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 PC is New York criminal defense firm founded by lawyers who previously served as prosecutors in the Manhattan District Attorney’s Office.