Motion to Suppress Evidence From Facebook

Author’s Note: Thanks to attorney Evan Weitz, of the Wisconsin State Public Defender’s Office, Milwaukee trial office. who drafted this motion and gave permission for its use in this book.

STATE OF WISCONSIN CIRCUIT COURT MILWAUKEE COUNTY

BRANCH

STATE OF WISCONSIN,

Plaintiff,

vs. Case No.: _____________

MR. CLIENT,

Defendant.

DEFENDANT’S MOTION TO SUPPRESS EVIDENCE

FROM FACEBOOK

NOW COMES Mr. Client, by and through his attorney, and respectfully moves the Court, pursuant to Wis. Stat. 971.31(2), for an Order suppressing any and all evidence searched or seized by law enforcement, or anyone else acting under color of law, from Facebook and relating to the Facebook account of user “Mr. Client.”

As grounds thereto, the defendant asserts that the Facebook information searched and seized was done so pursuant to a warrant that was overbroad and lacked probable cause in violation of Mr. Client’s constitutional rights, as guaranteed by Article I, sections 8 and 11 of the Wisconsin Constitution, and the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution.

Statement of Facts

1. On (date), the State filed a Criminal Complaint charging Mr. Client with one count of First Degree Intentional Homicide and one count of Possession of a Firearm by a Felon. The shooting allegedly occurred at approximately (time and date).

2. In furtherance of that investigation, on (date) the State requested a Warrant to search for communications or other information held by Facebook. (Search Warrant Request). The requested information is:

   “Any and all records concerning the identity of the user with the user ID associated with the url https://www.facebook.com/Mr.Client (user contact information) including birth date, email address, physical address, telephone number; user profile information ; any and all photos uploaded; and any and all IP logs for user from (date and time) to (date and time) (CST) and any or all communications with Facebook users from (date and time) to (date and time)”

3. The request for a Warrant was accompanied by a three-page Affidavit signed, and sworn to, by Investigator (name). (Search Warrant Affidavit). In that affidavit, Investigator Name makes a number of statements specifically relevant to this motion. In paragraph 7, Investigator Name says that he spoke with a Ms. Witness, who stated that “she saw an Asian male wears [sic] a light colored vest with dark sleeves which she recognized as ‘Mr. Client’ from her Facebook friends.” Id. In paragraph 8, Investigator Name states that after “speaking with Ms. Witness” he watched the surveillance video and saw an Asian leaving the scene who “was wearing a light colored vest with dark sleeves and a hat.” Id. In paragraph 9, Investigator Name says that he “began to monitor ‘Mr. Client’ on Facebook, public access.” Id. In paragraph 10, Investigator Name states that “[i]t was discovered through other investigative techniques that ‘Mr. Client’ was identified as Mr. L. Client D.O.B. ___,” and that “Client was later found to be the individual that shot the victim in the head.” Id.

4. On (date), the Honorable ______ issued an Order finding probable cause based on the affidavit of Investigator Name. The requested warrant was subsequently issued.

5. During the course of the investigation, Investigator Name also wrote a Supplemental Report under Milwaukee Police Report #_________, page __. (Discovery Page ____). In that report Investigator Name says that he made contact with Ms. Witness and that she “mentioned she may know one of the male individuals who was involved in the incident.” Id. Investigator Name says that Ms. Witness “said she recognized one of the males to be Mr. Client, which is a Facebook friend of hers.” Id. Investigator Name says that Ms. Witness gave him “permission to use her social media outlets to try to identify more of the individuals involved.” Id.

6. The Discovery provided by the State includes a printed copy of the Mr. Client Facebook page from (date). (Discovery Page ____).

7. Ultimately Facebook...