New York Criminal Lawyer Blog

There is little doubt that if your home is the target of a search warrant in New York, you, as the homeowner or tenant who resides there, would have the standing or ability to challenge a search warrant executed at that premises. However, one factor that may change the dynamic of this equation is where you (again, as the homeowner who resides there or tenant who lives there) are prevented from temporarily entering or living in the premises due to an order of protection or restraining order. The obvious question then becomes, what rights or standing, if any, do you have to challenge a search of that premises pursuant to a search warrant where there is an existing order of protection keeping your from that location?

Regardless of the fruits of that search, i.e, whether the police find drugs, guns, etc, decisions have not been favorable to those who are barred from a particular premises even if they are the owners. In fact, in a recent decision from October 20, 2009 in Kings County (Brooklyn) Supreme Court, a judge found that "the defendant has no standing to challenge the validity of the search warrant since the court issued a full Order of Protection for the victim and her son." People v. Dorcinvil

This decision certainly is not the first to come down in this manner. In People v. Robinson 205 A.D.2d 836 (Third Dept. 1994), the Appellate Division found that the search of the defendant's home where he was barred due to an order of protection was valid and legal. The court further noted that the defendant "had neither a legitimate expectation of privacy therein nor standing to challenge the police entry into the house" because of that order of protection.

While every case requires an analysis to ascertain whether a defendant has standing and an expectation of privacy (part of the foundation of any challenge to a search warrant), it is clear that an order of protection may become an impediment.

Crotty Saland, LLP is New York criminal defense firm founded by lawyers who previously served as prosecutors in the Manhattan District Attorney's Office.

Your car was stopped in Manhattan after the police accused you of DWI. The police pulled you over in Brooklyn for Forgery or Criminal Possession of a Forged Instrument because you had a fake registration or license. Maybe you were stopped in the Yonkers and charged with Criminal Possession of a Weapon because the police claim they thought you had a gun. Regardless of the reason, the police now want to search your car.

The police can search your car in varying degrees depending on the circumstances. Without going into details as to each of those circumstances and degrees, a search can be made if there is an exigent (emergency) circumstance, the police have a search warrant, the driver consents, or there is contraband such as drugs or a gun in plain view. Even assuming one of these reasons are applicable, a search may be limited in its scope such as to you reachable area.

While each of the above searches are worthy of their own analysis, the one way the police search a car that will be discussed in more detail is by bring the vehicle back to the precinct and conducting an Inventory Search. These searches are not searches based on probable cause, a search warrant or an emergency situation. Instead, the argument or basis for these searches are that the police need to safe guard the vehicle for some reason and account for all property in the vehicle. In other words, the police are not seeking contraband, but are protecting themselves and the owner from any future problems relating to theft, damage, and security of property.

The unfortunate reality is that these Inventory Searches are often merely a means to conduct a full blow search of a vehicle for contraband where there is no exigent circumstance or search warrant. Therefore, in order to make sure your rights are not violated and that illegally obtained evidence is not used against you, it is in your best interest to retain an experienced criminal defense attorney.

In order for the courts to uphold an Inventory Search the following must have occurred:

1) The car must have been stopped lawfully.

2) The objective or purpose of the Inventory Search must be to make a list of the items in the car and not be an excuse or attempt to find contraband.

3) There must be established and written police procedures that were followed. According to People v. Galek, those procedures must be "rationally designed to meet the objectives that justify the search in the first place and limit the discretion of the officer in the field."

4) An actual inventory must be made of the items recovered (after all, the police are claiming their search was an Inventory Search!).

In the event that your vehicle was searched and you believe it was done in this manner, contact a skilled criminal defense attorney who can fight to protect your rights and seek to suppress unlawfully obtained evidence.