W.D.N.Y.: Failure to specify the crime under investigation in a Facebook SW wasn’t fatal to search

Failure to specify the crime under investigation in a Facebook warrant wasn’t fatal and did not require exclusion. United States v. Vogelbacher, 2021 U.S. Dist. LEXIS 49359 (W.D.N.Y. Feb. 1, 2021), adopted 2021 U.S. Dist. LEXIS 48228 (W.D.N.Y. Mar. 15, 2021):

[T]he breadth of the warrants issued for defendant’s Facebook and Google accounts was appropriate because they were supported by probable cause to believe the accounts contained evidence of a crime.

. . .

In the case at hand, the account information was returned by Facebook and Google as directed and the lack of a stated offense did not affect the analysis of that evidence. The affidavits and supporting documentation accompanying the warrants made it clear to any officer reviewing the obtained electronic material that the purpose of the search was to obtain evidence of statutory rape and child endangerment. Moreover, the Government represents that the officer or officers involved in the subsequent review of the records produced by Facebook and Google had sufficient knowledge to guide any uncertainty about the suspected crimes. See Purcell, 967 F.3d at 182 (explaining that both logic and the record indicate that the officers who conducted the analysis of defendant’s Facebook data were already involved in the investigation and fully aware of its purpose and parameters such that their analysis was not affected by the warrant’s failure to specify the suspected offense); cf. In re 650 Fifth Ave., 934 F.3d 147, 162-64 (2d Cir. 2019) (declining to apply good faith exception where warrant was facially deficient and “a[n investigative] team without particularized knowledge of the proper scope of the search seized over two hundred boxes of evidence and several computers.”). Finally, the omission of the specific offense defendant is alleged to have committed, does not actually appear to have given rise to a less particularized search or seizure of evidence. See Purcell, 967 F.3d at 182.

In sum, it was reasonable for officers to rely on these warrants. As the Second Circuit concluded in both Purcell and Rosa, the goals of the Fourth Amendment are not met by exclusion of this evidence. For these reasons, the Court recommends that defendant’s motion to suppress evidence be denied.