United States District Court, N.D. Georgia, Rome Division
NON-FINAL REPORT AND RECOMMENDATION
E. JOHNSON, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Brandon Panky's Motion to
Suppress Evidence . He challenges a state search warrant
issued for information stored on his Facebook account.
(Warrant [17-1] 5-7.) While Mr. Panky acknowledges that the
state magistrate's issuance of the warrant predated the
main authority upon which his argument relies, and that the
warrant is similar to two warrants that met the
“Leon good-faith exception, ” he
maintains that the warrant is overbroad. (Def.'s Mot.
1-3.) For the reasons below, the undersigned
RECOMMENDS that Mr. Panky's Motion to
Suppress be DENIED.
BACKGROUND AND LEGAL STANDARD
8, 2017, a Whitfield County magistrate issued a search
warrant for information contained on Mr. Panky's Facebook
profile. (Warrant 5-7.) Authorities executed the warrant and
received potentially incriminating evidence regarding Mr.
Panky's alleged possession of a firearm as well as
evidence concerning possible drug use and drug distribution.
(Indictment ; Pl.'s Resp.  2.) Mr. Panky
anticipates that the government will use the information in
this federal firearm prosecution. (Pl.'s Resp. 2.)
three months after authorities obtained the search warrant,
the Eleventh Circuit decided United States v. Blake,
868 F.3d 960 (11th Cir. 2017). Blake involved
warrants for Facebook information similar to the one at issue
here. Compare id. at 966-67, with (Warrant
5-7). The Blake warrants required the unnecessary
disclosure of almost every kind of information contained on a
Facebook account. 868 F.3d at 966-67. Authorities neither
attempted to limit the warrants to messages to and from
suspicious persons nor included a time limitation to narrow
the material searched. Id. at 967. The
Blake opinion said that those two practical
limitations could have undermined claims that the warrants
were the internet-era equivalent of a general warrant.
Id. at 974 (citing Riley v. California, 134
S.Ct. 2473, 2488-91 (2014); Coolidge v. New
Hampshire, 403 U.S. 443, 467 (1971)).
must state with particularity the items to be searched or
seized. U.S. Const. amend. IV. Overbroad warrants are
unconstitutional and, absent an applicable exception, courts
should exclude evidence obtained from such warrants. See
Groh v. Ramirez, 540 U.S. 551, 569-70 (2004). In
United States v. Leon, 468 U.S. 897 (1984), the
Supreme Court created a good-faith exception to the
exclusionary rule. Leon held that courts generally
should not exclude evidence obtained in objectively
reasonable reliance on a subsequently invalidated search
warrant. 468 U.S. at 922.
noted two circumstances that could justify exclusion in a
case like this one. 868 F.3d at 975 (citing Leon,
468 U.S. at 922). First, a court should exclude if the
warrant was based on an affidavit “so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Leon, 468
U.S. at 923. Second, courts should exclude if the warrant was
so facially deficient-in failing to particularize the place
to be searched or the things to be seized-that the executing
officers could not have presumed it to be valid. Id.
Blake court found probable cause supported issuance
of the warrants. 868 F.3d at 975. The affidavit contained
detailed information from an informant, and the Facebook
profile in question displayed publicly accessible
incriminating evidence. Id. at 973. The
Blake court also found that the warrants were not
facially deficient because, while the warrants might have
violated the particularity requirement, whether they in fact
did was a close question. Id. at 975. It was a close
enough question to not render the warrants so facially
deficient that the agents who executed them could not have
reasonably believed them to be valid. Id.
undersigned need not decide whether the state search warrant
here violated the Fourth Amendment because, like the warrants
in Blake, it falls into the Leon good-faith
exception. United States v. Herring, 492 F.3d 1212,
1215 (11th Cir. 2007) (stating that application of the
exclusionary rule is an issue separate from whether
authorities violated the Fourth Amendment). Compare
Blake, 868 F.3d at 966-67, 974-75, with
(Warrant 5-7), and (Def.'s Mot. 2). First,
probable cause supported the issuance of the warrant. Like
Blake, an informant provided the affiant access to
messages sent between the informant and Mr. Panky.
Compare Blake, 868 F.3d at 966-77, with
(Warrant 2-3). As the informant explained, these messages
referenced alleged drug use, gang affiliation, and
prostitution. (Warrant 3.) Second, the warrant is not so
facially deficient that the executing officers could not have
presumed it to be valid. Mr. Panky acknowledged that the
warrant is similar to those at issue in Blake,
warrants that met the good-faith exception. (See
Def.'s Mot. 2; Def.'s Reply  1.) In fact, he
borrowed the Eleventh Circuit's language from
Blake to describe the warrant at issue here.
Compare (Def.'s Mot. 2; Def.'s Reply 1),
with 868 F.3d at 966-67, 974-75. While the
Blake warrants skirted a violation of the
particularity requirement, that question was close enough to
not render them facially deficient. 868 F.3d at 975.
the Blake opinion said it was helpful that the
warrants limited the data seized to the data relevant to the
specified crime. 868 F.3d at 967. Like the Blake
warrants, the warrant here limited the content seized to the
listed items “associated with drug transactions, and 
criminal street gang activity.” (See Warrant
5-6.) While the warrant does not narrow the timeframe, the
warrant appears no worse than the ones at issue in
Blake, which also failed to state a particular
timeframe and provided access to most anything on the
Facebook account. (Warrant 5-6.)
the magistrate signed the warrant, and authorities executed
it, about three months before the Eleventh Circuit issued the
Blake opinion. This timing issue means that there
was nothing in way of recent case law to alert authorities to
the fact that this warrant may have been questionable. The
authorities in this case were essentially in the same
position as those in Blake.
due to the three-month timing issue and the similarity
between the warrant at issue here to those discussed in
Blake, the undersigned REPORTS that
the warrant falls within the Leon good-faith
exception. Probable cause supported issuance because an
informant disclosed potentially incriminating Facebook
messages to the affiant. The warrant was not facially
deficient because the question of whether it was in fact
overbroad was, like in Blake, sufficiently close.
Consequently, the undersigned RECOMMENDS
that Mr. Panky's Motion be DENIED.