Facebook, ‘friends’ fair game of search in case of GJ man

KENNETH ROYAL WHEELER: Accused of Internet threats against police officers

The seizure of a Facebook account was justified and reasonable, given the facts known early on in the investigation of a suspect who allegedly posted threats against Grand Junction Police Department officers, a Denver-based federal judge said in a ruling.

U.S. District Judge William Martinez issued his written ruling Wednesday.

An attorney representing Kenneth Royal Wheeler, of Grand Junction, had sought to throw out all information seized by law enforcement from Wheeler’s Facebook account, arguing a search warrant obtained by Immigration and Customs Enforcement agent Gerard Kavanagh was “overbroad.” Wheeler is charged with making interstate threatening communications.

The warrant allowed a search of all contact and personal identifying information associated with the Facebook account, all activity logs, photos uploaded to the account, records of communications sent and received, all “check-ins” and uses of the “like” feature, and all accounts listed as “friends” and those the account was a “fan” of.

“It is hard to imagine that any of our country’s founding fathers would have approved the notion that a single writing by an individual that a government agent deemed threatening would justify a search of a place where he stored all his writings, correspondence and research and justify the government reading and copying every single writing it found there,” Denver attorney Abraham Hutt wrote in a motion to suppress evidence.

“The existence of the quoted posts from (Wheeler’s) Facebook page do not, without a particular statement of probable cause, justify a search of every association he has ever made through a worldwide computer network designed to foster association among individuals and groups.”

Martinez, however, said the defense filing was essentially a bid to “Monday-morning quarterback” law enforcement in the case.

The Facebook post from March 12, 2012, started with, “STARDRAGON celestial override contingency ... ” The posting named three Grand Junction officers.

“... kill them all. Hang em upside down set their face on fire and saw them in half,” Wheeler wrote in the post.

Wheeler also urged anyone who saw the post to “kill everyone” at a local daycare facility, “if my dui charges are not dropped,” according to court filings.

Martinez’s ruling said it was reasonable for an officer to believe early on in the investigation Wheeler may have been conspiring with others.

For that reason, Wheeler’s Facebook “friends” and “like” information was fair game, the judge said.


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I hope the public is following this story closely because it bears directly on government’s traditional efforts to narrow 1st Amendment right to free speech.
It should be obvious to all that the Sentinel is pulling out all the stops of wannabe-clever irresponsible journalism to convict Wheeler in the court of public opinion prior to trial.
Wheeler’s lawyer is faced with a serious dilemma: do we 1) go with a judge who we think will follow the law, or 2) do we go with a jury who has already been prejudiced in favor of guilt due to the obviously unlikeable looks and demeanor of the accused?
It’s easy for the judge, pursuant to the unspoken REAL rule of judicial procedure, “the judge can do whatever he pleases,” to, for now, pretend there was probable cause for a search because, from a generic point of view, it is clearly in the best interests of the public to allow the police to investigate a given situation to determine exactly what is going on. I’ve got no problem with that.
But the bottom line, which cannot be gleaned from the Sentinel’s transparently strategic efforts to convict the accused, is whether or not there was (or is) a specific plan to implement violence.
As I noted in a previous letter on this same story, “It’s always a difficult situation when an apparently unlikeable person is pitted against the 1st Amendment’s guarantee of freedom of speech. When in doubt, it’s wise to check the instruction manual. In this case, it means reading U.S. Supreme Court decisions such as Brandenburg v. Ohio, 395 U.S. 444 (1969)
[http://supreme.justia.com/cases/federal/us/395/444/case.html], Yates v. United States, 354 U.S. 298 (1957) [http://supreme.justia.com/cases/federal/us/354/298/case.html] which make it crystal clear that calling for the violent overthrow of the government AS AN ABSTRACT PRINCIPLE is protected speech. Furthermore, Hess v. Indiana, 414 U.S. 105 (1973) [http://supreme.justia.com/cases/federal/us/414/105/case.html] makes it clear that urging others to commit violent acts ‘at some indefinite future time’ is not actionable speech. The whole idea of the 1st Amendment is to be able to say ‘King George and his soldiers are tyrannical scum who need to be killed!’ without being persecuted for it by the government.”
After my last criticism did the Sentinel decide to write more responsibly? No way, Hosea! They doubled down on their manipulative writing. The public should take notice that, at NO time, has the Sentinel published Wheeler’s entire allegedly illegal post. That would allow the readers to compare it to controlling 1st Amendment law — and we can’t allow that, can we? It might create a REAL presumption of innocence, instead of just the fraudulent pretend one all prospective jurors (I have been one) hear about during the jury selection process.

Lest readers think I admire individuals of Wheeler’s ilk, rest assured that is not the case. To Wheeler, I would say, “There is such a think as karma, and such a thing as being stupid, dude. You acted stupidly and invoked the rule of karma. If you’re going to pull a tiger’s tail, you had better have a plan for dealing with the teeth.”
Having said that, I would refer Sentinel readers to the case of one Walter Edward Bagdasarian, who was accused and convicted of threatening Barack Obama. It’s a safe bet Bagdasarian said worse things about Obama than Wheeler said about three unnamed cops. The Ninth Circuit Court of Appeals overturned that conviction. Their 1st-Amendment-friendly decision can be read (or downloaded) at http://cdn.ca9.uscourts.gov/datastore/opinions/2011/07/19/09-50529.pdf. I would hope all American citizens, especially Sentinel reporter Paul Shockley, would do themselves a favor and read it. Freedom of speech is worth fighting for, even if it happens to coincidentally benefit the manifestly undeserving.
Your constitutional rights — use them or lose them!

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