The Complete Search Warrant, Annotated

[Pages:164]The Complete Search Warrant, Annotated

Consolidated Edition

By

Albert M. Rosenblatt

NEW YORK STATE UNIFIED COURT SYSTEM

November 2004

Copyright ? 2005 New York State Unified Court System

All rights reserved

ABOUT THE AUTHOR

A graduate of the University of Pennsylvania and Harvard Law School, Albert M. Rosenblatt is a Judge on the New York Court of Appeals and former Chief Administrative Judge of New York State. Before that, he had been Dutchess County's District Attorney and then served on the County Court, Supreme Court, and Appellate Division, Second Department. He has written on a variety of legal and popular topics.

He and his wife Julia, a writer and former Vassar College professor, live in Dutchess County. Their daughter, Betsy, is an attorney in California, specializing in intellectual property.

PREFACE

"Where is your warrant?" This question has been asked countless times, but rarely with more drama than in "The Disappearance of Lady Frances Carfax," a Sherlock Holmes adventure. The villain, a bogus preacher named Holy Peters, was unlawfully secreting his victim and Holmes demanded entry. On his side, the great detective had only justice and a revolver. Where was the warrant? Holmes half drew the revolver from his pocket and replied, "This will have to serve till a better one comes," Holmes explained. The approach worked well for Sherlock Holmes but will not do for American law enforcement officials. A revolver can be as effective as a warrant, and may even produce prompter compliance, but given the exclusionary rule, it would be uneconomical to trade in this modest volume for a Colt .45. This is the most recent incarnation of a work that I wrote as a prosecutor in 1973. Much has happened over the ensuing 31 years. The cases (not to mention the writer) have grown older but the inventory has been replenished several times over, and so what began as a 44 page work has grown to 120 pages. In 1973 the piece was published by the New York State District Attorneys' Association, under the able aegis of Richard L. Friedman. I updated the work for a few years, with the help of the Bureau of Prosecution and Defense Services, expertly directed by Bill Dowling and Michael Gross. 1997 saw a revised edition, and so the work stood until this past year. In preparing it, I relied not only on the abundant body of decisional law but on a number of publications, particularly the excellent treatises by Judge William C. Donnino (New York Court of Appeals on Criminal Law), Barry Kamin's book on New York Search and Seizure, and Wayne R. LaFave's Search and Seizure volumes. In addition, and with their eagle eyes, Judge Donnino and Judge Steven W. Fisher read the manuscript and made a number of valuable suggestions that I have included in the text. At a judicial training event at our Pace Law School facility, Judge Juanita Bing Newton generously commented

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that the work was still on its feet (although a bit wobbly with age, I submit), and that her office would publish a new version. She offered to have her staff collate the earlier editions and their supplements. This took not only astute computers but the energy and creativity of Justin Barry, who designed the program for the table of contents and more, Ellen Magid who diligently helped stitch together all the previous editions, and Janine Zanin, who aided immeasurably in updating the version immediately preceding this one. I thank them all for their valued contributions, along with Lisa DellAquila, and Justin Long for their helpful comments.

ALBERT M. ROSENBLATT

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TABLE OF CONTENTS

PAGE

I . Affidavit for Search Warrant

1

II. Search Warrant

15

III. Annotated Footnotes (by Footnote Number)

19

1. Proper Court to Issue Warrant

19

2. Authorizing Search of More Than One Person, Place, or Vehicle

22

3. Preciseness of Description of Premises -- Misdescription

25

4. Vehicle Defined .

29

5. Certainty of Identification of Known Target

29

6. Search of Person Wherever Found

30

7. Search of Any Person "Thereat or Therein"

31

8. Applicant's Use of Fictitious Name

35

9. Public Servant Defined

36

10. Probable Cause (Reasonable Cause)

37

11. Anticipatory Search Warrant; Controlled Delivery

38

12. Matching Descriptions

40

13. Description of Property To Be Seized

41

14. Stolen Property ? Basis For Conclusion

42

15a-c Particularity of Description; Overbreadth

42

16. Mere Evidence ? Contraband ? Plain View

44

17. Requirement For Factual Recitation of Specific Acts of Crime

46

18. Police Deponent ? Direct, Knowledgeable Observations ?

Reliability

46

19. Manner of Acquisition of Proof ? Use or Exploitation of Illegal

Evidence ? Independent Source

49

20. Staleness

52

21. Specificity of Location

55

22. Reliability of Confidential Informant

56

23. Basis of Confidential Informant's Knowledge

61

24. Verification of Confidential Informant's Assertions

64

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PAGE

25. Informant's Declarations Against Penal Interest

66

26. Sworn Testimony or Production of Confidential Informant

68

27. Facts Not Included in Affidavits But Presented When Warrant Is

Issued ? Method of Recording

69

28. Citizen-Informant ? Crime Victim

71

29. Establishing Reliability

72

30. Prior Record of Suspect

72

31. Nighttime (Anytime) Search Warrants

73

32. No-Knock Warrants

75

33. Directive For Search and Seizure

78

34. Searching For Suspect in Third Person's Premises

78

35. Subscribing and Swearing to the Application

79

36. Jurat

80

37. Name of Court

80

38. Person or Agency to Whom Search Warrant is Issued; Failure to

Address Warrant to Particular Police Agency

81

39. Authorization and Directive

82

40. Description of Property

82

41. Identification of Place, Premises, or Person

82

42. Authorization to Search Any Person "Thereat or Therein"

83

43. Execution of Warrant: Where and When

83

44. Return of Warrant

85

45. Dating the Warrant

86

46. Signing the Warrant

87

IV. Discussion Items

89

1. The Value of a Search Warrant

89

2. Burden of Proof

90

3. Administrative Searches

91

4. Disclosure of Informant

94

5. A Search Is Measured by the Proof in Existence at Its Inception

98

6. Searching in Defendant's Absence

98

7. Searching Parolees

99

8. Motions to Suppress

100

9. Post-Issuance: Controverting the Veracity of the Proof

102

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