People v. Bermudez

• Citation: 11 N.Y.S.3d 827,49 Misc.3d 381
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Angel BERMUDEZ, Defendant.
• Decision Date: 19 June 2015
• Court: New York County Court

49 Misc.3d 381

11 N.Y.S.3d 827

The PEOPLE of the State of New York, Plaintiff,

v.Angel BERMUDEZ, Defendant.

County Court, Monroe County, New York.

June 19, 2015.

ADA Gregory Clark, for The Monroe County District Attorney (Sandra Doorley).

Michael Schiano, for defendant.

THOMAS RAINBOW MORSE, J.

After indictment on two counts of felony drug possession, the defendant moved for suppression of cocaine and heroin seized from him and suppression of statements made to his parole officer. Resolution of those issues is made more complex due to the dearth of definitive appellate decisions regarding the constitutional benchmark for parolee searches in New York. In 2006, the United States Supreme Court found the Fourth Amendment was not offended by "suspicionless" searches of parolees. Yet, since that decision in Samson v. California¹ [hereinafter Samson ], no New York appeals court has specifically addressed the effect of Samson on state parolee searches. For the reasons which follow, this court has evaluated the search of Mr. Bermudez pursuant to New York precedent, finds the search unconstitutional, and suppresses the physical evidence and statements obtained from him by parole officers.

Facts

A hearing on the propriety of the search of parolee Bermudez was held. No exhibits were introduced by the People and the proof consisted simply of the questioning of two parole officers. After considering the substance of their testimony, the tone and timber of their voices, observing aspects of their demeanor and appraising other non-verbal cues, the court finds the following facts based on the credible evidence presented.

On St. Patrick's Day evening in 2014, four parole officers accompanied by a uniformed Rochester Police officer went to the area of 81–89 Cleon Street in the City of Rochester. They all arrived sometime after 8:00 PM to conduct a home visit of a parolee other than Mr. Bermudez. Their presence was prompted by a report that someone had "shot at" the other parolee's house a few nights earlier. There is no proof before the court that Mr. Bermudez had any association with that house or that he and the other parolee were associates or even acquainted with each other. Importantly, the parole officers were not there to check on Mr. Bermudez who lived in another neighborhood. In fact, although Mr. Bermudez's parole officer was present, he was there in a supporting role to assist in the unrelated home visit. When that officer first saw parolee Bermudez, the defendant was standing close to a car parked across the street from the home the four parole officers had come to inspect. At that point, Mr. Bermudez had less than four hours left under parole supervision. Nonetheless, his parole officer approached him, immediately placed him in handcuffs, pat searched him and then seized several packets of suspected narcotics found on Mr. Bermudez. After undertaking all those actions, the parole officer for the first time that evening engaged Mr. Bermudez in conversation.² Still, he apparently did not ask the parolee what he was doing in the area. Instead, he asked him why he had the drugs. He then turned the handcuffed Mr. Bermudez over to another parole officer who searched him prior to placing him in a vehicle. That search resulted in the discovery of additional narcotics.

The court further finds that before the above contact with Mr. Bermudez, his parole officer had never searched him on any of the officer's eight prior contacts with the parolee. The court also finds that although Mr. Bermudez was just four hours from completion of his five years of parole supervision, this parole officer had been assigned to supervise him for less than three months. Lastly, based on the credible evidence, the court finds that given the time of initial contact between this parolee and his parole officer, Mr. Bermudez had sufficient time to make it home before his 9:00 PM curfew was to begin.

Parolee Searches under the Federal Constitution

The exclusionary rule precluding the prosecution from using tainted evidence derived from unconstitutional searches and seizures applies to all state court prosecutions.³ As noted by our highest state court, the " rule was originally created to deter police unlawfulness by removing the incentive to disregard the law, [it] also serves to insure that the State itself, and not just its police officers, respect the constitutional rights of the accused."⁴ While it has been applied to the use of "tainted" evidence at parole revocation hearings in our state,⁵ it is clear that an arrest itself is not a suppressible fruit.⁶ Therefore, the only issue before the court is suppression of physical evidence and statements, not dismissal of the charges.

Accordingly, it becomes necessary for this court to consider the impact of Samson on the constitutionality of parolee searches in New York. In that 2006 case, the Supreme Court held that "the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee."⁷ At issue was a California statute which explicitly provided that every parolee in California is "subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause."⁸ The court noted specifically that it did not need to reach the issues of whether parolees consented to a waiver of their constitutional rights by acceptance of the search conditions or if the search condition could be justified due to the "special needs" of parole supervision.⁹ Instead, the court based its decision on the reasonableness of the state statutory scheme regarding parolees.

Both the United States and New York Constitutions contain identical language regarding the protection against unreasonable searches and seizures.¹⁰ Accordingly, our Court of Appeals has generally premised its rulings on both state and federal grounds. However, since "a state is free as a matter of its own law to impose greater restrictions on police activity" than required under "federal constitutional standards,"¹¹ the New York Court of Appeals "has demonstrated its willingness to adopt more protective standards under the State Constitution when doing so best promotes predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens."¹² In fact, the Supreme Court in Samson specifically allowed for "some States and the Federal Government [to] require a level of individualized suspicion" in parolee search cases under statutes specifically related to the needs of those jurisdictions.¹³ New York cases have developed such state specific standards.

Parolee Searches in New York State

When it decided People v. Huntley¹⁴ [hereinafter Huntley ] in 1977, the New York Court of Appeals composed clear criteria by which parolee searches and seizures are to be measured. The court held that whether the action was unreasonable and thus prohibited by constitutional proscription must turn on whether the conduct of the parole officer was rationally and reasonably related to the performance of the parole officer's duty. It 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.¹⁵

This unambiguous standard grants New York parolees greater protection under the exclusionary rule than that afforded California parolees as outlined in Samson. It restricts and defines the more general regulatory release condition that allows parole officers to visit the parolee's "residence and/or place of employment and [permits] the search and inspection of [the parolee's] person, residence and property."¹⁶ Because of the special status of parolees in our community, the Huntley standard supplants the more general rules normally applicable to police/citizen street encounters.¹⁷ While the court in Huntley acknowledged the standard does not mean a parolee gives up the constitutional right to be free from "unreasonable searches and seizures,"¹⁸ it nonetheless found that "conduct which may be unreasonable with respect to a parolee if undertaken by a police officer may be reasonable if taken by the parolee's own parole officer."¹⁹

The special powers given an individual's parole officer are based, in part, on the Huntley court's conclusion that release from jail on parole is "a matter of legislative grace"²⁰ granted with the hope that with the assistance of the parole officer the parolee will successfully reintegrate into society without the need for further incarceration. Accordingly, the Huntley court noted that a supervising parole officer performs at least two necessary and "potentially inconsistent" functions. The officer has an obligation to detect and to prevent parole violations for the protection of the public from the commission of further crimes; he also has a responsibility to the parolee to prevent violations of parole and to assist him to a proper reintegration into his community. Thus, the parole officer's responsibility to the parolee might be expected in some instances to warrant procedures which would not be reasonable if the officer were acting to discharge his obligation to the public only. Clearly he does not have a carte blanche, however, to intrude on the private life and affairs of the parolee.²¹

Cases since Huntley, therefore, illustrate the need to balance those difficult disparate duties of a parole officer while preserving the officer's "right to conduct searches rationally and substantially related to the performance of [the officer's] duty."²²

Since 1977, situations in which a parolee search has been upheld have included those in which the officer had: a "parole violation warrant" for the parolee;²³ discovered a parole violation "during a routine home visit;"²⁴ obtained a positive drug test during a parolee office visit;²⁵ noticed a parole violation...