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[T] People v. Ventura5/6/2004
a decision on this subject matter is unavoidable.
The Process of Applying for a Search Warrant
Procedurally the process for applying for a search warrant must be very deliberate and strict especially when it comes to entering a residence concerning an investigation of a building code violation in the suburbs where the residence is detached from other homes in the neighborhood. In July, 1990, the American Bar Association released a report entitled: Guidelines For The Issuance of Search Warrants. The Report was assembled by a distinguished task force. See Thomas F. Liotti, Guidelines For The Issuance of Search Warrants, The ABA Initiative, The Nassau Lawyer, February, 1991 at 20; New York State Bar Journal, December, 1991 at 28; and Outside Counsel, New York Law Journal, February 25, 1991. Among those on that Search Warrant Project Task Force were the Honorable Raymond Harrington, a former distinguished member of the Nassau County, County Court. The Report was breathtaking in its findings, recommendations and conclusions.
The ABA Task Force in Guideline 1-1 concerns the special role and responsibility of the judicial officer in issuing search warrants. The commentaries under that section provided as follows:
Commentary
"Though deciding whether to issue a search warrant is an important judicial function, empirical studies of the warrant process have uncovered unsettling facts. An American Bar Foundation study concluded that 'the trial judiciary does not always take seriously its commitment to make a 'neutral and detached' decision as to whether there exist grounds for a search.' L. Tiffany, D. McIntyre & D. Rottenberg, Detection of Crime 120 (1967). More recently an examination of seven jurisdictions, conducted by the National Center for State Courts, similarly found that ' he use of boilerplate language [by the applicants] and the brevity of magisterial review is more suggestive of a routinized administrative procedure rather than a constitutional check on police power.' R. Van Duizend, LO. Sutton & C. Carter, The Search Warrant Process 87 (1984). Nonetheless, fundamental rights relating to liberty, privacy and the sanctity of the home are permissibly invaded only when 'detached scrutiny by a neutral magistrate' has been exercised. Katz v. United States, 389 U.S. 347, 356 (1967). Only by carefully scrutinizing applications for search warrants and insisting on compliance with legal requirements does the judicial officer fulfill the responsibilities of office."
The Commentaries went on to state under Guideline 1-3 that:
"There is, however, a thin line between clarifying ambiguities in the affidavit, testing the credibility of government witnesses, and otherwise assessing probable cause on the one had, and setting out to develop information that will establish probable cause on the other. This line should not be crossed lest the judicial officer become an 'adjunct to . . . law enforcement.' United States v. Leon, 468 U.S. 897, 917 (1984). Judicial officers must not act in a partisan or zealous spirit inconsistent with their neutral role. They have no duty to develop probable cause that is a law enforcement responsibility."
Guideline 2-1 of the standards for the issuance of a search warrant concerns the steps that a judicial officer should consider in assessing probable cause. The Guideline states:
"Under the Fourth Amendment, the judicial officer may issue a search warrant only upon a finding of probable or reasonable cause based on affidavits made under oath or by affirmation. In evaluating whether probable cause exists, the judicial officer may not consider information that is not supported by
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