Diaz v. Ward, 75 Civ. 1194-CSH.
| Decision Date | 06 November 1980 |
| Docket Number | 75 Civ. 1194-CSH. |
| Citation | 506 F. Supp. 226 |
| Parties | Carmen DIAZ et al., Plaintiffs, v. Benjamin WARD et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
David Rudenstine, Arthur Eisenberg, New York Civil Liberties Union, New York City, for plaintiffs.
Robert Abrams, Atty. Gen. of the State of N. Y., New York City, for defendants; Donald Sticklor, Asst. Atty. Gen., New York City, of counsel.
Plaintiffs in this class action are parolees under the criminal justice system of the State of New York, and all individuals residing in private living quarters with parolees. Alleging that the defendants, officials charged with the administration of the parole program, have violated their constitutional rights, plaintiffs pray for declaratory relief, and for compensatory and punitive damages. The nature of plaintiffs' claims is discussed in detail in this Court's opinion granting class certification and denying defendants' motion for judgment on the pleadings. 437 F.Supp. 678.
Following pre-trial discovery, the parties filed cross-motions for partial summary judgment. I referred those motions to the Hon. Nina Gershon, United States Magistrate, for report and recommendation. The motions addressed the constitutionality of defendants' policies in respect of searches by parole officers of parolees' residences, and visits by parole officers to such residences. Plaintiffs contend that a parole officer should obtain a warrant before conducting a search of a parolee's residence, or making a visit to the premises. Defendants contend that a warrant is not required in either circumstance.
In a comprehensive and scholarly opinion, Magistrate Gershon recommended:
"... that summary judgment be granted in favor of plaintiffs to the extent of declaring that, unless an established exception to the Fourth Amendment warrant requirement is applicable, a parole officer must secure a warrant prior to conducting a search of a parolee's residence and further declaring that, to the extent defendants' Policy Statement purports to authorize parole officers to conduct warrantless searches when none of the established exceptions apply, it is unconstitutional." Opinion at 25.
As to the question of home visits, the Magistrate recommended that summary judgment not be granted to either side, pending further development of the "parole officers' actual practices in home visits." Id. at 29. Magistrate Gershon perceived such factual development as necessary in order to determine "whether the entry into the home by a parole officer in itself constitutes a search requiring a warrant under the Fourth Amendment." Id. at 27.
Both parties appealed the Magistrate's recommendations.
I confirm the Magistrate's recommendation with respect to the requirement of a warrant before conducting a search of a parolee's residence. On that aspect of the case, I adopt her reasoning as my own. In contending that parolees fall outside the protection of the Fourth Amendment, defendants place primary reliance upon Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), a Supreme Court decision rendered subsequent to this Court's ruling on defendants' dispositive motion. While there is broad language in Greenholtz which could be read to support defendants' perception of a parolee's limited constitutional rights, in point of fact Greenholtz considered an incarcerated prisoner's due process entitlements in respect of his parole release procedures. The Court, upholding Nebraska's parole release procedures against constitutional attack, distinguished parole release from parole revocation in these terms:
...
To continue reading
Request your trial
-
U.S. v. Newton
...parolees have traditionally been subjected." United States v. Trzaska, 866 F.Supp. 98, 101-02 (E.D.N.Y.1994) (citing Diaz v. Ward, 506 F.Supp. 226, 228-29 (S.D.N.Y.1980)). By signing the certificate of release, Newton agreed to allow his parole officer to visit him at Newton argues that the......
-
Souders v. Kroboth
...and State v. Simms, 10 Wash.App. 75, 516 P.2d 1088 (1973) (indicating that parole officer needs no warrant to search) with Diaz v. Ward, 506 F.Supp. 226 (S.D.N.Y.1980); United States ex rel. Coleman v. Smith, 395 F.Supp. 1155 (W.D.N.Y.1975); United States v. Lewis, 274 F.Supp. 184 (S.D.N. Y......
-
U.S. v. Rea
...delineated circumstances. Further, a probation officer does not need a warrant to visit the home of a probationer. See Diaz v. Ward, 506 F.Supp. 226, 228-29 (S.D.N.Y.1980); cf., Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971). Thus, a probation officer is entitled to condu......
-
US v. Trzaska
...by parole officers are among the lawful restrictions to which parolees have traditionally been subjected. See, e.g., Diaz v. Ward, 506 F.Supp. 226, 228-29 (S.D.N.Y. 1980) (interpreting home visit provision of New York State law). While there is no federal statute that expressly grants parol......