NY2: Business records search was not particular except as to time and was a general warrant

The AG’s office obtained a search warrant for defendant’s business for allegations of mortgage fraud. Several computers, hard drives, and many records were seized. After denial of suppression, defendant entered a conditional plea. The search warrant was a “general warrant” for its failure of particularity: “Most notably, other than a date restriction covering a period of approximately five years, the warrant permitted the OAG to search and seize all computers, hard drives, and computer files stored on other devices, without any guidelines, parameters, or constraints on the type of items to be viewed and seized.” People v. Melamed, 2019 NY Slip Op 09295, 2019 N.Y. App. Div. LEXIS 9318 (2d Dept. Dec. 24, 2019):

Here, however, the OAG did not include descriptive facts in the warrant or even a recitation of the suspected crimes. Thus, the OAG failed “to describe the items to be seized with as much particularity as the circumstances reasonably allow[ed]” (United States v Galpin, 720 F3d at 446 [internal quotation marks omitted]; see United States v Leary, 846 F2d at 604-605). While our dissenting colleague focuses on the defendant’s contention that the warrant failed to specify the crimes charged, it is not this failure alone, but that failure combined with the failure to include any other details or guidelines in the warrant that could serve to limit its reach to evidence related to the crimes for which the OAG had probable cause to believe were committed, that renders this particular warrant unconstitutional.

The OAG contends that the affidavit in support of the warrant rendered the warrant sufficiently particularized. However, the United States Supreme Court has held that “[t]he Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents” (Groh v Ramirez, 540 U.S. at 557). That Court explained that the “high function” served by the presence of a search warrant is not served “when some other document, somewhere, says something about the objects of the search, but the contents of that document are neither known to the person whose [premises] is being searched nor available for her [or his] inspection” (id.). Since the affidavit in support of the warrant was not incorporated by reference into the warrant, the affidavit “does not save the warrant from its facial invalidity” (id. [emphasis omitted]).