Officer’s Belief That Facebook Post Bragged About Firearm Offense Was Sufficient to Obtain Search Warrant for Suspect’s Phone
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
A suspect’s almost year-old Facebook photo of a firearm was sufficient to establish probable cause to obtain a warrant to search the suspect’s phone for evidence of a firearms offense, the Eighth Circuit recently held.
In April 2022, officers from Iowa’s Scott County Sheriff’s Department stopped a vehicle for an expired registration. Smelling alcohol inside the car and observing an open alcohol container, the officers searched the car and found a gun under the seat in which convicted felon Ki-Jana Kolajuan Ivey was sitting.
Because Ivey possessed a cell phone, an officer searched for and located a Facebook account in Ivey’s name that posted a photo of a firearm eleven months prior. The officer signed an affidavit attesting to that Facebook evidence and obtained a magistrate judge issued a warrant to search Ivey’s phone. Officers executing that warrant found a photograph and a video of Ivey in possession of a different pistol in each.
A grand jury in the Southern District of Iowa charged Ivey with two counts of unlawful possession of a firearm as a felon. Count I was based on the image and video found on his cell phone. Count II was based on the firearm seized during the traffic stop. The district court denied Ivey’s motion to suppress the cell phone evidence. Ivey then entered a conditional plea to Count I and the government dismissed Count II. As part of the conditional plea, Ivey reserved his right to appeal the denial of his motion to suppress.
Ivey argued to the U.S. Court of Appeals for the Eighth Circuit that the trial court should have excluded the evidence seized from his cell phone because the affidavit did not establish probable cause for the search. The Eighth Circuit disagreed.
The appellate court held the “totality of circumstances” showed a fair probability that Ivey’s phone would contain evidence of a crime. The court specifically cited the facts that officers found the phone in Ivey’s possession while he was in a vehicle with a gun under his seat, and the affiant officer’s explanation that—in his training and experience—offenders often use social media to talk about their crimes and post images of their activities. The court determined the Facebook evidence displaying a photograph of a firearm buttressed the officer’s affidavit.
Taking the evidence together in totality, the Eighth Circuit held there was a fair probability that evidence connecting Ivey to a firearms offense would be present in his phone. The court thus affirmed the trial court’s denial of Ivey’s motion to dismiss.
Ivey is now serving 84 months’ imprisonment for the Count I offense of unlawful possession of a firearm as a felon based on the image and video found on his cell phone.
You can read the Eighth Circuit’s full opinion in United States v. Ivey here: https://ecf.ca8.uscourts.gov/opndir/24/01/231706P.pdf.
For over forty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.
