Unitеd States of America, Plaintiff - Appellee, v. Meamen Jean Nyah, Defendant - Appellant.
No. 17-3730
United States Court of Appeals For the Eighth Circuit
June 26, 2019
Appeal from United States District Court for the Southern District of Iowa - Des Moines. Submitted: November 12, 2018.
Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
Meamen Nyah entered a conditional guilty plea to one count of possession of a firearm as an unlawful user of a controllеd substance. The district court1 denied Nyah‘s motion to suppress evidence obtained from a search of his Facebook account. Nyah appeals, and we affirm.
On July 7, 2016, Des Moines Police Detective Jeffrey Shannon submitted an affidavit requesting a search and seizure warrant for Facebook, Inc., to disclose the сontents of accounts belonging to Nyah and three other people. He sought the warrant under
Shannon started by recounting information that wаs obtained during an investigation seven months earlier. He averred that on December 3, 2015, he had received a tip that members of a local gang would be filming a music video while in possession of firearms at an apartment in Des Moines. The affidavit said that police officers searched the apartment on Decembеr 3, discovered several firearms, and encountered Nyah among the people present for the filming of the video. The music video was then posted to Facebook and YouTube on approximately January 7, 2016. The affidavit stated that Nyah, along with three other people, was “clearly visible in the video,” and was hаndling at least one of the firearms recovered during the December search.
The affidavit explained that each of the four people identified had “utilized his Facebook account to post the music video, display photographs carrying firearms, display photographs of what appear to be marijuana, and/or proclaim his gang affiliation.” The affidavit also stated that Nyah had been arrested on December 7, 2015, for carrying weapons after a police officer found a loaded gun in the glove compartment of a car in which Nyah was the front-seat passenger. The officer detected the odor оf marijuana emanating from the vehicle and saw Nyah reach into the glove compartment and appear to dig inside frantically. The weapons charge against Nyah eventually was dropped after the driver admitted that the firearm belonged to him. Police also found marijuana in a backpack in the trunk of the сar. Finally, the affidavit stated that between December 2015 and May 2016, Shannon and other law enforcement officers had observed Nyah in photographs posted to his Facebook profile “that include him posing with firearms and smoking what appears to be marijuana.”
A magistrate judge issued a warrant on July 7, 2016, authorizing law enforcement officers to search for information associated with Nyah‘s Facebook account that was stored at Facebook‘s corporate premises, for the period from November 1, 2015, to July 7, 2016. The warrant commanded the officers to execute the warrant on or before July 21. On July 8, Shannon delivered the warrant tо Facebook, and the company turned over the requested material on July 22. The Facebook records seized by the government included photographs and messages that were evidence of Nyah‘s drug use and possession of firearms. A grand jury then charged Nyah with one count of possession of a firearm as an unlawful usеr of a controlled substance, in violation of
Nyah moved to suppress the evidence obtained from the search of his Facebook account. He argued that there was insufficient probable cause to support issuance of the warrant, that the affiant made false statements in the supporting affidavit, and thаt the warrant was not executed within the proper time frame. The district court denied the motion, and Nyah entered a conditional guilty plea that preserved his right to appeal the denial of the motion.
When considering the denial of a motion to suppress, we review the district court‘s findings of fact for clear error and
II.
A.
Nyah first contends that Shannon‘s affidavit did not establish probable cause to support the issuance of the search warrant. Probable cause exists when 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). We review the matter to determine whether the issuing magistrate judge had a substantial basis for concluding that probable cause existed. Id. at 238-39.
We conclude that the affidavit established probable cause that Nyah‘s Facebook account contained evidence of Nyah possessing firearms as an unlawful drug user. Shannon reported that he and other officers had observed photographs posted to Nyah‘s Facebook profile “that include him posing with firearms and smoking what appears to be marijuana.” Nyah responds that the affidavit was devoid of evidence that the photographs show him posing with real firearms and smoking real marijuana. But there was an ample basis for the magistrate judge to infer a fair probability that Nyah possessed real guns and drugs. Shannon, a trained drug investigator with many years of experience investigating violent crime, reported that the items appeared authentic in the Facebook photographs. Hе also averred that Nyah possessed an apparently genuine firearm in the music video; that conclusion was corroborated by a seizure of real firearms from the site where the music video was filmed on the date of the filming. The affidavit also contained evidence that Nyah was found in a car emitting an odor of marijuаna, with real marijuana in the trunk, during the traffic stop on December 7. There was thus a substantial basis to support the issuing judge‘s determination of probable cause.
B.
Nyah next argues that the warrant was invalid because it contained false statements that were necessary to establish probable cause. A defendant is entitled to а hearing on that question if he makes “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.” Franks, 438 U.S. at 155-56. We conclude that Nyah did not make the requisite showing.
Nyah alleges that the affidavit contained several false statements. First, Nyah protests that he is not a gang member, but the affidavit said only that Nyah was “connected to” a gang; that statement was supported by the affidavit‘s uncontested description of Nyah creating a music video with at least one gang member. Second, Nyah argues that the affidavit falsely stated that he used his Facebook аccount to post the music video and to proclaim his gang affiliation. The relevant part of the affidavit, however, used the imprecise conjunction “and/or” when describing the evidence: “each of the individuals identified in this Affidavit have utilized his Facebook
Nyah also complains that the affidavit falsely said that officers encountered him in the apartment during the search on December 3. But even if the statement was wrong, it was immaterial. Nyah does not dispute that the affidavit accurately identified him as a participant holding a firearm in the video produced at the apartment on December 3. So even if he was not present in the apartment at the moment of the search, the affidavit still set forth ample probable cause to search his Facebook account. The district court did not abuse its discretion by denying the Franks claim without a hearing.
C.
Nyah‘s final argument is that the evidence from Facebook should bе excluded because law enforcement officers failed to execute the warrant within the fourteen-day limit set forth in the warrant. The warrant commanded the officers to execute the warrant on or before July 21, 2016, but Facebook did not produce material from Nyah‘s account until July 22. As a result, Nyah contends, there was a violation of
Whether there was a violation of
Despite the practical concerns raised by the district court, the text of
Although law enforcement officers may not be able to control when the recipient of a warrant like this one produces the items sought under the warrant, the government likely has a means to overcome any timing problem that arises from delay by the third party. If the recipient does not produce property for seizure within the time prescribed in the warrant, then officers may simply obtain a fresh warrant with a renewed period of fourteen days within which to execute thе warrant.
At least two courts, however, have ruled in cursory fashion that a warrant directed to a service provider is executed when an officer serves it on the provider. See United States v. Farrad, 895 F.3d 859, 890 & n.23 (6th Cir. 2018); see also United States v. Allen, No. 16-10141-01-EFM, 2018 WL 1726349, at *8 (D. Kan. Apr. 10, 2018). The government also points to United States v. Welch, 811 F.3d 275, 280 (8th Cir. 2016), where this court said that a Network Investigative Technique warrant was executed on the date when law enforcement installed software on a private computer server. In Welch, however, the court did not appear to address whether “execution” of the warrant continued through a period after installation during which the software collected information for investigators, as neither party raised the question, and the opinion does not mention it. See id. at 279-80; Brief of Appellant at 7-8, 14, Welch, 811 F.3d 275 (No. 15-1993); Brief of Appellee at 14, 25, Welch, 811 F.3d 275 (No. 15-1993).
We need not resolve definitively whether the warrant for information from Nyah‘s Facebook account was executed within fourteen days after the warrant was issued, because any violation of
Even if the warrant was “executed” one day late when an officer seized the material from Facebook on July 22, probable cause continued tо exist. The warrant targeted
Nyah contends that if there wаs a one-day violation of the time limit on execution of a warrant under
* * *
The judgment of the district court is affirmed.
STRAS, Circuit Judge, сoncurring in part and concurring in the judgment.
The court says more than it needs to about an issue that it never decides: whether a warrant is “executed” when it is delivered to someone in possession of digital data or, instead, when the data is finally turned over to the authorities. Although the court claims not to “definitively” resolve this difficult question, it dеvotes over two pages to it and all but supplies us with the answer.1 Because I agree that the officers were not reckless and that Nyah suffered no prejudice, see United States v. Spencer, 439 F.3d 905, 913 (8th Cir. 2006), my analysis would end there and it would leave a future panel with a chance to decide the question on a clean slate.