While The Fourth Amendment to the Federal Constitution as made applicable to the states by the Fourteenth Amendment, and Article I, Section 12 of our New York State Constitution requires that warrants “particularly describ[e] . . . the persons . . . to be seized,” New York States CPL 690.15 (2) states that “[a] search warrant which directs a search of a designated or described place, premises or vehicle, may also direct a search of any person present thereat or therein[.]“

In People v Nieves, 36 NY2d 396 (1975), the Court reasoned that there could be circumstances in which a showing of probable cause to search a place would also afford probable cause to infer that everyone present at the place had upon their persons the items specified in the warrant, and thus, that [CPL 690.15] was capable of application without constitutional offense.  However, the Court described the “severely limited” circumstances which would justify such a warrant, explaining that “[t]he facts made known to the Magistrate and the reasonable inferences to which they give rise, must create a substantial probability that the authorized invasions of privacy will be justified by discovery of the items sought from all persons present when the warrant is executed. If this probability is not present, then each person subject to search must be identified in the warrant and supporting papers by name or sufficient personal description”

But in Mothersell the Court found that no such showing had been made, in the warrant application citing “boilerplate allegations” and a statement by the deponent that, based on her past experience, it is “not uncommon that persons found in the subject residence could reasonably be expected to conceal cocaine.”

Turning to the general concept of an all-persons-present warrant, the Court did not condemn them entirely.  While the Court did note the “utility” of such a warrant, it cautioned that such utility “may not permissibly arise, as it apparently has in practice, from any relaxation of the requirement of probable cause as to each person targeted for
search or seizure.”

After being tipped off by a confidential informant and obtaining a warrant to track the location of Navas’s cell phone, agents discovered the phone approaching the Bronx and set up surveillance at the Hunts Point Terminal Market. At that point, Navas was seen unloading a tractor trailer with another defendant. The two then drove the tractor trailer to a private warehouse, where they detached the trailer and drove away, leaving the trailer locked inside. They then proceeded to a McDonald’s where they met with several other individuals and were all arrested.

Agents transported everyone back to the warehouse, and, during a pat-down of one of the defendants, found a garage door opener. While that individual claimed the opener was for his home, one of the agents testified that it opened the door to the warehouse when the agent “inadvertently” touched it.

When agents entered the warehouse, they “examined the top of the trailer and observed physical indicia of a secret compartment. The agents then “ripped off the sheet metal roof” of the trailer, discovered 230 kilograms of cocaine, and promptly seized the contraband.

The district court held that the automobile exception to the Fourth Amendment’s warrant requirement,“generally relates to some type of vehicle that is capable of moving on its own,” and “[a] stationary trailer, detached from a tractor cab with its legs dropped, and stored inside a warehouse, is not a vehicle that is readily mobile or in use for transportation.” As such, the district court granted defendants’ suppression motion.

The Second Circuit began its analysis by recognizing that the automobile exception permits law enforcement to conduct a warrantless search of a readily mobile vehicle where there is probable cause to believe that the vehicle contains contraband. See, Pennsylvania v. Labron, 518 U.S. 938, 940 (1996). That exception is based on two rationales: the inherent mobility of a vehicle and the diminished expectation of privacy in their contents. See, e.g., California v. Carney, 471 U.S. 386, 391 (1985); see also United States v. Howard, 489 F.3d 484, 492 (2d Cir. 2007).

The Second Circuit concluded that the trailer was “readily mobile” because “[w]hether a vehicle is ‘readily mobile’ within the meaning of the automobile exception has more to do with the inherent mobility of the vehicle than with the potential for the vehicle to be moved from the jurisdiction, thereby precluding a search.” Citing Howard, 489 F.3d at 493. The Court also found the reduced-privacy rationale to apply “forcefully,” in part because of the myriad state and federal regulations on such trailers.

This punishment does nothing but minimize the seriousness of the conduct here. The Officer stole legally privileged documents from counsel’s for no good reason. I hope the people in Arizona voice their outrage.