NY3: Nighttime search was justified, and defendant wasn’t even home

Police justified a nighttime search warrant at defendant’s house. He was a suspect in a robbery with a knife to the victim’s throat where the victim was forced into an apartment. In the ensuing struggle, the victim said the suspect was cut and bled. The police went to the scene of the robbery at night and knocked, getting no answer. The landlord let them in to see if there was anybody injured inside and there was no one there. Police then applied for a warrant to search, which was issued about midnight. The nighttime search was justified. Defendant wasn’t even home [so where’s the prejudice?]. Also, incomplete sentences in the affidavit for probable cause didn’t affect the showing. People v. Ferguson, 2016 NY Slip Op 00717, 2016 N.Y. App. Div. LEXIS 713 (3d Dept. Feb. 4, 2016).

Defendant was charged in 2006 with a cold case murder from 1974 when DNA from under the victim’s fingernails and his fingerprints were matched by new scientific evidence. The search of defendant’s car retrieving a paper towel with his DNA on it was unreasonable for lack of any probable cause connecting the car to the murder. It was, however, harmless beyond any doubt considering his DNA was on the victim and his fingerprints in her apartment. Commonwealth v. Dame, 473 Mass. 524 (Feb. 3, 2016).*

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