New York Orders of Protection (Restraining Orders) and Search Warrants: Standing to Challenge Search of Your Home May be diminished
A protection order is different from an EPO because it is longer term, typically for one to five years, and in extreme circumstances, for up to a lifetime. A victim can renew the protection order, if he or she still feels threatened by his or her abuser.
A protection order may include many different provisions, including:
• No Contact Provision: Prohibiting the abuser from calling, texting, emailing, stalking, attacking, hitting, or disturbing the victim
• Peaceful Contact Provision: Permitting the abuser to peacefully communicate with the victim for limited reasons, including care and transfer for visitation of their child
• Stay Away Provision: Ordering the abuser to stay at least a certain number of yards or feet away from the victim, his or her home, job, school, and car. The stay-away distance can vary by state, judge or the lethality of the situation, but is often at least 100 yards or 300 feet
• Move Out Provision: Requiring the abuser to move out of a home shared with the victim
• Firearms Provision: Requiring the drug abuser to surrender any guns he or she possesses (about 2/3rds of states) and/or prohibiting the abuser from purchasing a firearm
• Counseling Provision: Ordering the criminal abuser to attend counseling, such as batterer’s intervention or anger management
There is little doubt that if your home is the criminal 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?
Protection orders may include children, other family members, roommates, or current romantic partners of the victim. This means the same no contact and stay away rules apply to the other listed individuals, even if the direct harm was to the victim. Some states allow pets to be protected by the same order, as abusers may harm pets to torment their victims.
Some states include as part of the protection order visitation and custody for children of both the victim and abuser. These are generally temporary and can be modified by divorce or other future family court orders.
Regardless of the fruits of that search, i.e, whether the police find drug, guns, etc, decisions have not been favorable to those who are barred from a particular criminal 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.” 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.
Violation of a protection order can be treated in one of three ways: as a felony, misdemeanor, or contempt of court. Felony charges are typically reserved for either repeat or serious violations. Sometimes violations are considered both contempt of court and a new domestic violence charge, although California found this to subject the defendant to double jeopardy. In many states, police policy is to arrest violators of these orders automatically.
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.
If you want to secure protection order, you will need the assistance of a New York Order of Protection Attorney and New York Criminal Attorney at Stephen Bilkis and Associates.