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Search warrant comes under suspicion

On July 7, 2010, the Judge of the New York City Criminal Law Court reviewed and approved a warrant authorizing the search of 105 West 128th Street, Apartment 4, New York, New York and seize cocaine and crack possession/cocaine possession and drug crime paraphernalia as well as any records and currency that would be indicative of drug trafficking.

A New York Criminal Lawyer said that, defendant is charged with Criminal Possession of a Controlled Substance in the Third and Fifth Degrees, two counts of Criminally Using Drug Paraphernalia in the Second Degree and Unlawful Possession of Marijuana. Defendant moves to controvert the search warrant on the ground that it was issued without reasonable cause. Specifically, defendant claims that there is no nexus between the apartment that is the subject of the search warrant and the facts upon which the search of the apartment was ordered. Defendant also moves, pursuant to CPLR 2221(d), for leave to reargue the Court’s Order which granted the People’s ex-parte motion for a Protective Order pertaining to paragraphs 6 and 7 of the search warrant affidavit.

A Lawyer said that, according to defendant, he resided at 105 West 128th Street, Apt. 4, New York, New York for the past ten years. On July 8, 2010, at approximately 12:45 a.m., as defendant entered the ground floor lobby of 105 West 128th Street, the police rushed into the building and summarily seized and searched him. Two cellular phones, two keys to defendant’s apartment and $26.00 in United States currency was recovered from defendant. He was then handcuffed and subjected to a custodial interrogation in the lobby of his residence, which resulted in defendant making a statement to the police. The police had a search warrant for defendant’s apartment. However, defendant was not the subject of the warrant and the warrant did not authorize the search or seizure of any person “thereat or therein.”

Upon execution of the search warrant, the police recovered 3,104 mg. of marijuana possession, 3,278 mg. cocaine possession, a .32 caliber magazine, six .32 caliber bullets, scales, ziplock bags, $70.00 in United States currency, an identification card in defendant’s name, a letter addressed to defendant and a computer. According to defendant the police recovered a total of $889.00 in this case. The warrant affidavit basically sets forth in substance, the following facts, namely, that Detective received information from an undercover police officer relating to the sale of cocaine by the barber shop located on the ground and first floor level of 237 Lenox Avenue. Those observations were set forth in the affidavit for a search warrant.

Additionally, the Detective also states that he was able to see through a window, Miller and Harris inside of the barber shop handling money. Immediately after the transaction, the Detective stopped defendant who threw one rock of crack cocaine to the ground and that the other Detective recovered the rock of cocaine. The Detective returned to the barber shop, where he stopped and frisked him, recovering one ziplock bag containing cocaine from Harris’s right front pants pocket. The Detective also observed an open black bag containing “numerous rocks of cocaine” inside of an open drawer inside the barber shop. The detective also smelled a “strong odor of cooked crack cocaine coming from” the open drawer.

A New York Lawyer said that, defendant does not dispute that the police had probable cause to arrest defendant for the possession and sale of a controlled substance. Clearly, the officer’s personal observations of the accused at the barber shop selling crack cocaine provided the police with ample probable cause for defendant’s subsequent arrest. Defendant argues instead that the police lacked probable cause to believe that Harris sold and/or possessed controlled substances and/or child pornography at 105 West 128th Street, apartment 4, where he purportedly lived. Therefore, according to defendant, regardless of the existence of probable cause to justify the arrest, the police lacked probable cause to connect Harris’s alleged criminal activity to his apparent residence. Accordingly, defendant contends, there was a dearth of probable cause to support the issuance of a search warrant for 105 West 128th Street, apartment 4.

A Lawyer said that, defendant points out, and the Court concurs, that the warrant application in this case is devoid of any explicit facts demonstrating a nexus between his alleged criminal activities and 105 West 128th Street, apartment 4. The warrant application contains no specific assertion that illegal drug crime activities or child pornography were taking place at or near 105 West 128th Street, apartment 4. The application includes no explicit allegation that Harris possessed crack cocaine or any other controlled substance or child pornography at or near 105 West 128th Street, apartment 4. To the contrary, the only allegation in the warrant application connecting 105 West 128th Street, apartment 4 to Harris is that Harris resides at that house.

The issue in this case is whether there was probable cause to search defendant’s apartment for evidence of criminality simply and solely because he lived there.

The Court concludes that there was. Probable cause to search a particular place exists not only where there is sufficient information that an offense has been or is being committed at that place, but also where there is sufficient evidence to support a reasonable belief that evidence of a crime may be found in a certain place. In this case, the fact that the police had probable cause to arrest defendant for the criminal sale and for criminal possession of a controlled substance with respect to the rocks of crack cocaine and that he had to get the crack cocaine and that his home was in the vicinity of the barber shop comprised sufficient information to support a reasonable belief that evidence of his criminal conduct would be found in his house.
New York State courts have consistently observed that “logic suggests that person who has committed a crime and who wished to conceal evidence thereof would choose to hide it at a place where he exercises some control”. For that reason, “New York courts routinely sustain search warrants issued to allow the search of homes of persons identified as criminal perpetrators for evidence of the alleged crimes, despite the absence of direct evidence linking the perpetrators’ alleged criminal conduct to their homes”.

In one case, supra, the Court found probable cause to search the residence of a co-defendant, who was arrested on probable cause, despite a lack of a nexus between the criminal activity that led to the co-defendants arrest and the co-defendants residence. The Court found it reasonable to deduce that evidence of the crimes upon which the co-defendant was arrested would also be found in his home.

Similarly, in a 1986 case decision, the Court of Appeals found probable cause existed to permit the search of the dormitory room of the defendant, who was suspected of robbing a bank, because it was reasonable for the police to deduce that the items used by the bank robber would be found in his living quarters. Similarly, in a 1999 case decision, the Second Department found there was probable cause to search the home of a defendant where the search warrant application sufficiently identified him as an armed robber, for evidence of the robbery despite the absence of evidence linking defendant’s house to the robbery. The court concluded that given defendant’s identification as one of the robbery participants, “it was entirely reasonable to deduce’ that evidence of the robbery would be found at defendant’s home”.

Accordingly, the search warrant issued by New York County Criminal Court on July 7, 2010 was based upon the requisite probable cause necessary to search 105 West 128th Street, apartment 4, for evidence related to Harris’s involvement in the criminal sale and possession of crack cocaine and defendant’s motion to controvert the search warrant and to suppress the evidence seized pursuant to it is denied.

In a 1975 case decision, the court stated that “the critical element, in reviewing the validity of a search warrant to determine whether it was supported by probable cause, was whether facts and circumstances made known to the issuing Magistrate at the time the warrant application was determined were sufficient to establish that nucleic ingredient of probable cause.” Probable cause for the issuance of a search warrant exists where there is “information sufficient to support a reasonable belief” that an offense has been or is being committed in a certain place, or that evidence of a crime may be found in a certain place. In evaluating the validity of a search warrant, a court must be mindful that “search warrants, which are composed not by lawyers but by police officers acting under stress, are not to be read hypertechnically and may be accorded all reasonable inferences.”. For that reason, a search warrant must be analyzed in light of common sense and everyday experience.

Moreover, a presumption of validity attaches to a warrant, which has already been tested by the issuing Judge, thus simplifying the suppression court’s task to determining whether the issuing Judge could reasonably have concluded that probable cause existed. Reflecting this preference for the warrant process, the standard for review of an issuing magistrate’s probable cause determination has been that so long as the magistrate had a “substantial basis for concluding” that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. As the New York Court of Appeals has stated, “Where a search warrant has been secured, the bona fides of the police will be presumed and the subsequent search upheld in a marginal or doubtful case”.

Therefore, paying “great deference” to the issuing magistrate’s determination of probable cause and finding a “substantial basis” for his determination, defendant’s motion for a hearing to controvert the search warrant is denied. Nor do the other assertions by defendant provide a legal basis for controverting the search warrants or suppressing evidence. Accordingly, defendant’s motion to controvert the search warrant is denied in all respects.

The defendant also seeks to reargue this Court’s Order which granted the People’s ex-parte motion for a protective order pertaining to Paragraphs 6 and 7 of the search warrant. The People oppose this motion. The People argue that the reasons for the protective order still exist with respect to the identity of the undercover police officer and the information provided by that officer. Specifically, the People argue that there is a substantial risk of intimidation and/or harm to the undercover officer that outweighs the usefulness of discovery at this stage of the proceedings. As the People note, the affidavit filed in support of the search warrant references the date and surrounding circumstances where the undercover police officer purchased cocaine from a separately charged defendant in the vicinity of Lenox Avenue where the undercover officer police is still working as an undercover officer and has open investigations.

Accordingly, the court held that the motion to reargue the granting of the Protective Order is denied at this time and the Protective Order will remain in effect.

Probable cause to search a particular place exists not only where there is sufficient information that an offense has been or is being committed at that place, but also where there is sufficient evidence to support a reasonable belief that evidence of a crime may be found in a certain place. To clarify the meaning scope of probable cause, seek the legal advice of a New York Criminal Attorney and/or New York Drug Attorney. Call us at Stephen Bilkis and Associates for free legal advice.

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