The opinion of the court was delivered by: COOPER
Petitioner seeks a writ of habeas corpus alleging that he was adjudicated a Youthful Offender by the Court of Special Sessions of the City of Mount Vernon, New York, on June 8, 1965 and sentenced to indefinite probation up to five years at the discretion of the court.
The gravamen of the petition is that the evidence against him was illegally seized from his school locker opened for police by the school's vice-principal after the latter had been informed by police that it was suspected of containing marijuana and after they showed him a search warrant later found and now conceded to have been invalid.
The first issue is whether petitioner is "in custody" satisfying the jurisdictional requirement of 28 U.S.C. § 2241 et seq. In Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963) the United States Supreme Court established that physical restraint is not required and that a prisoner on parole is in custody for federal habeas corpus purposes. Our circuit has held that a probationer is similarly in custody. See United States v. Re, 372 F.2d 641 (2d Cir.), cert. denied, 388 U.S. 912, 87 S. Ct. 2112, 18 L. Ed. 2d 1352 (1967). See also, United States v. Washington, 341 F.2d 277, 280 (3rd Cir. 1965). While the precise status of petitioner is confused, we believe he is in custody so as to entitle him to maintain an application for federal habeas corpus.
The history of this case follows. After having been adjudicated a youthful offender and placed on indefinite probation for up to five years by the Court of Special Sessions of the City of Mount Vernon on May 31, 1966, he was discharged from probation by order of the court on May 31, 1966 following reversal of its determination that the evidence against him was not seized illegally, and dismissal of the information, by the Supreme Court, Appellate Term, Second Department (People v. Overton, 51 Misc. 2d 140, 273 N.Y.S. 2d 143 (1966)).
In 1967 the New York Court of Appeals held that notwithstanding the invalid search warrant, the search could be sustained without a warrant because of consent by the school vice-principal, and reversed the Appellate Term. See People v. Overton, 20 N.Y. 2d 360, 283 N.Y.S.2d 22, 229 N.E. 2d 596. On remand, the Appellate Term affirmed petitioner's conviction without opinion. Thereafter, on petition for certiorari, the United States Supreme Court vacated this second judgment of the Appellate Term and remanded the case for further consideration in light of Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968). See Overton v. New York, 393 U.S. 85, 89 S. Ct. 252, 21 L. Ed. 2d 218 (1968).
The New York Court of Appeals thereupon ordered reargument and upon reconsideration adhered to its prior determination. See People v. Overton, 24 N.Y. 2d 522, 301 N.Y.S. 2d 479, 249 N.E. 2d 366 (1969). The June 21, 1969 remittitur of the Court of Appeals to the Court of Special Sessions ordered that court to proceed according to this final determination upholding petitioner's conviction.
We believe it clear from the May 31, 1966 order discharging petitioner from probation
that this was an interim discharge from custody pending appeal and following reversal of his conviction and dismissal of the information pursuant to the New York Code of Criminal Procedure §§ 545, 526 and 767, and was not intended to be a final and irrevocable discharge. It was precipitated by the Appellate Term reversal in the absence of which defendant in all likelihood would have been held accountable under the probation order. Accordingly, petitioner's original judgment and sentence was reinstated pursuant to New York Code of Criminal Procedure § 546 by virtue of the final determination by the New York Court of Appeals affirming his conviction.
Petitioner's return to probationary status should not be viewed as conditional upon a subsequent order explicitly vacating the May 31, 1966 discharge. The above-described remittitur from the New York Court of Appeals is the law of the case. If ordered to report by the probation office he would have no recourse but to comply, failing which could result in the revocation of his probation and commitment. Additionally, when placed on probation the terms and conditions thereof were set forth and established. Petitioner is again subject to those restraints.
In opposition it is argued that petitioner's discharge has at all times been considered final and irrevocable by the Probation Department. Since May 31, 1966, he has not been required to report to the probation department or account for his actions or whereabouts or restricted in any manner whatsoever. See Affidavits of James J. Duggan, October 6, 1969 and November 3, 1969. As we see it, however, the inaction of the Probation Department since the June, 1969 remittitur from the Court of Appeals, based on what we believe to be an erroneous interpretation of the initial order of discharge, cannot be determinative of the question of custody.
Probationary restrictions and the threat of incarceration for violation thereof suffice to constitute "custody" for purposes of federal habeas corpus. See Jones v. Cunningham, supra 371 U.S. 236 at 242, 83 S. Ct. 373, 9 L. Ed. 2d 285; United States v. Washington, supra ; United States v. Re, supra ; "Developments in the Law - Federal Habeas Corpus," 83 Harv. L. Rev. 1038, 1072-79 (1970). Petitioner meets this criteria and is in custody.
We are confronted therefore with the merits of his claim that Bumper v. North Carolina, supra is dispositive and renders his adjudication as a youthful offender invalid. Preliminarily, the power of the vice-principal to consent to the search follows from the affirmative obligations of school authorities to supervise the children entrusted to their care and the consequent retention of control by them over the lockers. See People v. Overton, 20 N.Y. 2d 360, 363, 283 N.Y.S. 2d 22, 229 N.E. 2d 596 (1967). Similarly, the analogy to Bumper fails by virtue of this duty of supervision. "Not only have the school authorities a right to inspect but this right becomes a duty when suspicion arises that something of an illegal nature may be secreted there." Id.
The Court of Appeals held that the trial judge after a hearing denied the motion to suppress on the ground "that the vice-principal had consented to the search and that he had a right to do so." Id. at 361, 283 N.Y.S. 2d at 23, 229 N.E. 2d at 597. Addressing the question of whether the consent was ...