199 F. Supp. 3d 670
N.D.N.Y.2016Background
- Nelson Pascual, a New York parolee with prior attempted robbery convictions, was arrested on an outstanding parole warrant after parole officers located him in an unapproved Syracuse apartment following a CI tip alleging drug sales and firearms possession.
- Parole officers entered the apartment after the owner consented to entry when occupants delayed answering; officers observed a digital scale with white powder and conducted a more thorough warrantless search that recovered a revolver, ammunition, and suspected narcotics; police later confirmed cocaine and heroin and obtained a search warrant for further search.
- Pascual waived Miranda and admitted he had been staying at and paying rent for the Syracuse apartment and knew of the outstanding parole warrant.
- Pascual moved to suppress all evidence seized during the initial warrantless search and to dismiss Count Four charging him, as a violent felon, with possession of body armor.
- Court considered whether the parole-search exception and protective-sweep rationales justified the warrantless search and whether Pascual’s New York attempted robbery convictions qualify as federal "crime[s] of violence" under 18 U.S.C. § 16(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of warrantless search of apartment | Government: parole officers’ warrantless entry/search was lawful under parole-search doctrine and related to officer duties investigating parole violations | Pascual: his parole had expired before arrest (parole interruption argument), so he lacked diminished parole privacy protections | Denied suppression: court held parole status/delinquency plus outstanding parole warrant made the search rationally related to parole officers’ duties, so the search was lawful |
| Standing to challenge search | Government: parole violations and unapproved presence undermine expectation of privacy | Pascual: argued he retained ordinary-citizen protections due to expiration/interruption argument | Court proceeded on merits but noted alternative standing arguments favor govt; suppression denied |
| Whether attempted robbery convictions are "crime[s] of violence" for §931 enhancement | Government: Pascual’s prior NY robbery convictions qualify as violent felonies supporting Count Four | Pascual: NY "forcible stealing" can involve minimal force and thus may not meet federal §16(a) violent-force requirement | Count Four dismissed: court held NY attempted robbery (2d deg., aided by another) can be committed with minimal force and does not necessarily satisfy federal §16(a), so convictions do not qualify |
| Need for evidentiary hearing on suppression | Government: facts material to search legality undisputed | Pascual: requested hearing to contest some facts | Denied: court found no disputed material facts necessary to resolve suppression issue |
Key Cases Cited
- United States v. Barner, 666 F.3d 79 (2d Cir. 2012) (parolee’s diminished privacy; parole search reasonableness)
- Samson v. California, 547 U.S. 843 (U.S. 2006) (special needs and diminished expectations of privacy for parolees)
- United States v. Knights, 534 U.S. 112 (U.S. 2001) (totality of circumstances test for reasonableness of searches)
- Johnson v. United States, 559 U.S. 133 (U.S. 2010) ("physical force" means violent force capable of causing injury)
- Calhoun v. N.Y.S. Div. of Parole Officers, 999 F.2d 647 (2d Cir. 1993) (parole warrant and interruption of sentence explained)
- United States v. Jones, 830 F.3d 142 (2d Cir. 2016) (New York robbery’s "forcible stealing" may not satisfy federal "crime of violence" definition)
- United States v. Moncrieffe, 167 F. Supp. 3d 383 (E.D.N.Y. 2016) (collection of NY cases showing minimal force can satisfy "forcible stealing")