AK: Overbroad part of cell phone SW was severable from the valid part, and that properly came in at trial

This cell phone search warrant was not particular and without probable cause as to “app data,” but it was as to text messages. “If this unlawful provision was the only provision of the warrant that authorized a search for Facebook Messenger messages, we would agree with Macasaet’s argument. But the search for these messages was also authorized by the provision of the warrants that allowed police to search for ‘text messages.’ Macasaet’s argument that his Facebook Messenger messages should have been suppressed is based in part on his view that the challenged messages were not ‘text messages.’ But in this case, the superior court found that the affidavit established probable cause to search applications containing text messages and that, because Facebook has messaging capabilities, the probable cause extended to such messages.” Defense counsel conceded during the suppression hearing that the warrant’s provisions were severable, and part might be suppressible and some not. MacAsaet v. State, 2025 Alas. App. LEXIS 13 (Feb. 14, 2025). (In addition, the court finds a Miranda violation too, but it’s harmless beyond a reasonable doubt.)

Plaintiff’s complaint about an arrest without probable cause was really just picking around the edges, and it did not undermine that there was, in fact, probable cause for the arrest. “We can assume arguendo—although not decide—that the additional omissions and errors raised in the response to the motion to dismiss should have been considered by the district court. We hold that the affidavit—when the omissions are added and when the mistakes are corrected—still establishes arguable probable cause. All of the mistakes and omissions identified by Kemp—both those alleged in the complaint and those belatedly asserted in Kemp’s response to Pogorzelski’s motion to dismiss—do not undermine the more powerful evidence identified by Pogorzelski that implicated Kemp. We find very persuasive the evidence of the timing of Kemp and the victim’s interactions and Kemp’s negative response upon learning that the victim was a transgender woman. Kemp was the last known person to be with the victim and he was upset to learn that she was transgender.” Kemp v. Pogorzelski, 2025 U.S. App. LEXIS 3411 (11th Cir. Feb. 13, 2025).*