United States v. Bernacet, No. 12-2584 (2d Cir. 2013)
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Second Circuit US Court of Appeals?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Second Circuit US Court of Appeals. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
Defendant appealed his conviction of one count of possession of a firearm following a conviction for a felony. Defendant pulled up to a two-hour scheduled traffic-safety vehicle checkpoint in the Bronx where an officer ran defendant's license and noticed that defendant was on parole and out potentially after curfew. A handgun and a gravity knife were subsequently discovered on defendant. The court affirmed the judgment, concluding that the criminal history database search was a de minimis extension of the constitutional traffic checkpoint; the police had probable cause to believe that defendant was violating his parole; and defendant's arrest was constitutional, notwithstanding state laws prohibiting officers from arresting parole violators without a warrant in the absence of a crime or offense.
Download PDF
12-2584-cr United States v. Bernacet 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: May 1, 2013 Decided: August 1, 2013) Docket No. 12-2584-cr UNITED STATES OF AMERICA, Appellee, -v.RONNIE BERNACET, Defendant-Appellant. Before: SACK, WESLEY, AND CARNEY, Circuit Judges. Appellant Ronnie Bernacet appeals from a judgment of conviction, entered by the United States District Court for the Southern District of New York (Laura Taylor Swain, Judge), of possessing a handgun after a felony conviction in violation of 18 U.S.C. § 922(g)(1). Bernacet asserts that (1) the search of law enforcement databases at a traffic checkpoint rendered that stop an unreasonable seizure of his person in violation of the Fourth Amendment; (2) officers lacked probable cause to believe that he was violating his parole; and (3) because a parole violation does not provide a lawful basis for a warrantless arrest in New York, his 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 arrest for a parole violation was unconstitutional. We hold that (1) the de minimis additional time taken to search a database did not render the traffic checkpoint an unreasonable seizure; (2) officers had sufficient probable cause to believe that Bernacet was violating his curfew; and (3) the New York law prohibiting warrantless arrests for parole violations that are not themselves crimes or offenses is a state arrest rule subject to Virginia v. Moore, 553 U.S. 164 (2008), and Bernacet s arrest was not unconstitutional. We therefore AFFIRM the district court s judgment. 34 entered against him in the United States District Court for 35 the Southern District of New York (Laura Taylor Swain, 36 Judge) following a one-day bench trial on October 25, 2011. 37 Bernacet was convicted of one count of possessing a firearm 38 following a conviction for a felony, in violation of 18 AFFIRMED. DARRELL B. FIELDS, Appeals Bureau, Federal Defenders of New York, Inc., New York, NY, for Appellant Ronnie Bernacet. MATTHEW L. SCHWARTZ, Assistant United States Attorney (Iris Lan, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee United States of America. WESLEY, Circuit Judge: Ronnie Bernacet appeals from a judgment of conviction 2 1 U.S.C. § 922(g)(1). The district court sentenced Bernacet 2 to 57 months imprisonment and three years supervised 3 release. 4 Bernacet asserts that (1) the use of a criminal history 5 database search at a routine traffic checkpoint rendered the 6 stop an unconstitutional seizure of his person; (2) the 7 police lacked probable cause to believe that he was 8 violating his parole; and (3) warrantless arrests for parole 9 violations are unconstitutional in New York. We disagree 10 and find that: (1) the criminal history database search was 11 a de minimis extension of the constitutional traffic 12 checkpoint; (2) the police had probable cause to believe 13 that Bernacet was violating his parole; and (3) Bernacet s 14 arrest was constitutional, notwithstanding state laws 15 prohibiting officers from arresting parole violators without 16 a warrant in the absence of a crime or offense. 17 therefore affirm the judgment of the district court. We 18 19 20 Background On October 5, 2010, New York Police Department ( NYPD ) 21 officers conducting a two-hour scheduled traffic-safety 22 vehicle checkpoint in the Bronx stopped motorists to check 3 1 their driver s licenses and vehicle registrations. They 2 collected licenses from only the drivers and ran each 3 driver s license through NYPD s FINEST system using a 4 mobile device terminal ( MDT ) in the squad car. 5 generate[d] a report from the New York Statewide Police 6 Information Network ( NYSPIN ), which includes data from 7 multiple sources, including Federal Bureau of Investigation 8 ( FBI ) databases, New York State law enforcement records, 9 and New York Department of Motor Vehicle ( DMV ) records. This 10 Callahan Dec. 11 FINEST search from an MDT through some but not all of these 12 databases. 13 run each of the license checks conducted at the stop. Id. 14 Officer Patrick Callahan, who had conducted approximately 15 100 vehicle safety checkpoints at that location during his 16 22 years with the NYPD, ran licenses through the FINEST 17 system. 18 including Bernacet s. 19 Id. An officer cannot . . . elect to run a Id. It typically took less than one minute to The checkpoint resulted in two felony arrests, Bernacet pulled up to the checkpoint at approximately 20 11:45 p.m. He gave his driver s license to Officer Ramon 21 Garcia, who passed it to Callahan. 22 license, Callahan noticed that Bernacet was on parole. 4 When he ran Bernacet s 1 Knowing that parolees in New York customarily have 9:00 p.m. 2 curfews, he instructed Garcia to check it out. 3 Garcia confronted Bernacet about his suspected parole 4 violation. 5 forgot and was sorry. 6 variously that he replied, What, I m on violation of 7 parole? and I don t have a curfew my parole officer know I 8 am here [sic]. 9 00107-LTS, 2011 U.S. Dist. LEXIS 101258, at *3 (S.D.N.Y. 10 11 Id. Garcia contends that Bernacet replied that he Garcia Dec. Bernacet has claimed United States v. Bernacet, No. 11-cr- Sept. 7, 2011) (citations omitted). Garcia asked Bernacet to step out of the car. Garcia 12 maintains that he then saw a handgun protruding from 13 Bernacet s pocket; Bernacet alleges that the firearm was not 14 discovered until Garcia frisked him. 15 arrested Bernacet. 16 a gravity knife in addition to the loaded, .25-caliber Armi- 17 Galesi-Bresci semi-automatic pistol. 18 Miranda warnings, Bernacet made several incriminating 19 statements. Id. Garcia then A frisk incident to the arrest revealed After receiving his Id. 20 21 22 23 Discussion Bernacet contends that the officers (1) should not have searched law enforcement databases at a traffic safety 5 1 checkpoint, (2) did not have probable cause to believe that 2 he was violating his parole, and (3) were not authorized 3 under state law to arrest him for a parole violation, and 4 that therefore his arrest was unconstitutional. 5 any of these claims would require suppression of the handgun 6 and incriminating statements Bernacet made pursuant to his 7 arrest. 8 officers had probable cause to believe that Bernacet was 9 violating his parole; and his warrantless arrest was not Success on We hold that the NYSPIN search was reasonable; the 10 unconstitutional. The district court s decision to admit 11 the handgun and Bernacet s incriminating statements was 12 therefore proper. 13 conviction. 14 15 16 17 I. 18 stop itself, and he does not argue that the search of law 19 enforcement databases unconstitutionally infringed his 20 privacy interests.1 Accordingly, we affirm Bernacet s Use of Drivers Licenses to Search Law Enforcement Databases at the Traffic Stop Was Reasonable Bernacet does not challenge the legality of the traffic Rather, he contends that the NYPD s 1 We construe Bernacet s challenge as related to the constitutionality of the law enforcement database search during an otherwise constitutional traffic stop, which effectuate[d] a seizure within the meaning of the Fourth Amendment. City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000). Insofar as he intends to challenge the use of the NYSPIN database as a search, and not because it prolonged the seizure, this claim is devoid of merit. [T]he government s matching of a lawfully obtained identification record against other records in its lawful 6 1 search of law enforcement databases at a traffic stop was 2 constitutionally unreasonable because it was not closely 3 related to the purpose of the checkpoint. 4 de minimis intrusion on motorists that was imposed by the 5 law enforcement database search, the traffic stop as 6 conducted was constitutional. In light of the 7 8 A. The Government s Interests Outweighed the Drivers Interests in This Fixed, Traffic-Safety Checkpoint 9 The Supreme Court has endorsed the government s 10 interest in conducting a fixed checkpoint to monitor traffic 11 safety as a benefit that outweighs drivers privacy 12 interests. 13 the Court struck down roving stops of automobiles without 14 any particularized suspicion. 15 that [q]uestioning of all oncoming traffic at roadblock- 16 type stops was a lawful alternative method to provide for 17 traffic safety. 18 U.S. 32, 47 (2000), the Court struck down drug interdiction 19 checkpoints while noting that its holding d[id] nothing to 20 alter the constitutional status of . . . the type of traffic In Delaware v. Prouse, 440 U.S. 648, 663 (1979), Id. However, the Court suggested In City of Indianapolis v. Edmond, 531 possession does not infringe on an individual s legitimate expectation of privacy. Boroian v. Mueller, 616 F.3d 60, 67 (1st Cir. 2010) (collecting cases). Police officers are permitted to look up anyone s parole status at any time; the only intrusion into privacy interests here was the requirement that motorists wait while the police did so. 7 1 [safety] checkpoint that we suggested would be lawful in 2 Prouse. 3 In this case, the traffic safety checkpoint was 4 conducted at an accident prone location in the impact 5 zone, and officers processed 49 cars in two hours. 6 Checkpoint Form.2 7 experienced are fairly characterized as brief and no more 8 onerous than [delays] that typically accompany normal 9 traffic congestion. Vehicle The waiting times that each car Illinois v. Lidster, 540 U.S. 419, 426 10 (2004); see also Mich. Dep t of State Police v. Sitz, 496 11 U.S. 444, 452 (1990)(stating that the objective 12 intrusion on motorists subjected to checkpoint stops is 13 measured by the duration of the seizure and the intensity 14 of the investigation ). 15 thus lawful, and is not on its own challenged by Bernacet. 16 17 18 19 B. This traffic safety checkpoint was Gathering Additional Information Did Not Make the Stop Unconstitutional Bernacet argues, however, that the addition of law 20 enforcement database searches renders unconstitutional the 21 otherwise lawful traffic checkpoint. 2 The search of the We note that the record on appeal seems to indicate that 65 NYSPIN checks took place (from 10:22 p.m. to 11:59 p.m.), 49 vehicles were pulled over, and no passengers records were searched. 8 1 NYSPIN databases took approximately one minute per motorist; 2 of that one minute, some portion was consumed by the search 3 of DMV records.3 4 ordinary criminal wrongdoing, Edmond, 531 U.S. at 38, was 5 uncovered in the course of an otherwise lawful checkpoint 6 designed for a permissible purpose does not invalidate the 7 checkpoint or the arrest. 8 police encountered information suggesting that a parole 9 violation was ongoing; the Fourth Amendment did not require 10 them to ignore this information merely because the officers 11 primary focus was on traffic safety. 12 require the police to ignore evidence of other crimes in 13 conducting legitimate roadblocks. 14 777 F.2d 543, 547 (10th Cir. 1985); see also United States 15 v. Morales, 788 F.2d 883, 886 (2d Cir. 1986). Dist. Ct. Doc. 20-4. The fact that Lidster, 540 U.S. at 423. The The law does not United States v. Lopez, 16 The duration of the stop was not significantly 17 increased by the fact that the MDTs search multiple 18 databases, including law enforcement databases. 19 our decision in United States v. Harrison, 606 F.3d 42 (2d 20 Cir. 2010), related to traffic stops instead of checkpoints, 3 Although Although it is difficult to discern the duration of each search, the record reflects, for example, that from 11:23 p.m. to 11:29 p.m. Callahan ran eleven separate license checks through the MDT. Dist. Ct. Doc. 20-4. 9 1 it applies with equal force in this context, where the 2 initial stop is not challenged. 3 an officer s inquiries into matters unrelated to the 4 justification for the traffic stop . . . do not convert the 5 encounter into something other than a lawful seizure, so 6 long as those inquiries do not measurably extend the 7 duration of the stop. 8 and alteration omitted); see also Lidster, 540 U.S. at 427- 9 28. In Harrison, we wrote that Id. at 45 (internal quotation marks 10 Finally, we note that Bernacet does not argue that the 11 checkpoint was illegal in itself or that the stated purpose 12 of protecting traffic safety in an accident prone location 13 was pretextual. 14 for the police, at a lawfully conducted traffic safety 15 checkpoint, to search for parole status in addition to DMV 16 records. 17 was actually conducted for basic crime control purposes and 18 not for vehicle safety reasons, then we would likely find 19 the checkpoint unconstitutional. 20 21 22 23 II. 24 cause to believe that he was violating his parole because He argues, instead, that it was improper If he were able to establish that the checkpoint Edmond, 531 U.S. at 41. Officers Had Probable Cause to Believe that Bernacet Was Violating His Parole Bernacet contends that the officers lacked probable 10 1 they had no evidence that he had a curfew as a condition of 2 his parole. 3 a 9:00 p.m. curfew, curfews are not a mandatory condition of 4 parole in New York State. 5 at 21-22. 6 to assume that he had a 9:00 curfew as a condition of his 7 parole. 8 9 Bernacet points out that, although he did have N.Y. State Parole Handbook 2010 He avers that it was unreasonable for the police We disagree. Callahan had probable cause if the facts and circumstances within [his] knowledge and of which he had 10 reasonably trustworthy information were sufficient to 11 warrant a prudent man in believing that Bernacet was 12 committing a parole violation.4 13 522, 536 (2d Cir. 2010) (alterations omitted) (quoting Beck 4 Amore v. Novarro, 624 F.3d Insofar as Callahan had probable cause, it transferred to Garcia when Callahan told him that Bernacet was violating his curfew. We do not rely on Bernacet s response when Garcia confronted him regarding his parole violation, though it may have contributed to Garcia s probable cause calculation. Garcia reported that Bernacet apologized for the violation; Bernacet has provided different and inconsistent versions of his reply. United States v. Bernacet, No. 11-cr-107-LTS, 2011 U.S. Dist. LEXIS 101258, at *3 (S.D.N.Y. Sept. 7, 2011). We are puzzled as to why the district court declined to make a factual finding as to Bernacet s response. Id. at *2-3. Similarly, the district court declined to credit either Garcia s claims that a gun was visibly protruding from [Bernacet s] back pocket or Bernacet s assertion that his back pockets were deep enough that the gun was not visible until he was frisked. Id. at *3. We assume for purposes of this appeal that Garcia could not rely on the visibility of the handgun to establish probable cause. 11 1 v. Ohio, 379 U.S. 89, 91 (1964)). The district court 2 appears to have based its holding on the facts that Callahan 3 knew that [Bernacet] was on parole. 4 are customarily subject to 9:00 p.m. curfew as a condition 5 of their parole. 6 stopped at the checkpoint, the time was approximately 11:30 7 p.m. He knew that parolees He also knew that, when [Bernacet] was Bernacet, 2011 U.S. Dist. LEXIS 101258, at *7. 8 Bernacet argues that there was no probable cause 9 because (1) curfew is not a mandatory condition of parole 10 and (2) the NYSPIN search result screenshot submitted to the 11 court did not contain information related to the terms of 12 Bernacet s parole. 13 the reasonableness of Officer Callahan s belief, established 14 over the course of 20 [sic] years of experience, that a 9:00 15 p.m. curfew is customarily imposed on parolees. 16 Although he had the opportunity, Bernacet declined to cross- 17 examine Callahan about his affidavit. 18 is the only evidence on the record regarding the likelihood 19 that a New York parolee had a 9:00 p.m. curfew. 20 Otherwise, Bernacet has not challenged Id. Callahan s affidavit We read Callahan s affidavit to suggest that a high 21 percentage of New York parolees have 9:00 p.m. curfews. 22 evidence adduced at the suppression hearing suggests 12 No 1 otherwise. Callahan s 22-year NYPD experience that New 2 York parolees customarily have a curfew [of] 9:00 p.m., 3 Callahan Dec., which Bernacet declined to challenge given 4 the opportunity, constitutes reasonably trustworthy 5 information . . . sufficient to warrant a prudent man in 6 believing that such a curfew existed in this case. 7 624 F.3d at 536. 8 established Bernacet s parole status and his presence on the 9 road shortly before midnight established that he was Amore, The report from the NYSPIN database firmly 10 breaking a 9:00 p.m. curfew if he had one. Taken together, 11 this evidence was sufficient to provide Callahan with 12 probable cause to believe that Bernacet was violating his 13 parole. 14 15 16 17 III. 18 to a warrantless arrest for a parole violation are 19 inadmissible because New York has forbidden warrantless 20 arrests for parole violations that are not independently 21 crimes or offenses. 22 illegal under New York law but conclude that it was 23 constitutionally permissible. 24 therefore does not apply. Illegal Warrantless Arrests for Parole Violations Are not Unconstitutional Seizures Bernacet contends that the fruits of a search incident We agree that Bernacet s arrest was The exclusionary rule 13 A. 1 2 3 4 New York Law Prohibited Bernacet s Warrantless Arrest for Violating His Curfew The district court determined that Bernacet s arrest 5 was permissible under New York law. Bernacet, citing People 6 v. Bratton, 8 N.Y.3d 637 (2007), contends that the district 7 court erred. 8 police officers and that Bernacet s arrest was therefore 9 unlawful under New York law. We agree that Bratton extends to arrests by 10 In Bratton, the New York Court of Appeals held that 11 warrantless arrests by parole officers for parole violations 12 committed in their presence violate New York law if the 13 parole violation does not otherwise constitute a crime or 14 offense. 15 refused to permit two parole officers to enter his apartment 16 to obtain a sample for a urinalysis test. 17 Bratton attempted to leave; the parole officers arrested 18 him. 19 history of the New York statutes permitting parole officers 20 to make arrests, the Court of Appeals held that there was a 21 considered legislative choice constricting the warrantless 22 arrest authority of parole officers in New York. 23 640-643. 24 urinalysis was not an offense within the meaning of section Id. at 641. Id. at 639-40. Bratton, an Ithaca-based parolee, Id. at 639. Relying heavily on the legislative Id. at The Court of Appeals held that refusal of 14 1 10.00(1) of the [N.Y.] Penal Law . . . that would 2 independently justify a peace officer in making a 3 warrantless arrest if committed in his presence. 4 643. 5 charge of resisting arrest was dismissed. 6 Id. at Bratton s custody was therefore unlawful and his Id. at 641. Seeking to distinguish Bratton, the district court 7 relied on its view that the statute authorizing parole 8 officers to make warrantless arrests differs from that 9 authorizing police officers to make warrantless arrests. 10 Bernacet, 2011 U.S. Dist. LEXIS 101258, at *9. 11 [t]he rules governing the manner in which a peace officer 12 may make an arrest, pursuant to section 140.25, are the same 13 as those governing arrests by police officers, as prescribed 14 in section[s] 140.15 [and 140.10]. 15 The statutes conferring warrantless arrest authority on 16 parole and police officers are identically worded:5 a police 17 officer or a parole officer may arrest a person for [a]ny 18 offense when he has [probable] cause to believe that such 19 person has committed such offense in his presence. 20 N.Y. 140.25(1)(a), 140.10(1)(a). 5 However, CPL N.Y. 140.27(1). CPL The only textual difference between the statutes is that CPL N.Y. 140.10(1)(a) permits a police officer to make an arrest when he or she has probable cause. 15 1 The authority to make a warrantless arrest for parole 2 and police officers alike relies on New York s definition of 3 an offense. 4 offense in CPL N.Y. 140.25(1)(a) to refer to N.Y. Penal L. 5 § 10.00(1)). 6 violations that are offenses for the purpose of this 7 statute are those that would independently justify a 8 warrantless arrest even if they were not a violation of 9 parole. 10 qualify. 11 authorized by New York law. Id. See Bratton, 8 N.Y.3d at 643 (reading The Bratton Court held that the only parole Staying out later than 9:00 p.m. does not Bernacet s arrest for his curfew violation was not 12 B. Bernacet s Arrest Was Constitutionally Permissible 13 But, not every arrest that is illegal under state law 14 violates the United States Constitution. 15 States v. Wilson, 699 F.3d 235, 244 (2d Cir. 2012). 16 Whren v. United States, 517 U.S. 806, 815 (1996), the 17 Supreme Court held that plainclothes police officers were 18 constitutionally authorized to seize a vehicle and its 19 occupants based on probable cause that the driver had 20 committed a relatively minor traffic infraction, 21 notwithstanding state regulations that permitted such 22 officers to enforce traffic laws only in the case of a 16 See, e.g., United In 1 violation that is so grave as to pose an immediate threat to 2 the safety of others. 3 omitted, emphasis retained). 4 enforcement practices, even if they could be practicably 5 assessed by a judge, vary from place to place and from time 6 to time. 7 protections of the Fourth Amendment are so variable, and can 8 be made to turn on such trivialities. 9 citation omitted). 10 Id. (internal quotation marks The Court wrote, [P]olice We cannot accept that the search and seizure Id. (internal Based in part on this reasoning, in Virginia v. Moore, 11 553 U.S. 164, 167 (2008), the Supreme Court upheld the 12 arrest of a driver for driving on a suspended driver s 13 license, despite Virginia laws requiring the officers to 14 issue a summons instead of making an arrest when handling 15 such an infraction. 16 probable cause but prohibited by state law is 17 constitutional. 18 does not apply to parole violations because not all such 19 violations are defined as crimes or offenses under New 20 York law, and further that parole violations should be 21 treated differently, as a constitutional matter, from other 22 types of infractions. The Court held that an arrest based on Id. at 166. Bernacet maintains that Moore Neither argument is persuasive. 17 1. 1 2 Moore Applies to Arrests for Parole Violations Bernacet asks us to hold that Moore applies to 3 crimes, offenses, and violations, but not to parole 4 violations, which he asserts, are not all offenses or 5 crimes under state law. 6 use various terms to categorize the types of infractions 7 that support a constitutionally valid arrest.6 8 semantics, however, he does not identify a basis to 9 distinguish parole violations from other relatively minor He points to several cases that Aside from 10 infractions that the Supreme Court has held can 11 constitutionally support an arrest. 12 misdemeanors and traffic offenses. 13 v. City of Lago Vista, 532 U.S. 318, 323 (2001), the Court 14 held that the Fourth Amendment does not forbid a 15 warrantless arrest for a minor criminal offense, such as a 16 misdemeanor seatbelt violation punishable only by a fine. 17 See also Moore, 553 U.S. at 167 (for driving on a suspended 18 license). 6 These include minor For example, in Atwater Bernacet directs us to, inter alia, Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (permitting warrantless arrests where there is probable cause to believe that a criminal offense has been or is being committed ) (emphasis added); Marcavage v. City of New York, 689 F.3d 98, 109 (2d Cir. 2012)(same for an offense ) (emphasis added); United States v. Delossantos, 536 F.3d 155, 158 (2d Cir. 2008) (same for a crime ) (emphasis added). 18 1 It is true that state substantive criminal law can 2 render an arrest unconstitutional by altering the legal 3 status of the underlying conduct. 4 police may constitutionally arrest a 21-year-old man based 5 on probable cause to believe he has had sexual intercourse 6 with a 16-year-old. 7 police could not constitutionally arrest the same 21-year- 8 old man based on the same suspicions in Connecticut (where 9 the age of consent is 16. 10 For example, in New York See N.Y. Penal Law § 130.25. However, Conn. Gen. Stat. § 53a-71(a)(1)). However, the Fourth Amendment does not incorporate 11 state procedural criminal law. 12 regulate [warrantless] arrests however they desire, state 13 restrictions do not alter the Fourth Amendment s 14 protections. 15 warrantless arrests for parole violations var[ies] from 16 place to place and from time to time, id. at 172 (internal 17 quotation marks omitted). In fact, even New York permitted 18 such arrests before 1977. See Bratton, 8 N.Y.3d at 642-43. 19 Fourth Amendment protections are not so variable. 20 Moore, 553 U.S. at 172 (quoting Whren, 517 U.S. at 815). 21 22 [W]hile States are free to Moore, 553 U.S. at 176. The legality of Under New York law, parole violations are not offenses or crimes for the purpose of determining 19 1 whether officers are authorized to make a warrantless arrest 2 of a person violating his parole. 3 the power to arrest does not mean that violating parole does 4 not implicate New York substantive law. 5 Bernacet s arrest at New York law therefore does not end, or 6 even inform, the constitutional inquiry. 7 Moore and Whren stand for the proposition that the Fourth 8 Amendment does not generally incorporate local statutory or 9 regulatory restrictions on seizures and that the violation But this limitation on The legality of Read together, 10 of such restrictions will not generally affect the 11 constitutionality of a seizure supported by probable cause. 12 Wilson, 699 F.3d at 243. 13 constitutional dimension; it cannot be measured with a state 14 law ruler. 15 16 17 18 2. Bernacet s claim is of a Bernacet s Parole Violation Provided a Reasonable Ground for Arrest Bernacet further contends that parole violations have a 19 special status that takes them outside the ambit of Moore. 20 We disagree. 21 First, even New York courts do not interpret Bratton as 22 speaking to the constitutional validity of a warrantless 23 arrest of a parole violator. 24 illegal solely because it is premised on an improper For example, custody that is 20 1 warrantless arrest does not necessarily provide grounds for 2 habeas relief: that custody may violate state law, but it is 3 not unconstitutional. 4 Div. of Parole, 864 N.Y.S.2d 230, 235-36 (Sup. Ct. Bronx 5 Cnty. July 25, 2008). 6 York Appellate Division focus[ed] . . . on the narrow 7 question of whether a violation of the statute requiring the 8 issuance of a parole violation warrant . . . require[d] 9 suppression . . . [and] conclude[d] that it does not. 7 People ex rel. Rouse v. N.Y. State Furthermore, before Bratton, the New 10 People v. Dyla, 142 A.D.2d 423, 439 (2d Dep t 1988). 11 [N]either the Federal nor the State Constitutions, 12 according to their language and history, require the 13 suppression of evidence gathered as a result of a seizure 14 which is not unreasonable and hence not unconstitutional, 15 solely on the grounds that the seizure may be considered 16 violative of some State statute, ordinance or regulation. 8 7 Dyla is compatible with and survives Bratton; the Appellate Division expressly d[id] not decide[] whether a violation of parole constitutes an offense (see[] Penal Law § 10.00[1]) so that the warrantless arrest may be validated on this basis. People v. Dyla, 142 A.D.2d 423, 434 n.3 (2d Dep t 1988). 8 Other state courts have similarly resolved the question at issue in Dyla. In People v. Weathers, the Appellate Court of Illinois upheld the warrantless arrest of a parolee for a curfew violation, finding such arrests lawful in Illinois (and presumptively constitutional); the court rejected her claim that 21 1 2 Id. at 434 (citations omitted). Second, New York has previously permitted warrantless 3 arrests for all parole violations, suggesting that such 4 arrests pose no inherent constitutional dilemma. 5 1978, [i]n any case where a parole officer ha[d] [probable] 6 cause to believe that [a] parolee ha[d] violated the 7 conditions of his parole in an important respect, such 8 parole officer [could] retake such parolee and cause him to 9 be temporarily detained without a warrant. Before Former N.Y. 10 Correct. L. §§ 216, 829(3) (both repealed 1978).9 11 acknowledges that an exception to the warrant requirement 12 for those violations taking place in a parole officer s 13 presence [might] make sense, 8 N.Y.3d at 641, but notes 14 that there was a considered legislative choice to forbid 15 this authority. 16 since 1978, but the constitutional analysis has not. Id. at 642. Bratton The legislation has changed the fruits of the search incident to her arrest should be excluded. 40 Ill. App. 3d 211, 213-14 (1976). In Medlock v. State, the Court of Appeals of Arkansas held that a warrantless arrest of a parolee, though illegal, was supported by probable cause and denied a motion to suppress. 79 Ark. App. 447, 461-62 (Div. IV 2002), aff d by No. CR-03-839, 2004 WL 2191165 (Ark. Sept. 30, 2004) (per curiam). Neither court found a Fourth Amendment problem with arrests supported by probable cause that a parole violation occurred. The constitutionality of warrantless arrests for parole violations does not vary by state. Moore, 553 U.S. at 176. 9 A similar rule still exists for probationers. N.Y. 410.50(4). 22 See CPL 1 Third, parole violations are not inherently less 2 serious than other minor offenses for which the Fourth 3 Amendment permits warrantless arrests. 4 has held that warrantless arrests are lawful, for example, 5 in the case of a mother arrested in front of her children 6 for driving without a seatbelt (among other minor 7 infractions), Atwater, 532 U.S. at 323-24; for impersonating 8 a police officer when helping a motorist change a tire, 9 Devenpeck v. Alford, 543 U.S. 146, 148-49 (2004); for The Supreme Court 10 driving with a suspended license, Moore, 553 U.S. at 166; 11 and for speeding, Arkansas v. Sullivan, 532 U.S. 769, 769 12 (2001) (per curiam). 13 While violating a curfew imposed as a condition of 14 parole is not the gravest of offenses, it is no less 15 reasonable a ground for detention. 16 offense need not lawfully result in a custodial sentence for 17 it to serve as a basis for a constitutional arrest, 18 Sullivan, 532 U.S. at 771; Atwater, 532 U.S. at 348-50, 19 under New York law, a parole violation is a lawful ground 20 for a parolee s arrest and incarceration, reflecting the 21 gravity that the State accords the offense. 22 L. § 259-i(3). Indeed, although an See N.Y. Exec. Without defining the limits of Moore, we 23 1 conclude that probable cause regarding a violation that, if 2 proven, could result in the loss of liberty provides 3 sufficient grounds for a constitutional warrantless arrest. 4 Bernacet s arrest was constitutionally permissible; the 5 fruits of the search incident to his arrest were therefore 6 properly admitted. Sullivan, 532 U.S. at 771.10 7 Conclusion 8 9 Bernacet s checkpoint stop was legal and the NYPD had 10 probable cause to believe that he was violating his parole. 11 His arrest by the police staffing the checkpoint, while 12 contrary to New York law, was constitutionally reasonable. 13 The search incident to his arrest uncovered a handgun; 14 because the arrest was constitutionally proper, this weapon 15 was properly admitted at Bernacet s trial. 10 We note, of course, that nothing restricts the authority of the States to accord protection against arrest beyond what the Fourth Amendment requires. Virginia v. Moore, 553 U.S. 164, 180 (2008) (Ginsburg, J., concurring). The Supreme Court has expressed a preference for statutory, rather than constitutional, limitations on the arrest power. It is of course easier to devise a minor-offense limitation by statute than to derive one through the Constitution, simply because the statute can let the arrest power turn on any sort of practical consideration without having to subsume it under a broader principle. Atwater v. City of Lago Vista, 532 U.S. 318, 352 (2001). States are free to develop their own remedies for illegal arrests as well; however, suppression under the Fourth Amendment is available only for constitutional violations. 24 1 2 For the foregoing reasons, the opinion and order of the district court is AFFIRMED. 25
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
