F. Search Warrants
Jurisdiction | New York |
F. Search Warrants
A search warrant is a court order directing a police officer to conduct "a search of designated premises, or of a designated vehicle or of a designated person, for the purpose of seizing designated property or kinds of property, and to deliver any property so obtained to the court which issued the warrant."459
Article 690 of the CPL governs the issuance and execution of search warrants. A search warrant issued by a district court, the New York City criminal court or a superior court sitting as a local criminal court may be executed anywhere in the state. A search warrant issued by a city court, town court or village court may be executed in the county of issuance or an adjoining county.460
1. Property Subject to Seizure
A search warrant contains no authority to arrest but only to seize personal property. Personal property is subject to seizure pursuant to a search warrant if there is reasonable cause to believe that it is stolen, is unlawfully possessed, has been used to commit or to conceal the commission of an offense or constitutes evidence that a person committed an offense.461 The definition of personal property is flexible and includes videotaping events.462 Video surveillance is now expressly covered by CPL article 700.
The property to be seized must be specifically designated. An open-ended warrant that does not designate the property is invalid.463
2. Premises to Be Searched
The premises must also be specifically designated:464 a warrant authorizing the search of a house did not permit the search of an automobile driven into the driveway during the search;465 a warrant authorizing the search of a vehicle does not permit entry into a locked garage to gain access to the vehicle;466 a warrant authorizing the search of a residence does not authorize the search of a shed.467
3. Persons to Be Searched
A search warrant authorizing the search of a particular place and all occupants therein must establish probable cause to believe that the premises are being used for illegal activity and that every occupant possesses the articles sought.468 Where an individual not specified in the warrant is found inside the premises, police are not justified in searching him or her.469 An individual found in the hallway outside of the target room may not be seized and returned to the target premises.470
4. Statutory Requirements
The application for a search warrant is generally in writing, although oral applications are permitted so long as the application is transcribed within 24 hours of the issuance of the warrant.471 A failure to comply with the 24-hour transcription rule may be excused if there has been substantial compliance.472
A search warrant must be executed within ten days of issuance473 and may be executed only between the hours of 6:00 a.m. and 9:00 p.m., unless the court has found reasonable cause for a "forthwith" order 474 or for nighttime entry.
The affidavit in support of the warrant must recite probable cause that the property described in the application may be found in or upon the place, premises, vehicle or person.475 A single two-month-old drug sale is insufficient to supply probable cause for a search warrant or an eavesdrop order. The probable cause alleged may be based on hearsay, so long as there is a substantial basis for crediting the hearsay.476
Where probable cause is based not on personal observations of the police but on information supplied by informants, a warrant may be issued so long as the affidavit satisfies the Aguilar-Spinelli two-pronged test:477
1. Veracity—the affiant must set forth the reasons which led him or her to conclude the informant was reliable (e.g., the informant has previously provided information which was truthful).
2. Basis of knowledge—the affiant must outline the facts and circumstances relied on by the informer (personal observations) in reaching his or her conclusions.478
The Aguilar-Spinelli test need not be satisfied where the informant personally appears and testifies before the magistrate.479 The veracity prong of the Aguilar-Spinelli test can be satisfied by police corroboration of various details of the informant's story.480 The test is not satisfied by an affidavit signed "Confidential Informant."481 Informant reliability is not satisfied by an assistant district attorney's affirmation that his or her source is a "citizen informant."482
Note that the federal rule for establishing probable cause through hearsay evidence relies on the "totality of circumstances" test.483 The New York courts have rejected the "totality of circumstances" test and, under the New York State Constitution, retained the Aguilar-Spinelli standard.484
The federal courts also apply the "good faith" exception to admit evidence seized pursuant to a search warrant mistakenly issued by a magistrate, if the police acted in good faith in relying on the warrant. New York has explicitly rejected the "good faith" exception.485
The affidavit in support of the warrant is presumptively valid, and counsel must make a substantial preliminary showing that the warrant was issued based upon a false statement that was knowingly and intentionally made before the court will hold a hearing to consider suppression of the recovered property.486
5. Disclosure of the Confidential Informant's Identity
The circumstances under which the People must disclose the identity of a confidential informant are set forth in two seminal cases: People v. Darden487 and People v. Goggins.488 The general rule is that for a probable cause determination, the informant's identity does not have to be disclosed; but where the accused's guilt or innocence is at issue, the People are obligated to disclose to counsel the identity of the informant.
In Darden, a warrantless search of the accused was conducted pursuant to information given by an informant. The Court of Appeals, while not requiring disclosure of the informant's identity, set up the procedure for the Darden hearing. Where a Darden hearing has been ordered, the prosecution may not avoid producing the informant by furnishing confirmatory information from the police.489
The Darden...
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