United States ex rel. Santos v. New York State Bd. of Par.

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: FRIENDLY and ANDERSON, Circuit , and LEVET
• Citation: United States ex rel. Santos v. New York State Bd. of Par., 441 F.2d 1216 (2nd Cir. 1971)
• Decision Date: 13 May 1971
• Docket Number: No. 793,Docket 35169.,793
• Parties: UNITED STATES of America ex rel. Crispin SANTOS, Relator-Appellant, v. NEW YORK STATE BOARD OF PAROLE, Respondent.

441 F.2d 1216 (1971)

UNITED STATES of America ex rel. Crispin SANTOS, Relator-Appellant, v. NEW YORK STATE BOARD OF PAROLE, Respondent.

No. 793, Docket 35169.

United States Court of Appeals, Second Circuit.

Argued April 20, 1971.

Decided May 13, 1971.

Joel Berger, New York City (Milton Adler, The Legal Aid Society, New York City, on the brief), for relator-appellant.

Joel H. Sachs, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., Frank I. Strom II, Deputy Asst. Atty. Gen., on the brief), for respondent-appellee.

Before FRIENDLY and ANDERSON, Circuit Judges, and LEVET, District Judge.^*

LEVET, District Judge:

The question for review in this case is whether the appellant, a parolee under the custody of the New York State Board of Parole, was deprived of his Fourth Amendment rights by a search of his residence in Hempstead, New York, without a warrant, conducted by his parole officer in the presence of a police officer after which evidence seized was used by the police for purposes of a new prosecution rather than for the revocation of appellant's parole.

On May 8, 1966, a New York City detective received information which provided him with reasonable grounds to believe that appellant, a parolee, was "dealing" in stolen goods. The detective informed appellant's parole officer of this fact. After a review of appellant's file, the parole officer obtained a parole violation warrant, believing that there was more than reasonable grounds to conclude that Santos had lapsed into criminal activity.

Thereafter, the parole officer, accompanied by the detective, visited appellant's apartment for purposes of executing the warrant. Santos was not at home; the landlady admitted both officers to his apartment. The parole officer searched the apartment without a search warrant and discovered several items of stolen property. The detective did not assist in the search.

Twenty minutes after the search, the appellant was arrested. At the time of the search and the arrest, there were no courts open from which a search warrant could be obtained.

Prior to pleading guilty, appellant moved to suppress the seized evidence, contending that it was obtained in violation of his Fourth Amendment rights. This motion was denied. This determination was affirmed by the Appellate Division in People v. Santos, 31 A.D.2d 508, 298 N.Y.S.2d 526 (First Department 1969). The New York Court of Appeals unanimously affirmed that decision without opinion, 25 N.Y.2d 976, 305 N.Y.S.2d 365, 252 N.E.2d 861 (1970). On March 2, 1970, a petition for a writ of certiorari was denied by the Supreme Court of the United States, 397 U.S. 969, 90 S.Ct. 1010, 25 L.Ed.2d 263. Thereafter, the appellant commenced this collateral attack by petitioning for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Judge Murphy of the Southern District of New York denied that petition. United States of America ex rel. Crispin Santos v. New York State Board of Parole, 70 Civ. 1370, Memorandum of Murphy, D.J., June 5, 1970. From that decision, Santos has appealed to this court.

Appellant contends that the Fourth Amendment bestows on parolees rights coextensive with those guaranteed to ordinary citizens.

Without attempting to define precisely the extent of Fourth Amendment protection against searches and seizures which a parolee might have in the abstract, it is indisputable that the Fourth Amendment affords protection only against unreasonable searches. A search which would be unlawful if directed against an ordinary citizen may be proper if conducted against a parolee. United States ex rel. Randazzo v. Follette, 418 F.2d 1319, 1322, n. 7 (2nd Cir. 1969).

As Mr. Justice Steur stated in the Appellate Division's review of the present case:

"* * * The very concept of parole entails a degree of supervision of parolees consonant with its purposes. Included within that supervision would be such searches as would reasonably be called for. It cannot be questioned that the parole officer had reasonable grounds for investigation as to whether the defendant here was violating his parole and that the search was a proper incident of that investigation. In that context, it was reasonable." People v. Santos, supra 31 A.D.2d at 509, 298 N.Y.S.2d at 528.

The Board of Parole in New York State is charged with the duty of "* * * supervising all...