People v. Chinnici

• Decision Date: 12 September 1966
• Citation: 51 Misc.2d 570,273 N.Y.S.2d 538
• Parties: PEOPLE of the State of New York, Plaintiff, v. Joseph CHINNICI, Defendant.
• Court: New York County Court

Page 538

273 N.Y.S.2d 538

51 Misc.2d 570

PEOPLE of the State of New York, Plaintiff, v. Joseph CHINNICI, Defendant.

Nassau County Court, Special Term, Part I.

Sept. 12, 1966.

William Cahn, Dist. Atty., Nassau County, Mineola, for the people.

Harry H. Kutner, Mineola, for defendant.

DOUGLAS F. YOUNG, Judge.

This is a motion to suppress as evidence a revolver which defendant alleges is the product of an illegal search.

In a well-reasoned memorandum of law the petitioner sets forth arguments to the effect that the search exceeded constitutional bounds as it was not related to the cause of the arrest, nor was it reasonably contemporaneous, nor was it confined to the area of the arrest. He makes no reference to the issue posed by the defendant's status as a probationer. I believe that this is the controlling factor in the situation.

The defendant had been placed on probation with the Nassau County Probation Department, under the supervision of Senior Supervisor Treuchtlinger who testified that the probation officer in charge of the case had received information from a confidential source that the defendant was in possession of a revolver. Mr. Treuchtlinger refused to divulge the source of the information at the hearing and was sustained by this Court. He testified that he made a search of court records and found that there was a traffic violation charged against the defendant-probationer. Mr. Treuchtlinger had a warrant issued, based on the unanswered traffic summons. Presumably Mr. Treuchtlinger could have obtained a warrant of arrest for violation of probation for the failure to answer this summons. However, he elected to make an arrest of the probationer armed with the warrant based on the traffic violation.

Mr. Treuchtlinger testified that the defendant was found in his automobile on a street near the home of his estranged wife. He was arrested and a search of his person revealed nothing. It was a cold day and the streets were filled with snow. The police officers took the defendant to the police station and the probation officer followed in the defendant's automobile. Officer Kramer testified that the defendant denied he had a key to the trunk of his car but a search of his person at the police station revealed the key. The key was then used by the officers to open the trunk of the car which was parked in the police station lot. A revolver was revealed which is the subject of this hearing.

I find that the search was not related to the violation which occasioned the arrest and therefore cannot be sustained as reasonable. (Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; United States v. Robinson, 2 Cir., 325 F.2d 391; People v. Rodriguez, 47 Misc.2d 551, 262 N.Y.S.2d 859). It remains to consider the effect of defendant's status as a probationer.

There is little in the reported opinions to provide authority upon the question of the rights of a probationer. There are some cases concerning the rights of a parolee. (People v. Langella, 41 Misc.2d 65, 244 N.Y.S.2d 802). Whether a probationer has greater or lesser protection from an invasion of his constitutional privileges than a parolee appears to be an open question. In some instances courts have used the word 'parole' in discussing a situation which involves probation (People v. Oskroba, 305 N.Y. 113, 111 N.E.2d 235, rearg. den. 305 N.Y. 696, 112 N.E.2d 778; People ex rel. Galea v. McCoy, 14 A.D.2d 979, 221 N.Y.S.2d 417) but this is not sufficient to permit an inference that the rights of the two are identical. Definitions of probation and parole are available in reported cases but these do not provide a delineation of the respective rights of the two.

However, in my opinion there is sufficient similarity between the status of the two to permit the cases concerning a parolee to be used as guidance in the cases of a probationer.

There is a division of authority on the question as to whether a parolee enjoys the constitutional protection against unreasonable search and seizure granted to other citizens. In the California courts, the rule is that the rights of a parolee are not violated by a search of his home or effects without a warrant. (People v. Gastelum, 237 Cal.App.2d 205, 46 Cal.Rptr. 743; People v. Hernandez, 229 Cal.App.2d 143, 40 Cal.Rptr. 100; People v. Robarge, 151 Cal.App.2d 660, 312 P.2d 70; People v. Triche, 148 Cal.App.2d 198, 306 P.2d 616; People v. Denne, 141 Cal.App.2d 499, 297 P.2d 451).

In the decisions of federal courts dictum can be found stating that a parolee is entitled to constitutional protection from an illegal search and seizure. (Brown v. Kearney, 355 F.2d 199 (C. of A.5th Circuit); Martin v. United States, 4 Cir., 183 F.2d 436, cert. den. 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654).

In People v. Randazzo, 15 N.Y.2d 526, 527, 254 N.Y.S.2d 99, 100, 202 N.E.2d 549, 550, the parolee was arrested pursuant to a warrant specifying that he had violated his parole. He was arrested at his home and then a two and one-half hour search of his apartment was conducted (according to the dissenting memorandum). The search was sustained by the court with the simple statement: 'as a parolee, (he) was deprived of no constitutional rights by the search and seizure * * * under the circumstances of this case * * *.' In the case at hand the warrant of arrest was not based on the parole violation. However, I do not think that the fact that the defendant was arrested on the basis of a warrant issued for a traffic violation changes the effect of the basic fact that he was a probationer, or that it alters the determination of this issue.

Were the defendant an ordinary citizen who had not been convicted of a crime, or, if a convict, if he had served his sentence either in jail or on...