Appeal from a judgment entered by the United States District Court for the Southern District of New York, Metzner, J., convicting appellant of two counts of illegal possession of United States Treasury checks in violation of 18 U.S.C. § 641 (1982). We hold that appellant had a diminished expectation of privacy while in his parole officer's office and that the examination of appellant's person and clothing was not an unreasonable search under the Fourth Amendment. Suppression motion was properly denied. Affirmed. Judge Oakes dissents in a separate opinion.
Oakes, Meskill and Pierce, Circuit Judges. Oakes, Circuit Judge (dissenting).
Appellant James Thomas appeals from a judgment of the United States District Court for the Southern District of New York, Metzner, J., convicting him of two counts of illegal possession of United States Treasury checks. Thomas moved below to suppress the checks, contending that they were seized during an illegal search by his parole officer. When the district court denied the suppression motion, Thomas pleaded guilty to both counts while preserving his right to appeal the adverse decision on his suppression motion.
After Thomas served a state prison term in Pennsylvania for armed robbery, his parole supervision was transferred to New York under the Interstate Compact, N.Y. Exec. Law § 259-m (McKinney 1982) (adopted pursuant to 4 U.S.C. § 112 (1982)). Officer Rooney was assigned to supervise Thomas' parole in November 1982. On April 7, 1983 Thomas reported to Rooney's office for his regularly scheduled meeting and inquired about the termination of the parole. Officer Rooney procured Thomas' file and after noting that the parole terminated in 1989, observed that Thomas had been convicted of narcotics possession in 1968. Rooney, who previously was unaware of the conviction, asked Thomas if he was still using drugs. When Thomas replied in the negative Rooney asked him to remove his jacket and roll up his shirt sleeves. Thomas complied, stating: "I knew you were going to do that."
Rooney examined Thomas' left arm and discovered several puncture marks. Thomas explained that he received the puncture marks during a blood test at a welfare office. Concluding that Thomas was using narcotics, Rooney instructed Thomas to stand up and face the wall. Rooney then searched Thomas, patting him down and searching his trouser pockets. Thomas again sat down. Rooney picked up Thomas' jacket, opened the front pocket and removed a needle, a syringe, a plunger and cigarette rolling paper. Upon examining another jacket pocket, Rooney discovered an unsealed envelope with the flap tucked inside. Rooney opened the envelope and found eleven United States Treasury checks. Thomas explained that he had found the checks. Rooney then called the Postal Inspectors and the Secret Service. Based on the evidence he found, Rooney obtained an arrest warrant from his supervisor and placed Thomas under arrest for parole violation.
Thomas based his suppression motion on our decision in United States v. Rea, 678 F.2d 382 (2d Cir. 1982), where we excluded evidence seized by federal probation officers in a warrantless search of a probationer's apartment and held that a warrant is required unless "the search falls within a judicially recognized exception to the warrant requirement." Id. at 388. The district court instead relied on our decision in United States ex rel. Santos v. New York State Board of Parole, 441 F.2d 1216 (2d Cir. 1971), cert. denied, 404 U.S. 1025, 30 L. Ed. 2d 676, 92 S. Ct. 692 (1972), and denied Thomas' motion. In Santos, we held that a state parole officer could search a parolee's apartment without a warrant. The court distinguished Santos and Rea by noting that Santos involved a state parole officer and that Rea dealt with a federal probation officer. The district court alluded to our discussion in Santos of a New York State parole officer's statutory responsibility to ensure that the conditions of parole are not being violated and of how that responsibility requires that a parole officer be empowered to conduct searches of parolees that would violate the rights of ordinary citizens. The court concluded that Santos interpreted N.Y. Correction Law § 210 (McKinney 1968), which sets forth the duties of parole officers, as permitting a warrantless search. Noting that the present case involved a New York State parole officer, the district court found that Santos controlled and that the warrantless search of Thomas was proper because the narcotics conviction provided reasonable grounds for the parole officer's investigation.
On appeal, Thomas claims that the parole officer's search was illegal because the parole officer lacked both probable cause and a search warrant. We believe that neither Santos nor Rea controls the outcome here.*fn1 Nevertheless, we agree with the district court's conclusion that the checks were admissible and we affirm the judgment of conviction.
Ordinarily, the "seizure of personal property [is] per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause." United States v. Place, 462 U.S. 696, , 103 S. Ct. 2637, 77 L. Ed. 2d 110, 51 U.S.L.W. 4844 (1983). But Fourth Amendment protections extend only to "unreasonable government intrusions into . . . legitimate expectations of privacy." United States v. Chadwick, 433 U.S. 1, 7, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977). The focus of our inquiry into whether Officer Rooney's search violated Thomas' Fourth Amendment rights thus becomes whether Thomas had a legitimate expectation of privacy for his person and clothing at the time of the search and whether, in light of that expectation, Rooney's actions were unreasonably intrusive.
The test for determining when an expectation of privacy is reasonable or legitimate was stated explicitly in Justice Harlan's often cited concurring opinion in Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967): "There is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'" Id. at 361 (Harlan, J., concurring).
Thomas can satisfy neither prong of this test. First, it is obvious that he did not in fact have an expectation that his person or clothing would not be searched while he was in Rooney's office. A New York parolee is required to sign a statement that he understands the conditions of his release. 9 N.Y.C.R.R. § 8003.1(c) (1978). Thomas, as a transferee from the Pennsylvania parole system, had not signed such a statement but the conditions were read to him by Officer Rooney at the time of his transfer. The conditions included consent to searches and inspections of his person and property by his parole officer. Transcript of June 16, 1983 at 7, United States v. Thomas, No. 83 Cr. 340 (CMM) (S.D.N.Y. June 16, 1983) (testimony of Brian Rooney). Having been alerted to the conditions of parole, Thomas would not have the expectation of privacy enjoyed by ordinary citizens. Furthermore, Thomas manifested his diminished subjective expectation of privacy by saying, "I knew you were going to do that," when Officer Rooney told him to roll up his shirt sleeves.
Second, because Thomas was a parolee his legally cognizable expectation that his person or clothing would not be searched while he was in Rooney's office was substantially reduced. The status of parolees in our legal system is unique; they are "neither physically imprisoned nor free to move at will." United States v. Polito, 583 F.2d 48, 54 (2d Cir. 1978). A parolee does not enjoy "the absolute liberty to which every citizen is entitled, but only [a] conditional liberty properly dependent on observance of special parole restrictions." Morrissey v. Brewer, 408 U.S. 471, 480, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). Because of this unique position, a parolee "possess[es] fewer constitutional rights" than ordinary citizens, Polito, 583 F.2d at 54. The rights diminished by parolee status include Fourth Amendment protections from intrusions by parole officers. United States v. Bradley, 571 F.2d 787, 790 (4th Cir. 1978); Latta v. Fitzharris, 521 F.2d 246, 248-49 (9th Cir.) (en banc), cert. denied, 423 U.S. 897, 46 L. Ed. 2d 130, 96 S. Ct. 200 (1975); United States ex rel. Santos v. New York State Board of Parole, 441 F.2d at 1218; United States ex rel. Randazzo v. Follette, 418 F.2d 1319, 1322 n.7 (2d Cir. 1969), cert. denied, 402 U.S. 984, 29 L. Ed. 2d 150, 91 S. Ct. 1672 (1971).
A parolee's diminished Fourth Amendment protection regarding searches by a parole officer arises from the necessity for effective parole supervision and the unique relationship of the parole officer and the parolee. United States v. Bradley, 571 F.2d at 790; Latta v. Fitzharris, 521 F.2d at 249. A parolee is in the legal custody of a parole officer who monitors the parolee's adherence to the conditions of his or her parole. N.Y. Exec. Law § 259-i(2)(b) (McKinney 1982). A parole officer's function is twofold: "to guide the parolee into constructive development" and to prevent "behavior that is deemed dangerous to the restoration of the individual into normal society." Morrissey v. Brewer, 408 U.S. at 478. To ensure that the conditions of parole are not being violated and to monitor the parolee's progress of reintegration into society, a parole officer, of necessity, must have investigative powers to gather information about the parolee's activities, environment and social contacts. Accord Latta v. Fitzharris, 521 F.2d at 249. Often such information can only be obtained by activities like searches that invade the privacy of the parolee to an extent that "would be unlawful if directed against an ordinary citizen." United States ex rel. Santos v. New York State Board of Parole, 441 F.2d at 1218.
Expectations of privacy can vary, depending on circumstances and location. E.g., United States v. Knotts, 460 U.S. 276, 103 S. Ct. 1081, 75 L. Ed. 2d 55, 51 U.S.L.W. 4232 (1983) (travel route on public street); United States v. Martinez-Fuerte, 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976) (automobile); United States v. Lyons, 227 U.S. App. D.C. 284, 706 F.2d 321 (D.C. Cir. 1983) (hotel room); United States v. Kaiyo Maru No. 53, 699 F.2d 989 (9th Cir. 1983) (commercial property); United States v. MacPherson, 664 F.2d 69 (11th Cir. 1981) (border search); United States v. Huie, 593 F.2d 14 (5th Cir. 1979) (mail cover). A parolee's diminished expectation of privacy would necessarily be further diminished while he is in his parole officer's office. Even an ordinary citizen's expectation of privacy is less in a public office than in a residence. See United States v. Martinez-Fuerte, 428 U.S. 543, 561, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976) (sanctity of private dwelling ordinarily afforded most stringent Fourth Amendment protection); Harris v. United States, 331 U.S. 145, 151 n.15, 91 L. Ed. 1399, 67 S. Ct. 1098 (1947) (stricter requirements for dwelling searches). The expectation ...