                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-3730
                        ___________________________

                             United States of America,

                        lllllllllllllllllllllPlaintiff - Appellee,

                                           v.

                                Meamen Jean Nyah,

                      lllllllllllllllllllllDefendant - Appellant.
                                      ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                         Submitted: November 12, 2018
                             Filed: June 26, 2019
                                ____________

Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
                         ____________

COLLOTON, Circuit Judge.

       Meamen Nyah entered a conditional guilty plea to one count of possession of
a firearm as an unlawful user of a controlled substance. The district court1 denied



      1
       The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
Nyah’s motion to suppress evidence obtained from a search of his Facebook account.
Nyah appeals, and we affirm.

                                           I.

      On July 7, 2016, Des Moines Police Detective Jeffrey Shannon submitted an
affidavit requesting a search and seizure warrant for Facebook, Inc., to disclose the
contents of accounts belonging to Nyah and three other people. He sought the warrant
under 18 U.S.C. § 2703, which governs the required disclosure of customer
communications or records by a provider of electronic communication service or
remote computing service.

       Shannon started by recounting information that was obtained during an
investigation seven months earlier. He averred that on December 3, 2015, he had
received a tip that members of a local gang would be filming a music video while in
possession of firearms at an apartment in Des Moines. The affidavit said that police
officers searched the apartment on December 3, discovered several firearms, and
encountered Nyah among the people present for the filming of the video. The music
video was then posted to Facebook and YouTube on approximately January 7, 2016.
The affidavit stated that Nyah, along with three other people, was “clearly visible in
the video,” and was handling at least one of the firearms recovered during the
December search.

        The affidavit explained that each of the four people identified had “utilized his
Facebook account to post the music video, display photographs carrying firearms,
display photographs of what appear to be marijuana, and/or proclaim his gang
affiliation.” The affidavit also stated that Nyah had been arrested on December 7,
2015, for carrying weapons after a police officer found a loaded gun in the glove
compartment of a car in which Nyah was the front-seat passenger. The officer
detected the odor of marijuana emanating from the vehicle and saw Nyah reach into

                                          -2-
the glove compartment and appear to dig inside frantically. The weapons charge
against Nyah eventually was dropped after the driver admitted that the firearm
belonged to him. Police also found marijuana in a backpack in the trunk of the car.
Finally, the affidavit stated that between December 2015 and May 2016, Shannon and
other law enforcement officers had observed Nyah in photographs posted to his
Facebook profile “that include him posing with firearms and smoking what appears
to be marijuana.”

      A magistrate judge issued a warrant on July 7, 2016, authorizing law
enforcement officers to search for information associated with Nyah’s Facebook
account that was stored at Facebook’s corporate premises, for the period from
November 1, 2015, to July 7, 2016. The warrant commanded the officers to execute
the warrant on or before July 21. On July 8, Shannon delivered the warrant to
Facebook, and the company turned over the requested material on July 22. The
Facebook records seized by the government included photographs and messages that
were evidence of Nyah’s drug use and possession of firearms. A grand jury then
charged Nyah with one count of possession of a firearm as an unlawful user of a
controlled substance, in violation of 18 U.S.C. § 922(g)(3).

      Nyah moved to suppress the evidence obtained from the search of his Facebook
account. He argued that there was insufficient probable cause to support issuance of
the warrant, that the affiant made false statements in the supporting affidavit, and that
the warrant was not executed within the proper time frame. The district court denied
the motion, and Nyah entered a conditional guilty plea that preserved his right to
appeal the denial of the motion.

       When considering the denial of a motion to suppress, we review the district
court’s findings of fact for clear error and its legal conclusions de novo. United States
v. Stevenson, 727 F.3d 826, 829 (8th Cir. 2013). We review for abuse of discretion
a district court’s refusal to grant a hearing under Franks v. Delaware, 438 U.S. 154

                                          -3-
(1978), concerning alleged false statements in an affidavit. United States v. Stropes,
387 F.3d 766, 771 (8th Cir. 2004).

                                          II.

                                          A.

       Nyah first contends that Shannon’s affidavit did not establish probable cause
to support the issuance of the search warrant. Probable cause exists when there is a
“fair probability that contraband or evidence of a crime will be found in a particular
place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). We review the matter to
determine whether the issuing magistrate judge had a substantial basis for concluding
that probable cause existed. Id. at 238-39.

       We conclude that the affidavit established probable cause that Nyah’s Facebook
account contained evidence of Nyah possessing firearms as an unlawful drug user.
Shannon reported that he and other officers had observed photographs posted to
Nyah’s Facebook profile “that include him posing with firearms and smoking what
appears to be marijuana.” Nyah responds that the affidavit was devoid of evidence
that the photographs show him posing with real firearms and smoking real marijuana.
But there was an ample basis for the magistrate judge to infer a fair probability that
Nyah possessed real guns and drugs. Shannon, a trained drug investigator with many
years of experience investigating violent crime, reported that the items appeared
authentic in the Facebook photographs. He also averred that Nyah possessed an
apparently genuine firearm in the music video; that conclusion was corroborated by
a seizure of real firearms from the site where the music video was filmed on the date
of the filming. The affidavit also contained evidence that Nyah was found in a car
emitting an odor of marijuana, with real marijuana in the trunk, during the traffic stop
on December 7. There was thus a substantial basis to support the issuing judge’s
determination of probable cause.

                                          -4-
                                           B.

       Nyah next argues that the warrant was invalid because it contained false
statements that were necessary to establish probable cause. A defendant is entitled to
a hearing on that question if he makes “a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause.” Franks, 438 U.S. at 155-56. We
conclude that Nyah did not make the requisite showing.

       Nyah alleges that the affidavit contained several false statements. First, Nyah
protests that he is not a gang member, but the affidavit said only that Nyah was
“connected to” a gang; that statement was supported by the affidavit’s uncontested
description of Nyah creating a music video with at least one gang member. Second,
Nyah argues that the affidavit falsely stated that he used his Facebook account to post
the music video and to proclaim his gang affiliation. The relevant part of the affidavit,
however, used the imprecise conjunction “and/or” when describing the evidence:
“each of the individuals identified in this Affidavit have utilized his Facebook account
to post the music video, display photographs carrying firearms, display photographs
of what appear to be marijuana, and/or proclaim his gang affiliation.” By employing
the ambiguous “and/or” conjunction in that list, the affidavit fell short of claiming that
Nyah posted the video or proclaimed gang affiliation; the affiant claimed only that
Nyah did at least one of the actions in the list.

       Nyah also complains that the affidavit falsely said that officers encountered him
in the apartment during the search on December 3. But even if the statement was
wrong, it was immaterial. Nyah does not dispute that the affidavit accurately
identified him as a participant holding a firearm in the video produced at the
apartment on December 3. So even if he was not present in the apartment at the
moment of the search, the affidavit still set forth ample probable cause to search his

                                           -5-
Facebook account. The district court did not abuse its discretion by denying the
Franks claim without a hearing.

                                           C.

       Nyah’s final argument is that the evidence from Facebook should be excluded
because law enforcement officers failed to execute the warrant within the fourteen-day
limit set forth in the warrant. The warrant commanded the officers to execute the
warrant on or before July 21, 2016, but Facebook did not produce material from
Nyah’s account until July 22. As a result, Nyah contends, there was a violation of
Federal Rule of Criminal Procedure 41, which requires that a warrant command
officers to “execute the warrant within a specified time no longer than 14 days.” Fed.
R. Crim. P. 41(e)(2)(A)(i) (2011). And he argues that the search was “warrantless,”
because no search warrant authorized a search at Facebook after July 21.

       Whether there was a violation of Rule 41 turns on the meaning of the term
“execute.” The district court thought the warrant was executed when the officers
delivered it to Facebook, because the warrant was dependent on cooperation by the
recipient: “The police have no ability to enter the premises of a company like
Facebook and manipulate its computers to its satisfaction.” R. Doc. 128, at 9. Nyah
counters that the warrant was not executed until the officers seized the evidence from
Facebook.

      Despite the practical concerns raised by the district court, the text of Rule 41
suggests that a warrant is not fully executed until officers have seized the property that
they are authorized to take. The subsection entitled “Executing and Returning the
Warrant” first addresses a “Warrant to Search for and Seize a Person or Property.”
Fed. R. Crim. P. 41(f)(1) (2011) (emphasis added). The subsidiary provision on
“Inventory” states that “[a]n officer present during the execution of the warrant must
prepare and verify an inventory of any property seized.” Id. R. 41(f)(1)(B) (emphases

                                           -6-
added). Similarly, “[t]he officer executing the warrant must give a copy of the
warrant and a receipt for the property taken” to the appropriate person. Id. R.
41(f)(1)(C) (emphases added). And “[t]he officer executing the warrant must
promptly return it—together with a copy of the inventory—to the magistrate judge.”
Id. R. 41(f)(1)(D) (emphases added). A special rule governing warrants seeking
electronically stored information states that the time for “executing” such a warrant
“refers to the seizure or on-site copying of the media or information.” Id. R.
41(e)(2)(B) (emphasis added). These provisions suggest that the authorized seizure
of property under the warrant constitutes part of the execution of the warrant.2

       Although law enforcement officers may not be able to control when the
recipient of a warrant like this one produces the items sought under the warrant, the
government likely has a means to overcome any timing problem that arises from delay
by the third party. If the recipient does not produce property for seizure within the
time prescribed in the warrant, then officers may simply obtain a fresh warrant with
a renewed period of fourteen days within which to execute the warrant.

       At least two courts, however, have ruled in cursory fashion that a warrant
directed to a service provider is executed when an officer serves it on the provider.
See United States v. Farrad, 895 F.3d 859, 890 & n.23 (6th Cir. 2018); see also
United States v. Allen, No. 16-10141-01-EFM, 2018 WL 1726349, at *8 (D. Kan.


      2
       The provision requiring that a warrant must command an officer to “execute”
the warrant within a defined time period was adopted in 2002. The 2002 amendment
was part of a restyling project that was not designed to change any substance that is
relevant here. See Fed. R. Crim. P. 41 advisory committee’s note to 2002
amendments. The “receipt” provisions of the former and amended rules appear to
equate “[t]he officer taking property under the warrant,” id. R. 41(d) (2001) (emphasis
added), with “[t]he officer executing the warrant,” id. R. 41(f)(3) (2002), R.
41(f)(1)(C) (2011) (emphasis added). This usage further suggests that “execution” of
a warrant includes the taking of the property in question.


                                         -7-
Apr. 10, 2018). The government also points to United States v. Welch, 811 F.3d 275,
280 (8th Cir. 2016), where this court said that a Network Investigative Technique
warrant was executed on the date when law enforcement installed software on a
private computer server. In Welch, however, the court did not appear to address
whether “execution” of the warrant continued through a period after installation
during which the software collected information for investigators, as neither party
raised the question, and the opinion does not mention it. See id. at 279-80; Brief of
Appellant at 7-8, 14, Welch, 811 F.3d 275 (No. 15-1993); Brief of Appellee at 14, 25,
Welch, 811 F.3d 275 (No. 15-1993).

       We need not resolve definitively whether the warrant for information from
Nyah’s Facebook account was executed within fourteen days after the warrant was
issued, because any violation of Rule 41 in this case would not call for suppressing
the evidence obtained from Facebook.3 Except when there is a constitutional
infirmity, noncompliance with Rule 41 justifies exclusion of evidence “only if a
defendant is prejudiced or if reckless disregard of proper procedure is evident.”
United States v. Spencer, 439 F.3d 905, 913 (8th Cir. 2006). Neither criterion is
satisfied here.



      3
        The principal briefs in this case include only one paragraph each concerning
when the warrant served on Facebook was “executed.” This is thus an appropriate
case in which to raise questions about the government’s position without
unnecessarily creating a conflict in the circuits on sparse briefing. As noted, the
government can avoid the issue in future cases by seeking a fresh warrant; a future
panel may benefit from more fulsome briefing and argument if the issue arises again;
and rulemakers over time might elect to amend or clarify Rule 41 in light of judicial
decisions. See generally Pierre N. Leval, Judging Under the Constitution: Dicta
About Dicta, 81 N.Y.U. L. Rev. 1249, 1253 (2006) (noting that “dicta often serve
extremely valuable purposes”). In our judgment, it is more constructive to prompt
fuller consideration of the “execution” issue in the future than to withhold all
discussion of the point until a litigant is actually prejudiced by alleged untimeliness.


                                          -8-
       Even if the warrant was “executed” one day late when an officer seized the
material from Facebook on July 22, probable cause continued to exist. The warrant
targeted pre-existing account information, so the affiant’s probable cause did not
become stale. The search would have occurred on July 22 even if a new warrant were
required. See United States v. Turner, 781 F.3d 374, 387 (8th Cir. 2015). There also
was no reckless disregard of proper procedure, as the officer delivered the warrant to
Facebook the day after the warrant was issued. No clearly established law dictated
that the officer must secure a new warrant to seize the property if it was produced after
July 21. Thus, the executing officer was not reckless, and Nyah was not prejudiced,
so any violation of Rule 41 does not justify exclusion of evidence here. See United
States v. Beckmann, 786 F.3d 672, 680-81 (8th Cir. 2015).

       Nyah contends that if there was a one-day violation of the time limit on
execution of a warrant under Rule 41, then the search and seizure was “warrantless,”
and the Fourth Amendment requires suppression of the evidence. Not every violation
of Rule 41, however, rises to the level of a constitutional violation. United States v.
Freeman, 897 F.2d 346, 348-49 (8th Cir. 1990). The Fourth Amendment does not
require that search and seizure warrants include expiration dates; the fourteen-day
time limit at issue here is a creature of federal rule. United States v. Burgess, 576 F.3d
1078, 1097 (10th Cir. 2009). The officer in this case obtained a valid search warrant
from a neutral magistrate based on probable cause and delivered it to Facebook in a
timely manner. The seizure of evidence was authorized by a magistrate judge at least
until the fourteenth day after the warrant was issued. Even if there was a minor
violation of Rule 41 in seizing the evidence on the fifteenth day, the search and
seizure was “reasonable” under traditional Fourth Amendment standards, and any
violation of the rule does not rise to the level of a constitutional infirmity.

                                    *       *       *

      The judgment of the district court is affirmed.



                                           -9-
STRAS, Circuit Judge, concurring in part and concurring in the judgment.

       The court says more than it needs to about an issue that it never decides:
whether a warrant is “executed” when it is delivered to someone in possession of
digital data or, instead, when the data is finally turned over to the authorities.
Although the court claims not to “definitively” resolve this difficult question, it
devotes over two pages to it and all but supplies us with the answer.4 Because I agree
that the officers were not reckless and that Nyah suffered no prejudice, see United
States v. Spencer, 439 F.3d 905, 913 (8th Cir. 2006), my analysis would end there and
it would leave a future panel with a chance to decide the question on a clean slate.
                        ______________________________




      1
          The court’s observation in footnote 3 that there is inadequate briefing on the
warrant-execution question highlights one of the reasons why we should not address
it at all, much less suggest an answer to it. Another being, of course, that we can fully
resolve this case without doing so.


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