Opinion
252776-09.
Decided August 13, 2010.
Petitioner, Jonathan Vasquez, was represented by Elon Harpaz, The Legal, Aid Society.
Respondent was represented by Michael Arcati, Assistant Attorney, General.
On August 2, 2010, this court conducted a hearing pursuant to Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed.2d 1081 (1961). Although the court in its decision dated May 26, 2010, stated that it denied Petitioner's application for a Writ of Habeas Corpus but granted the branch of the application for a Mapp hearing, what the court in essence did was to deny the Writ of Habeas Corpus pending the outcome of the Mapp hearing. Respondent filed a motion for reargument which this court denied in its decision dated July 7, 2010. At the Mapp hearing Parole Officer Kevin O'Connor ("PO O'Connor") and Luna Suarez, Petitioner's mother, both testified. Based on the testimony of Luna Suarez whom this court fully credits, and the testimony of PO O'Connor whom this court credits in part, Petitioner's applications to suppress the box cutter and the knife and for a Writ of Habeas Corpus are granted.
FINDINGS OF FACTS
Petitioner, Jonathan Vasquez, was convicted of Assault in the Second Degree on September 20, 2007, in Richmond County, and was sentenced to a term of two years of incarceration. On April 28, 2009, he was released on parole with a post-release supervision. As a condition of his release, Petitioner agreed to abide by the term and conditions imposed on him by the Division of Parole. His assigned parole officer was PO O'Connor who was assigned to Staten Island where Petitioner resided. Petitioner resided in Staten Island in a two-floor house with his mother and four siblings. On September 29, 2009, at about 11:00 a.m., New York City Police Department ("NYPD") Detective Michael Guariano ("Det. Guariano") of the 120 Precinct, Staten Island, called PO O'Connor on the telephone and told him that he intended to arrest Petitioner because an eyewitness had positively identified Petitioner as the perpetrator who, on September 10, 2009, fired shots into the windows of the rectory of a catholic church across from where Petitioner resided, and a shell casing was recovered. Prior to the telephone call, PO O'Connor was not aware of the shooting incident or of any complaints from the community about Petitioner. He had no indication that Petitioner was in anyway violating the conditions of his parole.
During the telephone call, Det. Guariano asked PO O'Connor to search Petitioner's residence to see if he could recover the gun. PO O'Connor conferred with Senior Parole Officer John Zwaryczuk ("SPO Zwaryczuk"). They then spoke with Det. Guariano and explained that their search would be limited to Petitioner's bedroom as other people also lived at the residence.
Approximately one hour later, at about 12:15 p.m. on September 29, 2009, PO O'Connor and SPO Zwaryczuk went to Petitioner's residence where they met Det. Guariano and two other NYPD officers, a detective and a lieutenant. PO O'Connor told the members of the NYPD to remain in their car which was parked across the street from Petitioner's residence while he and SPO Zwaryczuk knocked on the front door of Petitioner's residence. They were told by Petitioner's brother that he had gone to the store. Petitioner returned shortly and PO O'Connor immediately handcuffed him outside of his residence for safety reasons while they conducted the search, and because Petitioner was going to be arrested by Det. Guariano.
After Petitioner was handcuffed, the parole and the NYPD officers all entered Petitioner's residence and proceeded to the second floor where Petitioner's bedroom was located. Two officers, one of whom was PO O'Connor, searched Petitioner's room, two officers stayed with Petitioner on the stairs. PO O'Connor was focused on the search of Petitioner's bedroom and was unaware of any other activities in the house. He believed that the NYPD lieutenant remained downstairs while he searched Petitioner's bedroom. Ms. Suarez recognized PO O'Connor as one of the officers who searched Petitioner's bedroom because he had been to her home before as her son's parole officer. She also recognized the two detectives who were with him because they had been in the neighborhood and to her home during their investigation of the shooting at the rectory. She described the second person who searched Petitioner's bedroom as one of the two detectives who had been to her home previously. She described him as having caramel colored skin and piercing green eyes.
Ms. Suarez was on the second floor when the officers entered her home and remained there because the officer prevented her from leaving. During the search of Petitioner's bedroom, Ms. Suarez heard footsteps and boxes and furniture being moved on the hardwood floor on the first floor. After the officers left, she saw evidence that the first floor had been searched since it was not in the same condition that she had it in before they had arrived at her home. She saw that the sofa in the living room was moved from the wall and the cushions taken out; boxes in the living room were moved and opened; the flour and coffee in the kitchen were poured out; the milk and tupperware in the refrigerator were knocked down; the back door was opened; and the curtain was also knocked down.
Prior to September 29, 2009, PO O'Connor knew that Petitioner had possessed a weapon in the past based on the nature of the underlying charges that led to his incarceration. However, on the four prior occasions that he visited Petitioner's residence, he neither conducted a search of the residence nor requested back up by NYPD officers. Prior to the conversation with Det. Guariano, he had no intention of searching Petitioner's bedroom. PO O'Connor explained that Det. Guariano and the other members of NYPD were at Petitioner's residence for security reasons, as it was customary for parole officers to seek the assistance of NYPD officer when they search a parolee's residence, especially if the parole officers do not have the manpower for back-up, as was the case on September 29, 2009.
PO O'Connor recovered a twelve-inch rusty knife and a box cutter on the top of an armoire in Petitioner's room, but did not find the gun. Petitioner was taken outside where the parole officer's handcuffs were removed and Det. Guariano arrested and handcuffed him. Criminal charges were brought against Petitioner in Richmond County Criminal Court for the shooting incident, however, no criminal charges were brought against him for possession of the knife and box cutter. The only charges for possessing the knife and box cutter are the parole violation charges. The criminal prosecution was later dismissed.
On September 30, 2009, PO O'Connor lodged parole violation warrant number 580284 against the Petitioner charging him with violating three conditions of his parole by possessing a firearm, knife and box cutter. A preliminary parole revocation hearing was held on October 13, 2009, after which the hearing officer found probable cause that Petitioner violated a condition of his parole in an important respect.
CONCLUSIONS OF LAW
Petitioner's motion to suppress the knife and the box cutter lies with a writ court where there does not appear to be any underlying criminal prosecution being brought against him for possessing the knife and the box cutter. People ex rel. Coldwell v. New York State Division of Parole, 123 AD2d 458, 459, 506 NYS2d 761 (2nd Dept. 1986)[citing People ex rel. Robertson v. Division of Parole, 67 NY2d 197.
The issue before this court is whether Petitioner's constitutional right against unreasonable searches and seizures was violated when his parole officer conducted a search of his residence that was police-inspired and done for the purpose of assisting the police in obtaining evidence to be used in the prosecution of a criminal case. This court ruled in its decision dated May 26, 2010, that the exclusionary rule which prohibits the use of illegally obtained evidence applies to all stages of the parole revocation process in New York State. People ex rel. Piccarillo v. New York State Board of Parole, 48 NY2d 76, 397 NE2d 354, 421 NYS2d 842 (1979).
A parolee remains constructively in legal custody and is subject at all times to the control of the Division of Parole. People ex rel. Natoli v. Lewis, 287 NY 478, 482, 41 NE2d 62 (1942), Executive Law § 259-i(b). The Division of Parole is authorized to investigate allegations of parole violations. Executive Law § 259-a (5). See also, People v. Santos, 31 AD2d 508, 509, 298 NYS2d 526 (1st Dept. 1969), aff'd, 25 NY2d 976 (1969), cert. denied, 397 U.S. 969, 90 S. Ct. 1010, 25 L. Ed.2d 263 (1970). New York State Division of Parole's Policy and Procedures Manual Item 9405.04 authorizes parole officers to search parolees for evidence of a crime or evidence of a violation of any of the parolee's conditions of parole, where the officers have an articulable reason for conducting the search that is reasonably related to the circumstances of the particular case and is rationally related to the officer's duty to supervise the parolee.
As a condition to release into parole, a parolee signs an authorization that gives his parole officer the right to search his residence, person and property. People v. Huntley, 43 NY2d 175,182, 371 NE2d 794, 401 NYS2d 31 (1977); 9 NYCRR § 8003.2(d). However, "that authorization is not to be taken as an unrestricted consent to any and all searches whatsoever or as a blanket waiver of all constitutional rights to be secure from unreasonable searches and seizures." Id. at 182.
While parolees are subject to searches that would be not be permissible but for their parole status, they do not, however, surrender their rights against unreasonable searches and seizures in violation of the Fourth Amendment of the United States Constitution. Id. at 181 . The court in Huntley held that "a parolee's constitutional right to be secure against unreasonable searches and seizures is not violated when his apartment is searched, without a search warrant, by his parole officer if the latter's conduct is rationally and reasonably related to the performance of his duty as a parole officer." Id. at 179. A parole officer's duty is to detect and to prevent parole violations for the protection of the public from the commission of further crimes; and to help the parolee to prevent violations of parole and to assist him to a proper reintegration into his community. Id. at 181. The New York Court of Appeals has established that the test to determine whether the warrantless search by a parole officer is unreasonable and thus prohibited is whether the parole officer's conduct was "rationally and reasonably related to the performance of his duty as a parole officer." Id at 179. See also People v. Johnson, 63 NY2d 888, 890, 472 NE2d 1029, 483 NYS2d 201 (1984) (search of the defendant's apartment by his parole officer, with police assistance, after his arrest on a parole warrant "was in furtherance of parole purposes and related to his duty as a parole officer."); People v. Hale, 93 NY2d 454, 458, 714 NE2d 861, 692 NYS2d 649 (1999) (search of probationer's residence upheld where "the probation officer, although accompanied by the police, initiated and undertook the search . . . motivated by his duty to monitor the terms of defendant's probation and rehabilitation."); People v. Lopez, 288 AD2d 70,71, 733 NYS2d 154 (1st Dept. 2001), lv. denied, 97 NY2d 706, 739 NYS2d 107 (2002) (parole officers' entrance into parolee's apartment without a warrant, while accompanied by the police, found to be lawful since it was reasonably related to the parole officers' duty; parole officers were not acting as agents of the police); People v. Peterson , 6 AD3d 363 , 364, 777 NYS2d 48 (1st Dept. 2004), lv. denied, 3 NY3d 710, 818 NE2d 680, 785 NYS2d 38 (2004), cert. denied, 2008 U.S. Dist. LEXIS 47332 (S.D.NY June 18, 2008) (parole officers entering defendant's apartment and placing him in custody as a parole violator, was parole related although they were assisted by police officers who remained nearby for additional security; the parole officers did not act as agents of the police."); People v. Carrington , 25 AD3d 440 , 441, 807 NYS2d 89 (1st Dept. 2006), lv. denied, 6 NY3d 846, 816 NYS2d 752 (2006) (search of parolee's residence, with the consent of his girlfriend, upheld where parole officers were present for the purpose of conducting a home verification visit as part of their official duties, although they were cooperating with the police, who were also present, who were investigating a homicide).
The court in Huntley held that for a search by a parole officer to be "rationally and reasonably related to the performance of the parole officer's duty," "[i]t would not be enough necessarily that there was some rational connection; the particular conduct must also have been substantially related to the performance of duty in the particular circumstances." Huntley, 43 NY2d at 181. The particular circumstances in the case at bar differ from the searches that the New York Court of Appeals has found to be reasonably and rationally related to the performance of the duty of a parole officer. Prior to September 29, 2009, PO O'Connor had no information from the community or otherwise that Petitioner had violated the conditions of his parole. Det. Guariano specifically asked him to conduct a search of Petitioner's residence in the hopes of finding a gun to be used in the criminal prosecution of a case for which Det. Guariano was about to arrest Petitioner. After his initial conversation with Det. Guariano, PO O'Connor and SPO Zwaryczuk had a discussion with him during which they explained to him that they could only search Petitioner's room as other people lived at the residence. The parties agreed to meet at Petitioner's residence where PO O'Connor used the authority he had as a parole officer to search Petitioner's bedroom on behalf of the police, and allowed Det. Guariano and the other NYPD detective and lieutenant access to Petitioner's residence where members of NYPD not only participated in the search of Petitioner's bedroom, but searched the first floor of the residence without a warrant or consent, in violation of the constitution. PO O'Connor's conduct was not rationally and reasonably related to the performance of his duty as a parole officer.
The facts herein are similar to the facts in cases where the courts have suppressed evidence where it found that the conduct of the parole officer was not "rationally and reasonably related to the performance of the duties of a parole officer," but that they were acting as agents for the police. See People v. Candelaria, 63 AD2d 85, 90, 406 NYS2d 783, (1st Dept. 1978)("We find that the parole officers here were not seeking to ascertain proof of a parole violation, but rather were acting as agents of the police, thereby enabling the police to circumvent constitutional requirements"). The court in Candelaria followed the analysis of the Court of Appeals in Huntley with regards to the purpose of the search. Id. at 89. The court in Huntley analyzed the purpose of the search and found it to be "significant that there was no evidence that the searching parole officers were seeking contraband or evidence in aid of prosecution for criminal activity." Huntley, 43 NY2d at 182. In following that analysis, the court in Candelaria compared and distinguished its case from the facts in Santos:
In Santos where the facts, at least on the surface, are similar to these, the court justified the search by finding that "[t]he detective did not assist in the search." The court concluded that, although the initial information came from the police officer, who was present at the search, the parole officer was, in fact, searching to determine if the defendant had violated parole by engaging in criminal activity.
We find that the parole officers here were not seeking to ascertain proof of a parole violation, but rather were actingas agents of the police, thereby enabling the police to circumvent constitutional requirements. The search of Candelaria's apartment was clearly designed to elicit evidence of Julia's murder, and not evidence that Candelaria had violated parole by threatening Julia with a knife. (internal citations omitted).
Candelaria, 63 AD2d at 89.
The court in Candelaria concluded that when a "search is of such a nature, the parole officer becomes the conduit of the police officer in doing what the police officer could not do himself." Candelaria, 63 AD2d at 90. Similarly in the instant case, the purpose of the search was not to ascertain whether Petitioner had violated the conditions of parole, but the parole officers were acting as agents of the police as they searched for a gun in the aid of the criminal prosecution thus, enabling the police to circumvent constitutional requirements.
In People v. Mackie, 77 AD2d 778, 430 NYS2d 733 (4th Dept. 1980), lv. denied, 70 NY2d 934, 524 N.Y.S. 685 (1987), the court suppressed the evidenced recovered because the search by the parole officer, with police officers present, was not related to his duty to detect and prevent parole violations. The court found that "the search was unmistakably a search by police officers to obtain evidence in furtherance of a criminal investigation and that [the parole officer] was merely a conduit for doing what the police could not do otherwise." Mackie, 77 AD2d at 779. The court also noted that there was no testimony about any behavior by the parolee, Mackie, that was otherwise in violation of his parole, as was the situation herein. It is evident from the facts in this case that PO O'Connor and SPO Zwaryczuk were acting as conduits for the NYPD. Det. Guariano initiated and inspired the parole officers to conduct a search of Petitioner's residence, which members of NYPD participated in, the purpose of which was to obtain evidence in furtherance of the criminal case that he was investigating. Detective Guariano, if he had probable cause, could have gotten a warrant since a shell casing was recovered and an eyewitness positively identified Petitioner as the perpetrator of the crime. Instead, taking advantage of Petitioner's status as a parolee, he specifically asked PO O'Connor to conduct a search for a gun, knowing that he could not conduct such a search in his capacity as a member of NYPD without meeting the constitutional requirements. It is noteworthy that the criminal charges against Petitioner regarding the shooting on September 10, 2009, were later dismissed. The parole officers' presence on September 29, 2009 was not parole related, but was to supply a color of legality to a warrantless entry by the police into a private dwelling in violation of the parolee's constitutional protections.
Accordingly, the court finds that the knife and box cutter were recovered as a direct result of an unlawful search in violation Petitions right against unreasonable searches and seizures under the Fourth Amendment of the United States Constitution and thus, grants Petitioner's applications for the suppression of the physical evidence and for a Writ of Habeas Corpus.
Therefore, it is hereby ordered
ORDERED, that the parole warrant is vacated, and it is further,
ORDERED, that Petitioner be immediately released from custody if the parole violation warrant is the only basis for his incarceration, and it is further,
ORDERED, that upon Petitioner's release from custody he be restored to parole, if his parole has not expired.
The foregoing constitutes the Decision and Order of the court.