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U.S. v. NEWTON

January 3, 2002

UNITED STATES, PLAINTIFF,
V.
SEWN NEWTON, DEFENDANT.



The opinion of the court was delivered by: David G. Trager, United States District Judge

  MEMORANDUM AND ORDER
Defendant Sewn Newton is charged with possession of a firearm, having previously been convicted of three crimes each punishable by imprisonment for a term exceeding one year and each a violent felony or serious drug offense. 18 U.S.C. § 922(g)(1), § 924(e)(1), and § 3551 et seq. Certain physical evidence, including the firearm in question, was seized from the apartment in which Newton was staying on January 9, 2001. Newton also made several statements to parole officers at the time. Newton now moves to suppress the evidence, arguing that the physical evidence was taken in violation his Fourth Amendment rights, and that the statements were obtained in violation of his Fifth Amendment rights under Miranda.

Background

On July 23-24, 2001, three parole officers with the New York State Division of Parole, Newton, and his mother, Shirley Wright, testified at a suppression hearing. At the conclusion of the hearing, I credited the accounts of the parole officers. Therefore, I make the following findings of fact.
At the times relevant to this case, Newton was on parole under the supervision of the New York State Division of Parole. Tr. of Suppression Hr'g, July 23-24, 2001 ("Tr.") at 21. When he was released on parole on March 6, 2000, Newton signed a standard certificate of release in which he agreed that during his period of supervision, he "will permit his parole officer to visit him at his residence and/or place of employment and will permit the search and inspection of his person, residence and property." Tr. at 21-22. Since his release, Newton has occasionally stayed as an overnight guest at his mother's apartment. Tr. at 53.
On January 8, 2001, Carole Flot, a senior parole officer, received a phone call from a social worker at a victims' services organization. Tr. at 9. The social worker told Flot that she had received a call from Newton's mother. Tr. at 11. In her call to the social worker, Wright said that Newton threatened to kill her and her husband, and that he kept a gun in a box by the door of her home. Tr. at 9. The social worker added that she had not been able to provide services to Wright and her husband. Id.
Flot conveyed this information to John Zwaryczuk, a parole officer working that day. Id. Zwaryczuk then contacted Newton's parole officer, Barry Davis, and Davis' partner, John White, and informed them of the allegations against Newton. Tr. at 23. Davis told his superior, John Contino, about the allegations, and Contino advised him to conduct a "safety search." Tr. at 69. Davis, White, and Zwaryczuk decided to visit Newton at his mother's apartment the next morning. Tr. at 24. They also contacted the local police precinct and invited a police sergeant and two officers to accompany them. Id. None of the parole officers contacted the social worker to discuss the allegations. Tr. at 34.
Early in the morning of January 9, 2001, the three parole officers and three police officers arrived at Wright's apartment. Tr. at 25-26. After Davis knocked for several minutes, Newton opened the door dressed only in his underwear. Tr. at 26, 49, 63. Davis asked Newton to step into the hallway and turn around. Tr. at 63. Davis then handcuffed Newton, and told him that he was not under arrest and that the handcuffs were for the safety of both the officers and Newton. Tr. at 50, 63.
Newton was taken back into the apartment, and sat by the officers in a chair in the foyer just inside the door. Tr. at 26. Davis asked Newton where his mother was, and Newton replied she was in the back. Tr. at 76. Zwaryczuk then began to question Newton, asking him if he had any kind of contraband in the home. Tr. at 26-27. Newton looked at a closed shoe box on a table behind Zwaryczuk, motioned with his head and body toward the table, and said, "only what is in the box." Tr. at 27, 63. Zwaryczuk asked Newton what was in the box, and Newton replied, "a two and two." Tr. at 27. Zwaryczuk then asked Newton, "What is a two and two?" and received no answer. Id. Zwaryczuk opened the box and found an unloaded .22 caliber automatic firearm, a fully loaded magazine, and several loose rounds. Id. Zwaryczuk opened the box "maybe under a minute" after the officers entered the apartment. Id.
According to Zwaryczuk, when the gun was found, Newton's parole was revoked automatically and he became under arrest. Tr. at 29. Newton was then handed over to one of the police officers to be processed. Tr. at 29. At the apartment, Zwaryczuk gave the box and its contents to White, who gave it to the police sergeant. Tr. at 45. At no time during Newton's questioning or arrest at the apartment did any of the parole or police officers read Newton his Miranda rights. Tr. at 38.

While Zwaryczuk questioned Newton, Davis went to the bedroom in the back of the apartment, where he encountered Wright coming out of a bedroom.*fn1 Tr. at 76. Wright's husband was also present. Tr. at 70. Davis asked Wright and her husband if they were all right, then explained why the officers were there and asked her permission to search the apartment. Tr. at 28, 66. This request occurred after Zwaryczuk had found the firearm in the shoe box. Tr. at 40. Wright verbally agreed, and some of the officers searched the living room where Newton slept. Tr. at 28, 39, 66. No other firearms were found. Tr. at 29.

Newton's girlfriend was also present in the apartment when the officers arrived and searched. Tr. at 61.

Discussion

Newton seeks to suppress the physical evidence seized by officers, and all statements he made in response to the parole officers' questions. Each issue will be addressed separately.

(1)

Newton seeks to suppress the evidence seized by the officers, claiming that the search violated his Fourth Amendment right to be secure from unreasonable searches and seizures.

The government initially argues that the parole officers were present in Wright's apartment pursuant to their inherent authority to conduct home visits of parolees. "To be sure, `home visits' by parole officers are among the lawful restrictions to which parolees have traditionally been subjected." United States v. Trzaska, 866 F. Supp. 98, 101-02 (E.D.N.Y. 1994) (citing Diaz v. Ward, 506 F. Supp. 226, 228-29 (S.D.N.Y. 1980)). By signing the certificate of release, Newton agreed to allow his parole officer to visit him at home.
Newton argues that the parole officers engaged in a search of the apartment, not a home visit. A home visit is not a search, even though a visit may result in seizure of contraband in plain view. See Trzaska, 866 F. Supp. at 102. There is a "common sense" distinction between visits and searches: searches are "an intrusive, probing endeavor," while home visits are "much more restricted in scope." Diaz, 506 F. Supp. at 228. Furthermore, in Trzaska, the stated purpose of the routine home visit was to verify the parolee's residence, employment status, and other indicia of community status.
The parole officers here did not undertake a restricted visit of Newton. They instead handcuffed Newton, entered the apartment, and looked for the gun. This "intrusive, probing endeavor" must be characterized as a search, not a home visit. The question, therefore, is whether the search was lawful under the Fourth Amendment.
A parolee or a probationer does not generally surrender his Fourth Amendment right to be secure from unreasonable searches and seizures. See Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 3168 (1987) (probationer's home protected by Fourth Amendment); United States v. Grimes, 225 F.3d 254, 258 (2d Cir. 2000) (applying Griffin to parolees). Moreover, as the district court in Grimes noted, a parolee's status is relevant to the evaluation of what is a reasonable search. See United States v. Grimes, 67 F. Supp.2d 170, 175 (W.D.N.Y. 1999). That is, a search that is unreasonable with respect to an individual not on parole may be reasonable with respect to an individual who is. See id.
In most situations, a search may only be undertaken pursuant to a warrant supported by probable cause. See Griffin, 483 U.S. at 873, 107 S.Ct. at 3168. However, the Supreme Court has permitted exceptions when "special needs" beyond the normal need for law enforcement make the warrant and probable cause requirement impractical. Id. One of these exceptions is for a state's operation of its probation or parole system. See id. (probation system); Grimes, 225 F.3d at 258 (applying Griffin to parole system). "As a result, probationers [and parolees] may be subject to `a degree of impingement upon privacy that would not be constitutional if applied to the public at large.'" Id. (quoting Griffin, 483 U.S. at 875, 107 S.Ct. at 3169).
To guarantee a parolee's somewhat diminished Fourth Amendment rights, these impingements must occur "pursuant to a regulation that itself satisfies the Fourth Amendment's reasonableness requirement." Griffin, 483 U.S. at 873, 107 S.Ct. at 3168. This formulation is an extension of the doctrine regarding warrantless administrative searches, in which "government investigators conducting searches pursuant to a regulatory scheme need not adhere to the usual warrant or probable-cause requirements as long as their searches meet `reasonable legislative or administrative standards.'" Id. (quoting Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 1736 (1967)).

Applying this standard to the case at bar therefore requires a determination of whether the regulations under which Newton's mother's apartment was searched satisfy the Fourth Amendment's reasonableness requirement, and whether that search was conducted pursuant to those regulations.

This seemingly straightforward analysis is complicated by a preliminary question: what are the applicable "regulations"? As Newton was a parolee with the New York State Division of Parole, state law must provide the appropriate search regulations.*fn2 There are three possibilities.
First, the search may have been conducted pursuant to the New York State Division of Parole's Policy and Procedures Manual ("Manual"). See July 23, 2001 Hr'g Ex. B. Item 9405.04 of the Manual provides guidelines for home visits, searches, and seizures of parolees by parole officers. See id. Section II of Item 9405.04 specifically provides guidelines for warrantless searches of parolees. See id. Under Section II.A:
A parole officer may search a releasee for evidence of a crime or evidence of a violation of any of the releasee's conditions of parole where the officer has an articulable reason for conducting the search that is reasonably related to the circumstances of the particular case and rationally related to the officer's duty to supervise the releasee.
Id. Moreover, under Section II.B.4 ("Specific applications . . . Search of a residence"), "a releasee's residence may be searched only where the officer has an articulable reason for conducting the search and then only with the consent of the releasee, or the consent of another adult member of the household." Id. The Manual also contains specific guidelines regarding home visits, and paperwork and filing requirements relating to consent and seizures. Newton assumes that the Manual is the applicable regulation, and bases his argument on the parole officers' alleged violations of the Manual's guidelines.
Second, the search may have been conducted pursuant to regulations governing release conditions of parolees. New York State Division of Parole regulations mandate that "[a] copy of the conditions of release, with the addition of any special conditions, shall be given to each inmate upon his release to supervision." N.Y. Comp. Codes R. & Regs. 9 § 8003.2 (1995).*fn3 The regulations further state that the conditions of release are to include: "[a] releasee will permit his parole officer to visit him at his residence and/or place of employment and will permit the search and inspection of his person, residence and property." N.Y. Comp. Codes R. & Regs. 9 § 8003.2(d). The government claims that the Division of Parole is governed by these regulations.
Finally, the search may have been conducted pursuant to case law developed by New York courts regarding warrantless searches of parolees. In People v. Huntley, 43 N.Y.2d 175, 401 N.Y.S.2d 31 (1977), a parolee who had upon release signed a standard certificate of release authorizing searches failed to report to two meetings with his parole officer, lied about his employment status, and received welfare benefits without asking permission. See id. at 179-80. Armed with a parole violation ...

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