Posted: November 12, 2013

Search Reasonable Even Though Police Mistaken Regarding Type Of Evidence Search Would Uncover

Judge Pamela Chen decided a case “all about chickens” in Santos v. Zabbara, 11 CV 2516 (E.D.N.Y. Oct. 18, 2013), where a police raid of plaintiff’s residence for “chickens,” code for cocaine, turned up no drugs but instead resulted in the seizure of real fighting chickens. Santos and his immediate family brought suit under 42 U.S.C. § 2516 against several police officers for their role in issuing and executing the warrant, claiming violation of their Fourth Amendment rights to be free from unreasonable searches and seizures.

A State Supreme Court judge had issued a warrant to search the “entire premises” of Santos’s home. The warrant was based on a police officer’s affidavit describing a web of drug dealing in the neighborhood, involving three of Santos’s brothers. The affidavit stated that the police believed evidence obtained through telephonic intercepts and direct surveillance showed that Santos’s brothers used his residence to store drugs and make sales – references to “roosters” and “chickens” were supposedly code for cocaine. The affidavit alleged that the police had probable cause to conduct an unannounced search of Santos’s residence for evidence potentially relevant to drug dealing.

The police raided Santos’s residence by entering without announcing and throwing flash bang explosive devices. In the backyard, an officer saw an extension cord running from the house to an outdoor shed, entering the shed he saw roosters who had their waddles removed and wore bracelets with razors around their legs. The police arrested Santos solely for possessing fighting roosters.

Judge Chen granted defendants’ motion for summary judgment dismissing the suit in its entirety. Santos argued that the search warrant violated the Fourth Amendment since the underlying affidavit omitted evidence that Santos was not involved in any illicit drug dealing. The Court found the fact that Santos did not participate in any drug-related activities was irrelevant since the critical element in a reasonable search is not whether the owner of the property is suspected of crime but, as here, that there is reasonable cause to believe that the specific things to be searched for and seized are located on the property.

The Court also rejected Santos’s argument that use of flash bang devices violated the Fourth Amendment. Judge Chen surveyed inconsistent circuit law and determined that the use of such devices is unconstitutional only where the users knew that serious injuries to individuals would, and did occur – conditions not present here. Finally, the Court found that since the search warrant authorized search of the “entire premises,” the search of the shed was reasonable. Further, the roosters and their razor-blade bracelets were in plain view in the shed, making it was reasonable for the officers to seize the roosters.

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