People v. Sickler

• Decision Date: 07 May 1969
• Parties: The PEOPLE of the State of New York, Plaintiff v. Gary SICKLER, Defendant.
• Court: New York County Court

Page 168

306 N.Y.S.2d 168

61 Misc.2d 571

The PEOPLE of the State of New York, Plaintiff v. Gary SICKLER, Defendant.

Dutchess County Court.

May 7, 1969.

Albert Rosenblatt, Dist. Atty., for the People.

William Chiolko, Public Defender, for defendant.

McCALL, Judge.

A hearing has been held on the motion of the defendant, brought pursuant to the applicable provisions of the Code of Criminal Procedure for an order of this court suppressing as evidence certain items of personal property belonging to the defendant seized as a result of an alleged search of the defendant's room at 22 Balding Avenue, in the City of Poughkeepsie, New York. At the time of the incident under attack the defendant was a parolee subject to the jurisdiction of the Parole Board of the State of New York and had previously been released from custody upon conditions set forth in an agreement signed by the defendant. This agreement and its effect here will be hereinafter discussed. There was no search warrant here, no formal arrest at any of the times hereinafter mentioned and if the search is to be validated, consent thereto, of some kind, must be found. Defendant, in alleging the illegality of the search, claims an invasion of his rights under search and seizure under the Fourth Amendment of the United States Constitution.

Constitutional questions loom here in various forms. The claim has been advanced that parolees are in fact 'Prisoners' and subject to the infirmities of that position, including the loss of the rights against search a free and unencumbered citizen might have. Apparently, there is no presently declared New York law so strictly limiting the right of parolees. There are Federal decisions holding a parolee or a probationer has rights under the Fourth Amendment (Martin v. United States, 4 Cir., 183 F.2d 436; Brown v. Kearney, 5 Cir., 355 F.2d 199; United States v. Lewis, D.C., 274 F.Supp. 184). In Lewis, the theory that parolee status alone strips a man of constitutional search and seizure rights is forcefully and specifically rejected. People v. Randazzo, 15 N.Y.2d 526, 254 N.Y.S.2d 99, 202 N.E.2d 549 apparently contains the New York rule. In that case, the parole officer had a violation of parole warrant in his possession and had the residence of the defendant under surveillance. As defendant entered the apartment, the officer and two policemen approached; the officer told the defendant they wanted to talk to him upstairs. Once there, the defendant told the parole officer he had seen a 'known criminal' and the officer told him he was being taken into custody for violation. The parole officer thereupon searched and found narcotics which he turned over to the police. The court held defendant, as a parolee, was deprived of no constitutional rights of search and seizure made under such circumstances. The lower court in this case had held that there was a consent to entry and the parolee's rights in this case is more limited and circumscribed than an ordinary citizen's, indicating by accepting the privilege he consents to broad and supervisory visitorial powers. In that case, the release agreement contained no specific consent to a search of the premises, as the instant agreement does, but contained only a right to visit the premises.

At this point, we consider another constitutional question: Was the imposition of the condition of waiver of Fourth Amendment rights as a prelude to release on parole done within constitutional limitations? Recent United States Supreme Court decisions have explicitly held that state legislatures may not coerce or 'needlessly' encourage a defendant to waive the exercise of the constitutional right by granting defendant a special benefit in consideration for the waiver or by penalizing the defendant for failure to waive his constitutional right. The Supreme Court recently condemned a statute that, in essence, provided for the death penalty after a jury trial, but not such a penalty in the event of a court trial or a plea of guilty. Such a statute, said the court, put pressure on the defendant not to exercise his Fifth and Sixth Amendment rights so as to avoid the death penalty. (United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138). In Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562, the court would not permit the placing of the privilege of no self-incrimination against the forfeiture of a public position. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the court frowned on a rule that would permit the ultimate use of testimony by a defendant necessary to give him standing to pursue Fourth Amendment rights against him on the main...