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U.S. v. NEWTON
January 3, 2002
UNITED STATES, PLAINTIFF,
SEWN NEWTON, DEFENDANT.
The opinion of the court was delivered by: David G. Trager, United States District Judge
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.
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
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
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.
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.
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).
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
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.
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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