People v. Brown

• Decision Date: 25 November 1985
• Citation: 114 A.D.2d 1035,495 N.Y.S.2d 474
• Parties: The PEOPLE, etc., Respondent, v. Barrington BROWN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 474

495 N.Y.S.2d 474

114 A.D.2d 1035

The PEOPLE, etc., Respondent, v. Barrington BROWN, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 25, 1985.

John F. Middlemiss, Jr., Ronkonkoma, (Alfred J. Cicale of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead, (Daniel J. Murphy, of counsel; Randy Zelin on brief), for respondent.

Before MANGANO, J.P., and BROWN, RUBIN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT

Appeal by defendant from an amended judgment of the Supreme Court, Suffolk County (McInerney, J.), rendered August 16, 1984, which adjudicated him in violation of probation, after a hearing, and imposed a sentence of three months imprisonment.

Amended judgment affirmed, and case remitted to the Supreme Court, Suffolk County, for further proceedings pursuant to CPL 460.50(5).

In 1982, after a plea of guilty, defendant was sentenced, inter alia, to five years probation for criminal possession of marijuana in the third degree. Subsequently, defendant was notified to report to his probation officer. When he did so, he was taken into custody pursuant to an arrest warrant. He was then driven to his home, which was searched by the probation officer and several police officers. A quantity of fertile marijuana seeds was discovered. Defendant moved to suppress the seized evidence on the ground that a search order pursuant to CPL 410.50(3) was never obtained. The motion was denied.

When there is no waiver, and no exigent circumstances, a probation officer may not search a probationer's personal property, except as incident to arrest, unless a search order pursuant to CPL 410.50(3) is first obtained (see, People v. Jackson, 46 N.Y.2d 171, 176, 412 N.Y.S.2d 884, 385 N.E.2d 621). However, a probationer may consent, as a condition of probation, to permit certain types of searches, so long as the condition imposed is in keeping with the purposes to be served by the sentence of probation, and such a search may be conducted where there is a reasonable belief on the part of the probation officer that it is necessary to properly perform his or her duty (see, United States v. Consuelo-Gonzalez, 9th Cir., 521 F.2d 259).

At bar, defendant had been charged with the same crime for which he was sentenced to probation. In these circumstances, where there was a prior judicial determination, as evidenced by the arrest warrant, that reasonable cause existed to believe that defendant had violated the terms of his probation (see, ...