NY State Court Limits Scope of Warrants for Searches

[jimmy olsen]

Hmm...my feelings on this decision are mixed. =

http://www.nytimes.com/2010/04/02/nyregion/02warrant.html

State Court Limits Scope of Warrants for Searches
By AL BAKER
Published: April 1, 2010

New York's highest court ruled on Thursday that police departments cannot use general warrants that apply to a specific location to search every person they find there unless there is probable cause to believe that a particular person is involved in criminal activity.

While the decision, which was unanimous, arose from a case in Syracuse, the ruling could have broad implications because "all-persons-present" warrants are so often used by the police.

Asked about the decision, Paul J. Browne, the New York Police Department's chief spokesman, said, "We're waiting for the department lawyers to review it, to see what the implications may be for the Police Department."

In its 7-to-0 ruling, the New York Court of Appeals said that an all-persons-present warrant used by the police in Syracuse during a drug raid at an apartment in 2006 did not give them enough evidence to strip-search a man who was in the home. The court ordered the dismissal of drug possession charges that the man, Robert Mothersell, had been facing.

The court also said that even if the warrant did give the police reason to search Mr. Mothersell, a strip-search was so intrusive that it violated his rights under the federal and state constitutions. The police said they found a bag of cocaine between Mr. Mothersell's buttocks.

The decision could be appealed to the United States Supreme Court, which could rule on the federal issues, but not on the "state constitutional protections," said Gary Spencer, a spokesman for the Court of the Appeals.

James P. Maxwell, the chief assistant district attorney for Onondaga County, which includes Syracuse, said an appeal was unlikely because the state goes further than the federal government in offering protections against such searches.

The ruling is a "heartening development for privacy," said Richard Emery, a Manhattan lawyer who recently won a settlement of a lawsuit against New York City stemming from the illegal strip-searches of thousands of nonviolent prisoners at the Rikers Island jail.

"This is a slap to wake up police departments," Mr. Emery continued.

"The main thrust of this case is very clear," he added, "and that is the court is saying to law enforcement: 'Hey, you have gotten sloppy. You can't just put in boilerplate language on a warrant; you need clear and objective facts to search any individual.' "

The case started in February 2006, when Syracuse police officers raided an apartment on Isabella Street using a warrant obtained after confidential police informants bought cocaine at the apartment on two separate occasions within the previous three weeks. The first buy was from a man identified only as "Tom," while the second was from an unknown man.

Officers found several people, including Mr. Mothersell, in the apartment.

The ruling, written by the chief judge, Jonathan Lippman, noted that an officer involved in the case admitted that there were no grounds to arrest Mr. Mothersell until he was found to have been holding drugs and that the strip-search was permitted by the warrant.

"He also stated that he had taken part in the execution of hundreds of all-person-present warrants and that the persons were routinely strip-searched," Mr. Lippman wrote. "A search warrant exists and is required not simply to permit, but to circumscribe, police intrusions."

Ameer Benno, a lawyer for Mr. Mothersell, did not return a call on Thursday seeking comment.

Steven Banks, the chief lawyer for the Legal Aid Society in New York City, said, "All too often, warrants are issued and executed based upon a general claim that unlawful conduct is afoot." The decision, he said, is "written with such clarity that it will stop that pernicious practice."

But Mr. Maxwell noted that the ruling "did not say that the statute that authorizes all-persons-present warrants was unconstitutional." The ruling, he added, "gives us some guidance as to what the courts should be looking for when police apply for these warrants."

A version of this article appeared in print on April 2, 2010

[Jaron]

Once you make up your mind Timmy don't forget to share.

[Fate]

If you're innocent what do you have to fear from a search? 

[sbr]

Excellent decision.

[jimmy olsen]

Once you make up your mind Timmy don't forget to share.

My initial instinct is to lean in favor.

[DontSayBanana]

I totally understand the reasoning.  Just because someone is present at the time of the response, that doesn't necessarily mean they were there at the time of the disturbance.  You've got to have some kind of causal link before the warrant will cover them.  Owners or residents of the site of the disturbance?  Interview away.  Blazing high and right outside the door of the alleged crack den?  Interview away.  Somebody looking guilty at the fence with no connection to the property and showing no signs of having performed illegal activity other than being in the vicinity?  That's not probable cause.

[Habbaku]

  Good for the court.

[Agelastus]

If you're innocent what do you have to fear from a search? 

Personally I'd prefer to keep my not-hairy-enough chest too myself, thank you very much.

[Scipio]

Nice.