The last 50 years of criminal law have seen the unprecedented decline of protections under the search and seizure provision of the United States Constitution’s Fourth Amendment. In case after case, the U.S. Supreme Court has eroded your rights to be free from random search and seizure.

One of the areas of search and seizure law that continues to decline is that of the premises of your home being searched. Under the law, the police must have probable cause to search your home and property. A warrant based on probable cause must “describe with particularity the areas to be searched.”

Although both New York’s constitution and the federal constitution protect against unreasonable search and seizure, frequently, New York (like other states) will adopt federal case law standards when analyzing whether probable cause is sufficient in a given circumstance.

However, our Court of Appeals decided enough was enough. It signaled that it would continue to give some level of protection against search and seizure to residents in their homes – by going its own way in a recent case.

Police Investigation

In August of 2015, the police were conducting a narcotics investigation of Tyrone Gordon. They observed Mr. Gordon outside his residence for several weeks. Then they applied for a search warrant, in which they alleged the following:

• A car would arrive on the street outside Mr. Gordon’s residence. Then Mr. Gordon or an associate would come out of the house, approach the buyer, and return to the house a few minutes later.
• On two separate occasions, undercover detectives were in the car and bought heroin from the accused.
• On another occasion, a confidential informant was in the car and purchased heroin from Mr. Gordon.
• Several other times, the police witnessed similar conduct that they believe culminated in a heroin sale.

The search warrant requested to search “the person of Tyrone Gordon . . . and the entire premises” from which Mr. Gordon was seen leaving and returning to during the alleged drug deals. None of the information prepared for the warrant mentioned anything about vehicles.

The warrant was issued and then executed in early September 2015. During the search, the police found a handgun in the possession of a third party. No other contraband was found – either on Mr. Gordon’s person or in the house. Nevertheless, the officers searched two parked vehicles on site. One was a Nissan, registered to Mr. Gordon’s cousin, that was parked in the driveway. In it, police found heroin, cocaine, and drug paraphernalia. The second vehicle was unregistered and parked in back of the house behind two fences. A loaded handgun was found in this vehicle.

New York Rejects a Key Component of the Federal Probable Cause Standard

The police arrested Mr. Gordon and he was arraigned on nine counts. Five of them were primarily based on the physical evidence seized from the two vehicles.

Mr. Gordon filed a motion to suppress that evidence, based on the argument that while law enforcement may have had probable cause to search his person and residence, they did not have the particularized probable cause to search the vehicles.

Mr. Gordon, based on New York precedent, further argued that vehicles parked outside the home weren’t part of the premises of the residence. The prosecution, based on arguably contrary case law from the federal courts, insisted the vehicles were. The issue made it to the New York Court of Appeals.

The Court of Appeals declined to accept the reasoning of the standard set by the federal courts, noting that such a standard violated the “touchstone of the constitutional protection for privacy” under the state’s constitution.

In doing so, it held firm against the nationwide judicial trend of continuing to erode the protections against unreasonable search and seizure.

Don’t Go it Alone

If you or a loved one are on the receiving end of a search warrant, and subsequently get arrested, don’t despair. It’s possible the search warrant was completely or partially invalid, and that could make a huge difference in your future.

So, call an experienced lawyer to represent you. Contact Arkady Bukh, a nationally recognized Brooklyn criminal defense attorney, and get the help you need today.