I’m glad to learn that many of you want to know the details of the proceedings in the raw-milk legal cases, because those details are becoming more intriguing literally by the day. That “slam dunk” Bob Hayles is looking for? Well, I think you’ll find this post quite interesting.

Gary Cox of the Farm-to-Consumer Legal Defense Fund has been a busy man, and his legal creation of the last couple days might best be termed “Search Warrants 101.” He has filed a motion in the New York state court that scheduled the show-cause hearing in the case of Barb and Steve Smith/Meadowsweet Dairy LLC, arguing that the December search warrant the Smiths supposedly defied in December “is facially defective…and must be quashed.”

Here’s Gary’s argument: The administrative search warrant issued by Judge John C. Egan in December, allowing the New York Department of Agriculture and Markets to search Meadowsweet Dairy for raw milk products, “states that the Department is ‘authorized to enter the premises on a continuing basis.’ In essence, there is no end to when the Department may stop searching the Respondents, no matter how long ago it has been since the warrant was issued. Conceivably, the warrant that was issued in December 2007 could still be executed in December 2017, ten years later. A blanket warrant with no expiration date is not only in violation of the express provisions of (New York law), it also violates the Fourth Amendment’s requirement that the probable cause which existed at the time the warrant was issued must be ‘closely related to’ the probable cause that exists at the time of its execution.”

Moreover, Gary argues that under New York law, an administrative search warrant must be carried out within ten days, and then only between the hours of 6 a.m. and 9 p.m. He notes that the Meadowsweet warrant was issued Dec. 14, 2007, and executed at least twice—on Dec. 19 and Dec. 28. The second time was 14 days after issuance.

This ten-day restriction is hard-and-fast, he suggests, based on legal precedent. “The failure to execute the warrant within the ten-day statutory period ‘may not be excused as a mere ministerial or clerical aspect of search warrant proceedings’…Thus, once a warrant is issued it must be executed within ten days. A warrant cannot be issued one day and then be executed over and over again ad infinitum into the future.”

The reason behind the tight schedule, he says, “is that the probable cause necessary for execution of the warrant must be ‘so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.’ “

Wait, there’s more. “In this case, the warrant not only authorizes the Department to enter Respondents’ premises ‘on a continuing basis,’ it also states that such authority to enter on a continuing basis can be exercised ‘only when the Department has probable cause to believe’ that a violation of law is occurring. This blanket authorization allowing the Department to determine what constitutes probable cause is a clear violation of the constitutional protections afforded by the Fourth Amendment to the United States Constitution and by the New York Constitution at Article 1 Section 12.

“In addition, because the warrant improperly delegates the determination of probable cause to an administrative agency or office, it also constitutes a violation of the separation of powers doctrine because it transfers a judicial function to an executive agency.”

There’s one other little detail that Gary brings up–the fact that Meadowsweet Dairy is a herd share organized as a limited liability company. “In this case, Respondents allege that based on the facts of the case, they are not even subject to New York’s Agriculture and Market Laws (A&ML) and thus probable cause cannot, as a matter of law, form the basis of an administrative search warrant.”

I’ve long wondered about those administrative search warrants, and the supposed carte blanche they provide regulators. An administrative search warrant was used by the Michigan Department of Agriculture to gain entry to Greg Niewendorp’s farm and eventually force-test his cattle for bovine TB last fall.

Gary has obviously researched these things and, lo and behold, the U.S. Constitution’s Fourth Amendment has applicability.

His argument is very persuasive. But for Judge Egan to be persuaded will require the judge to admit he screwed up, big time, in going along with Ag and Markets in granting such an open-ended warrant. Should be an interesting court session.