United States v. Smith

1

UNITED STATES OF AMERICA, Plaintiff, v. LADELE D. SMITH, Defendant.

No. 19-00315-01-CR-W-DGK

United States District Court, W.D. Missouri, Western Division

July 28, 2022

REPORT AND RECOMMENDATION TO DENY DEFENDANT SMITH'S MOTIONS TO SUPPRESS

JILL A. MORRIS UNITED STATES MAGISTRATE JUDGE

Before the Court are Defendant Smith's Motion to Suppress Evidence Seized Pursuant to Search Warrant Obtained for Social Media Records and Motion to Suppress Evidence Seized Pursuant to an Order Authorizing Interception of Wire and Electronic Communications. Defendant moves the Court to suppress all evidence obtained pursuant to warrants for his social media accounts as well as any evidence obtained pursuant to February 26, 2019, and June 13, 2019, wiretaps. For the following reasons, Defendant's motions should be denied.

I. INTRODUCTION

On October 1, 2019, an Indictment was returned charging Defendant Smith with one count of conspiracy to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (B), (C), (D) & 846, and one count of maintaining a drug-involved premises, in violation of 21 U.S.C. § 856(a)(1) and (b). (Doc. 1) On October 13 2020, a Superseding Indictment was returned that added the following charges against Defendant Smith: one count of conspiracy to possess firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(o); one count of possessing firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i); one count of drive-by shooting, in violation of 18 U.S.C. § 36; one count of discharging a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii); one count of distribution of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D); one count of distribution of marijuana near a school, in violation of 21 U.S.C. §§ 841(a)(1) and 860; four counts of distribution of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and (b)(1)(C); and four counts of distribution of heroin near a school, in violation of 21 U.S.C. §§ 841(a)(1) and 860. (Doc. 234)

On June 21, 2022, Defendant Smith filed a motion to file the instant suppression motions out of time. (Doc. 641) After reviewing the Government's opposition, the Court granted Defendant's motion.^[1] (Docs. 652, 661) Defendant's suppression motions were filed on June 24, 2022. (Docs. 667, 668) The Government filed a consolidated response on July 7, 2022. (Doc. No. 686) On July 8, 2022, a joint evidentiary hearing^[2] was held on the limited issue of the scope of the search as it related to the social media records.^[3] (Doc. 687) The Government appeared by Assistant United States Attorneys Ashleigh Ragner and Ben Hurst. Defendant Franklin was present, represented by appointed counsel Justin Johnston. Defendant Smith was present, represented by appointed counsel Angela Hasty. The Government called FBI Special Agent Douglas McKelway to testify. The following exhibits were admitted into evidence:

Government's Exhibit 1: Search Warrant 18-SW-00222-JTM (Smith Instagram);

Government's Exhibit 2: Search Warrant 18-SW-00337-REL (R. Franklin Instagram);

Government's Exhibit 3: Title III Order and Documents: 19-WT-00001-RK for Target Telephone 1 (T. Garner);

Government's Exhibit 4: Title III Order and Documents: 19-WT-00003-RK for Target Telephone 6 (R. Franklin);

Government's Exhibit 5: Title III Order and Documents: 19-WT-00003-RK for Target Telephones 8 (Martin)^[4] & 9 (R. Franklin);

Government's Exhibit 6: Search Warrant 18-SW-00223-JTM (Smith YouTube);

Government's Exhibit 7: Search Warrant 18-SW-00362-JTM (Smith Snapchat); and

Government's Exhibit 8: Instagram Business Record (FBI193_00001 and FBI314_00001) (Smith & R. Franklin).

II. FINDINGS OF FACT

On the basis of the evidence presented at the suppression hearing, the undersigned submits the following proposed findings of fact:

1. Douglas McKelway is a Special Agent with the FBI and is currently assigned to the Violent Crimes Squad. (Tr. at 15) Special Agent McKelway is the case agent in this matter. (Tr. at 16)

2. Special Agent McKelway has been with the FBI since 2016. As a Special Agent assigned to the Violent Crime/Gang Squad, his official duties include, but are not limited to, investigation into gangs, criminal violations of the Controlled Substances Act, violent offenses, organized crime, and ongoing criminal enterprises. During his tenure with the FBI, he has participated in numerous gang and controlled substance violation investigations. While conducting such investigations, he has been the affiant on Title III intercepts, pen registers, and Global Positioning System (GPS) cellular telephone tracking warrants. He has conducted extensive interviews, controlled drug purchases, surveillance, and served search and arrest warrants. He has received specialized training in the enforcement of federal controlled substances laws as well as on conducting Title III investigations. (Gvt. Exh. 2, ¶ 4 at WARR_01588-WARR_01589; Gvt. Exh. 7, ¶ 4 at WARR_01684-WARR_01685)

3. Special Agent McKelway's training and experience with the FBI has involved, inter alia: (a) the debriefing of defendants, witnesses, and informants, as well as others who have knowledge of the distribution and transportation of controlled substances, and the laundering and concealment of proceeds of drug trafficking; (b) surveillance; (c) analysis of documentary and physical evidence; and (d) participation in wire intercept investigations. Based on his training and experience, Special Agent McKelway has become familiar with the manner in which illegal drug traffickers conduct their drug-related businesses, including the methods employed by drug dealers to import and distribute illegal drugs, and their use of coded language to refer to illegal drugs, drug proceeds, and other aspects of illegal drug trafficking. He has been personally involved in numerous investigations involving the unlawful possession, manufacture, distribution, and smuggling of controlled substances. (Gvt. Exh. 2, ¶ 4 at WARR_01589; Gvt. Exh. 7, ¶ 4 at WARR_01684-WARR_01685)

4. On June 12, 2018, United States Magistrate Judge Matt J. Whitworth signed a search warrant for Defendant Smith's Instagram account. (Tr. at 25; Gvt. Exh. 1) The warrant application sought to search Defendant Smith's Instagram account, associated with the vanity names “dogg_246”, “dellio_4”, “dellio_246” and “Del_Chapo_”, for evidence concerning violations of possession with the intent to distribute/distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1), and money laundering, in violation of 18 U.S.C. §§ 1956, 1957. (Gvt. Exh. 1) The executed warrant was provided to Facebook, along with Attachment A. (Tr. at 52) A separate warrant, supported by the same affidavit, was issued for Defendant's YouTube account the same date. (Gvt. Exh. 6)

5. In response to the search warrant for Defendant Smith's Instagram account, Facebook provided data for the date range of June 7, 2017, through June 12, 2018. (Tr. at 23-24, 25; Gvt. Exh. 8 at FBI193_00001)

6. On September 26, 2018, Special Agent McKelway submitted a search warrant application to United States Magistrate Judge Robert E. Larsen. (Gvt. Exh. 2) The warrant application sought to search Defendant Franklin's Instagram account, associated with the vanity name “Drankvett,” for evidence concerning violations of possession with the intent to distribute/distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1), and money laundering, in violation of 18 U.S.C. §§ 1956, 1957. (Gvt. Exh. 2) Paragraph 16 of the affidavit advises, and includes through Attachment B, that a search warrant for Ladele Smith's Instagram accounts had been obtained. (Gvt. Exh. 2)

7. The items to be seized pursuant to the warrant application were incorporated through Attachment A, which identified the particular thing to be seized for the date range of January 1, 2017, through the then-present date. (Gvt. Exh. 2 at WARR_01608-WARR_01612)

8. Judge Larsen signed the search warrant for Defendant Franklin's Instagram account on September 26, 2018. (Tr. at 25-26; Gvt. Exh. 2)

9. The executed warrant, along with Attachment A, was provided to Facebook. (Tr. at 52; Gvt. Exh. 2 at WARR_01535-WARR_1541) 10. Facebook owns Instagram. (Tr. at 17)

11. In response to the search warrant for Defendant Roy Franklin's Instagram account, Facebook provided data for the date range of September 26, 2017, through September 26, 2018. (Tr. at 24, 25; Gvt. Exh. 8 at FBI314_00001)

12. Special Agent McKelway testified that the general procedure when investigators obtain a search warrant for an Instagram account involves submitting the signed warrant to Facebook through an online portal. (Tr. at 16-17) Upon receiving notification that the responsive data is ready, investigators download the data from the portal both in .pdf and .html format. (Tr. at 17, 29)

13. FBI investigators then upload the .html files into a program called “Mint.” (Tr. at 17) Mint enables investigators to more easily review and narrow data. (Tr. at 18, 29) Specifically, the program allows investigators to rank the Instagram user's contacts, filter data through keywords and locations, view results chronologically, and compare multiple data sets from different social media accounts. (Tr. at 18, 22, 38)

14. Special Agent McKelway testified that when the data provided by Facebook includes photographs, investigators look at each one because Mint does not provide a filtering mechanism for photographs. (Tr. at 19) Additionally, performing an individual review of the photographs is valuable to investigators because it may provide relevant information not retrievable by keyword ...