People v. Way
| Decision Date | 17 February 1971 |
| Citation | 65 Misc.2d 865,319 N.Y.S.2d 16 |
| Parties | PEOPLE of the State of New York v. John Robert WAY. |
| Court | New York County Court |
William Cahn, Dist. Atty., Nassau County, Mineola, for People of State of New York.
William Kerwick, Baldwin, for defendant.
In this prosecution for the Crime of Possession of a weapon as a felony (Penal Law Section 265.05, subd. 2), the defendant has applied for (1) an order to suppress certain items of personal property and United States Currency in the amount of $620,00, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; C.C.P. 813--c et seq., and (2) for an order to suppress certain statements to law enforcement officers attributed to the defendant under C.C.P. 813--f et seq, as inadmissible for failure to comply with the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; and as involuntary under the principles of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179. By stipulation of the parties, it was agreed that a combined hearing be conducted herein for the requested relief.
From the competent evidence adduced at this combined hearing, the court makes its findings of fact and conclusions of law as follows:
As the result of a conviction for the crime of Robbery in the Second Degree in 1960, the defendant was sentenced to a term of imprisonment. He was released from prison in 1965 and placed on parole under the jurisdiction of the Executive Department of the State of New York, Division of Parole. During this period of parole, Mr. William Provencher was assigned in September 1969 to supervise the defendant as his parole officer.
A robbery was committed in the Valley Stream Park Inn on Father's Day, June 22, 1970, during which about $40,000 was stolen. On June 30, 1970, Parole Officer Provencher received a telephone call from Detective Rofheart of the Nassau County Police Department, who informed him that he was investigating the robbery, and that he suspected the defendant's possible involvement because of the circumstance that the defendant was the last patron at the bar, and that shortly after closing, the place was held up by two masked men.
After reviewing the defendant's file, Parole Officer Provencher agreed with Detective Rofheart that the defendant might have been involved since he was the last patron in the place.
On July 13, 1970, Detective Rofheart telephoned parole officer Provencher and there ensued a conversation initiated by Detective Rofheart concerning a contemplated search of the defendant's residence.
The court finds that Detective Rofheart requested Provencher's 'co-operation to search John Way's house' for the purpose of investigating the robbery of the Valley Stream Park Inn, and that the latter acceded to this request. Rofheart made arrangements to meet with Provencher at the defendant's residence on the following day, July 14, 1970.
In the two week interim between their two conversations, neither the parole officer, nor the police had obtained search or arrest warrants for the defendant, nor had parole officer Provencher made a written report of these developments to his superior. The parole officer did not communicate with or supervise the defendant during this period, and visited the defendant's home at the convenience and instance of the police, who called Provencher to arrange the visit.
On July 14, 1970, the parole officer drove to the defendant's home, a one family dwelling at 89 Clement Avenue, Elmont, New York. Detective Rofheart, accompanied by Detective Schramm, arrived there in a police vehicle. They met at about 8:45 A.M. and were admitted into the house by the defendant who was then clad in his underwear. Parole Officer Provencher told him, 'We are searching the house'. Detective Rofheart remained at the kitchen table with the defendant while Detective Schramm and parole officer Provencher searched the defendant's bedroom where a box of .38 caliber ammunition was found in a dresser drawer.
The parole officer then described the continuing search with Detective Schramm in the following language, .
While enroute to the basement, they passed the kitchen where Detective Rofheart and the defendant were conversing. Parole Officer Provencher described what he heard as follows:
The cellar was partly finished and in the course of searching they observed an opening in the ceiling. The parole officer reached his hand up into the opening and touched a red manila envelope which was concealed in the ceiling structure. As the parole officer tugged at the red manila envelope, a gun and a rag in which it was wrapped, fell from its hiding place to the floor. The parole officer then pulled down the red manila envelope in which there was a paper bag containing bullets and a gun-cleaning kit. The parole officer then reached up again into the opening and found thirty-one twenty dollar bills, held together by a rubber band. In the course of searching the cellar, Detective Schramm pulled out portions of the ceiling material.
The parole officer describes the events following the discovery of the gun as follows:
.
When they returned to the kitchen again, parole officer Provencher turned over the items which they found in the basement to Detective Rofheart 'to hold it while Detective Schramm and I searched the upstairs'.
After the searching had been completed, the parole officer advised the defendant that he had violated his parole. He then placed his handcuffs on the defendant and told him that he was taking him to the New York State Parole Office in Hempstead. They proceeded in the parole officer's vehicle to the Division of Parole in Hempstead. Detective Schramm and the defendant sat in the back seat. Parole Officer Provencher drove the car.
Enroute from Elmont to Hempstead, Mr. Provencher questioned the defendant about the pistol which was found in the premises. The defendant denied ownership of the pistol, but he claimed that the money was his.
When they arrived at the Parole Office in Hempstead, the parole officer removed his handcuffs from the defendant's wrists and Detective Schramm arrested him for the crime which is the subject matter of this indictment, and, at the same time, placed his handcuffs on the defendant. Prior to Detective Rofheart's conversation with the defendant at the kitchen table concerning matters relating to the robbery which Rofheart and Schramm were investigating, no one advised the defendant of his constitutional rights, nor did he waive them.
It is conceded that up to the time the defendant was formally arrested by Detective Schramm, no one had advised the defendant of any constitutional rights as required by Miranda v. Arizona (supra).
The Court is now called upon, under the particular facts and circumstances of this case, to pass upon the legality of evidence resulting from the search of a parolee's home where the search was arranged at the request of the police, who, while investigating the commission of a crime, and without such probable cause as would justify the arrest and search of the defendant parolee as a perpetrator thereof, participated in the search with the defendant's parole officer.
The principle of law pertaining to the diminution of a parolee's Fourth Amendment protection against unreasonable search and seizure by his parole officer, is well established in this and most other jurisdictions. People v. Randazzo, 15 N.Y.2d 526, 254 N.Y.S.2d 99, 202 N.E.2d 549, cert. den. 381 U.S. 953, 85 S.Ct. 1810, 14 L.Ed.2d 725 (1964); People v. Santos, 25 N.Y.2d 976, 305 N.Y.S.2d 365, 252 N.E.2d 861; People v. Langella, 41 Misc.2d 65, 244 N.Y.S.2d 802; People v. Chinnici, 51 Misc.2d 570, 273 N.Y.S.2d 538; People v. Sickler, 61 Misc.2d 571, 306 N.Y.S.2d 168; People v. L'Hommedieu, 62 Misc.2d 925, 310 N.Y.S.2d 369; United States ex rel. Randazzo v. Follette, 2 Cir., 418 F.2d 1319.
Essentially, this case involves a consideration of the question whether this principle of law will be applied where the search of a parolee's home is police inspired and made to facilitate their entry into the residence for the purpose of investigating a parolee's involvement in an armed robbery.
The limitation infused into a parolee's constitutional rights rests upon a two-fold rationale which is (1) that while on parole status he remains in the constructive custody of the state and is, therefore, possessed of no greater rights than a prisoner confined within a penitentiary, and (2) that parole is 'an act of grace' to one convicted of crime, and may be coupled with such conditions as the state may impose while he is serving his sentence outside the prison walls. Escoe v. Zerbst, 295 U.S. 490, 492, 55 S.Ct. 818, 79 L.Ed. 1566.
As stated in Fleming v. Tate, 81 U.S.App.D.C. 205, 156 F.2d 848, 850, parole involves an 'enlightened effort on the part of society to rehabilitate convicted criminals.' This process requires a qualitative selection by the parole board of those convicts who may profit from an opportunity to live in society by serving part of their sentence outside of the penal institution under the guidance and supervision of specially trained personnel of the state parole board. All of this being with the hope that in the process, the parolee will adopt a new...
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