The Legal Aid Society filed this amicus brief at the New York Court of Appeals in support of appellant Tramel Cuencas’ - and all New Yorkers’ right - to be free from unreasonable search or seizure. This case presented an issue of first impression for the court: whether a warrantless, consent-based arrest inside a person’s home is an unreasonable search or seizure when carried out absent exigent circumstances and when police objectively had probable cause necessary to secure an arrest warrant. We argued that such an arrest is a constitutionally unreasonable search or seizure not only because it is an intrusion into the sanctity of the interior of a private home, but also because such an arrest transforms consent to enter into the waiver of a non-waivable constitutional right – the indelible right to counsel. In New York, the right to have one’s attorney present when questioned by law enforcement about a criminal matter, a right which cannot be waived outside of the presence of that attorney, attaches at the issuance of the arrest warrant. We proposed that the court adopt a rule that would remove the dangerous incentive for police to avoid an arrest warrant even where one is readily obtainable on probable cause and close a loophole that threatens both the sanctity of New Yorkers’ homes and their right to counsel.

The Court of Appeals ruled on the case in December 2023. The Court held that the police in Mr. Cuencas’ case did not have a reasonable belief that the individual who provided the police consent to enter Mr. Cuencas’ apartment had apparent authority over the premises, and, accordingly, that their warrantless entry into his apartment violated his constitutional rights.