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United States v. Propps

United States District Court, N.D. Georgia, Rome Division

February 19, 2019

United States of America,
v.
Joseph M. Propps, Jr. 16, Defendant.

          OPINION AND ORDER

          Michael L. Brown, United States District Judge.

         Magistrate Judge Walter E. Johnson recommended denial of Defendant Joseph M. Propps, Jr.'s motion to suppress the search and seizure of information from his Facebook accounts. (Dkt. 454.) Defendant Propps objects to that recommendation, as well as the Magistrate Judge's separate denial of his motions for a bill of particulars and to dismiss the superseding indictment on double jeopardy grounds. (Dkts. 406, 407, 467.) The Court accepts the Magistrate Judge's recommendations and affirms the denial of all three motions.

         I. Background

         ATF Special Agent Brian Johnson and other members of law enforcement investigated members of the so-called Ghostface Gangsters, a criminal street gang involved in armed-drug trafficking, drug smuggling, armed robbery, and other criminal activities. (Johnson Aff. at ¶ 3.)[1] He identified Defendant Propps as one of the seven founding members, or “pillars, ” of the Ghostface Gangsters. (Id. at ¶¶ 10, 19(j).) Special Agent Johnson sought a search warrant for Facebook seeking information associated with Defendant's Facebook account. In his affidavit in support of the warrant, Special Agent Johnson explained Defendant's role as a founding member of the Ghostface gang and alleged that he provided large amounts of illegal drugs to fellow gang members. He explained that Ghostface gang members use Facebook (and other social media outlets) to proclaim their membership in and allegiance to the gang and to communicate with other gang members. He explained that gang members often post photos of themselves that confirm their membership in the gang, including photos with other known gang members, photos in which they are making hand signs associated with the gang, and photos showing illegal drugs and firearms. (Id. at ¶ 5.) Finally, he alleged that Defendant Propps appears in the profile pictures of both the “Joey Propps” and “JP Propps” Facebook accounts. (Id. at ¶ 19(j).)

         Special Agent Johnson obtained the warrant and served it on Facebook. His investigation ultimately led to the indictment of many individuals for various crimes. The United States charged Defendant Propps with conspiring with other gang members to traffic methamphetamine, in violation of 21 U.S.C. § 846. (Dkt. 279.) Defendant moved to suppress the search warrant, arguing it lacked probable cause. (Dkts. 409, 416.)

         The Magistrate Judge recommended denial of Defendant Propps's motion for two reasons. First, he concluded “it was reasonable for the [issuing magistrate] to conclude that, given all the circumstances, there was a fair probability that contraband or evidence of a crime would be found in the Defendant's Facebook accounts.” (Dkt. 454 at 5.) Second, he concluded that, even if the warrant lacked probable cause, the government is entitled to the good faith exception to the exclusionary rule under United States v. Leon, 468 U.S. 897, 925 (1984). (Id.)

         Defendant Propps objects to the ruling, relying “on the arguments and cases cited in his amended motion.” (Dkt. 467 at 1.) He also objects to the Magistrate Judge's denial of his motions for a bill of particulars and to dismiss the superseding indictment on double jeopardy grounds. (Id. at 1-2.)

         II. Legal Standard

         After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59; Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The district judge should “give fresh consideration to those issues to which specific objection has been made by a party.” Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (citation omitted). For those findings and recommendations to which a party has not asserted objections, the court must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).

         Parties filing objections to a magistrate's report and recommendation must specifically identify those findings to which they object. Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988). “Frivolous, conclusive, or general objections need not be considered by the district court.” Id. Even so, the Court conducts a de novo review of Defendant Propps's motion to suppress.

         As for Defendant Propps's other motions, Federal Rule of Criminal Procedure 59(a) dictates that a court may refer to a magistrate judge any matter that does not dispose of a charge or defense. Fed. R. Crim. P. 59(a). A party may object to the magistrate judge's determination on a non-dispositive issue, but the district court will modify or set aside the determination only if it is contrary to law or clearly erroneous. See Id. The Magistrate Judge's denial of Defendant's motion for a bill of particulars is non-dispositive; thus the Court reviews it under Rule 59(a).

         A. Motions to Suppress

         Defendant Propps first challenges the denial of his motion to suppress the information obtained from his Facebook accounts. Rather than identify any specific errors in the Magistrate Judge's analysis, Defendant Propps refers the Court to the arguments and cases he cited in his amended motion to suppress.

         1. Sufficiency of the ...


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