Petition for Writ of Certiorari — Moises Orlando Zelaya-Veliz, Jose Eliezar Molina-Veliz, Luis Alberto Gonzales, Gilberto Morales, and Jonathan Rafael Zelaya-Veliz, Petitioners v. United States
Supreme Court briefJul 12, 2024
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No. 24In the
Supreme Court of the United States
MOISES ORLANDO ZELAYA-VELIZ, JOSE ELIEZAR MOLINA-VELIZ,
LUIS ALBERTO GONZALES, GILBERTO MORALES, AND
JONATHAN RAFAEL ZELAYA-VELIZ,
Petitioners,
v.
UNITED STATES,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of A ppeals for the Fourth Circuit
PETITION FOR WRIT OF CERTIORARI
Donna L. Biderman
Law Office of Donna Biderman
4015 Chain Bridge Road, Suite 38
Fairfax, VA 22030
Counsel for Petitioner
Mr. Gilberto Morales
Jeffrey Zimmerman
Jeffrey Zimmerman, PLLC
108 North Alfred Street
Alexandria, VA 22314
Counsel for Petitioner
Mr. Luis Alberto Gonzalez
Donald E. Harris
Harris Law Firm
2800 Eisenhower Avenue, Suite 220
Alexandria, VA 22314
Counsel for Petitioner
Mr. Jose Eliezar Molina-Veliz
330446
Joseph D. King
Counsel of Record
King, Campbell, Poretz
& Mitchell PLLC
118 North Alfred Street
Alexandria, VA 22314
(703) 683-7070
jking@kingcampbell.com
Counsel for Petitioner
Mr. Moises Zelaya-Veliz
Christopher A molsch
12005 Sunrise Valley Drive,
Suite 200
Reston, VA 20191
Counsel for Petitioner
Mr. Jonathan Rafael Zelaya-Veliz
A
(800) 274-3321 • (800) 359-6859
QUESTIONS PRESENTED
1.
Does the Fourth Amendment prohibit the issuance of apparent “all-data”
warrants for Facebook accounts without any temporal limitation whatsoever,
where the warrants resulted in exposing potentially more than a decade of the
subject’s personal information and communications to government scrutiny?1
2.
Does the Fourth Amendment prohibit the issuance of apparent “all-data”
warrants for Facebook accounts for a period of 18 months or longer, where the
warrants demanded all conceivable contents of the accounts during that time
period, including the account owners’ GPS information for eight months prior
to the alleged crimes, even though the alleged incidents occurred over a less
than a two-month period?2
1 This question presented pertains to Petitioner Luis Alberto Gonzalez.
This question presented pertains to Petitioners Moises Zelaya-Veliz, Jonathan
Rafael Zelaya-Veliz, Gilberto Morales and Jose Eliezar Molina-Veliz.
2
STATEMENT OF RELATED CASES
•
United States v. Moises Zelaya-Veliz, 1:20-cr-196-AJT-1, U.S. District Court for
the Eastern District of Virginia. Judgement entered on November 10, 2022.
•
United States v. Jonathan Rafael Zelaya-Veliz, 1:20-cr-196-AJT-10, U.S. District
Court for the Eastern District of Virginia. Judgement entered on November 10,
2022.
•
United States v. Gilberto Morales, 1:20-cr-196-AJT-9, U.S. District Court for the
Eastern District of Virginia. Judgement entered on November 10, 2022.
•
United States v. Luis Alberto Gonzales, 1:20-cr-196-AJT-6, U.S. District Court for
the Eastern District of Virginia. Judgement entered on November 10, 2022.
•
United States v. Jose Eliezer Molina-Veliz, 1:20-cr-196-AJT-4, U.S. District Court
for the Eastern District of Virginia. Judgement entered on November 10, 2022.
•
United States v. Moises Zelaya-Veliz, No. 22-4656, U. S. Court of Appeals for the
Fourth Circuit. Judgment entered on February 16, 2024. Petition for rehearing
denied on March 15, 2024.
•
United States v. Jonathan Rafael Zelaya-Veliz, No. 22-4659, U. S. Court of
Appeals for the Fourth Circuit. Judgement entered on February 16, 2024.
Petition for rehearing denied on March 15, 2024.
•
United States v. Gilberto Morales, No. 22-4669, U. S. Court of Appeals for the
Fourth Circuit. Judgement entered on February 16, 2024. Petition for rehearing
denied on March 15, 2024.
ii
•
United States v. Luis Alberto Gonzales, No. 22-4670, U. S. Court of Appeals for
the Fourth Circuit. Judgement entered on February 16, 2024. Petition for
rehearing denied on March 15, 2024.
•
United States v. Jose Eliezer Molina-Veliz, No. 22-4684, U. S. Court of Appeals
for the Fourth Circuit. Judgement entered on February 16, 2024. Petition for
rehearing denied on March 15, 2024.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................................................................... i
STATEMENT OF RELATED CASES .......................................................................... ii
TABLE OF CONTENTS ............................................................................................... iv
TABLE OF APPENDICES ............................................................................................ v
TABLE OF CITED AUTHORITIES ............................................................................ vi
PETITION FOR A WRIT OF CERTIORARI ................................................................ 1
OPINIONS BELOW ...................................................................................................... 1
JURISDICTION............................................................................................................. 1
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ....................... 2
STATEMENT OF THE CASE ....................................................................................... 2
REASONS FOR GRANTING THE WRIT .................................................................. 15
I.
THIS CASE PRESENTS IMPORTANT FEDERAL
QUESTIONS .......................................................................................... 16
II.
THE FOURTH CIRCUIT’S DECISION CONFLICTS WITH
OTHER CIRCUIT COURT, DISTRICT COURT, AND STATE
COURT DECISIONS ............................................................................. 20
A.
The Circuit Divide ....................................................................... 21
B.
The District Court Divide ............................................................ 28
C.
State Court Decisions .................................................................. 30
III.
THIS CASE IS AN APPROPRIATE VEHICLE FOR
DETERMINATION OF THE QUESTIONS PRESENTED.................. 33
IV.
THE WARRANTS IN THE INSTANT CASE WERE
UNCONSTITUTIONALLY OVERBROAD ........................................... 34
CONCLUSION............................................................................................................. 37
iv
TABLE OF APPENDICES
Page
OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE
FOURTH CIRCUIT, FILED FEBRUARY 16, 2024 ........................................ 1a
EXCERPT OF TRANSCRIPT OF THE UNITED STATES DISTRICT
COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA
DIVISION, DATED OCTOBER 27, 2021 ...................................................... 40a
EXCERPT OF TRANSCRIPT OF THE UNITED STATES DISTRICT
COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA
DIVISION, FILED JANUARY 9, 2023 .......................................................... 45a
DENIAL OF REHEARING OF THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT, FILED MARCH 15, 2024 ......... 59a
v
TABLE OF CITED AUTHORITIES
Page(s)
Cases:
Burns v. United States,
235 A.3d 758 (D.C. 2020) .................................................................................. 31
Commonwealth v. Holley,
87 N.E.3d 77 (Mass. 2017) ................................................................................ 32
Coolidge v. New Hampshire,
403 U.S. 443 (1971) ..................................................................................... 15, 36
Hedgepath v. Commonwealth,
441 S.W.3d 119 (Ky. 2014) ................................................................................ 32
Kentucky v. King,
563 U.S. 452 (2011) ........................................................................................... 15
Marron v. United States,
275 U.S. 192 (1927) ..................................................................................... 18, 27
Matter of Black iPhone 4,
27 F. Supp. 3d 74 (D.D.C. 2014) ....................................................................... 28
People v. Clarke,
156 N.Y.S.3d 830 (N.Y. Sup. Ct. 2021) ............................................................. 32
Richardson v. State,
481 Md. 423, 282 A.3d 98 (2022) ...................................................................... 31
Riley v. California,
134 S. Ct. 2473 (2014) ................................................................................. 14, 18
Riley v. California,
573 U.S. 373 (2014) ................................................................... 15, 16, 34, 35, 36
State v. Bock,
310 Or. App. 329, 485 P.3d 931 (2021) ............................................................. 32
State v. Castagnola,
46 N.E.3d 638 (Ohio 2015) ................................................................................ 32
State v. Henderson,
854 N.W.2d 616 (Neb. 2014) ....................................................................... 31, 32
State v. Keodara,
364 P.3d 777 (Wash. App. 2015) ....................................................................... 31
State v. Smith,
344 Conn. 229, 278 A.3d 481 (2022) ................................................................. 31
vi
Taylor v. State,
260 A.3d 602 (Del. 2021) ................................................................................... 31
United States v. Abboud,
438 F.3d 554 (6th Cir. 2006) .............................................................................. 24
United States v. Abrams,
615 F.2d 541 (1st Cir. 1980) ........................................................................ 22, 28
United States v. Bass,
785 F.3d 1043 (6th Cir. 2015) ............................................................................ 24
United States v. Bishop,
910 F.3d 335 (7th Cir. 2018) ........................................................................ 26, 31
United States v. Blake,
868 F.3d 960 (11th Cir. 2017) .......................................................... 17, 21, 22, 36
United States v. Burgess,
576 F.3d 1078 (10th Cir. 2009) .......................................................................... 27
United States v. Burkhow,
No. 19-CR-59, 2020 WL 589536
(N.D. Iowa Feb. 6, 2020) ................................................................................... 28
United States v. Chavez,
423 F. Supp. 3d 194 (W.D.N.C. 2019) .............................................................. 28
United States v. Cobb,
970 F.3d 319 (4th Cir. 2020) ....................................................................... 25, 31
United States v. Daprato,
2022 WL 1303110 (D.Me. 2022) ....................................................................... 29
United States v. Franklin,
2022 WL 3572498 (W.D. Mo. Aug. 18, 2022) ................................................... 29
United States v. Ford,
184 F.3d 566 (6th Cir. 1999) ........................................................................ 23, 24
United States v. Kamara,
2023 WL 8357946 (E.D. Va. Dec. 1, 2023) ....................................................... 31
United States v. Kow,
58 F.3d 423 (9th Cir. 1995) ................................................................................ 22
United States v. Lazar,
604 F.3d 230 (6th Cir. 2010) .............................................................................. 24
United States v. Leary,
846 F.2d 592 (10th Cir. 1988) ............................................................................ 26
vii
United States v. Leon,
468 U.S. 897 (1984) ........................................................................................... 14
United States v. Loera,
923 F.3d 907 (10th Cir. 2019) ...................................................................... 26, 27
United States v. Mann,
592 F.3d 779 (7th Cir. 2010) .............................................................................. 26
United States v. Mercery,
591 F. Supp. 3d 1369 (M.D. Ga. 2022) ............................................................. 28
United States v. Moises Zelaya-Veliz, et al.,
94 F.4th 321 (2024) ..................................................................... 1, 13, 18, 21, 34
United States v. Payton,
573 F.3d 859 (9th Cir. 2009) .............................................................................. 18
United States v. Rosa,
626 F.3d 56 (2nd Cir. 2010) ................................................................................ 23
United States v. Russian,
848 F.3d 1239 (10th Cir. 2017) .......................................................................... 26
United States v. Sharp,
2015 WL 4641537 (N.D. Ga. Aug. 5, 2015) ...................................................... 30
United States v. Shipp,
392 F. Supp. 3d 300, 308 (E.D.N.Y. 2019),
aff’d, 2d Cir. No. 21-1284-CR,
2022 WL 16543193 (2nd Cir. Oct. 31, 2022).......................................... 17, 18, 29
United States v. Skinner,
2021 WL 1725543 (E.D. Va. Apr. 29, 2021) ..................................................... 29
United States v. Stabile,
633 F.3d 219 (3rd Cir. 2011) .............................................................................. 25
United States v. Westley,
2018 WL 3448161 (D. Conn. July 17, 2018) ..................................................... 30
United States v. Williams,
592 F.3d 511 (4th Cir. 2010) .............................................................................. 25
United States v. Winn,
79 F. Supp. 3d 904 (S.D. Ill. 2015).................................................................... 28
United States v. Yusuf,
461 F.3d 374 (3rd Cir. 2006) .............................................................................. 25
Wheeler v. State,
135 A.3d 282 (Del. 2016) ............................................................................. 25, 31
viii
Statutes & Other Authorities:
U.S. CONST. amend. IV ...................................................................... 2, 9, 13, 16, 20, 21
18 U.S.C. § 1591(a) ........................................................................................................ 2
18 U.S.C. § 1591(b)(1) .................................................................................................... 2
18 U.S.C. § 1591(c) ......................................................................................................... 2
18 U.S.C. § 1594(c) ......................................................................................................... 2
18 U.S.C. § 1951(a) .................................................................................................... 2, 7
18 U.S.C. § 1951(b)(1) ................................................................................................ 2, 7
18 U.S.C. § 1951(c) ...................................................................................................... 2,7
18 U.S.C. § 1952 ............................................................................................................. 7
18 U.S.C. § 1959(a)(3) .................................................................................................... 7
18 U.S.C. § 2421 ............................................................................................................. 7
18 U.S.C. § 2422(a) ........................................................................................................ 7
18 U.S.C. § 2423(a) ..................................................................................................... 2,7
18 U.S.C. § 2423(e)......................................................................................................... 2
28 U.S.C. § 1254(a) ........................................................................................................ 2
Fed. R. Crim. P. 41(e)(2)(B) ......................................................................................... 13
U.S. Sup. Ct. R. 10(a) ................................................................................................... 20
U.S. Sup. Ct. R. 10(c) ................................................................................................... 20
About Mark Zuckerberg, Founder, Chairman and Chief Executive Officer of
Meta at https://about.meta.com/media-gallery/executives/markzuckerberg/ .......................................................................................................... 8
Pew Research Center, Americans’ Social Media Use
(https://www.pewresearch.org/internet/2024/01/31/americans-socialmedia-use/) ........................................................................................................ 16
Jack Nicas, What Data About You Can the Government Get From Big
Tech, New York Times (July 14, 2021).
https://www.nytimes.com/2021/06/14/technology/
personal-data-apple-google-facebook.html ....................................................... 16
ix
PETITION FOR A WRIT OF CERTIORARI
Petitioners Moises Zelaya-Veliz, Jonathan Rafael Zelaya-Veliz, Gilberto
Morales, Luis Alberto Gonzales, and Jose Eliezar Molina-Veliz (together
“Petitioners”) respectfully petition for a writ of certiorari to the United States Court
of Appeals for the Fourth Circuit to review the judgment against them in United
States v. Moises Zelaya-Veliz, et al., 94 F.4th 321 (2024).
OPINIONS BELOW
The opinion of the United States Court of Appeals for the Fourth Circuit
denying the Petitioners’ appeal is published at 94 F.4th 321 (4th 2024); it is
reproduced in the Appendix at 1a. The decision of the United States Court of Appeals
for the Fourth Circuit denying a petition for rehearing is unpublished; it is
reproduced in the Appendix at 59a. The United States District Court for the Eastern
District of Alexandria’s oral opinions denying the Petitioners’ motions to suppress
Facebook records are unpublished and reproduced in the Appendix at 40a and 45a.
JURISDICTION
The United States Court of Appeals for the Fourth Circuit issued its decision
denying Petitioners’ petition for rehearing on March 15, 2024, requiring the
Petitioners to file a petition for a writ of certiorari on or before June 13, 2024. On
June 6, 2024, the Petitioners filed an application to extend the time to file their
petition for a writ of certiorari until July 13, 2024. On June 11, 2024, the application
for an extension of time was granted. This petition for a writ of certiorari is timely
filed on July 12, 2024.
This Court has jurisdiction under 28 U.S.C. § 1254(a).
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
The Fourth Amendment to the United States Constitution provides that:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
U.S. Const. amend. IV.
STATEMENT OF THE CASE
In October 2020, the Petitioners were charged in a multi-count indictment with
crimes alleging gang-related sexual exploitation of E.B., a minor, in the Eastern
District of Virginia and in Maryland. JA181-197.3 The offenses alleged in the
indictment occurred between August 27, 2018, and October 11, 2018, the time period
during which E.B. had absconded from a juvenile shelter care facility in Fairfax
County, Virginia. JA181-197. All allegations relevant to the alleged conduct in the
indictment occurred during this less than two month timeframe. JA187-194.
3 JA refers to the Joint Appendix filed in the United States Court of Appeals for the
Fourth Circuit. Specifically, Petitioners Moises Zelaya-Veliz, Jonathan Rafael
Zelaya-Veliz, Luis Alberto Gonzales, and Jose Eliezar Molina-Veliz, proceeded to trial
on three counts charging: (1) Conspiracy to Sex Traffic a Minor Under Age 14 and via
Force, Fraud and Coercion in violation of 18 USC §§ 1951(a), (b)(1) and (c) & 1594(c);
(2) Sex Trafficking a Minor Under Age 14 and via Force, Fraud, and Coercion in
violation of 18 USC §§ 1591(a), (b)(1), (c) & 2; and (3) Conspiracy to Transport a Minor
with Intent to Engage in Criminal Sexual Activity in violation of 18 USC §§ 2423(a)
& (e). Petitioner Gilberto Morales proceeded to trial on two counts charging
Conspiracy to Sex Traffic a Minor Under Age 14 and via Force, Fraud and Coercion
in violation of 18 USC §§ 1951(a), (b)(1) and (c) & 1594(c), and Sex Trafficking a Minor
Under Age 14 and via Force, Fraud, and Coercion in violation of 18 USC §§ 1591(a),
(b)(1), (c) & 2. JA181.
2
During the government’s investigation into the sex trafficking allegations, FBI
Special Agent Jeremy Obie applied for and obtained a series of search warrants that
sought a laundry list of different types of data from the Petitioners’ Facebook
accounts for broad time frames. JA1353, JA1380, JA1428, JA1481. The first search
warrant was obtained on March 14, 2019, for five Facebook accounts, without any
temporal limitation, for evidence related to sex trafficking of E.B. between August 27,
2018, and October 11, 2018. JA1353. The warrant set forth nine different categories
of information to be disclosed by Facebook, including all communications related to
the account and a host of other data types (e.g., pokes, likes, gifts, tags, and “other
items”). JA1357. On June 5, 2019, Special Agent Obie obtained a second search
warrant for eight additional Facebook accounts, to include accounts linked to
Petitioner Luis Alberto Gonzales, also without any temporal limitation. JA1380. The
agent utilized the same template that had been used in the March 14, 2019 warrant,
requesting that Facebook provide data in categories that were identical to the
categories requested in the March 14, 2019 warrant. JA1357, JA1382.
On July 12, 2019, Special Agent Obie obtained a third search warrant for ten
more Facebook accounts, including data from the Facebook account of Petitioner
Moises Zelaya-Veliz. JA1428. This warrant was based on a different and more
comprehensive template, which requested a broader array of Facebook records than
the two previous warrants issued in the case. While the warrant contained a temporal
limitation limiting the disclosure of Facebook account information from January 1,
2018 (almost nine months before the offense conduct) to the date of the warrant, it
3
commanded that Facebook disclose 18 different categories of data to include “all
check-ins and location information,” which would include GPS location data4 related
to the accounts for the entire 18-plus month period. JA1475-1480. On February 20,
2020, Agent Obie obtained a fourth search warrant for 22 additional Facebook
accounts, including the accounts of the remaining Petitioners, from January 1, 2018,
to the date of the warrant. This warrant sought disclosure from Facebook for the same
18 data categories of information as the July 12, 2019, warrant. JA1481-1489.
The following table summarizes the warrants:
FACEBOOK ACCOUNT WARRANTS FOR OFFENSE CONDUCT
OCCURRING BETWEEN AUGUST 27, 2018 and OCTOBER 11, 2018
Date of Issuance
Number of
Accounts
Limitation on
Data Type Sought
Temporal
Limitation
March 14, 2019
(JA1353)
5
Laundry list of
data set forth in
the warrant
None
June 5, 2019
(JA1380)
8 (including
Same
Facebook accounts
linked to
Petitioner Luis
Gonzales)
None
4 When a person logs into a Facebook account, Facebook creates a GPS record noting
from where the account was accessed.
4
FACEBOOK ACCOUNT WARRANTS FOR OFFENSE CONDUCT
OCCURRING BETWEEN AUGUST 27, 2018 and OCTOBER 11, 2018
July 12, 2019
(JA1428)
10 (including
Facebook account
of Petitioner
Moises ZelayaVeliz)
Augmented
laundry list of
data set forth in
the warrant
February 20, 2020
(JA1481)
22 (including
Same
Facebook accounts
of Petitioners Jose
Eliezar MolinaVeliz, Luis Alberto
Gonzales,
Jonathan Rafael
Zelaya-Veliz, and
Gilberto Morales)
January 1,
2018 to July
12, 2019
January 1,
2018 to
February 20,
2020
The massive breadth of information sought is demonstrated by the particular
categories of information requested in the warrants. The categories of information
required to be disclosed by Facebook in the July 12, 2019, and February 20, 2020,
warrants were:
(a) All contact and personal identifying information including full
name, user identification number, birth date, gender, contact e-mail
addresses, Facebook passwords, Facebook security questions, and
answers, physical address (including city state and zip code), telephone
numbers, screen names, websites, device identifiers, and other personal
identifiers;
(b) All activity logs for the account and all other documents
showing the users posts and other-Facebook activities;
(c) All photos uploaded by that username or account and all
photos uploaded by any user that have that user tagged in them to
5
include metadata;
(d) All profile information; advertisement identification tied to the
specific user and user's device; News Feed information; status updates;
links to videos, photographs, articles, and other items; Notes; Wall
postings; friend lists, including the friends Facebook user identification
numbers; groups and networks of which the user is a member including
the groups’ Facebook group identification numbers; future and past
event postings; rejected Friend requests; comments; gifts; pokes; tags;
and information about the user’s access and use of Facebook
applications;
(e) All other records of communications and messages made or
received by the user, including all private messages, chat history, video
calling history, and pending Friend requests;
(f) All check ins and other location information;
(g) All IP logs including all records of the IP addresses that logged
into the account; all device identifier logs, including all records of the
device identifiers that logged into the account;
(h) All records of the account's usage of the Like feature, including
all Facebook posts and all non-Facebook webpages and content that the
user has “liked”;
(i)
All information about the Facebook pages that the account
is or was a “fan” of;
(j) All past and present lists of friends created by the account;
(k) All records of Facebook searches performed by the account;
(l) All information about the user’s access and use of Facebook
Marketplace;
(m) The types of service utilized by the user;
(n) The length of service (including start date) and the means and
source of any payments associated with the service (including any credit
card or bank account number);
(o) All privacy settings and other account settings, including
privacy settings for individual Facebook posts and activities, and all
6
records showing which Facebook users have been blocked by the
account;
(p) All records pertaining to communications between Facebook
and any person regarding the user or the user’s Facebook account,
including contacts with support services and records of actions taken;
(q) Any records associated with photos posted to the user’s
Facebook account; any records associated with Instagram photos posted
to other Facebook accounts that the user commented on or liked; and
(r) All other accounts which are forensically linked to the account
identified in Attachment A through cookies, e-mail addresses, phone
numbers, or other account information.
JA 1428 & 1481.
While the above information was required to be disclosed to government
scrutiny, all warrants purported to seize only information that “constitutes fruits,
evidence and instrumentalities” of the delineated crimes,5 including such things as
“[p]hotographs of women or girls in provocative poses, lingerie or naked women or
girls.” JA1487. In reality, based on a review of the discovery provided by the
government, the government seized what it demanded to be disclosed – the entire6
contents of the Facebook accounts, including available GPS information, photos of
the account holders’ children, private messages, birthday greetings, and a vast array
of innocent messages and private information for extended time periods in the July
2019 and February 2020 warrants and without temporal limitation for the March and
5 That is, for the warrants issued on July 12, 2019, and February 20, 2019, violations
of 18 USC §§ 1951(a), (b)(1) and (c), 18 USC § 2421, 18 USC § 2422(a), 18 USC
§ 2423(a), 18 USC § 1952, and 18 USC § 1959(a)(3). The warrants issued on June 5
and June 12, 2019 sought evidence for similar allegations.
6 The government provided to defense counsel during discovery the entire contents of
all Facebook accounts obtained by the warrants in this case.
7
June 2019 warrants.
The affidavits in support of these sweeping seizures alleged offense conduct
related to the Petitioners that occurred from August 27, 2018 to October 11, 2018.
JA1402-1403. There are no allegations in any of the affidavits to the search warrants
that the Petitioners were involved in a conspiracy or suspected in child trafficking
crimes prior to the offending conduct. Thus there is no justification for the
government requesting and obtaining Petitioners’ GPS location data and other
Facebook information from January 1, 2018, until the issuance of the warrants,
where the offending conduct was not alleged to have begun until August 2018. As to
Petitioner Luis Gonzalez, there are no allegations in the June 5, 2019 warrant
affidavit indicating that he was involved in any other criminal conduct outside the
dates of the indictment to justify the complete disclosure of his Facebook accounts
without any temporal limitation that could disclose personal communications and
information for the past 15 years or since he was a juvenile.7 JA1380-1411.
Further, the affidavits supporting warrants for the Facebook accounts of Luis
Gonzales and Moises Zelaya-Veliz do not even claim these Petitioners utilized their
Facebook accounts in furtherance of the alleged crimes under investigation,
documented the alleged crimes, or discussed the alleged crimes through Facebook
7 Facebook, now part of Meta, was launched in 2004. See e.g. About Mark Zuckerberg
Founder,
Chairman
and
Chief
Executive
Officer
of
Meta
at
https://about.meta.com/media-gallery/executives/mark-zuckerberg/. Petitioner Luis
Gonzalez was born in 1989 and would have been 15 years old in 2004. United States
v. Luis Alberto Gonzales, 1:20-cr-196-AJT-6, U.S. District Court for the Eastern
District of Virginia. ECF 419 at 3 (Pre-sentence Report of Luis Alberto Gonzales).
8
communications. In all the warrant affidavits, the affiant makes general claims,
based on his training and experience, regarding how “gang related prostitution
rings/enterprises” operate, stating that “gang members regularly photograph their
prostitutes and often use these photographs to advertise the prostitutes in print
media or on-line.” JA1400. The affidavits simply state that “it is known that
individuals engaged in prostitution will use electronic means to communicate with
clients and prostitutes,” including using “cellular telephones and other computerbased systems; various social networking websites (i.e. Facebook, Instagram, and
Twitter, e-mail services and instant messaging services).” JA1401. The agent also
made general claims regarding MS-13 gang members and their use of cellular phones
and messaging applications in furtherance of their crimes, provides general
background on MS-13, and claims that it is “known” that gang members use social
media platforms to communicate with each other and share photographs and videos.
JA1401.
In pretrial ligation, all Petitioners challenged the search warrants for their
Facebook accounts on Fourth Amendment grounds, arguing the warrants were
impermissibly over-broad in violation of the Warrant Clause’s particularity
requirement. JA64-130, JA146-147.
The district court, in denying the motions to suppress Facebook evidence,
erroneously found that the “magistrate judges [who issued the warrants] in each
instance did have a substantial basis for concluding, as to each of the Petitioners, a
9
sufficient nexus existed between the Facebook accounts to be searched and the crimes
under investigation.” JA114-115. The district court went on to conclude:
With respect to particularity and overbreadth, there’s no doubt that
these warrants were broad, but the issue with respect to the
particularity requirement is whether the warrant sufficiently identifies
the items to be seized and not leave to the discretion of the executing
officer whether an item is within the scope of the warrant.
JA117.
The district court reasoned that “a warrant that describes items to be seized
broadly may be valid if the description is as specific as the circumstances and the
nature of the activity under investigation allows.” JA117. The district court further
erroneously found there was sufficient probable cause set forth in the warrant
affidavits for apparently every category of data possessed by Facebook and sought by
law enforcement. JA117-119. As to the timeframe of data sought by the warrants, the
district court justified the timeframe as investigation into a “broader criminal
enterprise” and incorrectly reasoned that the successive Facebook warrants narrowed
the timeframe of records sought.8 JA117-119. The district court lastly found that even
8 The Facebook warrants reveal that the agent switched warrant templates during
the investigation, which broadened the warrant in several important respects. The
warrants issued on March 14, 2019, and June 5, 2019, using an apparently older
Facebook warrant template, had no temporal limitations and called for the disclosure
of nine categories of information, which appear to be intended to be all encompassing.
JA1356-1358, JA1381-1384. The information requested in the warrants are identical
and appear to be designed to capture the entirety of any Facebook account. The later
warrants issued on July 12, 2019, and February 20, 2020, used an updated template
that had at least some temporal limitation, but demanded even more data than the
prior warrants. JA1475, JA1492. The updated templates sought an even greater
laundry list of data (18 different categories), to include GPS location information for
the entire timeframe of the warrant – Facebook’s collection of location data from
where the user logs on, which Facebook collects for every user every time they log on.
10
if the warrants lacked probable cause or were overbroad, the good faith exception to
the Fourth Amendment’s exclusionary rule would apply. JA121-122.
On June 1, 2022, the Petitioners proceeded to trial. JA41. During trial, the
government introduced dozens of Facebook communications through its summary
witness, Special Agent Jeremy Obie, which communications the Petitioners had
objected to pretrial as having been obtained in violation of the Fourth Amendment.
JA690-788,
JA790-993,
JA1109-1122.
The
communications
were
devastating evidence against all Petitioners as the communications consisted of realtime statements by the Petitioners demonstrating their participation in the charged
offense conduct in addition to prejudicial communications indicating the Petitioners’
involvement in or support of the MS-13 gang. JA1242-1257. The government’s
opening statement and closing arguments were replete with references to the
numerous exhibits of Facebook communications from the Petitioners’ Facebook
accounts. The government argued that the Facebook communications were conclusive
evidence of all Petitioners’ guilt. See JA207-208 (opening statement), JA1129-1153
(closing argument).
In its opening statement, the government previewed to the jury: “You are going
to see extensive messages from Facebook because it was on Facebook where the
JA1476-1480, JA1494-1498. The new laundry list also required Facebook to disclose
any accounts “forensically linked” to the Petitioners’ accounts through cookies, e-mail
addresses, phone numbers, or other account information. JA1478, JA1496. That is,
the FBI was trying with these later warrants to request everything “under the sun”
as to regards to the Facebook accounts. Even though the warrants were more limited
in time, the later warrants requested a larger universe of data and information.
11
petitioners discussed at length their plans.” JA207. During the trial, the government
introduced
into
evidence
the
profiles
and
numerous
communications between the Petitioners. JA1242-1257. This amounted to over one
hundred twenty-five (125) separate exhibits that formed the heart of the prosecution’s
case, reflecting much of the evidence at trial. JA1242-1257. In closing, the
government told the jury that “when you look at the Facebook evidence that we have
presented in this case, you will start to see what was really going on behind the scenes
and what they were actually doing.” JA1129. The government spent a significant
amount of its closing emphasizing the numerous Facebook exhibits, see JA1129-1153,
stating that they show “what was going on behind the scenes” and “who is involved
with the sexual exploitation” alleged. JA1134. According to the government, the
Facebook messages “paint[ed] the story” the prosecution was trying to tell. JA1146.
On June 23, 2022, the jury returned verdicts of guilty on all counts for all
Petitioners. JA1280. On November 10, 2022, the Petitioners were sentenced to
lengthy terms of imprisonment.9
Petitioners timely appealed their convictions to the Fourth Circuit arguing,
among other claims, that the warrants issued for their Facebook accounts were
impermissibly overbroad. In a published opinion, the Fourth Circuit upheld the
Moises Zelaya-Veliz was sentenced to 264 months of incarceration (JA1295),
Jonathan Rafael Zelaya-Veliz to 180 months (JA1303), Gilberto Morales to 180
months (JA1311), Luis Alberto Gonzales to 300 months (JA1319), and Jose Eliezar
Molina-Veliz to 180 months (JA1237).
9
12
district court’s rulings denying the Petitioners’ motions to suppress the evidence
obtained by the government through the warrants served on Facebook. 1a & 59a.
The Fourth Circuit agreed that all the “warrants compelled Facebook to turn
over a wide swath of personal information attached to the accounts, including all
private communications, most user activity, and, in the case of the later two warrants,
all location information.” United States v. Zelaya-Veliz, 94 F.4th at 337.
Notwithstanding the broadness of the warrants, as to Petitioners Moises ZelayaVeliz, Jonathan Zelaya-Veliz, Gilberto Morales, and Jose Molina-Veliz, the Fourth
Circuit found the warrants sufficiently particularized where the warrants had a twostep process requiring disclosure of “a large amount of account data [but] then seize[]
only the fruits, evidence, or instrumentalities of enumerated crimes,” which the court
found “crucial to the validity of social media warrants.” The court analogized the
search of Facebook accounts as to the search of a house: “As in a search of a house,
the officers searching the Facebook account data at issue necessarily encountered a
host of irrelevant materials. But, just like in a house search, the officers were
authorized to seize only the fruits, evidence, or instrumentalities of the crimes for
which they had established probable cause.” Id. at 338.10
10 The Fourth Circuit noted “[t]he validity of this two-step process is acknowledged
by Federal Rule of Criminal Procedure 41(e)(2)(B).” United States v. Zelaya-Veliz, 94
F.4th 321, 338 (4th Cir. 2024). And dispensed with Petitioners contention that the
government seized what it had demanded, the entire contents of their Facebook and
kept them, citing that the Rule 41 has a remedy where “[t]he district court retained
the authority to determine that prolonged retention of non-responsive data by the
government violated the Fourth Amendment.” Id. However, to this date, the
Petitioners’ non-responsive data has not been deleted or returned, to the knowledge
of the Petitioners.
13
As to the warrant for Luis Gonzalez’s Facebook accounts, the Fourth Circuit
acknowledged the “total lack of a time period in a social media warrant raises a
problem.” Adding, “[a]s our society moves further into the digital age, Facebook and
other social media accounts are beginning to contain decades of personal information
and communications, often going back to an account holder’s early teenage years.
These social media accounts, much like cell phones, frequently contain ‘a broad array
of private information never found’ during a traditional search of a home.” Id. at 340
(citing Riley v. California, 572 U.S. 373, 397 (2014))(other internal citations omitted).
The court noted that the imposition of a timeframe on a warrant is simple to
administrate and the court found that Facebook can “filter data by time frame before
disclosing it to the government” if it is so requested. Id.
Notwithstanding the obvious overbreadth of the Luis Gonzalez warrant, the
panel (apparently assuming the warrant was illegal) framed the issue as a “novel
question[] posed by digital technology” and found “Luis’s motion to suppress was
properly denied because the good faith exception to the exclusionary rule applies.” Id.
at 340. The panel stated “[g]iven the unsettled nature of whether a temporal
limitation is required on a warrant authorizing the search and seizure of Facebook
account data, we cannot say that ‘a reasonably well-trained officer would have known
that the search was illegal despite the magistrate's authorization.’” Id. at 34041(citing United States v. Leon, 468 U.S. 897, 922-24 (1984)).
This petition follows.
14
REASONS FOR GRANTING THE WRIT
The chief evil that originally prompted the adoption of the Fourth Amendment
was the indiscriminate and “exploratory rummaging in a person’s belongings”
conducted by the British and “abhorred by the colonists” under the authority of
“general warrants.” Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). A crucial
purpose of the Fourth Amendment is, and since the founding of the country has
always been, to issue warrants only where probable cause is properly established and
the scope of the authorized search is set out with particularity. See Kentucky v.
King, 563 U.S. 452, 459 (2011).
To this end, ten years ago, this Court required police to obtain warrants to
search cell phones. Riley v. California, 573 U.S. 373, 403 (2014)(“The fact that
technology now allows an individual to carry such information in his hand does not
make the information any less worthy of the protection for which the Founders
fought. Our answer to the question of what police must do before searching a cell
phone seized incident to an arrest is accordingly simple – get a warrant.”). In Riley,
the Court found that a person’s privacy interest is even greater for a phone than a
home, due to the immense storage capacity of information on a phone. Id. at 396-97
(“Indeed, a cell phone search would typically expose to the government far more than
the most exhaustive search of a house: A phone not only contains in digital form many
sensitive records previously found in the home; it also contains a broad array of
private information never found in a home in any form – unless the phone is.”)
General warrants authorizing a search of social media data are no less intrusive than
15
general warrants for the search of a cell phone. Indeed, many of the items this Court
noted were contained on cell phones, making searches of them impermissible
intrusions on privacy, are likewise found on Facebook. See id. at 394 (Noting that
searches of cell phones are particularly insidious since they may contain
“photographs, picture messages, text messages, Internet browsing history, a
calendar, a thousand-entry phone book…;” all of this data may also be contained on
Facebook.). Yet the Court has not yet considered whether an all-data social media
warrant without temporal limitations, or with insufficient limitations, would violate
the particularity requirement of the Fourth Amendment. Today, about 70% of U.S.
adults use Facebook.11 Considering increasing social media usage, digitization, and
an ever-expanding number of products capable of storing electronic information, this
case presents important questions for this Court to resolve.
I.
THIS CASE PRESENTS IMPORTANT FEDERAL QUESTIONS
Tens of thousands of federal warrants are issued for Facebook data each year12
and this case presents important questions: whether broad warrants for “all data”
and warrants without time limitations for Facebook accounts violate the Fourth
Amendment’s particularly requirement. The Petitioners challenge three warrants, all
11 Pew Research Center, Americans’ Social Media Use
(https://www.pewresearch.org/internet/2024/01/31/americans-social-media-use/).
12 For example, for the first half of 2020, Facebook received 61,500 requests for data
from United States authorities, covering 106,100 accounts. See Jack Nicas, What
Data About You Can the Government Get From Big Tech, NEW YORK TIMES (July 14,
2021). https://www.nytimes.com/2021/06/14/technology/personal-data-apple-googlefacebook.html
16
for Facebook accounts, and all of which are overbroad. One warrant at issue, for
Petitioner Luis Gonzalez’s Facebook accounts, had no temporal limitation
whatsoever, such that it demanded the potential disclosure of fifteen (15) years of
Petitioner Gonzalez’s personal data and communications.13 Two warrants for the
Facebook accounts for the other four Petitioners demanded every conceivable type of
account data held by Facebook, including GPS location data (“all-data warrants”),
well before and after the timeframe of the alleged offense conduct. The Fourth Circuit
in its opinion below found the warrant without any temporal limitation to be a
“problem,” but applied the good faith exception to the exclusionary rule despite such
over-broad warrants being previously criticized by other courts since at least 2017.14
The Fourth Circuit further found the other Petitioner’s all-data warrants to be
sufficiently particularized notwithstanding the vast breadth of the warrants.
Facebook can store an immense amount of personal data—including chats and
messaging, photos, GPS location data-–much like a modern smartphone, if not more
so, because Facebook is an online platform that “provides a single window through
which almost every detail of person’s life is visible.” United States v. Shipp, 392 F.
Supp. 3d 300, 308 (E.D.N.Y. 2019)(Stating “threat” of overbroad warrant “is further
elevated in a search of Facebook data because, perhaps more than any other location
13 Facebook was launched in 2004 and the warrant for Gonzalez’s Facebook accounts
was issued in 2019.
14 See United States v. Blake, 868 F.3d 960, 974 (11th Cir. 2017)(Criticizing Facebook
warrants essentially identical to the warrants at issue here, holding that the
warrants “unnecessarily” required the disclosure of “every kind of data that could be
found in a social media account.”).
17
– including a residence, a computer hard drive, or a car – Facebook provides a single
window through which almost every detail of a person’s life is visible.”); see also Riley
v. California, 134 S. Ct. 2473, 2491 (2014)(Noting the immense privacy interests
inherent in a cellphone search and finding that such searches would “typically expose
to the government far more than the most exhaustive search of a house: A phone not
only contains in digital form many sensitive records previously found in the home; it
also contains a broad array of private information never found in a home in any
form.”)(emphasis added); United States v. Payton, 573 F.3d 859, 861-62 (9th Cir.
2009)(“Searches of computers therefore often involve a degree of intrusiveness much
greater in quantity, if not different in kind, from searches of other containers.”). The
core purpose of the Fourth Amendment’s particularity requirement is to prohibit
broad and general searches. “As to what is to be taken, nothing is left to the discretion
of the officer executing the warrant.” Marron v. United States, 275 U.S. 192, 196
(1927).
It is well-known that Facebook, now Meta, is the world’s largest social media
company that owns other major social media and communication platforms, such as
Instagram and WhatsApp. The Eastern District of New York commented on the
dangers that information from non-Facebook applications could also become part of
a Facebook account:
Particularly troubling, information stored in non-Facebook applications
may come to constitute part of a user’s ‘Facebook account’ – and thus be
subject to broad searches – by virtue of corporate decisions, such as
mergers and integrations, without the act or awareness of any particular
user. It is thus hard to imagine many searches more invasive than a
search of all the data associated with a Facebook account.
18
United States v. Shipp, 392 F. Supp. 3d 300, 308 (E.D.N.Y. 2019)(citations omitted),
aff’d, 2d Cir. No. 21-1284-CR, 2022 WL 16543193 (2nd Cir. Oct. 31, 2022)(citations
omitted). Thus the information gleaned from Facebook accounts goes far beyond the
actual Facebook account for which the warrant is issued, making overbroad warrants
even more malicious.15
Today, if any place or thing is especially vulnerable to worrisome exploratory
rummaging by the government, it is social media accounts. This Court has not yet
addressed the difficulties of applying the tangled requirements of particularity to the
unique situation of social media data. As courts have observed, advances in
technology and the centrality of social media in the lives of average people have
rendered searches of social media as more invasive than an expansive search of a
residence in terms of the scope and quantity of private information it may
contain. See e.g. United States v. Zelaya-Veliz, 94 F.4th at 340 (“Facebook and other
social media accounts are beginning to contain decades of personal information and
communications, often going back to an account holder’s early teenage years. These
social media accounts, much like cell phones, frequently contain ‘a broad array of
private information never found’ during a traditional search of a home.”); United
States v. Shipp, 392 F. Supp. 3d at 308 (E.D.N.Y. 2019)(Facebook is an online
15 In this case, the warrants for the Facebook accounts of Petitioners Moises Zelaya-
Veliz, Jonathan Rafael Zelaya-Veliz, Gilberto Morales, and Jose Eliezar Molina-Veliz
also requested: “All other accounts which are forensically linked to the account
identified in Attachment A through cookies, e-mail addresses, phone numbers, or
other account information.” JA 1428 & 1481.
19
platform that “provides a single window through which almost every detail of person’s
life is visible.”). Therefore, where social media warrants are at stake, the particularity
requirement assumes great importance. Although personal computers have existed
for more than 40 years, technology continues to develop at a rapid pace, and
standards for social media warrants continue to remain an unsettled area of the law.
This presents “an important question of federal law that has not been, but
should be, settled by this Court….” U.S. Supreme Court Rule 10(c). The question
whether broad warrants, one of which was not limited temporally, for immense
swaths of data from Facebook violates the particularity requirement of the Fourth
Amendment’s Warrant Clause is vitally important in today’s world of pervasive social
media, and a question likely to occur time and again until resolved by this Court.
II. THE FOURTH CIRCUIT’S DECISION CONFLICTS WITH
OTHER CIRCUIT COURT, DISTRICT COURT, AND STATE
COURT DECISIONS
Courts at all levels have struggled with how to apply the Fourth Amendment’s
particularity requirement to social media and smart phone warrants. This has led to
a myriad of decisions and a split between courts at all levels. That is, the Fourth
Circuit’s decision below is “in conflict with the decision[s] of [other] United States
court[s] of appeals on the same important matter [and] has decided [this] important
federal question in a way that conflicts with … decision[s] by … state court[s] of last
resort.” U.S. Supreme Court Rule 10(a). This Court must develop a consistent policy
on how the Fourth Amendment’s particularity requirement applies to social media
warrants, or courts will continue to interpret the Fourth Amendment variously.
20
A.
The Circuit Divide
The Circuit Courts are divided as to whether all-data warrants for social media
accounts and smart phones violate the Fourth Amendment’s particularity
requirement and have issued inconsistent rulings. Overall, the First, Second, Third,
Sixth, Ninth, and Tenth Circuits emphasize the importance of temporal limitations
to prevent digital warrants from being constitutionally overbroad. The Eleventh
Circuit prefers temporal limitations for digital warrants, but has applied the good
faith exception. The Second, Fourth, Sixth, and Seventh Circuits have held that
searches for any and all phone data is justified due to the nature of criminal activity,
permitting social media warrants without categorical or temporal limitations.16 The
Tenth Circuit instituted its own test to particularize social media warrants, limiting
searches to the most obvious places.
In 2017, the Eleventh Circuit criticized Facebook warrants essentially
identical to the warrants at issue here, holding that the warrants “unnecessarily”
required the disclosure of “every kind of data that could be found in a social media
account.” United States v. Blake, 868 F.3d 960, 974 (11th Cir. 2017). The Blake court
faulted the lack of timeframe in the warrants and noted that the warrants should
have been circumscribed to the time of the offense conduct. Id. (“[T]he warrants
should have requested data only from the period of time during which Moore was
suspected of taking part in the prostitution conspiracy.”). Notably, Blake was also a
16 Albeit the Fourth Circuit in its opinion below in this case found the warrant for
Gonzalez’s Facebook account that had no temporal limitation to be a “problem.”
United States v. Zelaya-Veliz, 94 F.4th at 340.
21
sex trafficking case which involved multiple defendants and victims. Id. (Ultimately
applying the good-faith exception because this was a question of first impression in
2017).
The Ninth Circuit has limited warrants to the time period when the suspected
criminal activity took place, and also required the information sought to be seized be
relevant to the investigation. See United States v. Kow, 58 F.3d 423, 427 (9th Cir.
1995)(Finding warrant for computers and computer files “wholly deficient” where
“[t]he warrant should have been [but was not] limited by time, location, and
relationship to specifically described suspected criminal conduct.” “The government
did not limit the scope of the seizure to a time frame within which the suspected
criminal activity took place” and the “widespread seizure” “of essentially every
business record” was unconstitutionally broad.).
In the First Circuit, a warrant for business records failed to meet the
requirement of particularity since there was no description of the specific records to
be seized and no temporal limitation. United States v. Abrams, 615 F.2d 541, 543 (1st
Cir. 1980)(“The warrant at issue fails to meet the requirement of particularity. The
officers’ discretion was unfettered, there is no limitation as to time and there is no
description as to what specific records are to be seized…. It seems clear that the
executing officers could not or made no attempt to distinguish bona fide records from
fraudulent ones so they seized all of them in order that a detailed examination could
be made later. This is exactly the kind of investigatory dragnet that the fourth
amendment was designed to prevent.”).
22
The Second Circuit held that a warrant to search computer equipment and
electronic digital storage media lacked particularity since the warrant did not link
the items to be searched and seized to the criminal behavior being investigated, and
failed to place any temporal limit on the property to be seized. United States v. Rosa,
626 F.3d 56, 62-64 (2nd Cir. 2010)(“[T]he search warrant in this case lacked the
requisite specificity to allow for a tailored search of [defendant’s] electronic media.
The warrant was defective in failing to link the items to be searched and seized to the
suspected criminal activity … and thereby lacked meaningful parameters on an
otherwise limitless search of [defendant’s] electronic media.”).17
The Sixth Circuit has held that, generally, warrants lacking available
temporal requirements and particularity are constitutionally overbroad, but has
applied the standard inconsistently. In United States v. Ford, the court overturned a
conviction where a warrant for financial documents, unlimited in time, authorized “a
broader search than was reasonable given the facts in the affidavit supporting the
warrant.” United States v. Ford, 184 F.3d 566 (6th Cir. 1999)(“Failure to limit broad
descriptive terms by relevant dates, when such dates are available to the police, will
render a warrant overbroad.”). The court dismissed the government’s argument that
a broad warrant was necessary to establish which proceeds were legal and which were
illegal, holding that “[t]his argument would allow virtually unlimited seizure of a
lifetime’s worth of documentation, which is extremely intrusive… [and] would allow
The First, Second, and Third Circuits have all recognized that the lack of
particularity and/or known temporal limitations may render a warrant overbroad if
there are not other sufficient restrictions.
17
23
an extreme intrusion for evidence of very little probative value.” Id. The court noted
that “[t]he government at trial used the documents for an entirely difference purpose
than” they argued. Finally, the court disapproved of the warrant because it required
production of documents from a time period at least four months before the alleged
criminal actions. Id.
Importantly, in United States v. Abboud, the Sixth Circuit held that, since,
similarly to here, “law enforcement knew that the evidence in support of probable
cause in the affidavit revolved only around a three-month period in 1999; the
authorization to search for evidence irrelevant to that time frame could well be
described as ‘rummaging.’” United States v. Abboud, 438 F.3d 554, 576 (6th Cir. 2006).
In a health care fraud case, the Sixth Circuit likewise found that that the seizure of
all non-patient files without any limitation as to the specific patients, transactions,
or time frame was unconstitutionally broad. United States v. Lazar, 604 F.3d 230,
238 (6th Cir. 2010). However, in United States v. Bass, the court dismissed the
particularity requirement altogether, upholding a broad warrant to search “for any
records of communication indicia of use, ownership, or possession” of a cell phone
because criminals may “hide, mislabel, or manipulate files to conceal criminal
activity….” United States v. Bass, 785 F.3d 1043 (6th Cir. 2015)(“Federal courts,
however, have ‘rejected most particularity challenges to warrants authorizing the
seizure and search of entire personal or business computers….”)
The Third Circuit has held that the seizure of six entire computers was proper
where “a broad seizure was required because evidence of financial crimes could have
24
been found in any location on any of the six hard drives, and this evidence very likely
would have been disguised or concealed somewhere on the hard drive.” United States
v. Stabile, 633 F.3d 219, 237 (3rd Cir. 2011); see also United States v. Yusuf, 461 F.3d
374, 395 (3rd Cir. 2006)(Approving warrants where they “were drafted with sufficient
particularity because they explicitly incorporated an affidavit detailing the items that
the government intended to search and seize. The government further limited the
scope of the warrants by focusing on enumerated white collar federal offenses and by
limiting the nature of documents sought to specific corporate records at the … stores
over a ten-year time period.”).
While the Fourth Circuit, until the opinion below, and Seventh Circuit have
apparently not directly addressed the question of temporal limitations for digital
warrants, they have both upheld warrants authorizing searches of all electronic
media belonging to a suspect. Both circuits have indicated that no limitations on the
scope of an electronic search are permissible since law enforcement will need to view
each file to see if it falls within the scope of the search. The Fourth Circuit appears
to diminish the particularity requirement, upholding all-data warrants for computers
without any restrictions other than listing the alleged offense. See United States v.
Williams, 592 F.3d 511, 515-16 (4th Cir. 2010); see also United States v. Cobb, 970
F.3d 319, 330 (4th Cir. 2020)(Upholding warrant to search a computer where “a
warrant may satisfy the particularity requirement either by identifying the items to
be seized by reference to a suspected criminal offense or by describing them in a
25
manner that allows an executing officer to know precisely what he has been
authorized to search for and seize.”).
The Seventh Circuit has adopted a similarly broad understanding of
particularity in the context of electronic searches, upholding an otherwise
unrestricted warrant authorizing the search of digital media and computers. United
States v. Mann, 592 F.3d 779, 780-81 (7th Cir. 2010); see also United States v. Bishop,
910 F.3d 335, 337 (7th Cir. 2018)(Upholding warrant for entire contents of cell phone
where “[i]t is enough . . .if the warrant cabins the things being looked for by stating
what crime is under investigation.”).
The Tenth Circuit has struck down warrants lacking sufficient limitations
when restrictions did not provide enough guidance for law enforcement. United States
v. Leary, 846 F.2d 592, 604 (10th Cir. 1988)(Warrant facially overboard where it
authorized a general search without any meaningful limitation); United States v.
Russian, 848 F.3d 1239, 1245 (10th Cir. 2017)(Holding warrant invalid due to lack of
particularity because it did not “specify what material (e.g., text messages, photos, or
call logs) law enforcement was authorized to seize.”). The Tenth Circuit thus affirmed
that particularized warrants must include at least temporal limitations and specific
categories of content information to be seized.
The Tenth Circuit has also distinguished physical searches as critically
different from electronic searches. United States v. Loera, 923 F.3d 907 (10th Cir.
2019)(Noting that there are “fundamental differences between electronic searches
and physical searches, including the fact that electronic search warrants are less
26
likely prospectively to restrict the scope of the search….”). In that case, the court
clarified that investigators executing a search warrant can look anywhere that the
evidence described in the warrant may conceivably be found. Id. at 196. The court
noted that such limitations work well in the physical-search context to ensure that
searches pursuant to warrants remain narrowly tailored, but are less effective in the
electronic-search context where searches confront the needle-in-a-haystack problem.
Id.
To promote particularized warrants that are not overbroad, the Tenth Circuit
proposed a test for particularity of social media warrants. The Tenth Circuit focused
on how the agents carried out the search. A warrant should reasonably direct an
officer at uncovering the specified evidence. United States v. Burgess, 576 F.3d 1078,
1094 (10th Cir. 2009). Importantly, warrants should include narrowly tailored search
methods by directing officers to look in the most obvious places, then direct the search
to specific files or keywords. In that case, a computer warrant for a drug conspiracy
first directed an officer to access photos on a hard drive pertaining to narcotics or coconspirators. The court found that the warrant was not overbroad since it did not
encompass a preview of all files. Id. This case is in direct conflict with the district
court’s decision here, where the district court stated that “the issue with respect to
the particularity requirement is whether the warrant sufficiently identifies the items
to be seized and not leave to the discretion of the executing officer whether an item is
within the scope of the warrant.” JA117; see also Marron v. United States, 275 U.S.
192, 196 (1927)(As to what is to be seized, nothing is meant to be left to the discretion
27
of the officer executing the warrant.); United States v. Abrams, 615 F.2d 541, 543 (1st
Cir. 1980)(Warrant failed where the officers’ discretion was “unfettered.”).
Overall, there is clearly a circuit split, with a well-developed disagreement
ready for this Court’s intervention.
B. The District Court Divide
The U.S. District Courts have interpreted the particularity requirement
differently. On one side are the courts which favor restricting overbroad warrants
lacking categorical or temporal restrictions as unconstitutional, including district
courts in Illinois, the District of Columbia, Georgia, and New York. See, e.g., United
States v. Winn, 79 F. Supp. 3d 904 (S.D. Ill. 2015)(Police executed a phone warrant
for public indecency charge but were not allowed to search all files since they did not
have probable cause to believe that everything on the phone was evidence of the crime
of public indecency.); Matter of Black iPhone 4, 27 F. Supp. 3d 74 (D.D.C. 2014)(Where
a warrant was for the entire contents of phones without a particularized description
of the information relevant to the government’s investigation, the warrant was
impermissibly overbroad); United States v. Mercery, 591 F. Supp. 3d 1369 (M.D. Ga.
2022)(For an overbroad Instagram warrant lacking any categorical or temporal
restrictions, the court did not apply the good faith exception); United States v.
Burkhow, No. 19-CR-59, 2020 WL 589536, at *10 (N.D. Iowa Feb. 6, 2020)(“Some
reasonable attempt could have been made to narrow the scope of this search,
particularly by setting date limitations if not restrictions to specific account activities
or interactions with particular persons.”); United States v. Chavez, 423 F. Supp. 3d
28
194, 207 (W.D.N.C. 2019)(“[T]he Government compelled Facebook to disclose sixteen
broad categories of evidence, without limiting disclosure to the purported members
or purported dates.”); United States v. Shipp, 392 F. Supp. 3d 300, 310-312 (E.D.N.Y.
2019)(A temporal limitation “could have mitigated the court's concerns about the
breadth of this warrant,” but applying good faith exception and collecting cases
regarding the same.).
The Eastern District of New York in United States v. Shipp went so far as to
state that Facebook warrants are of more concern than any other location:
This court has serious concerns regarding the breadth of Facebook
warrants…. This threat is further elevated in a search of Facebook data
because, perhaps more than any other location – including a residence,
a computer hard drive, or a car – Facebook provides a single window
through which almost every detail of a person’s life is visible. Indeed,
Facebook is designed to replicate, record, and facilitate personal,
familial, social, professional, and financial activity and networks. Users
not only voluntarily entrust information concerning just about every
aspect of their lives to the service, but Facebook also proactively collects
and aggregates information about its users and non-users in ways that
we are only just beginning to understand.
Shipp, 392 F. Supp. 3d 300, 308 (E.D.N.Y 2019)(emphasis in original).
On the other side, some district court have found that all-data warrants do not
violate the Fourth Amendment’s particular requirements. United States v. Daprato,
2022 WL 1303110 (D.Me. 2022)(Upholding Facebook warrant seeking five months of
Facebook data from 17 categories of information); United States v. Skinner, 2021 WL
1725543 at *11 (E.D.Va. Apr. 29, 2021)(Upholding search warrant for cell phones
where “[t]he Cell Phones Warrant adequately “confine[d] the executing [officers']
discretion by allowing them to seize only evidence of [] particular crime[s].”); United
29
States v. Franklin, 2022 WL 3572498, at *1 (W.D. Mo. Aug. 18, 2022)(“[T]he warrant,
which sought the entirety of Defendant's Instagram account, was not deficient as a
general warrant.”); United States v. Westley, 2018 WL 3448161, at *16 (D. Conn. July
17, 2018)(Even if the absence of a date restriction made the warrants [Facebook
records] overbroad,” the good faith exception applies). United States v. Sharp, 2015
WL 4641537, at *15 (N.D. Ga. Aug. 5, 2015)(Rejecting Facebook overbreadth
arguments where Facebook disclosed the “entire cache of information” without limits
based on time and stating “[t]he fact that [a] warrant call[s] for seizure of a broad
array of items does not, in and of itself, prove that the warrant fails to meet this
requirement of particularity.”).
Thus, the federal courts have repeatedly addressed the question of whether a
warrant authorizing a broad search of a suspect’s entire store of digital media is
sufficiently particular and/or whether the good faith exception should be applied.
Without this Court’s intervention, as more and more information is stored in digital
format, and as more devices become capable of digital storage, the number of cases
raising this issue will continue to increase. That is, there is a well-developed
disagreement ready for this Court’s intervention.
C.
State Court Decisions
An increasing number of the highest state courts across the country have
condemned “all-data” warrants for cell phones, which hold vast amounts of data
similar to social media accounts, which appears in direct tension with federal courts
that have justified broad warrants for smart phones because the warrants list and/or
30
seize evidence of the crimes under investigation.18 Burns v. United States, 235 A.3d
758 (D.C. 2020) (Allowing searches of “any evidence on a phone” is a general warrant,
and thus, a warrant needs to specify the narrow items of evidence for which probable
cause exists); Wheeler v. State, 135 A.3d 282 (Del. 2016) (A warrant lacking known
temporal requirements is constitutionally overbroad.); Taylor v. State, 260 A.3d 602,
615–16 (Del. 2021)(Search warrant that authorized “a top-to-bottom search” of “[a]ny
and all store[d] data” of the digital contents of smart phones held to be overbroad.);
State v. Henderson, 854 N.W.2d 616 (Neb. 2014) (Any and all cell phone contents
search lacked particularity.); State v. Keodara, 364 P.3d 777(Wash. App. 2015)(Where
there was no limit on the topics of information for which the police could search for
on cell phone, nor did the warrant limit the search to information generated close in
time to incidents for which the police had probable cause, the warrant was
impermissibly broad.); State v. Smith, 344 Conn. 229, 252, 278 A.3d 481, 497 (2022)
(Search warrant did not comply with the particularity requirement because it did not
sufficiently limit the search of the contents of the cell phone by description of the
areas within the cell phone to be searched, or by a time frame reasonably related to
the crimes.); Richardson v. State, 481 Md. 423, 282 A.3d 98 (2022)(Search warrant
See e.g. United States v. Bishop, 910 F.3d 335, 337 (7th Cir. 2018)(Upholding
warrant for entire contents of cell phone where “[i]t is enough . . .if the warrant cabins
the things being looked for by stating what crime is under investigation.”); See e.g.
United States v. Kamara, 2023 WL 8357946, at *8 (E.D. Va. Dec. 1, 2023)(“The Court
thus finds that it was enough that the iPhone Search Warrant “confine[d] the
executing [officers'] discretion by allowing them to seize only evidence of ... particular
crime[s].”)(citing See e.g. United States v. Cobb, 970 F.3d 319, 330 (4th Cir. 2020)).
18
31
authorizing officers to search and seize “all information” and “any other data stored
or maintained inside of” cell phone violated Fourth Amendment’s particularity
requirement, because warrant and affidavit contained impermissibly broad “catchall”
language, and detective did not include any temporal restrictions or any other
limitations, such as restrictions relating to application or other communication
applications, call logs, or navigation/location data for evidence relating to robbery.);
State v. Bock, 310 Or. App. 329, 334–36, 485 P.3d 931, 935–36 (2021) (Search warrant
that authorized seizure of any item on a cell phone that might later serve as
circumstantial evidence of the device owner or user was tantamount to a general
warrant and thus overbroad.); People v. Clarke, 156 N.Y.S.3d 830 (N.Y. Sup. Ct.
2021)(Warrant was overbroad and failed to satisfy the particularity requirement
where it authorized a search of nearly all files and data on the petitioner’s cell phone
and failed to specify any date restriction of the files and data to be searched);
Commonwealth v. Holley, 87 N.E.3d 77 (Mass. 2017)(Warrant for all electronic
communications and location data was deemed overbroad and lacking particularity.);
State v. Henderson, 854 N.W.2d 616 (Neb. 2014)(Any and all cell phone contents
search lacked particularity.); State v. Castagnola, 46 N.E.3d 638 (Ohio 2015)(Warrant
of computer invalid where it did not describe specific records/documents to be
searched.); but see Hedgepath v. Commonwealth, 441 S.W.3d 119 (Ky. 2014)(Warrant
that encompassed all cell phone content was sufficiently particular and not overbroad
as the police were expected to pick out only information relevant to the crime when
executing warrant).
32
III. THIS CASE IS AN
APPROPRIATE VEHICLE
DETERMINATION OF THE QUESTIONS PRESENTED
FOR
This case, with its clear and complete trial record, is an excellent vehicle to
resolve the questions presented. First, the language in the warrants provided for a
laundry list of excessive categories of Facebook content, including past and present
Facebook profile information, private messages, photos, videos, user activity,
personal identification, privacy settings, chat history, video calling history, contacts,
activity logs, ad content, status updates, articles, notes, friend lists, search history,
marketplace transactions, payments, blocked accounts, posts (liked and tagged),
news feed information, and for all Petitioners except Luis Gonzalez, GPS location
data for broad time periods. Second, the warrant for Petitioner Luis Gonzalez’s
Facebook account lacked a temporal limitation and the temporal limitations for the
other Petitioners’ Facebook accounts were so broad that the warrants allowed the
Government to scrutinize enormous amounts of data, including GPS location
information, from almost nine months before the offense conduct. In the case of
Gonzalez, the data demanded to be disclosed could have reached back 15 years
before the offending. Third, while the warrants for Petitioners Moises Zelaya-Veliz,
Jonathan Zelaya-Veliz, Gilberto Morales and Jose Eliezar Molina-Veliz contained
overbroad temporal limitations, those warrants also expanded the laundry list of data
sought as compared the warrant for Gonzales’s Facebook (which Petitioners contend
was meant to be all inclusive). Importantly, the offense conduct clearly occurred only
over a less than two-month period, from August 27, 2018, to October 11, 2018.
33
There are also no harmless error issues because during trial, the government
introduced exhaustive amounts of Facebook evidence, including 125 exhibits from the
Petitioners’ Facebook accounts, ranging from profile information to extensive
amounts of private messages. While a warrant for the Petitioners’ Facebook photos,
communications, and perhaps other Facebook data from the August to October 2018
timeframe may have represented a sufficiently particularized search, not so a
warrant for so many additional categories of social media data without temporal
limitation or overly broad temporal constraints.
Petitioners challenge the overbroad Facebook warrants lacking sufficient
temporal or categorial limitations. The social media data warrants clearly violate the
Fourth Amendment’s particularity requirement. The all-data social media warrants
led to evidence that was critical to the prosecution and the conviction of the
Petitioners. Thus, the Court should take the opportunity to address the important
questions presented.
IV. THE
WARRANTS
IN
THE
INSTANT
UNCONSTITUTIONALLY OVERBROAD
CASE
WERE
The Fourth Circuit acknowledged that the warrant for Petitioner Luis
Gonzalez’s Facebook that had no temporal limitation was a “problem” where social
media accounts “frequently contain ‘a broad array of private information never found’
during a traditional search of a home.” Zelaya-Veliz, 94 F.4th at 340 (citing Riley v.
California, 573 U.S. 373, 397 (2014))(other internal citations omitted). The court
acknowledged that including a timeframe was simple where Facebook can “filter data
by time frame before disclosing it to the government” if it is so requested. Id.
34
Nonetheless, the court applied the good faith exception to a warrant issued five years
after Riley reasoning that imposing a temporal limitation was not settled law because
it was “novel question[] posed by digital technology.” Id. Digital technology is no
longer novel and this Court should definitively state that the good faith exception is
inapplicable to untethered warrants for social media accounts like the one for
Petitioner Gonzalez's Facebook accounts.
Regarding the other Petitioners, as argued in the Fourth Circuit in their
opening brief:
The warrants issued on July 12, 2019, and February 20, 2020,19 used a
different, updated template that had at least some temporal limitation
– seeking Facebook records from January 1, 2018 (almost 9 months prior
to the offense conduct) to the date of the warrants’ issuance such that
the successive warrant with the new template grabbed more data than
the prior warrant. JA1475, JA1492. The updated templates sought an
even greater laundry list of data (18 different categories) to include GPS
location information for the entire timeframe of the warrant—every
time a person logs on to Facebook, Facebook records the location from
which the persons logs on. JA1476-1480, JA1494-1498. The new laundry
list also required Facebook to disclose any accounts “forensically linked”
(whatever that means) to the petitioners’ accounts through cookies, email addresses, phone numbers, or other account information. JA1478,
JA1496. That is, the FBI was trying request with both warrants
everything “under the sun” as to regards to all Facebook accounts.
Appellant’s Opening Brief at 4, n. 2.20
19 The warrant issued on July 12, 2019 ordered Facebook to disclose Moises Zelaya-
Veliz’s Facebook account and the warrant issued on February 2020 ordered Facebook
to disclose the accounts of Jose Eliezar Molina-Veliz, Gilberto Morales, and Jonathan
Rafael Zelaya-Veliz.
20 United States v. Moises Zelaya-Veliz, No. 22-4656, U. S. Court of Appeals for the
Fourth Circuit. ECF 31.
35
In Petitioners’ view, the disclosure of GPS data for more than eight months
before they were suspects in the crimes at issue and a host of other categories of
information was particularly egregious. Further, Facebook was ordered to provide
the government GPS location of the Petitioners for a total time period of from 18 to
26 months for offense conduct that spanned from August 27, 2018, and October 11,
2018. In short, all the “Facebook warrants were the internet-era version of a ‘general
warrant.’” See United States v. Blake, 868 F.3d 960, 974 (11th Cir. 2017)(citing
Coolidge v. New Hampshire, 403 U.S. 443, 476 (1971); cf. Riley v. California, 573 U.S.
373, 394 (2014)(“The sum of an individual’s private life can be reconstructed through
a thousand photographs labeled with dates, locations, and descriptions….”).
In sum, these cases no longer warrant applying the good-faith exception or a
loose application of the particularity requirement. Further, this Court should
reconcile the tests for particularity to create a consistent rule in preventing social
media warrants from being overbroad, and this case is an appropriate case for the
Court to consider.
36
CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari should be
granted.
Respectfully submitted this 12th day of July, 2024.
/s/ Joseph King
Joseph D. King
Counsel of Record
King, Campbell, Poretz & Mitchell PLLC
118 N. Alfred Street
Alexandria, Virginia 22314
(703) 683-7070
jking@kingcampbell.com
Counsel for Mr. Moises Zelaya-Veliz
Christopher Amolsch
12005 Sunrise Valley Drive, Suite 200
Reston, Virginia 20191
Counsel for Mr. Jonathan Rafael Zelaya-Veliz
Donna L. Biderman
Law Office of Donna Biderman
4015 Chain Bridge Road, Suite 38
Fairfax, Virginia 22030
Counsel for Mr. Gilberto Morales
Jeffrey Zimmerman
Jeffrey Zimmerman, PLLC
108 N. Alfred Street
Alexandria, VA 22314
Counsel for Mr. Luis Alberto Gonzalez
Donald E. Harris
Harris Law Firm
2800 Eisenhower Ave. Ste. 220
Counsel for Mr. Jose Eliezar Molina-Veliz
37
APPENDIX
i
TABLE OF CONTENTS
Page
OPINION OF THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT, FILED FEBRUARY 16, 2024 . . . . . . . . . . 1a
EXCERPT OF TRA NSCRIPT OF THE UNITED STATES
DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION, DATED OCTOBER 27, 2021 . . . . . . . . .40a
EXCERPT OF TRA NSCRIPT OF THE UNITED STATES
DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION, FILED JANUARY 9, 2023 . . . . . . . . . . 45a
DENI A L OF REHEA RING OF T HE U NIT ED STAT ES
COURT OF A PPEA LS FOR THE FOURTH CIRCUIT,
FILED MARCH 15, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59a
Case 1:20-cr-00196-AJT Document 564 Filed 02/16/24 Page 1 of 39 PageID# 8910
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4656
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MOISES ORLANDO ZELAYA-VELIZ, a/k/a Moises Zelaya-Beliz, Moizes Zelaya
Bonilla, a/k/a Zelaya Hernandez,
Defendant – Appellant.
22-4659
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JONATHAN RAFAEL ZELAYA-VELIZ, a/k/a Rafael Zelaya, a/k/a Jonathan
Zelaya,
Defendant – Appellant.
1a
Case 1:20-cr-00196-AJT Document 564 Filed 02/16/24 Page 2 of 39 PageID# 8911
22-4669
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GILBERTO MORALES, a/k/a Chapin, a/k/a Chucha,
Defendant – Appellant.
22-4670
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LUIS ALBERTO GONZALES, a/k/a Luis Figo, a/k/a China, a/k/a Chinita,
Defendant – Appellant.
22-4684
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
2
2a
Case 1:20-cr-00196-AJT Document 564 Filed 02/16/24 Page 3 of 39 PageID# 8912
JOSE ELIEZAR MOLINA-VELIZ, a/k/a Jose Eliezar Hernandez,
Defendant – Appellant.
22-4685
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SANTOS ERNESTO GUTIERREZ CASTRO, a/k/a Gutierrez Hernestho,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern District of Virginia, at
Alexandria. Anthony John Trenga, Senior District Judge. (1:20-cr-00196-AJT-1; 1:20-cr00196-AJT-10; 1:20-cr-00196-AJT-9; 1:20-cr-00196-AJT-6; 1:20-cr-00196-AJR-4; 1:20cr-00196-AJT-5)
Argued: December 8, 2023
Decided: February 16, 2024
Before WILKINSON, WYNN, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Wynn
and Judge Richardson joined.
ARGUED: Joseph Douglas King, KING CAMPBELL PORETZ & THOMAS, PLLC,
Alexandria, Virginia, for Appellants. Maureen Catherine Cain, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Christopher B. Amolsch, Reston, Virginia, for Appellant Jonathan Rafael Zelaya-Veliz.
3
3a
Case 1:20-cr-00196-AJT Document 564 Filed 02/16/24 Page 4 of 39 PageID# 8913
Donna L. Biderman, LAW OFFICE OF DONNA L. BIDERMAN, Fairfax, Virginia, for
Appellant Gilberto Morales. Donald E. Harris, HARRIS LAW FIRM, Alexandria,
Virginia, for Appellant Jose Eliezar Molina-Veliz. Dwight E. Crawley, LAW OFFICE OF
DWIGHT CRAWLEY, Washington, D.C., for Appellant Ernesto Santos Gutierrez Castro.
Jeffrey D. Zimmerman, JEFFREY ZIMMERMAN, PLLC, Alexandria, Virginia, for
Appellant Luis Alberto Gonzales. Jessica D. Aber, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
4
4a
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WILKINSON, Circuit Judge:
After a seven-day trial, six men affiliated with the transnational criminal
organization MS-13 were convicted of sex trafficking a thirteen-year-old girl by force,
fraud, or coercion, and conspiracy to do the same. Five of the men appeal the district court’s
denial of their motions to suppress evidence obtained from Facebook warrants, contending
the warrants failed the probable cause and particularity requirements of the Fourth
Amendment. The sixth man appeals the district court’s denial of his motion for acquittal,
contending that the evidence presented at trial was insufficient to sustain his conviction.
For the following reasons, we reject these claims and affirm each of the convictions.
I.
A.
The six appellants are members and associates of the transnational criminal street
gang Mara Salvatrucha (MS-13). In 2018, they worked together to sexually exploit and
physically abuse a thirteen-year-old girl—referred to in this opinion as Minor-2—and other
underage victims in Northern Virginia and Southern Maryland.
On August 27, 2018, Minor-2 ran away from a youth shelter in Fairfax County,
Virginia in search of a better living situation. Minor-2 had been in the shelter for just over
two months before leaving. While at the shelter, she met sixteen year old Minor-3, who
told Minor-2 that she could use her connections with MS-13 to have the gang protect them
if they ran away.
The girls proceeded to meet up with MS-13 members. Minor-3 introduced Minor-2
to them, and the members asked Minor-2 her age. She told them she was thirteen years old.
5
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Nevertheless, they decided to enlist her in the gang, promising that they would protect her
and her family. The gang members proceeded to initiate Minor-2 into MS-13 by beating
her with a metal baseball bat. The first hit was so painful that Minor-2 begged them to stop,
but the gang members said that if they stopped they would have to kill her and her family.
She was struck a total of twenty-six times. The pain was so excruciating that Minor-2 later
reported that she thought she was going to die. After the beating finished, Minor-2 wanted
to run but couldn’t muster the strength to move her battered legs.
At least four MS-13 members participated in the beating. They struck Minor-2 with
the metal bat in front of at least five witnesses including Minor-3 and Minor-1, a fourteenyear-old who was also a victim of MS-13’s child sex trafficking. A detective testified at
trial that Minor-2’s treatment was representative of how MS-13 initiates females into the
gang: by beating them in multiples of thirteen and sexually exploiting them.
After Minor-2 was beaten, she was taken to an apartment in Woodbridge, Virginia
where appellants Moises Zelaya-Veliz and Jose Eliezar Molina-Veliz harbored her.
Moises, who was a full-fledged member of MS-13, was aware Minor-2 had been beaten by
his gang. The two men kept Minor-2 confined in their house out of fear that she would
report them or their gang to the police.
Moises and Jose both engaged in sexual intercourse with Minor-2 in the apartment.
They also sold her for sex to friends and acquaintances. On one occasion, at least five men
engaged in sexual intercourse with Minor-2 outside the apartment complex as Moises
watched from his porch. Minor-2 repeatedly pleaded for them to let her go home, but they
refused. To dissuade her from running away, MS-13 members threatened that they would
6
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kill her family if she left. Later, when an MS-13 member found Minor-2 using another
gang member’s phone, she was taken back to the site of her first beating and beaten an
additional twenty-six times with the same metal bat as punishment.
Appellant Santos Ernesto Gutierrez Castro met Minor-2 at Moises and Jose’s
apartment. Santos subsequently took Minor-2 to his house and gave her marijuana. He
wanted to sell Minor-2 for sex, and so he began making calls to potential customers,
offering them the opportunity to have sex with Minor-2 for $100 an hour. The first day,
Santos sold Minor-2 for sex to more than ten men. He kept Minor-2 at his house for at least
three more days, during which time he had sex with her himself and continued to sell her
for sex with others. When he was finished, he took Minor-2 to a co-conspirator’s house in
Maryland.
Upon her arrival in Maryland, Minor-2 was still limping and bruised from the two
beatings. But the gang was undeterred. Appellant Luis Alberto Gonzales, who was a
member of MS-13, took over the trafficking. He shuffled Minor-2 between several
different Maryland residences where he sold her for sex in exchange for cash and cocaine.
Appellant Gilberto Morales met Minor-2 at one of those Maryland residences. He
gave Luis several grams of cocaine so that he could have sex with Minor-2. After the
transaction, Gilberto stayed in contact with Minor-2. They communicated with each other
over the phone and on Facebook more than 130 times during October 2018.
Gilberto was not the only one who tried to establish a more “personal” connection
with Minor-2. Luis worked to convince Minor-2 that he was her friend and boyfriend. But
all the while he continued to sell her for sex to other men and to have sex with her himself.
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Eventually, Luis took Minor-2 to an apartment complex in Mount Rainier,
Maryland, where appellant Jonathan Zelaya-Veliz and other co-conspirators resided.
Minor-2 was confined there for about two weeks by Luis and Jonathan. During Minor-2’s
trafficking, Jonathan had sex with her and was involved, along with Luis, Moises, and
Santos, in coordinating her transportation to various locations in Virginia and Maryland
where she was sold for sex. On the first night in Mount Rainier, at least five men came to
the apartment and forced Minor-2 to have sex with them. She cried the entire time, but the
men kept going. Their abuse caused such excruciating pain that she later reported she
wanted to die to end the suffering.
Over the following two weeks, Luis and a co-conspirator set up prostitution dates
for Minor-2 with nearby customers. They sold her for sex up to seven hours a day. Luis
would sedate Minor-2 with alcohol and drugs, including marijuana and cocaine, before
driving her to customers’ homes and making her have sex with them. One of these men
sent Luis a video of him sexually penetrating Minor-2.
Minor-2 longed to escape, but feared that doing so would jeopardize her and her
family’s safety. Luis kept threatening her, telling her that there were many gang members
around the apartment complex that would find her if she tried to run away. She was also
told that Luis could see anyone she talked to on the phone he gave her.
Nevertheless, Minor-2 managed to escape. On October 11, 2018, she was recovered
by law enforcement outside the Mount Rainier apartment complex.
***
8
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Through physical violence and under the threat of her and her family’s death,
Minor-2 was forced by the appellants and other MS-13 associates to have sex with dozens
of adult men. They confined her to their residences, trafficked her across state lines, and
used her body at will. Over the more than six weeks she spent at the mercy of her
traffickers, Minor-2 was beaten viciously, infected with sexually transmitted diseases, and
subjected to unconscionable psychological trauma.
B.
In meetings with local law enforcement officers after her escape, Minor-2 was
unable to identify the full names of her abusers. She also had difficulty identifying the
locations where she was trafficked. She was, however, able to identify numerous
perpetrators based on photos of men that law enforcement suspected of being involved in
her trafficking. Minor-2 also relayed that Minor-1 was being sexually exploited by MS-13
and provided information to help identify her. This led to law enforcement locating and
recovering Minor-1 from a known MS-13 location, where she was found with an MS-13
member.
As the scope of MS-13’s sex trafficking conspiracy became apparent, the matter
escalated into a federal investigation led by FBI Special Agent Jeremy Obie of the Bureau’s
Child Exploitation and Human Trafficking Task Force in Washington, D.C. Based on
information that local law enforcement had earlier gathered, Special Agent Obie
determined that the suspects were likely using Facebook to sex traffic Minor-1, Minor-2,
and other victims. Thus, over the course of the multi-month investigation, Special Agent
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Case 1:20-cr-00196-AJT Document 564 Filed 02/16/24 Page 10 of 39 PageID# 8919
Obie obtained four so-called Facebook warrants, which compelled Facebook to turn over
data on specified social media accounts.
The following paragraphs describe the four Facebook warrants, as their
constitutionality is central to the appellants’ appeal.
The First Warrant
The first Facebook warrant was approved on March 14, 2019 by U.S. Magistrate
Judge John F. Anderson in the Eastern District of Virginia. The warrant ordered Facebook
to give the government nine categories of information on five different Facebook accounts,
including all private communications made or received by the accounts. Four of the
accounts were operated by MS-13 member Sioni Alexander Bonilla Gonzalez, who pled
guilty before trial for his involvement in the sex trafficking conspiracy and is not a party
to this appeal. The fifth account was operated by a person who was known to have
communicated over Facebook with Minor-1 but who is also not a party to this appeal. The
warrant contained no time limitations, and thus impliedly authorized the government to
search all account data disclosed by Facebook from the time since the accounts’ respective
dates of creation until the time that the warrant was sworn out.
The warrant followed a standard two-step search and seizure process. It first
authorized the government to search the entirety of the data disclosed by Facebook. It then
authorized the seizure of specific categories of information revealed during that search;
namely, information that constituted fruits, evidence, or instrumentalities of violations of
four federal criminal statutes—18 U.S.C. § 1591 (sex trafficking of a minor by force, fraud,
or coercion); 18 U.S.C. § 1952 (travel or use of the mail or facility of interstate commerce
10
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in aid of prostitution or other racketeering enterprises); 18 U.S.C. § 2422(a) (coercion or
enticement of a person to travel across state lines for prostitution or illegal sexual activity);
and 18 U.S.C. § 2423(a) (interstate transportation of a minor for purposes of prostitution
or illegal sexual activity)—and attempts and conspiracies to violate these statutes.
The affidavit supporting the warrant provided an overview of the four federal crimes
under investigation. It discussed the mechanics of Facebook and the types of data created
and stored on the platform. It further explained how Special Agent Obie had learned
through training and experience that violent gangs like MS-13 engage in human sex
trafficking as a source of revenue. Additionally, the affidavit relayed that individuals
engaged in sex trafficking will often use Facebook to facilitate such criminal activity, and
that MS-13 members were generally known to use Facebook to coordinate and arrange
prostitution and other crimes.
The affidavit went on to provide case-specific information to establish probable
cause for the search and seizure of data from the five Facebook accounts. It explained that
adult men, including Sioni, had discussed commercial sex activities with Minor-2 on
Facebook. It also established that Sioni had engaged in sexual activity with Minor-1.
The Second Warrant
Special Agent Obie obtained a second warrant in the Eastern District of Virginia,
signed by U.S. Magistrate Judge Ivan D. Davis, on June 5, 2019. This warrant ordered
Facebook to give the government the same nine categories of information as in the first
warrant, but this time on eight new Facebook accounts. Five of these accounts belonged to
appellant Luis Gonzales, and the other three belonged to co-conspirators who are not
11
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parties to this appeal. Just like the first warrant, this one authorized the search of all account
data going back to the accounts’ respective dates of creation, and it permitted the seizure
of information that constituted fruits, evidence, or instrumentalities of the same four federal
offenses.
The affidavit supporting this warrant provided the same information as did the first
warrant regarding the statutory offenses, the mechanics of Facebook, and MS-13’s
operation of prostitution enterprises. It also provided twenty pages of investigative
findings, photos, and screenshots of communications which detailed MS-13’s exploitation
of Minor-2. Some of this evidence was derived from the previous warrant-backed seizure
of Facebook account data.
The affidavit discussed photographs of Luis Gonzales that had been posted by five
different Facebook accounts. Each of the accounts was named “Luis Figo.” Minor-2
identified these photographs to be pictures of “Luis,” whom she said was an MS-13
member integral to her physical abuse and sex trafficking. The affidavit described how
Luis had sold Minor-2 to customers, forced her to have sex, and sedated her with drugs and
alcohol before prostitution dates. It further described how the investigation had unearthed
that a credit card in Luis’s name was used to pay for the phone bill of the cell phone that
Minor-2 possessed when she was recovered by law enforcement. The affidavit also
revealed that Luis had spent significant time at the apartment complex where Minor-2 was
recovered.
The Third Warrant
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The next Facebook warrant obtained by Special Agent Obie was signed by Judge
Anderson on July 12, 2019. It ordered Facebook to disclose information associated with
ten accounts. One of the accounts belonged to appellant Moises Zelaya-Veliz. Four of the
accounts belonged to MS-13 affiliates who were unindicted co-conspirators. The
remaining five accounts belonged to Minor-1, Minor-2, and Minor-3.
While the first two warrants contained no temporal limitation on what data could be
searched, this warrant ordered Facebook to disclose information from January 1, 2018 to
the date the warrant was sworn out. The warrant also broadened the scope of the
information that Facebook was required to turn over. It mandated disclosure of eighteen
different categories of data from Facebook, including a broader set of user activity, IP
addresses, device identifier logs, and all location information associated with the accounts.
Just like the first two warrants, this warrant only permitted the government to seize
information that constituted fruits, evidence, or instrumentalities of the four previously
enumerated offenses plus one additional offense: 18 U.S.C. § 1959 (violent crimes in aid
of racketeering).
Special Agent Obie’s affidavit provided general information on the statutory
offenses at issue, the mechanics of Facebook, and MS-13’s operation of prostitution
enterprises. It also provided a glossary of terminology frequently used by MS-13.
The affidavit went on to offer thirty pages of case-specific information, including
screenshots and transcripts of conversations about the sex trafficking of Minor-2. It
explained that Minor-2 told law enforcement that she had been taken to the home of Moises
Zelaya-Veliz after her initial beating. It described how investigating officers knew Moises
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operated the Facebook account targeted by the search warrant, which used the name
“Moizes Zelaya Bonilla,” because his Facebook profile picture matched pictures in a law
enforcement database. The affidavit additionally relayed that the warrant-backed search of
Sioni Gonzalez’s Facebook account had revealed that Moises had used Facebook to send
photos of firearms, illegal drugs, and MS-13 gang signs.
The Fourth Warrant
The fourth and final Facebook warrant was signed by then U.S. Magistrate Judge
Michael S. Nachmanoff on February 20, 2020. This warrant authorized the search of
information from twenty-two Facebook accounts, including accounts belonging to four
appellants—Jose Molina-Veliz, Santos Gutierrez Castro, Jonathan Rafael Zelaya-Veliz,
and Gilberto Morales—as well as multiple accounts of unindicted co-conspirators.
Like the third warrant, the final warrant required Facebook to provide account
information from January 1, 2018 to the date the warrant was sworn out. The warrant used
the same list of eighteen types of information for Facebook to disclose as in the third
warrant. And, just like the previous warrant, it limited the government’s seizure to include
only information discovered during the search that constituted fruits, evidence, or
instrumentalities of the five enumerated offenses.
Special Agent Obie’s affidavit, as in his previous warrant applications, described
the statutory offenses at issue, the mechanics of Facebook, and MS-13’s operation of
prostitution enterprises. By the time of the affidavit’s filing, over ten months after the initial
Facebook warrant, the government had compiled a substantial investigative record into
MS-13’s sex trafficking of Minor-1, Minor-2, and Minor-3. The affidavit thus provided
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over fifty pages of case-specific information, which included descriptions, images, and
transcripts of the illicit activities of the appellants and their co-conspirators. The affidavit’s
detailed account revealed how each of the four appellants targeted by this warrant had
participated in the sex trafficking of Minor-2.
With respect to Jose Eliezar Molina-Veliz, whose Facebook account used the name
“Jose Eliezar Hernandez,” the affidavit used returns from previous Facebook warrants to
describe how he had engaged in sexually explicit communications over Facebook with
Minor-2 and Minor-3 during the period that the two girls were being exploited by MS-13.
It also recounted how he had used Facebook to coordinate Minor-2’s transportation for sex.
With respect to Santos Gutierrez Castro, who went by “Gutierrez Hernestho” on
Facebook, the affidavit explained that Minor-2 had taken a photo of Minor-3 and Santos
the day after Minor-2 had initially been beaten in the garage, and subsequently posted that
photo on her Facebook. The affidavit further relayed that Santos had used Facebook to
solicit sexually explicit photos and in-person sexual acts from Minor-2 in exchange for
money and illegal drugs. It shared evidence that Santos was using Facebook to coordinate
sending multiple prostitution customers to Minor-2 so that they could sexually exploit her.
And it discussed how a phone number known to be used by Santos was linked to the
targeted Facebook account.
With respect to Jonathan Rafael Zelaya-Veliz—who operated four Facebook
accounts under the names “Jonathan Zelaya” and “Rafael Zelaya”—the affidavit explained
that Minor-2 knew Jonathan as Moises Zelaya-Veliz’s brother. It identified Jonathan as
living at the apartment complex where Minor-2 had been held during the final two weeks
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of her exploitation. And it explained that Jonathan had used Facebook to communicate
with Moises about having sex with Minor-2.
With respect to Gilberto Morales, the affidavit discussed how Minor-2 had
identified him as one of the men who sexually abused her. It explained that Gilberto had
been in regular contact with Minor-2 during her abuse. And it shared a transcript of a
conversation in which Gilberto admitted to being business partners with Luis Gonzales in
the sex trafficking of Minor-2 and sought out an additional partner for the operation.
Summary of Facebook Warrants
The following table summarizes the four Facebook warrants executed by the
government. See Appellants’ Brief at 9–10.
Date of
issuance
Mar. 14,
2019
Jun. 5,
2019
Jul. 12,
2019
Feb. 20,
2020
No. of
Appellants’ accounts
accounts searched
searched
5
None
Data
disclosed
Temporal
limitation
Short list 1
None
8
Luis Gonzales
Short list
None
10
Moises Zelaya-Veliz
Long list 2
22
Jose Eliezar Molina-Veliz,
Santos Ernesto Gutierrez
Castro, Gilberto Morales, and
Jonathan Rafael Zelaya-Veliz
Long list
January 1, 2018
to date of warrant
execution
January 1, 2018
to date of warrant
execution
Nine categories of information, including all communications sent to and from the
accounts.
1
Eighteen categories of information, including all of the accounts’ communications
and location information.
2
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C.
On August 27, 2020, a grand jury in the Eastern District of Virginia returned a multicount indictment against the six appellants and five additional defendants, charging them
with child sexual exploitation-related offenses in violation of 18 U.S.C. §§ 1591, 1594, and
2423, and assault with a dangerous weapon in aid of racketeering activity in violation of
18 U.S.C. § 1959. A superseding indictment issued on April 19, 2022.
Before trial, Moises Zelaya-Veliz, Jose Molina-Veliz, Luis Gonzales, Gilberto
Morales, and Jonathan Zelaya-Veliz moved to suppress the evidence obtained from the
Facebook warrants. They argued the warrants lacked probable cause and were
insufficiently particularized.
The district court denied the motions to suppress in a ruling from the bench. It found
that the Facebook warrants were supported by probable cause, stating that “the magistrate
judges [who issued the warrants] in each instance did have a substantial basis for
concluding, as to each of the defendants, a sufficient nexus existed between the Facebook
accounts to be searched and the crimes under investigation.” J.A. 114–15. The court next
found that the warrants were sufficiently particular in timeframe and scope. The timeframe
of the warrants was reasonable, according to the court, because the searches supported an
investigation beyond Minor-2’s abuse into an “extensive ongoing interstate criminal
enterprise of uncertain beginnings,” and because the government narrowed the timeframe
of the information sought as the investigation progressed. J.A. 115. And the court found
that the scope of the information sought was reasonable because, based on the information
submitted to the magistrates, there was a substantial basis to believe that all of the
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categories of information sought were relevant to establishing the identities of perpetrators
and revealing their criminal activities.
The six appellants proceeded to a jury trial on June 1, 2022. During the course of
the seven-day trial, the government extensively employed information that it had obtained
from the Facebook warrants. It admitted dozens of exhibits of Facebook-warrant-derived
evidence and discussed this evidence at length in its opening and closing statements.
The jury deliberated for three days before returning convictions for each appellant.
Santos Gutierrez Castro, Luis Gonzales, Jose Molina-Veliz, Jonathan Zelaya-Veliz, and
Moises Zelaya-Veliz were each convicted of sex trafficking a minor under the age of
fourteen, conspiracy to do the same, and conspiracy to transport a minor across state lines
for purposes of prostitution or other illegal sexual activity. Gilbert Morales was convicted
of sex trafficking of a minor under the age of fourteen and conspiracy to do the same.
After trial, all appellants made oral motions for judgment of acquittal under Federal
Rule of Criminal Procedure 29. The court denied those motions on October 7, 2022.
The district court sentenced the appellants on November 10, 2022. Their respective
terms of imprisonment were 300 months for Luis Gonzales, 264 months for Moises ZelayaVeliz, and 180 months each for Santos Gutierrez Castro, Jose Molina-Veliz, Gilberto
Morales, and Jonathan Zelaya-Veliz.
The appellants timely appealed. The five appellants who had moved to suppress
evidence derived from the Facebook warrants challenge the district court’s denial of their
motions to suppress, claiming that the warrants lacked probable cause and were
insufficiently particularized. The sixth appellant, Santos Gutierrez Castro, challenges the
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district court’s denial of his motion for acquittal, claiming that insufficient evidence was
presented at trial to sustain his convictions.
II.
We start with the appellants’ contention that the district court erred in denying their
motions to suppress evidence from the Facebook warrants. Before analyzing their specific
claims, we first determine which warrants the appellants have Fourth Amendment standing
to challenge. We next address the appellants’ claims that the warrants lacked probable
cause and were insufficiently particularized, taking each issue in turn.
A.
As an initial matter, we note that a defendant can only challenge a warrant that
authorizes the search or seizure of items in which he had a protected Fourth Amendment
interest. It is insufficient for the defendant to show that a third party had a protected interest
in the information searched because “it is proper to permit only defendants whose Fourth
Amendment rights have been violated to benefit from the rule’s protections.” Rakas v.
Illinois, 439 US 128, 134 (1978). Thus, to prevail in a motion to suppress evidence obtained
from a search, a defendant has the burden of showing that the government implicated a
protected interest of his in conducting that search. See id. at 130 n.1 (1978). Courts often
refer to the requirement that a defendant show that a search implicated his protected interest
as “Fourth Amendment standing,” although it “should not be confused with Article III
standing” because it is “not a jurisdictional question and hence need not be addressed
before addressing other aspects of the merits of a Fourth Amendment claim.” Byrd v.
United States, 584 U.S. 395, 410–11 (2018).
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As the defense conceded at oral argument, none of the appellants has Fourth
Amendment standing to challenge the first Facebook warrant. That warrant only targeted
accounts belonging to two co-conspirators who are not parties in this appeal. Because no
protected interest of the appellants was implicated by the first warrant, we need not assess
its constitutionality.
In contrast, each of the subsequent Facebook warrants targeted accounts that
belonged to at least one appellant. The second warrant targeted Luis Gonzales’s accounts.
The third warrant targeted Moises Zelaya-Veliz’s account. And the fourth warrant targeted
accounts belonging to Jose Molina-Veliz, Santos Gutierrez Castro, Jonathan Zelaya-Veliz,
and Gilberto Morales. Given this, the government and defense both accepted that the
appellants had Fourth Amendment standing to challenge these warrants.
In adopting the litigants’ assumption that Fourth Amendment standing exists here,
we note that each of the warrants at issue required the disclosure of the appellants’ private
communications. Most federal courts to rule on the issue have agreed that Facebook and
other social media users have a reasonable expectation of privacy in content that they
exclude from public access, such as private messages. See United States v. Bledsoe, 630 F.
Supp. 3d 1, 18 (D.D.C. 2022) (finding the “weight of persuasive authority hold[s] that nonpublic content held on social media accounts is protected under the Fourth Amendment”
and citing cases); United States v. Chavez, 423 F. Supp. 3d 194, 201–205 (W.D.N.C. 2019);
United States v. Irving, 347 F. Supp. 3d 615, 623 (D. Kan. 2018).
Such an approach reflects the consensus of federal courts that private electronic
communications are generally protected by the Fourth Amendment, even when transmitted
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over third-party platforms. See, e.g., United States v. Wilson, 13 F.4th 961, 980 (9th Cir.
2021) (holding examination of defendant’s email attachments without a warrant violated
his Fourth Amendment right to be free from unreasonable searches); United States v.
Hasbajrami, 945 F.3d 641, 666 (2d Cir. 2019) (assuming for the purposes of the appeal
that “a United States person ordinarily has a reasonable expectation in the privacy of his emails”); United States v. Warshak, 631 F.3d 266, 284–88 (6th Cir. 2010) (holding the
Fourth Amendment protects private email communications); United States v. Richardson,
607 F.3d 357, 363–64 (4th Cir. 2010) (suggesting that before a government agent searches
emails, “probable cause and a warrant [a]re required”); see also Katz v. United States, 389
U.S. 347, 352–53 (1967) (finding persons have a protected Fourth Amendment interest in
the content of their phone conversations, despite the ability of an operator to listen in); Ex
parte Jackson, 96 U.S. 727, 733 (1877) (holding that the contents of postal letters are
entitled to Fourth Amendment protection, despite the fact that letters are entrusted to
intermediaries).
It cannot be the rule that the government can access someone’s personal
conversations and communications without meeting the warrant requirement or one of the
Supreme Court’s delineated exceptions to it. The judiciary would not allow such a trespass
upon privacy at its core.
B.
We thus turn to the appellants’ claims that the second, third, and fourth warrants
were constitutionally deficient. Their first contention is that the district court erred in
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denying their motions to suppress because the Facebook warrants were issued without
probable cause. We disagree.
1.
The Fourth Amendment requires that warrants be supported by probable cause. U.S.
Const. amend. IV. There is probable cause when, “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). Probable cause is
a “fluid concept—turning on the assessment of probabilities in particular factual contexts—
not readily, or even usefully, reduced to a neat set of legal rules.” Id. at 232. Courts thus
must not invalidate a warrant based on “a hypertechnical, rather than a commonsense,”
interpretation of the warrant affidavit, id. at 236, but must instead take into account “‘the
factual and practical considerations of everyday life on which reasonable and prudent men,
not legal technicians, act.’” Ornelas v. United States, 517 U.S. 690, 695 (1996) (quoting
Gates, 462 U.S. at 231).
Reviewing courts must determine whether “the magistrate had a substantial basis
for concluding that a search would uncover evidence of wrongdoing.” Gates, 462 U.S. at
236 (internal quotations omitted); see also Massachusetts v. Upton, 466 U.S. 727, 732–33
(1984). In doing so, “[w]e afford initial probable cause determinations ‘great deference’
when, as here, a ‘neutral and detached magistrate’ finds probable cause to support a
warrant.” United States v. Orozco, 41 F.4th 403, 407 (4th Cir. 2022) (quoting Gates, 462
U.S. at 236, 240).
2.
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The magistrates who approved the three Facebook warrants at issue each had a
substantial basis for concluding that the searches would uncover evidence of wrongdoing.
They each reasonably determined, based on the information averred in the supporting
affidavits, that there was a fair probability that evidence of MS-13’s sex trafficking crimes
would be found on the appellants’ Facebook accounts.
The affidavits all explained how Special Agent Obie’s training and experience made
him aware that MS-13 uses social media platforms such as Facebook to conduct and
communicate about criminal activities, including commercial sex trafficking. The
magistrates were well within their discretion to rely on an officer’s “assertion of trainingand experience-based knowledge” to help substantiate the nexus between the sex
trafficking crimes listed by the warrants and the Facebook accounts to be searched. United
States v. Williams, 548 F.3d 311, 319–20 (4th Cir. 2008). This reliance is particularly
appropriate where, as here, the averred facts based on training and experience were
substantiated by examples in case law of MS-13 using social media to advance its criminal
activities. See, e.g., United States v. Ruiz, 623 F. App’x 535, 536 (11th Cir. 2015) (per
curiam); United States v. Juvenile Male, 269 F. Supp. 3d 29, 38 (E.D.N.Y. 2017); United
States v. Contreras, 2017 WL 6419136, at *1 (D. Md. Oct. 19, 2017).
The appellants contend that training and experience alone are insufficient to
establish a nexus between the location of the proposed search and the alleged criminal
activity, citing United States v. Schultz, 14 F.3d 1093, 1097–98 (6th Cir. 1994). But far
from relying merely on averments about the typical uses of social media by gang members,
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each affidavit provided copious details linking the appellants’ use of Facebook to the sex
trafficking enterprise under investigation.
Take first the affidavit supporting the second warrant. This affidavit identified Luis
Gonzales as the user behind the five targeted Facebook accounts bearing the name “Luis
Figo.” It stated that Minor-2 had, during an interview with law enforcement, identified a
photo posted by each of the Facebook accounts as depicting someone she called “Luis,”
whom she explained was an integral participant in her physical and sexual abuse. And it
discussed how Luis’s credit card had been used to pay for the phone bill of the cell phone
recovered on Minor-2’s person. Moreover, the affidavit showed Luis’s associates in MS13 using Facebook to discuss the first bat beating of Minor-2. This combination of evidence
established that (1) Luis was involved in the sex trafficking of Minor-2; (2) he was
operating multiple Facebook accounts under an assumed last name; and (3) his MS-13
associates used Facebook to facilitate Minor-2’s trafficking and physical abuse. The
affidavit thus provided ample support for the magistrate’s determination that there was a
sufficient nexus between the five accounts to be searched and the evidence of sex
trafficking to be seized.
Next, consider the third warrant. Here too a substantial basis existed for the
magistrate’s finding, in authorizing the warrant, that probable cause existed to search
Moises Zelaya-Veliz’s Facebook account. The affidavit provided a detailed description,
based on interviews with Minor-2, of how Moises was central to the sex trafficking
conspiracy. And, according to the affidavit, the warrant-backed search of Sioni Gonzalez’s
Facebook account had revealed that Moises used his Facebook account to advance MS24
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13’s other criminal endeavors. These endeavors involved the use of firearms, and were
depicted through the transmission of photographs of firearms, illegal drugs, and gang signs.
Finally, take the fourth warrant. The magistrate had a substantial basis for
concluding that probable cause existed to search the Facebook accounts of the four
appellants the warrant targeted. Submitted to the court on February 20, 2020—over ten
months into the investigation—the affidavit supporting this warrant provided voluminous
information on the sex trafficking conspiracy and directly tied the use of Facebook by each
of the four appellants to their criminal activities. In doing so, the affidavit made extensive
use of the Facebook records produced pursuant to the previous warrants.
For Santos Gutierrez Castro, the affidavit provided Facebook transcripts of his
conversations coordinating prostitution customers for Minor-2 and soliciting sexually
explicit photos and in-person sexual acts from Minor-2 in exchange for money and drugs.
For Jose Molina-Veliz, the affidavit transcribed Facebook conversations consisting of
sexual advances towards Minor-2 and Minor-3 during the period that the two girls were
being exploited by MS-13. For Jonathan Zelaya-Veliz, it shared evidence of his discussing
with his brother Moises the sex trafficking and exploitation of Minor-2. And for Gilberto
Morales, the affidavit disclosed that he partnered with Luis Gonzales in trafficking Minor2, that he sexually abused Minor-2, and that he sought regular contact with Minor-2 during
her confinement and exploitation.
Contributing further to the affidavits’ credibility and the establishment of probable
cause was the information that Minor-2 bravely relayed to law enforcement during her
post-recovery interviews. Her decision to share the details of her abuse with the authorities
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was an act of genuine courage. Providing information to law enforcement on gang-related
offenses can subject a victim to retribution and revenge, and multiple MS-13 members had
threatened Minor-2 with death for her and her family. The strength with which this thirteenyear-old victim shared the grim facts about her abuse is therefore firm evidence of her
credibility. Indeed, the circumstances under which Minor-2 talked to law enforcement
make the information she shared tantamount to statements against interest, which the
Federal Rules of Evidence regard as indicative of reliability. See Fed. R. Evid. 804(b)(3)
(stating that certain statements are so contrary to a declarant’s own interest that a reasonable
person would only make such statements if they believed them to be true).
The warrant affidavits in this case were well-sourced. They incorporated
information from a reliable witness, the experience of an agent well-versed in the workings
of MS-13, and—with each successive warrant—an increasingly incriminating chain of
messages that tethered successive Facebook accounts to the larger conspiracy. In light of
the thoroughness of the affidavits, the magistrates quite properly found probable cause.
C.
Next, the appellants contend the Facebook warrants were insufficiently
particularized in two ways. First, they claim the scope of the warrants should have included
fewer categories of data from the Facebook accounts. Second, they claim that the
timeframe of the warrants should have been limited to include only information during the
trafficking of Minor-2 instead of information from before and after that period.
1.
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The Fourth Amendment requires that warrants “particularly describ[e] the place to
be searched, and the person or things to be seized.” U.S. Const. amend. IV. This
requirement stems from our Founders’ disdain for “the reviled ‘general warrants’ and
‘writs of assistance’ of the colonial era, which allowed British officers to rummage through
homes in an unrestrained search for evidence of criminal activity.” Riley v. California, 573
U.S. 373, 403 (2014); see also Marron v. United States, 275 U.S. 192, 195–96 (1927). By
having to state with particularity the scope of the authorized search, a warrant prohibits the
government from having “unbridled discretion to rummage at will among a person’s
private effects.” Arizona v. Gant, 556 U.S. 332, 345 (2009); see also Andresen v. Maryland,
427 U.S. 463, 480 (1976); United States v. Blakeney, 949 F.3d 851, 861 (4th Cir. 2020).
At the same time, the particularity requirement is not a “constitutional straight
jacket,” United States v. Williams, 592 F.3d 511, 519 (4th Cir. 2010), and it should be not
read to create “a too-cramped understanding of the scope of a proper warrant.” United
States v. Jones, 952 F.3d 153, 158 (4th Cir. 2020). Because the particularity requirement
is “a pragmatic one,” “[t]he degree of specificity required when describing the goods to be
seized may necessarily vary according to the circumstances and type of items involved.”
United States v. Cobb, 970 F.3d 319, 327 (4th Cir. 2020) (quoting United States v. Jacob,
657 F.2d 49, 52 (4th Cir. 1981)).
2.
With this background in mind, we turn to the appellants’ argument that the warrants
were insufficiently particularized with respect to the scope of the information that they
required Facebook to disclose. The warrants compelled Facebook to turn over a wide swath
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of personal information attached to the accounts, including all private communications,
most user activity, and, in the case of the latter two warrants, all location information. But
each warrant “‘identif[ied] the items to be seized by reference to [the] suspected criminal
offense[s],’” namely, 18 U.S.C. §§ 1591, 1952, 2422(a), and, with respect to the latter two
warrants, also 18 U.S.C. § 2423(a). Cobb, 970 F.3d at 329 (quoting Blakeney, 949 F.3d at
863). So while the warrants authorized the government to search all of the information
disclosed by Facebook, they only permitted the subsequent seizure of the fruits, evidence,
or instrumentalities of violations of enumerated federal statutes. We have previously found
that a warrant’s particularity is bolstered where, as here, the scope of the seizure it
authorized was limited to evidence of enumerated offenses. See id. at 328–29; Blakeney,
949 F.3d at 863; United States v. Jones, 31 F.3d 1304, 1313 (4th Cir. 1994). The warrants
in this case thus appropriately “confined the executing officers’ discretion,” Cobb, 970
F.3d at 328, by restricting them from rummaging through the appellants’ social media data
in search of unrelated criminal activities.
This distinction between what may be searched and what can be seized counsels the
government to execute social media warrants through a two-step process. This process—
whereby the government first obtains a large amount of account data then seizes only the
fruits, evidence, or instrumentalities of enumerated crimes—is crucial to the validity of
social media warrants. As in a search of a house, the officers searching the Facebook
account data at issue necessarily encountered a host of irrelevant materials. But, just like
in a house search, the officers were authorized to seize only the fruits, evidence, or
instrumentalities of the crimes for which they had established probable cause.
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The validity of this two-step process is acknowledged by Federal Rule of Criminal
Procedure 41(e)(2)(B) and its commentary, which permit officers, in searching
electronically stored information pursuant to a warrant, to “seize or copy the entire storage
medium and review it later to determine what electronically stored information falls within
the scope of the warrant.” Fed. R. Crim. P. 41(e)(2)(B) Committee Notes on Rules—2009
Amendment. While “the Fourth Amendment generally leaves it ‘to the discretion of the
executing officers to determine the details of how best to proceed with the performance of
a search authorized by warrant,’” Cybernet, LLC v. David, 954 F.3d 162, 168 (4th Cir.
2020) (quoting Dalia v. United States, 441 U.S. 238, 257 (1979)), the two-step process, as
laid out in Rule 41, helps to mitigate particularity concerns in the social media warrant
context. See United States v. Mercery, 591 F. Supp. 3d 1369, 1382 (M.D. Ga. 2022) (noting
the “general practice for agents to comply with Rule 41 by creating a two-step process—
the ‘search’ wherein the warrant will compel the third party to produce a broad array of
electronic information, and the ‘seizure’ wherein the warrant will authorize the seizure of
[] specified information.”).
Contrary to the appellants’ claims, this two-step process is not toothless. Rule 41
and the terms of the warrants at issue ensured that the government executed the warrant in
a reasonable manner. The district court retained the authority to determine that prolonged
retention of non-responsive data by the government violated the Fourth Amendment. See
J.A. 120 (finding that “the Government was authorized and is authorized to proceed with
this two-step procedure, and that at this point it cannot be said that the time period to
complete that process has expired.”). This authority derives from the fact that, “[i]n the
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[warrant] execution context, as elsewhere, Fourth Amendment reasonableness kicks in.”
Cybernet, 954 F.3d at 168. Courts have applied this reasonableness standard to suppress
evidence when the government delayed unreasonably in sifting through social media
warrant returns for relevant evidence. See, e.g., United States v. Cawthorn, 2023 WL
5163359, at *5–7 (D. Md. July 13, 2023) (finding Fourth Amendment violated when
government waited two years after executing warrant to review social media account data
and did not justify delay). These safeguards help ensure that, despite the large scope of
information that the warrants here returned, the searches and seizures they authorized were
not insufficiently particularized.
The wide-ranging nature of the sex trafficking conspiracy under investigation
further mitigates any concern that the scope of the warrant was impermissibly broad. The
FBI was investigating the multi-month sex trafficking of at least three underage girls by
force and coercion. By the time the first warrant at issue was sought, that investigation had
produced evidence that a host of gang-affiliated suspects had helped sex traffic the minors,
and many more had engaged in illegal sexual activity with them. And these were not just
“ordinary” gang members. The suspects were members of or otherwise affiliated with MS13, a transnational criminal organization that “defined its primary mission as killing rivals”
and that committed numerous murders across the United States. See United States v. PerezVasquez, 6 F.4th 180, 187 (1st Cir. 2021). A reasonable inference from the evidence in the
warrant affidavits was that the sex trafficking conspiracy was ongoing, as at least some of
the suspects appeared willing to sex traffic minors under the threat of death as a matter of
course so that they could fund their lifestyles and MS-13’s operations.
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Moreover, the affidavit showed how the conspirators were using Facebook
extensively to communicate with co-conspirators, victims, and customers in furtherance of
the conspiracy. Under such circumstances, it did not violate the Fourth Amendment’s
particularity requirement for law enforcement to obtain detailed Facebook user activity
data on the sex trafficking suspects. See, e.g., United States v. Allen, 2018 WL 1726349, at
*2, *6 (D. Kan. Apr. 10, 2018) (holding Facebook warrant that produced 28,000 pages of
records was sufficiently particularized in the context of an investigation into a complex
criminal conspiracy to use a weapon of mass destruction); United States v. Daprato, 2022
WL 1303110, at *7 (D. Me. May 2, 2022) (rejecting particularity challenge to a warrant
that compelled disclosure of broad array of Facebook account data to help “reveal [a
defendant’s] additional connections with the codefendants or victims”). The sheer
magnitude of the sex trafficking conspiracy here justified a concomitant breadth in the
scope of the warrants, particularly as the seizures they authorized were limited to evidence
of the specified offenses for which probable cause existed.
3.
We next consider the appellants’ claim that the timeframe of the warrants was fatally
overbroad. The appellants contend that the second warrant was insufficiently particularized
because it had no temporal limitation, and that the third and fourth warrants were
insufficiently particularized because their temporal limitations far exceeded the two-month
period of time during which Minor-2 was sex trafficked. Other courts have found that a
temporal limitation can help particularize warrants that authorize the search and seizure of
Facebook account data. See, e.g., Chavez, 423 F. Supp. 3d at 207; see also United States v.
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McCall, 84 F.4th 1317, 1328 (11th Cir. 2023) (“By narrowing a search to the data created
or uploaded during a relevant time connected to the crime being investigated, officers can
particularize their searches to avoid general rummaging.”).
We start with the third and fourth warrants, both of which were timebound. They
limited the period of disclosure from January 2018 to their respective dates of service. This
timeframe was appropriately particularized as (1) the affidavits suggested that Minor-2 had
been sexually abused by affiliates of MS-13 starting during or before June 2018; (2) Minor2’s abuse was part of a broader sex trafficking conspiracy involving multiple minors,
including Minor-3, who was already in close contact with MS-13 members before she met
Minor-2 and who may have already been sex trafficked by them; (3) each affidavit
explained how gang members involved in a sex trafficking conspiracy often use social
media to discuss the conspiracy before, during, and after its execution; (4) multiple
appellants continued to use Facebook to message Minor-2 after she was recovered by law
enforcement in October 2018; and (5) it was appropriate for the magistrates to infer from
the affidavits that the targeted MS-13 members and affiliates were engaged in what the
district court called an “extensive ongoing interstate criminal enterprise of uncertain
beginnings.” J.A. 115. The extensive nature of the conspiracy being investigated in this
case meant that “less temporal specificity [wa]s required here than in other contexts where
evidence can more readily be confined to a particular time period.” United States v.
Manafort, 323 F. Supp. 3d 768, 782 (E.D. Va. 2018). As the Tenth Circuit has rightly
noted, “[w]arrants relating to more complex and far-reaching criminal schemes may be
deemed legally sufficient even though they are less particular than warrants pertaining to
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more straightforward criminal matters.” United States v. Cooper, 654 F.3d 1104, 1127
(10th Cir. 2011).
The second warrant that targeted Luis Gonzales’s Facebook accounts, on the other
hand, lacked a temporal limitation. This total lack of a time period in a social media warrant
raises a problem. As our society moves further into the digital age, Facebook and other
social media accounts are beginning to contain decades of personal information and
communications, often going back to an account holder’s early teenage years. These social
media accounts, much like cell phones, frequently contain “a broad array of private
information never found” during a traditional search of a home. Riley, 573 U.S. at 397; see
also United States v. Galpin, 720 F.3d 436, 447 (2d Cir. 2013) (“Where a warrant
authorizes the search of a residence, the physical dimensions of the evidence sought will
naturally impose limitations on where an officer may pry[.] . . . Such limitations are largely
absent in the digital realm[.]”). That is why one court has stated that Facebook warrants
pose “an especially potent threat to privacy” because they can “provide[] a single window
through which almost every detail of a person’s life is visible.” United States v. Shipp, 392
F. Supp. 3d 300, 307–08 (E.D.N.Y. 2019).
Moreover, the imposition of a temporal limitation on the information that Facebook
must disclose does not pose the administrability concerns that an analogous limitation
would pose in a traditional search of a home. That is because it is possible for Facebook to
filter data by time frame before disclosing it to the government, while an officer searching
a home often has no idea when each item was last used. See McCall, 84 F.4th at 1328.
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Thus, “a time-based limitation [is] both practical and protective of privacy interests” in the
context of social media warrants. Id.
We need not go so far as to mandate a temporal restriction in every compelled
disclosure of social media account data for the simple reason that we cannot anticipate all
future circumstances. Nor do we invalidate the warrant-backed search and seizure of Luis
Gonzales’s Facebook account information. Rather, in applying the Fourth Amendment to
novel questions posed by digital technology, we find it advisable to proceed with caution.
“The judiciary risks error by elaborating too fully on the Fourth Amendment implications
of emerging technology before its role in society has become clear.” City of Ontario, Cal.
v. Quon, 560 U.S. 746, 759 (2010). We therefore hold that Luis’s motion to suppress was
properly denied because the good faith exception to the exclusionary rule applies. See
United States v. Leon, 468 U.S. 897, 922–24 (1984).
Given the unsettled nature of whether a temporal limitation is required on a warrant
authorizing the search and seizure of Facebook account data, we cannot say that “a
reasonably well trained officer would have known that the search was illegal despite the
magistrate's authorization.” Id. at 922 n.23. Rather, law enforcement here acted pursuant
to a warrant that was not “so facially deficient . . . that the executing officers [could not]
reasonably presume it to be valid.” Id. at 922–23. It is axiomatic that “‘[c]ourts should not
punish law enforcement officers who are on the frontiers of new technology simply because
they are at the beginning of a learning curve and have not yet been apprised of the
preferences of courts on novel questions.’” Cawthorn, 2023 WL 5163359, at *4 (quoting
Chavez, 423 F. Supp. 3d at 208). As Special Agent Obie relied on his good faith belief in
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the warrant’s validity, we hold that the district court did not err in denying the appellants’
motions to suppress. We note, however, that future warrants enhance their claims to
particularity by “request[ing] data only from the period of time during which [the
defendant] was suspected of taking part in the [criminal] conspiracy.” United States v.
Blake, 868 F.3d 960, 974 (11th Cir. 2017).
Our ruling is a narrow one, and we do not greenlight all warrants for and searches
of social media data. 3 Because “the ultimate touchstone of the Fourth Amendment is
reasonableness,” Fernandez v. California, 571 U.S. 292, 298 (2014), the validity of any
warrant depends on an analysis of the circumstances at issue. This is no less true in the
social media context than in a search in the Founders’ day.
III.
Finally, Santos Gutierrez Castro claims the district court should have granted his
motion for acquittal because insufficient evidence was presented at trial to sustain his
convictions. See Fed. R. Crim. P. 29. We review the denial of such a motion de novo.
United States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). If, viewing the evidence in
the light most favorable to the prosecution, the guilty verdict at trial was supported by
substantial evidence, we are required to sustain it. United States v. Burgos, 94 F.3d 849,
862 (4th Cir. 1996) (en banc).
We do not, for example, address the question of whether officers sifting through
Facebook account data for the fruits and instrumentalities of sex trafficking could lawfully
build a different case under a plain view discovery of a distinct offense.
3
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We reject Santos’s sufficiency challenge and affirm his convictions. Substantial
evidence supported the jury’s conclusion that Santos was guilty of (1) conspiracy to engage
in sex trafficking of a minor under fourteen or of a minor by force, fraud, or coercion in
violation of 18 U.S.C. §§ 1591(a)(1) and 1594(c); (2) sex trafficking of a minor under
fourteen or of a minor by force, fraud, or coercion in violation of 18 U.S.C. §§ 1591(a)(1)
and 1591(b)(1); and (3) conspiracy to transport a minor in interstate commerce with intent
for the minor to engage in prostitution or illegal sexual activity in violation of 18 U.S.C.
§ 2423(e). The jury heard evidence that Santos harbored Minor-2 in his house for multiple
days, had sex with her there despite knowing she was underage, and allowed multiple other
men to do the same in exchange for money. The jury also received Facebook records
showing that Santos coordinated with co-conspirators to sex traffic Minor-2, including by
circulating risqué photos of her and discussing where to transport her so that customers
could sexually exploit her.
Santos claims on appeal that “[n]ot one witness testified” that he received anything
of value in return for sexual acts by Minor-2. Appellants’ Brief at 40. Yet Minor-2 herself
testified that, while she was in Santos’s home, she heard him telling people over the phone
that if they were going to have sex with her, they had to pay $100 per hour. The same day
that she overheard this call, Minor-2 was forced to have sex with more than ten men in
Santos’s home. Santos disputes the validity of this testimony, noting that in Minor-2’s
initial interviews with law enforcement, she said she did not recall whether Santos received
money in exchange for her having sex. But, viewing the evidence in the light most
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favorable to the prosecution, it was well within the jury’s discretion to credit Minor-2’s
trial testimony.
Beyond Minor-2’s testimony, copious Facebook records and interview transcripts
support the jury’s verdict. Santos himself openly admitted in a Mirandized interview with
FBI agents that he had engaged in sex with Minor-2, whom he knew was underage, while
she was at his house. This admission is substantiated by multiple Facebook conversations
between Santos and Minor-2 in which he discussed meeting up with her to have sex. In
Facebook conversations between Santos and Jose Molina-Veliz, they talked about the
possibility that one of them had impregnated Minor-2. The two also discussed, around the
time of Minor-2’s second bat beating, meeting up so they could beat Minor-2 on the chest.
What’s more, Facebook conversations with additional co-conspirators show Santos
coordinating the transportation of Minor-2 to different prostitution customers, including
one conversation in which he refers to Minor-2 as a female prisoner.
To summarize, the extensive Facebook records presented at trial, combined with
Minor-2’s testimony and Santos’s admissions to the FBI, provided substantial evidence on
which the jury was entitled to find him guilty of conspiracy to transport Minor-2 in
interstate commerce with the intent that she engage in illegal sexual activity; sex trafficking
of Minor-2 as a person under fourteen or by force, fraud, or coercion; and conspiracy to do
the same. His was not a close case, and the district court properly denied Santos’s motion
for acquittal.
IV.
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As the tragic facts of this case reveal, social media provides an all-too-easy avenue
for the coordination of sex trafficking conspiracies. Even more troubling, sex traffickers
are able to use social media to lure underage victims into their grasp. The reasonableness
standard that is so central to the Fourth Amendment necessitates that we permit the
government to thwart these emerging criminal tactics with novel investigatory tools of its
own. Warrants for social media data are one such tool, as they empower law enforcement
officers to reveal the activities of criminal conspirators, disrupt their illicit plots, and bring
them to justice. But while social media warrants can support invaluable police work, as
they did in this case, they also provide significant potential for abuse. We cannot read the
Fourth Amendment to allow the indiscriminate search of many years of intimate
communications. And because of the inherent interconnectedness of social media,
permitting unbridled rummaging through any one user’s account can reveal an
extraordinary amount of personal information about individuals uninvolved in any criminal
activity.
It is not only courts that are struggling to strike a balance between privacy and
security in the rapidly changing digital domain, but society as a whole. When criminal
offenders use social media to organize their enterprises and evade detection, it would seem
unreasonable to disable law enforcement from using those same media to apprehend and
prosecute them. To hold otherwise would arbitrarily tip the scales away from law and
justice for the benefit of increasingly sophisticated criminal schemes. But at the same time,
there comes a point when the Fourth Amendment must emphatically yell STOP, lest we
render obsolete the hallowed notion of a secure enclave for personal affairs.
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V.
For the foregoing reasons, the judgment of the district court is in all respects
affirmed.
AFFIRMED.
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1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
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UNITED STATES OF AMERICA,
)
)
Plaintiff,
)
)
v.
)
)
MOISES ORLANDO ZELAYA-VELIZ,)
et al.,
)
)
Defendants.
)
)
Case 1:20-cr-196
Alexandria, Virginia
October 27, 2021
11:24 a.m.
Pages 1 - 39
9
TRANSCRIPT OF MOTIONS
10
BEFORE THE HONORABLE ANTHONY J. TRENGA
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UNITED STATES DISTRICT COURT JUDGE
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APPEARANCES :
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FOR THE PLAINTIFF:
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MAUREEN C. CAIN, ESQUIRE
CRISTINA C. STAM, ESQUIRE
OFFICE OF THE UNITED STATES ATTORNEY
2100 Jamieson Avenue
Alexandria, Virginia 22314
(703) 299-3700
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FOR MOISES ORLANDO ZELAYA-VELIZ:
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JOSEPH D. KING, ESQUIRE
KING, CAMPBELL, PORETZ & MITCHELL, PLLC
118 North Alfred Street
Alexandria, Virginia 22314
(703) 683-7070
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COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES
Rhonda
F.
Montgomery
OCR-USDC/EDVA
40a
JA139
(703)
299-4599
2
1
APPEARANCES CONTINUED :
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FOR JOSE ELIEZAR MOLINA-VELIZ:
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DONALD E. HARRIS, ESQUIRE
HARRIS LAW FIRM, PLLC
2800 Eisenhower Avenue, Suite 220
Alexandria, Virginia 22314
(703) 224-8810
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FOR SANTOS ERNESTO GUTIERREZ CASTRO:
7
DWIGHT E. CRAWLEY, ESQUIRE
LAW OFFICE OF DWIGHT CRAWLEY
1300 I Street, N.W., Suite 400
Washington, D.C. 20005
(703) 786-4004
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FOR LUIS ALBERTO GONZALES:
JEFFREY D. ZIMMERMAN, ESQUIRE
JEFFREY D. ZIMMERMAN, PLLC
108 North Alfred Street
Alexandria, Virginia 22314
(703) 548-8911
FOR REINA ELIZABETH HERNANDEZ:
J.E. YANCEY ELLIS, ESQUIRE
CARMICHAEL, ELLIS & BROCK, PLLC
108 North Alfred Street, 1st Floor
Alexandria, Virginia 22314
(703) 684-7908
FOR GILBERTO MORALES:
MICHAEL M. HADEED, JR., ESQUIRE
HADEED LAW GROUP, PC
510 King Street, Suite 400
Alexandria, Virginia 22314
(703) 962-7452
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Rhonda
F.
Montgomery
OCR-USDC/EDVA
41a
JA140
(703)
299-4599
3
1
APPEARANCES CONTINUED :
2
FOR SIONI ALEXANDER BONILLA GONZALEZ:
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BRUCE M. COOPER, ESQUIRE
LAW OFFICE OF BRUCE M. COOPER
717 D Street, N.W., Suite 300
Washington, D.C. 20004
(202) 494-7600
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FOR JONATHAN RAFAEL ZELAYA-VELIZ:
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CHRISTOPHER B. AMOLSCH, ESQUIRE
LAW OFFICE OF CHRISTOPHER AMOLSCH
910 King Street
Alexandria, Virginia 22314
(703) 683-2020
FOR CARLOS JOSE TURICIOS VILLATORO:
ELIZABETH L. VAN PELT, ESQUIRE
LIBBEY VAN PELT LAW, PLLC
3033 Wilson Boulevard, Suite 700
Arlington, Virginia 22201
(571) 356-9066
FOR ORLANDO ALEXIS SALMERON FUNEZ:
ELITA C. AMATO, ESQUIRE
LAW OFFICE OF ELITA CETA AMATO
2111 Wilson Boulevard, 8th Floor
Arlington, Virginia 22201
(703) 522-5900
FOR NELSON EZEQUIEL CABALLERO PORTILLO:
LANA M. MANITTA, ESQUIRE
THE LAW OFFICE OF LANA MANITTA, PLLC
140B Purcellville Gateway Drive, #511
Purcellville, Virginia 20132
(703) 705-4428
THE DEFENDANTS, MOISES ORLANDO ZELAYA-VELIZ, JOSE
ELIEZAR MOLINA-VELIZ, SANTOS ERNESTO GUTIERREZ CASTRO,
LUIS ALBERTO GONZALES, REINA ELIZABETH HERNANDEZ,
GILBERTO MORALES, SIONI ALEXANDER BONILLA GONZALEZ,
JONATHAN RAFAEL ZELAYA-VELIZ, CARLOS JOSE TURICIOS
VILLATORO, NELSON EZEQUIEL CABALLERO PORTILLO, AND
ORLANDO ALEXIS SALMERON FUNEZ, IN PERSON
Rhonda
F.
Montgomery
OCR-USDC/EDVA
42a
JA141
(703)
299-4599
8
1
The Court at this point concludes that the
2
evidence would, in large part, be relevant to all of
3
the charges and that there's a relationship between
4
these charges and the other charges such that the case
5
should proceed.
6
The Court has also considered any possible
7
prejudice to Defendant Villatoro and finds that there
8
simply is not sufficient prejudice that would warrant
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severing him that would require essentially a
10
duplication, in large part, of evidence in both cases.
11
The Court, therefore, will deny that motion.
12
Let me take up Defendant Gonzales' motion to
13
suppress Facebook evidence, which is joined in by
14
Defendant Villatoro.
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158.
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That would be Docket Nos. 143 and
Yes, Mr. Zimmerman.
Anything further you
17
would like to say on this?
18
it for the record for the most part.
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MR. ZIMMERMAN:
I understand you're doing
I am, Your Honor.
I was
20
present during that extensive motions hearing.
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would adopt all of the arguments made on the record
22
regarding the lack of probable cause and the
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overbreadth of all of the search warrants that did not
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meet the particularity requirement.
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faith exception would not apply and want to make a
Rhonda
F.
Montgomery
OCR-USDC/EDVA
43a
JA146
We
We assert the good
(703)
299-4599
9
1
record that we object on that basis to the admission of
2
all of the Facebook evidence.
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THE COURT:
4
Ms. Van Pelt, anything further you want to
5
All right.
Thank you.
say on this?
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MR. ZIMMERMAN:
7
THE COURT:
Thank you.
Ms. Van Pelt, anything further
8
you want to say on this?
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MS. VAN PELT:
10
THE COURT:
No, Your Honor.
The Court has reviewed the motion
11
to suppress Facebook evidence based on the motion of
12
Defendant Gonzales joined in by Defendant Villatoro.
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For the reasons previously stated by the Court in
14
denying the same motions that have been previously
15
filed by the other defendants, that motion is denied.
16
Let me take up Defendant Gonzales' motion to
17
compel disclosure of statements made by codefendants
18
which incriminate defendant, Docket No. 144, also
19
joined in by Defendant Villatoro.
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MR. ZIMMERMAN:
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THE COURT:
22
MR. ZIMMERMAN:
23
Your Honor, this of course is a Bruton
Just briefly, Your Honor.
Yes.
You can come to the podium.
Sure, Judge.
24
motion.
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codefendants who have made incriminating statements
Rhonda
The government has identified two of the
F.
Montgomery
OCR-USDC/EDVA
44a
JA147
(703)
299-4599
Case 1:20-cr-00196-AJT Document 513 Filed 01/09/23 Page 1 of 73 PageID# 8016
1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
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UNITED STATES OF AMERICA,
Plaintiff
v.
MOISES ORLANDO ZELAYA-VELIZ,
SIONI ALEXANDER BONILLA GONZALEZ,
CARLOS JOSE TURICIOS VILLATORO,
JOSE ELIEZAR MOLINA-VELIZ,
SANTOS ERNESTO GUTIERREZ CASTRO,
LUIS ALBERTO GONZALES,
REINA ELIZABETH HERNANDEZ, NELSON
EZEQUIEL CABALLERO PORTILLO,
GILBERTO MORALES, JONATHAN RAFAEL
ZELAYA-VELIZ, ORLANDO ALEXIS
SALMERON FUNEZ,
Defendants
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Criminal Case
No. 20-CR-00196-AJT
August 27, 2021
11:00 a.m.
.....................
11
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TRANSCRIPT OF MOTIONS HEARING
BEFORE THE HONORABLE ANTHONY J. TRENGA
UNITED STATES DISTRICT JUDGE
13
14
APPEARANCES:
15
FOR THE UNITED STATES:
MAUREEN CAIN
SETH SCHLESSINGER
U.S. ATTORNEY'S OFFICE
2100 Jamieson Avenue
Alexandria, VA 22314
703-299-3700
FOR DEFENDANT
MOISES ORLANDO ZELAYA-VELIZ:
JOSEPH DOUGLAS KING
KING CAMPBELL & PORETZ, PLLC
108 N. Alfred Street
Alexandria, VA 22314
703-683-7070
FOR DEFENDANT SIONI ALEXANDER
BONILLA GONZALEZ:
BRUCE MICHAEL COOPER
LAW OFFICE OF BRUCE M. COOPER
717 D Street, NW
Suite 300
Washington, DC 20004
202-628-8494
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(APPEARANCES CONTINUED ON
NEXT PAGE)
Rebecca Stonestreet, RPR, CRR, Official Court Reporter
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FOR DEFENDANT
CARLOS JOSE TURICIOS
VILLATORO:
MICHAEL S. ARIF, ESQ.
ARIF & ASSOCIATES, PC
3900 University Drive
Suite 100
Fairfax, VA 22030
703-323-1200
FOR DEFENDANT
JOSE ELIEZAR MOLINA-VELIZ:
DONALD EDWIN HARRIS, ESQ.
HARRIS LAW FIRM, PLLC
2800 Eisenhower Ave.
Suite 220
Alexandria, VA 22314
703-224-8810
FOR DEFENDANT
ERNESTO GUTIERREZ CASTRO:
DWIGHT EVERETTE CRAWLEY
LAW OFFICE OF DWIGHT CRAWLEY
1300 I Street, NW
Suite 400
Washington, DC 20005
703-786-4004
FOR DEFENDANT
LUIS ALBERTO GONZALES:
JEFFREY DANIEL ZIMMERMAN
JEFFREY ZIMMERMAN PLLC
108 North Alfred Street
Alexandria, VA 22314
703-548-8911
FOR DEFENDANT
ELIZABETH HERNANDEZ:
JOHN EDWARD YANCEY ELLIS
CARMICHAEL ELLIS & BROCK
108 N. Alfred Street
1st Floor
Alexandria, VA 22314
703-684-7908
FOR DEFENDANT NELSON EZEQUIEL
CABALLERO PORTILLO:
LANA MARIE MANITTA
THE LAW OFFICE OF
LANA MANITTA, PLLC
140B Purcellville Gateway Dr.
No. 511
Purcellville, VA 20132
703-705-4428
FOR DEFENDANT
GILBERTO MORALES:
MICHAEL MITRY HADEED, JR.
HADEED LAW GROUP PC
510 King Street
Suite 400
Alexandria, VA 22314
703-962-7452
(APPEARANCES CONTINUED ON
NEXT PAGE)
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Rebecca Stonestreet, RPR, CRR, Official Court Reporter
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FOR DEFENDANT
JONATHAN RAFAEL ZELAYA-VELIZ:
CHRISTOPHER BRYAN AMOLSCH
LAW OFFICE OF
CHRISTOPHER AMOLSCH
12005 Sunrise Valley Drive
Suite 200
Reston, VA 20191
703-969-2214
FOR DEFENDANT
ALEXIS SALMERON FUNEZ:
ELITA C. AMATO
ELITA CETA AMATO
ATTORNEY AT LAW
2111 Wilson Blvd.
8th Floor
Arlington, VA 22201
703-522-5900
OFFICIAL COURT REPORTER:
REBECCA STONESTREET, RPR, CRR
U.S. District Court, 9th Floor
401 Courthouse Square
Alexandria, Virginia 22314
(240) 426-7767
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( Pages 1 - 73)
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COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES
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Rebecca Stonestreet, RPR, CRR, Official Court Reporter
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THE COURT:
Ms. Amato, anything else you would like to
MS. AMATO:
Your Honor, I just wanted to correct.
say?
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I
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thought that the -- so Ms. Cain had mentioned in response that
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there was -- one of the individuals who spoke to -- communicated
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with Minor 2 saying that Mr. Salmeron asked for a video of her.
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But I believe it was -- according to the affidavit, that he had
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asked, supposedly, for a photo of the minor.
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So the fact that some video was taken after that has
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nothing do with the statement that supposedly Salmeron had asked
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for a photo.
I believe it was a photo, not a video.
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THE COURT:
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MR. AMOLSCH:
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THE COURT:
Mr. Hadeed, anything further?
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MR. HADEED:
No, Your Honor.
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THE COURT:
Let me deal first with this group of
All right.
Mr. Amolsch, anything else?
No, Your Honor.
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motions.
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particular the affidavits that were submitted to the magistrate
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judges in connection with each of the warrants, and have
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assessed the issues pertaining to each warrant based on the
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specific information that was applied to each of these
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defendants.
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I reviewed the extensive briefing in this case, and in
In that regard, the motions to suppress Facebook
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records are based on the following warrants:
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on March 14, 2019, with respect to Defendant Sioni Alexander
A warrant issued
Rebecca Stonestreet, RPR, CRR, Official Court Reporter
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Bonilla-Gonzalez, which is docket number 116; a warrant issued
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on June 5, 2019, with respect to the Facebook accounts
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associated with Reina Elizabeth Hernandez and
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Luis Alberto Gonzalez, which is Document Number 116-1; a warrant
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issued on July 12th, 2019, with respect to the Facebook accounts
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associated with Moises Orlando Zelaya-Veliz, which is
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Document Number 116-2; and a warrant issued on February 20,
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2020, with respect to the Facebook accounts associated with
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Defendants Orlando Alexis Salmeron Funez,
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Defendant Nelson Ezequiel Caballero Portillo,
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Defendant Jonathan Rafael Zelaya-Veliz,
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Defendant Jose Eliezar Molina Veliz, and
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Defendant Gilberto Morales, which is Document Number 116-3.
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All of these defendants have challenged their
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respective warrants based on lack of probable cause to have the
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warrants issued, lack of sufficient particularity with respect
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to the contents of the warrant, that the warrants are overbroad
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and are based on stale information, and some of the defendants
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have also alleged a Franks violation in connection with the
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issuance of those warrants.
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Let me take up those issues separately.
With respect
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to a probable cause requirement of the Fourth Amendment, it's
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settled that probable cause is a dynamic fluid concept turning
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on the assessment of probabilities in a particular factual
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context, and requires only that based on a practical common
Rebecca Stonestreet, RPR, CRR, Official Court Reporter
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sense assessment under all the circumstances, as set forth in
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the affidavits presented, there is a fair probability that
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contraband or evidence of a crime would be found in a particular
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place.
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And in that regard, a reviewing court does not review a
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magistrate judge's decision de novo, but rather must determine
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whether the magistrate judge had a substantial basis for
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concluding that the search would uncover evidence of wrongdoing,
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and the magistrate judge's determination of probable cause is to
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be given great deference by a reviewing court.
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The core issue here with respect to probable cause is
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whether the affidavits presented to the magistrate judges
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presented a sufficient nexus between the criminal conduct
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evidence in the affidavits, on the one hand, and the items to be
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seized and the place to be searched, name
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.