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ALTHOUGH THE SEARCH WARRANT DESCRIBED THE RESIDENCE AS HAVING TWO ENTRANCE DOORS, ONE LEADING TO THE AREA WHERE THE INFORMANT SAW THE FIREARMS AND ONE LEADING TO A STAIRWAY TO THE SECOND FLOOR (WHICH THE INFORMANT HAD NOT VISITED), THE WARRANT WAS NOT SEVERABLE AND WAS THEREFORE OVERBROAD (SECOND DEPT). ​

The Second Department determined Supreme Court properly found the search warrant overly broad and suppressed the seized evidence. The warrant described the premises to be searched as having two exterior doors, one leading to the area described by the confidential informant who had seen firearms there, and the other leading to stairs to the second floor. The informant had never been upstairs and nothing was seized from upstairs. The issue was whether the part of the warrant which authorized the search of the upstairs could be severed from the part of the warrant describing the area visited by the informant. The court reasoned that severance would be justified if the warrant described two separate apartments. But because the warrant described the premises as a single residence, it was overbroad:

Unlike the warrant in Hansen [38 NY2d 17], which authorized the search of two obviously separate places—a home and a vehicle—the language of the warrant in this case was ambiguous, and failed to clearly delineate whether it authorized a search of a single residence or two separate residences. The warrant did refer to the premises as a “two-family home,” with a “right main entrance” that led to “a living room, a kitchen, and bedrooms,” and a “left main entrance,” which led to “a set of stairs that lead up to a living room, a kitchen and bedrooms,” which may have suggested that the building contained two separate apartments. Yet, the warrant referred to the premises as the “Subject Location” and “the residence,” and instead of using words like “apartment” or “unit,” it referred to the rooms on the first floor as being “at the residence,” and referred to the rooms on the second floor as being “at the rear of the residence.”

In light of this ambiguity, a reviewing court could not determine that the warrant authorized the search of two separate places without impermissibly engaging in “retrospective surgery, dehors the language of the warrant, [to] cut away the illegal portions of the area to be searched and by judicially revised description save evidence recovered from a more narrowly limited area” … . People v Capers, 2023 NY Slip Op 01011, Second Dept 2-22-23

Practice Point: The Court of Appeals has held that where a warrant describes two distinct areas to be searched, a vehicle and a residence for example, and the search of one of the areas was not supported by probable cause, the warrant may be severed. Here, although there were two entrances to the premises, it was described as a single residence and therefore was not severable.

 

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