The Fourth Amendment's warrant clause provides that “no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV (emphasis supplied). In brief, it was enacted by our founders over 200 years ago to protect us from unreasonable searches and seizures by the government. Today, it remains a significant basis for one of the most frequent challenges made by the defense, that is, to contest the use at trial by the government of evidence seized via a search warrant. At the heart of the challenge is the allegation that the warrant failed to satisfy the Fourth Amendment's “particularity” requirement.

The defense bar, buoyed with its own interpretations of recent case law, is asserting with new vigor this age old argument of particularity deficiency. Further, the sheer breadth of potential data, and therefore, potential evidence of criminality, that may exist on a target's digital platform, such as his or her mobile phone, tablet or computer, to name a few, many times causes the defense to test the particularity of the search warrant. This article addresses the particularity requirement as it relates to digital evidence seized by search warrant, reviews some of the recent cases, and highlights possible trends.

Reasonable Particularity and Discretion of Officers

An attack on the legality of a search warrant based upon a defect in its particularity focuses on the warrant's description of the place to be searched and/or the things to be seized. The particularity requirement has three components: first, a warrant must identify the specific offense for which the police have established probable cause; second, a warrant must describe the place to be searched; third, the warrant must specify the items to be seized by their relation to designated crimes.

Particularity has as its goal that the search will be carefully tailored to its purposes and will not take on the character of a wide-ranging general exploratory search or “rummaging” that the Fourth Amendment prohibits. See, e.g., Maryland v. Garrison, 480 U.S. 79, 84 (1987); Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). For as U.S. Supreme Court Chief Justice John G. Roberts explained in Riley v. California, 134 S.Ct. 2473, 2494 (2014), the founding generation “reviled 'general warrants' and 'writs of assistance' of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the revolution itself.”

Accordingly, fundamental to the issuance of a search warrant under the Fourth Amendment of the U.S. Constitution (and, for that matter, New York's analog per Article I §12 of the New York Constitution, and its statutory search warrant provision, Article 690 of the New York Criminal Procedure Law), is that law enforcement officers are limited to particular places and particularly identifiable evidence described in the warrant, and cannot extend the scope of the warrant to additional or different places or other evidence without seeking additional authority from the court. See, e.g., People v. Cahill, 2 N.Y.3d 14, 41-42 (2003). A valid warrant must supply enough information to guide and control the executing agent's judgment in selecting where to search and what to seize, and cannot be too broad in the sense that it includes items that should not be seized. See, e.g., United States v. Kuc, 737 F.3d 129, 133 (1st Cir. 2013); United States v. Tsarnaev, 53 F. Supp. 3d 450 (D.C. Mass. 2014).

Particularity requires specificity, which not only protects one's right to privacy but leaves little discretion to the executing officers. Particularity limits searches to the places and things that have been judicially approved, so as to prohibit the execution of an imprecise or general warrant. Particularity, though, must be measured in light of common sense, and experience. See, e.g., People v. Edwards, 69 N.Y.2d 814 (1987).

For instance, in People v. Nieves, the New York Court of Appeals, in discussing the particularity requirement, determined that particularity does not mean that hyper technical accuracy and completeness of description must be attained but rather, from the standpoint of common sense … that the descriptions in the warrant and its supporting affidavits be sufficiently definite to enable the searcher to identify the persons, places or things that the magistrate has previously determined should be searched or seized. People v. Nieves, 36 N.Y.2d 396, 401 (1975). Cf., Groh v. Ramirez, 540 U.S. 551 (2004).

Particularity in the description of what is to be seized under the warrant serves as a limitation in a digital search, for instance, for what files on an electronic device may reasonably be searched. Particularity deficits undermine the presumption of legality that accompanies the issuance of a search warrant. Challenges on these grounds have only increased when computer searches are involved because of the nature of a digital search. See, e.g., Matter of 381 Search Warrants Directed to Facebook, 29 N.Y.3d 231 (2017).

Digital files may be easily concealed and located nearly anywhere in gigabytes of data on the computer by even a modestly informed and digitally savvy target. For instance, unlike a physical object, such as a gun, bloody shirt, stolen artifact, or kilogram of heroin, that may be immediately identified as the proper subject of the warrant (or not), computer files may be easily manipulated to conceal their true contents. See, e.g., United States v. Hill, 459 F.3d 966, 978 (9th Cir. 2006), cert. den. 549 U.S. 1299 (2007). Cf., United States v. Walser, 275 F.3d 981 (10th Cir. 2001).

Criminals may disguise incriminating files through the simple expedient of changing the names and extensions of the files to disguise their content from the casual observer, and the location of the folder or the program the file usually appears within. See, e.g., Walser, supra.

Courts have held that a warrant “need not describe the items to be seized in such detail as to eliminate the executing officer's discretion completely.” The Fourth Amendment does not require that every item or document to be seized be specifically identified in the warrant. Rather, a warrant's description of the items to be seized need only be sufficiently specific to permit the rational exercise of judgment by the executing officers in selecting what items to seize. See, e.g., United States v. Liu, 239 F.3d 138, 140 (2d Cir. 2000). Cf., People v. Thompson, 51 Misc. 3d 6931, 702-07 (NY Co. 2016).

A search warrant will be held in compliance with the particularity clause even where it broadly describes the items to be seized as “evidence, fruits or instrumentalities” of specified federal crimes when the warrant also sets forth an illustrative list of seizable items. See, e.g., United States v. Lustyik, 57 F. Supp. 3d 213, 227 (S.D.N.Y. 2014).

A search warrant that provides an illustrative list of items to be seized, though not exhaustive, has been upheld under particularity challenge, for such a warrant need not set out every single item to be seized. United States v. Riley, 906 F.2d 841, 844-45 (2d Cir. 1990). It is enough if the warrant “permit[s] the rational exercise of judgment by the executing officers in selecting what items to seize.” A list providing examples of the items to be seized, even a list modified by the phrase “including but not limited to” offers sufficient guidance to law enforcement officers to pass constitutional muster. United States v. Lustyik, 227-28. Cf., People v. Thompson, supra.

'Galpin' and Particularity

Recently, the defense has asserted that the Fourth Amendment's particularity parameters with respect to digital searches were altered and made more restrictive with the Second Circuit's decision in United States v. Galpin, 720 F.3d 436 (2013). That analysis misses the mark. In Galpin and the U.S. Supreme Court's decision in United States v. Riley, both courts acknowledged that searches of computers often involve a degree of intrusiveness much greater in quantity and in kind from searches of other containers, but Galpin involved a search warrant authorizing a broad search of defendant's computers “for evidence of violations of NYS Penal Law and or Federal Statutes,” which did not provide the officers executing the warrant with any guidance as to the type of evidence sought, thus violating the particularity clause of the Fourth Amendment. Only one crime was specified in the warrant—a registration offense—that did not provide probable cause for the seizure of the property that was evidence of crimes not mentioned in either the warrant application nor in the warrant itself. Galpin cannot be used to scuttle well-settled particularity analysis.

Further, the Second Circuit earlier this year explained its 2013 holding in Galpin in United States v. Romain, 2017 U.S. App. LEXIS 1760 (2017). In Romain, the defendant, relying on Galpin, contended that the warrant was overbroad because it permitted seizure of “any” or “any and all” evidence on the phone in seven enumerated categories. The court stated that “[c]ontrary to Romain's suggestion, Galpin does not hold that the use of the phrase “any and all” in a warrant is impermissible. In Galpin, we observed that the items listed in the warrant were wholly unrelated to the only offense that law enforcement had probable cause to believe the defendant had committed and that the warrant thus did not describe with adequate particularity the items to be seized by their relation to designated crimes.” The court further stated that, [w]e also observed that failing to provide “any guidance … as to what kinds of files” should be seized from “storage device[s]” listed in the warrant rendered that warrant overbroad. “Here, by contrast, the 'kinds of files,' to be seized from the cellphone were enumerated and included: (1) telephone numbers; (2) caller identification information; (3) call log information; (4) recently called numbers; (5) address information; (6) voicemails, text messages, emails, and photographs; and (7) the content of 'apps.'” Cf. People v. Thompson, 51 Misc. 3d 693 (NY Co. 2016).

Clearly, then, the Second Circuit's particularity standard is satisfied when the enumerated list is of items is related to the specific crimes for which probable cause was established for the warrant to issue.

Conclusion

Given the advances in technology and the centrality of computers in the everyday lives of most people, computer searches have come under increased judicial scrutiny. The particularity clause of the Fourth Amendment has been asserted by the defense with new vigor in the context of digital raids authorized by search warrants. For the most part, though, courts continue to uphold reasonable specificity in particularity of the items to be seized that gives sufficient guidance to executing officers, and leaves them little discretion. Nevertheless, it is certain that this area of the law will continue to be scrutinized by the courts, and evolve in light of technological developments.

Peter A. Crusco is executive assistant district attorney, investigations division, Office of the Queens County District Attorney. The views expressed herein are the author's, and do not necessarily reflect the policies or views of the office.