United States v. Pascual
| Decision Date | 10 August 2016 |
| Docket Number | 5:16-CR-119 |
| Citation | 199 F.Supp.3d 670 |
| Parties | UNITED STATES of America, v. Nelson J. PASCUAL, Defendant. |
| Court | U.S. District Court — Northern District of New York |
HON. RICHARD S. HARTUNIAN, United States Attorney for the Northern District of New York, OF COUNSEL: CARINA HYATT SCHOENBERGER, ESQ., Ass't United States Attorney, 100 South Clinton Street, Syracuse, NY 13261
HON. LISA PEEBLES, Federal Public Defender for the Districts of Northern New York & Vermont, OF COUNSEL: LISA A. PEEBLES, ESQ., Attorneys for Defendant, 4 Clinton Square, 3rd Floor, Syracuse, NY 13202
On April 6, 2016, a federal grand jury returned a four-count indictment charging defendant Nelson Pascual ("Pascual" or "defendant") with the unlawful possession of drugs and weapons that were seized during a warrantless search of his apartment in Syracuse, New York. Defendant has moved to suppress the evidence recovered during that search and to dismiss Count Four of the indictment, which charges him as a violent felon in possession of body armor. The United States of America (the "Government") opposes the motion, which has been fully briefed. Oral argument was heard on July 22, 2016 in Utica, New York.1 Decision was reserved.
On June 7, 2011, Pascual was convicted in Supreme Court, Queens County of two counts of Attempted Robbery in the Second Degree in violation of New York Penal Law § 160.10(1). Defendant was sentenced to a thirty-month term of imprisonment to be followed by a two-year term of supervised release.
On October 3, 2013, Pascual began his term of supervision with the New York State Division of Parole. This grant of parole came subject to certain conditions, all of which defendant agreed to in writing and a few of which are notable here—among other things, defendant agreed: (1) to "permit the search and inspection of [his] person, residence and property"; (2) to "notify [his] Parole Officer of any changes in [his] residence"; (3) not to "use or possess any drug paraphernalia or use or possess any controlled substance without proper medical authorization"; and (4) not to leave the five boroughs of New York City without his Parole Officer's permission.
By June 11, 2015, Pascual had racked up a number of alleged violations of these conditions, including absconding from his approved residence. Based on these allegations, the Division of Parole issued a parole warrant for defendant's arrest.2 Four days later, with defendant's whereabouts unknown, the Division of Parole formally declared defendant "delinquent" as of March 24, 2015, the date of the earliest alleged parole violation.
On October 22, 2015, Senior Parole Officer Rigby ("SPO Rigby") learned from a confidential informant (the "CI") that Pascual was living in an upstairs apartment located at 117 Merriman Avenue in Syracuse, New York. According to the CI, defendant was involved in "illegal drug sales." Later reports completed by Parole Officers Kevin Gibbs ("PO Gibbs") and Jason Rhodes ("PO Rhodes") also state the CI claimed defendant possessed firearms at the Syracuse residence.3
The next day, a number of parole officers, including PO Gibbs and PO Rhodes, arrived at Pascual's Syracuse apartment and knocked on the door. When no one answered, the officers contacted the property owner, who gave law enforcement permission to enter the premises. Defendant, along with an unidentified female occupant, finally came to the front door when the officers began removing the hinges to forcibly gain entry to the apartment. Defendant was identified and arrested.
The parole officers then entered Pascual's apartment to look for other occupants, where PO Gibbs observed "a silver digital scale on the kitchen table which was covered with a white powder suspected to be a controlled substance." Given this discovery, a more thorough search of the apartment was conducted, which turned up a silver revolver with several .22 caliber bullets, a duffel bag filled with ammunition, and a plastic bag containing a white powdery substance.
At this point, the parole officers called in the Syracuse Police Department, who tested the white powdery substance and confirmed the presence of cocaine and heroin. On the basis of these discoveries, law enforcement officials finally obtained a search warrant for the apartment, which turned up additional unlawful activity.
Later that day, Pascual waived his Miranda rights and made a written statement to Syracuse Police, where he admitted that he had come to Syracuse from downstate, that he had been paying rent for the apartment where he had been found, and that he knew there was an outstanding parole warrant for his arrest.
1. Motion to Suppress
Pascual argues that all of the evidence recovered from his apartment must be suppressed because neither the "parole search exception" to the warrant requirement nor the "protective sweep incident to arrest" rationale permitted the parole officers' initial warrantless search.
"The Fourth Amendment protects the right of private citizens to be free from unreasonable government intrusions into areas where they have a legitimate expectation of privacy." United States v. Barner, 666 F.3d 79, 82 (2d Cir.2012) (quoting United States v. Newton, 369 F.3d 659, 662 (2d Cir.2004) ).
Reasonableness is measured "by assessing, on the one hand, the degree to which [a search] intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interest." United States v. White, 622 F.Supp.2d 34, 40 (S.D.N.Y.2008) (quoting Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) ); see also United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) ().
Importantly, however, "[a] parolee's reasonable expectations of privacy are less than those of ordinary citizens[.]" United States v. Massey, 461 F.3d 177, 179 (2d Cir.2006). This diminished privacy right is rooted in a recognition that United States v. Polito, 583 F.2d 48, 54 (2d Cir.1978) ; see also United States v. Cardona, 903 F.2d 60, 63 (1st Cir.1990) (), cert. denied, 498 U.S. 1049, 111 S.Ct. 758, 112 L.Ed.2d 778 (1991).
In New York, parole officers are charged with an ongoing duty "to investigate whether a parolee is violating the conditions of his parole—one of which, of course, is that the parolee commit no further crimes—when the possibility of violation is brought to the officer's attention." White, 622 F.Supp.2d at 42 (quoting United States v. Reyes, 283 F.3d 446, 459 (2d Cir.2002). Accordingly, the New York Court of Appeals has held that a "parolee's constitutional right to be secure against unreasonable searches and seizures is not violated when his apartment is searched, without a search warrant, by his parole officer if the latter's conduct is rationally and reasonably related to the performance of his duty as a parole officer." People v. Huntley, 43 N.Y.2d 175, 179, 401 N.Y.S.2d 31, 371 N.E.2d 794 (N.Y.1977).4
As the Government asserts, this statement of the law should foreclose Pascual's suppression argument—defendant does not dispute that he was alleged to have violated numerous conditions of his parole, that he had absconded, that he had been declared delinquent, that the Division of Parole had issued a warrant for his arrest, or even that he had agreed to the consent search conditions found in his parole agreement that are set forth above.5
Pascual sidesteps these problematic facts by claiming he was not actually subject to any of the diminished protections or liberty restrictions that would ordinarily stem from either his status as a parolee generally or from the terms of his specific parole agreement. Instead, according to defendant, his two-year term of parole actually expired on October 3, 2015, nearly three weeks before the arrest and warrantless search took place on October 23.
This bold claim is based on Pascual's proffered reading of the provision of New York Penal Law identified by the Government in opposition, which states in relevant part that:
When a person is alleged to have violated the terms of presumptive release or parole and the state board of parole has declared such person to be delinquent, the declaration of delinquency shall interrupt the person's sentence as of the date of delinquency and such interruption shall continue until the return of the person to an institution under the jurisdiction of the state department of corrections and community supervision.
N.Y. Penal Law § 70.40(3)(a) (emphasis added).
According to the Government, the "interruption" caused by a formal declaration of delinquency pursuant to this statute effectively tolls the maximum expiration date of a parolee's sentence, automatically extending the end date of the parole term until the parolee is taken back into custody. Therefore, because defendant's parole term was "interrupted" by the Division of Parole's delinquency determination, his parole did not end on October 3, 2015, the original expiration date of his sentence.
According to Pascual, however, this statutory language deals only with recalculating the remainder of a delinquent parolee's sentence when he is eventually apprehended. Thus, even though he had absconded, been declared " delinquent" by the Division of Parole, and a parole warrant had been issued for his arrest, defendant argues he was not subject to any parole-based search justification when law enforcement finally caught up to him in Syracuse.
Pascual's argument is rejected. As...
To continue reading
Request your trial
-
United States v. Castillo
...v. United States , No. 06 CR. 1064, 2016 WL 4094910, at *3 (S.D.N.Y. Aug. 2, 2016) (emphasis added); see also United States v. Pascual , 199 F. Supp. 3d 670, 678 (N.D.N.Y. 2016).5 Nor was the error harmless. Here, the use of Castillo's prior conviction to apply a crime of violence enhanceme......