New York City Searches and Seizures Attorney
The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures. Even though there are many exceptions that allow the admission of otherwise inadmissible evidence, police must have probable cause for every search and seizure.
Therefore, although it is preferable to have a search or arrest warrant in every search or seizure case, police may and do make warrantless arrests or searches that they believe are reasonable. The police may also stop and frisk a person if they have reasonable suspicion that the person possesses a dangerous weapon. The law requires that in such cases, the search must not exceed the permissible scope for that type of interference with liberty.
There is a difference between search and arrest warrants. Under New York law, an arrest warrant may be issued if (1) An accusatory instrument is filed with the court, designating a defendant who is the subject of a warrant; and (2) there is reasonable cause to believe that a crime has been committed and that the person named in the warrant committed it.
A court may sometimes require that a police officer testify under oath concerning the facts in support of the arrest warrant. An arrest warrant must be based on probable cause. Sometimes probable cause is based on hearsay and in such cases the police must show that the informant is a reliable source and that the officer had a sufficient basis for the knowledge.
In any case involving a warrantless search or seizure, a competent defense counsel must ensure that all requirements of the Fourth Amendment have been fully satisfied. Therefore, a defense attorney must raise the following issues:
- Does police interest in protecting public safety outweigh individual’s right to privacy?
- Did police have probable cause?
- Was police action justified and was it reasonably related to circumstances that rendered it permissible?
- Does exclusionary rule apply?
- Is evidence obtained as the result of the warrantless search a ”fruit of the poisonous tree”, which is inadmissible in court or is there an exception that allows admission of such evidence?
- Does defendant have standing to challenge warrantless search?
When law enforcement has applied for and obtained a search warrant, many techniques allow a defense counsel to effectively challenge the warrant. For example, the defense attorney will:
- Argue to challenge probable cause for search warrant.
- Examine sufficiency of description in search warrant for compliance with the law;
- Determine whether any parts of the warrant are too broad and should be stricken.
- Make sure the warrant specified property to be searched and seized as required by law;
- Determine whether warrant is limited to search premises for specific person.
- Ensure that police did not use any illegal techniques in executing search warrant.
If you are arrested without a warrant, the key issues are whether you have the rights or ”standing” to challenge the arrest or entry, and if so, can the police rely on an exception to the warrant requirement (such as consent or exigent circumstances), and if they can, did they have probable cause to arrest the defendant?
A competent defense counsel will challenge a warrantless arrest. One argument is that police made the arrest without probable cause. Without probable cause, the police may not rely on any exception to the need to seek a warrant. Probable cause is the necessary requirement of any warrantless arrest.
Probable cause is normally found to exist where:
- There is eyewitness identification of defendant;
- Accomplice described defendant;
- Police have an approximate (not precise) description of defendant from a witness;
- Witness described a vehicle involved in crime and other information connects an occupant with the crime.
- Police received a tip from a reliable informant
The following factors may significantly contribute to the finding of probable cause:
- Defendant’s admission and confessions;
- Flight from officers (in combination with other factors;)
- Abandonment of property;
- Possession of weapons or drugs;
- Possession of incriminating evidence;
- Information received from other police officers
- Defendant’s presence and suspicious activity in a high-crime area, which raises suspicion and leads to