The Complete Search Warrant, Annotated - Unified Court System

164 Pages·2005·0.44 MB·English

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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PAGE
10. Arrest of Suspect in a Residence: Warrant Requirement 105
11. Use of Subpoena to Secure Evidence 106
12. Securing the Scene for a Search Warrant 107
13. Oral Search Warrant (A/K/A Telephonic Search Warrants) 108
14. Information Supplied by Children 110
15. Beepers (A/K/A Tracking Devices, Transponders, Beacons) 111
16. Dogs 112
17. Thermal Surveillance Devices 113
18. Search Warrants for Corporeal Evidence (Blood, Scrapings,
Teeth, Etc.) 113
19. Search Warrants for Video-Type Surveillance 114
20. Search Warrants for Computer Contents 115
21. Pen Registers / Trap and Trace Devices 115
22. To Whom is the Search Warrant Addressable: Who May
Execute It: Addressability: CPL 690.25 (1) 115
23. Out of State Warrants 117
24. Reissuance 118
25. Standing 118
26. Closed Containers 119
27. Disposition of Seized Property 120
28. Search Warrants By Email 120
29. Sealing Search Warrants 121
30. "Sneak and Peek" Search Warrants 121
31. Search Warrants for Non-Suspects 123
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