OPINION OF THE COURT
The defendant, Willie Dyla, committed a murder while released from prison on parole. He now claims that the confession that he made to Nassau County homicide detectives must be suppressed because it was preceded by an illegal arrest. We hold that the arrest of Dyla by a parole officer was based upon probable cause to believe that Dyla had violated certain conditions of parole, and that even if the arrest must be considered illegal because no parole violation warrant had been issued (see, Executive Law § 259-i [3] [a] [i]; 9 NYCRR 8004.2), it did not amount to an unreasonable seizure and did not violate any of Dyla’s constitutional rights, so that exclusion of the confession is not an appropriate remedy. We also find that, even assuming that the illegality оf the arrest was
I
After a trial by jury, at which his confession to police was admitted into evidence against him, Dyla was found guilty of the murder of Valerie Abney. The victim died as the result of asphyxiation due to strangulation on March 28, 1982. The evidence adduced at trial established beyond any reasonable doubt that during the course of his burglary of the victim’s apartment Dyla caused the victim’s death by gagging her and placing a belt around her neck.
Detectives Gary Abbondandelo and Robert Dempsey, both members of the Nassau County Homicide Squad, were assigned to conduct an investigation shortly after the discovery of the victim’s body on March 29, 1982. Abbondandelo learned from another detective that Dyla was known to have been a friend of the victim. On March 31 Abbondandelo went to 46 Elm Avenue, Dyla’s residence, and left his card with one of Dyla’s neighbors. At 9:25 a.m. the following day, April 1, Dyla telephoned Detective Abbondandelo and agreed to meet with him at police headquarters in Mineóla on April 2. However, Dyla failed to keep that appointment.
Further investigation revealed that Dyla had been on parole at the time of the murder. On April 2, 1982, Detective-Sergeant Kenney informed Dyla’s parole officer, Robert Burford, that Dyla was wanted for questioning in сonnection with a homicide investigation, and that Dyla had been contacted by Abbondandelo on April 1. Dyla’s failure to inform Burford of this contact constituted a violation of one of the conditions of his parole.
Detective Dempsey met with Burford on April 3 and informed Burford that the police had been unsuccessful in locating Dyla at 46 Elm Street, his last known address. The police had learned from Dyla’s former paramour that Dyla had left that address, and that his whereabouts were unknown. On April 7, Dyla’s mother was contacted and stated that she, too, was unaware of Dyla’s whereabouts.
On April 8, Dyla telephoned Burford and informed him that
Dyla arrived at the parole office in the company of a companion at 10:15 a.m. on April 12. Burford interviewed Dyla for several minutes concerning his change of address and change in drug treatment programs. After it became apparent that Dyla was persisting in his failure to admit that he had had contact with the police, Burford decided to arrest him for a violation of parole. Dyla was then handcuffed to a chair. It is clear that Burford had not, as of that time, obtained a parole violation warrant.
Detectives Abbondandelo and Dempsey arrived at Burford’s office at approximately 11:00 a.m. The handcuffs were removed as soon as the detectives arrived, although it is not clear whether Abbondandelo asked Burford to remove them. Abbondandelo informed both Dyla and Burford that Dyla was not being placed under arrest for the homicide. However, Dyla was requested to accompany the detectives to police headquarters in Mineóla for questioning. Dyla agreed to go, and his companion was allowed to accompany them. It is important to note that Burford testified that he would not have allowed Dyla to leave his office if Dyla had refused to cooperate with the police.
At police headquarters, Dyla was questioned about the Abney homicide, and initially gave an exculpatory account of his whereabouts on March 28. Dyla then agreed to take a polygraph test. At approximately 12:50 p.m. Dyla was introduced to Detective Sergeant Edward Goutink, the polygraph examiner, who informed Dyla of his Miranda rights, and who also told Dyla that the results of the polygraph test were not admissible as evidence. Goutink emphasized, however, that any incriminating statements made during the test could be admitted into evidence. Dyla submitted to the polygraph test after a knowing and voluntary waiver of his rights.
At the conclusion of the test, Detective Goutink informed Dyla that he "was absolutely convinced after analyzing the charts that he had lied * * * and that, in fact, he had killed Valerie Abney”. Goutink then engaged Dyla in an hour-long conversation which centered on the beneficial consequences that flow from one’s confrontation with and admission of guilt.
During this portion of the interrogation, Abbondandelo discussed Dyla’s "drug problem” with him. Dempsey then began to talk about Dyla’s "family problems”, with Dyla keeping his head down and looking at the floor. Dempsey then asked Dyla to look into his eyes, and, at approximately 6:25 p.m., Dyla raised his head, began to sob, and said "yes, man, I did it, I killed her”.
II
After having made subsequent and more elaborate confessions, both oral and in writing, Dyla was formally arrested and charged with the murder of Valerie Abney. He was later indicted by a Nassau County Grand Jury for murder in the second degree (three counts), robbery in the first degree, and burglary in the first degree.
Dyla made several pretrial motions, two of which (a motion dated July 13, 1982, and a pro se motion dated May 2, 1982) contained applications for the suppression of his statements to police. It was argued in the affidavits supporting these motions that "Dyla was arrested without probable cause and that any statements and evidence [obtained] subsequent to this improper arrest must be suppressed”.
After a pretrial hearing, the County Court, in a decision entered February 2, 1984, denied Dyla’s motions for the suppression of the statements. In its decision, the County Court found, among other things, that when Parole Officer Burford handcuffed Dyla tо the chair in the parole office on April 12, 1982, he had not as yet made a decision as to whether to revoke Dyla’s parole.
At Dyla’s first trial, the court dismissed the robbery count, and the jury was unable to reach a verdict as to the remaining counts submitted to them. Dyla was retried and was found guilty of three counts of murder in the second degree, and burglary in the first degree. On May 16, 1984, Dyla was sentenced to concurrent sentences of 25 years to life for the three murder counts and of 6 to 12 years for the burglary count. This appeal followed.
Ill
Dyla argues that he was illegally arrested by Parole Officer Burford on April 12, 1982, because no parole violation warrant had been obtained pursuant to the applicable law (Executive Law § 259-i [3] [a] [i]; 9 NYCRR 8004.2). From this premise, Dyla concludes that his subsequent confession must be suppressed as the "fruit” of an illegal arrest (see, Taylor v Alabama,
There are at least two flaws in this argument. The more basic of these is that the arrest of Dyla by his parole officer, which was unquestionably based on probable cause to believe that he had committed multiple parole violations, was not an unreasonable seizure in contravention of the standards set forth in the Federal or State Constitution (US Const 4th, 14th Amends; NY Const, art I, § 12). Although the arrest could be viewed as unauthorized under State law in that no parole violation warrant had been obtained, it does not follow that the exclusionary rule should be applied as a remedy for
The second flaw in Dyla’s argument is that, even if we were to assume that the absence of a parole violation warrant rendered Dyla’s arrest an unconstitutional seizure, there is support in the record for the County Court’s finding that the taint caused by this illegality was dissipated prior to the time that Dyla confessed.
It is established Fourth Amendment doctrine that the mere fact that a confession is made after an unconstitutional arrest does not warrant application of the exclusionary rule. The taint of an unconstitutional arrest may be dissipated prior to the making of a custodial confession (see, Nardone v United States,
In the present case, Dyla’s confession was preceded by a knowing and intelligent waiver of his Miranda rights, which is demonstrated by the evidence contained in the record of the pretrial hearing.
Equally as germane to the resolution of this issue is the fact that there was a significant intervening event which occurred between the time of Dyla’s initial arrest and the time of his confession. Specifically, the court found that Dyla was released after his illegal arrest and was thus essentially free to choose between going with the police or going elsewhere. Under this interpretation of the evidence, Dyla’s incipient parole revocation proceeding had been completely abandoned once Dyla agreed to speak with the police. This view of the evidence is supported by testimony, including that of Detective Abbondandelo, who stated that if, after having left the parole office and while on the way to police headquarters, Dyla had requested to be released, he "would have let him go”. From this evidence
Furthermore, there is another factor, consideration of which necessitates the conclusion that the taint caused by Dyla’s original arrest had been attenuated by the time he confessed. In Brown v Illinois (
The case of People v Martinez (
In this connection, we note that the County Court’s finding of fact that the homicide detectives in this case were operating completely independently of the parole officer is supported by the evidence and is thus affirmed. Parole Officer Burford’s arrest of Dyla was for parole purposes only; he was not acting as a "conduit” for the police (cf., People v Mackie,
IV
Even if we were to assume that the arrest of Dyla without a parole violation amounted to an unconstitutional seizure, any taint caused by that arrest was dissipated once the homicide squad detectives, who had played no role in the illegal arrest, obtained the consent of Dyla’s parole officer to allow Dyla to be released so that he could assist them in their investigation. However, on appeal Dyla raises the separate contention that, even if he were to be considered as having been released from custody at that stage, he was later taken back into custody after he was informed that he had failed the polygraph test. This is an issue with respect to which we do not have the benefit of specific findings of fact by the County Court.
In deciding whether Dyla was in custody after he learned of the results of the polygraph test, we must consider whether,
Considering all the circumstances of this case, we conclude that Dyla’s learning of the polygraph test results did not transform his noncustodial status into a custodial one. He had been specifically advised by the polygraph examiner that he was free to leave police headquarters at any time and he had been repeatedly told that in the eyes of the law the results of polygraph tests were worthless. Detective Abbondandelo testified that Dyla’s having failed the polygraрh merely elevated Dyla’s status as a suspect "a little bit more”; it cannot be inferred from this testimony that the police considered Dyla to be in custody at that point. A reasonably intelligent (and innocent) man, under these circumstances, would not have concluded that, because of the polygraph test results alone, he would be physically restrained if he sought to leave. Dyla was therefore not under arrest at this point.
In light of this finding of fact, we need not address the question whether, as the People argue, the results of the polygraph test, in combination with other factors, gave rise to probable cause to arrest.
V
At this stage, it is appropriate to recall our earlier observation that the defendant’s major argument, i.e., that the taint of his illegal arrest requires the suppression of his subsequent statements, suffers from an infirmity even more basic than those previously discussed. This infirmity arises from the erroneous assumption that the exclusionary rule applies where the illegal police conduct in question violates statutory (in this case, Executive Law § 259-i) but not constitutional precepts, particularly where there is no bad faith shown on the part of the police, and where the statute in question is not designed to implement Fourth Amendment rights. The
A
We are inclined to hold that neither the Federal nor the State Constitutions (US Const 4th, 14th Amends; NY Const, art I, §§ 6, 12), according to their language and history, require the suppression of evidence gathered as a result of a "seizure” which is not "unreasonable” and hence not unconstitutional, solely on the grounds that the seizure may be considered violative of some State statute, ordinance or regulation. The proposition that the Due Process Clause of either the Federal or State Constitutions (US Const 14th Amend; NY Const, art I, § 6) requires suppression of evidence, even where no violation of any provision contained in those Constitutions has occurred (e.g., US Const 4th Amend; NY Const, art I, § 12) is, in our view, questionable. We аcknowledge that precedent exists which could be interpreted as supporting that proposition. However, we find that precedent contrary to more persuasive precedent which holds that such a proposition is incorrect.
In two cases decided before Mapp v Ohio (
It is important to note that both Miller (supra) and Di Re (supra) were Federal prosecutions. It is clear that, in suppressing the evidence seized in violation of these particular statutes, the Supreme Court was not establishing any rule of Federal constitutional law which would be binding on the States; instead, the Supreme Court was acting in its supervisory capacity over the Federal courts (see, Street v Surdyka, 492 F2d 368; 1 LaFave, Search and Seizure § 1.5 [b], at 106-107 [2d ed]). It is also important to note that the more recent case of United States v Caceres (
We do not believe that the Supreme Court has ever held that, as a matter of Federal due process (US Const 14th Amend), State criminal courts must always suppress evidence which has been gathered in a manner consistent with the Federal Constitution, but in violation of some State law or ordinance, however technical. We recognize that there is dicta in the plurality decision in Ker v California (
It is interesting to note, however, that in People v Floyd (
The case of People v Caliente (
If cases such as Caliente (supra) and Floyd (supra) were construed as having announced an all-embracing rule of law requiring the suppression of all evidence seized in compliance with the Federal Constitution, but in violation of statute, then such a rule would be in direct conflict with other cases in which the Court of Appeals has explicitly held that suppression is not required as a remedy for merely statutory violations. In People v Dinan (
This court has also recognized the distinction to be drawn between constitutional and statutory limitations when it comes to application of the exclusionary rule. In People v Varney (
The idea that the suppression of evidence seized in violation of statutory rules is generally not necessary in the absence of a constitutional violation is borne out in several areas. For example, although CPL 140.20 (1) and 120.90 (1) require arresting police officers to bring arrestees before a court for arraignment "without unnecessary delay”, violation of these sections has never been held to require the suppression of confessions made during a prearraignment delay which, strictly speaking, would not hаve been absolutely necessary (see, People v Hopkins,
New York courts also have agreed with the view that evidence seized pursuant to a warrant which improperly authorizes a nighttime search, in violation of statute, need not be suppressed (People v Glen,
In Matter of Emilio M. (
On the other hand, we must acknowledge the existence of precedent, in different areas, where suppression has been ordered, although no unconstitutional violation appears to have occurred. In certain cases, for example, suppression has been ordered where evidence had been seized pursuant to a warrant issued by a court which lacked territorial jurisdiction (see, e.g., People v Hickey,
As the foregoing discussion reveals, no sweeping statement may be made with respect to the application of the exclusionary rule to evidence sеized in violation of statute. Perhaps it is necessary to distinguish between statutes which relate to jurisdiction (see, e.g., People v Hickey, supra) and statutes which are purely procedural. It may also be necessary to distinguish between statutes which protect the public-at-large from police intrusions (e.g., "knock and announce" statutes such as that under review in People v Floyd [supra], and People v Payton [supra], or statutes governing the nighttime execution of search warrants) and statutes which have no such purpose. Perhaps we can do no better than distinguish between statutes which are designed to protect substantial
Focusing, then, on the narrow question of whether a violation of the statute requiring the issuance of a parole violation warrant (Executive Law § 259-i [3] [a] [i]) requires suppression in this case, we conclude that it does not. As more fully outlined below, this statute is not jurisdictional, it is not meant to protect the privacy of the public and it affects no substantial right. It is purely a technical requirement, the violation of which should not result in the exclusion of evidence. "Suppression of evidence resulting from [an] illegal, but not unconstitutional, arrest is not mandated” (2 Ringel, Searches & Seizures, Arrests and Confessions § 23.9, at 23-50 [2d ed]). Exclusion of evidence obtained as a result of a statutory violation should be suppressed only if the statute "confers a substantial right” which "relate[s] rather closely to Fourth Amendment protections” (1 LaFave & Israel, Criminal Procedure § 3.1 [e], at 146; see also, 1 LaFave, Search and Seizure § 1.5 [b], at 101-110 [2d ed]).
B
Parolees are, in essence, convicted criminals who are released from prison before the expiration of their term, under supervision, and who are allowed to remain outside the penal institution only on stated conditions. Violation of these conditions results in revocation of parole. "If a parole condition is violated, this forms an independent ground to reincarcerate the individual based on the prior conviction” (Faheem-El v Klincar, 841 F2d 712, 724). Recognition of the necessity that parolees be closely supervised in order to protect the public has cаused the courts to declare that the Fourth
For the purposes of determining the scope of their State or Federal constitutional rights, parolees and probationers have generally been treated alike (see, Gagnon v Scarpelli,
That a parolee has no constitutional right to be arrested only upon a warrant is further illustrated by the fact that some jurisdictions have, or had, statutes which expressly authorize the warrantless arrest of parole violators (see, e.g.,
The requirement that the arrest of a parole violator be preceded by the issuance of a warrant (Executive Law § 259-i [3] [a] [i]) is more in the nature of a procedural or "housekeeping” rule thаn a requirement designed to protect individual liberty. The type of warrant in question is not one issued by a neutral Magistrate; rather, it is issued by an administrative officer who is basically a colleague of the officer who is seeking the warrant (see, 9 NYCRR 8004.2 [b]). The failure to obtain a parole violation warrant is particularly excusable where, as in the present case, no decision had been made by the parole officer as to whether to revoke parole until the parolee was actually in the presence of the officer. It has been stated that it would be "absurd” to expect a probation officer to obtain a warrant in order to arrest a probationer who is committing a violation in the officer’s presence (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 410.50, at 262). The same is true with respect to the arrest of a parolee whose violation (e.g., the failure to report police contact) occurs in the presence of a parole officer during an interview.
We are also persuaded by the reasoning expressed in those cases in which it has been held that the exclusionary rule should not apply to the fruits of an arrest which is made in contravention of a State statute authorizing warrantless misdemeanor arrests in the presence of the arresting officer (see, State v Eubanks, 283 NC 556,
VI
The defendant raises several other points, both in the brief of assigned counsel and in his pro se brief. These have all been examined and fоund to be without merit. We note specifically that there is no merit to the defendant’s argument that his statements to police were extracted in violation of his privilege against self-incrimination on the grounds that he subjectively believed that if he did not tell the truth, his parole would be revoked. Even assuming that the defendant
The defendant’s claim based on double jeopardy is likewise without merit (see, Matter of Napoli v Supreme Ct.,
Mangano, J. P., Lawrence and Spatt, JJ., concur.
Ordered that the judgment is affirmed.
Notes
. We disagree with this particular finding of fact. The record of Officer Burford’s testimony indicates that at the time that he handcuffed Dyla he had decided to initiate parole revocation procedures. Our finding in this regard bolsters the conclusion reached by the court that Parole Officer Burford was not acting as an agent for the police, but was working independently. We also infer that, had Burford not shortly thereafter agreed
. As we noted, certain testimony of Parole Officer Burford suggests that the parole revocation procedure might have been resumed, and that Dyla might have been returned to his custody, if Dyla had at any point stopped cooperating with police. However, Burford’s view of the situation does not necessarily coincide either with that of the police officers or with that of Dyla himself, or, most importantly, with the view which a reasonable man in Dyla’s position would have had. Even if we were to find that Dyla was not free to go after his transfer to the police, but was instead given the Hobson’s choice of whether to be in custody at the parole office or at police headquarters, so that he was in fact in custody continuously, we could still hold suppression unwarranted for the reasons discussed in section V of this opinion.
. Although a parole officer is a "peace officer” (CPL 2.10 [23]) authorized to make warrantless arrests for an "offense” under defined circumstances (see, CPL 140.25), the People do not argue, and we therefore do 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.
. Generally, a warrantless search of a suspect’s home in the absence of exigent circumstances will be found to be unconstitutional even though probable cause existed (see, Coolidge v New Hampshire,