Opinion
No. 260531–2011.
2012-03-2
The PEOPLE of the State of New York ex rel. Clifford TAYLOR, Petitioner, v. WARDEN, George R. Vierno Correctional Facility, and New York State Department Of Corrections and Community Supervision, Respondents.
Alice L. Fontier, Esq., Dratel & Mysliwiec, New York, for Petitioner. Eric T. Schneiderman, Attorney General by James B. Cooney, Esq., Assistant Attorney General, Donald Nowve, Esq., Assistant Attorney General, New York, for Respondents.
Alice L. Fontier, Esq., Dratel & Mysliwiec, New York, for Petitioner. Eric T. Schneiderman, Attorney General by James B. Cooney, Esq., Assistant Attorney General, Donald Nowve, Esq., Assistant Attorney General, New York, for Respondents.
DOMINIC R. MASSARO, J.
Clifford Taylor, the within Petitioner, seeks to suppress certain evidence for purposes of a parole revocation proceeding, including weapons and narcotics related items, seized following a search of his residence by parole officers. This during a November 24, 2010, home visit conducted incident to an unrelated search warrant execution for another apartment at 480 East 188th Street in the Belmont section of Bronx County. In addition, Petitioner seeks to suppress the contents of a safe removed during the home visit by accompanying police officers, taken from the apartment and opened at the local precinct.
The matter is before the Court because of the pending parole proceeding. No criminal prosecution is being pursued against Petitioner for possessing either the weapons or drug gear obtained during the search (see generally, People ex rel. Vasquez v. Warden, Robert N. Davoren Ctr., 28 Misc.3d 1226A [Sup.Ct. Bronx 2010] ).The issue is whether Petitioner's constitutional rights
against unreasonable searches and seizures were violated when parole officers conducted the residential search and, as part of that search, the parole and accompanying police officers removed the safe from the apartment. The Court ruled in an earlier December 23, 2011 decision (see, People ex rel. Taylor v. Warden, George R. Vierno Correctional Facility, 34 Misc.3d 1202A [Sup.Ct. Bronx 2011] ) that the exclusionary rule prohibiting the use of illegally obtained evidence applies to all stages of the parole revocation process (see, People ex rel. Piccarillo v. New York State Bd. of Parole, 48 N.Y.2d 76 [1977] ). With this in mind, the Court determines that Petitioner raises reasonable concerns about the legality of the apartment search, including, but not limited to, whether the search by parole officers without prior connection to Petitioner was reasonable when conducted at 6:30 A.M.
Petitioner invokes Const., Amendments IV and XIV, and N.Y. State Const., Article I, § 12 (“Security against unreasonable searches, seizures and interceptions”).
Finally, Petitioner's argument that the police entered into the equation once the safe was seized and removed from the apartment, otherwise requiring that a warrant be obtained, demands review (see generally, People v. Dougall, 126 Misc.2d 125 [Sup.Ct. New York 1984] ). Because no criminal matter is pending, Petitioner's demand for a Mapp hearing was granted.
Hearing Testimony
On February 1, 2012, the Court conducted a hearing pursuant to Mapp v. Ohio, 367 U.S. 643 [1961] ). At the Mapp hearing, Detective Dunsing, Parole Officer Bulnes and Parole Officer Sanchez testified on behalf of Respondents; Petitioner presented no witnesses and limited rebuttal to cross examination.
(a) Detective Dunsing testified concerning preparation for the unrelated search warrant's issuance and the discovery that Petitioner lived in the same building as where the warrant was to be executed. As is standard procedure, Dunsing notified the Department of Corrections and Community Supervision (hereinafter, DOCCS) about the pending search and arranged a coordination meeting because one of Parole Officer Bulnes' parolees was the confidential informant source for the unrelated search warrant's issuance. Parole Officers Sanchez and Bynum met with Dunsing before the search. Dunsing was Petitioner's arresting officer and assisted the District Attorney in the preparation of a complaint against Petitioner following the incident.
During the warrant's execution, the detective received a telephone call from Officer Sanchez when the parole officers discovered they could not open the safe found in Petitioner's apartment. The detective immediately arrived at the apartment but took no part in the search of the premises. Dunsing did take possession of the weapon and drug paraphernalia that the parole officers found in Petitioner's closet and subsequently transported the safe from the apartment to the precinct (Tr. p. 25). At the precinct, Petitioner unlocked the safe revealing a revolver, narcotics, and currency inside (Tr. p. 26).
(b) Parole Officer Bulnes told the Court that the confidential informant for the warrant was a parolee under his supervision. When notified of the pending warrant, Bulnes searched the DOCCS records determining that Petitioner was a resident at the same apartment building that was the subject of the search warrant. Bulnes was not present during the search, but instead notified Officer Sanchez to prepare for the parole home visit in issue here.
Bulnes argued his legal authority to conduct a home visit any where in the state. While he did not speak to Petitioner's regular parole officer, one Troy Williams, it is normal practice for DOCCS to conduct home visits during execution of an unrelated search warrant elsewhere in an apartment building.
(c) Parole Officer Sanchez admitted he was not Petitioner's parole officer. Notwithstanding, during the home visit, Sanchez and Officer Bynum found Petitioner there when they began the search.
Sanchez testified that during the search he entered Petitioner's bedroom closet where he discovered drug paraphernalia, including gloves, plastic baggies, a scale and aluminum foil. Consequently, Sanchez handcuffed Petitioner further discovering heroine and a backpack containing a firearm (Tr. p. 66), together with a hydraulic press. Because a revolver was found, he notified Detective Dunsing to take possession of the weapon and the safe after Petitioner refused to unlock it.
Petitioner's Argument
Petitioner's major argument is that the home search was unreasonable and violative of his constitutional rights (see generally, People v. Huntley, 43 N.Y.2d 175 [1977] ). Petitioner says neither his parole status nor signing a general search waiver for home visits as a condition of release negates his right to be free from unreasonable searches. Further, he argues, the instant search bore no relation to Petitioner's conduct and DOCCS home visits require the presence and participation of Petitioner's actual supervising parole officer.
In essence, Petitioner says that the fact a search warrant was executed in his building does not justify a search of his apartment. Accordingly, the only remedy for this abuse is that the entire search be suppressed as constitutionally flawed. Stated another way, the unlawful search requires that the fruit of the poisonous tree be suppressed (see generally, People v. Dougall, 126 Misc.2d 125 [Sup Ct. New York 1984] ).
Petitioner also points out that the witnesses gave different versions concerning whether the guns in Petitioner's apartment were viewable before the safe was unlocked.
Respondent's Argument
Respondents' position is that the home visit search was a proper legal search and warranted under the circumstances. The search was reasonable under public policy that parolees are properly subject to supervision in order to protect the public. Here, it is irrelevant whether the actual parole officer or other DOCCS officers conduct the search.
Further, the home visit search was not conducted at the police's bidding and the search was not conducted to target Petitioner for any criminal activity, but merely to test whether Petitioner was adhering to the conditions of his parole. The search was rationally related to the parole officers' duties, especially in the light that a search warrant was being conducted in the building.
Legal Discussion
The exclusionary rule prohibiting use of illegally obtained evidence applies at all stages of the parole revocation process in New York (see, People ex rel. Taylor v. Warden, George R. Vierno Correctional Facility, supra.] ).
However, the Court rejects Petitioner's argument that the evidence obtained during the home visit by the parole officers here must be suppressed. Rather, it finds that the search was reasonable and no constitutional issues require suppression. Further, the Court sees no merit to Petitioner's claim that his consent to home visits by his parole officer as contained in the “Certificate of Release to Parole Supervision” limits any search to his actual supervising parole officer. There is no reasonable basis for concluding that DOCCS cannot administratively assign previously unconnected parole officers to conduct searches.
A warrantless search by a parole officer is not an illegal search and such evidence is admissible at a parole hearing (see generally, People v. Carrington, 25 AD3d 440 [1st Dept.2006] ). Finally, the apartment search was reasonably related to the parole officers' official duties, that is, the home visit was in furtherance of supervising a parolee.
See generally, Coleman v. Commonwealth, 100 SW3d 745 [Sup.Ct. Ky 2002] ) for a discussion of the issue of whether parole authorities can substitute parole officers for home visit purposes.
The Court takes a different view concerning the evidence contained in the safe that was removed from Petitioner's apartment by the police. Petitioner was under arrest when the safe was opened at the precinct. Significantly, no search warrant had been obtained by the police when the safe was opened.
The general rule is that warrantless searches, with few exceptions, are per se unreasonable and are presumptively unconstitutional
(see generally, Mincey v. Arizona, 437 U.S. 385 [1978] ) ] ). Additionally, circumstances here, including that the safe was opened during Petitioner's custody at the 48th Precinct, undermine any apparent consent to search the safe. No excuse can be made that a warrantless search is justified because the safe was not in Petitioner's proximate reach or posed a danger to law enforcement.
These circumstances echo facts presented to the Court of Appeals in People v. Bratton, 8 NY3d 637 [2007[), where an arrest for a non-parole violation by a parole officer was voided because the officer had not obtained a search warrant and otherwise lacked legal authority to perform the arrest.
Because an arrest occurred with the removal of a safe to a precinct, such opening of the safe is nevertheless subject to the exclusionary rule for lack of a search warrant. The Court agrees with Petitioner that the police entered into the equation once the safe was removed from the apartment, requiring that a warrant be obtained (see generally, People v. Dougall, supra.) (no public safety exception existed excusing a warrant under circumstances even if inconvenient and burdensome).
Further, the record is ambiguous concerning whether Petitioner voluntarily consented to open the safe while in custody at the precinct.
At least one out of state court believes police should obtain a warrant specifically directed to a home safe discovered during a premises search before opening it (see generally, Commonwealth of Pennsylvania v. Menginie. 312 Pa. Super 293, 458 A.2d 966 [Superior Ct.1983] ).
Conclusion
The Court finds DOCCS' home visit search was reasonable where the parole officers searched without prior connection with Petitioner (see generally, People v. Huntley, supra.). Under these circumstances, the search was reasonable even though conducted at a relatively early morning hour. Further, no dispute exists that the search was independent of the police search being executed elsewhere in the building (see generally, People v. Hill, 2002 WL 88977 [1st Dept.2003] ). In this regard, the parole officers meeting with Detective Dunsing before the home visit is of no consequence.
Evidence does not support a finding that the parole officers were in any way mere conduits for doing what the police could not do otherwise. On the other hand, the custodial nature surrounding the opening of the safe without a search warrant, occurring after Petitioner's arrest, invokes exclusion. Evidence obtained at the precinct is constitutionally suspect and merits suppression for the pending parole revocation proceeding
(see generally, People v. Lugo, 2 Misc.3d 1003(A) [Sup.Ct. Kings 2003] ) (see also generally, People v. Ruiz, 13 Misc.3d 1225A [Sup.Ct. Bronx 2006] ).
See also, People v. Edwards, 39 AD3d 1078 (3rd Dept.2007), a criminal case where a safe was located in a bedroom closet as it was here. In that case, the police obtained a search warrant and defendant provided the combination to open it and identified a key to open a second lock-box within the safe.
WHEREFORE, it is hereby
ORDERED that the branch of the Petition seeking to exclude evidence gathered by Parole Officers during a home visit search of Petitioner Clifford Taylor's residence for purposes of the pending parole revocation hearing is DENIED; and it is
ORDERED that the branch of the Petition seeking to exclude evidence contained in a safe transported from Petitioner's residence to the 48th Precinct is suppressed for purposes of the parole revocation proceeding, and it is
ORDERED that the branch of the Petition seeking to vacate the underlying parole warrant is DENIED, and it is
ORDERED that the branch of the Petition seeking to cancel the parole delinquency is DENIED, and it is
ORDERED that the branch of the Petition seeking Petitioner's release from custody is DENIED, and it is further,
ORDERED that this matter is referred for appropriate action in the pending parole revocation proceeding.
The foregoing
constitutes the decision and order of this Court.