In New York, a valid search warrant signed by a judge can give law enforcement
officers the right to search your home or place of business (among other
places) for evidence of criminal conduct. Sometimes search warrants are
obtained after long criminal investigations, and sometimes they are applied
for quickly in emergency cases in which law enforcement fears that evidence
will be destroyed.
Most commonly, search warrants obtained by officers from the NYPD are sought
for firearms or narcotics (though the list of possible reasons for a search
warrant is endless). With respect to narcotics-related search warrants,
police officers will typically not apply for a warrant until they can
affirm to a judge that some police officer or police informant has either
seen or purchased narcotics inside the location, and done so recently.
(When information about possible contraband in a location is not recent,
it is considered "stale" and insufficient to justify a search warrant.)
One interesting question that usually arises after search warrants have
been executed and contraband discovered is whether the right people have
been charged with possessing the illegal items. New York state law provides
a "firearm presumption" as well as a "drug presumption"
in these contexts. Penal Law chapter 220 provides the following rebuttable
presumption about the illegal possession of drugs:
The presence of a narcotic drug, narcotic preparation, marihuana or phencyclidine
in open view in a room, other than a public place, under circumstances
evincing an intent to unlawfully mix, compound, package or otherwise prepare
for sale such controlled substance is presumptive evidence of knowing
possession thereof by each and every person in close proximity to such
controlled substance at the time such controlled substance was found;
except that such presumption does not apply to any such persons if (a)
one of them, having obtained such controlled substance and not being under
duress, is authorized to possess it and such controlled substance is in
the same container as when he received possession thereof, or (b) one
of them has such controlled substance upon his person. (Penal Law Section 220.25).
Similarly, Penal Law chapter 265 provides the following rebuttable presumption
about the possession of a firearm:
The presence in any room, dwelling, structure or vehicle of any machine-gun
is presumptive evidence of its unlawful possession by all persons occupying
the place where such machine-gun is found. (Penal Law Section 265.15).
Essentially, these presumptions mean that the police will definitely arrest
everyone they find inside the same room as contraband during the execution
of a search warrant. However, they are likely to arrest everyone in the
home (not just the room), as well as those people living in the home but
not in the home at the time of the warrant, based upon a theory of "constructive
possession". A person is not necessarily guilty simply because they
may have been in the room or in the home at the time that illegal contraband
was discovered in the home, as these presumptions are rebuttable with
evidence that the accused was either unaware of the contraband or did
not exercise any dominion or control over the items.
Search warrants can also be executed to find clothing that a suspect was
reported as having worn whilst committing a crime, illegal computer data
on an electronic device (such as
indecent materials or child pornography or stolen personal identifying information or trade secrets) or stolen
property, among many other things.
If you or a loved one have been arrested following a search warrant of
your home or place of business, it's very important that you immediately
contact an experienced criminal defense attorney at Galluzzo & Arnone
LLP. Their team of three former prosecutors has been involved in writing
and applying for countless search warrants, and is very familiar with
the police procedures usually employed in anticipation of applying for
one. Most importantly, though, they have experience challenging the bases
for the issuance of search warrants as well as defending individuals wrongfully
accused of crimes for simply being in the wrong place at the wrong time.