Case 2:18-cr-00123-cr Document 604 Filed 11/05/21 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`FOR THE
`DISTRICT OF VERMONT
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`2121 NOV -5 PH 2= 07
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`UNITED STATES OF AMERICA
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`V.
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`KRYSTAL WHITCOMB,
`SHAWN WHITCOMB,
`MICHAEL ANTHONY HA YES,
`JOHN WELCH, MICHAEL ASHFORD,
`and CHRIS EASTMAN
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`)
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`)
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`Case No. 2:18-cr-00123
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`OPINION AND ORDER DENYING DEFENDANT WELCH'S
`MOTIONS TO SUPPRESS
`(Docs. 287 & 514)
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`Pending before the court is Defendant John Welch's motion to suppress the
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`evidence obtained pursuant to October 23, 2018 and November 21, 2018 search warrants
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`for his cell phone records (the "cell phone warrants") and his motion to suppress the
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`evidence obtained pursuant to an October 29, 2018 search warrant for certain Facebook
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`records (the "Facebook warrant"). The government opposes both motions.
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`Defendant Welch is charged in a Fourth Superseding Indictment with knowingly
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`using and carrying a firearm during and in relation to a drug trafficking crime in violation
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`of 18 U.S.C. §§ 9240)(1) and 2 (Count 1);1 knowingly using and carrying a firearm
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`during and in relation to a drug trafficking crime in violation of 18 U.S.C.
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`§§ 924(c)(l)(A)(iii) and2 (Count 2);2 knowingly conspiring to use and carry a firearm
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`during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(0)
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`(Count 3); knowingly and willfully conspiring to distribute cocaine, a Schedule II
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`1 During the commission of this offense, Defendant Welch and others are alleged to have caused
`the death of Michael Pimental by murder, as defined in 18 U.S.C. § 1111.
`2 During the commission of this offense, Defendant Welch and others are alleged to have
`discharged a firearm.
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`Case 2:18-cr-00123-cr Document 604 Filed 11/05/21 Page 2 of 13
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`controlled substance, and cocaine base, a Schedule II controlled substance, in violation of
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`21 U.S.C. §§ 841(a)(l), 841(b)(l)(B), and 846 (Count 8); and knowingly possessing in
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`and affecting interstate commerce a firearm; namely, a Taurus 1911 9mm pistol, while
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`being an unlawful user of and addicted to a controlled substance as defined in 21 U.S.C.
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`§ 802, and knowing that he was an unlawful user of and addicted to such a substance, in
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`violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2) (Count 17).
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`The government is represented by Assistant United States Attorneys Wendy L.
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`Fuller and John J. Boscia. Defendant Welch is represented by Robert S. Behrens, Esq.
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`and Robert W. Katims, Esq.
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`I.
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`Conclusions of Law and Analysis.
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`A. Whether the Cell Phone Warrants Were Overbroad.
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`Defendant Welch moves to suppress evidence obtained pursuant to state search
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`warrants for records associated with cell phone numbers (603) 384-3916 (the "Verizon
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`warrant") and (603) 384-3563 (the "AT&T warrant") for the crime of murder. (Doc.
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`514.) The affidavits supporting the cell phone warrants from Vermont State Police
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`("VSP") Detective Sergeant Ashley Barnes ("Det. Barnes") are substantially similar. In
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`both instances, Vermont Superior Court Judge Robert Bent reviewed the search warrant
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`applications and issued the cell phone warrants. Defendant Welch contends that the cell
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`phone warrants were overbroad and "not based on sufficient probable cause[.]" Id. at 1.
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`The Fourth Amendment provides that "no Warrants shall issue, but upon probable
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`cause, supported by Oath or affirmation, and particularly describing the place to be
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`searched, and the persons or things to be seized." U.S. Const. amend. IV. "A search
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`warrant affidavit is presumed reliable." United States v. Klump, 536 F.3d 113, 119 (2d
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`Cir. 2008) ( citation omitted). An issuing judge must "make a practical, common-sense
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`decision whether, given all the circumstances set forth in the affidavit before him, ...
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`there is a fair probability that contraband or evidence of a crime will be found in a
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`particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983).
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`As Mr. Pimental's death occurred on or about October 13, 2018, Defendant Welch
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`contends that the Verizon and AT&T warrants for data from April 1, 2018 to October 15,
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`2
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`Case 2:18-cr-00123-cr Document 604 Filed 11/05/21 Page 3 of 13
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`2018 and November 21, 2018, respectively, are overly broad because "there is no
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`evidence or information that [his] activities justify any search back" to that time period.
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`(Doc. 514 at 7.) He asserts that "[i]n reviewing the affidavits, the events leading up to
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`[Mr. Pimental's] death that are relevant started a few days before - October 11, 2018"
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`because on "October 11, 2018, Krystal Whitcomb, Michael Hayes, Alicia Whitcomb and
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`Brandon Darling purchased ammunition consistent with the ammunition that killed Mr.
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`Pimental." Id.
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`The Warrants Clause of the Fourth Amendment prohibits overbreadth. U.S. Const.
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`amend. IV. "[A] warrant is overbroad if its 'description of the objects to be seized ... is
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`broader than can be justified by the probable cause upon which the warrant is based."'
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`United States v. Nejad, 436 F. Supp. 3d 707, 725 (S.D.N.Y. 2020) (citation omitted)
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`(alterations in original). When determining if a warrant is overbroad, a court must
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`determine whether "there exists probable cause to support the breadth of the search that
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`was authorized." Id. at 725 (quoting United States v. Zemlyansky, 945 F. Supp. 2d 438,
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`464 (S.D.N.Y. 2013)) (internal quotation marks omitted). "A failure to indicate a time
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`frame could render a warrant constitutionally overbroad because it could allow[ ] the
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`seizure of records dating back arbitrarily far and untethered to the scope of the affidavit
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`which ostensibly provided probable cause." United States v. Hernandez, 2010 WL 26544,
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`at *9 (S.D.N.Y. Jan. 6, 2010) (internal quotation marks omitted). However, unlike
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`instances where no time frame is specified in the warrant, the cell phone warrants span a
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`designated period of approximately six-months. 3
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`The supporting affidavits for the cell phone warrants explain the connections that
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`existed between Defendant Welch, Mr. Pimental, and members of the Whitcomb family
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`well in advance of Mr. Pimental's death on or about October 13, 2018. For example,
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`Defendant Welch informed law enforcement he used to associate with Mr. Pimental,
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`including by purchasing heroin from him, three to four years ago. He stated that he had
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`3 As the AT&T warrant was issued in November of 2018 and it requests data through the date of
`the warrant's execution, it spans a seven-month period.
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`3
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`worked with Shawn Whitcomb, who is alleged to have assisted with the murder,
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`approximately six months prior to Mr. Pimental's death. The time frame set forth in the
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`cell phone warrants covers not only the immediate dates surrounding the murder but a
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`time period which reasonably reflects the relationships between the alleged participants
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`and the planning of the crime. See id. at * 11 (noting that the "complexity and duration of
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`the alleged criminal activities" may render concerns over a warrant's time frame "less
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`significant")
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`The supporting affidavits further aver that multiple individuals, who knew each
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`other for significant periods of time, were involved in purchasing and distributing
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`narcotics and that Mr. Pimental's murder arose out of some of these relationships. See
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`United States v. Ray, 2021 WL 2134861, at *23 (S.D.N.Y. May 26, 2021) (finding search
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`that was broader than the specific events identified in a supporting affidavit was
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`permissible where those events "had probative value" such as providing support "for the
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`theory that [defendant] was engaged in a criminal course of conduct" that extended over a
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`longer time period). This is not a case in which the alleged drug conspiracy and the
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`alleged murder were unrelated.
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`Because the cell phone warrants do not extend "arbitrarily far" and are not
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`"untethered to the scope of the affidavit which ostensibly provided probable cause[,]"
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`Hernandez, 2010 WL 26544, at *12 (internal quotation marks and citation omitted), it
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`was reasonable for Judge Bent to believe that Defendant Welch's phone records would
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`yield evidence of the crime of murder during a designated period that was not "broader
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`than can be justified by the probable cause upon which the warrant is based." Nejad, 436
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`F. Supp. 3d at 725 (internal quotation marks and citations omitted). Defendant Welch's
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`motion to suppress evidence obtained pursuant to the cell phone warrants based on
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`overbreadth is therefore DENIED.
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`B. Whether the Cell Phone Warrants Were Based on Probable Cause.
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`Defendant Welch asserts that the cell phone warrants were not based on probable
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`cause because they fail to establish that his phone records were connected to a murder.
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`"A reviewing court must accord substantial deference to the finding of an issuing judicial
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`Case 2:18-cr-00123-cr Document 604 Filed 11/05/21 Page 5 of 13
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`officer that probable cause exists." United States v. Wagner, 989 F.2d 69, 72 (2d Cir.
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`1993) (citing United States v. Nichols, 912 F.2d 598, 602 (2d Cir. 1990); United States v.
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`Travisano, 724 F.2d 341, 345 (2d Cir. 1983)). A warrant should be upheld if the issuing
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`judicial officer had a "substantial basis" for finding probable cause. Id. (citing Gates, 462
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`U.S. at 236; United States v. Nersesian, 824 F.2d 1294, 1306 (2d Cir. 1987)). "[P]robable
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`cause is a fluid concept-turning on the assessment of probabilities in particular factual
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`contexts-not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462
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`U.S. at 232. "[P]robable cause only requires 'the probability, and not a prima facie
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`showing, of criminal activity."' United States v. Martin, 426 F.3d 83, 86 (2d Cir. 2005)
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`(quoting Gates, 462 U.S. at 235).
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`The supporting affidavits for the Verizon and AT&T warrants are nearly identical
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`with respect to Defendant Welch and, in sixty-two and one hundred paragraphs,
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`respectively, they detail an extensive drug conspiracy in which one of the alleged
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`participants was murdered. Krystal Whitcomb and Michael Pimental, who lived together
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`in Waterford, Vermont, allegedly "were involved in selling heroin" from their residence.
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`(Doc. 514-1 at 6, ,i 3; Doc. 514-2 at 6, ,i 3.) On October 13, 2018, Krystal Whitcomb was
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`at the residence of Alicia Whitcomb, her sister, when she "received a phone call from
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`[Mr.] Pimental[, who] ... stated he would 'murder' her if she did not get home." (Doc.
`514-1 at 7, ,i 11; Doc. 514-2 at 7, ,i 11.) Krystal Whitcomb reportedly notified her father,
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`Shawn Whitcomb, "who agreed to meet her at a pull off down the road from her
`[Waterford] residence." (Doc. 514-1 at 7, ,i 11; Doc. 514-2 at 7, ,i 11.) Shortly thereafter,
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`Mr. Pimental was murdered at the Waterford residence.
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`Both affidavits state that when Krystal Whitcomb was arrested, she was in
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`possession of narcotics. She informed law enforcement that Defendant Welch, who was a
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`friend of Shawn Whitcomb, shot Mr. Pimental. While she provided varying accounts of
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`the incident, Krystal Whitcomb described a male identified as Defendant Welch,
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`"entering the residence and shooting [Mr.] Pimental in the bedroom[,]" which she
`watched "through the window from outside the residence." (Doc. 514-1 at 8, ,i 12; Doc.
`514-2 at 7, ,i 12.) She later stated that as Defendant Welch "walked to the bedroom where
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`5
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`Case 2:18-cr-00123-cr Document 604 Filed 11/05/21 Page 6 of 13
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`[Mr.] Pimental had been[,]" she "stepped outside on to the porch and heard
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`approximately three (3) gunshots with a pause and then multiple more gun shots." (Doc.
`514-1 at 8, ,i 12; Doc. 514-2 at 7, ,i 12.) She informed law enforcement in her "final
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`version" that Shawn Whitcomb was present in the bedroom where Mr. Pimental was
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`killed and that after "[Defendant] Welch shot first[,]" Shawn Whitcomb took Mr.
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`Pimental's firearm and "empt[ied] the weapon into him." (Doc. 514-1 at 8, ,i 13; Doc.
`514-2 at 7, ,i 13.) Brandon Darling, Alicia Whitcomb's domestic partner, informed law
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`enforcement that Defendant Welch admitted to shooting Mr. Pimental.
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`When questioned, Defendant Welch provided law enforcement with inconsistent
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`accounts regarding his whereabouts at the time of Mr. Pimental's murder. He
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`acknowledged he "used to associate with [Mr.] Pimental," including by purchasing
`heroin from him "when he was using" three to four years ago. (Doc. 514-1 at 12, ,i 44;
`Doc. 514-2 at 11, ,i 48.) Defendant Welch's girlfriend, Angela Crowley, informed law
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`enforcement that on the date of Mr. Pimental's murder, she and Defendant Welch
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`traveled to Alicia Whitcomb's residence to purchase cocaine and that Defendant Welch
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`left the residence with Krystal Whitcomb. Defendant Welch returned in approximately
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`one hour, and Ms. Crowley believed he may have been in possession of his cell phone
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`when he traveled to and from Alicia Whitcomb's residence.
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`Defendant Welch informed law enforcement that Shawn Whitcomb worked for
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`him most recently approximately six months before Mr. Pimental's death. He stated that
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`he visited Shawn Whitcomb in person on either October 9, 2018 or October 10, 2018. A
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`witness, Dallas Bona, informed law enforcement that Shawn Whitcomb explained to him
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`how an individual named "John C" shot Mr. Pimental before leaving the Waterford
`residence with Krystal Whitcomb. (Doc. 514-1 at 13, ,i 50; Doc. 514-2 at 13, ,i 61.)
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`Defendant Welch admitted that he called Shawn Whitcomb the day after Mr. Pimental
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`was killed, although he claimed the conversation was related to tires for his truck. He also
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`told law enforcement that his cell phone broke two days after Mr. Pimental's death.
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`The Verizon warrant affidavit states that "investigators learned John Welch has
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`Verizon Wireless phone number of 603-348-3916." (Doc. 514-1 at 14, ,i 59.) The AT&T
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`6
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`Case 2:18-cr-00123-cr Document 604 Filed 11/05/21 Page 7 of 13
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`warrant affidavit provides additional details including that Brandon Darling informed law
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`enforcement that he received a text message from Defendant Welch at some point after
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`Defendant Welch confessed to the murder, and Mr. Darling identified the number (603)
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`348-3563 as belonging to Defendant Welch.
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`Both affidavits provide ample grounds to reasonably believe that the cell phone
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`records in question may provide evidence related to Mr. Pimental's murder in light of the
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`numerous witnesses who provided information to law enforcement, their pre-existing
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`relationships, and their consistent identification of a group of participants including
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`Defendant Welch and his co-Defendants Krystal Whitcomb, Alicia Whitcomb, Shawn
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`Whitcomb, Michael Hayes, Brandon Darling, and Christopher Eastman, all of whom are
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`alleged to have information pertaining to the crime. The cell phone records were likely to
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`corroborate the existence of these relationships and reveal information regarding the role
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`of the various participants in an alleged drug conspiracy that involved Mr. Pimental and
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`culminated in his murder. See United States v. Johnson, 804 Fed. App'x. 8, 10-11 (2d
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`Cir. 2020) (finding cell-site location information associated with cell phone was properly
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`obtained "pursuant to a facially valid judicial warrant supported by probable cause"
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`where the investigator's application "included a detailed factual recitation" regarding a
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`"drug conspiracy surrounding the [v]ictims' murders" and the defendant's pattern of
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`travel at the time of the murders); see also United States v. Saipov, 2019 WL 3024598, at
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`*4 (S.D.N.Y. July 11, 2019) (noting that a defendant "keep[ing] the [cellular phones at
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`issue] close to him while he committed the charged crimes" supported probable cause).
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`Judge Bent had a "substantial basis" for his conclusion that probable cause existed
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`to search Defendant Welch's cell phone records for a period of time spanning
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`approximately six months for evidence of murder because there was a fair probability
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`that these records would reveal evidence of that crime. Gates, 462 U.S. at 238. Defendant
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`Welch's motion to suppress evidence obtained pursuant to the cell phone warrants for a
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`lack of probable cause (Doc. 514) is therefore DENIED.
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`7
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`Case 2:18-cr-00123-cr Document 604 Filed 11/05/21 Page 8 of 13
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`C. Whether Defendant Welch Has Established "Standing" to Challenge
`the Facebook Warrant.
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`Defendant Welch moves to suppress evidence obtained pursuant to the Facebook
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`warrant for evidence of the crime of murder (Doc. 287) arguing that it was not based on
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`probable cause because the supporting affidavit "did not present a fair probability that
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`[his] Facebook account contained evidence related to the death/murder of Mr. Pimental."
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`Id. at 4. He claims that the warrant lacks particularity and is overbroad because it requests
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`data from April 1, 2018 to the warrant's execution and it "essentially seeks all data in the
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`account." Id. at 6. The Facebook warrant authorizes the search of the following records
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`related to the welch.john.10 Facebook account:
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`User Identification Number[;] E-mail address[;] Date and Time Stamp of
`account creation date[;] Most Recent Account Logins[;] IP Addresses with
`Port Numbers associated with Login/Logout connection history[;]
`Registered Mobile Number[;] User Profile Contact Section Information[;]
`User Profile Wall Postings Section Information (DATE RANGE: 04/01/18
`-Present)[;] Private Messages with message headers (DATE RANGE:
`04/01/08 - Present)[;] Stored content including photos, videos, and location
`information [i]including, but not limited to, NEOPRINT and
`PHOTOPRINT[.]
`(Doc. 287-1 at 2.)
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`The supporting affidavit for the Facebook warrant is substantially similar to those
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`accompanying the cell phone warrants, although it contains additional information
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`specific to Defendant Welch's activity on Facebook. In particular, it states that on
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`October 22, 2018, law enforcement officers met with Marisa Levesque, who informed
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`them she had known Angela Crowley, Defendant Welch's girlfriend, since she was
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`twelve years old, but that she had only recently become acquainted with Defendant
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`Welch. "[Ms.] Levesque explained that [Defendant] Welch had been romantically
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`involved with [ a person named Alisha Wedge] while being in a romantic relationship
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`with [Ms.] Crowley. [Ms.] Levesque advised she was a 'middle man' for conversations
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`between [Ms.] Wedge and [Defendant] Welch on Facebook messenger." Id. at 12-13, ,i
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`72.
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`8
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`Case 2:18-cr-00123-cr Document 604 Filed 11/05/21 Page 9 of 13
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`On October 12, 2018, Marisa Levesque traveled with Defendant Welch and
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`Angela Crowley to the residence of Alicia Whitcomb and Brandon Darling. Defendant
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`Welch entered the residence to purchase cocaine while she stayed in the vehicle with Ms.
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`Crowley. When Defendant Welch returned to the vehicle approximately forty-five
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`minutes later, he was bare-chested and carrying his sweatshirt, which Ms. Levesque
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`believed had been removed "to show he was not wearing a wire during the purchase of
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`cocaine." Id. at 13,173. Ms. Levesque stated that "she received Facebook messages from
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`[Defendant] Welch since October 12, 2018, about getting a ride and that people had been
`saying 'crazy stuff[.]'" Id. at 13, ,i 75. During the murder investigation, it was determined
`that a "Facebook account for 'Welch John' (welch.john.10) exists." Id. at 14, ,i 81.
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`As a preliminary matter, the government argues that Defendant Welch's motion to
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`suppress the Facebook warrant must be denied because he has not answered the
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`"threshold question of whether [he] even had a reasonable expectation of privacy in the
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`Facebook account[] and what the extent of that expectation was." (Doc. 339 at 62.) A
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`defendant who moves to suppress evidence for failure to satisfy the Fourth Amendment
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`bears the burden of establishing that he or she "had a legitimate expectation of privacy"
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`in the location or property searched. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).
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`Because of the nature ofFacebook, courts have determined that "whether the Fourth
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`Amendment applies to a user's Facebook content 'depends, inter alia, on the user's
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`privacy settings.'" United States v. Westley, 2018 WL 3448161, at *6 (D. Conn. July 17,
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`2018) (quoting United States v. Meregildo, 883 F. Supp. 2d 523,525 (S.D.N.Y. 2012)).
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`A defendant's burden of establishing standing "'is met only by sworn evidence, in
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`the form of an affidavit or testimony, from the defendant or someone with personal
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`knowledge."' United States v. White, 2018 WL 4103490, at *8 (S.D.N.Y. Aug. 28, 2018)
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`(quoting United States v. Montoya-Eschevarria, 892 F. Supp. 104, 106 (S.D.N.Y. 1995));
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`see also United States v. Bedell, 311 Fed. App'x. 461, 463 (2d Cir. 2009) (suppression
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`not appropriate where defendant provided "scant evidence" to support the inference of a
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`reasonable expectation of privacy). "An attorney's declaration" is typically "insufficient"
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`to sustain this burden. White, 2018 WL 4103490, at *8.
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`9
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`Case 2:18-cr-00123-cr Document 604 Filed 11/05/21 Page 10 of 13
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`Defendant Welch has not "provided affidavits or any other facts concerning
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`the privacy settings on [his] Face book account[] or any steps [he] took to keep
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`[his] Facebook content private. And it is not otherwise apparent from the record what, if
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`any, privacy settings applied to [his] account[]." Westley, 2018 WL 3448161, at *6
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`(footnote omitted). To the contrary, his counsel conceded that the privacy settings on
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`Defendant Welch's Facebook account at the time of the Facebook warrant were unknown
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`and remain unknown. Against this backdrop, Defendant Welch has failed to establish that
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`the information sought pursuant to the Facebook warrant was not publicly available. This
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`omission is fatal to Defendant Welch's motion to suppress because he cannot establish
`standing. See id. at * 6, n.4 ("Defendants have not pointed out, however, what, if any,
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`such information [from a Facebook warrant] was seized in this case. Nor have they
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`provided the Court with any statements from which it could determine that they had a
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`reasonable expectation of privacy in that information.").
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`Because Defendant Welch has "not submitted any information regarding steps [he]
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`took to keep [his] Facebook content private, [he] ha[s] not met [his] burden to
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`demonstrate that [he] had a reasonable expectation of privacy in any of the information
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`searched. [His] motion[] fail[s] on this ground alone." Id. at *7 (footnote omitted); see
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`also White, 2018 WL 4103490, at *8 (finding defendant "failed to establish standing as
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`required to bring this motion to suppress because neither he nor a person with personal
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`knowledge has demonstrated by sworn evidence that [defendant] had any property or
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`possessory interest in the Facebook account."). Defendant Welch's motion to suppress
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`must therefore be DENIED.
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`Even if Defendant Welch could establish standing, his probable cause challenge to
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`the Facebook warrant would fail because there was a "substantial basis" to believe that
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`the warrant would yield evidence of the crime of murder. Gates, 462 U.S. at 238. Marisa
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`Levesque told law enforcement that Defendant Welch used her as a "middle man" for
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`conversations that took place over Facebook Messenger and that Defendant Welch
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`messaged her about individuals saying "crazy stuff' around the time of the murder. (Doc.
`287-1 at 13, ,i,i 72, 75) (internal quotation marks omitted). Evidence of these
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`10
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`Case 2:18-cr-00123-cr Document 604 Filed 11/05/21 Page 11 of 13
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`conversations on Defendant Welch's Facebook page may reveal evidence not only of Mr.
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`Pimental's murder, but may also demonstrate the relationships between the various
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`alleged participants in that crime. See Ray, 2021 WL 2134861, at *23 (ruling that search
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`broader than particular events noted in affidavit was permissible where the events
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`supported defendant's engagement in a criminal course of conduct over a longer period).
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`Even where no time frame is alleged in the case of search warrants for social media
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`accounts, courts have found that "while the warrants may have violated the particularity
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`requirement, whether they did is not an open and shut matter; it is a close enough
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`question that the warrants were not 'so facially deficient' that the FBI agents who
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`executed them could not have reasonably believed them to be valid." United States v.
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`Blake, 868 F.3d 960, 975 (11th Cir. 2017).
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`In the context ofFacebook searches, "'courts in this circuit repeatedly have
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`recognized that ... avoiding the intrusiveness of a search while maintaining its efficacy is
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`largely infeasible."' United States v. Liburd, 2018 WL 2709199, at *3 (E.D.N.Y June 5,
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`2018) (quoting United States v. Pugh, 2015 WL 9450598, at *27 (E.D.N.Y. Dec. 21,
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`2015)). Once probable cause is established, permissible searches have included "the
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`entire contents" of a defendant's Facebook account" even if"the account also contained
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`information unrelated to criminal activity." Id.; see also United States v. Elkorany, 2021
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`WL 3668086, at *4 (S.D.N.Y. Aug. 17, 2021) (rejecting challenge to a Facebook search
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`warrant which "did not limit Facebook's production to a certain time frame" in light of
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`defendant's pattern of criminal conduct spanning a number of years); United States v.
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`Galpin, 720 F.3d 436,451 (2d Cir. 2013) (observing that the Second Circuit has "not
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`required specific search protocols or minimization undertakings as basic predicates for
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`upholding digital search warrants").
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`For the foregoing reasons, Defendant Welch's motion to suppress evidence
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`obtained pursuant to the Facebook warrant (Doc. 287) for overbreadth, lack of
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`particularity, and lack of probable cause is DENIED.
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`11
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`Case 2:18-cr-00123-cr Document 604 Filed 11/05/21 Page 12 of 13
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`D.
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`The Good Faith Exception.
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`Even if the court found that the cell phone or Facebook warrants were deficient,
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`suppression would not be warranted where, as here, law enforcement relied upon
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`the warrants in good faith. See Hernandez, 2010 WL 26544, at * 12 (finding that even if
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`the court were to "determine that the search warrants ... w[ ere] constitutionally
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`overbroad or insufficiently particular, [the court] would [nevertheless] ... conclude that
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`the search is protected by the 'good faith' exception") (citation omitted).
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`"[S]uppression is 'our last resort, not our first impulse' in dealing with violations
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`of the Fourth Amendment." United States v. Clark, 638 F.3d 89, 99 (2d Cir. 2011)
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`(quoting Herring v. United States, 555 U.S. 135, 140 (2009)). Accordingly, "the
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`exclusionary rule barring illegally obtained evidence from the courtroom does not apply
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`to evidence seized 'in objectively reasonable reliance on' a warrant issued by a detached
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`and neutral ... judge, even where the warrant is subsequently deemed invalid." United
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`States v. Falso, 544 F.3d 110, 125 (2d Cir. 2008) (quoting United States v. Leon, 468
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`U.S. 897, 922 (1984)).
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`The exclusionary rule deters "deliberate, reckless, or grossly negligent conduct, or
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`in some circumstances recurring or systemic negligence." Herring, 555 U.S. at 144. "To
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`trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion
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`can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price
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`paid by the justice system." Id. The good faith exception to the exclusionary rule does not
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`apply in the following circumstances:
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`(1) where the issuing magistrate has been knowingly misled; (2) where the
`issuing magistrate wholly abandoned his or her judicial role; (3) where the
`application is so lacking in indicia of probable cause as to render reliance
`upon it unreasonable; and (4) where the warrant is so facially deficient that
`reliance upon it is unreasonable.
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`Clark, 638 F.3d at 100 (quoting United States v. Moore, 968 F.2d 216, 222 (2d Cir.
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`1992)).
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`Courts in the Second Circuit have applied the good faith exception in cases
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`involving cell phone and Facebook warrants that authorized searches into broad
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`Case 2:18-cr-00123-cr Document 604 Filed 11/05/21 Page 13 of 13
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`categories of evidence. See, e.g., United States v. Stacy, 802 Fed. App'x. 611, 614 (2d
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`Cir. 2020) (applying good faith exception to cell phone warrant despite the fact it was
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`insufficiently particular in terms of the evidence to be seized); Hernandez, 2010 WL
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`26544, at* 12 (finding that "although the search warrant included fairly broad categories
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`and lacked any express time frame limitation, it is by no means 'so facially deficient' as
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`to render reliance [ on it] unreasonable"); United States v. Shipp, 392 F. Supp. 3d 300, 312
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`(E.D.N.Y. 2019) (applying good faith exception to Facebook warrant despite overbreadth
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`and particularity concerns); Westley, 2018 WL 3448161, at *17 (same). The good faith
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`exception would be applicable here because law enforcement acted in objectively
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`reasonable reliance on the search warrants in seeking evidence of Mr. Pimental's murder
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`in Defendant Welch's cell phone records and Facebook account. Any potential
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`deficiencies in the search warrants do not warrant the "last resort" of
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`suppression. See Herring, 555 U.S. at 140.
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`CONCLUSION
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`For the foregoing reasons, the court DENIES Defendant Welch's motions to
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`suppress. (Docs. 287 & 514.)
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`SO ORDERED.
`'fo.,
`Dated at Burlington, in the District of Vermont, this !f day of November, 2021.
`~
`
`1stina Reiss, District Judge
`United States District Court
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