People v. McMillan

• Decision Date: 02 May 2017
• Citation: 29 N.Y.3d 145,53 N.Y.S.3d 590,75 N.E.3d 1151
• Parties: The PEOPLE of the State of New York, Respondent, v. Everett B. McMILLAN, Appellant.
• Court: New York Court of Appeals Court of Appeals

29 N.Y.3d 145

75 N.E.3d 1151

53 N.Y.S.3d 590

The PEOPLE of the State of New York, Respondent,

v.Everett B. McMILLAN, Appellant.

Court of Appeals of New York.

May 2, 2017.

Lynn W.L. Fahey, Appellate Advocates, New York City (A. Alexander Donn of counsel), and Everett B. McMillan, pro se, for appellant.

Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano and

Robert J. Masters of counsel), for respondent.

OPINION OF THE COURT

STEIN, J.

Defendant was convicted, following a jury trial, of criminal possession of a weapon in the second and third degrees, and unlawful possession of marihuana. Prior to trial, defendant moved to suppress a firearm recovered from his vehicle. At the ensuing hearing, a police detective testified regarding the circumstances of defendant's arrest and the challenged search.

According to the hearing testimony, the detective was assigned to a joint task force responsible for executing parole warrants, as well as investigating and apprehending parole absconders. The detective and his partner received a warrant for defendant's arrest that was issued as a result of numerous alleged parole violations. During their attempts to locate defendant, the detectives contacted his former girlfriend and provided her with their contact information in the event that she saw defendant. On the day in question, that girlfriend telephoned one of the detectives and informed him that defendant could be found in his vehicle at a specific location. However, when the detectives arrived at the location, defendant's vehicle was not present.

The detectives left but, shortly thereafter, received another telephone call from the girlfriend. According to the testifying detective, she was "frantic" and relayed that defendant was in his vehicle with her son, who had informed her that there was a firearm in the car. The detectives returned to the same location and observed that defendant's vehicle—identified through Department of Motor Vehicles records and information provided by the girlfriend—was present, but unoccupied, and the hood of the car was warm to the touch. The detectives arrested defendant in the apartment at that location, where he was present with the girlfriend's son. Following defendant's arrest on the parole warrant, the testifying detective entered and searched the vehicle for the firearm that had been reported; he found the weapon in a bag in the back seat.

Supreme Court denied defendant's suppression motion, relying on both defendant's parolee status and the tip that defendant had a gun in his vehicle. Upon defendant's appeal, the Appellate Division affirmed (130 A.D.3d 651, 12 N.Y.S.3d 301 [2d Dept.2015] ), and a Judge of this Court granted leave to appeal (26 N.Y.3d 1090, 23 N.Y.S.3d 647, 44 N.E.3d 945 [2015] ).

Defendant's primary argument on this appeal is that the search was unlawful under our holding in People v. Huntley , 43 N.Y.2d 175, 181, 401 N.Y.S.2d 31, 371 N.E.2d 794 (1977) because it was premised wholly on his status as a parolee, but was conducted by police officers, not by his parole officer. Under the circumstances of this case, defend-ant's argument is unpersuasive.

We stated in Huntley that a parolee does "not surrender his [or her] constitutional rights against unreasonable searches and seizures" merely by virtue of being on parole (id. ). However, we relied on the dual nature of a parole officer's duties and a parolee's reduced expectation of privacy to hold that a parolee's constitutional right to be secure against unreasonable searches and seizures is not violated when a parole officer conducts a warrantless search that is rationally and reasonably related to the performance of the parole officer's duties (see id. at 180–182, 401 N.Y.S.2d 31, 371 N.E.2d 794 ).

In Huntley, we distinguished between parole officers and police officers, noting that searches that may be reasonably justified if undertaken by a parole officer are not necessarily constitutional if undertaken by a police officer (see id. at 181, 401 N.Y.S.2d 31, 371 N.E.2d 794 ). Nevertheless, we concomitantly observed that, "in any evaluation of the reasonableness of a particular search or seizure", whether undertaken by parole or police...