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The Eighteenth Century Meets the Twenty-First Century in NYS

A little history: The British government generally looked at the American colonies as a money making enterprise. Consequently, they passed many revenue collection bills aimed at generating as much money from the colonists as possible. The colonists naturally resented this and engaged in substantial smuggling operations in order to get around the customs taxes imposed by the British government.

In response, Parliament and the King began to use "writs of assistance," legal search warrants that were very broad and general in their scope. Customs agents could obtain a writ of assistance to search any property they believed might contain contraband goods...

James Otis, a Boston lawyer, represented a group of over 50 merchants who sued the government claiming that the writs of assistance were unjust. His speech condemning British policies, including writs of assistance and general search warrants, was so powerful and eloquent, that it was heard of throughout the colonies and catapulted him to a place of leadership in the swelling tide of disillusionment toward Great Britain.

Future President, John Adams, who was 25 at the time, was sitting in the courtroom and heard Otis' famous speech that day. Later he said,

"The child independence was then and there born, every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance."

On June 8, 1789, James Madison proposed to the First Congress twenty amendments to be added to the Constitution. One of these amendments, that dealt with search and seizure laws, became what we know as the 4th Amendment.

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Fast forward to NYS in 2011: Senate Bill 1669 has been introduced and is currently in the Committee on Children and Families....Under the 4th Amendment you have the right to be free from unlawful searches or seizures of your property. In order to overcome your opposition to the searching of your property, the Constitution requires a court order based on probable cause or exigent (emergency) circumstances that preclude the requirement of a court order. 

Under Senate Bill 1669, no probable cause is necessary and no emergency situation is needed to get an order to come into your home. Under the Constitution an anonymous tip would never be adequate for probable cause.  Additionally, we are presumed innocent under the laws of our nation and the Constitution. The mere refusal by an individual to allow the government agent into their home would not satisfy the probable cause standard.

 

In 2009 in New York, the most recent year that statistics are available, there were 168,658 reports of abuse and neglect. Of these, 111,958 (or over 66%) were determined to be unfounded; 54,156 (or barely 32%) were "indicated." In New York a report is indicated if "an investigation determines that some credible evidence of the alleged abuse or maltreatment exists." An indicated report does not mean that the person has been found guilty of abuse or neglect.

 

New York is also unlike nearly all of other states that either screen in or screen out reports based upon what is actually reported. Therefore, anyone can make an allegation that must be investigated by social services. Under Senate Bill 1669, if an individual is the subject of a ridiculous allegation and he refuses let the social worker into his home, a court order will be issued to enter the home simply because the individual said "no."

 

There is no known hearing scheduled on the bill; just keep an eye on it, people.

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