The Complete Search Warrant, Annotated

1 The Complete SearchWarrant, AnnotatedNEW YORK STATEUNIFIED COURTSYSTEMN ovember 2004 Consolidated EditionByAlbert M. RosenblattCopyright 2005 New York State Unified Court SystemAll rights reservedABOUT THE AUTHORA graduate of the University of Pennsylvania andHarvard Law School, Albert M. Rosenblatt is aJudge on the New York Court of Appeals andformer Chief Administrative Judge of New YorkState. Before that, he had been DutchessCounty s District Attorney and then served on theCounty Court, Supreme Court, and AppellateDivision, Second Department. He has written ona variety of legal and popular and his wife Julia, a writer and former VassarCollege professor, live in Dutchess County.

2 Theirdaughter, Betsy, is an attorney in California,specializing in intellectual "Where is your warrant ?"This question has been asked countless times, butrarely with more drama than in "The Disappearance of LadyFrances Carfax," a Sherlock Holmes adventure. The villain, abogus preacher named Holy Peters, was unlawfully secretinghis victim and Holmes demanded entry. On his side, the greatdetective had only justice and a revolver. Where was thewarrant? Holmes half drew the revolver from his pocket andreplied, "This will have to serve till a better one comes,"Holmes approach worked well for Sherlock Holmes but willnot do for American law enforcement officials.

3 A revolver canbe as effective as a warrant , and may even produce promptercompliance, but given the exclusionary rule, it would beuneconomical to trade in this modest volume for a Colt . is the most recent incarnation of a work that I wroteas a prosecutor in 1973. Much has happened over theensuing 31 years. The cases (not to mention the writer) havegrown older but the inventory has been replenished severaltimes over, and so what began as a 44 page work has grownto 120 pages. In 1973 the piece was published by the NewYork State District Attorneys' Association, under the able aegisof Richard L. Friedman. I updated the work for a few years,with the help of the Bureau of Prosecution and DefenseServices, expertly directed by Bill Dowling and michael saw a revised edition, and so the work stood until thispast preparing it, I relied not only on the abundant body ofdecisional law but on a number of publications, particularly theexcellent treatises by Judge William C.

4 Donnino (New YorkCourt of Appeals on Criminal Law), Barry Kamin's book onNew York Search and Seizure, and Wayne R. LaFave'sSearch and Seizure volumes. In addition, and with their eagleeyes, Judge Donnino and Judge Steven W. Fisher read themanuscript and made a number of valuable suggestions thatI have included in the a judicial training event at our Pace Law Schoolfacility, Judge Juanita Bing Newton generously commentedivthat the work was still on its feet (although a bit wobbly withage, I submit), and that her office would publish a new offered to have her staff collate the earlier editions andtheir supplements.

5 This took not only astute computers but theenergy and creativity of Justin Barry, who designed theprogram for the table of contents and more, Ellen Magid whodiligently helped stitch together all the previous editions, andJanine Zanin, who aided immeasurably in updating the versionimmediately preceding this one. I thank them all for theirvalued contributions, along with Lisa DellAquila, and JustinLong for their helpful M. ROSENBLATTvTABLE OF CONTENTSPAGEI .Affidavit for Search Footnotes (by Footnote Number)191. Proper Court to Issue Warrant192. Authorizing Search of More Than One Person, Place, or Vehicle223.

6 Preciseness of Description of Premises -- Misdescription254. Vehicle Certainty of Identification of Known Target 296. Search of Person Wherever Found307. Search of Any Person "Thereat or Therein"318. Applicant's Use of Fictitious Name359. Public Servant Defined 3610. Probable Cause (Reasonable Cause)3711. Anticipatory Search warrant ; Controlled Delivery3812. Matching Descriptions4013. Description of Property To Be Seized4114. Stolen Property Basis For Conclusion4215a-c Particularity of Description; Overbreadth4216. Mere Evidence Contraband Plain View 4417.

7 Requirement For Factual Recitation of Specific Acts of Crime4618. Police Deponent Direct, Knowledgeable Observations Reliability 4619. Manner of Acquisition of Proof Use or Exploitation of Illegal Evidence Independent Source4920. Staleness5221. Specificity of Location5522. Reliability of Confidential Informant56 23. Basis of Confidential Informant s Knowledge61 24. Verification of Confidential Informant s Assertions64viPAGE25. Informant s Declarations Against Penal Interest6626. Sworn Testimony or Production of Confidential Informant6827. Facts Not Included in Affidavits But Presented When warrant Is Issued Method of Recording6928.

8 Citizen-Informant Crime Victim7129. Establishing Reliability7230. Prior Record of Suspect7231. Nighttime (Anytime) Search Warrants7332. No-Knock Warrants7533. Directive For Search and Seizure7834. Searching For Suspect in Third Person s Premises7835. Subscribing and Swearing to the Application 7936. Jurat8037. Name of Court8038. Person or Agency to Whom Search warrant is Issued; Failure to Address warrant to Particular Police Agency8139. Authorization and Directive8240. Description of Property8241. Identification of Place, Premises, or Person8242. Authorization to Search Any Person "Thereat or Therein"8343.

9 Execution of warrant : Where and When8344. Return of Warrant8545. Dating the Warrant8646. Signing the Items 89 1. The Value of a Search Warrant89 2. Burden of Proof 903. Administrative Searches914. Disclosure of Informant94 5. A Search Is Measured by the Proof in Existence at Its Inception98 6. Searching in Defendant's Absence987. Searching Parolees998. Motions to Suppress1009. Post-Issuance: Controverting the Veracity of the Proof102viiPAGE10. Arrest of Suspect in a Residence: warrant of Subpoena to Secure the Scene for a Search Search warrant (A/K/A Telephonic Search Warrants)10814.

10 Information Supplied by Children11015. Beepers (A/K/A Tracking Devices, Transponders, Beacons)11116. Dogs112 17. Thermal Surveillance Devices11318. Search Warrants for Corporeal Evidence (Blood, Scrapings, Teeth, Etc.)11319. Search Warrants for Video-Type Surveillance11420. Search Warrants for Computer Contents11521. Pen Registers / Trap and Trace Devices11522. To Whom is the Search warrant Addressable: Who May Execute It: Addressability: CPL (1)11523. Out of State Warrants11724. Reissuance11825. Standing11826. Closed Containers11927. Disposition of Seized Property12028.