CA6: Facebook messenger SW was not overbroad because limited in time

Defendant’s guilty plea waived any suppression motion because there was no ruling to appeal. On the merits, the search warrant here was not overbroad. The Facebook search warrant sought only five months of information related to sex with minors. It was not constitutionally overbroad. United States v. Lowry, 2017 U.S. App. LEXIS 21346 (6th Cir. Oct. 24, 2017) (no link yet):

There is no dispute that the affidavit in support of the search warrant contains a sufficient basis to support the search of Facebook account ID# 100008652697108—the Facebook account that Lowry used for the purpose of soliciting two minors for sex. And even if the warrant were deemed to be overbroad—which it is not for reasons described below—”infirmity due to overbreadth does not doom the entire warrant; rather, it ‘requires the suppression of evidence seized pursuant to that part of the warrant …, but does not require the suppression of anything described in the valid portions of the warrant[.]'” United States v. Greene, 250 F.3d 471, 477 (6th Cir. 2001) (quoting United States v. Brown, 984 F.2d 1074, 1077 (6th Cir. 1993)). Thus, the district court correctly denied Lowry’s motion at least as it relates to the two minors specifically described in the affidavit.

Courts “have employed the Fourth Amendment’s bedrock reasonableness principle on a case-by-case basis.” United States v. Richards, 659 F.3d 527, 538 (6th Cir. 2011). The focus of an inquiry into the alleged overbreadth of a search warrant is to determine “whether the category as specified is too broad in the sense that it includes items that should not be seized.” Id. at 537. The affidavit in this case requested authorization to search Lowry’s Facebook account for his identifying information, Photoprints, Neoprints, and “all other communications and messages made or received by the user, including all private messages” sent to other users. The inclusion of this request does not render the warrant overbroad. The category of information to be seized in this clause is limited to all other messages sent to other Facebook users—a single feature among many—and the same feature Lowry used to contact two minors for the purpose of soliciting sex. Because the affidavit narrowly defined the category of things to be seized and because the request was limited in scope to the timeframe of October 2014 to February 2015, the warrant was not impermissibly overbroad.

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