Summary
holding that a parole warrant justifies entry and arrest and that subsequent search was permissible
Summary of this case from Simpson v. StateOpinion
06-10-2016
The PEOPLE of the State of New York, Respondent, v. Howard E. JOHNSON, Jr., Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
Opinion
MEMORANDUM: On appeal from a judgment convicting him, upon his plea of guilty, of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ), defendant contends that County Court erred in refusing to suppress, as the product of an unlawful search and seizure, the gun found by a team of parole warrant enforcement officers on his person and his statements to the officers. According to defendant, his rights under Payton v. New York , 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 were violated when, about four months after he absconded from parole supervision, the officers entered his house with only a parole violation warrant, but without a judicial arrest or search warrant. We reject that contention. “Under the Federal Constitution, it is clear that a parolee or a probationer may be arrested in his [or her] home without a judicial warrant” (People v. Hernandez, 218 A.D.2d 167, 171, 639 N.Y.S.2d 423, lv. denied 88 N.Y.2d 936, 1068, 647 N.Y.S.2d 170, 670 N.E.2d 454 ; see generally Samson v. California, 547 U.S. 843, 850–857, 126 S.Ct. 2193, 165 L.Ed.2d 250 ). A parole violation warrant by itself justifies the entry of the residence for the purposes of locating and arresting the defendant therein (see Cook v. O'Neill, 803 F.3d 296, 300 ), provided that, as here, the officers “reasonably believe[d] the defendant to be present” in the premises (CPL 120.80[4] ). In any event, the conduct of the officers in searching the premises for defendant and, following his arrest, in searching his pockets “was rationally and reasonably related to the performance of the parole officer[s'] duty” (People v. Huntley, 43 N.Y.2d 175, 181, 401 N.Y.S.2d 31, 371 N.E.2d 794 ), and thus the officers' conduct would have been permissible even in the absence of a parole violation warrant (see People v. June, 128 A.D.3d 1353, 1354, 7 N.Y.S.3d 773, lv. denied 26 N.Y.3d 931, 17 N.Y.S.3d 94, 38 N.E.3d 840 ; People v. Nappi, 83 A.D.3d 1592, 1593–1594, 922 N.Y.S.2d 669, lv. denied 17 N.Y.3d 820, 929 N.Y.S.2d 808, 954 N.E.2d 99 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.