Opinion
No. 93 CV 2110.
December 9, 1996
Law Offices of Wilson S. Hurd, New York City, for Plaintiffs.
Dennis C. Vacco, Attorney General of the State of New York, New York City by Avi Lew, Assistant Attorney General, for Defendants.
MEMORANDUM and ORDER
INTRODUCTION
* 1 The Plaintiffs commenced this suit against the New York State Department of Parole and four parole officers, claiming an unconstitutional entry into and search of their apartment. The Defendants made a motion for judgment on the pleadings, claiming that the Plaintiffs have failed to state a claim upon which relief can be granted. The Defendants' motion is granted in part and denied in part.
Officer Beatrice has not been served in this action, and Officers John Doe and James Doe have not been identified or served. This complaint is dismissed without prejudice as to those Defendants. Fed.R.Civ.P. 4(m). Upon good cause shown for failure to identify Defendants and effectuate service, this Court will extend the time of service to 120 days after the date of this order.
FACTS AS STATED BY THE PLAINTIFFS
On March 26, 1993 at approximately six thirty in the morning, parole officers came to the Plaintiffs' residence in Brooklyn to arrest Barren Warren for violation of parole. The officers had a valid parole arrest warrant. Officer Collings knocked on the Plaintiffs' door. The door was opened by Carol Williams, the 15 year old daughter of Plaintiff Arlene Williams and the only person in the household awake at that time. Officer Collings asked to speak with Warren. Carol Williams told him that Warren was asleep, and said that she would wake him and tell him that Officer Collings was there to see him. Carol Williams asked Officer Collings to wait in the hall and she closed the door, leaving Officer Collings standing in the hallway.
Carol Williams did not know that there were three other officers with Officer Collings.
Carol Williams turned away from the door, and walked towards Warren's bedroom. Officer Collings opened the front door of the apartment, which apparently was not locked, and the four officers followed her down the hallway. Carol Williams reached the bedroom where Warren was asleep with Plaintiff Jacqueline Williams, and opened the door. The officers pushed past Carol, entered the bedroom with their weapons drawn, and shined flashlights on Warren and Jacqueline Williams, who both awoke. Warren was removed from the bed, while Jacqueline Williams was told to stay in the bed and not to move. The officers handcuffed Warren and searched the room. Someone asked the officers what they were looking for and Officer Collings answered "weapons and drugs." The officers found no contraband. Michael Williams, the brother of the Plaintiffs and a guest in the household, asked the reason for the arrest, and was told by one of the unidentified officers that Warren was being arrested for parole violations. Michael Williams also asked for and was shown the warrant of arrest. The officers dressed Warren and removed from the home.
It is unclear from the pleadings exactly who asked this question.
The Plaintiffs commenced this action under 42 U.S.C. § 1983, claiming that the Defendants violated their right to be free of unwanted search and seizure and their right to privacy under the Fourth and Fourteenth Amendments of the Constitution. The Plaintiffs challenge both the initial entry into the apartment and the subsequent search of the bedroom.
The Plaintiffs concede that their claims against the Defendants in their official capacities are barred by the Eleventh Amendment.
The Defendants claim that the officers were authorized to enter the apartment to arrest the parolee and did not have to obtain consent to do so. In the alternative, the Defendants claim that they had consent to enter the apartment, and that there were also exigent circumstances warranting entry in the absence of consent. The Defendants claim that the Parole Division's regulations authorized the "security sweep" of Warren's bedroom as a search incident to a lawful arrest. The Defendants also claim that the conditions of Warren's parole permitted the search. Finally, the Defendants argue that Warren was a resident of the household, and not a guest, thus allowing the officers more latitude in their entry into and search of Warren's living quarters.
*2 The Plaintiffs oppose the Defendant's motion, arguing that the search of the bedroom was improper without a search warrant in addition to the warrant of arrest for violation of parole. The Plaintiffs also claim that no one consented to the search, and that the actions of Carol Williams did not amount to consent. The Plaintiffs argue that Warren was a "third party" guest, and not a resident of the household and claim that the cases limiting entry into third-party residences should apply. The Plaintiffs also claim that the Parole Division's own rules forbid this search.
MOTION FOR JUDGMENT ON THE PLEADINGS
This court will grant a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) only if, as judged by the pleadings of the parties, it appears beyond doubt that the plaintiff can prove no set of factual circumstances which would entitle the Plaintiff to relief. Madonna v. United States, 878 F.2d 62, 65 (2d Cir. 1989) (citations omitted). In determining the legal sufficiency of the claim, the Court must "view all the pleadings in the light most favorable to, and draw all reasonable inferences in favor of, the non-moving party. Id. When the complaint alleges a violation of civil rights, this standard is applied with particular strictness. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994).
To make a showing of a violation of 42 U.S.C. § 1983, a plaintiff must allege (1) that some person has violated the Plaintiff's Constitutional rights, or a right established by federal law and (2) that the person alleged to have violated such rights acted under the color of state law. Parratt v. Taylor, 451 U.S. 527, 535 (1981). "When examining a suit brought under § 1983, it is the duty of the court to examine whether Plaintiffs have alleged sufficient facts which, if proved, would comprise an actionable deprivation of a federal right." LaCorte v. Hudacs, 1996 WL 590735 at *3 (N.D.N.Y. 1996) citing Robinson v. Mount Vernon, 654 F. Supp. 170, 172 (S.D.N.Y. 1987). This Court shall apply these standards in its examination of each of the claims brought by the Plaintiffs
ENTRY INTO THE APARTMENT TO SEARCH FOR AND ARREST A PAROLE VIOLATOR
Parole officers are authorized to make arrests in the residences of parolees. New York Executive Law § 259-i, subd. 3(a)(iii). The officers did not have to obtain consent to enter the apartment if they had a warrant for Warren's arrest and a reasonable belief that he was inside the apartment. United States v. Lauter, 57 F.3d 212, 214 (2d Cir. 1995). This is true even if Warren was a third-party guest in the residence. Id.
The pleadings, when read in the light most favorable to the Plaintiffs, clearly indicate that Warren was a resident of the apartment at the time of his arrest, and not a third-party guest. He had resided for approximately a year in the apartment with his "common law wife" and his child, parole officers had made previous visits to this address, and the Plaintiffs failed to proffer an alternative residence for Warren.
The consent of the residents of the household is inconsequential in determining the lawfulness of this entry to effectuate an arrest pursuant to a valid arrest warrant. It is not necessary for this court to determine whether or not Carol Williams consented to the entry. Consent was not required for the officers to enter the residence and arrest Warren.
*3 Plaintiffs mistakenly interpret Diaz v. Ward, 506 F. Supp. 226 (S.D.N.Y. 1980) as holding that parole officers cannot enter a residence without the consent of the occupants. The facts presented in Diaz are easily distinguished from those in the case at bar. The officers in Diaz were entering the residences of parolees without warrants for their arrest, whereas in this case the Plaintiffs concede that the officers displayed an arrest warrant.
The Plaintiffs can prove no set of facts that could establish that the officers' entry into their apartment deprived the Plaintiffs of their Constitutional rights. As a matter of law, the Plaintiffs had no right to forbid the officers from entering their home to make an arrest. The Defendants' motion for judgment on the pleadings with regard to the officers' nonconsensual entry into the apartment to arrest the parole violator is therefore granted.
SEARCH OF THE BEDROOM
The Plaintiffs have alleged facts regarding the search of the bedroom that could, if proven true, establish a violation of the Plaintiffs' Constitutional rights under 42 U.S.C. § 1983. It would therefore be inappropriate to grant the Defendants' motion for judgment on the pleadings. The Defendants have failed to show that the search of Jacqueline Williams' room was Constitutional as a matter of law.
Defendants assert that Plaintiffs failed to allege that the search was unreasonable, but it is clear from the complaint that this is the nature of their claim.
1. Search to Protect Personal Safety of Officers
The Defendants argue that they were not required to have a search warrant because the search of the bedroom was pursuant to a lawful arrest. The Defendants cite cases that authorize searches conducted to "protect the [[[] personal safety" of the officers at the time of arrest. Def. Br. at 14. These searches were limited to a "pat down" of the person. United States v. Robinson, 414 U.S. 218 (1973); United States v. Polito, 583 F.2d 48 (2d Cir. 1978). Another case cited by the Defendants involved a sweep for dangerous individuals at the scene of the arrest. Maryland v. Buie, 494 U.S. 325 (1990). Still another involved a search for evidence of a parole violation, based on probable cause. United States ex rel. Santos v. New York State Bd. Of Parole, 441 F.2d 1216 (2d Cir. 1971). In short, none of the cases cited by the Defendants supports the type of search at issue in this case.
The search at issue here was not a protective search, nor was it a search based on probable cause for evidence of a parole violation. When asked the purpose of the search, Officer Collings replied that he was looking not only for weapons, but for both weapons and drugs. A search for drugs and weapons is obviously qualitatively different than a search for a person. In addition, there is no indication in the pleadings that the officers were looking for another potentially dangerous individual in their search of the bedroom. None of the cases cited by the Defendants justify the search in this case.
Furthermore, a protective search of the immediate area around the arrestee must be premised on the officer's reasonable determination that the particular situation or arrestee is dangerous. United States v. Blue, 78 F.3d 56 (2d Cir. 1996). This determination is based on several factors; if the individual will be left alone for any period of time, the number of officers at the scene as compared to others present, and any restraints placed on the person arrested.
*4 The Plaintiffs assert that the officers conducted their search of the room after Warren had been handcuffed, and he was not a danger to the officers. Additionally, there was one officer present for every adult member of the household. Neither the residents of the apartment nor the parolee were a danger to the officers, and this search was not necessary to secure the safety of the officers.
This Court acknowledges United States v. Hernandez, 941 F.2d 133 (2d Cir. 1991). Hernandez upheld a search of the mattress and the box spring of the bed on which officers planned to place the handcuffed person. Since this search went beyond a protective sweep, that case is inapposite.
The actions and statements of the officer, as articulated by the Plaintiffs, clearly indicate that this was not a protective sweep, but a search for contraband. The mere words of defense counsel cannot change the nature of the search. This warrant was only for the arrest of Warren, and did not authorize any further search of his residence. It is well established that a search incident to an arrest is limited to the person and the area within his or her reach. Chimel v. California, 395 U.S. 755 (1969). Any further search of a parolee's residence, including his own bedroom, requires a search warrant. Diaz v. Ward, 506 F. Supp. 226, 227-28 (S.D.N.Y. 1980).
2. Search Permitted as a Condition of Parole
The Defendants claim that Warren, as a condition of his parole, consented to searches of his person and property. The Parole Board's own regulations, however, clearly set limits on the extent of searches during the rearrest of parolees. When there is a warrant for the arrest of a parolee, "the search is to determine presence of the person named in the warrant" and can only search "those areas incident to lawful arrest." New York State Division of Parole, Policy and Procedures Manual, Search and Seizure, Section B.1 (Sept. 1984).
A parolee, while not absolutely free from supervision, is not wholly deprived of Fourth Amendment rights, nor should his or her status be used as a means to collect further evidence without probable cause. United States v. Polito held that the parole system is both "supervisory and regulatory" and cannot be used to justify further criminal investigations. 583 F.2d 48, 53 n. 6 (2d Cir. 1978) (citing Latta v. Fitzharris, 521 F.2d 246, 249 (9th Cir. 1975)).
In the present case, the Defendants claimed that Warren had violated the conditions of his parole. While the officers had the authority to enter his residence to arrest him for these alleged violations, they were not authorized to collect evidence of further crimes. This is not the purpose of the parole system. United States v. Polito, 583 F.2d 48, 53 n. 6 (2d Cir. 1978). If the officers had probable cause to suspect that Warren's room contained evidence of other criminal violations, they should have obtained a search warrant, as required by the Parole Division's regulations.
The Plaintiffs have therefore alleged adequate facts that, if proven true, would establish a violation of their rights under 42 U.S.C. § 1983. The Defendant's motion for judgment on the pleadings with regard to the search of the Plaintiffs bedroom is denied.
QUALIFIED IMMUNITY
*5 The doctrine of qualified immunity does not bar this suit. Officials are subjected to suits in cases such as this, where the plaintiff alleges a violation of "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It is not an adequate defense to assert that parole officers may feel "inhibited" in their ability to make decisions regarding the entry into residences. Law enforcement authorities are expected to exercise care and restraint when taking actions that foreseeably impact the liberty interests of citizens. Furthermore, the officers knew or should have known of the search limitations as set forth in the policy manual described above.
CONCLUSION
The Defendants motion for judgment on the pleadings is therefore granted in part, and denied in part. This court cannot conclude that, when reading the complaint in the light most favorable to the Plaintiffs and accepting all of their allegations as true, that a decision based on the pleadings is appropriate at this time with regard to the search of the Plaintiff Jacqueline Williams's bedroom. The claim of improper entry into the Plaintiffs' apartment is hereby dismissed. SO ORDERED.