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United States v. Follette


decided: December 4, 1969.


Moore, Kaufman and Hays, Circuit Judges. Kaufman, Circuit Judge (concurring).

Author: Hays

HAYS, Circuit Judge:

A judgment of conviction was entered against appellant Joseph Randazzo in 1962 in Supreme Court, New York County upon a plea of guilty*fn1 to a charge of violation of the statutes dealing with narcotics.*fn2 Before he pleaded guilty, appellant moved to suppress evidence consisting of thirty-one ounces of heroin seized at the time of his arrest, claiming that this evidence was obtained in violation of his rights under the Fourth Amendment. After a hearing, the motion was denied. People v. Randazzo, 37 Misc.2d 80, 234 N.Y.S.2d 740 (Sup.Ct.1962). Appellant appealed to the Appellate Division, People v. Randazzo, 20 A.D.2d 850, 248 N.Y.S.2d 203 (1st Dept. 1964) and, upon the denial of that appeal, to the Court of Appeals where the judgment was again affirmed. People v. Randazzo, 15 N.Y.2d 526, 254 N.Y.S.2d 99, 202 N.E.2d 549 (1964) (Fuld, J. dissenting). The United States Supreme Court denied certiorari. Randazzo v. New York, 381 U.S. 953, 85 S. Ct. 1810, 14 L. Ed. 2d 725 (1965).

Appellant then applied to the United States District Court for the Southern District of New York for a writ of habeas corpus. The court dismissed the petition, United States ex rel. Randazzo v. Follette, 282 F. Supp. 10 (S.D.N.Y.1968), but granted a certificate of probable cause. This appeal was taken from the order dismissing the writ.


Appellant was a parolee under the supervision of the New York State Division of Parole at the time of his arrest.*fn3 On or about July 8, 1962 Senior Parole Officer John J. McCarthy received information from what he testified was a reliable source that appellant had consorted with a convicted felon; that he maintained late hours; that he apparently was not working; that he had visited a bar late at night; and that he might be involved in the narcotics traffic.

Any one of these activities was sufficient to constitute a violation of parole.*fn4 McCarthy brought the situation to the attention of Area Director Paul D. Travers who issued a "Warrant for Retaking and Detaining a Paroled Prisoner"*fn5 on July 10, 1962. The warrant was turned over to William Quinn, a parole officer, on July 12, 1962 with instructions to execute it in cooperation with Officer D'Apre of the New York City Police Department.

On that day, at about 5:10 P.M., Quinn, D'Apre and another officer took up a position outside appellant's residence. Appellant arrived by taxicab about a half hour later and was approached by Quinn and one of the officers. They accompanied appellant to his third floor apartment where he admitted having consorted with a known criminal. Quinn then arrested appellant, searched his person and asked him "what room do you sleep in?" Appellant pointed to his bedroom. Quinn searched the room and found in it the thirty-one ounces of heroin.*fn6


Appellant contends on this appeal that the search and subsequent seizure of the heroin violated his rights under the Fourth Amendment. We do not agree and affirm on the ground that the search was valid as incident to a lawful arrest.*fn7

Appellant was arrested in his apartment pursuant to a "Warrant for Retaking and Detaining a Paroled Prisoner." Such a warrant is designated as "administrative." Its issuance does not depend upon a showing of probable cause. Appellant argues that these factors prevent us from upholding the search and seizure as incident to a lawful arrest.

The standards for the issuance of such a warrant are set out in the statute:

"If the parole officer having charge of a paroled prisoner * * * shall have reasonable cause to believe that such prisoner has lapsed, or is probably about to lapse, into criminal ways or company, or has violated the conditions of his parole in an important respect, such parole officer shall report such fact to a member of the board of parole or to any officer of the division of parole designated by such board, who thereupon may issue a warrant for the retaking of such prisoner and for his temporary detention or return to a designated prison. * * *" N.Y. Correction Law ยง 216 (McKinney 1968).*fn8

Thus the parole officer must have "reasonable cause to believe" a violation or lapse by the parolee has occurred or is about to take place. He cannot issue the warrant but must turn the information over to a superior in the Division of Parole for a determination of whether a warrant should be issued.

While the safeguards accorded under this statutory scheme are not as extensive as those required to obtain a warrant for the arrest of an ordinary citizen, they appear to us to be sufficient to provide for the lawful arrest of a parolee.

In the instant case there were grounds for the parole officer to believe appellant was in violation of his parole agreement. Indeed before the warrant was executed he admitted that he had consorted with a known criminal. The procedures required by the statute were followed and the arrest was therefore lawful.

In holding the search valid as incident to this lawful arrest we find support in Abel v. United States, 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960). There an arrest was made on the basis of an administrative warrant issued by the United States Immigration and Naturalization Service upon a prima facie showing of deportability. Id. at 236-237. A search and seizure made at the time of the arrest was held valid as incident to that arrest.

Appellant claims, as did the petitioner in Abel, that the warrant was issued solely as a ploy to validate what would have otherwise been an illegal search. This argument was rejected in Abel and in the instant case the record does not support appellant's contention.

Appellant also contends that the search was invalid as overly broad in scope. After the arrest, Parole Officer Quinn first searched appellant's person. He then began his search of the apartment in the room where appellant indicated that he slept. It was there that the heroin was found. Under the standards prevailing at the time the search was made, appellant's bedroom would have been considered among "the premises under his immediate control." Harris v. United States, 331 U.S. 145, 151, 67 S. Ct. 1098, 1101, 91 L. Ed. 1399 (1947); see United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950). Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), if applicable, would require a different result. But this search took place on July 12, 1962 and as this court held in United States v. Bennett, 415 F.2d 1113 (2d Cir.1969) "we do not regard Chimel as applicable to searches (other than that in Chimel itself) prior to June 23, 1969."




KAUFMAN, Circuit Judge (concurring):

I have some doubts about the basis upon which the administrative arrest warrant issued in this case. Thus I prefer to concur on the ground that Randazzo's admission that he consorted with criminals sufficed to provide probable cause for his subsequent arrest, and that the search following it was acceptable -- though marginally so -- under pre-Chimel law.

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