Sunday, July 23, 2017

by Jill Paperno,
Author of "Representing the Accused: A Practical Guide to Criminal Defense"

Often prosecutors do not provide us with search warrants and related documents in our initial discovery packets.  Although there is no particular statute that directly states that we are entitled to search warrants and affidavits, CPL 240.20 does have a catchall provision that should be cited, and there is case law support.  And we should always cite the New York and United States Constitutions' right to be free from unreasonable search and seizure - if we can't challenge the search, how is a court ever to determine whether it was unreasonable?   

CPL 240.20(1)(h) requires the prosecutor disclose "Anything required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States."  Since the search issue is one of constitutional dimension, you should cite this statute. 

Some of the cases that support our right to discovery of search warrants include People v. Velez 147 Misc. 2d 865 (Sup. Ct., NY County, 1990), which specifically addressed the issue, reviewed the case law up to that point, and considered  the prosecution's effort to obtain a protective order.  The Judge cited People v. McCall, 17 NY2d 152, in which the Court of Appeals stated, "A refusal to permit a defendant to examine the facts upon which his privacy has been broken into amounts to saying that any search all right if a Judge has seen fit to sign it."   

In People v. Chahine, 150 Misc. 2d 242, (Crim. Ct, NY County, 1991) the Judge stated, "At the outset it is noted that search warrants and search warrant applications are discoverable under CPL 240.20(1)(h).  (See People v. Brown, 104 Misc. 2d 157, 163)."  Notably, the E.D.N.Y. quoted this language from Chahine in a footnote just this year in Whitehead v. Haggett,2017 U.S. Dist. LEXIS 93629, stating, "Contrary to ADA Byrne's statement, "search warrants and search warrant applications are discoverable under CPL § 240.20(1)(h)." People v. Chahine, 150 Misc. 2d 242, 243  (N.Y. County Crim. Ct. 1991). 

In People v. Nottage, the New York City trial court stated, "Search warrant applications are not exempted from discovery on the ground that disclosure would tend to reveal the identity of confidential informants, but reasonable protective measures may be ordered by the court in order to assure the physical safety of the informer. People v. Velez, 147 Misc 2d 865,  (New York County 1990)."  People v. Nottage, 11 Misc. 3d 1052(A), 1052A,  2006  (N.Y. City Crim. Ct. Feb. 9, 2006)

Prosecutors may seek protective orders claiming individuals may be endangered by disclosure of the search warrant application, affidavits, etc.  See People v. Castillo, in which the Court of Appeals recognized that a sufficient showing must be made by the prosecution, and sufficient procedures engaged in by the trial court, to ensure a defendant's due process rights are protected when the search warrant affidavit is denied.  The Court implicitly recognizes that a search warrant is not automatically excluded from discovery. 

Our conclusion that a defendant's opportunity to participate in suppression proceedings must yield in some cases to the need for confidentiality is not intended to suggest that courts may routinely grant the People's application to seal the record. The procedures  sanctioned here are reserved for those cases in which the reliability of the evidence of probable cause and the necessity for confidentiality are clearly demonstrated. In this case, however, both the issuing Judge and the suppression court questioned the police officer affiant and the informant under oath and concluded that there was probable cause for the search, that the police officer's affidavit was truthful and that there was an overriding need for confidentiality. Addressing the additional allegations of fact contained in defense counsel's affidavit in support of the motion to suppress, the court found, after sufficient inquiry and on sufficient evidence, that there was no taint. We conclude, therefore, as did a unanimous Appellate Division, that there is support in the record for the suppression court's findings and that under the circumstances the procedures it followed did not offend due process. 
People v. Castillo, 80 N.Y.2d 578, 587, (N.Y. Dec. 22, 1992) 

You should include in motion papers a request for the warrant, affidavits in support of the warrant, the return, and any other documents that may have been created in relation to the warrant application and issuance.  If the prosecutor objects and claims the need for a protective order, If the Court grants the protective order, request a redacted copy.  If that is denied, press to ensure the Court engages in at least the process described in Castillo: 

An examination of the record establishes that the court diligently protected defendant's rights in the case before us. In determining whether to disclose the informer's identity or statements, it followed the four-step procedure set forth in People v Seychel (136 Misc 2d 310). In the first step the court reviewed the search warrant to determine whether it alleged probable cause in this case by application of the Aguilar-Spinelli test (see, People v Griminger, 71 NY2d 635), or whether it was perjurious on its face. If the supporting affidavit had appeared perjurious on its face, the court would have conducted an in camera hearing to determine if the affidavit contained perjury and if it did, would have given the People the choice of turning over the affidavit for a hearing or discontinuing the prosecution (see, Franks v Delaware, 438 US 154People v Alfinito, 16 NY2d 181). Finding neither, the court next proceeded to conduct an in camera, ex parte inquiry of the informant and examined the People's exhibits to determine whether the informant's  life and/or future investigations would be jeopardized by disclosure. Confidentiality was deemed necessary, and the court then proceeded to try and redact portions of the affidavit to conceal the informant's identity while giving the defendant a description of the information resulting in his arrest. It found this impossible and therefore ordered the People to produce the informant for a Darden-type inquiry in which it could evaluate credibility (see, People v Darden, 34 NY2d 177,  The court made a similar inquiry concerning the April 5 entry into the apartment and found the search of April 6 untainted by the prior police activity on April 5.
Based upon these hearings, the suppression court denied defendant's motion for discovery and granted the People's request for a protective order prohibiting disclosure. We conclude it properly exercised its discretion when it did so.
Keep in mind, if you have a search warrant case, you must try to get all of the documents and scrutinize the warrants for what is missing.  You may still be looking for hearings.  Consider whether items were seized that were not covered by the warrant, items were seized from locations not covered, items were seized from the person of your client when the warrant addressed a location, and whether, if the information supporting the warrant did not provide a sufficient basis for its issuance, there was a sufficient legal basis for search otherwise.  And if the Court declines to provide you with the entire search warrant and affidavits, make sure you request that the court mark and make part of the record (as a sealed document) the original warrant, affidavit and other associated documents.