People v. Santos, GT-D

• Decision Date: 15 May 1975
• Docket Number: GT-D
• Citation: 82 Misc.2d 184,368 N.Y.S.2d 130
• Parties: The PEOPLE of the State of New York v. Louis SANTOS, Defendant
• Court: New York Supreme Court

Page 130

368 N.Y.S.2d 130

82 Misc.2d 184

The PEOPLE of the State of New York v. Louis SANTOS, Defendant.

Supreme Court, New York County, Part GT-D.

May 15, 1975.

Robert M. Morgenthau, Dist. Atty., for plaintiff; Peter J. Benitez, New York City, of counsel.

Hochheiser & Cohen, Brooklyn, for defendant; Lawrence Hochheiser, Brooklyn, of counsel.

Paul J. Curran, U.S. Atty., for the Federal Bureau of Investigation; Patrick H. Barth, New York City, of counsel.

LISTON F. COON, Justice:

Arrested as a parole violator and since indicted for possession of a weapon discovered in the trunk of his automobile at the time of arrest, defendant seeks to suppress that weapon. The principal issue to be decided draws into play the cooperative efforts of officials of the Division of Parole and the Federal Bureau of Investigation leading up to and immediately following the arrest, and the effect of this cooperation upon the legality of the arrest and its contemporaneous search. Also involved is the claim by the Federal Government and concurred in by the court to limit the scope of the interrogation of Special Agent Gregg McCrary of the F.B.I.

The credible testimony reveals that on or about September 18, 1973, Agent McCrary, in possession of information to the effect that defendant might be on parole and indicative of possible violations thereof, particularly, consorting with known criminals, contacted one Vincent DeFilippis, an official of the New York State Division of Parole. DeFilippis, confirming defendant's status as a parolee, set up an extended surveillan of his activities including those at the Alley Cat Tavern in the borough of Manhattan, which surveillance lasted several months. Agent McCrary was present with DeFilippis on a number of occasions during this surveillance. McCrary's role at this stage was in assisting DeFilippis to identify the persons with whom Santos was associating. Upon ascertaining these persons' identities, McCrary provided DeFilippis with copies of their F.B.I.-compiled criminal records. He also provided DeFilippis with information gathered in the course of his own ongoing investigations into the activities of Santos' associates, indicating that Santos might have a pistol in his automobile.

Ultimately a parole violation warrant was secured on April 30, 1974, and executed on May 1, 1974. The arrest took place following defendant's exit from the Alley Cat Tavern and while he was driving his automobile. It is conceded that the arrest was desired to be made while defendant was operating the vehicle, with a view to making a search thereof. Upon effecting the arrest, DeFilippis searched the auto's interior, the glove compartment and the trunk, and discovered the weapon that is the subject of this hearing in the trunk. It was wrapped in a sweater and paper bag.

McCrary was present at the time of arrest. He stood by while DeFilippis and other parole officers effected the arrest and search. The court finds McCrary's role in the arrest and search to have been that only of an interested spectator. He had no part in the decision to effect the arrest or the determination of when or where it might be made. DeFilippis alone decided to apply for the parole violation warrant, and DeFilippis alone decided the time and place of its execution.

Following his arrest, Santos was taken to the 17th precinct station house of the New York City Police Department. There, McCrary and another F.B.I. agent interrogated defendant for approximately ten minutes in the absence of the parole officers.

Defendant contends that the arrest was instigated and engineered by the F.B.I. as a pretext for his subsequent F.B.I. questioning, and in order to provide McCrary with interrogation leverage which would have been unavailable had the arrest and search not taken place. The court is asked to rule that this alleged Federal abuse of New York's machinery for detecting and apprehending state parole violators renders the arrest and search invalid. Upon the facts, and for the reasons set forth below, the court rejects this contention. The relevant authorities recognize that where an administrative warrant is readily obtainable against the subject of a law enforcement investigation, and where law enforcement lacks the probable cause necessary to secure a search or arrest warrant, or to effect a warrantless arrest, the temptation exists for police authorities to instigate an administrative arrest in the hopes of securing otherwise unavailable contraband or incriminating evidence as the incidents of such an arrest. The courts have soundly and properly condemned such sham or pretext arrests (Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668; United States v. Hallman, 3 Cir., 365 F.2d 289; United States ex rel. Randazzo v. Follette, 2 Cir., 418 F.2d 1319, 1323; People v. Way, 65 Misc.2d 865, 319 N.Y.S.2d 16; People v. Coffman, 2 Cal.App.3d 681, 82 Cal.Rptr. 782). A pretext or sham administrative arrest for purposes of applying interrogation pressure upon an investigative suspect, where an opportunity for the intrusion would be otherwise unavailable, is no less to be condemned.

Not all administrative arrests and searches secured with the cooperation of police authorities are proscribed, however. Interagency cooperation not in derogation of constitutional rights is not only permissible, but laudatory. Defense counsel cites Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 and Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 for the erroneous proposition that the search was tainted by the mere participation of a Federal officer in the state investigative process. The Lustig-Byars rule was a Pre-Mapp doctrine aimed at preventing Federal circumvention of Fourth Amendment restrictions through the instigation of more flexible state-conducted searches. With Mapp, Lustig-Byars lost its Raison d'etre (Mapp v. Ohio, 367 U.S. 643, 658, 81 S.Ct. 1684, 1693, 6 L.Ed.2d 1081; People v. Way, supra, 65 Misc.2d p. 871, 319 N.Y.S.2d p. 20). More than mere participation need be shown. Only those administrative arrests are prohibited which are instigated, initiated, directed, arranged, controlled and participated in by the police, and which have as their primary purpose not the ostensible administrative function, but the furtherance of police investigation in a manner designed so as to avoid the constitutional requirements of probable cause (People v. Way, supra, 65 Misc.2d p. 871, 319 N.Y.S.2d p. 20). Otherwise stated, the test is whether the decision to proceed administratively was influenced by, and was carried out for, an otherwise constitutionally impermissible law enforcement function (Abel v. United States, supra, 362 U.S. p. 230, 80 S.Ct. p. 692).

The court's task being to determine whether DeFilippis' actions were properly directed toward the parole function, it is appropriate at this point to briefly define the supervisory nature of parole and DeFilippis' duties in aid thereof.

Parole is a suspension of the execution of a convicted felon's sentence, temporarily releasing him from imprisonment on certain specified conditions. Parolees until the expiration of their sentences remain under the supervision of the Parole Board, subject to remand to prison if they violate their parole conditions (Correction Law §§ 215, 216; Matter of Cummings v. Regan, 76 Misc.2d 137, 141, 350 N.Y.S.2d 119, 125). To ensure that the parolee 'will live and remain at liberty without violating the law,' and to ensure that a parolee's release 'is not incompatible with the welfare of society' (Correction Law § 213), the Division of Parole is charged by statute with the duty of supervising the parolee, 'of making such investigations as may be necessary in connection therewith, of determining whether violations of parole conditions exist . . . and of deciding the action to be taken with reference thereto' (Correction Law § 210). The very concept of parole entails a degree of supervision of parolees consonant with its purposes (People v. Santos, 31 A.D.2d 508, 298 N.Y.S.2d 526, affd., 25 N.Y.2d 976, 305 N.Y.S.2d 365, 252 N.E.2d 861, cert. den., 397 U.S. 969, 90 S.Ct. 1010, 25 L.Ed.2d 263).

DeFilippis is an agent of the Office of the Inspector General of the Division of Parole, which office is primarily concerned with investigations into possible parole violations. His duties include developing such information and following such leads as would aid his superiors in their determination of whether or not a parolee 'has lapsed, or is probably about to lapse into criminal ways or comply, or has violated the conditions of his parole in an important respect,' in order that they may take appropriate action to bring about the parolee's reinstitutionalization (Correction Law § 216; People v. Langella, 41 Misc.2d 65, 68, 244 N.Y.S.2d 802).

Looking now at the Santos investigation, DeFilippis cannot be faulted for having initiated his investigation upon the receipt of information from McCrary. Law enforcement is a traditional and accepted informational source for parole violation investigations and reports (People v. Simons, 22 N.Y.2d 533, 539, 293 N.Y.S.2d 521, 525, 240 N.E.2d 22, 25; President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Corrections, p. 69 (1967)).

Nor does the court see any impropriety in DeFilippis' decision to conduct an extensive investigation of McCrary's report, rather than moving the matter to a revocation proceeding immediately. The Parole Board's duty being to determine promptly and justly what action should be taken on the facts presented to it (People ex rel. Natoli v. Lewis, 287 N.Y. 478, 482, 41 N.E.2d 62, 64), a knowledge of all the facts regarding Santos' possible activities in violation of parole was not only desirable but necessary to a fair decision. DeFilippis was under an obligation, both to his superiors and to Santos, to satisfy himself as to the truth of...