Pubdate: Fri, 2 Apr 2010
Source: New York Times (NY)
Page: A18
Copyright: 2010 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Al Baker

STATE COURT LIMITS SCOPE OF WARRANTS FOR SEARCHES

New York's highest court ruled on Thursday that police departments
cannot use general warrants that apply to a specific location to
search every person they find there unless there is probable cause to
believe that a particular person is involved in criminal activity.

While the decision, which was unanimous, arose from a case in
Syracuse, the ruling could have broad implications because
"all-persons-present" warrants are so often used by the police.

Asked about the decision, Paul J. Browne, the New York Police
Department's chief spokesman, said, "We're waiting for the department
lawyers to review it, to see what the implications may be for the
Police Department."

In its 7-to-0 ruling, the New York Court of Appeals said that an
all-persons-present warrant used by the police in Syracuse during a
drug raid at an apartment in 2006 did not give them enough evidence to
strip-search a man who was in the home. The court ordered the
dismissal of drug possession charges that the man, Robert Mothersell,
had been facing.

The court also said that even if the warrant did give the police
reason to search Mr. Mothersell, a strip-search was so intrusive that
it violated his rights under the federal and state constitutions. The
police said they found a bag of cocaine between Mr. Mothersell's buttocks.

The decision could be appealed to the United States Supreme Court,
which could rule on the federal issues, but not on the "state
constitutional protections," said Gary Spencer, a spokesman for the
Court of the Appeals.

James P. Maxwell, the chief assistant district attorney for Onondaga
County, which includes Syracuse, said an appeal was unlikely because
the state goes further than the federal government in offering
protections against such searches.

The ruling is a "heartening development for privacy," said Richard
Emery, a Manhattan lawyer who recently won a settlement of a lawsuit
against New York City stemming from the illegal strip-searches of
thousands of nonviolent prisoners at the Rikers Island jail.

"This is a slap to wake up police departments," Mr. Emery
continued.

"The main thrust of this case is very clear," he added, "and that is
the court is saying to law enforcement: 'Hey, you have gotten sloppy.
You can't just put in boilerplate language on a warrant; you need
clear and objective facts to search any individual.' "

The case started in February 2006, when Syracuse police officers
raided an apartment on Isabella Street using a warrant obtained after
confidential police informants bought cocaine at the apartment on two
separate occasions within the previous three weeks. The first buy was
from a man identified only as "Tom," while the second was from an
unknown man.

Officers found several people, including Mr. Mothersell, in the
apartment.

The ruling, written by the chief judge, Jonathan Lippman, noted that
an officer involved in the case admitted that there were no grounds to
arrest Mr. Mothersell until he was found to have been holding drugs
and that the strip-search was permitted by the warrant.

"He also stated that he had taken part in the execution of hundreds of
all-person-present warrants and that the persons were routinely
strip-searched," Mr. Lippman wrote. "A search warrant exists and is
required not simply to permit, but to circumscribe, police
intrusions."

Ameer Benno, a lawyer for Mr. Mothersell, did not return a call on
Thursday seeking comment.

Steven Banks, the chief lawyer for the Legal Aid Society in New York
City, said, "All too often, warrants are issued and executed based
upon a general claim that unlawful conduct is afoot." The decision, he
said, is "written with such clarity that it will stop that pernicious
practice."

But Mr. Maxwell noted that the ruling "did not say that the statute
that authorizes all-persons-present warrants was unconstitutional."
The ruling, he added, "gives us some guidance as to what the courts
should be looking for when police apply for these warrants."
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