The opinion of the court was delivered by: CURTIN
This is a habeas corpus proceeding brought pursuant to 28 U.S.C. § 2254, to collaterally attack the constitutionality of the petitioner's New York State conviction for felony possession of drugs. The substances were seized during the course of a warrantless "routine search" of the petitioner's bedroom, conducted in his absence, by his parole officer. The drugs were introduced in evidence in a new criminal proceeding and resulted in a sentence extending beyond the expiration date of the petitioner's original term.
The petitioner contends that the County Court Judge erred when he ruled from the bench, following a pretrial suppression hearing, that the evidence seized was admissible. The judge found that the warrantless search was lawful because it was conducted pursuant to a consent executed by the petitioner. (Suppression Hearing Tr. at 36.) Petitioner challenged this finding on appeal and is properly before this court, having exhausted available state remedies. 28 U.S.C. § 2254(b).
On March 25, 1969 when the search was conducted, petitioner was on parole from what was then Attica State Prison. Prior to his release on October 24, 1968, petitioner executed an "agreement" which provided that he conform with the conditions listed as consideration for his release on parole, under penalty of revocation. (See Exhibit I annexed to respondent's answering affidavit filed February 10, 1974.) Paragraph 3 of the "agreement" contains the following language:
. . . I hereby consent to any search of my person, my residence or of any property or premises under my control which the Board of Parole or any of its representatives may see fit to make at any time in their discretion. (Exhibit I, supra.)
This provision and all the others contained in the agreement were boiler plate derived from regulations promulgated by the New York State Board of Parole, 9 N.Y.C.R.R. § 155.15 (1965), pursuant to statutory authority under the New York Corrections Law.
The factual circumstances surrounding the signing of the consent were not developed at the suppression hearing. The only testimony was that of Michael Falk, the petitioner's parole officer. He did not witness the signing, but he stated that the petitioner had to sign in order to be released. Falk's contention is borne out by the controlling parole release regulation [9 N.Y.C.R.R. § 155.10 (1965), presently 7 N.Y.C.R.R. § 1915.5(c) (1974)], and was conceded by counsel for the respondent during oral argument in this court. In spite of this, it is argued that the executed agreement can sustain a search occurring five months later. I disagree.
Initially, I note that New York State's practice of conditioning parole release upon execution of a consent to indiscriminate search stands in sharp contrast to that of forty-seven states in the Union. Wolin, R., After Release -- The Parolee in Society, 48 St. John's L.Rev. 1, 11 (1973). The federal policy is aligned with the vast majority of states as well. The basis for invalidating the search is not grounded in these figures, however, but in the Bill of Rights.
An established concept in our jurisprudence is that "except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant." Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S. Ct. 1727, 1731, 18 L. Ed. 2d 930 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).
To substantiate a "proper consent" to search, the State must prove "that the consent was, in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1792, 20 L. Ed. 2d 797 (1968). Furthermore, voluntariness must be proven by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); United States v. Boston, 508 F.2d 1171, 1178 (2d Cir. 1974); United States v. Fernandez, 456 F.2d 638, 640 (2d Cir. 1972). In determining whether the burden has been met, a court must examine the totality of facts and circumstances surrounding the giving of consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); United States v. Mapp, 476 F.2d 67, 78 (2d Cir. 1973).
. . . [The] Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting "consent" would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.
Schneckloth, supra at 228, 93 S. Ct. at 2048.
There is no real factual dispute presented to this court with regard to the petitioner's consent executed in October of 1968. He was received at Attica in February of 1962 and was in continuous custody there for six and a half years. No responsible account of the conditions extant would deny the lack of minimal privacy available to an inmate, or dispute the harshness and even dangerousness of the daily regimen.
Schneckloth, supra at 247, 93 S. Ct. 2041, recognized custody as an important factor for courts to weigh in determining coercive circumstances. But the Supreme Court also cautioned that consideration of the "possibly vulnerable subjective state of the person who consents" is critical. 412 U.S. at 229, 93 S. ...