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Illegal Search Warrant

If you're like most people, you probably have some basic knowledge about search warrants, and the need for police to obtain one before searching your home or property. That's about as far as most people care to know, but it's very important to understand your rights concerning search warrants in New York. For example, a search warrant allows law enforcement officers to search a specific place or area. The warrant should specify the time frame in which the search is allowed, along with specific items that may be seized. Hence, if the police suspect you are selling drugs out of your apartment, a typical warrant issued by a judge would give police the right to search your apartment and seize any drugs and/or paraphernalia found there.

Prior to issuing a warrant, the police must present a written search warrant affidavit to the judge. The vast majority of search warrants in New York are for drugs and firearms, although other items believed to be linked to the offense can be listed as well. No matter what is being searched, police must be able to explain probable cause in the search warrant affidavit. Simply put, probable cause is a reasonable basis for believing that a crime may have occurred, or is occurring. In some cases, most commonly traffic stops, probable cause can justify a warrantless search and seizure. However, such cases typically involve exigent circumstances, such as the officer seeing a gun in plain view on the back seat of your car.

So, the next question is, how is probable cause established for a search warrant? One common method is the usage of police informants, who notify the police of seeing contraband in a specific place. An informant may remain anonymous (many do), but in that case, the information must be corroborated by another source, such as a police officer. Until this is done, police typically don't apply for a warrant since it would be more or less useless to do so. In essence, a warrant affadavit cannot be based on mere rumors, suspicion on hearsay.

In many cases, individuals who aren't aware of their rights may allow police to search areas that are not specified on the warrant. Even if they're allowed to search your house, your car sitting in the driveway is another matter. You cell phone, even if it's sitting right on the coffee table in plain view of law enforcement officers, cannot be searched without a warrant specifying cell phones and other personal electronic devices. That's been decided by the U.S. Supreme Court, by the way, in a unanimous 2014 ruling that recognized the need to extend the right to privacy over the type of information that we've come to store on our mobile devices.

Another point of confusion for many individuals is that if a police officer does not have a warrant, you can outright refuse to be searched. It's the same principle that applies when an officer starts asking you questions, but you're not being placed under arrest. In that case, you can refuse to talk to them, or only talk to them in the presence of your attorney. Thus, if the police ask if they can search your home without presenting a warrant, you can simply say “No”. Of course, you can allow them to search, but just be aware that you're opening yourself up to being misconstrued based on whatever the police may find. Even if the things they find are not yours - perhaps a joint left behind by a friend - you could still be charged and arrested, because it's in your home. Contraband such as drugs, by the way, can be confiscated during a search of any kind, even if the search is later found be to illegal. 

There's a lot more that can be said about the legality of search warrants, but it's important to understand that there are very strict laws governing the issuance of warrants. You also have inherent rights when it comes to having your property searched. If you believe you've been the victim of an illegal search warrant, speak to an experienced New York criminal attorney right away to determine your best course of action.