Case 3:16-cr-00051-BR

Document 1040

Filed 08/15/16

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Per C. Olson, OSB #933863

HOEVET OLSON HOWES, PC
1000 SW Broadway, Suite 1500
Portland, Oregon 97205
Telephone: (503) 228-0497
Facsimile: (503) 228-7112
Email: per@hoevetlaw.com
Of Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,
Plaintiff,
v.
DAVID LEE FRY,

Case No. 3:16-CR-00051-13-BR

DEFENDANTS MOTION TO
REOPEN MOTION TO SUPPRESS
EVIDENCE (FACEBOOK
ACCOUNTS) (741)

Defendant.
Evidentiary Hearing Requested

Defendant, David Lee Fry, through his attorney, Per Olson, and on behalf of all
defendants, hereby moves to re-open Defendants Motion to Reopen Motion to
Suppress Evidence (Facebook Accounts) and for an evidentiary hearing.
Defendants original motion to suppress Facebook evidence challenged the
governments Facebook search warrant as overbroad in violation of the Fourth
Amendment. As part of his overbreadth challenge, defendant questioned the protocol
set forth in the search warrant that allowed government agents to review all data
provided by Facebook pursuant to the warrant and to separate the responsive from
the non-responsive material. The warrant provided that the responsive material would

Page 1 DEFENDANTS MOTION TO REOPEN MOTION TO

SUPPRESS EVIDENCE (FACEBOOK ACCOUNTS) (741)

HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW
1000 S.W. BROADWAY, #1500
PORTLAND, OREGON 97205
(503) 228-0497

Case 3:16-cr-00051-BR

Document 1040

Filed 08/15/16

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be available to the government to use as evidence in the case. The government was
required to seal the non-responsive material and store it on a secure medium or in a
secure location. According to the warrant, only the responsive material is deemed to
have been seized.
Oral argument on defendants motion was held on July 20. At that hearing, the
government stated that the review for responsive material had been completed, that the
non-responsive material had been sealed as required by the warrant, and that the nonresponsive material had not been provided to the prosecution team. After the hearing,
the Court issued a written opinion and order denying defendants motion to suppress
Facebook evidence, relying mainly on United States v. Flores, 802 F.2d 1028, 1043 (9th
Cir. 2015) (Docket No. 915). The Court rejected defendants challenge to the manner in
which the warrant was executed in part because the government certified [at oral
argument on July 20] the materials that had been deemed nonresponsive to the search
were not provided to the prosecution team and were sealed. (Order, at 12).
On August 5, the government advised the Court by letter that it had inadvertently
provided raw Facebook data (including nonresponsive material) to the defendants in
Volume 39 of the discovery on June 24. (Exhibit A). The Court asked defendants to
provide input as to what action, if any, should be taken in light of the governments
letter. (Exhibit B). Defendant responded by letter, asking for an evidentiary hearing.
(Exhibit C). The Court has directed defendant to file the present motion.
The governments August 5 letter reveals that its statements on July 20 that
nonresponsive material had not been provided to the prosecution team, and that the
material was sealed, were inaccurate. Moreover, the disclosure of nonresponsive
Facebook data in Volume 39 calls into question whether the government has properly

Page 2 DEFENDANTS MOTION TO REOPEN MOTION TO

SUPPRESS EVIDENCE (FACEBOOK ACCOUNTS) (741)

HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW
1000 S.W. BROADWAY, #1500
PORTLAND, OREGON 97205
(503) 228-0497

Case 3:16-cr-00051-BR

Document 1040

Filed 08/15/16

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executed the search warrant according to its terms and in the manner approved by the
Ninth Circuit in the Flores decision.
Therefore, defendant requests an evidentiary hearing in which the government
would be required to call witnesses from the FBI and the U.S. Attorneys office to testify
about the overall process for receiving the data from Facebook, the review for
responsive material, the steps for providing responsive material in discovery, and
whether the nonresponsive material was, in fact, sealed as required by the warrant.
Generally speaking, the purpose of the hearing would be to determine whether the
government has properly executed the warrant pursuant to its terms and pursuant to
governing legal standards. If the government has not properly executed the warrant,
defendants may be entitled to suppression of all data received from Facebook pursuant
to the warrant. See general United States v. Chen, 979 F.2d 714 (9th Cir. 1992)
(flagrant disregard for the terms of a warrant may result in the suppression of all
evidence, including evidence not tainted by the violation).
To conclude, defendant requests an evidentiary hearing on this motion to reopen the suppression motion.
DATED this 15th day of August, 2016.
HOEVET OLSON HOWES, PC
s/ Per C. Olson
Per C. Olson, OSB 933863
Attorney for Defendant David Fry

Page 3 DEFENDANTS MOTION TO REOPEN MOTION TO

SUPPRESS EVIDENCE (FACEBOOK ACCOUNTS) (741)

HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW
1000 S.W. BROADWAY, #1500
PORTLAND, OREGON 97205
(503) 228-0497