The Fourth Amendment to the United States Constitution provides that “no Warrants shall issue, but upon probable cause, ․ and particularly describing the place to be searched, and the ․ things to be seized” (U.S. Const Amend IV). The particularity requirement “prohibit[s] law enforcement agents from undertaking a general exploratory search of a person's belongings” (People v. Brown, 96 N.Y.2d 80, 84, 725 N.Y.S.2d 601, 749 N.E.2d 170). “Indeed, indiscriminate searches pursuant to general warrants ‘were the immediate evils that motivated the framing and adoption of the Fourth Amendment’ ” (id. at 84, 725 N.Y.S.2d 601, 749 N.E.2d 170, quoting Payton v. New York, 445 U.S. 573, 583, 100 S.Ct. 1371, 63 L.Ed.2d 639). “ ‘[A] search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional’ ” (Groh v. Ramirez, 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068, quoting Massachusetts v. Sheppard, 468 U.S. 981, 988 n 5, 104 S.Ct. 3424, 82 L.Ed.2d 737).
Here, the warrant failed to conform to that requirement. 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 (see United States v. Rosa, 626 F.3d 56, 62 [2d Cir] [concluding that the subject warrant “violated the Fourth Amendment's proscription against general searches” where it “directed officers to seize and search certain electronic devices, but provided them with no guidance as to the type of evidence sought”]; United States v. Riccardi, 405 F.3d 852, 862–863 [10th Cir.] [determining that a warrant to search computer files was unconstitutional where it was not limited to any particular files or any particular crimes]; see generally United States v. Burgess, 576 F.3d 1078, 1091 [10th Cir.] [“If the warrant is read to allow a search of all computer records without description or limitation it would not meet the Fourth Amendment's particularity requirement”] ). As has been observed by federal courts, where the property to be searched is computer files, “the particularity requirement assumes even greater importance” (United States v. Galpin, 720 F.3d 436, 446 [2d Cir.]) since “[t]he potential for privacy violations occasioned by an unbridled exploratory search” of such files is “enormous” (id. at 447).
Thus, the warrant at issue was precisely the kind of general warrant that the Federal Constitution prohibits (see United States v. Galpin, 720 F.3d at 447; United States v. Rosa, 626 F.3d at 62–64; see generally United States v. Burgess, 576 F.3d at 1091). We recognize that, as our dissenting colleague points out, “courts may tolerate some ambiguity in the warrant so long as ‘law enforcement agents have done the best that could reasonably be expected under the circumstances, have acquired all the descriptive facts which a reasonable investigation could be expected to cover, and have insured that all those facts were included in the warrant’ ” (United States v. Galpin, 720 F.3d at 446, quoting United States v. Young, 745 F.2d 733, 759 [2d Cir.]). 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 F.3d at 446 [internal quotation marks omitted]; see United States v. Leary, 846 F.2d 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, 124 S.Ct. 1284). 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] ).
Here, the warrant failed to conform to that requirement. 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 (see United States v. Rosa, 626 F.3d 56, 62 [2d Cir] [concluding that the subject warrant “violated the Fourth Amendment's proscription against general searches” where it “directed officers to seize and search certain electronic devices, but provided them with no guidance as to the type of evidence sought”]; United States v. Riccardi, 405 F.3d 852, 862–863 [10th Cir.] [determining that a warrant to search computer files was unconstitutional where it was not limited to any particular files or any particular crimes]; see generally United States v. Burgess, 576 F.3d 1078, 1091 [10th Cir.] [“If the warrant is read to allow a search of all computer records without description or limitation it would not meet the Fourth Amendment's particularity requirement”] ). As has been observed by federal courts, where the property to be searched is computer files, “the particularity requirement assumes even greater importance” (United States v. Galpin, 720 F.3d 436, 446 [2d Cir.]) since “[t]he potential for privacy violations occasioned by an unbridled exploratory search” of such files is “enormous” (id. at 447).
Thus, the warrant at issue was precisely the kind of general warrant that the Federal Constitution prohibits (see United States v. Galpin, 720 F.3d at 447; United States v. Rosa, 626 F.3d at 62–64; see generally United States v. Burgess, 576 F.3d at 1091). We recognize that, as our dissenting colleague points out, “courts may tolerate some ambiguity in the warrant so long as ‘law enforcement agents have done the best that could reasonably be expected under the circumstances, have acquired all the descriptive facts which a reasonable investigation could be expected to cover, and have insured that all those facts were included in the warrant’ ” (United States v. Galpin, 720 F.3d at 446, quoting United States v. Young, 745 F.2d 733, 759 [2d Cir.]). 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 F.3d at 446 [internal quotation marks omitted]; see United States v. Leary, 846 F.2d 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, 124 S.Ct. 1284). 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] ).