New York Law Review

Tag: reasonable search

  • Kennedy v. Mossafa, 100 N.Y.2d 1 (2003): Due Diligence Required for Tax Foreclosure Notice

    100 N.Y.2d 1 (2003)

    When a notice of tax foreclosure is returned as undeliverable, due process requires the enforcing officer to conduct a reasonable search of public records to ascertain the owner’s correct address, but the extent of that search is defined by reasonableness and the owner’s own actions.

    Summary

    Kennedy sued Mossafa to quiet title after purchasing Mossafa’s property at a tax foreclosure sale due to unpaid 1996 taxes. The County sent a foreclosure notice to the address on the tax roll, but it was returned as undeliverable. The County did not conduct further investigation. Mossafa claimed she had notified the Town of a change of address. The Court of Appeals held that while sending notice to the tax roll address is insufficient when it’s returned undeliverable, the County’s search was reasonable under the circumstances because Mossafa provided no evidence that a further search would have revealed her correct address, and her actions contributed to the confusion.

    Facts

    Mossafa purchased property in 1983, listing her address as Blaisdell Road. She paid property taxes at this address until 1996. In 1991, she moved to Lester Drive and allegedly notified the Town of her new address. She paid the 1997 and 1998 tax bills using checks with her Lester Drive address. The 1996 taxes went unpaid, and in October 1997, the County filed a foreclosure petition and mailed a notice to the Blaisdell Road address. The notice was returned as undeliverable. The tax bill for 1998 included a notice on the back stating previous taxes were due and failure to pay could result in loss of property; she paid it but made no inquiry. The County sold the property to Kennedy in June 1998 after obtaining a default judgment.

    Procedural History

    Kennedy sued Mossafa to quiet title. The Supreme Court granted summary judgment to Kennedy, dismissing Mossafa’s third-party complaint against the County. The Appellate Division affirmed. The Court of Appeals then affirmed the Appellate Division’s decision.

    Issue(s)

    Whether the procedures used by a county to foreclose on a property following a tax delinquency satisfied constitutional due process when the owner never actually received notice of the proceeding, even though the county mailed the notice to the address on the tax roll and the notice was returned as undeliverable.

    Holding

    No, because the County satisfied its due process obligations by attempting to send notice to the address on the tax roll, and, after that notice was returned as undeliverable, a reasonable search of public records would not have revealed a different address. The attempted personal notice, coupled with posting and publication, satisfied due process under the circumstances.

    Court’s Reasoning

    The Court acknowledged that due process requires “notice reasonably calculated, under all the circumstances, to apprise” interested parties of a foreclosure action (citing Mullane v. Central Hanover Bank & Trust Co.). When a notice is returned as undeliverable, the enforcing officer should conduct a reasonable search of public records for an alternative address. However, the public record does not consist solely of the tax roll. RPTL 1125 specifically refers to the records of the surrogate’s office and contemplates that the enforcing officer may charge for any reasonable search of the public record. A reasonable search, however, does not necessarily require searching the Internet, voting records, etc. Here, Mossafa presented no evidence that a search of public records would have revealed her correct address. While towns are required to keep a record that payment was made, they are not required to retain copies of checks or the envelopes they came in. Also relevant was that, as required by RPTL 1125 (2) (a), at least for 1998, a tax bill put appellant on notice that taxes were due, and that the failure to pay them would result in the loss of the property. The Court balanced Mossafa’s interests against the State’s interest in collecting delinquent taxes and considered Mossafa’s conduct in not updating her address. “Ownership carries responsibilities.” The court concluded that, under these circumstances, Mossafa’s current address was not reasonably ascertainable, and the attempted notice, coupled with posting and publication, satisfied due process.

  • People v. Troiano, 35 N.Y.2d 476 (1974): Search Incident to Arrest for Traffic Violation

    People v. Troiano, 35 N.Y.2d 476 (1974)

    A lawful arrest, even for a misdemeanor traffic violation, justifies a full search of the person incident to that arrest, as long as the person is being taken into custody.

    Summary

    Defendant Troiano was arrested on a warrant for driving with a suspended license. During the arrest, the officer frisked Troiano and discovered a loaded revolver. Troiano argued the search was unlawful because it stemmed from a traffic violation arrest. The New York Court of Appeals held that a full search is permissible incident to a lawful arrest, even for a misdemeanor traffic violation, provided the individual is being taken into custody. The court reasoned that the loss of privacy occurs upon the lawful taking into custody and that officers need to ensure their safety and the safety of others.

    Facts

    On January 8, 1969, Troiano was arrested pursuant to a warrant issued six days earlier for the misdemeanor of driving with a suspended or revoked license. The arresting officer showed Troiano the warrant and informed him he was under arrest. The officer then asked Troiano to place his hands on the police car and began a “search or frisk” of his person. During the frisk, the officer found a loaded revolver in Troiano’s waistband and confiscated it.

    Procedural History

    Troiano was indicted for possession of a loaded firearm. He moved to suppress the revolver, arguing the search was unlawful. The trial court denied the motion to suppress. Troiano was found guilty after a jury trial and sentenced to imprisonment. The Appellate Division affirmed his conviction. Troiano then appealed to the New York Court of Appeals.

    Issue(s)

    Whether a full search of the person is authorized as incident to a custodial detention for a misdemeanor traffic violation.

    Holding

    Yes, because so long as the person is being taken into custody, they have lost whatever interest in privacy they had before the arrest, and officers must ensure their safety and the safety of others during the arrest and detention process.

    Court’s Reasoning

    The Court of Appeals reasoned that once a person is lawfully arrested and taken into custody, their expectation of privacy diminishes significantly. The act of taking someone into custody itself is a substantial intrusion on their privacy. The court emphasized the need for officers to protect themselves and others from potential harm during the arrest and detention process. The court stated, “So long as the person is being taken into custody, he has lost whatever interest in privacy he had before arrest, the taking into custody itself being the grossest intrusion upon his privacy.” The court acknowledged the existence of less intrusive alternatives, such as summonses, but emphasized that once an arrest is made, the potential danger to the officer and others necessitates a thorough search. The court also noted the impracticality of distinguishing between “hard” and “soft” objects, as many seemingly harmless items can be used as weapons. The court also cited the need for an inventory search upon arrival at the place of detention for the safety of the arrestee, custodians, and fellow prisoners. The court suggested that limiting the right to arrest or take into custody is the only way to restrict unnecessarily intrusive personal searches.