States. It acknowledged that while individuals generally have a reasonable expectation of privacy in their home computers, this expectation is not absolute and diminishes when information is shared over the internet or with third parties.

Colon’s Facebook profile was accessible to his “friends,” including the cooperating witness who provided the Government access. The court reasoned that Colon’s privacy interest was limited because he voluntarily shared information with his Facebook “friends,” who were free to disclose that information, including to law enforcement. Drawing on precedents such as United States v. Barone and Guest v. Leis, the court concluded that Colon had no justifiable expectation that his “friends” would keep his profile private from the Government.

Regarding the minimization procedures, the court found that the Government’s affidavit and attachment sufficiently described the scope and limits of the search to ensure compliance with the Fourth Amendment, citing United States v. Riley to support the principle that particularity in warrants can accommodate broad document searches when justified.

Accordingly, the court denied Colon’s motion to suppress, concluding that the Government’s method of evidence collection and minimization procedures were constitutionally proper.

Holding and Implications

Holding: Defendant Melvin Colon's motion to suppress evidence seized from his Facebook account is denied.

Implications: The decision directly allows the Government to use evidence obtained from a cooperating witness who had authorized access to a defendant’s social media profile without violating the Fourth Amendment. The ruling emphasizes that a user’s expectation of privacy in social media content shared with “friends” is limited and that the Government’s minimization procedures in executing search warrants on social media accounts can satisfy constitutional requirements. No new precedent was established beyond the application of existing Fourth Amendment principles to the facts of this case.

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UNITED STATES of America, v. Joshua MEREGILDO, et al., Defendants.

WILLIAM H. PAULEY III

Nola B. Heller, Esq., Adam Fee, Esq., Santosh S. Aravind, Esq., United States Attorney SDNY, New York, NY, for the Government. Mitchell Dinnerstein, Esq., New York, NY, for Melvin Colon.
Winston Lee, Esq., New York, NY, for Joshua Meregildo.
Florian Miedel, Esq., New York, NY, for Earl Pierce.
Gary G. Becker, Esq., New York, NY, for Nolbert Miranda.

MEMORANDUM & ORDER

WILLIAM H. PAULEY III, District Judge.

Defendant Melvin Colon (“Colon”) moves to suppress evidence seized from his Facebook account pursuant to a search warrant. For the following reasons, Colon's motion to suppress is denied.

BACKGROUND

Facebook is a social networking service and website that allows registered users—among many things—to create a personal profile, add other registered users as “friends,” join interest groups, and “tag” photographs with names and descriptions. The scope of personal information that can be part of a registered user's personal profile is virtually limitless—including contact information, lists of personal interests, photographs, and videos. Colon's registered Facebook profile is “Mellymel Balla.”

As part of a grand jury investigation in the Southern District of New York, the Government applied for a search warrant for the contents of Colon's Facebook account. Magistrate Judge Frank Maas found probable cause existed to obtain the contents of Colon's Facebook account and issued the warrant. Colon does not contest the magistrate judge's finding of probable cause. Instead, he attacks the propriety of the Government's method of collecting evidence to support that probable cause determination. More specifically, Colon presents a Fourth Amendment challenge to the Government's use of a cooperating witness who was one of Colon's Facebook “friends” and gave the Government access to Colon's Facebook profile.

DISCUSSION

The Fourth Amendment guarantees that all people shall be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A person has a constitutionally protected reasonable expectation of privacy when they have both a subjective expectation of privacy and that expectation is one that society recognizes as reasonable. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J. concurring). Generally, people have a reasonable expectation of privacy in the contents of their home computers. See United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir.2004). But this expectation is not absolute, and may be extinguished when a computer user transmits information over the Internet or by e-mail. See Lifshitz, 369 F.3d at 190;see also Guest v. Leis, 255 F.3d 325, 333 (6th Cir.2001).

Facebook—and social media generally—present novel questions regarding their users' expectations of privacy. Facebook users may decide to keep their profiles completely private, share them only with “friends” or more expansively with “friends of friends,” or disseminate them to the public at large. ( See Facebook Help Center, http:// www. facebook. com/ help/ privacy (last visited Aug. 10, 2012).) Whether the Fourth Amendment precludes the Government from viewing a Facebook user's profile absent a showing of probable cause depends, inter alia, on the user's privacy settings.

When a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment. See Katz, 389 U.S. at 351, 88 S.Ct. 507 (1967) (citations omitted). However, postings using more secure privacy settings reflect the user's intent to preserve information as private and may be constitutionally protected. See Katz, 389 U.S. at 351–52, 88 S.Ct. 507 (citations omitted).

Here, Colon maintained a Facebook profile in which he permitted his Facebook “friends” to view a list of all of his other Facebook “friends,” as well as messages and photographs that Colon and others posted to Colon's profile. ( See Def.'s Mem. of Law, Ex. F: Affidavit in Support of Facebook Search Warrant (“Facebook Aff.”) at 8–9.) The Government viewed Colon's Facebook profile through the Facebook account of one of Colon's “friends” who was a cooperating witness. ( See Facebook Aff. at 16.) By that means, the Government learned, inter alia, that Colon posted messages regarding prior acts of violence, threatened new violence to rival gang members, and sought to maintain the loyalties of other alleged members of Colon's gang. ( See Facebook Aff. at 19.) Access to Colon's Facebook profile formed the core of the Government's evidence of probable cause supporting its application for the search warrant.

Where Facebook privacy settings allow viewership of postings by “friends,” the Government may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment. Cf. United States v. Barone, 913 F.2d 46, 49 (2d Cir.1990) (finding that a person does not have a legitimate privacy expectation in telephone calls recorded by the Government with the consent of at least one party on the call.) While Colon undoubtedly believed that his Facebook profile would not be shared with law enforcement, he had no justifiable expectation that his “friends” would keep his profile private. Cf. Barone, 913 F.2d at 49. And the wider his circle of “friends,” the more likely Colon's posts would be viewed by someone he never expected to see them. Colon's legitimate expectation of privacy ended when he disseminated posts to his “friends” because those “friends” were free to use the information however they wanted—including sharing it with the Government. Cf. Guest, 255 F.3d at 333 (finding that an e-mail sender—like a letter writer—loses their expectation of privacy upon delivery). When Colon posted to his Facebook profile and then shared those posts with his “friends,” he did so at his peril. Because Colon surrendered his expectation of privacy, the Government did not violate the Fourth Amendment when it accessed Colon's Facebook profile through a cooperating witness.

Colon's contention that the Government did not employ any minimization procedure is meritless. The Government set forth its minimization procedure in Attachment B to the Facebook Affidavit. ( See Def.'s Mem., Ex. G: Attachment B, II (“Attachment B, II”).) For instance, the Government sought to seize information related to the scheduling of meetings among members of the racketeering enterprise, drug trafficking activity, and weapons. (Attachment B, II.) This description was sufficiently particular to allow the Government to examine the files it received from Facebook without violating the Fourth Amendment. Cf. United States v. Riley, 906 F.2d 841, 845 (2d Cir.1990) (search warrants authorizing the examination of a large amount of documents in a suspect's possession do not offend the Fourth Amendment—rather, they simply reflect the reality that few people keep documents of their criminal transactions in a folder marked “drug records.”)

CONCLUSION

For the foregoing reasons, Defendant Melvin Colon's motion to suppress evidence seized from his Facebook account is denied.

SO ORDERED.