SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF RICHMOND, CRIMINAL TERM PART 6

THE PEOPLE OF THE STATE OF NEW YORK DECISION AND ORDER

- against - Indictment No.: 00623-2018

WILLIAM NOLAN, Date: February 18, 2022

Defendant. Hon. Marina Cora Mundy

By written motion filed with this court on August 6, 2021, the defendant, William Nolan,

moves this court for an order controverting and suppressing the property and data recovered in

the execution of search warrant No. 386-2018, issued on December 17, 2018, by the Honorable

Mario Mattei and authorizing the search of 9 Gadsen Place, Apartment 2A, Staten Island, New

York, issued. Upon due consideration of the parties' written submissions and oral arguments, the

defendant’s motion is granted. The following constitutes the decision of the court.

The gravamen of the defendant’s motion is the assertion that the warrant lacked

particularity and was overly broad in violation of the Fourth Amendment of the United States

Constitution. The defendant claims that the search warrant “was a general search warrant that

gave law enforcement unfettered discretion in what they may search and seize in the

[d]efendant’s home.”1 Additionally, the defendant asserts that each part of the warrant was

insufficiently particularized and argues that no portion of the warrant may survive by application

of the severance doctrine

The subject search warrant was supported by an affidavit dated October 11, 2018, sworn

to by New York City Police Department Detective James Butler before the Honorable Mario

Mattei on December 17, 2018, and sought permission to search for and seize the subsequently

1
Affirmation of defendant’s counsel in support of motion to controvert at page 2.

1 Controvert
delineated property at the target premises alleging there was reasonable cause to believe that

“evidence of falsely reporting an incident, criminal impersonation, aggravated harassment, and

conspiracy to commit those crimes” would be found for a series of events alleged to have taken

place during the period of “January 2016 until the present.”2, 3

The search warrant authorized and directed law enforcement to search 9 Gadsen Place,

Apartment 2A, Staten Island, New York and “to search for and to seize the following property:

a. computers, cellular phones, tablets, and any other electronic related equipment,
and the contents therein, including the browser history and saved documents
including letters and pictures therein;

b. electronic communication equipment, including but not limited to telephone bases

and handsets, routers, modems, cellular telephones, computer equipment,
answering machines, paging devices and related equipment, including but not
limited to auxiliary batteries, chargers, and wiring, and stored information, data,
and images contained on or in said communication equipment, including but not
limited to stored names and numbers and recorded messages; and electronic
security equipment and devices;

c. [d]ocuments, receipts, financial records, or physical paper evidence related to

falsely reporting an incident or harassment;

d. evidence of ownership and use of the target premises, or the use of property
located therein by any person, including, but not limited to, keys, telephone bills,
utility bills, bank statements, leases, deeds, or rent receipts related to the target
premises or other real property, mail addressed to or from the target premises,
identification bearing the name or photograph of any person, telephone books,
address books, date books, calendars, personal papers, and videotapes and
photographs of persons.”

The warrant did not include a date restriction and the affidavit in support of the warrant was not

incorporated by reference.

2
Affidavit in support of the search warrant at § 10.
3
This court notes that the detective’s affidavit in support of the search warrant is dated October 11, 2018 but was sworn to before
the Hon. Mattei on December 17, 2018 and included references to information current as of December 9, 2018.
2 Controvert
 To support his motion, the defendant relied on several cases4 including but not limited to

People v. Melamed, (178 AD3d 1079 [2d Dept 2019, Maltese J., concurring in part, dissenting in

part]), United States v. George, (975 F2d 72 [2d Cir 1992]), and People v. Covlin, (58 Misc 3d

996 [Sup Ct, NY County 2018]), and United States v. Galpin, (720 F3d 436 [2d Cir 2013]). This

court, having made an effort to synthesize the many assertions made by the defense in

challenging the validity of the search warrant in both their memorandum of support of motion to

controvert the search warrant and affirmation in further support of motion to controvert the

search warrant, turns its attention to three.

First, that “[p]aragraphs [a] and [b] of the search warrant authorized the search and

seizure of essentially all electronic devices and items…without any guidelines, parameters, or

constraints on the types of items to be viewed and seized.”5 Second, that despite the warrant

“describ[ing] the place to be searched,” paragraphs a and b of the warrant “do not describe the

items to be seized with adequate particularity by their relationship to the designated crimes.”6

And, that the warrant fails to include any facts expected to be obtained after conducting a

reasonable investigation and instead, provides “unfettered list[s] of items that the government

may search and seize.”7

In opposing the defendant’s motion, the People claim that the search warrant sufficiently

meets the Fourth Amendments particularity requirement arguing that first, the affidavit submitted

in support of the warrant and the warrant itself “specifies the specific offenses for which the

police have established probable cause and specifies their relation to the items to be seized” in

that 1) the warrant “list[ed] specific types of electronics and other paperwork” to be seized and 2)

4
All of which were reviewed by this court in determination of the instant motion.
5
Defense counsel’s memorandum in support at page 7; Defense counsel’s affirmation in further support at § 11.
6
Defense counsel’s memorandum in support at page 9.
7
Defense counsel’s memorandum in support at page 7.
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the warrant in subparagraph c sufficiently specifies the crimes with the inclusion of the language

“related to falsely reporting an incident or harassment” and 3), the warrant in subparagraph d

“specifies that officers may search for ‘evidence of ownership and use of the target premises.”’8

Second, the People argue that the warrant adequately describes the place to be searched by

specifically authorizing the search of 9 Gadsen Place, Apartment 2S, Staten Island, New York.

Furthermore, the People emphasize that the affidavit in support of the search warrant “clearly

describe[d] the evidence sought and the specific crimes the executing officer [was authorized to]

search for in great detail.”9 Lastly, the People claim that the warrant was sufficiently particular

under the specific circumstances of this case “[g]iven the scale and breadth of the defendant’s

conduct” which involved allegations that “the defendant made numerous false 311 complaints

over the span of approximately two years.”10

Both the Fourth Amendment to the United States Constitution and article 1, § 12 of New

York State’s Constitution provides that “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and

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."

The Second Circuit in United States v. Galpin enunciated three components to the Fourth

Amendment’s particularity requirement as follows: “[f]irst, 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.’” (720 F3d at 445-446 [internal citations omitted]).

8
People’s affirmation in response to defendant’s motion to controvert at § 10.
9
People’s affirmation in response to defendant’s motion to controvert at § 12.
10
People’s affirmation in response to defendant’s motion to controvert at § 12.
4 Controvert
 As the Court of Appeals eloquently articulated in People v. Nieves, “[p]articularity is

required in order that the executing officer can reasonably ascertain and identify the persons or

places authorized to be searched and the things authorized to be seized. To protect the right of

privacy from arbitrary police intrusion, the ‘core’ of the Fourth Amendment, nothing should be

left to the discretion of the searcher in executing the warrant. This does not mean that

hypertechnical 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.” (36 NY2d 396, 401 [1975]).

This court notes that the People relied on this precise language11 of the Nieves court to

support concurrent claims that the warrant itself was sufficiently particular and that the affidavit

supporting the warrant contained further specifics rendering the requirements of the Fourth

Amendment satisfied.12 Although not explicit, the People appear to rely on Nieves for the

proposition that any defect in the search warrant may be cured by reference to the affidavit

supporting the issuance of the warrant.13 Such reliance is improper. Insofar as Nieves expressly

permitted the consideration of information in supporting affidavits when considering whether a

warrant is sufficiently particular, this was abrogated in 2004 with the Supreme Court’s decision

in Groh v. Ramirez, 540 US 551.

The Supreme Court, in considering whether a facially defective warrant may be cured by

reference to its supporting documents concluded that “[t]he fact that the application adequately

described the ‘things to be seized’ does not save the warrant from its facial invalidity.

The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting

11
People’s affirmation in response to defendant’s motion to controvert at § 8.
12
People’s affirmation in response to defendant’s motion to controvert at §§ 10, 12.
13
People’s affirmation in response to defendant’s motion to controvert at §§ 10, 12.
5 Controvert
documents.” (Id. at 557). The Court went on to make clear that the Fourth Amendment permits

reference to documents supporting a warrant only when the warrant itself includes “appropriate

words of incorporation, and if the supporting document accompanies the warrant.” (Id. at 557-

558).

Thus, although the People in their response accurately “[note] that the affidavit clearly

describes the evidence sought and the specific crimes the executing officer can search for in

great detail… [and that] in this case, the defendant made numerous false 311 complaints over the

span of approximately two years using the NYC 311 website,”14 this court may not rely on such

information because the warrant at issue authorizes a search of nearly all files and data on

computers, cellular phones, tablets, and all other electronic related equipment and electronic

communication equipment without prescribing any restrictions as to dates or the nature of data to

be searched, without sufficiently specifying the items to be seized by their relation to designated

crimes and moreover, without incorporating the affidavit in support of the warrant by reference.

Therefore, it is the determination of this court that the warrant at issue lacks particularity and

offends the state and federal constitutions.

In reaching its decision, this court has given great weight to the Appellate Division,

Second Judicial Department’s decision in Melamed, a decision both binding upon this court and

factually similar to the matter before this court in many ways. In Melamed, the Second

Department vacated the defendant’s guilty plea and reversed the trial courts order denying the

motion to controvert a search warrant and to suppress evidence seized in the execution of the

warrant included in the defendant’s omnibus motion on the grounds that the warrant failed to

conform to the particularity requirement of the Fourth Amendment. (Melamed at 1080). In its

14
People’s affirmation in response to defendant’s motion to controvert at § 12.
6 Controvert
review of the warrant, which similarly did not incorporate by reference the supporting affidavit,

the Court observed that

“[m]ost notably, other , 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 F3d
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 F3d 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 F3d
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"]).” (Id. at 1081-1082).

Similarly, the subject search warrant authorized the search and seizure of all digital

records and equipment without providing any guidelines, parameters, or restraints despite the

fact that additional information was known to law enforcement at the time of application for the

warrant and that additional information was included in the affidavit in support of the warrant,

the known information was not included in the warrant. The Melamed majority addressed this

exact issue when it acknowledged the dissenting Justice’s “point” that “‘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 F3d at 446, quoting United States v Young,

745 F2d 733, 759 [2d Cir])” and subsequently determined that the warrant “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).” (Id. at 1082 [internal quotation marks omitted]).

7 Controvert
 As previously indicated, the Melamed warrant did include a date restriction by including

a time period spanning approximately five years. Here, the warrant did not provide a date

restriction at all yet, in the affidavit submitted in support of the warrant, the detective averred

that over 900 false 311 complaints were made by the defendant “[f]rom the period of January

2016 until the present.”15

As far as specifying in the warrant a particular offense for which probable cause was

established, the instant search warrant provided a bit more than the Melamed warrant which

failed to specify any particular crime or offense relevant to the search authorized at all. Here, the

detective averred in his supporting affirmation that there was “reasonable cause to believe that

evidence of falsely reporting an incident, criminal impersonation, aggravated harassment, and

conspiracy to commit those crimes”16 would be yielded by the search, yet the warrant merely

listed “falsely reporting an incident or harassment” but only in connection to “[d]ocuments,

receipts, financial records, or physical paper evidence” authorized to be searched and seized in a

standalone subparagraph.17 No crime or offense was identified or linked in any way to the digital

information and equipment authorized to be searched and seized in two other separately listed

subparagraphs.18 Strangely, both in Melamed and the instant matter, “the crimes charged in

the…indictment were not the crimes identified in the affidavit supporting the warrant.” (Id).

As in Melamed, it is the opinion of this court that it is not one distinct omission from the

warrant that causes it to fail but rather, overall, there are no “details or guidelines in the warrant

that could serve to limit its reach to evidence related to the crimes for which [law enforcement]

had probable cause to believe were committed, that renders this particular warrant

15
Affidavit in support of the search warrant at § 10.
16
Affidavit in support of the search warrant at § 2.
17
Search warrant at [1] [c].
18
Search warrant at [1] [a], [b].
8 Controvert
unconstitutional.” (Id. at 1083). The result of the omission of known facts and information from

the instant warrant and the failure to explicitly incorporate by reference the supporting

documents is a warrant that lacks particularity and offends both the Fourth Amendment of the

United States Constitution and article I, § 12 of the New York Constitution by authorizing a

general indiscriminate search of the defendant’s property, specifically, digital data. “[W]here the

property to be searched is computer files, ‘the particularity requirement assumes even greater

importance’ (United States v Galpin, 720 F3d 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).” (Id. at 1081-1082). Thus, in today’s digital age, there is a great onus on this court to

not lose sight of the fact that “[i]ndeed, indiscriminate searches pursuant to general warrants

were the immediate evils that motivated the framing and adoption of the Fourth Amendment'

(id. at 84, quoting Payton v New York, 445 U.S. 573, 583, 100 S. Ct. 1371, 63 L. Ed. 2d 639).”

(Id. at 1081).

Based on the forgoing, the defendant’s motion to controvert warrant No. 386-2018 is

granted.

This constitutes the decision, opinion and order of the court.

Dated: February 18, 2022

Staten Island, New York

________________________________________
Honorable Marina Cora Mundy
Justice of the New York State Supreme Court

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To: Honorable Michael E. McMahon, Esq.
District Attorney – Richmond County
By: Matthew Signorile, Esq.
130 Stuyvesant Place
Staten Island, New York 10301
Via e-mail: Matthew.Signorile@rcda.nyc.gov

To: Peter H. Tilem, Esq.

Tilem & Associates, PC
188 East Post Road
White Plains, New York 10601
Via e-mail at: ptilem@tilemlawfirm.com

To: Matthew J. Santamauro, Esq.

1492 Victory Blvd, 3rd Floor
Staten Island, New York 10301
Via e-mail at: msantamauro323@gmail.com

10 Controvert