Successfully Moving to Controvert a Search Warrant – Evidence Suppressed and Case Dismissed

As we have discussed in the past often in New York criminal cases suppression of the evidence may be your best (or only defense.  As has been widely reported in the media, all charges were recently dismissed against one of our clients after the Court granted our motion to controvert a search warrant and suppressed all of the evidence recovered during a search of our client’s house.  While in can be difficult to have a motion to controvert a search warrant granted by the Court, recent case law makes it easier to file and win such a motion.  When a motion to controvert a search warrant is granted, the Court is deciding that the search warrant was not valid and therefore the evidence obtained during the execution of the search warrant may not be used in Court.

Article 710 of the New York Criminal Procedure Law sets out the procedure to file a motion to suppress tangible evidence that is obtained  as a result of an “unlawful search and seizure.” The United States Court of Appeals for the Second Circuit, which covers New York State has established that a warrant must at a minimum have three components.  One is that the warrant must identify the specific crime for which law enforcement has established probable cause.  Then the warrant must particularly describe the places that are allowed to be searched and the things that may be seized with their relationship to the crime.

New York’s highest Court, the New York Court of Appeals has further refined New York’s warrant requirement.  (See,  People v. Brown, 96 NY2d 80).  At a minimum the warrant must particularly describe the places to be searched and the things to be seized.  The idea is to ensure that the police have no discretion in either the places to be searched or the things that are permitted to be seized.  Exploratory warrants that give police the discretion to look around for evidence are unlawful.  If either of those elements are lacking the warrant may be invalid and any evidence suppressed.  This is true even though a Judge has signed and authorized the search warrant.

This is particularly important in the modern age when dealing with computers, hard drives, cell phones and other types of digital evidence the nature of which may not be readily apparent to the police officers who are executing the search warrant.  In a recent case in the Appellate Division, First Department in Manhattan the Office of the Attorney General was permitted to execute a search warrant on a real estate office pertaining to an investigation into Offering a False Instrument for Filing and other crimes.  The search warrant permitted the Attorney General Investigators to search for and seize broad categories of evidence including employee lists, corporate documents, employment records, employment contracts, address books, appointment books and financial records.  Pursuant to this warrant the investigators seized 9 computers and several dozen boxes of documents.  The warrant did not name any crime nor did it set forth the link between the evidence sought to be seized and the crime.  The target of the warrant was arrested 17 months after the warrant was executed and convicted.  The Conviction was later overturned after the Appellate Court ruled that the motion to controvert the search warrant should have been granted.

Similarly, in our recent dismissed case, our client was charged with possession of two Mossberg Shockwave other weapons (those charges had been previously dismissed), two stun guns, aggravated harassment, criminal impersonation, falsely reporting an incident, menacing and related crimes after a warrant was signed seeking evidence relating to alleged misuse of the New York City 311 system.

The warrant sought broad categories of computer equipment without limitation and without reference to the crime committed or how the evidence related to the crime being investigated.  During this almost limitless search of the client’s residence several weapons were found.  The Court Court granted our motion to controvert.   Without any evidence left the Staten Island District Attorney’s Office moved to dismiss both the weapons case and the computer crimes cases against our client.


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