Opposition Brief — Moises Orlando Zelaya-Veliz, Jose Eliezar Molina-Veliz, Luis Alberto Gonzales, Gilberto Morales, and Jonathan Rafael Zelaya-Veliz, Petitioners v. United States

Supreme Court briefOct 16, 2024

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No. 24-5092

________________________________________________________________

________________________________________________________________

IN 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 OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

ALLAYA LLOYD

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether the district court was required to suppress evidence,

obtained

pursuant

to

warrants

authorizing

the

search

of

petitioners’ Facebook accounts, of petitioners’ involvement in a

sex-trafficking conspiracy.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 24-5092

MOISES ORLANDO ZELAYA-VELIZ, JOSE ELIEZAR MOLINA-VELIZ,

LUIS ALBERTO GONZALES, GILBERTO MORALES, AND

JONATHAN RAFAEL ZELAYA-VELIZ, PETITIONERS

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-39a) is

reported at 94 F.4th 321.

The opinions and orders of the district

court (Pet. App. 40a-58a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on February

16, 2024.

A petition for rehearing was denied on March 15, 2024

(Pet. App. 59a-61a).

On June 11, 2024, the Chief Justice extended

the time within which to file a petition for a writ of certiorari

to and including July 13, 2024.

The petition for a writ of

2

certiorari was filed on July 12, 2024.

The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for

the

Eastern

District

of

Virginia,

petitioners

were

each

convicted on one count of conspiring to traffic a minor under the

age of 14 for sex, and one count of trafficking of a minor under

the age of 14 for sex, in violation of 18 U.S.C. 1591(a), (b)(1),

and (c).

Gonzales Judgment 1 (C.A. App. 1319); Molina-Veliz

Judgment 1 (C.A. App. 1327); Morales Judgment 1 (C.A. App. 1311);

Jonathan Zelaya-Veliz Judgment 1 (C.A. App. 1303); Moises ZelayaVeliz Judgment 1 (C.A. App. 1295).

Petitioners Gonzales, Molina-

Veliz, Jonathan Zelaya-Veliz, and Moises Zelaya-Veliz were each

convicted on one additional count of conspiring to transport a

minor with intent to engage in criminal sexual activity, in

violation of 18 U.S.C. 2423(a) and (e).

Gonzales Judgment 1;

Molina-Veliz Judgment 1; Jonathan Zelaya-Veliz Judgment 1; Moises

Zelaya-Veliz Judgment 1.

The district court sentenced Gonzales to

300 months of imprisonment, Morales to 192 months of imprisonment,

Molina-Veliz to 180 months of imprisonment, Jonathan Zelaya-Veliz

to 180 months of imprisonment, and Moises Zelaya-Veliz to 264

months of imprisonment, with each term to be followed by five years

of supervised release.

Gonzales Judgment 2-3; Morales Judgment 2-

3; Molina-Veliz Judgment 2-3; Jonathan Zelaya-Veliz Judgment 2-3;

3

Moises Zelaya-Veliz Judgment 2-3.

The court of appeals affirmed.

Pet. App. 1a-39a.

1.

Petitioners

were

members

and

associates

of

the

transnational criminal street gang commonly referred to as MS-13.

Pet. App. 5a.

In 2018, petitioners, along with other members and

associates of MS-13, worked together to sexually exploit and

physically abuse a 13-year-old girl, known as Minor 2, and other

underage victims in Northern Virginia and Southern Maryland. Ibid.

Petitioners abused Minor 2 for more than six weeks, using drugs,

threats, and physical violence to sell her for sex with other men.

Id. at 9a.

Minor 2 suffered infections from sexually transmitted

diseases and psychological and physical trauma.

Ibid.

The abuse began when, on August 27, 2018, Minor 2 ran away

from a youth shelter in Fairfax County, Virginia after another

resident in the shelter, known as Minor 3, convinced her that Minor

3 could use connections with MS-13 to seek protection.

5a.

Pet. App.

Minor 3 introduced Minor 2 to MS-13 members.

Ibid.

Minor 2

told the MS-13 members that she was 13 years old.

Ibid.

The gang

promised to protect Minor 2 and her family if she became a member,

and she agreed.

Id. at 6a.

As part of Minor 2’s initiation into MS-13, members of the

gang beat her 26 times with a metal baseball bat.

Pet. App. 5a.

Although Minor 2 asked them to stop, they threatened to kill her

and her family if she refused to undergo the full beating.

Ibid.

Several other gang members and Minor 1 -- a 14-year-old who was

4

being sex-trafficked by MS-13 -- witnessed the beating.

Ibid.

MS-13 members also threatened to kill Minor 2’s family if she left

the gang.

Id. at 6a-7a.

For the next month and a half, petitioners subjected Minor 2

to physical abuse and sexual exploitation.

Pet. App. 6a-9a.

The

gang first took Minor 2 to the apartment of petitioners Moises

Zelaya-Veliz and Molina-Veliz, who each had sex with Minor 2 and

forced her to engage in commercial sex with multiple men.

6a-7a.

Id. at

Moises Zelaya-Veliz and Molina-Veliz used Facebook to

discuss sexually exploiting underage girls for money and sent

explicit photographs -- including explicit images of Minor 2 -- in

numerous

messages

and

group

chats,

some

of

petitioners Jonathan Zelaya-Veliz and Gonzales.

which

included

See, e.g., C.A.

App. 832, 835-836, 839, 844, 847, 854-855, 860-861.

MS-13 then took Minor 2 to the home of another gang member in

Virginia who gave her drugs, had sex with her, and sold her for

sex to multiple men.

Pet. App. 6a-7a.

That gang member also used

Facebook to communicate with Minor 2 and to coordinate commercial

sex transactions involving her.

See, e.g., C.A. App. 809-830,

832, 835-836, 839, 844, 860-861.

When Minor 2 was found using a

gang member’s phone, MS-13 members beat her with a baseball bat

another 26 times.

Pet. App. 7a.

After several days, the gang took Minor 2 to Maryland, where

Gonzales supervised Minor 2’s sex trafficking.

Pet. App. 7a-8a.

He first brought Minor 2 to an apartment in Greenbelt, Maryland,

5

where she stayed for about two days.

C.A. App. 569, 581-583.

Gonzales had sex with Minor 2 and sold her for sex to several men,

including Morales, in exchange for cash and cocaine.

Pet. App.

7a.

Next, Gonzales moved Minor 2 to an apartment in Mount Rainier,

Maryland, where Jonathan Zelaya-Veliz lived.

Pet. App. 8a.

For

the next two weeks, MS-13 again forced Minor 2 to engage in

commercial sex with multiple men, including Jonathan Zelaya-Veliz,

for up to seven hours a day.

Moises

Zelaya-Veliz

also

Ibid.

helped

Jonathan Zelaya-Veliz and

Gonzales

organize

Minor

2’s

transportation to several locations in Maryland and Virginia for

commercial sex transactions.

Ibid.

Gonzales sedated Minor 2 with alcohol, marijuana, cocaine,

and other drugs before making her have commercial sex.

8a.

Pet. App.

While Minor 2 was in Maryland, petitioners used Facebook to

communicate with her, to send explicit photos and videos of her to

others, and to discuss her commercial sex trafficking.

See, e.g.,

id. at 7a, 11a-12a; C.A. App. 872-873, 876-877, 890-897, 909-910,

943-944, 956-957.

In October 2018 alone, Morales contacted Minor

2 over the phone and on Facebook more than 130 times.

Pet. App.

7a.

On October 11, 2018, police officers recovered Minor 2 outside

of Jonathan Zelaya-Veliz’s apartment complex.

Pet. App. 8a.

Although Minor 2 initially could not identify her abusers’ full

names or the exact locations where she had been trafficked, she

6

identified several perpetrators by photograph.

Id. at 9a.

She

also helped the police find and rescue Minor 1, whom MS-13 was

also sexually exploiting.

2.

In

Ibid.

investigating

the

crimes,

the

Federal

Bureau

of

Investigation (FBI) obtained multiple warrants, three of which

authorized searches of various petitioners’ Facebook accounts.

Pet. App. 9a-16a.

Each warrant followed a standard two-step

search-and-seizure process.

Id. at 10a-11a; see C.A. App. 1388-

1390, 1425-1427, 1483-1489.

The warrants first authorized the

government

to

search

specific

categories

of

requested

data

disclosed by Facebook, and then authorized the government to seize

only information that constituted evidence, instrumentalities, and

fruits of federal offenses listed in the warrants.

Pet. App. 10a-

11a.

a.

The

first

warrant,

issued

in

June

2019,

required

Facebook to disclose nine categories of data associated with eight

Facebook accounts, five of which belonged to petitioner Gonzales.

Pet. App. 11a; C.A. App. 1385.

The nine categories of data

included contact information, subscriber information, Internet

protocol

information,

and

activity

photographs and all communications.

on

Facebook,

including

C.A. App. 1388-1389.

The

warrant also authorized the government to seize all information

that

constituted

evidence,

instrumentalities,

and

fruits

of

violations of four federal criminal statutes -- sex trafficking of

a minor by force, fraud, or coercion (18 U.S.C. 1591); travel or

7

use of the mail or facility of interstate commerce in aid of

prostitution or other racketeering enterprises (18 U.S.C. 1952);

coercion or enticement of a person to travel across state lines

for prostitution or illegal sexual activity (18 U.S.C. 2422(a));

and

interstate

transportation

of

a

minor

for

purposes

of

prostitution or illegal sexual activity (18 U.S.C. 2423(a)) -- as

well as attempts and conspiracies to violate these statutes.

App. 10a-12a; C.A. App. 1389-1390.

examples

of

the

types

of

Pet.

The warrant provided specific

information

that

would

qualify

evidence, instrumentalities, or fruits of the listed crimes.

as

C.A.

App. 1389-1390.

The

warrant

was

supported

by

an

FBI

agent’s

affidavit

detailing the investigation of the listed federal offenses.

Pet.

App. 11a. The affidavit explained how Facebook works and how gangs

like

MS-13

use

Facebook

to

engage

in

prostitution

and

sex

trafficking, which generate revenue for the criminal organization.

Ibid.; see C.A. App. 1395-1402.

The affidavit also recounted MS-

13’s sexual exploitation of Minor 2 and -- citing, for example,

screenshots

of

photographs

and

communications

on

Facebook

--

described how Gonzales sold Minor 2 to customers, forced her to

have sex with them, and sedated her with drugs and alcohol.

App. 12a; see C.A. App. 1402-1422.

Pet.

The affidavit also described

MS-13’s sexual exploitation of other minors, including Minor 3.

C.A. App. 1402-1413.

8

b.

The second warrant, issued in July 2019, was directed at

ten accounts, one of which belonged to petitioner Moises ZelayaVeliz.

Pet. App. 13a; C.A. App. 1428.

The warrant listed 18

categories of data for disclosure, which encompassed the nine

categories in the first warrant and others relating to

user

activity, device identifier logs, and all location information

associated with the accounts.

Pet. App. 13a; C.A. App. 1476-1478.

The second warrant also limited the disclosure to the period

running from January 1, 2018, to July 12, 2019.

13a; C.A. App. 1428-1430.

to

seize

all

See Pet. App.

The warrant authorized law enforcement

information

that

constituted

evidence,

instrumentalities, and fruits of the same four offenses listed in

the June 2019 warrant, as well as one additional offense -- the

commission of a violent crime in aid of racketeering, in violation

of 18 U.S.C. 1959.

Pet. App. 13a.

The warrant provided specific

examples of the type of information that could be seized.

C.A.

App. 1478-1480.

The affidavit accompanying the July 2019 warrant provided

information on the mechanics of Facebook, MS-13’s use of Facebook

to

facilitate

its

criminal

activity,

and

screenshots

and

transcripts of conversations about Minor 2’s exploitation and sextrafficking by the gang.

See, e.g., Pet. App. 13a-14a.

The

affidavit also detailed Moises Zelaya-Veliz’s involvement in, and

online discussion about, the sex-trafficking of Minor 2 and MS-

9

13’s sexual exploitation of Minor 1 and Minor 3.

Ibid.; C.A. App.

1469-1471.

c.

The final warrant, issued in February 2020, authorized

the search of 22 Facebook accounts, including accounts belonging

to petitioners Jonathan Zelaya-Veliz, Molina-Veliz, and Morales.

Pet. App. 14a-16a.

That warrant required the disclosure of the

same 18 categories of information from Facebook as the July 2019

warrant

and

limited

the

government’s

seizure

to

evidence,

instrumentalities, and fruits of the same five offenses.

14a.

Id. at

It also limited Facebook’s disclosure to the period between

January 1, 2018, and February 20, 2020.

See ibid.; C.A. App. 1481-

1490.

Consistent

with

the

prior

affidavits,

the

affidavit

accompanying the February 2020 warrant described the mechanics of

Facebook, MS-13’s prostitution enterprise, and the gang’s use of

Facebook to facilitate its criminal activities.

Pet. App. 14a.

Citing evidence obtained from earlier searches, the affidavit

detailed MS-13’s sex trafficking of Minors 1, 2, and 3; each

relevant petitioner’s involvement in the trafficking and sexual

exploitation

of

children,

including

Minor

2;

and

those

petitioners’ facilitation and discussion of their sex-trafficking

activities through Facebook.

3.

Id. at 14a-15a.

In August 2020, a grand jury in the Eastern District of

Virginia charged each petitioner with one count of conspiring to

traffic a minor under the age of 14 for sex, and one count of

10

trafficking of a minor under the age of 14 for sex, in violation

of 18 U.S.C. 1591(a), (b)(1), and (c).

Indictment 9-12 (D. Ct.

Doc. 48); see C.A. App. 181, 187-190 (superseding indictment with

same charges).

Petitioners Moises Zelaya-Veliz, Jonathan Zelaya-

Veliz, Gonzales, and Molina-Veliz were each also charged with an

additional count of conspiring to transport a minor with intent to

engage in criminal sexual activity, in violation of 18 U.S.C.

2423(a) and (e).

Indictment 13.

Before trial, petitioners moved to suppress the evidence

seized pursuant to the three warrants, asserting in pertinent part

that the warrants were overbroad and not sufficiently particular.

Pet. App. 17a.

The district court denied petitioners’ motions.

Id. at 48a-58a.

The court found that the affidavits “clearly

establish” an “extensive ongoing interstate criminal enterprise of

uncertain beginnings” that “easily encompasses criminal activity

both before and beyond the time period identified by Minor Victim

2,” which justified the scope of the warrants.

Id. at 51a, 54a-

56a.

The court also found that officers’ reliance on the warrants

was

based

on

“an

objectively

good

faith

their validity and “objectively reasonable.”

belief”

in

Id. at 57a; see

United States v. Leon, 468 U.S. 897, 920 (1984).

The jury found petitioners guilty on all counts.

Verdict 1-

4, 7-8, 11-14. The district court sentenced Gonzales to 300 months

of imprisonment, Morales to 192 months of imprisonment, MolinaVeliz to 180 months of imprisonment, Jonthan Zelaya-Veliz to 180

11

months of imprisonment, and Moises Zelaya-Veliz to 264 months of

imprisonment, each to be followed by five years of supervised

release.

Gonzales Judgment 2-3; Morales Judgment 2-3; Molina-

Veliz Judgment 2-3; Jonathan Zelaya-Veliz Judgment 2-3; Moises

Zelaya-Veliz Judgment 2-3.

4.

The court of appeals affirmed.

The court

sufficiently

of appeals

first

particularized.

Pet. App. 1a-39a.

found

Pet.

that

App.

each

warrant

26a-31a.

The

was

court

observed that the warrants authorized the government to seize only

“the

fruits,

evidence,

or

instrumentalities

of

violations

of

enumerated federal statutes.” Id. at 28a. And the court explained

that

the

limitation

“appropriately

‘confined

the

executing

officers’ discretion,’ by restricting them from rummaging through

[petitioners]’ social media data in search of unrelated criminal

activities.”

Ibid. (quoting United States v. Cobb, 970 F.3d 319,

328 (4th Cir. 2020), cert. denied, 141 S. Ct. 1750 (2021)).

The court of appeals observed that petitioners’ arguments had

overlooked the “distinction between what may be searched and what

can be seized.”

* * *

Pet. App. 28a.

acknowledged

41(e)(2)(B)

and

by

its

Citing the “two-step process

Federal

Rule

commentary,”

the

of

Criminal

court

Procedure

explained

that

“officers, in searching electronically stored information pursuant

to a warrant,” may first “‘seize or copy the entire storage

medium’”

and,

second,

“review

it

later

to

determine

what

electronically stored information falls within the scope of the

12

warrant.”

Id. at 29a (citation omitted).

that

enforcement

law

in

this

case

The court made clear

“help[ed]

to

mitigate

particularity concerns in the social media warrant context” by

following that established process.

Ibid.

The court of appeals next found that the scope of each warrant

was

justified

enterprise.

by

the

breadth

of

Pet. App. 30a-31a.

petitioners’

sex-trafficking

The court explained that the

affidavits reasonably established the existence of a wide-ranging

conspiracy involving the sex-trafficking and exploitation of at

least

three

underage

girls

by

a

transnational

criminal

organization that committed such offenses to fund its operations,

and that the conspirators frequently used Facebook “to communicate

with co-conspirators, victims, and customers in furtherance of the

conspiracy” under investigation.

Ibid.

The court of appeals rejected petitioners’ assertion that the

timeframes of the second (July 2019) and third (February 2020)

warrants were overbroad.

1490.

Pet. App. 31a-35a; see C.A. App. 1428,

The court found that the timeframes outlined in the second

and third warrants -- from January 2018 until July 12, 2019 and

February

20,

2020,

respectively

--

were

“appropriately

particularized” because: the evidence in the affidavits “suggested

that Minor-2 had been sexually abused by affiliates of MS-13

starting during or before June 2018”; the “MS-13 members and

affiliates” identified in the warrants “were engaged in

* * *

an

extensive ongoing interstate criminal enterprise of uncertain

13

beginnings” with multiple victims; “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”;

and

“multiple

[petitioners]

continued

to

use

Facebook to message [Minor 2] after she was recovered by law

enforcement in October 2018.” Pet. App. 32a (citation and internal

quotation marks omitted).

As to the first (June 2019) warrant, which did not contain an

express temporal limitation and did not apply to any petitioner

except Gonzales, the court of appeals determined that Gonzales’s

motion to suppress was “properly denied” under “the good faith

exception to the exclusionary rule.”

34a-35a.

Pet. App. 34a; see id. at

The court stated that a “total lack of a time period in

a social media warrant raises a problem,” id. at 33a, but observed

that it need not address that issue, because the investigators had

acted in objectively reasonable and good-faith reliance on the

warrant, id. at 34a.

The court of appeals explained that it “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 [the court]

cannot anticipate all future circumstances.”

Pet. App. 34a.

The

court found it “advisable to proceed with caution” due to novel

questions posed by digital technology, and emphasized that its

ruling was “narrow” and was “not greenlight[ing] all warrants for

and searches of social media data” without temporal limits.

Id.

14

at 34a-35a.

The court made clear that its decision instead turned

on “the circumstances at issue” in this case.

Ibid.

ARGUMENT

Petitioners renew their contention (Pet. 15-20, 34-36) that

they were entitled to suppression of evidence from the warrantbased searches of their Facebook accounts.

The court of appeals

correctly

its

rejected

that

contention,

and

fact-bound

and

context-specific decision does not conflict with any decision of

this Court, another court of appeals, or a state court of last

resort.

In addition, this case would be a poor vehicle for

considering

petitioners’

arguments

because

they

would

not

be

entitled to relief even if this Court agreed with them.

This Court has repeatedly and recently denied review of

petitions

raising

similar

questions.

See,

e.g.,

McCall

v.

United States, 144 S. Ct. 1042 (2024) (No. 23-6609); Purcell v.

United States, 142 S. Ct. 121 (2021) (No. 20-7482); Moore v.

United States, 583 U.S. 1097 (2018) (No. 17-7118); Flores v.

United States, 580 U.S. 827 (2016) (No. 15-8510). It should follow

the same course here.

1.

The

court

of

appeals

correctly

determined

that

the

warrants here did not justify application of the exclusionary rule.

a.

The Fourth Amendment provides that “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.

The

15

probable cause requirement ensures “a careful prior determination

of necessity” for a search or seizure.

403

U.S.

443,

particularity

searches.

467

(1971).

requirement,

The

in

Coolidge v. New Hampshire,

principal

turn,

is

to

purpose

of

the

prevent

general

Maryland v. Garrison, 480 U.S. 79, 84 (1987).

By

“limiting the authorization to search to the specific areas and

things for which there is probable cause to search, the requirement

ensures

that

the

search

will

be

carefully

tailored

to

its

justifications, and will not take on the character of the wideranging exploratory searches the Framers intended to prohibit.”

Ibid.

Suppression

of

evidence

under

the

“‘judicially

created

remedy’” of the exclusionary rule is “designed to deter police

misconduct

rather

than

to

punish

the

errors

of

judges

and

magistrates.” United States v. Leon, 468 U.S. 897, 906, 916 (1984)

(citation omitted).

To justify suppression, a case must involve

police conduct that is “sufficiently deliberate that exclusion can

meaningfully

deter

it,

and

sufficiently

culpable

that

such

deterrence is worth the price paid by the justice system” in

suppressing probative evidence of criminal activity.

United States, 555 U.S. 135, 144 (2009).

Herring v.

Suppression is justified

“only if it can be said that the law enforcement officer had

knowledge, or may properly be charged with knowledge, that the

search was unconstitutional under the Fourth Amendment.”

468 U.S. at 919 (citation omitted).

Leon,

16

The court of appeals correctly applied those principles in

determining that suppression was unjustified here.

The court

recognized that the warrants authorized the government to seize

only “the fruits, evidence, or instrumentalities of violations” of

“enumerated

federal

statutes”

accompanying affidavits.

described

Pet. App. 28a.

in

the

warrants

and

As the court explained,

the warrants’ implementation of the “two-step process” for seizing

and searching electronically stored information, as set out in

“Federal

Rule

of

Criminal

Procedure

41(e)(2)(B)

and

its

commentary,” “help[ed] to mitigate” any particularity concerns.

Id. at 29a.

And the court correctly recognized that the scope of

the warrants was supported by the expansive nature of petitioners’

sex-trafficking

Facebook

“to

conspiracy,

communicate

which

with

involved

extensive

co-conspirators,

customers in furtherance of the conspiracy.”

use

of

victims,

and

Id. at 30a-31a.

Petitioners do not meaningfully dispute those points in this Court.

b.

the

Petitioners instead assert (Pet. 16-17, 20, 34-36) that

warrants’

breadth

made

the

warrants

unconstitutional “general warrants.”

the

equivalent

of

That assertion lacks merit.

A warrant is not impermissibly general, and does not violate the

particularity requirement, unless it lists “vague categories of

items,”

and

thereby

“‘vest[s]

the

executing

officers

with

unbridled discretion to conduct an exploratory rummaging through

[a defendant’s] papers.’”

United States v. $92,422.57, 307 F.3d

137, 149 (3d Cir. 2020)

(Alito, J.)

(citation omitted); see

17

Coolidge, 403 U.S. at 467 (“[T]he problem is not that of intrusion

per se, but of a general, exploratory rummaging in a person’s

belongings”)

(emphasis

omitted);

see

also,

e.g.,

Stanford

v.

Texas, 379 U.S. 476, 481 (1965) (describing “general warrants”

that gave “customs officials blanket authority to search where

they pleased for goods imported in violation of the British tax

laws”); Marcus v. Search Warrant of Prop. at 104 E. Tenth St., 367

U.S.

717,

727

(1961)

(describing

“general

warrants”

that

authorized “the seizure of all the papers of a named person alleged

to be connected with the publication of a libel”).

And a warrant

is not “overly broad” unless it “authorizes the seizure of items

as to which there is no probable cause,” $92,422.57, 307 F.3d at

149 -- which petitioners do not argue was the case here.

Courts

have

thus

consistently

recognized

that

a

warrant

satisfies the Fourth Amendment’s particularity requirement when

the warrant -- like the ones here -- seeks evidence or information

related to the commission of specifically identified crimes.

For

example, in United States v. Purcell, 967 F.3d 159 (2020), cert.

denied, 142 S. Ct. 121 (2021), the Second Circuit rejected the

argument

(repeated

“virtually

all

data

by

petitioners)

associated

with

that

a

a

warrant

Facebook

targeting

account”

was

“insufficiently particularized” or “overbroad” where the warrant

“identified the target Facebook account to be searched and the

specific kinds of data from that account to be seized” and “the

application

materials”

provided

“reason

to

believe

that

the

18

suspected criminal activity pervaded that entire account.”

Id. at

180-181

marks

(brackets,

citation,

and

internal

quotation

omitted); see, e.g., United States v. Christie, 717 F.3d 1156,

1165 (10th Cir. 2013) (Gorsuch, J.) (“[W]arrants may pass the

particularity test if they limit their scope either ‘to evidence

of specific federal crimes or to specific types of material’”)

(brackets and citation omitted); United States v. Meek, 366 F.3d

705,

715-716

(9th

Cir.

2004)

(warrant

authorizing

search

of

electronic devices was sufficiently particular where scope was

limited to evidence of a specific crime “explicitly described in

the supporting affidavit”).

As the court of appeals observed, the warrants challenged in

this case listed specific categories of information and limited

the items to be seized to “evidence of enumerated offenses,” which

“appropriately ‘confined the executing officers’ discretion’ by

restricting them from rummaging through [petitioners]’ social

media data in search of unrelated criminal activities.”

28a (citation omitted).

Pet. App.

Although the categories of Facebook data

may have included “a wide swath” of information, id. at 27a, the

warrants’ scope was proper because petitioners’ widespread sextrafficking activity pervaded their Facebook accounts, id. at 30a31a.

The warrant-application materials detailed petitioners’ use

of Facebook to “engage[] in sexually explicit communications * * *

with Minor-2 and Minor-3 during the period that the two girls were

19

being exploited”;

to

“coordinate Minor-2’s transportation for

sex”; and to “communicate

* * *

about having sex with Minor-2.”

Pet. App. 13a-16a; see also pp. 3-9, supra.

appeals

correctly

recognized

that,

And the court of

because

probable

cause

supported the belief that the types of information to be searched

contained evidence of crimes involving far-reaching schemes, a

broad

search

permissible.

and

the

seizure

of

substantial

data

would

be

Pet. App. 31a; see, e.g., Purcell, 967 F.3d at 181

(“Because there was reason to believe that the suspected criminal

activity ‘pervaded that entire’ [Facebook] account, ‘seizure of

all records of the account was appropriate.’”) (brackets omitted)

(quoting USPS v. C.E.C. Servs., 869 F.2d 184, 187 (2d Cir. 1989)).

c.

Petitioners’ assertion (Pet.

16-17,

33-36) that

the

timeframes covered by the warrants were fatally overbroad is

likewise mistaken.

Petitioners insist (Pet. 33) that each warrant

should have been limited to a period beginning no earlier than

August 27, 2018, the date on which MS-13 began abusing Minor 2.

But that argument ignores the duration and complexity of the

conspiracy under investigation.

See Pet. App. 32a.

As the court

of appeals recognized, the warrant materials established that

petitioners

“were

engaged

in

* * *

an

extensive

interstate criminal enterprise of uncertain beginnings.”

ongoing

Ibid.

The affidavits recounted evidence that Minor 2 may have been

sexually abused by MS-13 before August 2018, and that Minor 2 was

a victim of a broader sex-trafficking conspiracy involving other

20

victims, some of whom had already been in close contact with, and

may have been trafficked by, the gang before they began their abuse

of Minor-2.

Ibid.

Petitioners’ suggestion (Pet. 33) that the warrants violated

the Fourth Amendment by seeking data after October 11, 2018, the

date on which Minor 2 escaped the gang, is similarly misplaced.

Police

officers

identified

or

recovered

additional

underage

victims of petitioners’ sex-trafficking ring after that date, Pet.

App. 9a-10a, and several petitioners continued to communicate with

Minor 2 through Facebook even after she had escaped, id. at 7a,

32a; see, e.g., United States v. Fallon, 61 F.4th 95, 107-108 (3d

Cir. 2023) (“Where a warrant affidavit provides probable cause to

believe that it will uncover evidence of a wide-ranging and longlasting scheme with multiple participants, an equally broad search

for such evidence is permissible.”).

d.

Gonzales errs in asserting (Pet. 33-35) that officers

could not have relied on the first (June 2019) warrant, concerning

his accounts, in good faith.

This Court has emphasized that the

good-faith exception to the exclusionary rule is “particularly”

apt “when an officer acting with objective good faith has obtained

a search warrant from a judge or magistrate and acted within its

scope.”

Leon, 468 U.S. at 920.

warrant

and

attached

affidavit

Here, reliance on the June 2019

falls

within

the

good-faith

exception because it was “objectively reasonable,” id. at 922,

given the warrant’s express inclusion of a list of examples of

21

particular data types to be searched and the specific offenses

being investigated.

In addition, courts have generally recognized that a warrant

need not be limited by “specific time periods” when “[t]he dates

of specific documents could not have been known to the Government.”

United States v. Schilling, 826 F.2d 1365, 1369 (4th Cir. 1987)

(per curiam), cert. denied, 484 U.S. 1043 (1988), abrogated on

other grounds by Staples v. United States, 511 U.S. 600 (1994);

accord United States v. Banks, 556 F.3d 967, 972-973 (9th Cir.

2009) (“[Defendant’s] contention that the warrant’s lack of a time

frame

rendered

it

insufficiently

particular

is

unpersuasive

because the record and affidavit do not demonstrate knowledge on

the part of the government that the illegal conduct was limited to

any particular time frame.”).

Such uncertainty is particularly

likely earlier in an investigation, as when the June 2019 warrant

was issued; later in the investigation, officers may have a better

sense of the time period at issue, enabling more specificity of

the sort that the latter two warrants here exhibited.

The evidence recounted in the affidavit accompanying the June

2019 warrant established an extensive conspiracy of “uncertain

beginnings,” Pet. App. 32a, that “easily encompasse[d] criminal

activity both before and beyond the time period identified by Minor

Victim 2,” id. at 55a; see pp. 6-7, supra.

Given the uncertainty

surrounding the initial stages of the investigation, Gonzales’s

longstanding affiliation with a transnational gang engaged in an

22

ongoing sex-trafficking scheme -- as well as “the unsettled nature”

of temporal-limitation requirements for social media warrants -a

reasonable

officer

could

have

believed

that

the

affidavit

provided probable cause to search Gonzales’s Facebook accounts for

the entirety of their existence.

Pet. App. 34a-35a; see Leon, 468

U.S. at 922-923; see also Gov’t C.A. Br. 45-48 (explaining that

the warrant was not overbroad).

Gonzales’s

reliance

(Pet.

15-16,

35-36)

California, 573 U.S. 373 (2014), is misplaced.

search of a cellphone “without a warrant.”

on

Riley

v.

Riley involved a

Id. at 378 (emphasis

added); see id. at 401 (“Our holding, of course, is not that the

information on a cell phone is immune from search; it is instead

that a warrant is generally required before such a search.”).

It

in

of

no

way

undermines

the

objective

reasonableness

investigators’ reliance on a duly issued warrant that listed

specific offenses and identified particular categories of data

during

an

investigation

into

an

expansive

sex-trafficking

conspiracy that petitioners discussed, planned, and advanced on

Facebook.

2.

The court of appeals’ fact-bound disposition does not

implicate any conflict with the decisions of other court of appeals

or state courts of last resort that warrants this Court’s review.

a.

Contrary to petitioners’ contention (Pet. 21-22), the

decision below does not conflict with the Eleventh Circuit’s

decision in United States v. Blake, 868 F.3d 960 (2017), cert.

23

denied, 583 U.S. 1097, and 584 U.S. 944 (2018).

Circuit in

Blake

did suggest that the

While the Eleventh

government could have

obtained more targeted warrants for specific evidence within the

defendant’s Facebook account, the court did “not decide whether

the Facebook warrants violated the Fourth Amendment because, even

if they did,” the “‘good-faith exception’ to the exclusionary rule”

applied.

Id. at 974; see id. at 975 (“[W]hile the warrants may

have violated the particularity requirement, whether they did is

not an open and shut matter; it is a close enough question that

the warrants were not ‘so facially deficient’ that the FBI agents

who executed them could not have reasonably believed them to be

valid.”).

The result in Blake is fully consistent with the

decision below.

Petitioners also contend (Pet. 21-28) that the decision below

conflicts with decisions from the First, Second, Third, Sixth,

Ninth, and Tenth Circuits, but petitioners cannot show that they

would have prevailed in any of those circuits.

petitioners

instance

cite

the

involved

court

of

social-media

appeals

either

None of the cases

warrants,

and

in

each

declined

to

apply

the

exclusionary rule or identified constitutional defects that are

absent from the warrants at issue here.

In United States v. Abrams, 615 F.2d 541 (1980), the First

Circuit took the view that a warrant issued during an investigation

into healthcare fraud was insufficiently particular because it

permitted seizure of all records in a doctor’s office, provided no

24

description of the records to be seized, contained no temporal

limitation,

and

was

supported

by

an

affidavit

that

did

not

establish that the business was pervaded with fraud or that the

fraud spanned a significant period.

Id. at 543-546.

Those case-

specific circumstances bear no resemblance to the warrants and

affidavits here, which targeted an extensive conspiracy, detailed

how petitioners used Facebook in violating particular statutes,

identified

individual

underage

victims

of

those

crimes,

and

specified the areas to be searched and the information to be

seized.

See pp. 6-9, supra.

Nor does the decision below conflict with United States v.

Rosa, 626 F.3d 56 (2d Cir. 2010).

In Rosa, the Second Circuit

concluded that a warrant in a child-pornography investigation was

“defective in failing to link the items to be searched and seized

to the suspected criminal activity” and thus “provided [officers]

no guidance as to the type of evidence sought.”

Id. at 62.

But

as noted above, those facts differ sharply from the warrants and

affidavits at issue in this case. And consistent with the decision

below, Rosa declined to suppress the evidence at issue, based on

the good-faith exception to the exclusionary rule.

Id. at 64-66.

The Second Circuit, moreover, recently rejected petitioners’ view

that a warrant seeking “virtually all data associated with a

Facebook account” is “the digital equivalent of a prohibited

general warrant.”

Purcell, 967 F.3d at 180.

The court instead

recognized that an “unquestionably broad” warrant for Facebook

25

data may be “adequately particularized” if it “identifie[s] the

kinds of data subject to seizure with specificity,” ibid., and

that such a warrant is “not overbroad” when “there [i]s reason to

believe that the suspected criminal activity “‘pervade[d] that

entire’ [Facebook] account.”

Id. at 181 (citation omitted).

Petitioners also invoke (Pet. 24-25) the Third Circuit’s

decisions in United States v. Stabile, 633 F.3d 219, cert. denied,

565 U.S. 942 (2011), and United States v. Yusuf, 461 F.3d 374

(2006), cert. denied, 549 U.S. 1338 (2007), but those decisions

-- if anything -- suggest circuit accord.

Stabile affirmed the

denial of a suppression motion, explaining that the seizure of

“six entire hard drives” in a bank-fraud investigation was not

“unconstitutionally overbroad” where “a broad seizure was required

because evidence of financial crimes could have been found in any

location on any of the six hard drives.”

Similarly,

overbreadth

Yusuf

rejected

challenges

the

because

633 F.3d at 233-234.

defendants’

the

particularity

warrants

at

issue

and

had

“explicitly incorporated an affidavit detailing the items that the

government intended to search and seize.”

461 F.3d at 397.

The

court also emphasized that “the breadth of items to be searched

depends upon the particular factual context of each case and also

the information available to the investigating agent that could

limit the search at the time the warrant application is given to

the magistrate.”

Id. at 395.

26

The

Sixth

Circuit’s

case-specific

application

of

the

exclusionary rule in United States v. Lazar, 604 F.3d 230 (2010),

cert. denied, 562 U.S. 1140 (2011), United States v. Abboud, 438

F.3d 554 (2006), and United States v. Ford, 184 F.3d 566 (1999),

does not indicate the existence of circuit division either.

In

Lazar, a healthcare-fraud case, the Sixth Circuit affirmed the

suppression of non-patient files seized under a warrant that

sought,

inter

alia,

“‘[a]ny

and

all

information

and

data[]

pertaining to the billing of services,’” 604 F.3d at 233, and

“referenced no specific patients,” “no specific transactions, and

most importantly, no time frame,” id. at 238 (citation omitted).

But the court found that “the warrant was particularized insofar

as it described -- and thus allowed seizure of -- patient records

based on any patient” identified on a “list that came before the

issuing Magistrate Judge.”

Ibid.

(emphasis added).

Similarly,

in Abboud, the court of appeals concluded that a warrant was

overbroad to the extent “law enforcement knew that the evidence in

support of probable cause in the affidavit revolved only around a

three-month period,” yet the warrant allowed the search and seizure

of materials that predated that period by three years.

at 576 (emphasis added).

438 F.3d

But the court emphasized that any

“evidence relevant to [the three-month] period” should not be

suppressed.

Ibid.

Ford, in turn, found that a warrant targeting an illegal bingo

business was overbroad because it had permitted the search and

27

seizure

of

documents

predating

the

gambling

business’s

“incorporat[ion]” without any “indication in the affidavit of

criminal activity before that date.”

184 F.3d at 576.

The court

observed, however, that “[t]he degree of specificity required in

a warrant depends on what information is reasonably available to

the police in the case,” id. at 575, and had no occasion to apply

the good-faith exception because that issue had not been briefed,

id. at 578 n.3.

The decision below thus does not conflict with

Ford, or with Lazar or Abboud:

affidavits here

As discussed, the warrants and

identified specific categories of information

pertaining to listed offenses, specific victims, and petitioners’

own conduct.

They also provided ample grounds to believe, based

on the evidence available at the time, that petitioners’ sextrafficking conspiracy had begun before, and continued after, MS13’s exploitation of Minor 2.

See pp. 6-9, supra.*

Petitioners are also mistaken in claiming (Pet. 22) that the

decision

below

conflicts

with

the

fact-bound

disposition

United States v. Kow, 58 F.3d 423 (9th Cir. 1995).

in

Kow affirmed

the suppression of evidence recovered under a warrant that had

authorized the seizure of “virtually every document and computer

Petitioners suggest (Pet. 24) that United States v. Bass,

785 F.3d 1043 (6th Cir. 2015), shows the existence of an

intracircuit conflict.

That is incorrect:

the court in Bass

rejected an overbreadth challenge on plain-error review and “under

the circumstances” presented in that particular case. Id. at 1050.

And even if intracircuit disagreement existed, it would not warrant

this Court’s review. See Wisniewski v. United States, 353 U.S.

901, 902 (1957) (per curiam).

*

28

file” at a business without “specif[ying] the suspected criminal

conduct” or identifying a timeframe, despite statements in the

affidavit “indicat[ing]” the government’s knowledge of when the

“alleged criminal activity began.”

Id. at 427-428.

The court

also found that the affidavit did not establish that the business

was “‘permeated with fraud,’” as would have been necessary “to

justify the wholesale seizure” that occurred.

Id. at 430.

Here, in contrast, the warrant materials established that

petitioners

used

Facebook

conspiracy

with

unknown

extensively

beginnings.

to

further

a

complex

See

pp.

6-9,

supra.

Regardless, Kow did not purport to adopt a categorical rule, and

the

Ninth

Circuit

has

petitioners reprise here.

rejected

arguments

of

the

sort

that

See United States v. Flores, 802 F.3d

1028, 1044-1046 (2015) (explaining that a comprehensive Facebook

warrant was not overbroad insofar as it “allowed the government to

search only the Facebook account associated with [defendant]’s

name and email address, and authorized the government to seize

only evidence of violations of [enumerated statutes]” and finding

that any “lack of a temporal limit” did not support reversal),

cert. denied, 580 U.S. 827 (2016).

Finally, petitioners err in asserting (Pet. 26) that the

judgment below conflicts with the Tenth Circuit’s decision in

United States v. Russian, 848 F.3d 1239 (2017).

Russian reasoned

that a warrant authorizing a search of the defendant’s apartment

did not permit police officers to search and seize data from the

29

defendant’s cell phones, which were already in the officers’

possession and not described in any warrant materials.

1243-1245.

Id. at

And in any event, the court declined to suppress the

contested evidence, based on the good-faith exception to the

exclusionary rule.

Id. at 1246-1248.

Those facts and disposition

provide no sound basis to conclude that the Tenth Circuit would

have granted petitioners relief.

b.

courts,

Petitioners also cite (Pet. 30-32) decisions of state

some

petitioners

of

which

provide

no

are

state

meaningful

courts

of

last

explanation

decisions conflict with the decision below.

of

resort,

how

but

those

The cited decisions

either affirmed the denial of a motion to suppress or involved

warrants with defects that are not present here.

The courts in State v. Henderson, 854 N.W.2d 616 (Neb. 2014),

cert. denied, 576 U.S. 1025 (2015), and Richardson v. State, 282

A.3d 98 (Md. 2022), applied the good-faith exception to “all data”

warrants.

See Henderson, 854 N.W.2d at 632-635; Richardson, 282

A.3d at 124-126.

In Commonwealth v. Holley, 87 N.E.3d 77 (Mass.

2017), the court affirmed the denial of a motion to suppress

evidence seized pursuant to a warrant for “all stored contents of

electronic or wire communications” and “stored files” in the

defendant’s cellphone records because any lack of particularity

was harmless.

Id. at 92-93.

Those dispositions accord with the

disposition below in this case.

30

In State v. Smith, 278 A.3d 481 (Conn. 2022), the court found

that a warrant to search a cell phone was insufficiently particular

where, unlike the warrants here, it had failed to identify “the

types of data” that the State was seeking and “included no time

parameters” that otherwise might have “cabin[ed] the scope of the

search.”

Id.

at

497;

see

id.

at

500

(declining

to

reach

particularity question regarding a second warrant). And the courts

in Burns v. United States, 235 A.3d 758 (D.C. 2020), and State v.

Castagnola, 46 N.E.3d 638 (Ohio 2015), declined to uphold warrants

authorizing officers to seize any data on the defendants’ computers

or phones without any limitations whatsoever.

774-780; Castagnola, 46 N.E.3d at 655-661.

Burns, 235 A.3d at

Here, in contrast, the

warrant materials did list particular types of data that were

sought, and two of them had a specific date range.

Pet. App. 26a-

32a.

Finally, petitioners cite (Pet. 31) a pair of Delaware highcourt opinions, see Wheeler v. State, 135 A.3d 282 (2016); Taylor

v.

State,

260

instructive

A.3d

because

602

they

Delaware Constitution.

Amendment

“provides

(2021),

a

but

involved

those

claims

decisions

arising

are

not

under

the

And Delaware’s version of the Fourth

greater

protection

* * *

than

the

United States Constitution” does, and “the ‘good faith’ exception

to the exclusionary rule d[oes] not apply in Delaware.”

Wheeler,

135 A.3d at 298 n.71; see Taylor, 260 A.3d 602 at 614-615 (relying

in part on Wheeler).

31

c.

Petitioners

also

cite

(Pet.

nonprecedential district court decisions.

28-30)

various

But even if they were

inconsistent with the decision below, they would provide no basis

for this Court’s review.

563

U.S.

692,

709

Sup. Ct. R. 10(a); cf. Camreta v. Greene,

n.7

(2011)

(“A

decision

of

a

federal district court judge is not binding precedent in either a

different judicial district, the same judicial district, or even

upon the same judge in a different case.”) (citation omitted).

3.

At all events, this case would be a poor vehicle in which

to address the question presented because petitioners would not be

entitled to relief even if it were resolved in their favor.

Under the “severance doctrine,” the “constitutionally infirm

portion of a warrant -- usually for lack of particularity or

probable cause -- is separated from the remainder and evidence

seized pursuant to that portion is suppressed; evidence seized

under the valid portion may be admitted.”

United States v. Cobb,

970 F.3d 319, 330 (4th Cir. 2020) (citation and internal quotation

marks omitted), cert. denied, 141 S. Ct. 1750 (2021).

Courts have

applied the severance doctrine where, for example, a warrant is

allegedly overbroad because it authorizes the seizure of items

without a sufficient limitation on timeframe.

See, e.g., Flores,

802 F.3d at 1045–1046; Abboud, 438 F.3d at 576; $92,422.57, 307

F.3d at 151.

The severance doctrine makes clear that, even if the warrants

at issue here lacked particularity or were overbroad, petitioners’

32

convictions would be unaffected.

The Facebook evidence introduced

at trial was almost exclusively date-stamped from August 27 through

October

11,

2018,

a

timeframe

acknowledge was appropriate.

8, 33-34, 36.

that

petitioners

appear

to

See C.A. App. 1245-1257; Pet. 2-5,

Because that evidence would not be suppressed in

any event, petitioners’ convictions should still be affirmed.

See

Cobb, 970 F.3d at 330; Flores, 802 F.3d at 1045–1046; Abboud, 438

F.3d at 576; $92,422.57, 307 F.3d at 151; see also, e.g., Chambers

v. Maroney, 399 U.S. 42, 52-53 (1970) (applying harmless-error

analysis to the admission of evidence obtained in violation of the

Fourth Amendment).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

ALLAYA LLOYD

Attorney

OCTOBER 2024

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.

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