People v. Hale

• Decision Date: 10 June 1999
• Citation: 692 N.Y.S.2d 649,93 N.Y.2d 454,714 N.E.2d 861
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BRYAN HALE, Appellant.
• Court: New York Court of Appeals Court of Appeals

93 N.Y.2d 454

714 N.E.2d 861

692 N.Y.S.2d 649

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BRYAN HALE, Appellant.

Court of Appeals of the State of New York.

Argued May 6, 1999.

Decided June 10, 1999.

Kelder, Kane & Associates, Manlius (Gary T. Kelder of counsel), for appellant.

James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Michael J. Miller of counsel), for respondent.

Eliot Spitzer, Attorney General, Albany (Julie S. Mereson, Preeta D. Bansal, Peter H. Schiff and Nancy A. Spiegel of counsel), amicus curiae.

Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur.

OPINION OF THE COURT

ROSENBLATT, J.

As a condition of probation in connection with a negotiated plea and sentence, defendant consented in writing to provisions permitting his probation officer to search his person, his vehicle, and his "place of abode" for illegal drugs and narcotic implements, during the period of probation. Claiming that his consent is legally inoperative, defendant asserts that the search provision is violative of his constitutional and statutory rights. We disagree, and hold that the provision served as a lawful basis for the seizure of evidence resulting in the charges on appeal.

Defendant was initially convicted of Criminally Negligent Homicide (a class E felony under Penal Law § 125.10) and Operation of a Vessel While Under the Influence of Alcohol or Drugs (an offense under Navigation Law § 49-a [2]) for having caused the death of a young woman who was swimming when he struck her with his motor boat, which he operated while he was impaired. Considering that the homicide conviction carried a potential maximum of four years imprisonment, the prosecution, the defendant, and the court agreed to a disposition by which the defendant would plead guilty, and the court would impose a sentence of probation with stringent supervision. For his part, and in order to obtain the benefits of the negotiated plea and sentence, defendant signed the terms of probation and waived his right to appeal. The terms included mandatory drug testing and drug treatment when ordered by the Probation Department. It also included the provision at issue before us:

"That you permit search of your vehicle and place of abode where such place of abode is legally under your control, and seizure of any narcotic implements and/or illegal drugs found, such search to be conducted by a Probation Officer or a Probation Officer and his agent."

There was evidence at the suppression hearing that after defendant had been on probation for several days, his probation officer reviewed the terms of probation with him, including the provision at issue, as well as defendant's obligation to provide urine samples to detect controlled substances. Over the next several months, defendant tested positively for drugs on four occasions. The probation officer intermittently warned defendant that these results could lead to a violation of probation. He also visited defendant, and increased defendant's drug counseling sessions, but eventually concluded that defendant would have to continue his probation in an in-patient program for cocaine abuse, and told him so.

Shortly thereafter, approximately 10 months into the probation term, the probation officer received a call from the mother of the woman whose death defendant had caused. She told the probation officer that defendant was selling drugs out of his home and that she knew this because her son had bought drugs from him. Based on all of the circumstances and on the strength of the above-quoted condition of probation, the probation officer accompanied by the defendant¹ and by police officers, entered defendant's house. In the ensuing search, the authorities discovered rifles, shotguns, illicit drugs, and a scale, resulting in defendant's indictment for the instant drug and weapon charges.

Defendant moved to suppress the evidence, contending that in the absence of a search warrant, exigent circumstances, or a voluntary, contemporaneous consent, a probationer may be searched only if a court has issued a CPL 410.50 (3) search order. He claims that notwithstanding the consent-search provision, the search in issue violated his constitutional and statutory rights. After a hearing, Supreme Court agreed and granted defendant's motion to suppress. The Appellate Division reversed the suppression order. A Judge of this Court granted leave to appeal and we now affirm.

We begin with the premise that a probationer's home is protected by the constitutional requirement that searches be reasonable (see, US Const 4th Amend; NY Const, art I, § 12; see also, Griffin v Wisconsin, 483 US 868, 873; People v Jackson, 46 NY2d 171, 177). It all comes down to what is "reasonable" under the circumstances, bearing in mind that the reasonableness of a search is measured by, among other things, the relative privacy expectation and entitlement of the person to be searched. For example, a defendant on probation does not stand in the same constitutional shoes as someone entirely free of judicial supervision and control. At one extreme, a person who has just been lawfully placed under arrest for armed robbery has an expectation of privacy vastly inferior to a law-abiding citizen who is enjoying a quiet evening at home. A defendant on probation is at neither extreme of the constitutional spectrum.

Griffin v Wisconsin (483 US 868, supra) takes us part way toward resolving the issue before us. It establishes that under Fourth Amendment law as applied to probation searches the Constitution does not call for standard adherence to the usual warrant and probable cause requirements. In Griffin the Supreme Court pointed out that probationary status—which, like parole,² involves conditional as opposed to absolute liberty—falls under a "special needs" category that may justify departures from the customary constitutional standards that apply in other settings (483 US at 873-874).

The Griffin Court, however, did not simply dispense with the warrant requirement and let it go at that. The Court recognized, as this Court did in People v Jackson (46 NY2d 171, supra), that a probationer loses some privacy expectations and some part of the protections of the Fourth Amendment, but not all of both. In Griffin, the warrantless probation search was conducted pursuant to a probation regulation promulgated under the Wisconsin State Administrative Code that satisfied the Fourth Amendment's reasonableness requirement (483 US at 873).³ In the case before us the search was not conducted pursuant to a State regulation but under a provision which, we hold, carries as much if not more constitutional weight: a court-ordered probationary condition, based on a negotiated sentence, and the written, counseled consent of the probationer.⁴

Although this Court has never addressed the issue of whether a consent search provision may be enforceable as a condition of probation, we note that such provisions have withstood constitutional challenge (see, e.g., United States v Germosen, 139 F3d 120 [2d Cir 1998], cert denied ___ US ___, 119 S Ct 829; United States v Schoenrock, 868 F2d 289 [8th Cir 1989]; People v Bravo, 43 Cal 3d 600, 738 P2d 336, cert denied 485 US 904; State v Gawron, 112 Idaho 841, 736 P2d 1295; see generally, Comment, The Fourth Amendment Rights of Probationers: What Remains After Waiving Their Right to Be Free From Unreasonable Searches and Seizures?, 35 Santa Clara L Rev 1237 [1995]; Comment, Conflicting Perspectives from the Bench and the Field on Probationer Home Searches— Griffin v Wisconsin Reconsidered, 1989 Wis L Rev 607 [1989]; Annotation, Validity of Requirement that, as Condition of Probation, Defendant Submit to Warrantless Searches, 79 ALR3d 1083).

We agree with this line of authority insofar as the court-ordered provision and consent were circumscribed to specified types of searches by probation officers acting within the scope of their supervisory duty and in the context of the probationary goal of rehabilitation. In making this determination, we note that a probationer's status is defined by a number of considerations that have been developed under statutory and decisional law. They relate, in the main, to the mix of freedom and restriction that comprises the condition of probation.

In New York, as in other jurisdictions, a sentence of probation is an option among various sentencing alternatives short of confinement. The probationer, although not physically confined, remains "in the legal custody of the court" for the probationary period (CPL 410.50 [1]; People v Rodney E., 77 NY2d 672, 675). Probation contemplates and even requires a level of official supervision substantial enough "to insure that the defendant will lead a law-abiding life" (Penal Law § 65.10 [1]) or to assist the probationer toward that goal (see, Penal Law § 65.10 [1]). In keeping with the objective, a sentencing court will typically include a number of standard, statutorily based requirements of probation relating to treatment, employment, restitution, affiliations, family obligations, community service, or other concerns. This statutory list (Penal Law § 65.10 [2] [a]-[k]) does not purport to be complete, nor must every requirement be imposed in every case (see generally, Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law art 65, at 300-307). The conditions and requirements are to be tailored to suit the probationer, and for that reason Penal Law § 65.10 (2) (l) empowers the sentencing court to require that the probationer "[s]atisfy any other conditions reasonably related to his rehabilitation."

In reviewing the thrust of the probationary sentence before us, we conclude readily that the court concentrated on the statutory goal that the conditions be fundamentally rehabilitative (People v McNair, 87 NY2d 772, 774; People v Letterlough, 86 NY2d 259, 265), and imposed them accordingly. The condition in...