CA6: Potential overbreadth issue is severed from SW and it’s still sufficient

The search warrant could have been way more clear that it was seeking child pornography. It did say that it was looking for evidence of coercion and enticement of a minor and transfer of obscene materials. Taken as a whole, however, the court finds the warrant sufficient and severable so it is not a general warrant. United States v. Walling, 2018 U.S. App. LEXIS 24521 (6th Cir. Aug. 29, 2018):

A determination that the warrant included some information that did not support probable cause “does not doom the entire warrant.” United States v. Greene, 250 F.3d 471, 477 (6th Cir. 2001). Instead, the Court must sever the offending portions of the warrant, “suppress any evidence collected under it, and admit the evidence collected under the valid portions that remain.” United States v. Castro, 881 F.3d 961, 965 (6th Cir. 2018) (citing Greene, 250 F.3d at 477).

The evidence used to link Walling to the victim in this case was Walling’s statements to officers during the course of the search and information that was found on his cell phone. Removing all portions of the affidavit that relate to child pornography would still have provided probable cause for a search of Walling’s cell phone for evidence of coercion and enticement of a minor and transfer of obscene materials. (R. 21-1, Page ID# 118) (“This investigation has revealed that there is likely a computer device or devices with an internet connection … that have been used to transfer sexually explicit material to and solicit sex from a minor under the age of 16 years.”); (id. at 156-59) (including cellular telephones in the list of items to be searched and seized for evidence of coercion and enticement of a minor and transfer of obscene material to minors). This more limited version of the warrant would also have resulted in the officers being at Walling’s home to obtain his incriminating statements. Therefore, the evidence obtained from the search was collected under a valid portion of the warrant and is severable.

The Tenth Circuit’s severability test was offered by the defense and rejected as necessary to reach at this time.