| NY | Oct 15, 1964
Dissenting Opinion
If the search of the defendant’s apartment leading to the seizure , of narcotics is to be justified, it must be on,the;ground either; (1) that a parolee has no:-tight to the protection of the Fourth Amendment’s prohibition against pnrea.i-5pn.able . searches or (2) , that the search was incident to the defendant’s arrest for violating his parole by. consorting with a known ¡criminal.. I do not believe that it may be sanctioned on either ground. ¡ ¡.v ¡;
Although in a; pertain sense; and for certain purposes, a paroled convict is regarded ,as still being “ a prisoner ” and
The rule which allows a contemporaneous search, without a search warrant, as incidental to a person’s lawful arrest is justified by the need to seize weapons or the fruits of, or the. implements used to commit, the crime or violation involved. (See, e.g., Preston v. United States, 376 U.S. 364" court="SCOTUS" date_filed="1964-03-23" href="https://app.midpage.ai/document/preston-v-united-states-106771?utm_source=webapp" opinion_id="106771">376 U. S. 364, 367.) In the present case, the Parole Officer was unquestionably empowered to arrest the defendant for a parole violation — indeed, the defendant admitted the violation—but I doubt that the consequent 2%-hour search of his apartment can be considered “ incident ” to an arrest based on a charge of consorting with a known criminal. (Cf. Preston v. United States, 376 U.S. 364" court="SCOTUS" date_filed="1964-03-23" href="https://app.midpage.ai/document/preston-v-united-states-106771?utm_source=webapp" opinion_id="106771">376 U. S. 364, 368, supra; Abel v. United States, 362 U.S. 217" court="SCOTUS" date_filed="1960-03-28" href="https://app.midpage.ai/document/abel-v-united-states-106021?utm_source=webapp" opinion_id="106021">362 U. S. 217, 236.) In point of fact, it seems likely that, in the present case, the parole warrant was issued not to authorize the defendant’s arrest but, quite improperly I suggest, for the purpose of gathering evidence in a criminal case. (Cf. Abel v. United States, 362 U.S. 217" court="SCOTUS" date_filed="1960-03-28" href="https://app.midpage.ai/document/abel-v-united-states-106021?utm_source=webapp" opinion_id="106021">362 U. S. 217, 226, supra.)
It is my opinion, therefore, that the search of the defendant’s apartment was “ unreasonable ” by constitutional standards, that the evidence uncovered thereby was illegally obtained and that the motion to suppress its use should have been granted. The judgment of conviction should be reversed.
Judgment affirmed.
Lead Opinion
Judgment affirmed. Defendant-appellant, as a parolee, was deprived of no constitutional rights by the search and seizure which was made under the circumstances of this case (People ex rel. Natoli v. Lewis, 287 N.Y. 478" court="NY" date_filed="1942-03-05" href="https://app.midpage.ai/document/people-ex-rel-natoli-v-lewis-3615618?utm_source=webapp" opinion_id="3615618">287 N. Y. 478; Anderson v. Corall, 263 U. S. 193).
Concur: Judges' Dye, Van Voorhís, Burke, Scileppi and Bergan. Chief Judge Desmond concurs solely on the ground that the search of the parolee’s apartment was incidental to his arreSt oh a valid administrative warrant; Judge Fuld dissents in the following opinion.