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DIAZ v. WARD

September 27, 1977

CARMEN DIAZ, et al., Plaintiffs,
v.
BENJAMIN WARD, et al., Defendants



The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

 HAIGHT, District Judge:

 Plaintiffs, parolees under the criminal justice system of the State of New York, and members of their families, commenced this action on their behalf and all others similarly situated. The defendants are the Commissioner of Correctional Services of New York; the former Commissioner; the Chairman of the State Board of Parole; the Deputy Commissioner for Parole and Community Services; the Directors of the New York and Bronx Area Parole Offices; a number of New York State parole officers; and the Department of Correctional Services and Board of Parole.

 Plaintiffs allege that defendants have administered and implemented New York State parole procedures in such a way as to deprive them of rights, privileges and immunities guaranteed by the United States Constitution. They pray for declaratory relief, and for compensatory and punitive damages. Jurisdiction in this Court is said to arise out of 42 U.S.C. § 1983, *fn1" and its procedural implementation, 28 U.S.C. § 1343; *fn2" alternatively plaintiffs allege federal question jurisdiction under 28 U.S.C. § 1331(a). *fn3"

 Plaintiffs pray for class action designation, pursuant to Rule 23, F.R.Civ.P. There are two putative classes: (1) those who are now on parole or conditional release and those who are in prison and are or will become eligible for such release; and (2) those family members of parolees who reside with them.

 Defendants oppose the request for class certification, and also move for judgment on the pleadings (save for two isolated claims) under Rule 12(c), F.R.Civ.P.

 For the reasons stated infra, defendants' motion for judgment on the pleadings is denied, and class certification is granted provisionally.

 I.

 The Allegations of the Complaint

 Evaluation of defendants' motion necessarily begins with a consideration of the complaint. Upon a motion for judgment on the pleadings under Rule 12(c), "the well-pleaded material facts must be taken as admitted." Gumer v. Shearson, Hammill & Co., 516 F.2d 283, 286 (2d Cir. 1974). The moving party does not, of course, admit conclusions of law. 5 Wright & Miller, Federal Practice and Procedure (1969), § 1368, pp. 692-693.

 Turning to the complaint in the case at bar, *fn4" parolees and members of their families allege a "pattern and practice", indulged in by defendants, of subjecting their persons, residences, papers, effects and property to searches which plaintiffs characterize as "without consent, search warrant or probable cause." In some instances parole officers are alleged to have conducted searches at gun point, threatened the return of parolees to prison, and interfered with parolees' social contacts. It is not necessary to restate here all the allegations of a lengthy complaint comprising 36 pages and 142 separate paragraphs. *fn5"

 II.

 Plaintiffs' Constitutional Claims

 While plaintiffs invoke a number of Constitutional provisions, *fn6" the Fourth Amendment lies at the heart of their case. It provides:

 
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

 The case at bar poses the significant question of the extent to which parolees are protected, if at all, by the Fourth Amendment's prohibition against unreasonable searches and seizures. That question has arisen before, in the somewhat different context of parolees' efforts to exclude evidence seized during an allegedly unconstitutional search. Insofar as the researches of counsel and the Court reveal, the instant case is the first one seeking a declaration of rights and award of damages under the civil rights statutes and the Constitution.

 The briefs of counsel, while extensive, are less than entirely helpful because each party tends to exaggerate the other's stated position, in order that it may be attacked with particular vigor. Thus plaintiffs accuse defendants of asserting the " unrestrained power to search plaintiffs' homes" (brief, p. 2, emphasis in original), which overstates defendants' position, at least as articulated by their counsel on the present motion; while defendants describe plaintiffs as claiming that parolees "are entitled to the same Fourth Amendment protections as an ordinary citizen" (reply brief, p. 2), which is not really the case. The resulting clash of legal arguments is reminiscent of Arnold's "Dover Beach". *fn7"

 In this Court's view, ample authority sustains the proposition that parolees and their families enjoy a significant measure of protection under the Fourth Amendment. It is neither necessary nor appropriate, within the context of defendants' motion addressed to the legal sufficiency of the complaint, to determine the precise boundaries of that protection. The dispositive issue on this motion is whether plaintiffs' factual allegations, if established on the trial, would entitle them to some measure of relief. The Rule 12(c) motion fails because I answer that question in the affirmative.

 III.

 Parolees' Rights Under the Fourth Amendment

 Within the context of the admissibility, in a subsequent prosecution, of evidence seized during the search of a parolee, the law is settled in this Circuit that a parolee's Fourth Amendment rights are reduced, but not eliminated. Thus in United States ex rel. Santos v. New York State Board of Parole, 441 F.2d 1216 (2d Cir. 1971), a New York City detective "received information which provided him with reasonable grounds to believe that appellant, a parolee, was 'dealing' in stolen goods." 441 F.2d at p. 1217 (emphasis added). The detective informed the parole officer, who, on the basis of that advice, formed the belief "that there was more than reasonable grounds to conclude that Santos had lapsed into criminal activity." Id. (emphasis added). A search of the parolee's apartment yielded several items of stolen property which the parolee unsuccessfully sought to suppress, on the theory that "the Fourth Amendment bestows on parolees rights coextensive with those guaranteed to ordinary citizens." 441 F.2d at pp. 1217-1218. The Second Circuit, affirming a denial of habeas corpus following exhaustion of state remedies, disagreed:

 
"Without attempting to define precisely the extent of Fourth Amendment protection against searches and seizures which a parolee might have in the abstract, it is indisputable that the Fourth Amendment affords protection only against unreasonable searches. A search which would be unlawful if directed against an ordinary citizen may be proper if conducted against a parolee. United States ex rel. Randazzo v. Follette, 418 F.2d 1319, 1322, n. 7 (2nd Cir. 1969)." 441 F.2d at p. 1218.

 Randazzo, cited by the Second Circuit in Santos, also involved a state parolee's habeas corpus petition after an unsuccessful effort to suppress evidence (heroin). The parole officer received information "from what he testified was a reliable source" that the parolee had consorted with a convicted felon and committed other parole violations; the parolee himself admitted such consorting; a subsequent search of his apartment then revealed the heroin. On these facts, the Second Circuit rejected the parolee's Fourth Amendment argument. The Court stopped short, however, of endorsing the district court's conclusion that a search of a parolee's residence was not in violation of the Fourth Amendment "because done without a warrant, without consent, and without probable cause." 282 F. Supp. 10, 15. Reacting to that statement, the Second Circuit said:

 
"It is possible that this formulation is too broad. A parolee is said to be entitled to some quantum of Fourth Amendment protection against 'unreasonable searches and seizures.' (citing cases).
 
"However, a search which would be 'unreasonable' if an ordinary citizen were involved, might be reasonable if directed against a parolee. It would be unrealistic to ignore the fact that parolees, as a class, pose a greater threat of criminal activity than do ordinary citizens." 418 F.2d at p. 1322 n. 7.

 Implicit in these decisions is the concept that if the search of a parolee or his residence is unreasonable, his Fourth Amendment rights have been violated and the evidence will be suppressed. *fn8" That is the holding of United States ex rel. Coleman v. Smith, 395 F. Supp. 1155 (N.D.N.Y. 1975), a scholarly opinion by Chief Judge Curtin with which I entirely agree. In Coleman a parole officer named Falk, who had visited the parolee at home a number of times, found him absent on one occasion and "decided, on the spot, to search Coleman's room", 395 F. Supp. at p. 1157, thereby discovering drug paraphernalia under the bed. Distinguishing Santos and granting habeas corpus, Judge Curtin held:

 
"Unlike the parole officer in Santos, however, Falk possessed neither reasonable suspicions of the petitioner's actual or imminent violation of a condition of parole, nor did he secure a parole violation warrant. The utter lack of any articulated or unarticulated suspicions distinguishes the instant case from Santos and from cases in other jurisdictions cited by the parties in their briefs." 395 F. Supp. at p. 1158.

 The state court in Coleman had denied the suppression motion on the ground that the warrantless search was conducted pursuant to a "consent" executed by the parolee. The purported "consent" appeared in a release agreement which, under New York procedures, any parolee ...


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