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PAROLE OFFICER’S SEARCH OF PAROLEE’S APARTMENT, BASED UPON A TIP FROM A PERSON KNOWN TO THE PAROLE OFFICER, WAS SUPPORTED BY REASONABLE SUSPICION, TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined that the parole officer’s, Rosa’s, search of defendant-parolee’s apartment, which was based on a tip from a person known to the parole officer, was supported by reasonable suspicion:

Although a parolee does “not surrender his [or her] constitutional rights against unreasonable searches and seizures[,] . . . what may be unreasonable with respect to an individual who is not on parole may be reasonable with respect to one who is” … . Accordingly, a search of a parolee undertaken by a parole officer is constitutional if “the conduct of the parole officer was rationally and reasonably related to the performance of the parole officer’s duty . . . [and was] substantially related to the performance of duty in the particular circumstances” … . A parole officer’s duty is twofold and sometimes inconsistent in nature because a parole officer not only “has an obligation to detect and to prevent parole violations for the protection of the public from the commission of further crimes[, but] he [or she] also has a responsibility to the parolee to prevent violations of parole and to assist [the parolee] to a proper reintegration into [the parolee’s] community” … .

Here, there can be little doubt that Rosa’s search of defendant’s residence due to the informant’s tip was reasonably related to Rosa’s duties as a parole officer … . Therefore, the key inquiry is whether Rosa, based upon the information provided by the informant, had reasonable suspicion to conduct the search … . Rosa’s testimony at the suppression hearing revealed that the information was not from an anonymous tipster (compare People v Burry, 52 AD3d at 858), but rather was from another parolee with whom Rosa was familiar and with whom he had interacted prior to receiving the information. Rosa testified that the informant indicated that he or she had firsthand knowledge of the drug activity at defendant’s residence. Therefore, based upon the circumstances of this case — including that defendant had been on parole for less than a month and therefore had no proven track record of compliance with parole rules — Rosa’s search of defendant’s residence was founded on reasonable suspicion and, as such, was lawful … . People v Wade, 2019 NY Slip Op 03851. Third Dept 5-16-19

 

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