UNITED STATES OF AMERICA, against JOSÉ SANTANA,
22 CR 368 (VM)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
July 20, 2023
VICTOR MARRERO, United States District Judge.
USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: DATE FILED: 7/20/2023
VICTOR MARRERO, United States District Judge.
Defendant José Santana (“Santana“) is charged with one count of possession of narcotics with intent to distribute, in violation of
I. BACKGROUND1
On or about June 15, 2018, Santana was convicted in Bronx County, Supreme Court (“State Court“) for attempted assault in the first degree, intent to cause serious injury with a weapon, in violation of
On or about December 20, 2018, after serving six months since he was convicted, Santana was released from New York state prison, and began serving his five-year term of parole, or community supervision, with the New York Department of Corrections and Community Supervision (“DOCCS“). As part of his supervision, the New York State Division of Parole (“Parole“) imposed certain conditions of release on Santana, to which he expressly agreed. These conditions include that
In or around early October 2021, a parole officer (“PO-1“) learned that Santana had been shot while on parole. Another parole officer (“PO-2“) became concerned that Santana was possibly involved in gang activity, including potential access to firearms.
Parole selected Santana‘s Residence for a home visit, scheduled for October 5, 2021. On or about October 5, 2021, at approximately 7:30 a.m., several Parole officers (“Parole Officers“) and New York Police Department (“NYPD“) officers (“Police Officers“) arrived at Santanaʼs Residence. PO-1 and PO-2 knocked on the door of the Residence, announced that Parole was there to conduct a search, and Acevedo answered the door, identifying herself as Santana‘s sister. Acevedo stated that Santana was not home but would return soon.
When Santana arrived at the Residence in a minivan, PO-1 explained to Santana that the Parole Officers were present
During the search, the Parole Officers saw a Tupperware container beneath a couch in the living room, and one of the officers approached and noticed that the container contained rice. The Parole Officers then saw a second Tupperware container along with a scale under the couch. The scale appeared to be the type of scale typically used to weigh narcotics. Santana stated that the items found under the couch belonged to him.
After opening the containers and finding what appeared to be narcotics packaged for sale, the Parole Officers informed the Police Officers of the suspected narcotics, and the Police Officers then entered the Residence. After inspecting the contents of the Tupperware packages, the officers observed glassine envelopes containing suspected narcotics.
The Police Officers explained to Santana that they wanted to search his vehicle, the minivan he drove to the
During the search of Santana‘s vehicle, the Police Officers found a walker that Santana allegedly used to walk, and a fanny pack containing suspected narcotics and Santana‘s identification. As a result of the search, the Parole Officers and Police Officers recovered over 1,000 glassine envelopes containing suspected narcotics, pills of suspected narcotics, and approximately five clear packages of suspected narcotics.
Santana was arrested by the Police Officers and transported to an NYPD precinct where Santana was verbally advised of his Miranda rights, waived those rights verbally, and provided a recorded post-arrest statement. According to the Government‘s Opposition, in this statement, Santana described shootings in his neighborhood, including an instance when he was shot three months earlier, stated he had been an active gang member, and indicated that he did not know where the recovered narcotics had come from. (See Opp. at 5.)
The NYPD laboratory (the “Laboratory“) examined the suspected narcotics recovered from the Residence, assessing roughly 1,236 glassine envelopes containing a detectable amount of fentanyl and heroin. Roughly 28 tablets containing
On or about November 29, 2021, a complaint was filed in the United States District Court, Southern District of New York, charging Santana with one count of possession with intent to distribute 40 grams or more of mixtures and substances containing a detectable amount of fentanyl, in violation of
II. DISCUSSION
A. EVIDENCE OR CONTRABAND SEIZED FROM SANTANA‘S APARTMENT
Santana moves to suppress any evidence of contraband seized from the Residence on or about October 5, 2021 by the Parole Officers. Santana contends that because the Parole Officers lacked an “articulable reason” to believe that criminal activity was afoot at the Residence, any evidence or
The Fourth Amendment guarantees the right of individuals to be free from “unreasonable searches and seizures.”
As the Fourth Amendment prohibits unreasonable searches and seizures, “[t]he touchstone in evaluating the permissibility of any search is ‘reasonableness.‘” United States v. Lifshitz, 369 F.3d 173, 178 (2d Cir. 2004) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)). A reasonable search generally “requires a warrant and probable cause,” id.,
Such exceptions abound in the context of probation and parole. The Supreme Court has held that in the context of probation, “[a] State‘s operation of a probation system . . . presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.” Griffin, 483 U.S. at 873-74. Probation is a “form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.” Id. at 874 (quoting George G. Killinger et al., Probation and Parole in the Criminal Justice System 14 (1st ed. 1976)). While probationers are not held in custody by the State, “they do not enjoy ‘the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.‘” Id. (alterations in original) (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). Because such restrictions serve the dual purpose of achieving genuine rehabilitation and ensuring community safety while the probationer is in the community, supervision of probationers then constitutes a “special need” of the State that “permit[s] a degree of
The Second Circuit, quoting the First Circuit approvingly, has noted that in the context of parole,2 “parolees enjoy even less of the average citizen‘s absolute liberty than do probationers” because unlike probation, “[p]arole is meted out in addition to, not in lieu of, incarceration.” United States v. Grimes, 225 F.3d 254, 258 (2d Cir. 2000) (per curiam) (quoting United States v. Cardona, 903 F.2d 60, 63 (1st Cir. 1990)). Further, “[b]ecause parolees ‘have fewer expectations of privacy than probationers,’ the operation of a parole system is afforded at least as much discretion in this regard as the operation of a probation system[.]” United States v. Braggs, 5 F.4th 183, 187 n.3 (2d Cir. 2021) (citations omitted).
However, while “a degree of impingement upon privacy” is permitted in the context of parole, “the law requires that
The Government argues that the special needs doctrine, not the “articulable reason” standard advanced by Santana and discussed below, applies to the search of Santanaʼs Residence by the Parole Officers. In New York, whether a warrantless parole search is unreasonable and therefore violates the Fourth Amendment “must turn on whether the conduct of the parole officer was rationally and reasonably related to the performance of the parole officer‘s duty.” Id. at 665-66 (internal quotation marks omitted) (quoting People v. Huntley, 371 N.E.2d 794, 797 (N.Y. 1977)). The special needs doctrine “permits those searches that are reasonably related to the special needs animated by management of a parole system.” United States v. Rivera, No. 19 Cr. 759, 2020 WL 1131140, at *3 (S.D.N.Y. Mar. 6, 2020) (quoting Grimes, 225 F.3d at 259 n.4).
The Court is persuaded that the special needs doctrine is the appropriate standard to apply to the search at issue in this matter. There is no dispute that Santana signed a Certificate of Release, in which he expressly consented to
Santana argues instead that the search was unreasonable because the Parole Officers lacked “an articulable reason to suspect criminal activity in Santana‘s residence.” (Brief at 4-5.) Though Santana does not identify the source of the “articulable reason” standard, as the Government observes, the Court finds that such a standard is likely contained within DOCCS Directive No. 9404, an internal policy memorandum that “instructs that a parole officer may conduct a warrantless search of a parolee when there is an articulable reason to conduct the search that demonstrates a risk to public safety or the paroleeʼs re-entry into the community.” Braggs, 5 F.4th at 185 (internal quotation marks and citation omitted); see also Newton, 369 F.3d at 666 (noting that New York State Division of Paroleʼs policy manual states that “a releasee‘s residence may be searched only where the officer has an articulable reason for conducting the search“).
Instead, the Court applies the “special needs” doctrine, as articulated by the Supreme Court in Griffin v. Wisconsin. See 483 U.S. at 873-74. As the Court discussed above, applying the special needs doctrine in the context of parole, “a parole officer may search a parolee so long as the search is reasonably related to the performance of the officer‘s duties[.]” Braggs, 5 F.4th at 184.
Here, the Parole Officers searched Santana’s Residence based on information that Santana had previously been shot while on parole. According to the Complaint, PO-1 learned this information and PO-2 suspected that Santana might be involved in gang activity, involving the use of firearms, which would be in contravention of the conditions of Santana‘s parole.
The Court is persuaded that the Parole Officers’ search of Santana‘s Residence was proper because they had a duty to determine, based on information reasonably supporting their action, whether Santana was complying with his conditions of parole, which he expressly agreed to follow.
Santana argues that the search violated the Fourth Amendment because there is no evidence that the Parole Officers had knowledge or reliable tips that a parole violation occurred.3 Santana further argues in his Reply that
the information upon which PO-1 relied provided only that Santana was shot, i.e., that he was a victim of violence, and not that he himself was perpetrating any crime. As support for his argument, Santana distinguishes Braggs, arguing that the anonymous tip that the parole officers received to search the parolee’s home provided a specific instance of wrongdoing on the part of the parolee -- that the parolee was in possession of guns in violation of the conditions of parole. See Braggs, 5 F.4th at 188. Here, however, the information obtained by PO-1 did not concern any wrongdoing committed by Santana.
The Court is mindful that the information that the Parole Officers relied upon and that formed the basis for their search did not indicate that Santana was involved in criminal activity. Rather, that Santana was shot indicates, as he argues, that he may have been a victim of criminal activity. However, the Court cannot ignore certain realities that often inform police, parole, and probation officer activities, and generally provide justifiable grounds for courses of actions
Santana also argues that the search was unreasonable because the Parole Officers handcuffed Santana while they conducted the search. Santana asserts that the law does not permit Santana being handcuffed based on his status as a parolee. The Government counters that the Parole Officers acted reasonably because they were permitted to handcuff Santana for safety reasons, specifically where, as here, Santana was suspected of unlawfully possessing, using, or having access to firearms. The Court is persuaded that the handcuffing of Santana was not improper, nor did it render the search unlawful as handcuffing the parolee is consistent with the protocol of Parole. (See Complaint ¶ 4.i); see also United States v. DeJesus, 538 F. Supp. 3d 382, 386 (S.D.N.Y. 2021) (noting that placing parolee in handcuffs is “a standard safety procedure when parole officers conduct a search“); United States v. Turner, No. 21 Cr. 409, 2021 WL 8055692, at *2, *4 (S.D.N.Y. Dec. 7, 2021) (denying motion to suppress involving parolee who was
Thus, the Court is persuaded that the search of Santana’s Residence was rationally and reasonably related to the performance of the Parole Officers’ duties under the special needs doctrine, and the search was not unlawful. Accordingly, Santana‘s Motion to suppress any evidence or contraband seized as a result of the search of his Residence conducted on October 5, 2021 is DENIED.
B. SANTANA‘S STATEMENTS MADE TO PAROLE OFFICERS DURING THE SEARCH
Santana argues that statements he made to the Parole Officers during the search of his Residence should be suppressed because they were obtained in violation of the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436 (1966). The Government rebuts that Santana‘s statements should not be suppressed as they fall within the “public safety” exception to the Miranda warning requirement.
The Fifth Amendment guarantees that “no person . . . shall be compelled in any criminal case to be a witness
Santana argues that he was in custody when he entered the Residence, as he was placed in a chair, handcuffed, and surrounded by Parole Officers while his Residence was searched. The test for determining if one is in custody and therefore subject to Miranda warnings is “whether a reasonable person in the defendant‘s position would have understood himself to be ‘subjected to the restraints comparable to those associated with a formal arrest.‘” United States v. Ali, 68 F.3d 1468, 1472 (2d Cir. 1995) (quoting United States v. Mussaleen, 35 F.3d 692, 697 (2d Cir. 1994)). Santana contends that the test is whether “a reasonable person
Here, the Parole Officers handcuffed Santana in order to conduct a search of his Residence, believing that there may be firearms at his Residence. Santana likely would not have felt free to leave both because of the presence of Parole Officers in his home and Police Officers outside of his home, and because he was handcuffed and seated in a chair to allow the Parole Officers to conduct the search. The Court is
Santana further claims that while in custody, he was improperly interrogated by the Parole Officers without being given Miranda warnings, and that his responses to the questions should therefore be excluded. According to Santana, the Parole Officers asked Santana where he slept, to which he responded that he slept in the living room, and whether the items found under the couch -- two Tupperware containers filled with rice and a scale -- belonged to Santana, to which he responded affirmatively.
The Court notes that the sworn Complaint does not expressly declare that the Parole Officers asked Santana questions about where he slept or about who owned the contraband found under the couch. Instead, the Complaint states that “[a]s the Parole Officers were preparing to search, SANTANA stated to the Parole Officers in sum and substance that he slept in the living room of the Residence.” (Complaint ¶ 4.j.) There is no indication that Santana made that statement in response to a Parole Officer‘s question nor does Santana provide an affidavit attesting to that fact. Likewise, the Complaint does not indicate that Santana‘s
Because Santana was in custody, he posits that he should have been given Miranda warnings prior to any questioning but was not. While the Government does not dispute that Santana was in custody or that the Parole Officers failed to administer Miranda warnings, it argues that Santana‘s statements should not be suppressed on the ground that the questions and corresponding responses fall under the “public safety” exception to the Miranda requirement. Under the exception, officers may question a defendant without the necessary warnings if it is “necessary to secure their own safety or the safety of the public.” Newton, 369 F.3d at 677 (internal quotation marks omitted) (quoting New York v. Quarles, 467 U.S. 649, 658-59 (1984)). Notably, this exception “does not depend upon the subjective motivation of the questioning officer.” Id. (citing Quarles, 467 U.S. at 655-56). Instead, for the public safety exception to apply, the questioning must “relate[] to an objectively reasonable
The Court is persuaded that the public safety exception applies here as there was an objectively reasonable need to protect the officers and others present in the Residence from any immediate danger. See id. As a foundational matter, the Parole Officers arrived at Santana‘s Residence as part of a home visit but also to search the Residence on account of the information that PO-1 received about Santana having been shot. Because the Parole Officers were searching for possible firearms, the object of the search was potentially dangerous to all present in the Residence. It is reasonable to find that the Parole Officers asked Santana about where he slept in order to determine the scope of the premises that needed to be secured and searched for potential firearms. And, the ownership of the contraband was likely relevant to determining whether Santana or another potentially dangerous party had a possessory interest over the evidence and could pose a danger to the Parole Officers or any others at the Residence.
The Government primarily relies on United States v. Estrada to support its argument that the public safety
The Court finds that there are many parallels between the facts in Estrada and the facts here. Like the defendant in Estrada, Santana had a prior attempted assault conviction
The Court also finds significant that the questions were not necessarily investigatory in nature or “designed solely to elicit testimonial evidence from a suspect,” id. at 612 (quoting Quarles, 467 U.S. at 658-69), as they were pointed
Unlike Newton, the questions here about where Santana slept and who owned the narcotics, and Santana‘s responses to those questions, were narrow and focused. Though the Parole
C. FRUIT OF THE POISONOUS TREE
Santana argues that because the search of his Residence was unlawful, any secondary evidence seized and statements made during and after the search must be suppressed as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 488 (1963). Under the “fruit of the poisonous tree” doctrine, “evidence obtained from or as a consequence of lawless official acts” must be excluded. Costello v. United States, 365 U.S. 265, 280 (1961). This exclusionary rule “prohibits the introduction of derivative evidence, both
Santana argues that because the Parole Officers’ search of Santana‘s Residence violated the Fourth Amendment, any contraband seized and statements made during and after the search must be suppressed. However, as the Court has established that the Parole Officers’ search of Santana‘s Residence was lawful, the fruits of that search, such as further contraband recovered by the officers, including from the search of Santana‘s vehicle (to which Santana consented), and statements Santana later made at the NYPD precinct after being given Miranda warnings, need not be excluded. Santana‘s Motion to suppress secondary evidence and statements under the fruit of the poisonous tree doctrine is therefore DENIED.
Lastly, Santana moves, in the alternative, for an evidentiary hearing to resolve any factual disputes that may exist. The Government opposes the request.
“An evidentiary hearing on a motion to suppress ‘ordinarily is required if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable a [] court to conclude that contested issues of fact going to the validity of the search are in question.‘” United States v. Wallace, No. 97 Cr. 975, 1998 WL 401534, at *9 (S.D.N.Y. July 17, 1998) (quoting United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992) (internal quotation marks and citations omitted)). However, a defendant “is not automatically entitled to an evidentiary hearing . . . but must make a preliminary showing of facts which, if proved would require the granting of relief.” United States v. Ventura, No. 97 Cr. 1251, 1998 WL 186737, at *1 (S.D.N.Y. Apr. 17, 1998). To satisfy this burden, “a defendant must, at a minimum, present his or her claim through an affidavit of an individual with personal knowledge of the relevant facts.” Id. (citing U.S. v. Gillette, 383 F.2d 843, 848-49 (2d Cir. 1967)). Where such an affidavit is missing, an evidentiary hearing on a motion to suppress is not warranted. See Wallace, 1998 WL 401534, at
Here, the Court is not persuaded that an evidentiary hearing is necessary to resolve Santana‘s Motion. Despite requesting an evidentiary hearing in his Brief and Reply, Santana failed to provide an affidavit of himself or someone with personal knowledge of the underlying facts to make a preliminary showing of facts which, if proven to be true, would warrant relief. On this basis alone, an evidentiary hearing should be denied.
However, the Court finds that an evidentiary hearing is unwarranted even if it considered Santana‘s arguments. Santana contends in his Reply that an evidentiary hearing is necessary to resolve two disputes of material fact: (1) whether the Parole Officers had “specific and articulable facts” justifying the search (Reply at 1) and (2) whether the Parole Officers had a valid safety concern in handcuffing Santana (see id. at 4).
The issues Santana seeks to resolve through an evidentiary hearing are not relevant under the standard articulated by the special needs doctrine. As the Court established, it would be incumbent upon a parole officer whose parolee had been shot, especially if his prior underlying conviction is related to possession of weapons, to do his due diligence and investigate further to determine whether his parolee had been engaging in conduct that may violate his conditions of parole. In turn, a parole officer‘s failure to inquire or investigate further could conceivably be seen as neglecting his duties as a parole officer. Because the Parole Officers’ conduct rationally and reasonably related to their
On the second dispute, Santana argues that a hearing is necessary to determine whether the Parole Officers’ belief that there was a public safety concern that justified handcuffing and interrogating Santana was credible and reasonable. Again, here, the Court finds that there is no dispute of material fact. As the Court explained above, it is the standard safety procedure of DOCCS and Parole to handcuff parolees during searches. (See Complaint ¶ 4.i); see also United States v. Brown, No. 22 Cr. 266, 2023 WL 208171, at *9 (S.D.N.Y. Jan. 13, 2023) (crediting testimony of parole officer that “during searches parolees are handcuffed as a matter of DOCCS policy“). Also, because the Parole Officers were searching for possible weapons, it was reasonable to handcuff Santana for fear that he might flee, obstruct the search in some way, or have access to firearms to which the officers were not privy, creating a potentially dangerous situation for those on the premises. Thus, there is nothing inherently unreasonable about Parole handcuffing Santana during the search.
Additionally, the Court finds that there is no dispute as to whether the questioning of Santana fell within the scope
The inquiry into where Santana slept and who owned the narcotics are appropriately within the bounds of the public safety exception even without further inquiry and fact-finding. The question pertaining to where Santana slept related to a need to understand the scope of the premises that needed to be secured and the scope of the search to find a potentially dangerous weapon. The question pertaining to the owner of the contraband found under the couch related to a need to protect the officers and others present in the Residence from possible dangers posed by individuals who may have an interest in the narcotics recovered, especially in a residence housing more than one individual and given the close link between narcotics and firearms. The Court is persuaded that there is no need to inquire into the Parole Officers’ training, home visits, prior handcuffing, and their
III. ORDER
For the reasons stated above, it is hereby
ORDERED that the motion (Dkt. No. 34) of defendant José Santana (“Santana“) to suppress certain physical evidence and statements is DENIED in its entirety; and it is further
ORDERED that the motion (Dkt. No. 34) of Santana for an evidentiary hearing is DENIED. The Clerk of Court is respectfully directed to terminate any pending motions.
SO ORDERED.
Dated: 20 July 2023
New York, New York
Victor Marrero
U.S.D.J.