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United States v. Westley

United States District Court, D. Connecticut

July 17, 2018




         I. Introduction

         On August 3, 2017, following an investigation into several shootings in New Haven, a grand jury returned a multi-count indictment charging six individuals with various offenses, including RICO conspiracy, violent crimes in aid of racketeering (“VCAR”), offenses related to possession, transfer, and use of firearms, and possession with intent to distribute narcotics. (ECF No. 1 (charging violations of 18 U.S.C. 18 U.S.C. §§ 1962(d), 1959(a)(3) & (a)(5), 922 and 924, and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 841(b)(1)(D)).)

         Defendants Dejuan Ward, Clifford Brodie, and Michael Belle have filed motions to suppress evidence obtained from their respective Facebook accounts. (ECF Nos. 96, 104, and 121.) The Court held oral argument on these motions on April 10, 2018. For the reasons discussed below, the motions to suppress are DENIED.

         II. Factual Background

         A. The October 2016 Warrant

         On October 11, 2016, Special Agent Brian Ross of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) applied for and obtained from Magistrate Judge William I. Garfinkel a warrant (“the October 2016 warrant”) to search the contents of several Facebook accounts in connection with the investigation underlying the Indictment in this case.

         The October 2016 warrant authorized a search of, among other accounts, “Account Four, ” bearing the Facebook User ID 100000756536727 and the user name “Go Brazy Doee (Top Opp Cliff), ” allegedly used by Brodie; and “Account Seven, ” bearing the Facebook User ID 100002719106766 and user name “Don'Juan Hb Martinez, ” allegedly used by Ward. (An account allegedly used by Belle was the subject of a later warrant, as discussed below.) The warrant referred to an affidavit by Special Agent Ross, which was attached to the warrant application (“the October 2016 affidavit” or “Oct. 2016 Aff.”).

         Special Agent Ross's affidavit explained that ATF had been investigating what ultimately amounted to 40 shootings that occurred in New Haven throughout 2016. (Oct. 2016 Aff. ¶ 10.) Investigators believed that a number of those shootings were committed by members of a group known as the Goodrich Street Boys, or “GSB, ” and that individuals used Facebook to signify their membership in the group, including by referencing firearms, narcotics, and gang associations. (Id. ¶¶ 7-8, 10.) Special Agent Ross attested that probable cause existed to believe that the target accounts would contain direct evidence of drug trafficking, firearms offenses, and racketeering, and that those accounts would also yield evidence that GSB was an “enterprise” under the racketeering laws, as well as the identities of the members of the enterprise. (Id. ¶ 8.) See 18 U.S.C. § 1961(4) (defining “enterprise” to include any “group of individuals associated in fact although not a legal entity”). His affidavit indicates that some of the information it contains came from his review of publicly available portions of the target Facebook accounts. (Id. ¶ 9(a)-(g).)

         Special Agent Ross described in the affidavit his experience as a law enforcement officer, including his specialized training in firearms identification and the investigation of firearms- related offenses, his participation in investigations of firearms offenses, narcotics trafficking, and violent crimes, and his experience writing, obtaining, and coordinating the execution of search warrants. (Id. ¶ 1.) Special Agent Ross also described his experience investigating gangs and in executing search warrants involving electronic and social media, including Facebook accounts. (Id.) As a case agent investigating GSB, Special Agent Ross attested that he was personally familiar with the circumstances of the investigation underlying this case and the information contained in the affidavit. (Id. ¶ 3.)

         1. Allegations With Respect to Brodie's Account

         The October 2016 affidavit contained the following allegations directly related to Brodie and his Facebook account.

• Law enforcement believed Curtis Ratchford, a member of “Exit 8” and “an associate of FTP, ” or the “Fruit Town Piru street gang, ” a group associated with GSB, shot Damion Phillips, the leader of the rival “Slutwave” group on March 13, 2016, while attending the St. Patrick's Day parade in New Haven. Ratchford's Facebook records obtained earlier through a state search warrant revealed that he and others, including Brodie, using Account Four, had a group Facebook messenger conversation the next day in which they discussed the incident at the parade and a video that Michael Via, Brodie's co-defendant in this case, took during the incident. (Id. ¶ 13.) Brodie does not appear to have sent a message in the group conversation or to have been the subject of conversation, but others sent messages to him. (See Id. ¶¶ 14-17.)
• On March 24, 2016, Ratchford posted a photograph on his Facebook page of him with Milton Westley, a defendant in this case, Brodie, and Robert Cook, another individual whose Facebook account was a target of the October 2016 warrant. (Id. ¶ 21.)
• On July 14, 2016, after Via was arrested for a probation violation, he stated during an interview with law enforcement that he was “the leader of the G$B street gang, ” and “closely associated with Ratchford, Ward, Westley, and Brodie.” (Id. ¶ 18.) Via admitted that there was an ongoing dispute between GSB and Slutwave. (Id. ¶ 18.) Via also admitted that he sells marijuana and that he uses his Facebook account and his cell phone to keep in contact with customers, which he had been doing for several years. (Id. ¶ 19.) Via said that he shared customers with other members of GSB. (Id. ¶ 19.)
• On July 27, 2016, Westley posted a photograph on his Facebook page of him with Cook, Ward, and Brodie. (Id. ¶ 22.)
• The same day, Ward posted a photograph on his Facebook page of him with Cook, Westley, and Brodie, with the caption, “HaPPy P day to my lil Pro, ” followed by “celebratory emojis.” (Id. ¶ 25.) Based on his training and experience, Special Agent Ross alleged that the caption was meant to wish happy birthday to “one of his gang associates, ” but that by replacing the letter “b” with the letter “p, ” Ward was demonstrating his affiliation with the Piru street gang. (Id. ¶ 25.)
• On September 14, 2016, Brodie posted on his Facebook page, “Just got bro letter Curt Doee Free Burt.” (Id. ¶ 24.) Based on his training and experience, Special Agent Ross believed this was a reference to Ratchford, who used the names “Curt Doee” and “Burt, ” and who was incarcerated at the time.
• Brodie posted a video on his Facebook page of him fighting with Dante Phillips, a member of Slutwave, on October 5, 2016. (Id. ¶ 24.)

         2. Allegations with respect to Ward's Account

         In addition to the above allegations involving Ward, Special Agent Ross alleged the following with respect to Ward and his Facebook account:

• On September 15, 2016, the day of a shooting involving alleged Slutwave members Jaison Flowers and Derrick Smith, the latter of whom suffered a gunshot wound, Ward posted messages on his Facebook page that Special Agent Ross interpreted to express that “rival Slutwave gang members were likely crying because Smith was shot, ” and that Slutwave “should go ahead and try to get even.” (Id. ¶ 26.) Ward allegedly wrote, “Them nikkas prolyl over Thea crying n shit.” Flowers allegedly responded to the post, “Never Crying Get Even, ” to which Ward replied, “Facts by all means handle/ Do ya thang baby do yo got dam thing.” (ECF No. 96-1 ¶ 26.)
• On September 24, 2016, Ward posted a message that Special Agent Ross interpreted as “intended to mock the members of WR2/Slutwave by insinuating that they run from trouble rather than stand up and fight.” (Id. ¶ 27.) Ward allegedly wrote, “Vill nikkas is the fastest nikkas in New Haven NBS Usain Bolt ain't got shit on em.” (Id. ¶ 27.) Agent Ross interpreted “Vill nikkas” to be a reference to the rival “WR2/Slutwave” group, which allegedly congregates in the “Newhallville” section of New Haven, and includes the allegedly closely associated groups WR2 and Slutwave. (Id.)
• On October 3, 2016, Ward posted a photo on his Facebook page with a caption that Agent Ross interpreted as expressing Ward's belief that a fellow member of Fruit Town Piru cooperated with law enforcement in order to get released from custody. (Id. ¶ 28.) The photo allegedly pictured an individual, with the face of fellow FTP member Otis Burton superimposed, walking into a police station. The caption read, “How snitches be looking when they have new info.” Later the same day, Ward posted on his Facebook wall, “Kus up there in PC snitching and lying on mfs that was out here just boolin so he could kome home to bitch who doing dicks Otis one sick individual.” (Id. ¶ 28.)

         3. Additional Pertinent Allegations

         The October 2016 Affidavit included other allegations regarding GSB members “closely associated” with Brodie and Ward (Id. ¶ 18) and the group's alleged drug activity:

• On March 28, 2016, Ratchford posted a photo on his Facebook page of bags containing what appeared to be marijuana. (Id. ¶ 21.)
• Via told law enforcement that he was at the St. Patrick's Day parade on the day of the shooting of Damion Phillips, and that Westley sent a group message to Via and others telling him he was in a fight with members with Slutwave. (Id. ¶ 18.) Via, Ratchford, and two other individuals went to meet Westley, where Via saw Westley punch a member of Slutwave and shortly after, heard gunshots. (Id.)
• On October 2, 2016, Westley posted on his Facebook page what Special Agent Ross believed were messages related to selling marijuana. (Id. ¶ 23.) Westley wrote, “Whose around late?” followed by a car emoji, cloud emojies, and the words “Hit me” with a phone emoji.

         B. The August 2017 Warrant

         On August 1, 2017, Special Agent Ross applied for and obtained from Magistrate Judge Holly B. Fitzsimmons a second warrant (“the August 2017 warrant”) seeking updated account information for the accounts searched under the October 2016 warrant, including the accounts allegedly used by Brodie[1] and Ward, and seeking to search several additional Facebook accounts, including “Account Two, ” bearing the Facebook User ID 100000937575958 and user name “Chasingbenji MB, ” allegedly used by Defendant Michael Belle. This warrant referred to a second affidavit provided by Special Agent Ross (“the August 2017 affidavit” or “Aug. 2017 Aff.”)

         The August 2017 affidavit was substantially similar to the October 2016 affidavit but added certain allegations. The affidavit generally alleged that based on information gleaned from the search authorized by the October 2016 warrant, the ATF learned that “members and associates of GSB use Facebook to communicate with each other and with members of rival gangs, ” and that “GSB members and associates . . . use Facebook to threaten rival gang members.” (Aug. 2017 Aff. ¶ 11.) With respect to Belle, the only one of the three moving defendants whose Facebook account was not also a target of the October 2016 warrant, the affidavit stated that Special Agent Ross had reviewed the “publicly available Facebook page” associated with Belle's account. (Id. ¶ 9(b).) Special Agent Ross further alleged that some of the communications between alleged GSB members and members of other groups occurred close in time to shootings law enforcement had linked to the groups using ballistics testing. (Id. ¶ 11.)

         1. Allegations with respect to Ward's Account

         Special Agent Ross alleged in the August 2017 affidavit that Ward's account was still active. (Id. ¶ 50.) Special Agent Ross provided the following additional allegations regarding Ward and his Facebook account:

• Ward and Brandon Shealey, a member of Slutwave, had a conversation via Facebook Messenger that Ross interpreted to be about “an associate of Ward who had been disrespectful of Shealey.” (Id. ¶ 18.) The conversation took place 19 days after a shooting in front of Shealey's house, which law enforcement believed GSB was involved in. (Id.)
• By reviewing Facebook records from an account belonging to Pharoh Jackson, another Slutwave member, law enforcement learned that on September 17, 2015, the day the government alleges in the Indictment that Ward shot Jackson in the leg, Jackson and Ward had a conversation via Facebook Messenger concerning the shooting earlier that day. (Id. ¶ 27.)

         2. Allegations with respect to Brodie's and Belle's Accounts

         Special Agent Ross alleged in the August 2017 affidavit that Brodie's account was still active. (Id. ¶ 9(1).) Special Agent Ross also alleged that Belle was a member of GSB and had a “close relationship” with Brodie and Westley, based on surveillance, interviews of witnesses, and previously obtained Facebook messages between Belle and other alleged GSB members. (Id. ¶ 15.) Special Agent Ross also provided the following allegations with respect to Brodie and Belle. Because the allegations involving either Brodie or Belle frequently involved both individuals, I discuss those allegations together.

• On January 1, 2016, Belle received messages in a Facebook group chat with Cook, Brodie, Via, and Westley, in which Cook sent a message that Special Agent Ross interpreted to mean that Cook was asking Westley if he should bring a gun somewhere. (Id.) Westley wrote, “Head come out in 5min, ” to which Cook replied, “Bring the pole or Na.” (Id. .)
• On January 13, 2016, Belle sent a message to Via that Special Agent Ross interpreted to mean that Belle wanted Via to tell Ward that Belle had a drug customer for Ward. (Id. ¶ 16.) Belle wrote to Via, “Yo I gotta trap fa hot Boi.” (Id. ¶ 16.) Ward allegedly uses the name “Hot Boi.”
• On January 22, 2016, two days after someone shot at Shealey's home, and one day before a second shooting at Shealey's home during which bullets traveled through a window and into Shealey's neighbor's bedroom, Shealey and Brodie had a Facebook conversation in which Brodie asked Shealey if he would Facetime with him. Brodie provided a Facetime account that, based on the email address associated with the account, appeared to be Belle's account, indicating that Brodie and Belle likely were together at the time. (Id. ¶ 20.) After the second shooting at Shealey's home, ATF agents learned that Belle sent a video of the shooting captured by Westley to Sedale Pervis, another alleged member of GSB and defendant in this case. (Id.)
• Brodie recorded on Facebook Live[2] a video depicting the February 6, 2016 shooting of Damien Smith on Munson Street. (Id. ¶ 33.)
• On March 5, 2016, Pervis, West, Brodie, Via, Cooke, and Ratchford participated in a group Facebook conversation that Special Agent Ross interpreted to discuss drug sales. (Id. ¶ 25.) Via wrote, “I'm Talking Bout Scope I Got A Trap For Him, ” to which Pervis replied, “I'm coming lil, ” with a “gas emoji” that Special Agent Ross believed is a symbol for “gang.” Via then responded that he “got a jugg, ” which Special Agent Ross interpreted as a reference to a drug customer. (Id.)
• On April 27, 2017, Brodie recorded a Facebook Live video depicting him and Belle approaching an unmarked federal D.E.A. vehicle conducting surveillance in the area of 1070 Townsend Avenue, Brodie's and Westley's residence. The video showed Belle and Brodie yelling ...

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