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Defendant Contends Proceedural Violations during his Arrest


Parole Officer One has been employed by the New York State Division of Parole since August 1993. She was assigned to supervise the parole of the defendant in July 2006. The defendant had been paroled on a burglary conviction. Upon his release, he had signed the conditions of parole which included his consent to a search of his residence, person and property and required him to fully and truthfully answer any inquiry by his parole officer or other representative of the Division of Parole. When Officer One first met with the defendant, the consent to search provision was reiterated to him and he reaffirmed his consent. A private individual gave his residence as 87 East 31st Street in Kings County. No previous searches had been conducted by Officer One at the defendant’s residence.

A New York Drug Crime Lawyer said the defendant, as a condition of his parole, was referred to a drug program in November 2006. In December 2006, and January and February 2007, the defendant tested “positive” for cocaine. On 15 March 2007, Officer One, in consultation with parole supervisors and Parole Officer Two, decided to do a home visit with the intention of doing a search. At that time, Officer Three was assigned to the “Targeted Offender Program” which was then doing visits in cases where the parolees, as the defendant, had been convicted of burglary.
On 16 March 2007, prior to conducting any home visits, Parole Officer Two met with other officers of the 67th Precinct Anti-Crime Unit who had been assigned to assist him in the execution of the home visits. Parole Officer Two had selected the parolees’ homes which would be visited and identified them to the police officers. He also told the police officers the number of people to expect at each home and the crime for which the parolee was on parole. Parole Officer One did not participate in the visit or search.

Parole Officer Two chose to visit the defendant’s residence at 87 East 31st Street first because it was geographically the closest address to the precinct house. A New York Drug Possession Lawyer said Parole Officer Two, in the company of the police officers, knocked on the door of the defendant’s second floor apartment. When the defendant opened the door, Parole Officer Two explained to the defendant that he wanted to conduct a parole search of his apartment. After the defendant orally consented to the search, Parole Officer Two and the police officers entered the premises. The defendant was directed to sit on a couch which was in the middle of the living room. The defendant was not handcuffed during the search. The defendant’s teenage daughter, who was still in her pajamas, was told to get dressed and to take a seat on the couch.

Parole Officer Two then walked into a bedroom to the left of the living room and asked the defendant if it was his room. The defendant replied that it was his room.

The Police Officer who was standing directly in front of and to the right of the defendant had a direct view of Parole Officer Two inside the bedroom. A Nassau County Drug Possession Lawyer said the defendant also had a direct view of the Parole Officer. Parole Officer Two walked over to an armoire and asked the defendant if it was his. The defendant replied that the armoire was his. Parole Officer Two then opened the door to the armoire and asked the defendant if the clothing inside was his. The defendant stated that the clothes were his. Parole Officer Two continued his search of the armoire and subsequently removed two large blocks of a white, powdery substance that were vacuum sealed. These blocks were approximately, one to one and a half (1½) inches thick and probably about the size of an eight by ten. Parole Officer Two asked the defendant what they were. The defendant replied: “You know what that is, it appears to be cocaine” and thereafter acknowledged that they were his. Parole Officer Two then collected a large amount of money from various locations in the bedroom.

Officer Two continued his search in the living room. At the entertainment center, Parole Officer Two opened two doors underneath the television set and pulled out a duffel bag. Inside the duffel bag, he discovered a shoe box that contained a firearm. Parole Officer Two gave the firearm to one of the Police Officers who put it in his waistband for safekeeping; he was also given the two large blocks of white powder which he put inside the shoe box along with the bullets from the firearm. The defendant was handcuffed and placed under arrest. During the search, the defendant had not been threatened or promised anything to elicit any admissions or statements. There was no evidence of any coercion. In response to pedigree questioning, the defendant admitted that he lived at this address.

From the time the defendant was placed under arrest to the time he was taken to the precinct approximately 10 to 30 minutes passed. During this time, the defendant’s daughter’s aunt, had arrived in response to a phone call to pick up the defendant’s daughter. The aunt stood in the living room. The defendant was sitting with his daughter on the couch having a conversation. The defendant was overheard encouraging his daughter to take her school bag, which was in the living room, when she left with her aunt. One of the police officers described the bag as a backpack which a child or teenager would normally carry. When the defendant’s daughter picked up the bag and started to leave with it, the police searched the bag. A large amount of money and a couple of sets of car keys were recovered from the bag. The defendant’s daughter had neither a driver’s license nor a car. The defendant’s daughter was about 15 to 16 years old. The defendant’s daughter was placed under arrest. The police officer explained that the defendant’s daughter was arrested because it appeared that she knew of the situation in the apartment, i.e., the narcotics and firearm and may have played a role in what was going on in the apartment and that she was trying to leave with money and car keys.

After the defendant’s daughter was arrested, the defendant and his daughter were in the same room. No one said anything to the defendant at that time about his daughter’s arrest. A Queens Drug Possession Lawyer said the defendant and his daughter were subsequently transported to the 67th Precinct.

Later that day, the two Parole Officers were present with the defendant for approximately 1½ to two hours at the District Attorney’s Office. The defendant’s daughter was also present. Miranda warnings were never administered to the defendant in Parole Officer One’s presence. The defendant was told that his daughter could also be charged. Thereafter, the defendant said that: “It’s all mine.” The People conceded that this admission could not be used as evidence-in-chief but sought to use it as impeachment material if the defendant testified at his trial.
A Huntley hearing was conducted.

At a hearing to suppress a statement made to law enforcement officials, the People have the burden of demonstrating, beyond a reasonable doubt, that the defendant’s statement was voluntary in the traditional sense and, if applicable, that the defendant had knowingly, intelligently and voluntarily waived his or her Miranda rights prior to making the statement.
Miranda warnings are only required when a defendant is subjected to custodial interrogation by law enforcement officials. The test for determining whether a defendant was in custody at the time of his statement is whether a reasonable person, in the defendant’s position, innocent of any crime, would have believed that he or she was under arrest.

Here, the defendant was not in custody at the time he was asked about the bedroom, the armoire, the clothing and the two large vacuum sealed blocks found inside the armoire. At the time of this questioning, the defendant was sitting on a couch in his living room while Parole Officer Two was posing questions from inside the bedroom. The police officers present were merely standing in the living room. They did not have their guns drawn. Moreover, the defendant had not been handcuffed and had not been placed under arrest. Thus, there was nothing in this environment or the questioning of the defendant which would have caused a reasonable person, innocent of a crime, to have believed that he was in custody.

Ordinarily, in a noncustodial setting, law enforcement questioning would not need to be preceded by Miranda warnings to render any responses admissible. However, since this case involves questioning by a parole officer, this finding may not be determinative.

It must be noted that in the case of People v Parker and subsequent cases, the Appellate Division, Second Department, in a landmark case did not create a per se rule that any questioning of a parolee by a parole officer concerning criminal activity must be preceded by Miranda warnings to render any statement admissible at a criminal trial. If the affirmance by the Court of Appeals had endorsed such a per se rule, the Court would not have had to caution that its ruling in another case, People v English, was limited and that the Court had not decided the issue in cases of noncustodial questioning. The Parker holding had two elements, i.e., noncustodial questioning by a parole officer regarding suspected criminal activity, and, second, charges of criminal activity against the defendant and/or his or her representation by counsel. Thus, while binding in its limited factual context, it is distinguishable from this case and thus does not control the result.

The court must next decide what ruling to follow. As is obvious, the court finds the ruling in the other case overly expansive and contrary to the narrow holding in Parker. Clearly, the reasoning enunciated in another case rejecting a per se rule is more compelling as the Appellate Division properly distinguished Parker and its ruling is in conformity with federal constitutional law which permits the noncustodial interrogation of a parolee by his parole officer without Miranda warnings.

Defendant’s statements to Parole Officer Two are admissible. While the parole officer suspected that the defendant may have been involved in criminal activity based on his positive drug tests, no charges were pending, no felony complaint had been filed and the defendant’s right to counsel had not attached. The questions asked of the defendant were reasonably related to the officer’s role in effecting an authorized search of the defendant’s apartment and limiting the scope of that search. The defendant was not in custody when Parole Officer Two made his inquiries. Therefore, based on the conclusion that People v Parker, is factually distinguishable and relying on People v Edwards, the court finds that the parole officer was not required to give Miranda warnings prior to asking his questions.

The court also finds that the defendant’s response to the parole officer’s questions were voluntary in the traditional sense. The defendant’s answers were not the product of any coercion, threats, promises or deprivation. The defendant was not handcuffed at the time.
Accordingly, defendant’s motion to suppress his alleged statements in his apartment is denied.
If you find yourself in a situation related to or similar with the above, get legal representation immediately. Rights are crucial in the inquiry stage prior to arrests. Rights could be waived without your knowledge. To know more, get in touch with Stephen Bilkis & Associates. Have a free consultation with a New York DWI Lawyer or a New York Criminal Lawyer from our firm.

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