United States v. James Thomas

cigarette rolling paper. Upon examining OAKES, PIERCE, Before MESKILL pocket, Rooney jacket another discovered Judges. Circuit envelope flap tucked unsealed MESKILL, opened envelope Judge: Rooney inside. Circuit Treasury found United eleven States appeals Thomas from a Appellant James explained that he had checks. Thomas judgment of the United States District called Rooney found the checks. then for the District of New Southern Postal Service. Inspectors the Secret Metzner, York, J., convicting him of two found, Rooney Based evidence on the he illegal possession counts super- arrest from obtained an warrant Treasury moved checks. Thomas States arrest for placed visor and Thomas under checks, suppress contending below parole violation. during they illegal seized motion on suppression Thomas based his by his officer. When the our decision suppression court denied the mo- district (2d Cir.1982), we excluded pleaded guilty to both where Thomas counts Nevertheless, agree federal offi we with the district evidence seized probation search of a court’s conclusion that the checks were ad- cers in a warrantless judgment and held that warrant apartment er’s missible and we affirm the “the search falls within required unless conviction. exception to the war judicially recognized Ordinarily, personal prop- the “seizure of Id. The dis requirement.” rant per se unreasonable erty the within [is] in instead relied on our decision trict court meaning of the Fourth Amendment unless ex rel. Santos v. New York United States accomplished pursuant judicial it is a Parole, (2d State Board of 441 upon probable warrant issued cause.” Cir.1971), 92 404 U.S. — Place, United States v. U.S.-,-, L.Ed.2d 676 and denied 30 2637, 2641, (1983). 103 S.Ct. 77 L.Ed.2d 110 Santos, motion. In we held that a Thomas’ protections But Fourth Amendment extend parolee’s could search a parole state officer only government intru- “unreasonable a The court apartment without warrant. legitimate expectations sions into ... of and Rea by noting Santos distinguished Chadwick, privacy.” United States v. 433 parole a state officer Santos that involved 1, 7, 53 L.Ed.2d and that Rea probation dealt with a federal (1977). inquiry 538 The focus of our into alluded to officer. district court our Rooney’s whether Officer search violated Santos of a New York State discussion rights Thomas’ Fourth Amendment thus statutory responsibility to parole officer’s legitimate whether Thomas had a becomes parole the conditions are not ensure that of expectation privacy person of for his responsibili being violated and of how that clothing at the time the search and ty requires parole empow that a officer be whether, light expectation, of that Roo- parolees ered to conduct searches of ney’s unreasonably actions were intrusive. rights ordinary the would violate citi determining expec- The test for an when concluded that Santos The court zens. privacy legitimate tation of is or reasonable § interpreted N.Y. Correction Law explicitly was stated in Justice Harlan’s 1968), which sets forth the Katz v. concurring opinion in often cited officers, permitting a duties of Noting search. warrantless (1967): 19 L.Ed.2d 576 is a two- “[T]here present case involved a New York State requirement, person fold first that a have the district court found that (subjective) expectation an actual exhibited

Santos controlled and that the warrantless and, second, privacy expectation proper search of Thomas was because recognize society prepared be one that is provided narcotics conviction reasonable ” Id. at as ‘reasonable.’ investiga grounds for (Harlan, J., concurring). tion. appeal, satisfy prong that the Thomas can neither On Thomas claims First, illegal pa- officer’s search was because the this test. it is obvious that he did expectation role officer lacked not in fact have an that his both clothing a search warrant. We believe that neither would not be searched Santos Rea nor controls the outcome here.1 while he office. A New 794, 401 N.Y.S.2d 1. Both Santos and Rea deal with the search of N.Y.2d 371 N.E.2d , (1977) parolee’s residences rather than a the search of concerns the search of resi- Rea, Jackson, while he is in his officer’s office. by parole People dence officers. relies, factually appellant on which is further 621, 412 N.Y.S.2d 46 N.Y.2d 385 N.E.2d distinguishable. probation four officers , (1978) search was of a officers’ probationer and his searched home of locker, probationer’s in which the officers dis- objections common law wife over their and four keys, subsequent covered car and a search of receiving days anonymous tip after case, probationer’s Huntley car. As in the engaged in criminal conduct. delayed their search for several the officers had The New York state cases cited in the dissent receiving anonymous tip. hours after dispositive. People Huntley, are also not sign a state- U.S. required to parolee is York (1971). the conditions of he understands ment that § 8003.1(c) N.Y.C.R.R. his -release. parolee’s A diminished Fourth Amend- Thomas, from the as a transferee protection regarding by searches ment signed not parole system, had Pennsylvania necessity arises from the but the conditions such a statement unique parole supervision effective Rooney at the time him Officer read to parole officer and relationship of the conditions included transfer. The of his Bradley, parolee. inspections to searches consent Fitzharris, 790; Latta v. F.2d at parole officer. property by his

person and legal custody at 249. A Transcript of 1983 at June officer who monitors the Thomas, No. 83 Cr. 340 (CMM) adherence to the conditions of his or her 1983) (testimony of Bri- (S.D.N.Y. June § 259-i(2)(b) N.Y.Exec. Law to the Rooney). Having been alerted 1982). parole A officer’s func- would not parole, Thomas conditions of guide parolee is “to into twofold: by privacy enjoyed expectation of have development” prevent constructive Furthermore, Thomas ordinary citizens. dangerous deemed to the “behavior is subjective expec- his diminished manifested restoration of the individual into normal saying, you “I knew privacy by tation of Brewer, Morrissey v. society.” 408 that,” Roo- Officer going to do when 478, 92 at 2598. To ensure that S.Ct. up his shirt sleeves. ney him to roll told being are not violated conditions of parolee’s progress of and to monitor Second, Thomas was a because society, into reintegration expectation cognizable parolee legally pow- necessity, investigative must have of clothing would not be parol- gather information about ers Rooney’s office he was in searched while activities, and social ee’s environment con- The status of substantially reduced. Fitzharris, v. tacts. Accord Latta 521 unique; is legal system in our parolees such information can F.2d at 249. Often physically imprisoned nor they are “neither only obtained activities like searches be United move at will.” free to privacy parolee of the to an that invade the Polito, 48, (2d Cir.1978). A F.2d 54 583 unlawful if directed extent that “would be liberty “the enjoy does not absolute citizen.” United against ordinary entitled, only every is but to which citizen v. New York ex rel. Santos State States dependent liberty properly conditional [a] Parole, 441 F.2d at 1218. Board of special parole restric on observance of Brewer, 471, privacy vary, can Expectations of Morrissey v. 408 U.S. tions.” 2600, circumstances and location. 2593, depending L.Ed.2d 480, 33 484 Knotts, v. 460 U.S. States E.g., United unique position, Because of this (1983) 1081, 75 L.Ed.2d 55 276, 103 S.Ct. fewer constitutional parolee “possess[es] citizens, Polito, street); United (travel public route on ordinary 583 rights” than Martinez-Fuerte, 428 U.S. 543, v. 96 States by parol rights The diminished F.2d at 54. (automo 3074, (1976) 49 L.Ed.2d 1116 pro Amendment include Fourth ee status Lyons, v. bile); F.2d United States 706 321 by parole officers. from intrusions tections (D.C.Cir.1983) (hotel room); United States Bradley, 571 F.2d v. United States (9th Fitzharris, Kaiyo No. 699 F.2d 989 Maru Cir.1978); Latta (4th 521 790 (commercial United (en banc), Cir.1983) property); cert. (9th Cir.) 248-49 F.2d MacPherson, (11th 664 F.2d 69 denied, 46 96 423 U.S. (border search); United States Cir.1981) ex rel. (1975); L.Ed.2d Cir.1979) (mail Huie, (5th cov Board Pa v. New York State Santos of er). expectation of 1218; A diminished role, States ex 441 F.2d at necessarily further dimin Follette, privacy would be rel. Randazzo v. he in his Cir.1969), while is (2d ished 1322 n. expecta violating ordinary Thomas

office. Even an citizen’s condition of office than privacy public of is less in a parole prohibiting possession tion use or of v. Mar in a residence. See United States drug substance or parapherna- a controlled tinez-Fuerte, expectation lia. Given Thomas’ diminished (1976) (sanctity privacy of Officer . need private dwelling ordinarily afforded supervision function, fulfill his stringent protec Fourth Amendment most puncture justified investiga- marks further Harris v. tion); clothing. require tion of Thomas’ To n. 151 n. grounds officer who has reasonable (1947) (stricter requirements L.Ed. parolee present believe that searches). pri dwelling expectation The violating office the terms vacy officer’s office or an obtain a search arrest warrant before See M.M. v. be at its lowest would ebb. parolee, searching a and risk the destruc- Anker, Cir.1979) (2d (per cu 607 F.2d 588 violation, tion of evidence riam) (teachers’ unique relationship to stu absurd. including discipline, dents education judgment conviction is affirmed. justifies limited on less premises). cause on school than OAKES, Judge Circuit (dissenting): light expecta of Thomas’ diminished begin analysis I Since of this case with privacy, the intrusion limited initial tion premises some which differ from those privacy, request that he roll into majority, surprising the it is not I that and the of his fore his sleeves examination reach different some conclusions. I think arms, Rooney was not unreasonable. Once agree ap we that the Fourth Amendment drug previous Thomas’ convic discovered plies to searches and au that older duty officer it was his as a to excluding parolees thorities from the investigate whether further determine Fourth against Amendment’s being or was vio Thomas was rehabilitated are, searches unreasonable and seizures lating the conditions of his Latta v. Fitz Judge put it in Hufstedler that a former will risk narcotics user “re harris, 246, (en (9th Cir.) 521 F.2d 254 this habit while on suffi sume [is] denied, 423 banc) (dissenting opinion), ciently great justify periodic inspections (1975), “constitutionally U.S. 897 defunct.” for injection of his arms narcotic marks.” Compare States v. United F.2d White, 678 Rights The Fourth Amendment (2d Cir.1982), with United 386-87 Probationers, Parolees 31 U.Pitt.L.Rev. States ex rel. Santos v. New York State (1969). Lafayette, See Illinois v. 167, 192 Cir.1971), — Parole, (2d Board 441 -, 2605, 2609, U.S. 103 77 S.Ct. rt. (1983) (search 404 U.S. 92 S.Ct. justified “legiti L.Ed.2d 65 if ce apparently 30 L.Ed.2d 676 We governmental outweigh in mate interests” agree legitimate also that a has a privacy interests). dividual’s “expectation privacy,” ques however appeal need not We determine on this the tion-begging phrase that catch from Justice acceptable Fourth limits on Amendment concurring opinion Katz Harlan’s parolee’s intrusion into 347, 361, 389 U.S. privacy. enough It is to state Roo- 507, 516, (1967), L.Ed.2d may 19 576 be. ney’s examination of Thomas’ forearms Amsterdam, Perspectives See on the clearly within limits whatever we Amendment, Fourth 58 Minn.L.Rev. would set. Neither was Officer addition, (1974). In may agreed we further examination appellant’s “expectation” the is not clothing discovery after his of fresh punctures same as that other citizens are not needle who appellant’s forearm an parole system, unreasonable enmeshed least search. Observation of the puncture relationship pa provided marks insofar as the between the with grounds reasonable officer' concerned. to believe rolee and by previously issued search agree that this thorized war apparently Finally, we panel unanimous answered the conducted Thomas’s rant.” The was not negatively. Royer, question 460 U.S. 678 F.2d at 387-88. Florida v. consent. (1983), Granting L.Ed.2d 229 the search of a that Rea involved house, principle, no consent probationer’s it that there was the basic makes evident as a or a here. that one’s status parolee1 provide exception does not however, disagree, on the fol- I fear we rules, general Fourth Amendment is direct (1) something less lowing points: whether Thus, ly applicable here. absent one of justifies a warrantless probable cause than exceptions re specific from warrant parol- body and effects search of as seizure of quirement, such contraband officer; (2) extent to ee view, plain Coolidge v. New or evidence govern- at state law we should look 443, 465, Hampshire, 403 parole officer to ing conduct of a state 2022, 2037, (1971), L.Ed.2d volun officer’s actions determine whether searched, tary consent of the individual reasonable; (3) a fifteen- whether Bustamonte, 412 U.S. Schneckloth for a narcotics misde- year-old conviction 2041, 2045, 222, 93 S.Ct. 36 L.Ed.2d 859 itself, meanor, furnished in and of (1973), arrest, search incident to a lawful asking parolee to remove his Robinson, shirtsleeves; (4) roll jacket and 467, 471, 38 L.Ed.2d 427 “subjective” expectation Thomas’s whether (1973), necessary reasonably searches bearing. any has safety protect the of the law enforcement subjective ex- of Thomas’s The relevance Ohio, Terry v. mind, is, privacy my pectations of or dividing us. I clearcut of the issues most other exi searches conducted certain under that sub- with Professor Amsterdam agree circumstances, gent e.g., obviously have “no expectations jective Martino, (2d Cir.1981) in a of what Katz held place statement (Oakes, J., concurring), cert. denied sub theory what the fourth amendment in a Miller v. United nom. If 58 U.Minn.L.Rev. protects.” 1110, 102 S.Ct. in expectations played a role the subjective (1982), of a may no search be made—even protec- Fourth Amendment’s scope of the prob parolee by parole his officer—without tions, could diminish each the Government cause. able merely by regularly expectation person’s parolee, in of a I concede that the case announcing through the media that we probable cause is not necessari- comprehensive the test being placed all under of a citizen ly the same as it is case Clearly, such a re- electronic surveillance. By probation on nor on the fun- neither compatible not be with sult would crime, parolee has committed a limits definition tenet that the Constitution damental set certain and as a result the State has vice versa. government, not our maintaining upon his freedom. conditions disagreement, point first of our As to the summon considerations Those conditions in decision I that this court’s Unit- believe may probability and causation which of Rea, 678 F.2d should be ed States ordinary the very well not be involved with In the court was here. determinative law-abiding citizen. question of the “squarely presented with parole and a of a state probationer In the case person’s status as a whether a must refer to parolee, I think that we rule that state exception an to the creates parole whether the state law to determine conducted under other than those searches to conduct a probable cause au- officer had must be specific exceptional conditions 412 N.Y.S.2d parolees N.E.2d general, and have treated 1. In courts Consuelo-Gonzalez, (1978); Fourth Amendment probationers alike in the Cir.1975). (9th Jackson, F.2d E.g., People 46 N.Y.2d context. unreliability, demonstrated record of point, this it had a precisely at It is search. me, majority opinion is in true of Thomas the instant case. to not seems deficient, though it makes a reference explicit Huntley to Despite even reminder of York the New State passant officers, or two en duty report to his his pa law, noting particular in report, Huntley failed so to violations twice New York Execu custody under rolee is obligation the most fundamental 1982). § i(2)(b)(McKinney tive Law 259 — In parolee, also not true of Thomas. addi- law on this body New York There is a quit parolee Huntley had his consisting of recent decisions question informing employment without applicable to of the state highest court status, employment lied about Application parolees probationers. and accepted payments, all of and welfare here, believe, appropriate I and that law officers had learned. appellant’s in reversal of the result went to his house and When officers conviction. early him there in the afternoon found 175, 371 People Huntley, 43 N.Y.2d In disability physical or other hin- without (1977), the 401 N.Y.S.2d 31 N.E.2d reporting, drance to his what otherwise Appeals held that a York Court of New might impermissible have search been parolee does not surrender constitution- short, permissible became a one. searches rights against unreasonable al rationally Huntley and sub- 180-81, 371 seizures.2 43 N.Y.2d at stantially performance to the related Al- at 401 N.Y.S.2d at 34. N.E.2d duty, he parole officer’s confronted as was though Huntley seems to call for a show- an unreliable who had failed with ing something less than once, report not but twice. Thomas’s search, thus facial- justify a warrantless any- not confronted with parole officer was view, ly supporting majority's the court thing like behavior. such analysis ultimately embraced flexible Jackson, People 46 N.Y.2d urge I “probability” and “cause” such as N.E.2d N.Y.S.2d adopted Huntley here. The court held Appeals dealt New York Court question turn on whether “must warrantless search of a conduct of the officer was ra- applied car. It the same test to a reasonably per- related to the tionally and Noting parolee. as to a duty formance of the ... “constitutionally person is entitled such a particular circumstances.” 43 N.Y.2d against unreasonable N.E.2d at 401 N.Y.S.2d at seizures,” the court held that Noting that a officer’s duties searches detecting preventing parole vio- pro include status as a the defendant’s public of the determining lations for “is relevant in bationer proper assisting- parolee to a well as 46 N.Y.2d reasonableness of the search.” community, the reintegration to his 623, N.E.2d at 412 N.Y.S.2d at at officer Appeals pointed out that applied enunciat 886. It then the standard have a carte nevertheless “does not viz., Huntley, in “whether the search is ed private life ... on the blanche intrude duty supervise ad consistent with parolee.” 43 N.Y.2d at and affairs of the probation herence to the conditions 371 N.E.2d at 401 N.Y.S.2d duty the offend parole and the to influence er to refrain from unlawful conduct.” 46 application principles of these The court’s 412 N.Y. at 385 N.E.2d at N.Y.2d Huntley illumi- upholding the search Preiser, Practice (quoting at 887 S.2d significant differences between nates § 410.50 Commentary, N.Y.Crim.Proc.Law Huntley of the case and those of facts 1971). In Huntley case before us. weighs majori- did, however, concededly point in the distinguish which

2. The court between ty’s police favor here. and a own there was “no arms. Thomas’s Significantly, Jackson officer had abso- proved lutely thought had that the defendant no that Thomas was indication not strictly adhering and “no evidence that he failed to the conditions which unreliable” Thus, report.” parole. 46 N.Y.2d at 385 N.E.2d had been established for his was, accepting “probable at 887. There 412 N.Y.S.2d cause” should be however, anonymous liberally accusation which construed more in the con- text, simply verified. The court there were no to some extent facts this case individual, upon probable of the his cause could be based. held that the searches invalid, locker, were and his automobile Moreover, the initial search in this case reasoning: satisfy does not the Fifth Circuit’s “reason uphold the search in this case would To test, suspicion” possibly able a standard recognition hardly be consistent with the stringent probable less than the “flexible” probationer’s right constitutional analysis-adopted by the New York free of unreasonable searches and be urged courts and here. United States v. right anything If seizures. means it Scott, (5th Cir.1982); 678 F.2d see at least mean that a must also v. Bradley, 571 F.2d previously not violated the con- who has (4th Cir.1978) (search 788 n. 1 ditions of his sentence should not be sub- home). As the Fifth Circuit stated: complete person jected to a his stringent Less a standard than of- property and whenever cause, suspicion requires reasonable ho anonymous phone call. ficer receives authority acting more than that the point specific able to articulable 46 N.Y.2d at 385 N.E.2d at that, together facts taken with rational N.Y.S.2d at 887. facts, reasonably inferences from those case, subject- In Thomas was the instant warrant a belief conclusion moot- person three searches: his ed to instance, ed—in this that a condition of required when he was to remove searched being has been or is violated. shirtsleeves, jacket, roll and ex- appellant 678 F.2d at 35. The fact that the arms; body tend his was searched sub- years had been ago convicted fifteen frisk; sequently pat-down with a narcotics, however, possession of is not a jacket The was searched. initial exami- rationally fact from which one could infer entirely nation of his arms was based presently violating that he was a condition years the fact that some fifteen earlier he Thus, application of his even of the had convicted of a misdemeanor for been suspicion requires reasonable standard re- possession of narcotics.3 The offi- versal of Thomas’s conviction. cer had encountered no difficulties in su- Indeed, pervising subsequent Thomas. he had extend- searches of Thomas’s reporting frequency jacket, including ed Thomas’s from one and then of his weeks, therein, apparently suspi- envelope to two had no were tainted the first addition, however, drug improper cion of use until he learned of Thom- search. years they independently They as’s conviction fifteen earlier. unlawful.4 circumstances, application arrest, justified these cannot be as incident to an principles Passaro, Huntley and Jackson lead to see (9th Cir.1980), conclusion Thomas’s Fourth 943-44 rights by Amendment were violated they officer’s initial examination of his as none had been made. Nor can True, employment problem, per- F.2d at latter

3. Thomas had searches of Thomas’s difficulty rightfully by major- jacket probably prop- not mentioned son and have been ity given unemployment search, has affected a sub- er were it not for the fact that the initial people. stantial number of marks, discovery which led to the of the track improper. suspicion" adopted 4. Under the "reasonable test Circuit, Scott, the Fifth be- probable cause based justified as violation; the evidence of

cause needle marks three or four presence appel- believing that no basis

provided drugs office

lant arrived suspi- could Nor drug paraphernalia.

or wearing of a from the mere arise

cion spring absent some day early

jacket on a nervous appellant was

indication of, jacket.

about, possessive in- is an

sum, have in this case we what search which of an administrative

stance Arizona, 437 Mincey v. a warrant.

needed (1978); Tyler, Michigan

L.Ed.2d 1947-48, 504-06,

L.Ed.2d were conduct- searches here

Because the and without

ed without

warrant, Fourth they violated Thomas’s Accordingly, con- rights.

Amendment and the indict- should be reversed

viction

ment dismissed. DE &

E.I. DU PONT NEMOURS

COMPANY, Petitioner, COMMISSION, TRADE

FEDERAL

Respondent. Petitioner, CORPORATION,

ETHYL COMMISSION,

FEDERAL TRADE

Respondent. 83-4102, 83-4106. Dockets

Nos. Appeals,

Second Circuit.

Argued 21, 1983. Nov.

Decided Feb.

Case Details

Case Name: United States v. James Thomas

Court Name: Court of Appeals for the Second Circuit

Date Published: Feb 22, 1984

Citation: 729 F.2d 120

Docket Number: 394, Docket 83-1246

Court Abbreviation: 2d Cir.