People v Hutchinson

[*1] People v Hutchinson 2004 NY Slip Op 50720(U) Decided on July 7, 2004 Criminal Court, Queens County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 7, 2004
Criminal Court, Queens County

THE PEOPLE OF THE STATE OF NEW YORK,Plaintiff, DECISION AND ORDERDocket No. 2003QN48311

against

EDWARD HUTCHINSON,Defendant.



2003QN48311



Samantha Seda, Legal Aid Society, Kew Gardens, for defendant. Richard A. Brown, District Attorney, Queens County (Julie Trivedi of counsel), for the People.

Robert M. Raciti, J.

Defendant moves to suppress drugs and drug paraphernalia recovered from his apartment by his probation officer, as well as unwarned statements he made concerning those drugs. On February 4, 2004, a suppression hearing was conducted. Based upon the evidence adduced at that hearing, I make the following findings of fact and conclusions of law.

The People's sole witness, Probation Officer Mark O'Connor was in all respects a forthright and credible witness. I credit his testimony in its entirety and find as follows: Defendant was a probationer who reported to Officer O'Connor and who had been visited at his home by O'Connor on many previous occasions. At around 6:00 a.m. on October 23, 2003, O'Connor, together with a fellow probation officer, made an unannounced home visit to defendant's residence. Before knocking on defendant's door, O'Connor looked through an uncovered window of defendant's one-room basement apartment and saw defendant preparing to "shoot up" heroin. Specifically, O'Connor saw defendant, tourniquet around his arm, tapping his arm as if to find a vein, and holding what appeared to be a hypodermic needle. After witnessing this, O'Connor and his partner knocked on defendant's door and defendant admitted them into his apartment. O'Connor's partner asked defendant, "Where are the drugs?," and defendant cooperatively showed them several places in the apartment where he kept packets of heroin, some methadone, and nine hypodermic needles. Upon seizing this contraband, the probation officers handcuffed and arrested defendant and called the police who transported him to the precinct. There, defendant was given Miranda warnings.

In addition to Officer O'Connor's testimony, the People introduced into evidence a copy of the Queens County probation agreement that defendant had signed in Court when he was sentenced to probation. The People also attempted to introduce a Nassau County probation [*2]agreement (supervision of which had been transferred to Queens County), but in the absence of a certified copy, the photocopy offered by the People was rejected by the Court.

The crux of defendant's argument for suppression is that because the probation officers knew he had drugs before they entered his apartment and intended to arrest him, their questions to him concerning where the drugs were hidden were custodial in nature and therefore required Miranda warnings. Citing People v. English, 73 N.Y.2d 20 and People v. Parker, 82 A.D.2d 661, defendant alternatively argues that as a probationer, he has a greater right to the protection of Miranda than does an ordinary citizen. He concludes that his probation officer violated that right by asking him, in the absence of Miranda warnings, "where are the drugs?" that the officers just saw him using.[FN1] He also argues that the officers ought to have obtained a "search order" before seizing the drugs and paraphernalia. The Court disagrees and for the reasons that follow denies suppression.

First, defendant was not in custody at the time he was asked "where are the drugs" or when he immediately consented to the search of his apartment. After watching for a minute or two while defendant engaged in an act in violation of probation, the probation officers knocked on defendant's door and he admitted them inside, as he was required to do. Once inside, the defendant was not placed in custody. He was not immediately "handcuffed," as defendant repeatedly suggests in his memorandum, nor was he told he was under arrest, treated as if he were in custody, or ordered to do anything. Instead, the officers simply asked defendant, "where are the drugs" that they just witnessed him using. Defendant's response was in all respects "cooperative," and he immediately directed the officers to the various places in the apartment where his drugs and paraphernalia were hidden. Thus, the officers' subjective intent to arrest defendant arose from their clandestine observations and was not, as far as the evidence shows, communicated to defendant[FN2] . People v. Yukl, 25 N.Y.2d 585.

Nor did their single question, under these circumstances, amount to a violation of the Fifth Amendment principles set forth in English and Parker. In Parker, the Court held that where a federal parolee is represented by counsel on an indicted state matter, he cannot be questioned on the state matter by his federal parole officer absent Miranda warnings. Obviously, those facts are inapposite to those present here. Nor does the Court find the decision in English helpful to the defendant in this case. In English, the court specifically declined to decide whether "the nature of the parole officer-parolee relationship is such that even routine, non-custodial questioning must be preceded by Miranda warnings." Id. at 24. However, this Court agrees with the determination by the Supreme Court in People v. Daniels, 194 Misc. 2d 320, 329, that Miranda warnings are not required in circumstances like those presented in this case. [*3]

In Daniels, the defendant freely admitted the parole officers into his house and consented when they asked to search his abode. No Miranda violation occurred in Daniels even though, during the consensual search, the officers also asked defendant if he had any "contraband" in his bedroom, causing Daniels to admit there was cocaine in his closet. Here, defendant had signed an agreement with the Queens County probation department on October 2, 2002 as a condition to his probationary sentence. That agreement provides, in pertinent part, that defendant must "permit the probation officer to visit his ... place of abode or elsewhere." Pursuant to that agreement, and just as he had done on numerous previous occasions, defendant permitted the probation officers to enter his apartment on the day in question. Just as clearly, he consented to a search of his room and cooperated with the officers by telling them where he had secreted the drugs.

Nor, given defendant's immediate consent to the search, can the Court find anything improper about the question "where are the drugs?" As is the case with most probationers, that or similar questions about drugs and contraband was probably routinely asked of defendant during the course of his twice-monthly home visits. Thus, this was not a situation in which the authorities took advantage of defendant's probationary status for the purpose of getting him to confess to some crime they were investigating. And, as noted, based upon the evidence before the Court, the officers' knowledge that defendant certainly did have drugs, as well as their subjective intent to arrest him, was not revealed to defendant. Consequently, whether viewed through Yukl or Parker and English, the question "where are the drugs?" was no more violative of defendant's rights than it would have been if asked during any other routine home visit.

Even if a Miranda violation had occurred here, the Court does not believe that it would require suppression of the drugs and hypodermic needles. As noted, the officers had just seen defendant in possession of at least some of these items and so had probable cause to seize the contraband. Even without defendant's cooperation, they clearly would have been found during the search of defendant's apartment, to which defendant had already consented. The fact that defendant facilitated the search by directing the officers to the correct drawers does not make the contraband the tainted fruit of unwarned questioning. See United States v. Patane, ___ U.S. ___ (June 28, 2004).

Finally, the Court also rejects defendant's argument that the probation officers were required to obtain a "search order" after witnessing defendant in possession of drugs and a hypodermic needle. Unlike an ordinary citizen, a probationer's Fourth Amendment privacy rights are tempered by the conditions of his probation and the waivers that are common in a probation agreement. In People v. Hale, 93 N.Y.2d 454, Hale's probation officer received credible information from a known citizen that Hale was selling drugs out of his home. Based upon that information, the probation officers accompanied defendant to his home, where they searched for and found drugs and guns. The Court of Appeals held that the specific waivers of privacy that were set out in Hale's probation agreement were voluntary and not prohibited by Criminal Procedure Law § 410.50(3), which otherwise requires a "search order" in order to search a probationer's abode. Notably, in assessing the reasonableness of the search in Hale, the Court stressed that Hale was specifically being monitored during probation for illegal drug use. The fact that the search conducted was based on a reasonable belief that Hale possessed illegal drugs the very point of his probationary status played no small part in the Court's determination that [*4]under the circumstances, the warrantless search of Hale's residence was reasonable and consistent with his probation waivers. Here, especially where the officers had just seen defendant in possession of drugs, the reasonableness of their immediate seizure of that contraband is beyond dispute.

For all of the foregoing reasons, defendant's motion to suppress the identification and statements of the defendant is DENIED.

The foregoing constitutes the decision and order of the Court.

July 7, 2004

_____________________

Robert M. Raciti, J.C.C. Footnotes

Footnote 1:Defendant does not contend that he had any privacy rights with regard to the view into his basement apartment through his uncurtained window. People v. Alberti, 111 A.D.2d 860; People v. Maganaro, 176 A.D.2d 354; People v. Miller, 52 A.D.2d 425; see People v. Spinelli, 35 N.Y.2d 77.

Footnote 2:As noted, the court finds that defendant was not handcuffed or otherwise restrained until after the drugs and paraphernalia were found by the officers.