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New York Police Faulted by Agency for Unlawful Searches


A team of plainclothes New York City police officers, tracking the signal of a stolen cellphone, pushed past a man who denied the officers permission to enter his home and searched it floor by floor. A sergeant forced the man to wait outside in his underwear in the rain.

“I can do anything I want,” one officer told the man.

In another case, officers armed with an arrest warrant, but not a search warrant, burst into a home of a suspect’s ex-boyfriend at 5:30 a.m., only to find an innocent woman inside with a child and grandchild. The wrong address had come from a months-old domestic incident report.

In a review of hundreds of police cases, the Civilian Complaint Review Board found scores of incidents in which police officers misapplied or misunderstood the legal standards of one of the most invasive law enforcement tactics: entering a home.

The review board, an independent oversight agency for the New York Police Department, concluded in its analysis that the frequency of such misconduct fuels the public’s mistrust of law enforcement.

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Richard D. Emery, the chairman of the Civilian Complaint Review Board, investigated complaints of New York Police Department officers’ conducting illegal searches and seizures.

Credit
Richard Perry/The New York Times

“It’s a serious problem that could be avoided that has terribly serious effects on people who are invaded,” said Richard D. Emery, a civil rights lawyer who is the chairman of the board. “You can imagine how you would feel if somebody burst into your house — slammed in — with guns drawn, at 6 o’clock in the morning while you’re undressed and asleep.”

A search of a person’s home is at the heart of the Fourth Amendment and one of the most frequently litigated areas of criminal procedure, said Joel Berger, a former executive in the city’s Law Department who now represents plaintiffs in suits against the Police Department.

The police must have a warrant approved by a judge to enter a home, and the burden is on law enforcement to prove that an exception is justified, such as when a person inside might be in danger. Such “exigent circumstances” are often cited by the police when they enter without a warrant, but Mr. Berger said the evidence frequently fell short.

“Quite often, they don’t have any confirmation at all, and they still barge in,” Mr. Berger said. “They’re big on claiming consent where, in reality, they pressured people into agreeing to let them in.”

The report, to be released on Tuesday, criticizes the department’s internal rule book for failing to detail that a warrant, or probable cause, is needed for searches and seizures in homes, and for providing no guidance on the kinds of emergencies that allow officers to enter homes without them.

It comes just weeks after another external review, by a federal monitor overseeing court-imposed changes to the Police Department’s stop-and-frisk program, found that officers in many cases failed to document the suspicion that prompted them to stop a person for questioning.

City officials, in response to that report, promised better training for officers, and the review board called for improving the department’s training to reducing improper home searches.

It also called for expanding the department’s body camera program, which is being overseen by the federal monitor, to film every home entry.

Mr. Emery said that when something serious happens, “having a record of it is key.”

The new report reviewed 180 instances, between 2010 and October 2015, in which agency investigators found that officers carried out improper home entries and searches. They were among the 1,763 complaints about searches and entries that the agency investigated during that five-year period, when the police made more than 15,000 searches over all in New York.

Stephen P. Davis, the Police Department’s chief spokesman, said the department is aware of the report’s findings but noted that the substantiation rate for premise entry cases is less than half the agency’s overall substantiation rate.

“We are going to decide if this is something that needs to be more clearly clarified, in terms of either interpreting the exigent circumstances that drive a lot of these or having officers property explaining the reasons for their actions,” said Mr. Davis.

The department told the agency that in the cases it has reviewed so far, it has imposed discipline in 64 percent of the cases, according to the report.

Yet, Mr. Emery said, even a small number of unjustified entries is troubling. Faulty home entries, like episodes of excessive force or a police shooting on an unarmed person, can erode a community’s confidence in law enforcement.

“It’s extremely undermining,” Mr. Emery said. “Like much more serious tragedies, such as a shooting, which are very infrequent yet have seriously corrosive effects on police community relations.”

All told, complaints about home entry make up about 11 percent of the roughly 4,500 complaints the agency receives each year, he said.

In recent days, Mr. Emery has been criticized by the leaders of the two largest police unions for his role as a founding partner at Emery Celli Brinckerhoff & Abady, a law firm that has frequently sued the Police Department.

Mr. Emery has defended his role, which the city’s Conflicts of Interest Board approved as long as he recused himself from the review board’s cases involving the law firm. But last week, he apologized for comparing the union leaders’ complaints about him to “squealing like a stuck pig.”

The agency, in its review, found a pattern of officers’ mistaking a type of departmental paperwork known as an I-card for a warrant; failing to show occupants a warrant, as required, when it is granted by a judge; using stale arrest warrants; and failing to have people sign a “consent to search” form, as a policy from 2008 requires of certain officers.

In many cases, a “hot-pursuit doctrine” was misapplied, the report found. It cited cases in which officers pursued people from the streets, where the lower standard of reasonable suspicion is necessary to stop them, into their homes, where a higher standard — a probable cause for arrest — is required.

The review board’s report noted the dire results of unlawful searches. “In criminal proceedings, arrests, summons or evidence seized pursuant to an illegal entry or search would be dismissed or excluded,” it said.

Of the 180 substantiated complaints, nearly half of them occurred in Brooklyn. Black people were the subjects in 55 percent of the cases. In more than half of the cases, the officers involved were in plainclothes, something residents said caused them to be misidentified as criminals.

“They didn’t have any uniforms on,” a victim in one case told the agency’s investigators. “They just looked like hoodlums to me.”

The examination of substantiated cases also uncovered other misconduct. Some officers making home entries were discourteous or used offensive language, used excessive force and damaged property.

In one case highlighted in the report, narcotics officers swarmed an apartment based on a tip about a gun, handcuffed a man and made a “warrantless entry” into his home. Then they punched him in the face and laughed as they left empty-handed.

“The law is supposed to be there to set the rules and protect us,” the innocent man later told the agency’s investigators. Not, he said, “to be breaking laws.”

A subsequent inquiry by the Internal Affairs Bureau at the Police Department found evidence that members of that same narcotics team fabricated statements from confidential informers to obtain search warrants.

The review board uncovered 14 instances of officers’ filing “a false official document” during their investigations, such as using contradictory video footage or statements by civilians or fellow officers as evidence. Those cases were referred to the bureau, the report said. In one case, the agency found that the names of a sergeant and an officer had been crossed out in the precinct logbook in an effort to obscure their involvement in an improper entry of an apartment.

In the case of the plainclothes team searching for the stolen cellphone, it was only after they searched the man’s house — and made him stand outside in the rain until a victim could arrive and confirm the man was not the thief — that they noticed surveillance cameras around the home.

The footage showed than an “unknown person” had hidden the stolen phone in a barbecue grill in the man’s backyard, and it “corroborated the man’s account of events.”



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