STATE OF NEW YORK ________________________________________________________________________

2683--A

2021-2022 Regular Sessions

IN ASSEMBLY

January 19, 2021 ___________

Introduced by M. of A. O'DONNELL, NOLAN, BARRON, ABINANTI, EPSTEIN, ANDERSON, SEAWRIGHT, ZINERMAN, TAYLOR, COOK, SIMON, DICKENS, STECK, JACKSON, FORREST, QUART, FAHY -- read once and referred to the Commit- tee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee

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

EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02810-06-1

A. 2683--A 2

1 8:00 A.M. and 6:00 P.M. unless there is reasonable cause to believe that 2 it cannot be executed between those hours because, in the case of an 3 application for a search warrant as defined in paragraph (b) of subdivi- 4 sion two of section 690.05 of this article, the person sought is immi- 5 nently likely to flee or commit another violent felony, or is likely to 6 create an imminent danger to the safety of the executing police officers 7 or another person if not seized forthwith or between the hours of 6:00 8 P.M. and 8:00 A.M., in which event the request must contain facts to 9 support such application, and the court must make a finding in writing 10 or orally on the record or in writing upon the application itself 11 setting forth the factual basis for the issuance of the warrant pursuant 12 to this subdivision. 13 § 3. Subdivision 1 and paragraph (b) of subdivision 4 of section 14 690.35 of the criminal procedure law, subdivision 1 as amended by chap- 15 ter 679 of the laws of 1982, and paragraph (b) of subdivision 4 as 16 amended by chapter 424 of the laws of 1998, are amended to read as 17 follows: 18 1. An application for a search warrant may be in writing or oral. If 19 in writing, it must be made, subscribed and sworn to by a public servant 20 specified in subdivision one of section 690.05 of this article. If 21 oral, it must be made by such a public servant and sworn to and recorded 22 in the manner provided in section 690.36 of this article. In all cities 23 with a population of less than one million, an application for a search 24 warrant based either in whole or in part on paragraph (b) of subdivision 25 four of this section, must be made to a court between the hours of 6:00 26 A.M. and 9:00 P.M. unless circumstances reasonably require that such 27 application be made at another time, in which event such circumstances 28 shall be stated in the application for the warrant. 29 (b) A request that the search warrant authorize the executing police 30 officer to enter premises to be searched without giving notice of [his] 31 their authority and purpose, upon the ground that there is reasonable 32 cause to believe that (i) [the property sought may be easily and quickly 33 destroyed or disposed of, or (ii)] the giving of such notice [may endan- 34 ger] is likely to create an imminent danger to the life or safety of the 35 executing officer or another person, or [(iii)] (ii) in the case of an 36 application for a search warrant as defined in paragraph (b) of subdivi- 37 sion two of section 690.05 for the purpose of searching for and arrest- 38 ing a person who is the subject of a warrant for a felony, the person 39 sought is imminently likely to commit another violent felony, or [may 40 endanger] is likely to create an imminent danger to the life or safety 41 of the executing officer or another person. In order for a request that 42 a search warrant authorizes the executing police officer to enter prem- 43 ises to be searched without giving notice of their authority and purpose 44 be granted, such request shall show that extreme circumstances are 45 involved, which for purposes of this article are when the giving of such 46 notice is likely to create an imminent danger to the life of the execut- 47 ing officer or another person, only where the application pursuant to 48 this paragraph lists specific facts that giving such notice is likely to 49 create such imminent danger to the life of the executing officer or 50 another person. No warrant issued under this paragraph can be used to 51 search a residence for a controlled substance, as defined by section 52 220.00 of the penal law. Any controlled substance, as defined by 53 section 220.00 of the penal law, found in a residence during a search 54 based on a warrant issued under this paragraph can be subject to 55 seizure.

A. 2683--A 3

1 § 4. Section 690.35 of the criminal procedure law is amended by 2 adding a new subdivision 5 to read as follows: 3 5. When making an application based either in whole or in part on 4 paragraph (b) of subdivision four of this section, in addition to the 5 other requirements for an application for a search warrant, the appli- 6 cant must ascertain, to the extent reasonably possible, whether any 7 parties other than any subject of the search warrant shall be present 8 when the warrant is executed, and if so, the application shall include a 9 list containing the estimated age, gender, and physical condition of 10 each additional occupant, any known individuals with cognitive and/or 11 physical disabilities, and any pets known or likely to be present at the 12 premises to be searched, and reasonable alternatives to executing such 13 warrant in the presence of such individuals. The results of such inves- 14 tigation shall be included in the application and conform with the 15 requirements of paragraph (c) of subdivision three of this section. For 16 all applications based either in whole or in part on paragraph (b) of 17 subdivision four of this section, the applicant shall be a district 18 attorney or the attorney general, or if a district attorney or the 19 attorney general is absent or disabled, the person designated to act on 20 their behalf and perform their official function in and during such 21 absence or disability. 22 § 5. Subdivision 1 of section 690.40 of the criminal procedure law is 23 amended to read as follows: 24 1. (a) In determining an application for a search warrant the court 25 may examine, under oath, any person whom it believes may possess perti- 26 nent information. Any such examination must be either recorded or 27 summarized on the record by the court. 28 (b) In determining an application for a search warrant based, either 29 in whole or in part, upon the grounds described in paragraph (b) of 30 subdivision four of section 690.35 of this article, the court shall 31 state, with specificity, in writing or orally on the record or in writ- 32 ing upon the application for the warrant itself, the factual basis for 33 the issuance of the warrant pursuant to such paragraph. Such determi- 34 nation shall include evidence stating why a warrant that requires an 35 officer to knock and announce their presence shall not be issued. 36 § 6. Subdivision 6 of section 690.45 of the criminal procedure law, as 37 renumbered by chapter 679 of the laws of 1982, is amended and a new 38 subdivision 8-a is added to read as follows: 39 6. A direction that the warrant be executed between the hours of 6:00 40 A.M. and 9:00 P.M., or, where the court has specially so determined, an 41 authorization for execution thereof at any time of the day or night 42 unless the warrant has been obtained based on an application based in 43 whole or in part on paragraph (b) of subdivision four of section 690.35 44 of this article, in which event the provisions of subdivision two of 45 section 690.30 of this article relating to the time for executing such 46 warrants shall apply; and 47 8-a. An intended course of action if no response is received from the 48 intended suspect of the warrant at the time of execution within thirty 49 seconds; and 50 § 7. Section 690.50 of the criminal procedure law is amended by adding 51 five new subdivisions 7, 8, 9, 10 and 11 to read as follows: 52 7. Upon seizing property or arresting a person pursuant to a search 53 warrant issued under this article, in addition to the requirements of 54 subdivisions five and six of this section, the police officer shall file 55 a report with the court that issued such warrant in a form prescribed by 56 the division of criminal justice services pursuant to section eight

A. 2683--A 4

1 hundred thirty-seven-w of the executive law, specifying the following 2 information: 3 (a) if applicable, the subparagraph of paragraph (b) of subdivision 4 four of section 690.35 of this article upon which such warrant was 5 based; 6 (b) the officer and agency which obtained the warrant; 7 (c) the prosecutor and prosecuting office which drafted the warrant; 8 (d) whether the facts contained in the supporting affidavit were based 9 upon a confidential informant, or an identified citizen informant or a 10 police officer, none of whom must be named; 11 (e) the date and time the search warrant was applied for and the date 12 and time the search warrant was signed; 13 (f) the date and time the search warrant was executed; 14 (g) the judge who signed and the court that issued the warrant; 15 (h) whether the application for the warrant issued had been submitted 16 to another judge other than the judge who issued the warrant for which 17 the report is submitted and if so, when such application or applications 18 were made and the result of each such application; 19 (i) the age, sex and race of the individual to whom such warrant was 20 directed; 21 (j) whether physical force or deadly force was used in executing such 22 warrant; 23 (k) (i) whether any individual was injured or killed and if so, the 24 age, sex and race of each such person; and 25 (ii) the status of each such person, specifying whether each was the 26 subject of the search warrant, a police officer, or a third party; 27 (l) the address where the warrant was executed including the street 28 address, city or town, county and zip code; 29 (m) the result of executing the warrant, specifying whether: 30 (i) evidence was seized; and 31 (ii) any individuals were arrested, and if so, whether the subject of 32 the warrant was arrested or other individuals not named in the warrant 33 were arrested; and 34 (n) whether any property was damaged during the course of executing 35 the warrant and a description thereof. 36 8. Search warrants not executed within seven days of issuance shall be 37 considered null and void. 38 9. An officer shall be required to present evidence and/or surveil- 39 lance gathered within twenty-four hours or less before a warrant is 40 executed which verifies that the subject of such warrant is present at 41 the residence intended to be searched. Where the information about the 42 location of the subject of any warrant comes from an informant or other 43 third-party testimony, the officer applying for the warrant shall verify 44 that an officer or agent of the police department has independently 45 verified that there is probable cause to believe the subject of the 46 warrant will be present at a particular location. 47 10. Any officer or officers who are executing a search warrant shall 48 be required to be in official uniform and be clearly recognizable and 49 identifiable as a police officer. All officers involved in the execution 50 of a search warrant shall wear visible badges containing names and iden- 51 tification numbers. 52 11. (a) Any officer or officers who are executing a search warrant 53 shall allow a minimum of thirty seconds for the occupants of the proper- 54 ty being searched to respond and open the door before such officer or 55 officers attempt to enter the property, except for situations where 56 verifiable, exigent circumstances exist. For purposes of this section,

A. 2683--A 5

1 "verifiable, exigent circumstances" means any event occurring in real- 2 time that is life-threatening to the officer or officers executing a 3 search warrant or to the occupants of the property which is being 4 searched. 5 (b) No officer involved in the execution of a search warrant shall at 6 any point during such execution use any flash bang, stun, distraction or 7 other similar device unless verifiable, exigent circumstances exist. 8 (c) No officer involved in the execution of a search warrant shall 9 execute a warrant outside of when such warrant is allowed to be executed 10 under this article unless verifiable, exigent circumstances exist. 11 § 8. Section 690.55 of the criminal procedure law, paragraph (b) of 12 subdivision 1 as amended by chapter 424 of the laws of 1998, is amended 13 to read as follows: 14 § 690.55 Search warrants; disposition of seized property. 15 1. Upon receiving property seized pursuant to a search warrant, the 16 court [must] shall either: 17 (a) Retain it in the custody of the court pending further disposition 18 thereof pursuant to subdivision two or some other provision of law; or 19 (b) Direct that it be held in the custody of the person who applied 20 for the warrant, or of the police officer who executed it, or of the 21 governmental or official agency or department by which either such 22 public servant is employed, upon condition that upon order of such court 23 such property be returned thereto or delivered to another court. 24 2. A local criminal court which retains custody of such property 25 [must] shall, upon request of another criminal court in which a criminal 26 action involving or relating to such property is pending, cause it to be 27 delivered thereto. 28 3. A person aggrieved by an unlawful search and seizure of property or 29 by the deprivation of property may move for the property's return five 30 days after the property has been seized, or at any time thereafter. The 31 motion may be made before any court with jurisdiction over the criminal 32 case or, if no case has been filed, in the county in which the property 33 was seized. The court must receive evidence on any factual issue neces- 34 sary to decide such motion. After an aggrieved person has moved for the 35 property's return, the prosecutor must establish by clear and convincing 36 evidence, that the seized property was the proceeds of a crime, or 37 evidence of a crime. If the court grants such motion, it must return the 38 property to the movant, but may impose reasonable conditions to protect 39 access to the property and its use in later proceedings. 40 § 9. The criminal procedure law is amended by adding two new sections 41 690.60 and 690.65 to read as follows: 42 § 690.60 Search warrants; monetary restitution. 43 1. Following the execution of a search warrant issued pursuant to 44 paragraph (b) of subdivision four of section 690.35 of this article, the 45 owner of the place or premises at which such warrant was executed and 46 the owner of any property located at such premises shall be entitled to 47 monetary restitution, paid promptly by the state or municipality employ- 48 ing the officials who executed the warrant, for a premises, or any part 49 thereof, and any items of property at such premises that were damaged or 50 destroyed as a part of the execution of such warrant upon such premises, 51 unless such owner of such premises or property is: 52 (a) convicted of a crime involving or relating to property seized 53 pursuant to such warrant; or 54 (b) convicted of a crime involving or relating to the search warrant 55 for such premises issued pursuant to paragraph (b) of subdivision two of 56 section 690.05 of this article.

A. 2683--A 6

1 2. Nothing in this section shall be construed as affecting any other 2 right, duty or cause of action that may exist with respect to any prem- 3 ises, or part thereof, or any property that may be damaged or destroyed 4 as a result of any such arrest or search. 5 § 690.65 Search warrants; violations. 6 Where a search warrant is executed in violation of this article: 7 1. any evidence obtained in connection with the search warrant shall 8 be inadmissible in evidence by the prosecution; and 9 2. any officer involved in the execution of such search warrant shall 10 be subject to disciplinary actions including, but not limited to, fines, 11 suspension or termination. 12 § 10. The executive law is amended by adding a new section 837-w to 13 read as follows: 14 § 837-w. Establish a form and system to record and monitor the issu- 15 ance and execution of search warrants. 1. The commissioner shall 16 prescribe the form of document to be used by every law enforcement agen- 17 cy of the state and of each municipality, city, town and village to 18 accompany a report to be prepared in accordance with subdivision seven 19 of section 690.50 of the criminal procedure law. 20 2. The commissioner shall establish a system to record and monitor the 21 issuance and execution of search warrants by every law enforcement agen- 22 cy in the state of New York. Every court that issues search warrants 23 shall file on or before the thirty-first day of December of each year 24 with the commissioner, a copy of each form filed with such court and 25 prescribed in subdivision one of this section, retaining the original 26 copy of such form with the court. The commissioner shall collect, proc- 27 ess and analyze such information contained in such reports, and issue a 28 report by the thirtieth day of June of each year which shall be made 29 public and a copy of which shall be sent to the office of court adminis- 30 tration, each law enforcement agency, each civil complaint review board 31 with jurisdiction over a police or law enforcement agency, and to the 32 attorney general of the state of New York. 33 § 11. Section 212 of the judiciary law is amended by adding a new 34 subdivision 3 to read as follows: 35 3. The chief administrator shall also formulate, establish and main- 36 tain educational programs, seminars and institutes for the judicial 37 personnel of the unified court system, to be scheduled on an annual 38 basis, or if the circumstances warrant, more frequently, on the law of 39 searches, arrests and seizures under the laws of the state of New York, 40 with emphasis on the appropriate standards for the issuance of all 41 warrants authorized under the criminal procedure law. 42 § 12. This act shall take effect on the one hundred eightieth day 43 after it shall have become a law. Effective immediately, the addition, 44 amendment and/or repeal of any rule or regulation necessary for the 45 implementation of this act on its effective date are authorized to be 46 made and completed on or before such effective date.