Warrants, searches and the Fourth Amendment | Opinion – Plattsburgh Press Republican

A fundamental right in our Constitution is the 4th Amendments protection against the governments conducting unreasonable searches and seizures. It does not prohibit all searches, only those that are determined to be unreasonable. A search is definitely unreasonable if there was no probable cause to believe that there was evidence of crime at the location identified. There are countless court cases on this topic.

The 4th Amendment was passed in reaction to the practice during colonial times of British soldiers using general writs of assistance to enter and search private homes, looking for contraband. After this constitutional protection was enacted, government officers could not force their way into your home, look through your belongings, or read your documents unless they had specific probable cause to do so.

And, just saying those words did not magically make it so. The reasons for the search, including the place or person to be searched and the evidence of crime believed to be there, must be presented under oath to a judge beforehand, to obtain a search warrant.

As you might imagine, that can feel like a hassle, and it takes time. A way that avoids this step is to get the consent of the owner of the property. If they agree, then requesting a warrant is not necessary. Sometimes that is fine, but people may feel they cannot refuse the police, so they feel pressured to consent.

Consent also could be a pathway for police to search without having probable cause. Maybe they have a hunch, but not enough to meet the legal standard. Or maybe they just want to harass the person, or hope they can find something to charge him with.

If nothing is found, a home was invaded unnecessarily. If the defendant is arrested, then every aspect can be challenged. If there was not voluntary consent, or probable cause, then a judge could well suppress the evidence so that it cannot be used in court. If there is no evidence, then the charges will be dismissed.

The judges role in issuing a search warrant is essential; the police cannot issue warrants to themselves. In reviewing whether law enforcement has legally sufficient evidence for a search warrant, the judge should be careful, thorough and independent. A judge should not simply be a rubber stamp, approving whatever the police request. Included in the courts assessment is whether there is evidence of a specific location and particular evidence. The judge is not limited to looking at paperwork for the warrant, but can also ask questions of the officers, who swear to the truth of what they are saying.

Under NY Criminal Procedure Law, a search warrant can be executed only between the hours of 6 a.m. and 9 p.m., unless the judge approves an exception. The law also requires the police to announce themselves before entering. This applies unless the judge specifically authorizes a No Knock Warrant. Before doing so, the judge should question the reasons the police have for not knocking.

The typical reasons are that the person inside would destroy the evidence if they are warned that the police are outside the door. Sometimes there is concern that law enforcement officers would be endangered if they had to announce themselves, and could not have the advantage of surprise. The destruction of evidence and danger to officers are two exceptions that could swallow the rule. The judge needs to be sure that there are reasons specific to this particular case that justify No Knock permission.

The judge also needs to try to ensure that the police are acting on reliable and current information. If they are looking for drugs at a particular location, you want probable cause to believe that (1) they have the exact correct address and (2) the drugs are there now, not just that they were there days or weeks ago. The judges oversight should be demanding, to help ensure the police have specific, accurate information. A mistake can invade the privacy of completely innocent people, and even be deadly.

There are many conversations around the country about whether to change policing policies, training and practices. One of the primary targets for reform is the No Knock warrant.

Penny Clute was Clinton County district attorney from 1989 through 2001, then Plattsburgh City Court judge until her retirement in January 2012.

________________________

Resources

NY Criminal Procedure Law 690 covers search warrants

Issues around No Knock warrants -- https://www.cityandstateny.com/articles/policy/criminal-justice/no-knock-search-warrants-may-be-heading-out-door-new-york.html

We are making critical coverage of the coronavirus available for free. Please consider subscribing so we can continue to bring you the latest news and information on this developing story.

Read the original here:
Warrants, searches and the Fourth Amendment | Opinion - Plattsburgh Press Republican