United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
PHILIP P. SIMON, JUDGE
This matter is before the Court on three motions from the Defendant: a Motion to Suppress Evidence [DE 55], a Motion to Dismiss the Multiplicitous Count of the Superseding Indictment [DE 67], and a Motion for a Franks hearing [DE 71]. For the reasons stated below, the Motion to Suppress and Motion for a Franks hearing [DE 55, 71] are DENIED, while the Motion to Dismiss the Multiplicitous Count [DE 67] is GRANTED.
On the evening of June 19, 2014, Samuel Bradbury posted a message on his Facebook wall in which he wrote about a plot he was involved in to kill public officials and destroy government buildings in the Tippecanoe County area. According to Bradbury’s post, the plotters were going to carry out their plan using guns and explosives that he had procured. Although Bradbury tempered his post with a statement that he was just exercising his free speech rights, it must have nonetheless alarmed someone because a friend took screenshots of the post, and those screenshots eventually found their way to the local police. In response, a Lafayette Police officer sent out an email to all law enforcement in Tippecanoe County on the morning of June 21, 2014, advising them of Bradbury’s post.
The email kicked off an investigation that, by the end of the day, had resulted in the issuance of three search warrants. The first, which I’ll refer to as the Residential Warrant, authorized the search of two residences associated with Bradbury. [DE 55-1.] In order to obtain the warrant, Detective Eager of the West Lafayette Police Department prepared a warrant affidavit with the help of Tippecanoe County Chief Deputy Prosecutor Kristen McVey. [DE 62-1 at 5.] In the affidavit, Eager stated that the police were involved in an “ongoing death threats investigation, ” provided a detailed paraphrase of Bradbury’s Facebook post, and summarized the reasons that law enforcement thought that Bradbury’s threats were credible. [DE 45-1 at 1.] Eager’s Affidavit accurately described the Facebook post as specifically mentioning “thermite and explosives” and the intent to “kill two pigs” as well as a prediction that the “Tippicanoe County Courthouse . . . will be blown to pieces within the month . . .” [Id.] Detective Eager’s affidavit in support of the Residential Warrant explained why police thought evidence would be found at the two residences and requested a warrant to search the addresses for “cell phones, computers, tablets or any other device capable of internet connection, thermite or any other explosive or bomb-making materials, firearms and ammunition.” [DE 45-1 at 2.]
Detective Eager took this affidavit to Tippecanoe County Superior Court Judge Michael Morrissey, who promptly swore out a warrant authorizing the search of the two residences. [DE 62-1 at 5.] As requested, Judge Morrissey authorized officers to search and seize “CELL PHONES, COMPUTERS, TABLETS OR ANY OTHER ITEM CAPABLE OF INTERNET CONNECTION, THERMITE OR OTHER EXPLOSIVE MATERIALS, BOMB-MAKING COMPONENTS, FIREARMS AND AMMUNITION” [DE 55-1 at 1.] The warrant did not reference the death threat investigation or make any other reference to crimes Bradbury was suspected of having committed.
One of the residences searched by West Lafayette Police was in Pine Village, Indiana. This turned out to be Bradbury’s parents’ house. [DE 62-1 at 9.] At the Pine Village residence, officers found Bradbury’s personal computer. [Id. at 14.] Before seizing it, West Lafayette Police Officer Sean Leshney conducted a cursory search of the computer. Essentially, Lenshney woke the computer up and noted what websites were open in Bradbury’s browser. [Id. at 14-15.] He also clicked over to an open Notepad document and discovered a draft of the threatening Facebook message. [Id.] After that, Leshney had the computer taken into police custody. The police later secured a federal warrant in order to conduct a thorough forensic search of the computer. [DE 62-2.]
While conducting the search at the Pine Village residence, West Lafayette Police Officer Wiete noticed some papers in plain view that referenced suicide. [DE 62-1 at 18.] The Residential Warrant did not authorize the officers to seize papers - only electronic equipment - so Officer Leshney told Detective Eager about the discovery, and Eager worked with Prosecutor McVey to prepare another warrant application. [DE 62-1 at 6.] Eager’s affidavit for the second warrant - I’ll call this the “Papers Warrant” - stated that Officers Wiete and Leshney observed in plain view “handwritten papers that at a glance mentioned words suggestive of suicide or violence” while executing the Residential Warrant. [DE 69-3.] Judge Morrissey then issued a warrant authorizing the search of the Pine Village residence for “Documents, writings, journals or other paperwork that detail any acts of violence toward any person, or plans of any acts of violence against any person or place.” [DE 55-2.] Armed with the Papers Warrant, the officer’s seized some papers and notebooks from the house. [DE 62-1 at 19.]
Meanwhile, Officer Leshney worked with the local prosecutor to prepare a warrant for Bradbury’s Facebook records. A complete copy of the warrant affidavit is not in the record, but I do have the second page. On that page, Leshney appears to continue a paraphrase of Bradbury’s post in language that is identical to the first warrant affidavit. [DE 69-2 at 2.] The affiant then states that he has located the Facebook account for a “Sam Bradbury” and requests that a warrant be issued to obtain records for the Facebook account for the time period between May 1, 2014 and June 21, 2014. [Id.]
Tippecanoe County Superior Court Judge Thomas Busch issued a warrant authorizing a search of Facebook, Inc. in Menlo Park, California for Bradbury’s records. [DE 55-3.] The warrant authorized the search and seizure of essentially all records associated with Bradbury’s account for the relevant time period. [Id.] The warrant did not limit the search to records related to the threat investigation, but did contain a reference stating “WLPD 2014-2243 (Threats toward Law Enforcement / Terroristic Threats).” Id. Leshney uploaded the warrant to the Facebook Law Enforcement Records portal and, eventually, received the requested records. [DE 69-1 at 12, 16.]
The Government originally charged Bradbury with one count of willfully making a threat to use fire or explosive materials in violation of 18 U.S.C. § 844(e). [DE 14.] On May 14, 2015, the government filed a Superseding Indictment, which added a new count. [DE 63.] As it stands, Count One of the superseding indictment alleges Bradbury willfully made a threat concerning an attempt to kill and injure law enforcement officers and destroy the Tippecanoe County courthouse by means of explosive and fire in violation of 844(e). Count Two alleges Bradbury maliciously conveyed false information regarding an attempt to kill law enforcement officers and destroy the courthouse by use of explosive and fire also in violation of 844(e).
Bradbury has three pending motions before the Court. The first is a motion to suppress the Residential and Facebook warrants on the grounds that they lack particularity. [DE 55.] I held an oral argument on the motion on May 19, 2015. [DE 72.] Bradbury also seeks a Franks hearing regarding the Papers Warrant, arguing that the officers misled Judge Busch regarding the content of Bradbury’s papers. [DE 71.] And, finally, Bradbury has moved to dismiss Count Two of the superseding indictment on the ...