Search and Seizure — warrantless searches — Facebook

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U.S. District Court

CRIMINAL

Search and Seizure

Warrantless searches; facebook

A search warrant is required to view a suspect’s Facebook wall.

“Whether there is a search here is a close call because the officer did not actively open any files.  A truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a ‘search’ for Fourth Amendment purposes. Arizona v. Hicks, 480 U.S. 321, 328 (1987). However, this is not such a case. By touching a key or moving the mouse, the officer put into view the Facebook wall, which was not previously in view. Though a close call, the Court concludes that this was a search, however minimal, which required further authority, a warrant or consent. The government submits that the officer’s manipulation of the computer was for the purpose of seizing the computer, not to conduct a preliminary search. However, intent is not generally relevant in assessing whether a search ensued. See, e.g., United States v. Mann, 592 F.3d 779, 784 (7th Cir. 2010)(citing Platteville Area Apt. Ass’n v. City of Platteville, 179 F.3d 574, 580 (7th Cir. 1999)). The Court therefore recommends that the defendant’s Facebook wall be suppressed.”

11-CR-24 U.S. v. Musgrove

E.D.Wis., Joseph, Mag. J.