Friday, February 22, 2013

Facebook, “Wrath Commands” and the 4th Amendment

On March 22, 2012, a federal grand jury in Colorado returned an indictment against

Kenneth Royal Wheeler charging him with the following: (1) Count One -- knowingly transmitting in interstate and foreign commerce a communication containing a threat to injure the person of another; specifically, at approximately 12:06 p.m., on or about March 12, 2012, Defendant transmitted from Italy to the United States via the internet social network `Facebook,’ `wrath commands’ to kill law enforcement officers and children in violation of 18 U.S Code § 875(c); and (2) Count Two -- knowingly transmitting in interstate or foreign commerce a communication containing a threat to injure the person of another; specifically, at approximately 1:25 p.m., on or about March 12, 2012, Defendant transmitted from Italy to the United States via the internet social network `Facebook,’ instructions to kill law enforcement officers, politicians, judges, district attorneys, public defenders and their children in violation of 18 U.S. Code § 875(c).

U.S. v. Wheeler, 2013 WL 169494 (U.S. District Court for the District of Colorado 2013).

Personally, I’ve never encountered “wrath commands” so I don’t really know what they are, but according to this article in the Denver Post, on March 12, 2012, when Wheeler was in Italy, he posted a “ramble” on Facebook that began with these comments:

`STARDRAGON celestial overide contigency 2 7 A release the P. A. E. virus in america. this is a holy war. well. . . . i am not in america. even though i might come back the fact is i am not in america right now. . . . so. . . . anything i put on facebook, threats commands, activities, so on and so forth. the americans cant punish me for what i say here in rome italy on facebook. so. kill cops. drown them in the blood of thier children.’

As I have explained in prior posts, § 875(c) of Title 18 of the U.S. Code is a threat statute.  More precisely, it provides as follows:

Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.

And as I have explained noted in prior posts, defendants often challenge charges under the statute on the grounds that their communication did not rise to the level of a “true threat" . . . which, as I note later, may or may not be an issue hre.

That, though is not Wheeler did, at least not with regard to the issues the court is dealing with in this opinion.  Here, the federal district court judge is ruling on Wheeler’s motion to suppress certain evidence.  U.S. v. Wheeler, supra.

The judge began his opinion by noting that the defendant has the

`burden of showing a constitutional infirmity if a search or seizure was carried out pursuant to a warrant. If, on the other hand, the police acted without a warrant, the burden of proof is on the prosecution.’ U.S. v. Esser, 451 F.3d 1109 (U.S. Court of Appeals for the 10th Circuit 2006).

U.S. v. Wheeler, supra.  So, since the search at issue in Wheeler’s motion to dismiss was conducted pursuant to a warrant, the burden was on Wheeler to show that the search somehow violated the 4th Amendment.  U.S. v. Wheeler, supra.

This, according to the opinion, is how the warrant came to be issued and what it authorized: 

Special Agent Gerard Kavanagh submitted an Affidavit in support of the Warrant. . . . Kavanagh has been employed as a Special Agent with Immigration and Customs Enforcement Homeland Security Investigations since February 2012 and assigned to the Grand Junction Office. . . . The Affidavit stated that, on March 16, 2012, members of the Grand Junction Police Department requested the assistance of Federal agents with regard to threatening posts made by Kenneth Royal Wheeler on his Facebook page. . . . 

The Grand Junction Police Department became aware of these posts when a tip line caller reported the postings. . . . The caller stated that Wheeler posted a request for someone to kill all of the children at Stepping Stones Daycare, as well as several specific police officers and their children. . . . The caller reported that Wheeler lives a few blocks from the Stepping Stones daycare. . . .

The affidavit stated that, on March 19, 2012, Kavanagh compared the photograph from Kenneth Wheeler's Colorado Driver's License to the Facebook profile photographs on the `Kenneth Royal Wheeler’ account. . . . Kavanagh believed the photographs were of the same individual. . . . 

Kavanagh stated his belief that the computers of Facebook were likely to contain material relevant to the threats made in the postings, including stored electronic communications and information concerning subscribers and their use of Facebook, such as account access information, transaction information, and other account information. . . .

That same day, United States Magistrate Judge Gudrun Rice approved the warrant. . . . The Warrant permitted the search of `information associated with FACEBOOK Social Networking account located at [] and under the username of “Kenneth Royal Wheeler” that is stored at the premises owned, maintained, controlled, or operated by FACEBOOK CORPORATION, a Social Media provider headquartered at 1601 Willow Road in Menlo Park, California 94025.’. . . The Warrant allowed for seizure of all contact and personal identifying information for the account, all activity logs, photos uploaded to the account, records of communications sent and received on the account, all `check ins’ and uses of the `like’ feature, and all other accounts that were `friends’ and to which the account was a `fan’ of. . . .

U.S. v. Wheeler, supra. 

In moving to suppress, Wheeler argued that “the affidavit on which the search warrant was issued did not meet the constitutional requirements and, therefore, all evidence obtained as a result of the search should be excluded.”  U.S. v. Wheeler, supra.  The  judge who has the case began his analysis of the argument by noting that the 4th Amendment states, in pertinent part, that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.” U.S. v. Wheeler, supra.  He also pointed out that the 4th Amendment’s requirements or probable cause and particularity

`serve two constitutional protections: First, the magistrate's scrutiny is intended to eliminate searches not based upon probable cause, therefore justifying the intrusion into the place to be searched. Second, the particularity provision protects against general, exploratory rummaging through the suspect's belongings.’ U.S. v. Sells, 463 F.3d 1148 (U.S. Court of Appeals for the 10th Circuit 2006)

U.S. v. Wheeler, supra. 

Wheeler “point[ed] out” that “he is charged with transmitting threats in interstate commerce and argues that, because the Warrant does not seek the fruits of that crime, the instrumentalities of that crime or the contraband from that crime, it lacks the constitutionally required nexus to the crime.” U.S. v. Wheeler, supra.  The judge, though, found that his argument “improperly narrows the scope of the probable cause analysis and asks the Court to Monday-morning quarterback what was, at the time the Warrant was issued, an ongoing investigation.”  U.S. v. Wheeler, supra. 

The judge noted that when the warrant was issued, Kavanaugh was investigating an

ongoing threat to the safety of Grand Junction residents. He did not know whether there was an actual plan to bomb the daycare and kill police officers or whether the comments on [Wheeler’s] Facebook page were idle threats. The fact [Wheeler] was ultimately charged only with making threats does not dictate the limits of the scope of the Warrant at the time it was issued. . . . Instead, the Court must determine whether the Affidavit established probable cause to issue the warrant, considering the totality of the circumstances at the time the Warrant was issued.

U.S. v. Wheeler, supra.  He also explained that probable cause is assessed by a

`totality of the circumstances’ standard under which the judge makes a “practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.’

U.S. v. Wheeler, supra (quoting U.S. v. Corral, 970 F.2d 719 (U.S. Court of Appeals for the 10th Circuit 1992)).

Wheeler claimed that Kavanaugh’s affidavit did not establish probable cause to search

for the vast majority of the information that was permitted under the Warrant. . . . For example, [he] contends there is no probable cause to search for his `Friends’ list, what pages he `liked’ or became a fan of, who he may have `poked’, or what items he sold on Facebook's Marketplace. . . . In essence, [he] is not arguing about whether there was probable cause to issue the Warrant at all; rather, [Wheeler] is challenging the scope of the warrant and whether the Affidavit established probable cause for such a warrant.

U.S. v. Wheeler, supra. 

The judge did not buy Wheeler’s argument, instead finding that the warrant was not

overbroad and the Affidavit established probable cause to search for all of the aspects covered by the Warrant. The comments posted on Wheeler’s Facebook page repeatedly referred to [his] `religious operatives and followers’ and instructed them to kill cops (generally and a particular list of officers) and to `commit a massacre in the stepping stones preschool and daycare, just walk in and kill everyone’. . . .   

The comments also said `nobody in america knows who i have been associating with outside america, we are ready, we are coming back, and we are doing this. and just like i told them, when the cuffs go on the bombs go off.’. . . Thus, the comments on [his] Facebook page plainly indicated Wheeler was not acting alone, but it failed to provide any insight into with whom he may have been conspiring.

The Affidavit, in turn, states that the purpose of the Warrant is to seize `conspiratorial communications with others’ regarding `[t]hreats and threatening communications, incitements to violence, [and] threats to use destructive devices’, as well as obtaining `[r]ecords relating to who created, used, or communicated with the user ID, including records about their identities and whereabouts.’ . . .

Given the comments on [Wheeler’s] Facebook page about the involvement of others in his plans, Kavanaugh could have reasonably believed information obtained from Facebook, such as who [his] `friends’ were, what pages he `liked’, and who he `poked’, would provide insight into who these other actors were and where they may have been located. The identity and location of these other actors is evidence related to the crime for which [Wheeler] was being investigated. Accordingly, Kavanaugh's Affidavit established probable cause for the search of [Wheeler’s] Facebook account. . . .

U.S. v. Wheeler, supra. 

The judge therefore found that “the Affidavit upon which the Warrant was issued sufficiently established probable cause to believe that the search would lead to evidence of a crime” and so denied Wheeler’s motion to suppress.  U.S. v. Wheeler, supra. 

Finally, an aside that has nothing to do with Wheeler’s motion to suppress.  The Denver Post story noted above says that at what may have been a hearing on the motion to suppress, Wheeler’s lawyer told the district court judge that Wheeler

had no friends to communicate with on his Facebook page, so his call for `followers’ to kill Grand Junction police officers and attack a day-care center wasn't a threat, his lawyer said Thursday.

`Mr. Wheeler had eliminated all of the people he had friended on Facebook. It means you are not communicating with anybody.’

`At some level, it means nobody is receiving the communication,’ Abraham V. Hutt, Wheeler's lawyer, told U.S. District Judge William J. Martinez.

I don’t see how, even if this is true, it had anything to do with the motion to suppress. To me -- and I could be wrong about this -- it sounds more like an argument that what Wheeler posted could not be a “threat” because no one was reading it. . . .

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