{"id":60173,"date":"2025-02-15T18:02:54","date_gmt":"2025-02-15T23:02:54","guid":{"rendered":"https:\/\/fourthamendment.com\/?p=60173"},"modified":"2025-02-15T18:02:54","modified_gmt":"2025-02-15T23:02:54","slug":"ak-overbroad-part-of-cell-phone-sw-was-severable-from-the-valid-part-and-that-properly-came-in-at-trial","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=60173","title":{"rendered":"AK: Overbroad part of cell phone SW was severable from the valid part, and that properly came in at trial"},"content":{"rendered":"\n

This cell phone search warrant was not particular and without probable cause as to \u201capp data,\u201d but it was as to text messages. \u201cIf 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 \u2018text messages.\u2019 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 \u2018text messages.\u2019 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.\u201d Defense counsel conceded during the suppression hearing that the warrant\u2019s provisions were severable, and part might be suppressible and some not. MacAsaet v. State<\/a>, 2025 Alas. App. LEXIS 13 (Feb. 14, 2025). (In addition, the court finds a Miranda violation too, but it\u2019s harmless beyond a reasonable doubt.)<\/p>\n\n\n\n

Plaintiff\u2019s 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. \u201cWe can assume arguendo\u2014although not decide\u2014that 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\u2014when the omissions are added and when the mistakes are corrected\u2014still establishes arguable probable cause. All of the mistakes and omissions identified by Kemp\u2014both those alleged in the complaint and those belatedly asserted in Kemp’s response to Pogorzelski’s motion to dismiss\u2014do 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.\u201d Kemp v. Pogorzelski, 2025 U.S. App. LEXIS 3411 (11th Cir. Feb. 13, 2025).*<\/p>\n","protected":false},"excerpt":{"rendered":"

This cell phone search warrant was not particular and without probable cause as to \u201capp data,\u201d but it was as to text messages. \u201cIf this unlawful provision was the only provision of the warrant that authorized a search for Facebook … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[50,6,7,20],"tags":[],"class_list":["post-60173","post","type-post","status-publish","format-standard","hentry","category-arrest-or-entry-on-arrest","category-motion-to-suppress","category-overbreadth","category-probable-cause"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/60173","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=60173"}],"version-history":[{"count":1,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/60173\/revisions"}],"predecessor-version":[{"id":60174,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/60173\/revisions\/60174"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=60173"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=60173"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=60173"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}