UNITED STATES OF AMERICA v. CEDDRICK MERCERY,
No. 3:21-CR-9 (CAR)
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION
February 25, 2022
Currently before the Court are Defendant Ceddrick Mercery‘s Motions to suppress evidence obtained from a warrant authorizing law enforcement to track the geolocation of Mercery‘s cell phone (“Geolocation Warrant“) and to suppress evidence obtained from a warrant authorizing the search of Mercery‘s social media account on Instagram (“Instagram Warrant“). On December 15, 2021, the Court held a hearing. Having considered the evidence presented at the hearing, the parties’ arguments, and the applicable law, the Court finds the affidavit provides sufficient probable cause for the judge to issuе the Geolocation Warrant, and thus Mercery‘s Motion to Suppress evidence seized pursuant to the Geolocation Warrant [Doc. 46] is DENIED. The Court, however, finds the Instagram Warrant is unconstitutionally overbroad, and the good faith exception cannot save the illegal search. Thus, Mercery‘s Motion to Suppress evidence seized pursuant to Instagram Warrant [Doc. 33] is GRANTED.1
BACKGROUND
Defendant Mercery is charged in a second superseding indictment with four counts of possession of a firearm by a convicted felon. Among the evidence the Government intends to use against Mercery are the fruits gathered from the search and seizure of evidеnce authorized under the Geolocation and Instagram Warrants. These search warrants arise out of Mercery‘s alleged criminal conduct on
Repo Men Incident
On September 23, 2020, Athens-Clarke County Police Department (“ACCPD“) officers responded to a reported aggravated assault where the driver of a white 2011 Honda Accord fired three gunshots at two individuals attempting to lawfully repossess the car. After the Honda fled the area, an ACCPD patrol officer attempted to conduct a traffic stop. After a brief pursuit, the driver fled the Honda on foot into a residential community. Officers located multiple items addressed to Defendant Mеrcery inside the Honda, and the pursuing officer positively identified the individual as Defendant Mercery. Thus, state arrest warrants for aggravated assault were issued for Mercery.
Domestic Assault Incident
Less than a month later, on October 16, 2020, ACCPD officers responded to a complaint about a domestic dispute. The victim told the officers that early that day, her boyfriend, Defendant Mercery, had physically assaulted her and tried to force her to perform acts of sodomy at gunpoint. She described the firearm that the Defendant used against her as a pistol with an extended magazine and a “beam.” ACCPD detectives obtained state warrants charging Defendant Merсery with aggravated assault with a firearm, aggravated assault by strangulation, battery, false imprisonment, possession of a firearm by a convicted felon, possession of a firearm during the commission of a felony, and attempted aggravated sodomy.
Geolocation Warrant
ACCPD officers were unable to locate Mercery to place him under arrest for the state warrants issued after the Repo Men Incident and the Domestic Assault Incident. Five days after the Domestic Assault Incident, on October 21, 2020, ACCPD Sergeant Dana Frost—who is also deputized as a Task Force Agent assigned to the FBI Middle Georgia Safe Streets Gang Task Force in Athens, Georgia—met with an FBI cоnfidential source (“CS“). The CS provided Frost with a cell phone number the CS believed Defendant Mercery was using. Thus, on October 23, 2020, Frost applied for and obtained the Geolocation Warrant from Athens-Clarke County Superior Court Judge Eric Norris authorizing law enforcement to track the geolocation of Mercery‘s cell phone.
Hull Incident
On October 26, 2020, the geolocation data led officers to an apartment in Athens rented by Shownica Hull. Officers called Ms. Hull and requested that she exit her apartment. Once Hull was outside her apartment, she told officers that Defendant Mercery was inside her apartment with two other adult males. Mercery аnd the other two males exited the apartment,
Hull provided agents verbal and written consent to search her apartment. Officers located a black Glock .40 caliber pistol, Model: 22, Serial Number: DLM710, on top of a kitchen cabinet. The Glock was loaded with a bullet in the chamber, and it had an extended magazine and was equipped with a laser sight, matching the description of the gun Mercery‘s girlfriend said he used in assaulting her ten days earlier on October 16, 2020.
Instagram Warrant
On November 16, 2020, Sergeant Frost applied for and obtained a warrant from Athens-Clarke County Superior Court Judge Eric Norris to search Mercery‘s Instagram account. In his affidavit, Frost detailed the Repo Men Incident, the Domestic Assault Incident, and the Hull Incident. Frost also explained that he reviewed the publicly available content on an Instagram account named https://www.instagram.com/sstunt_devasi and believed it belonged to Mercery based on Frost‘s personal familiarity with Mercery and his observation of multiple photos of Mercery posted on the account.
Photos and videos received under the Instagram warrant showed mercery in possession of what appeared to be the .40 caliber pistol recovered from Hull‘s apartment on October 26, 2020, and showed him holding what appeared to be an AR-15 style rifle at an indoor shooting range on August 25, 2020.
Mercery now seeks to suppress all evidence seized under the Geolocation and Instagram Warrants.
DISCUSSION
The
A. Geolocation Warrant
Mercery argues the fruits from the search of his geolocation data must be suppressed because Sergeant Frost knowingly omitted material information about the CS‘s felony criminal history which would have affected the issuing judge‘s probable cause determination.5 The Court disagrees. Even assuming Frost‘s omission was deliberate and material, the affidavit provides other information that corroborates the CS‘s reliability and provides sufficient probable cаuse to justify issuance of the Geolocation Warrant.
In his affidavit in support of the Geolocation Warrant, Sergeant Frost detailed
On October 21, 2020 Task Force Agent Dana Frost was in contact with a confidential source of the Federal Bureau of Investigation. This source has provided information to Frost that has resulted in the seizure of illegal drugs. Said source is also seeking to provide substantial assistance to law enforcement in connection with pоtential criminal charges. On this occasion the confidential source told Frost that it was aware than an individual it knows as “Stunt” is wanted by law enforcement. The confidential source further identified “Stunt” as Cedric Mercery. The confidential source provided (706) 380-9477 as Mercery‘s phone number. Additionally, the same said source told Frost that Mercery was currently located in Rocksprings Homes and provided a clothing description. Officers went to Rocksprings Homes and observed Mercery as he was described but were unable to take him into custody.6
“Probable cause exists when under the totality-of-the-circumstances there is a fair probability that contraband or evidence of a crime will be found in a particular place.”7 “For an officer‘s affidavit to support probable cause, it cannot be ‘a mere conclusory statement that gives the [issuing] judge virtually no basis at all for making judgment regarding probable cause,’ but rather ‘must provide the [issuing] judge with a substantial basis for making that judgment.‘”8
In examining the sufficiency of an affidavit based on information provided by an informant, “the informant‘s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.”9 The factors are to be “understood as relevant considerations in the totality-of-the-circumstances anаlysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.”10
Even if an affidavit omits felony convictions and “numerous bad acts” of an informant, if it contains other information that corroborates an informant‘s credibility, it is not so defective so as to be lacking in probable cause.11 Indeed, if an “affidavit contains detailed, firsthand information that is specific in its allegations, and is therefore self-corroborating,” the affidavit is “sufficient on its face to support [a] finding of prоbable cause by the [issuing judge].”12
Here, the omission of the CS‘s criminal history does not affect the probable cause determination because the affidavit provides other information that corroborates
Even if the Court were to find Frost‘s failure to include the CS‘s criminal history undermines the probable cause finding, the evidence seized pursuant to the warrant would nevertheless be admissible under the good-faith exception to the exclusionary rule under United States v. Leon.15
Under Leon, where officers have an objective basis to rely in good faith on a facially valid warrant, the evidence secured thereunder should not be suppressed even if the warrant ultimately turns out to be defective.16 Only in four speсific situations is the good-faith exception inapplicable: (1) where the issuing magistrate or judge was misled by information in an affidavit that the affiant knew was false; (2) where the judicial officer that issued the warrant “wholly abandoned his judicial role“; (3) where the warrant is based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable“; and (4) where the warrant issued is “so facially deficient . . . that the executing officers cannot reasonably presume it to be valid.”17 To justify suppression of the evidence, “the alleged deliberate or reckless failure to include material information in the affidavit must conceal information that would defeat probable cause.”18
Even if the Court found that Sergeant Frost‘s omission was both deliberate and material it would not defeat probable cause. In the hearing on December 15, 2020, Frost testified that the CS had never provided him with false statements or information, and the CS was not working for payment.19 Moreover, Frost testified that
B. Instagram Warrant
Mercery also seeks to suppress the fruits of the search authorized by the Instagram Warrant. Mercery argues the Instagram Warrant is not tailored to the probable cause established in its supporting affidavit and instead requires Instagram to disclose virtually every type of data to be found in a social media account.20 Thus, the warrant is unconstitutionally overbroad and cannot be saved under Leon‘s good faith exception because the warrant is so facially deficient, no reasonable officer could rely on it. The Court agrees.
1. Affidavit and Warrant
On November 16, 2020, Sergeant Frost presented his affidavit in support of the search warrant for Defendant‘s Instagram account to Athens-Clarke County Superior Court Judge Norris. In the affidavit, Frost details his extensive law enforcement background and Mercery‘s alleged criminal conduct in the Repo Men Incident on September 23, 2020; the Domestic Assault Incident on October 16, 2020; and the Hull Incident on October 26, 2020. As in his affidavit in support of the Geolocation Warrant, Frost states that he met with a CS who had provided information that resulted in the seizure of illegal drugs and identified Mercery as “Stunt.”21
Frost then stated that he reviewed the publicly available information he found in the Instagram account https://www.instagram.com/sstunt_devasi, and hе believed that the account belonged to Cedric Demon Mercery based on his familiarity
Frost stated that based on his experience and training he “knows that individuals involved in the purchasing, use, and distribution of illegal drugs” will (1) “use social media such as Instagram to communicate with suppliers and customers“; (2) “often use the messaging feature of Instagram to arrange meetings, discuss amounts and prices of illegal drug sales and conduсt other drug related business“; and (3) “often use Instagram to contact suppliers and customers, and often keep names or Instagram ‘handles’ associated with their Instagram account.”24
Based on Frost‘s Affidavit, the judge authorized the Instagram Warrant. The warrant requires Instagram, LLC to disclose the following eighteen categories of information related to https://www.instagram.com/sstunt_devasi:
- All identity and contact information, including full name, e-mail address, physical address (including city, state, and zip code), date of birth, phone numbers, gender, hometown, occupation, and other personal identifiers;
- All past and current usernames associated with the account;
- The dates and times at which the account and profilе were created, and the Internet Protocol (“IP“) address at the time of sign-up;
- All activity logs including IP logs and other documents showing the IP address, date, and time of each login to the account, as well as any other log file information;
- All information regarding the particular device or devices used to login to or access the account, including all device identifier information or cookie information, including all information about the particular device or devices used to access the account and the date and time of those accesses;
- All data and information associated with the profile page, inсluding photographs, “bios,” and profile backgrounds and themes;
- All communications or other messages sent or received by the account October 26, 2019, until October 26, 2020;
- All user content created, uploaded, or shared by the account, including any comments made by the account on photographs or other content October 26, 2019, until October 26, 2020.
- All photographs and images in the user gallery for the account;
- All location data associated with the ac[count] October 26, 2019 until October 26, 2020 including geotags March 16, 2019 until March 16, 2020;
- All data and information that been deleted by the user October 26, 2019 until October 26, 2020.
- A list of all of the people that the user follows on Instagram and all people who are following the user (i.e., the user‘s “following” list and “followers” list), as well as any friends of the user;
-
A list of all users that the account has “unfollowed” or blocked; - All privacy and account settings;
- All records of Instagram searches performed by the account, including all past searches saved by the account October 26, 2019 until October 26, 2020;
- All information about connections between the account and third-party websites and applications; and,
- All records pertaining to communications between Instagram, LLC and any person regarding the user or the user‘s Instagram account, including contacts with support services, and all records of actions taken, including suspensions of the account.
- Identify all linked by machine cookie data, as well as all other accounts associated by recovery email and/or phone number.25
The warrant states that all such information “is being possessed as evidence of a violation of Georgia law, namely:
2. Analysis
a. Overbreadth
“The
The Eleventh Circuit addressed overbroad social media warrants in United States v. Blake, and signaled that warrants requiring social media sites like Facebook to disclose “virtually every kind of data that could be found in a social media account” are overbroad and unconstitutional.29 The Blake panel ultimately did not decide whether the Facebook warrants violated the
In Blake, the government successfully obtained two warrants which required Facebook to disclose such broad data as “every private instant message [the defendant] had ever sent or received, every IP address she had ever logged in from, every photograph she had ever uploaded or been ‘tagged’ in, every private or public group she had ever been a member of, every search on the website she had ever conducted, and every purchase she had ever made through ‘Facebook Marketplace,’ as well as her entire contact list.”31 The compelled disclosure was not limited to the period of time that the crime allegedly occurred, nor was it limited to the evidence of the crime. The warrants’ only limitation
The Blake panel reasoned that the Facebook warrants were troublesome because they “required disclosure to the government of virtually every kind of data that could be found in a social media account. And unnecessarily so.”33 The warrants could have limited the search of private messages to only those sent or received from persons suspected of being involved with the offense.34 And “the warrants should have requested data only from the period of time during which [the defendant] was suspected of taking part in the [offense].”35 “Disclosures consistent with those limitations might then have provided probable cause for a broader, although still targeted, search of [the defendant‘s] Facebook account. That procedure would have undermined any claim that the Facebook warrants were the internet-era version of a ‘general warrant.‘”36 The panel was unconvinced the government‘s reliance on cases where law enforcement seized a hard drive from a defendant‘s home and then later searched it at the government‘s office were applicable in the social media account context. “When it comes to Faсebook account searches, the government need only send a request with the specific data sought and Facebook will respond with precisely that data.”37
Like the warrants described in Blake, the Instagram Warrant is unnecessarily overbroad. The compelled disclosure is not tailored to evidence of the crimes under investigation, the time period during which Mercery allegedly committed the crimes, or the persons allegedly involved in the crimes. Instead, the warrant amounts to a general rummage of Mercery‘s entire Instagram account. Sergeant Frost‘s affidavit identifies three specific crimes involving the use of firearms in September and October 2020, and the warrant states that all information is being possessed as evidence of possession of a firearm by a convicted felon. But the warrant compels Instagram to produce eighteen broad categories of information. Although five of the categories have a date limitation going back to October 2019 (a year before the criminal activity identified in the affidavit) the breadth of the other thirteen categories effectively nullifies these temporal restrictions. Like in Blake, the warrant here requires Instagram to disclose virtually every type of data associated with Mercery‘s account including “all data and information associated with the profile page“; every Internet Protocol (“IP“) address he has ever logged in from; every photograph and image on the account; every person Mercery follows, has unfollowed, or blocked, and every person who follows or has unfollowed or blocked Mercery; all account settings and cookie data; every “connection” between the account and third-party websites; and every communication between Instagram and any person “regarding” Mercery or his account.38
Indeed, the Instagram Warrant is even broader than the warrants described in Blake. The Facebook warrants in Blake contained a limitation that “after all the
Under
The Instagram Warrant authorizes the government to search and seize data that is not related to the probable cause established in Sergeant Frost‘s affidavit. It allows officers to search and seize virtually all of the information on Mercery‘s Instagram account, with no temporal limitations or limitatiоns defined by the crime of possession of a firearm by a convicted felon. Such warrant is akin to a general warrant and therefore violates the
b. Good Faith
When evidence is obtained in violation of the
“[T]he fact that a neutral [judge] has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner or in objective good faith.”42 “[T]o trigger the exclusionary rule,” the law enforcement conduct in question, “must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”43 Because the “sole purpose” of the exclusionary rule is to deter future
The Court cannot find law enforcement reasonably relied in good faith on the judge‘s determination that there was probable cause to issue the Instagram Warrant, and excluding the evidence obtained under the warrant will further the purpose of the exclusionary rule to deter future
First, the Eleventh Circuit in Blake put law enforcement on notice that warrants authorizing the type of broad search of social media accounts like the one in this case are overbroad. The Eleventh Circuit decided Blake in August 2017, over three years before the Instagram warrant was issued in this case. And unlike the warrants in Blake that “may have violated the particularity requirement,” and were “a close enough question,” the Instagram Warrant clearly violates the
Second, not only is the Instagram Warrant overbroad in describing what Instagram is compelled to produce, it contains no limitation on what the government can seize from the broad production of data. Indeed, the Instagram Warrant is broader than any social media warrant other courts have found violated the
Finally, and most important, excluding the evidence obtained under the unconstitutional warrant will deter future violations. Social media networks like Instagram and Facebook are an ever-increasing form of communication and hubs of personal information for which law enforcement routinely seek and obtain search warrants. Officers need to know that a warrant must provide guidelines for determining what evidence may be searched and seized and must be tailored to the probable cause established in the supporting affidavit. Thus, the Court finds the good faith exception inapplicable under the circumstances here, and Defendant‘s Motion to Suppress evidence seized pursuant to the Instagram Warrant is GRANTED.
CONCLUSION
For the foregoing reasons, Mercery‘s Motion to Suppress evidence seized pursuant to the Geolocation Warrant [Doc. 46] is DENIED, and his Motion to Suppress evidence seized pursuant to the Instagram Warrant [Doc. 33] is GRANTED.
S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT