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
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
--
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
“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
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
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.