S00011 Summary:

BILL NOS00011
 
SAME ASSAME AS A02683
 
SPONSORSANDERS
 
COSPNSRBENJAMIN, JACKSON, KRUEGER, SEPULVEDA
 
MLTSPNSR
 
Amd CP L, generally; add 837-w, Exec L; amd 212, Judy L
 
Relates to the execution of a warrant of arrest; authorizes the commissioner of the division of criminal justice services to establish a system to record and monitor the issuance and execution of search warrants; and authorizes the chief administrator of the court system to establish educational programs for judicial personnel on the law of searches, arrests and seizures.
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S00011 Actions:

BILL NOS00011
 
01/06/2021REFERRED TO CODES
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S00011 Committee Votes:

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S00011 Floor Votes:

There are no votes for this bill in this legislative session.
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S00011 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           11
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                       (Prefiled)
 
                                     January 6, 2021
                                       ___________
 
        Introduced by Sens. SANDERS, BENJAMIN -- read twice and ordered printed,
          and when printed to be committed to the Committee on Codes
 
        AN ACT to amend the criminal procedure law, in relation to the execution
          of  a  warrant  of  arrest; to amend the executive law, in relation to
          authorizing the commissioner  of  the  division  of  criminal  justice
          services  to establish a system to record and monitor the issuance and
          execution of search warrants; and  to  amend  the  judiciary  law,  in
          relation  to  authorizing  the chief administrator to establish educa-
          tional programs for judicial personnel on the law of searches, arrests
          and seizures
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.    The opening paragraph of section 690.10 of the criminal
     2  procedure law is amended to read as follows:
     3    Personal property is subject to seizure pursuant to a  search  warrant
     4  if  such seizure is made in connection with a lawful arrest and there is
     5  reasonable cause to believe that it:
     6    § 2. Subdivision 2 of section 690.30 of the criminal procedure law  is
     7  amended to read as follows:
     8    2.    A  search  warrant may be executed on any day of the week.  [It]
     9  Except as otherwise provided in this subdivision, a search  warrant  may
    10  be  executed  only  between the hours of 6:00 A.M. and 9:00 P.M., unless
    11  the warrant expressly authorizes execution thereof at any  time  of  the
    12  day or night, as provided in subdivision [five] six of section 690.45 of
    13  this  article.    Notwithstanding  paragraph  (a) of subdivision four of
    14  section 690.35 of this article, a search warrant based in  whole  or  in
    15  part  on  the  grounds set forth in paragraph (b) of subdivision four of
    16  section 690.35 of this article may be executed only between the hours of
    17  9:00 A.M. and 6:00 P.M. unless there is reasonable cause to believe that
    18  it cannot be executed between those hours because, in  the  case  of  an
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02810-01-1

        S. 11                               2
 
     1  application for a search warrant as defined in paragraph (b) of subdivi-
     2  sion  two of section 690.05 of this article, the person sought is likely
     3  to flee or commit another crime, or  may  endanger  the  safety  of  the
     4  executing  police  officers or another person if not seized forthwith or
     5  between the hours of 6:00 P.M. and 9:00 A.M., in which event the request
     6  must contain facts to support such application, and the court must  make
     7  a  finding  in  writing  or  orally on the record or in writing upon the
     8  application itself setting forth the factual basis for the  issuance  of
     9  the warrant pursuant to this subdivision.
    10    §  3.  Subdivision  1  and  paragraph  (b) of subdivision 4 of section
    11  690.35 of the criminal procedure law, subdivision 1 as amended by  chap-
    12  ter  679  of  the  laws  of  1982, and paragraph (b) of subdivision 4 as
    13  amended by chapter 424 of the laws of  1998,  are  amended  to  read  as
    14  follows:
    15    1.  An  application for a search warrant may be in writing or oral. If
    16  in writing, it must be made, subscribed and sworn to by a public servant
    17  specified in subdivision one of section 690.05  of  this  article.    If
    18  oral, it must be made by such a public servant and sworn to and recorded
    19  in  the  manner provided in section 690.36 of this article.  An applica-
    20  tion for a search warrant based either in whole or in part on  paragraph
    21  (b) of subdivision four of this section, must be made to a court between
    22  the  hours  of  6:00  A.M. and 9:00 P.M. unless circumstances reasonably
    23  require that such application be made at another time,  in  which  event
    24  such circumstances shall be stated in the application for the warrant.
    25    (b)  A  request that the search warrant authorize the executing police
    26  officer to enter premises to be searched without giving  notice  of  his
    27  authority and purpose, upon the ground that there is reasonable cause to
    28  believe  that  (i)  [the  property  sought  may  be  easily  and quickly
    29  destroyed or disposed of, or (ii)] the giving of such notice may  endan-
    30  ger  the  life  or safety of the executing officer or another person, or
    31  [(iii)] (ii) in the case of an  application  for  a  search  warrant  as
    32  defined  in  paragraph  (b) of subdivision two of section 690.05 for the
    33  purpose of searching for and arresting a person who is the subject of  a
    34  warrant  for  a  felony,  the  person sought is likely to commit another
    35  felony, or may endanger the life or safety of the executing  officer  or
    36  another person.  In order for a request that a search warrant authorizes
    37  the  executing  police  officer to enter premises to be searched without
    38  giving notice of his authority and  purpose  be  granted,  such  request
    39  shall  show  that extreme circumstances are involved, which for purposes
    40  of this article are  the  investigation  and/or  pursuing  of  suspected
    41  offenses  or  offenders that involve murder, an active-shooter, hostage-
    42  taking, kidnapping, terrorism, human trafficking or  where  a  situation
    43  involves an individual who has barricaded himself in a specific area and
    44  has a violent history.
    45    §  4.    Section  690.35  of  the criminal procedure law is amended by
    46  adding a new subdivision 5 to read as follows:
    47    5. When making an application based either in  whole  or  in  part  on
    48  paragraph  (b)  of  subdivision four of this section, in addition to the
    49  other requirements for an application for a search warrant,  the  appli-
    50  cant  must  ascertain,  to  the  extent reasonably possible, whether any
    51  parties other than any subject of the search warrant  shall  be  present
    52  when the warrant is executed, and if so, the application shall include a
    53  list  containing  the  estimated  age, gender, and physical condition of
    54  each additional occupant, any known individuals  with  cognitive  and/or
    55  physical disabilities, and any pets known or likely to be present at the
    56  premises  to  be searched, and reasonable alternatives to executing such

        S. 11                               3
 
     1  warrant in the presence of such individuals.  The results of such inves-
     2  tigation shall be included in  the  application  and  conform  with  the
     3  requirements of paragraph (c) of subdivision three of this section.
     4    §  5. Subdivision 1 of section 690.40 of the criminal procedure law is
     5  amended to read as follows:
     6    1. (a) In determining an application for a search  warrant  the  court
     7  may  examine, under oath, any person whom it believes may possess perti-
     8  nent information.   Any such examination  must  be  either  recorded  or
     9  summarized on the record by the court.
    10    (b)  In  determining an application for a search warrant based, either
    11  in whole or in part, upon the grounds  described  in  paragraph  (b)  of
    12  subdivision  four  of  section  690.35  of this article, the court shall
    13  state, with specificity, in writing or orally on the record or in  writ-
    14  ing  upon  the application for the warrant itself, the factual basis for
    15  the issuance of the warrant pursuant to such paragraph.   Such  determi-
    16  nation  shall  include  evidence  stating why a warrant that requires an
    17  officer to knock and announce his or her presence shall not be issued.
    18    § 6. Subdivision 6 of section 690.45 of the criminal procedure law, as
    19  renumbered by chapter 679 of the laws of 1982,  is  amended  and  a  new
    20  subdivision 8-a is added to read as follows:
    21    6.  A direction that the warrant be executed between the hours of 6:00
    22  A.M.  and 9:00 P.M., or, where the court has specially so determined, an
    23  authorization for execution thereof at any time  of  the  day  or  night
    24  unless  the  warrant  has been obtained based on an application based in
    25  whole or in part on paragraph (b) of subdivision four of section  690.35
    26  of  this  article,  in  which event the provisions of subdivision two of
    27  section 690.30 of this article relating to the time for  executing  such
    28  warrants shall apply; and
    29    8-a.  An intended course of action if no response is received from the
    30  intended suspect of the warrant at the time of execution  within  thirty
    31  seconds; and
    32    § 7. Section 690.50 of the criminal procedure law is amended by adding
    33  five new subdivisions 7, 8, 9, 10 and 11 to read as follows:
    34    7.  Upon  seizing  property or arresting a person pursuant to a search
    35  warrant issued under this article, in addition to  the  requirements  of
    36  subdivisions five and six of this section, the police officer shall file
    37  a report with the court that issued such warrant in a form prescribed by
    38  the  division  of  criminal  justice  services pursuant to section eight
    39  hundred thirty-seven-w of the executive law,  specifying  the  following
    40  information:
    41    (a)  if  applicable,  the subparagraph of paragraph (b) of subdivision
    42  four of section 690.35 of this  article  upon  which  such  warrant  was
    43  based;
    44    (b) the officer and agency which obtained the warrant;
    45    (c) the prosecutor and prosecuting office which drafted the warrant;
    46    (d) whether the facts contained in the supporting affidavit were based
    47  upon  a  confidential informant, or an identified citizen informant or a
    48  police officer, none of whom must be named;
    49    (e) the date and time the search warrant was applied for and the  date
    50  and time the search warrant was signed;
    51    (f) the date and time the search warrant was executed;
    52    (g) the judge who signed and the court that issued the warrant;
    53    (h)  whether the application for the warrant issued had been submitted
    54  to another judge other than the judge who issued the warrant  for  which
    55  the report is submitted and if so, when such application or applications
    56  were made and the result of each such application;

        S. 11                               4
 
     1    (i)  the  age, sex and race of the individual to whom such warrant was
     2  directed;
     3    (j)  whether physical force or deadly force was used in executing such
     4  warrant;
     5    (k) if physical or deadly force was used:
     6    (i) whether any individual was injured or killed and if so,  the  age,
     7  sex and race of each such person; and
     8    (ii)  the  status of each such person, specifying whether each was the
     9  subject of the search warrant, a police officer, or a third-party;
    10    (l) the address where the warrant was executed  including  the  street
    11  address, city or town, county and zip code;
    12    (m) the result of executing the warrant, specifying whether:
    13    (i) evidence was seized; and
    14    (ii)  any individuals were arrested, and if so, whether the subject of
    15  the warrant was arrested or other individuals not named in  the  warrant
    16  were arrested; and
    17    (n)  whether  any  property was damaged during the course of executing
    18  the warrant and a description thereof.
    19    8. Search warrants not executed within seven days of issuance shall be
    20  considered null and void.
    21    9. An officer shall be required to present  evidence  and/or  surveil-
    22  lance  gathered  within  twenty-four  hours  or less before a warrant is
    23  executed which verifies that the suspect of such warrant is  present  at
    24  the residence intended to be searched.
    25    10.  Any  officer or officers who are executing a search warrant shall
    26  be required to be in official uniform and be  clearly  recognizable  and
    27  identifiable as a police officer. All officers involved in the execution
    28  of a search warrant shall wear visible badges containing names and iden-
    29  tification numbers.
    30    11.  (a)  Any  officer  or officers who are executing a search warrant
    31  shall allow a minimum of thirty seconds for the occupants of the proper-
    32  ty being searched to respond and open the door before  such  officer  or
    33  officers  attempt  to  enter  the  property, except for situations where
    34  verifiable, exigent circumstances exist. For purposes of  this  section,
    35  "verifiable,  exigent  circumstances" means any event occurring in real-
    36  time that is life-threatening to the officer  or  officers  executing  a
    37  search  warrant  or  to  the  occupants  of  the property which is being
    38  searched.
    39    (b) No officer involved in the execution of a search warrant shall  at
    40  any point during such execution use any flash bang, stun, distraction or
    41  other similar device unless verifiable, exigent circumstances exist.
    42    (c)  No  officer  involved  in the execution of a search warrant shall
    43  execute a warrant outside of when such warrant is allowed to be executed
    44  under this article unless verifiable, exigent circumstances exist.
    45    § 8.  Section 690.55 of the criminal procedure law, paragraph  (b)  of
    46  subdivision  1 as amended by chapter 424 of the laws of 1998, is amended
    47  to read as follows:
    48  § 690.55  Search warrants; disposition of seized property.
    49    1.  Upon receiving property seized pursuant to a search  warrant,  the
    50  court [must] shall either:
    51    (a)  Retain it in the custody of the court pending further disposition
    52  thereof pursuant to subdivision two or some other provision of law; or
    53    (b)    Direct that it be held in the custody of the person who applied
    54  for the warrant, or of the police officer who executed  it,  or  of  the
    55  governmental  or  official  agency  or  department  by which either such

        S. 11                               5
 
     1  public servant is employed, upon condition that upon order of such court
     2  such property be returned thereto or delivered to another court.
     3    2.    A  local  criminal  court which retains custody of such property
     4  [must] shall, upon request of another criminal court in which a criminal
     5  action involving or relating to such property is pending, cause it to be
     6  delivered thereto.
     7    3. Where the arrestee connected to the seizure is not convicted of any
     8  crimes connected to the seizure, all seized property  connected  to  the
     9  arrestee's arrest shall be immediately returned to the arrestee upon the
    10  arrestee no longer being charged with a crime connected to the seizure.
    11    § 9.  The criminal procedure law is amended by adding two new sections
    12  690.60 and 690.65 to read as follows:
    13  § 690.60 Search warrants; monetary restitution.
    14    1.  Following  the  execution  of  a search warrant issued pursuant to
    15  paragraph (b) of subdivision four of section 690.35 of this article, the
    16  owner of the place or premises at which such warrant  was  executed  and
    17  the  owner of any property located at such premises shall be entitled to
    18  monetary restitution, paid promptly by the state or municipality employ-
    19  ing the officials who executed the warrant, for a premises, or any  part
    20  thereof, and any items of property at such premises that were damaged or
    21  destroyed as a part of the execution of such warrant upon such premises,
    22  unless such owner of such premises or property is:
    23    (a)  convicted  of  a  crime  involving or relating to property seized
    24  pursuant to such warrant; or
    25    (b) convicted of a crime involving or relating to the  search  warrant
    26  for such premises issued pursuant to paragraph (b) of subdivision two of
    27  section 690.05 of this article.
    28    2.  Nothing  in this section shall be construed as affecting any other
    29  right, duty or cause of action that may exist with respect to any  prem-
    30  ises,  or part thereof, or any property that may be damaged or destroyed
    31  as a result of any such arrest or search.
    32  § 690.65 Search warrants; violations.
    33    Where a search warrant is executed in violation of this article:
    34    1. any evidence obtained in connection with the search  warrant  shall
    35  be inadmissible in evidence by the prosecution; and
    36    2.  any officer involved in the execution of such search warrant shall
    37  be subject to disciplinary actions including, but not limited to, fines,
    38  suspension or termination.
    39    § 10. The executive law is amended by adding a new  section  837-w  to
    40  read as follows:
    41    §  837-w.  Establish a form and system to record and monitor the issu-
    42  ance and execution of  search  warrants.    1.  The  commissioner  shall
    43  prescribe the form of document to be used by every law enforcement agen-
    44  cy  of  the  state  and  of each municipality, city, town and village to
    45  accompany a report to be prepared in accordance with  subdivision  seven
    46  of section 690.50 of the criminal procedure law.
    47    2. The commissioner shall establish a system to record and monitor the
    48  issuance and execution of search warrants by every law enforcement agen-
    49  cy  in  the  state  of New York. Every court that issues search warrants
    50  shall file on or before the thirty-first day of December  of  each  year
    51  with  the  commissioner,  a  copy of each form filed with such court and
    52  prescribed in subdivision one of this section,  retaining  the  original
    53  copy  of such form with the court. The commissioner shall collect, proc-
    54  ess and analyze such information contained in such reports, and issue  a
    55  report  by  the  thirtieth  day of June of each year which shall be made
    56  public and a copy of which shall be sent to the office of court adminis-

        S. 11                               6
 
     1  tration, each law enforcement agency, each civil complaint review  board
     2  with  jurisdiction  over  a police or law enforcement agency, and to the
     3  attorney general of the state of New York.
     4    §  11.  Section  212  of  the judiciary law is amended by adding a new
     5  subdivision 3 to read as follows:
     6    3. The chief administrator shall also formulate, establish  and  main-
     7  tain  educational  programs,  seminars  and  institutes for the judicial
     8  personnel of the unified court system, to  be  scheduled  on  an  annual
     9  basis,  or  if the circumstances warrant, more frequently, on the law of
    10  searches, arrests and seizures under the laws of the state of New  York,
    11  with  emphasis  on  the  appropriate  standards  for the issuance of all
    12  warrants authorized under the criminal procedure law.
    13    § 12. This act shall take effect on  the  one  hundred  eightieth  day
    14  after  it shall have become a law.  Effective immediately, the addition,
    15  amendment and/or repeal of any rule  or  regulation  necessary  for  the
    16  implementation  of  this  act  on  its effective date are authorized and
    17  directed to be made and completed on or before such effective date.
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