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Probationers Do Not Lose All Privacy and Fourth Amendment Rights; Condition that Probationer Waive His Fourth Amendment Rights and Consent to the Search of His Home Struck

The Fourth Department determined the condition of probation requiring the probationer to consent to the search of his home, which was not part of the plea agreement, was not enforceable. A probationer does not lose all Fourth Amendment protections:

We agree with defendant … that the waiver of the right to appeal does not encompass his challenge to the condition of probation that required him to sign a consent to waive his Fourth Amendment rights against a search of his home on the ground that it is related to defendant’s “drug/alcohol abuse,” inasmuch as that condition was not part of the plea agreement … . We also agree with defendant that the condition does not relate to “the probationary goal of rehabilitation” and thus is not enforceable on that ground … . Indeed, the presentence report indicated that the 51-year-old defendant, a first-time offender, does not have a history of drug or alcohol abuse and that he was not under the influence of drugs or alcohol at the time of the offense. It is well established that “a probationer’s home is protected by the constitutional requirement that searches be reasonable . . . [A] probationer loses some privacy expectations and some part of the protections of the Fourth Amendment, but not all of both” … . We therefore modify the judgment by striking as a condition of probation the requirement that defendant consent to the waiver of his Fourth Amendment rights against a search of his home. People v Mead, 2015 NY Slip Op 08304, 4th Dept 11-13-15

 

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Warrantless Search of Parolee’s Car by Detective Was Valid–Detective Was Effectively Functioning As a Parole Officer, Was Aware of an Arrest Warrant Based Upon Defendant’s Alleged Parole Violations, and Was Aware the Defendant, as a Parolee, Had Consented In Writing to the Search of His Person and Property

The Second Department determined the warrantless search of a parolee’s car by a detective who was exercising parole-warrant responsibilities was valid. The detective was aware of defendant’s parole violations and the related warrant for defendant’s arrest. The detective was also aware that defendant, as a parolee, had consented in writing the search of his person and property:

While a person on parole is not denied the Fourth Amendment right to be free from unreasonable searches and seizures, the status of a parolee is always relevant and may be critical in evaluating the reasonableness of a particular search or seizure. A search which would be unlawful if directed against an ordinary citizen may be proper if conducted against a parolee … . The special circumstances and close supervision that come with being a parolee must be considered when determining if a search is reasonable … .

Under the circumstances of this case, the detective’s search of the car was “rationally and reasonably related to the performance of the parole officer’s duty” by dint of the detective’s parole responsibilities as a member of the Joint Apprehension Warrant Squad … . Here, no relevant distinction exists between the detective and the defendant’s parole officer … . At the time of the search, the detective was aware that the defendant had violated the terms of his parole, that as a result a warrant had been issued for the defendant’s arrest …, and that the defendant had consented in writing to a search of his person and property. Additionally, the detective was aware that the car was registered to the defendant, the defendant had acknowledged that the car was his, and a known source had said that she had been told that the defendant had just been in the car with a gun … . People v McMillan, 2015 NY Slip Op 05702, 2nd Dept 7-1-15

 

Persons Entering the Hall of Justice, In Which Signs Are Posted Warning that Those Entering the Premises Are Subject to Being Searched, Impliedly Consent to a Full Search, Including the Opening of Objects Found in the Search

The Fourth Department determined the defendant impliedly consented to a search of his person after entering the Hall of Justice.  Signs in the Hall of Justice warned that those who enter the building were subject to search.  The defendant’s argument that consent extended to no more than a frisk was rejected. The court found the defendant consented to a full search of his person and the opening of a foil packet found on his person:

Here, defendant was warned before walking through the magnetometers that he could be subject not just to a pat frisk, but to a search. Given a reasonable person’s knowledge of the increased security measures in government buildings in the past decade and the notifications posted for entrants into the Hall of Justice, we conclude that a reasonable person would have understood that the impending search could involve more than a pat frisk if the initial magnetometer scans indicated the presence of metal on his or her person … . We therefore further conclude that the deputies’ search of defendant’s person did not exceed the scope of defendant’s implied consent.

Defendant’s contention that the opening of the foil package, once it was removed from his person, was a separate, improper search incident to an arrest is unpreserved for our review because defendant failed to raise that contention in his omnibus motion or before the suppression court … . In any event, that contention has no merit. As defendant correctly concedes, he was not under arrest when he was taken to the adjacent room. Moreover, inasmuch as defendant impliedly consented to a search of his person and belongings before entering the Hall of Justice, and did not revoke said consent before the deputies opened the foil package, we conclude that the deputies’ opening of the package to check if it contained a small weapon, such as a razor blade, was not improper … . People v White, 2015 NY Slip Op 03963, 4th Dept 5-8-15

 

Where One Resident Consents to a Search and Another Resident Does Not Consent, the Search Can Not Be Executed—However, the Refusal to Consent Is Only Operative As Long As the Objecting Resident Is Physically Present

The Third Department explained that where one resident consents to a search of the premises, but another resident does not consent, the search can not be conducted.  However, a resident’s refusal to consent is operative for only as long as the resident is present at the premises.  Here the objecting resident left the premises and the police properly executed the search with the consent of the remaining resident:

Even in the absence of a warrant, police may lawfully search a residence where an inhabitant with apparent authority to consent to the search freely and voluntarily does so … . However, where one resident consents to a search and another refuses, “[the] warrantless search of [the] shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him [or her] on the basis of consent given to the police by another resident” … . Notably, however, the objecting resident’s refusal operates to counteract the other resident’s consent only so long as the objecting resident is physically present on the premises … . People v Grillo, 2015 NY Slip Op 03880, 3rd Dept 5-7-15

 

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County Court’s Suppression of Statements and Fruits of Search Reversed

The Third Department reversed County Court’s suppression of defendant’s statements and County Court’s finding that defendant had not voluntarily consented to the search of his car (both based on the absence of Miranda warnings).   The Third Department determined a reasonable person innocent of a crime would still have felt he was free to leave (i.e., that he was not in custody) after his failure of field sobriety tests and a negative alcosensor test.  The Third Department further noted that the failure to provide Miranda warnings would not necessarily render a consent to search involuntary:

The court ….overlooked the settled proposition that “[a] temporary roadside detention pursuant to a routine traffic stop is not custodial within the meaning of Miranda” … .The facts here reveal a reasonable initial interrogation attendant to a roadside detention that was merely investigatory…. The Troopers’ inquiries, the mixed results of the field sobriety tests and a negative alcosensor test would not have caused a reasonable person innocent of any wrongdoing to believe that he or she was in custody….   In our view, the Troopers’ observations of defendant’s condition justified the further  detention  for the  limited  purpose  of  investigating whether  he  was  operating his motor  vehicle in an  impaired condition… .  People v Brown, 105134, 3rd Dept 6-27-13

 

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